Wednesday, February 28, 2007
Environment - Fairly disquieting story on EPA plan for air emissions from manure
According to a Congressional Quarterly story this afternoon, EPA is "EPA Developing Exemption for Manure Emissions." Here is the story, emphasis added:
EPA Administrator Stephen L. Johnson told lawmakers today that his agency is developing a proposal to exempt farms from some reporting requirements under federal toxic waste and right-to-know laws.
The agency is stepping in after Congress has rebuffed efforts to grant farms broad exemptions from environmental rules that cover waste produced on animal feedlots.
The proposed rule, which would be narrower than the languishing bills in Congress, will be released later this year, Johnson told the House Appropriations Subcommittee on Interior and Environment.
Susan Bodine, head of the EPA’s Office of Solid Waste and Emergency Response, said the proposal would exempt farms from reporting their air emissions to first-responders and to the federal government’s National Response Center if the pollution reaches a level deemed an emergency.
“The local emergency response committees are telling us they don’t do anything with these reports,” Bodine said in an interview. “They’re not responding to manure emissions.”
Bodine said it would “reduce the burden” on first-responders and eliminate “uncertainty” on the farm industry on its reporting obligations of air emissions.
Law - Supreme Court rules Crawford v. Washington is not retroactive
"The Supreme Court ruled unanimously today that its major ruling on the Confrontation Clause in Crawford v. Washington is not to be applied retroactively, to cases that were final before that ruling came down on March 8, 2004." Today's decision in Whorton v. Bockting is available here. [Thanks to SCOTUSblog.com and their post, which has many more details.]
Ind. Decisions - Court of Appeals issues 8 today (and 30 NFP)
For publication opinions today (8):
Larry Keesling, et al. v. T.E.K. Partners, LLC - "Thomas McMullen, and M.G. Financial Services of Indiana, Inc. (“M.G. Financial”). The Keeslings and Heritage Land present two issues for our review, which we consolidate and restate as whether they are liable to T.E.K., the assignee of the original note, for sums advanced under a 2002 installment promissory note (the “second note”) executed without their knowledge or consent. We hold that the second note was a material alteration of the original obligation such that the Keeslings and Heritage Land, as accommodation parties, are both discharged from further personal liability on the original note and are not liable for the additional sums advanced under the second note, which they did not sign. We reverse and remand with instructions."
Eric D. Smith v. Indiana Department of Corrections and Westville Control Unit - "Eric D. Smith, pro se, an inmate currently incarcerated at Pendleton Correctional Facility, appeals the denial of his motion for preliminary injunction, challenging that ruling as the sole issue on appeal. We affirm."
Denison Parking, Inc. v. Barbara L. and Jack Davis - Highlighted in this ILB entry.
In the Matter of the Commitment of A.W.D. - a 2-1 opinion. Majority: "In light of this evidence, we conclude the court’s decision to renew A.W.D.’s commitment was supported by the evidence, either because A.W.D. was dangerous to others or gravely disabled. Accordingly, we affirm." Dissent: "In this proceeding, the trial court conducted the entire direct examination and the entire cross examination. I cannot agree with my colleagues that the trial court was merely attempting to 'promote clarity' through these examinations. Rather, the trial court assumed the role of A.W.D.’s adversary by eliciting the evidence against A.W.D. A civil commitment constitutes a significant deprivation of personal liberty. Therefore, I believe that our courts must afford persons subject to confinement the benefits and protections of due process through truly adversarial proceedings."
Lyndale R. Ivy v. State of Indiana - "Lyndale R. Ivy, pro se, appeals the summary denial of his petition for post-conviction relief. He asserts the court should have set aside his plea agreement because the State violated it when it did not dismiss the charges that remained after his sentencing. The State did fail, for over twenty years, to dismiss four requests for the death penalty and four other counts, as required by the plea agreement. However, this does not entitle Ivy to have his plea agreement set aside. Therefore, we affirm."
State of Indiana v. Melissa Rucker - "[D]ue to Sergeant Ewing’s failure to file the affidavit and warrant before conducting the search, 'the warrant was not supported by ‘oath or affirmation,’ as required by the constitutional provision against unreasonable search and seizure, and was illegal.' Conclusion. Based on the foregoing, we find the trial court did not err in granting Rucker’s Motion to Suppress."
Matthew Widduck v. State of Indiana - "Matthew Widduck (“Widduck”) was convicted of Class A misdemeanor possession of paraphernalia in Marion Superior Court. He appeals, raising the following restated issue: whether the trial court abused its discretion in admitting evidence resulting from the search of a vehicle in which he was a passenger. Concluding that the evidence was properly admitted, we affirm."
Aaron D. McDonald v. State of Indiana - "Aaron D. McDonald (“McDonald”) appeals the sentence he received following his guilty plea to murder, conspiracy to commit murder, a Class A felony, and criminal confinement while armed with a deadly weapon, a Class B felony. McDonald raises three issues, which we restate as: (I.) Whether the trial court abused its discretion in the manner in which it considered and applied aggravators and mitigators during sentencing. (II.) Whether McDonald’s sentence is appropriate based on the nature of the offense and the character of the offender. (III.) Whether the trial judge committed fundamental error when he did not recuse at sentencing because he knew two of the State’s witnesses on a professional basis. We affirm."
NFP civil opinions today (13):
NFP criminal opinions today (17) [Link to Cases]:
Jerome Williams v. State of Indiana (NFP)
N.J. v. State of Indiana (NFP)
Gabriel Williams v. State of Indiana (NFP)
Edward Crowe v. State of Indiana (NFP)
Sheria E. Hicks v. State of Indiana (NFP)
Carmelo Gonzalez, Jr. v. State of Indiana (NFP)
Edward Crowe v. State of Indiana (NFP)
S.E. v. State of Indiana (NFP)
Jessica Ross v. State of Indiana (NFP)
Robert Bravo v. State of Indiana (NFP)
Bryan Ellis v. State of Indiana (NFP)
Larry P. Evans v. State of Indiana (NFP)
Daryl Fuller v.State of Indiana (NFP)
Travis Lunsford v. State of Indiana (NFP)
Nathan McKinney v. State of Indiana (NFP)
William Messer v. State of Indiana (NFP)
A.T. v. State of Indiana (NFP)
Ind. Courts - New Chief Judge for Indiana Court of Appeals
A press release from the Indiana Courts today announces:
The Indiana Court of Appeals today selected John G. Baker as the Court's next Chief Judge, replacing James S. Kirsch, who did not seek another term. Judge Baker's three-year term begins on March 1, 2007.Other press releases from the Court today:
Judge Baker, a native of Aurora, joined the Court of Appeals on June 2, 1989. He was appointed to the Court by then Governor Evan Bayh.
Judge Baker said the greatest challenges in the next three years will be to manage the Court’s increasing caseload and to continue the Court’s tradition of disposing of cases in a timely fashion.
The Indiana Court of Appeals is the state’s second-highest court. It reviews appeals from trial court decisions; a decision of the Indiana Court of Appeals is final unless granted further review by the Indiana Supreme Court. The majority of appeals filed in Indiana are decided by the Court of Appeals.
In 2006, the 15-member Court of Appeals issued 2,509 written opinions, sitting in panels of three.
- CLE Commission Names New Officers; Gains New Member
- CLE Opportunity: Character & Fitness CLE on March 7
Ind. Decisions - Court of Appeals rules no duty to clear adjacent public sidewalks
From time to time, the ILB will showcase one of the day's opinions.
In Denison Parking and City of Indianapolis v. Davis, an 11-page (including a 1-page concurring opinion), Judge Mathias writes [most citations omitted]:
Denison Parking, Inc., (“Denison Parking”) brings this interlocutory appeal to challenge the trial court’s denial of its motion for summary judgment in a civil negligence action brought by Barbara L. Davis (“Davis”) and her husband, Jack Davis (collectively referred to as “the Davises”), for injuries Davis sustained when she slipped and fell on a public sidewalk adjacent to a Denison Parking facility. Denison Parking raises one issue on appeal that we restate as whether Denison Parking owed a duty to Davis to clear snow and ice from the public sidewalk adjacent to its property. Concluding that it did not, we reverse and remand with instructions for the trial court to enter an order granting summary judgment in favor of Denison Parking. * * *
In order to establish a claim of negligence against Denison Parking, the Davises must show that Denison Parking: (1) owed Davis a duty, (2) that Denison Parking beached its duty, and that (3) the breach proximately caused Davis’s injuries. In negligence cases, summary judgment is rarely appropriate. * * *
Denison Parking argues that it did not owe the Davises a common law duty to clear the public sidewalks of ice and snow, that it did not owe a duty to Davis based upon statute or municipal ordinance, and that it did not assume a duty to Davis under Indiana law. The Davises counter that Denison Parking’s duty to maintain the sidewalks surrounding its commercial parking facility in a reasonably safe condition for pedestrian travel arises out of (1) Indiana common law, (2) Indianapolis Municipal Code Section 931-102, and (3) Denison Parking’s own conduct in assuming a duty.
This case bears a remarkable resemblance to Lawson, where we stated:It is well settled in Indiana that an owner or occupant of property abutting a public street or sidewalk has no duty to clear those streets and sidewalks of ice and snow. Additionally, municipal ordinances that require abutting owners or occupiers to remove snow and ice from public sidewalks do not, as a matter of law, create a duty under which an owner or occupier can be held liable to third party pedestrians. Id. (internal citations and footnote omitted). Persons are held to have assumed a duty to pedestrians on public sidewalks only when they create artificial conditions that increase risk and proximately cause injury to persons using those sidewalks.* * *
The Davises’ next contention, that Indiana Municipal Code Section 931-1023 creates a statutory duty owed by Denison Parking, likewise must fail. It has long been held that ordinances such as Indianapolis Municipal Code Section 931-102, which the Davises attempt to rely on for protection here, are not enacted for the protection of individuals using the streets, but rather are for the benefit of the municipality. * * *
In sum, the Davises have failed to show that there exists a material issue of fact as to whether Denison Parking initially owed Davis a duty of care. To the contrary, statutory and common law clearly show that Denison Parking did not owe any duty to Davis. Additionally, the Davises have failed to designate any evidence which would create a genuine issue of material fact as to whether Denison Parking assumed a duty by creating an artificial condition which increased Davis’s risk and proximately caused her injury. Without a duty, there can be no breach. Accordingly, we reverse and remand to the trial court with instructions to grant Denison Parking’s motion for summary judgment. Reversed and remanded with instructions.
SHARNPACK, J., concurs. KIRSCH, C. J., concurs with separate opinion.
I fully concur in the decision of the majority that the trial court erred in denying Denison’s Motion for Summary Judgment. I part with my colleagues, however, regarding their conclusion that “[t]his case bears a remarkable resemblance to Lawson” referring to Lawson v. Lafayette Home Hospital, Inc., 760 N.E.2d 1126 (Ind. Ct. App. 2002). I dissented in Lawson, and, to me, there is a marked difference between the two cases. In Lawson, the public sidewalk was located between the hospital’s parking lot and the hospital. The sidewalk was the means of ingress and egress for the many patients, visitors and other business invitees who came to the hospital each day. I believe the relationship between the hospital and its invitees is very different than that between the owner of a building abutting a public sidewalk and a third party pedestrian walking down the sidewalk. It was this relationship that caused me to believe that the hospital owed a duty in Lawson, and it is the lack of such a relationship that causes me to conclude that no duty was owed here.
Courts - "Northwestern places 3 grads at one time in prestigious Supreme Court clerkships for only 2nd time ever"
Karoun Demirjian of the Chicago Tribune reports:
WASHINGTON -- Supreme Court clerkships are reserved for the few, the proud and the elite--who also often happen to be graduates of Ivy League schools.
But this fall the honor will be extended to three recent Northwestern University Law School alumnae, who will begin yearlong clerkships in the offices of Justices Anthony Kennedy, Samuel Alito and John Paul Stevens.
Fewer than 40 young lawyers a year are selected to clerk for Supreme Court justices, and the clerkships go in the greatest number to graduates of top-ranked law schools. Since 2000, only Harvard and Yale have consistently placed three or more clerks in each annual class. * * *
Andrianna Kastanek, Class of 2005, and Jessica Phillips and Katherine Shaw, Class of 2006, will be intimately involved in the life of the court. Since the first one was hired in the 1880s, Supreme Court clerks have played a central role in the core functioning of the nation's most important judicial institution. Though job functions vary from justice to justice, clerks typically do everything from helping select the court's roster of cases from more than 8,000 petitions to drafting opinions to advising the justices as they decide high-profile cases. * * *
The selection of the three Northwestern women is especially notable given that women often have been underrepresented among Supreme Court clerks.
"It's such a surprise to me not to see lots of women in Supreme Court clerkships," said Kastanek, who was a leader of Northwestern's Women's Leadership Coalition.
Ind. Decisions - More on: "Indiana Supreme Court reaffirms employment at will doctrine"
INDIANAPOLIS - A retaliatory discharge claim will not be included in the list of Indiana's exemptions to the employment at will doctrine, the state's Supreme Court recently decided.
Justice Brent Dickson wrote the Feb. 21 opinion for the Court, which agreed unanimously to drop Paul Meyers' claim in his lawsuit against his former employer over unpaid overtime wages.
He affirmed that "revision or rejection of the doctrine is better left to the legislature," which was established in 1986's Morgan Drive Away, Inc. v. Brant. The doctrine says an employee or employer may terminate the relationship at any time for any reason.
Courts - More on the upshot of: Kentucky Supreme Court carries out records purge
The outrage over the mass destruction of misdemeanor records in Kentucky's Jefferson County last year seemed to have abated in late January, judging from this Jan. 23rd ILB entry. But not so. A lengthy story today in the Louisville Courier Journal by Andrew Wolfson and Jason Riley reviews a report of the special "Records Retention Review Commiteee" that "rips" the "bureaucrats" at the Kentucky Administrative Office of the Courts. The AOC is an arm of the Supreme Court.
Some quotes from the story, which is headlined "Office ripped on file purge: 'Indifference,' 'ineptness' found":
Kentucky officials destroyed tens of thousands of old Jefferson County court records last fall because of their "indifference, inexperience, intransigence and ineptness," according to a scathing report issued yesterday.More from the story:
Bureaucrats at the Administrative Office of the Courts followed policies for destroying records without question, which harmed law enforcement and the public, said a five-member panel that investigated the records purge.
Prosecutors and probation officers have complained that the loss of the records -- misdemeanor charges at least five years old -- makes it more difficult to prove in court an offender's past misconduct.
Job applicants also have said they are unable to prove that old charges were dropped. Identifying agency officials by name, the 18-page report said they failed to understand the importance of the misdemeanor records to prosecutors, probation officers and the courts or to listen to their concerns.
First Assistant Commonwealth's Attorney Harry Rothgerber Jr. said the report confirmed his office's view that "public safety has been threatened by this fiasco" and that those involved should be punished.
"Heads should roll at AOC," he said.
In an interview, Steve Romines, a criminal-defense lawyer who served on the panel, blamed a "bureaucratic" culture at the AOC that he said is unwilling to compromise or listen to others.Here is a link to the investigatory commission's 20-page report and recommendations.
"Part of the reason it happened is that for so long the AOC has had no oversight," said Romines. "And when someone questioned them in this situation, they assumed, like always, their position was the correct one." * * *
The five-member panel -- which also included judges and the Jefferson circuit clerk -- was appointed by Chief Justice Joseph Lambert, with Court of Appeals Judge Tom Wine serving as chairman. All panel members are from Louisville.
The panel recommended 13 policy changes, including that misdemeanor records be maintained for at least 25 years and that the destruction of such records be temporarily halted statewide.
In a brief statement, Lambert said the panel's recommendations will be "taken under advisement."
In a separate statement, [Jason Nemes, the AOC's acting director], who is also Lambert's chief of staff, praised the AOC's record policies, although he said "for the time being," all court records will be maintained. * * *
The panel reserved its harshest criticism for John Dobson, the AOC's manager of court services, who executed the purge, for demonstrating "time and again absolutely no concern" for the issues raised by Losavio and others, including the branch manager of the Louisville office of Probation and Parole.
The report said Nemes -- who could have stopped Dobson from destroying electronic records after microfiche and microfilm was destroyed -- "failed to recognize that Dobson only responded to direct and unequivocal directives."
Here is a link to earlier ILB entries on the Kentucky court recrods purge.
Not law but important - More on negotiating medical bills
This Aug. 19, 2005 ILB entry quoted from a number of stories about negotiating medical bills, a topic applicable to both the uninsured, and to the larger and larger pool of those with high deductible medical insurance. A line from a WSJ story quoted in the entry: "The growing effort to enlist consumers in reducing health-care costs has been stymied by the fact that most people just don't know what medical care costs."
Yesterday the NY Times had this story in its Science Section, headlined "Bargaining Down That CT Scan Is Suddenly Possible," that seems to show some progress for the health consumer. A quote:
Patrick Fontana twisted his left knee last spring while hitting a drive down the fairway on a golf course in Columbus, Ohio. But what really pained him was the $900 bill for diagnostic imaging ordered by his doctor.
Mr. Fontana, a 42-year-old salesman, has a high-deductible health plan coupled to a health savings account. Since he was nowhere near meeting his deductible, he was on the hook for the entire bill.
So he did something that insurance companies routinely do: he forwarded the bill to a claims adjuster, in this case My Medical Control, a Web-based company that reviews doctor and hospital bills for consumers.
After concluding that Mr. Fontana was not getting the best possible price, the company’s representatives called the imaging facility and demanded a lower one, promptly saving him $200 — minus a 35 percent collection fee.
“I asked before I went in to the clinic how much it would cost, and they just will not tell you,” he said later. “I didn’t know until I got the bill, and at that point I figured I had nothing to lose.”
The savings are possible for one reason: medical care is often priced with the same maddening, arbitrary opacity as airline seats and hotel rooms.
“The average provider — doctors or hospitals — has between 5 and 100 reimbursement rates for the exact same procedure,” said Timothy Cahill, president of My Medical Control (mymedicalcontrol.com). “A hospital chain with multiple locations may have 150 rates for the same procedure. Consumers don’t know this.”
The varying reimbursement schedules, negotiated between the nation’s 850,000 providers and more than 6,000 health plans, have been kept all but secret. Consumers almost never get information on prices before treatment. Even insurers do not know what other health plans are paying.
Despite the complexity, the Internet has begun to open a window on this surreal world, allowing consumers to compare costs and, occasionally, to discover affordable alternatives. * * *
While only the health plans know the actual numbers, a few Web sites recently have posted some surprising estimates.
Extrapolating from federal Medicare data, Vimo (vimo.com), a small Web start-up in Mountain View, Calif., tries to estimate the fees negotiated by insurers for a variety of hospital procedures.
While the price for a cornea transplant at Wills Eye Hospital in Philadelphia is an estimated $15,000, for example, the reimbursement rate negotiated by insurers is likely to be closer to $4,700, according to the Web site.
The reimbursement rate nationally is still lower: $3,900, by Vimo’s calculation. “We were shocked,” said Chini Krishnan, chief executive of Vimo. “We had no idea that the pricing inefficiencies could be so extreme.”
Law - "First Birthday For Divorce Law Journal"
I read the DLJ daily, communicate with Diana often, and reference her entries frequently, including as recently as yesterday in this ILB entry on "equitable paternity."
Happy Birthday, DLJ, and many more!
Tuesday, February 27, 2007
Courts - Still more on Hoosier Maureen Mahoney for the Supreme Court
In late October, 2005, during the period of speculation over who President Bush would nominate to replace Chief Justice Rehnquist, the ILB posted several entries on Merrillville native Maureen Mahoney, including this one on Oct. 29, 2005.
Ms. Mahoney's name is in the air again, as a result of this interview with Jan Crawford Greenburg, author of the recently published, and acclaimed, book, Supreme Conflict . The interview, in the blog Confirm Them, begins with this:
1. Given the current political climate, who do you think President Bush will nominate to the Court if a third SCOTUS retirement occurs during his presidency?
Answer: Janice Rogers Brown or Maureen Mahoney. Now I know you’re asking how in the world I could possibly mention those two very different contenders in one breath, right? Ok, here’s why: It all depends on which justice leaves and when. President Bush will tap a solid judicial conservative (i.e., Brown) if he gets a nomination this year. * * *
The closer we get to 2008, the better are Maureen Mahoney’s odds, because she’s a conservative who could get confirmed. I hate to segue from Anthony Kennedy to Maureen Mahoney, because the only thing they have in common is a surname ending in “y.” They are nothing alike. Don’t get me wrong here. I’m not comparing Mahoney to Kennedy. It’s the situation, the timing, that I’m talking about. Mahoney is incredibly impressive as a lawyer and advocate; people who call her the “female John Roberts” aren’t too far off the mark. But lawyers in the Bush administration didn’t seriously consider Mahoney for the O’Connor vacancy because they didn’t believe she was conservative enough. She’d argued in support of affirmative action in the Michigan case, and there was a feeling in the White House that she actually believed her argument. Now that Democrats are running the Judiciary Committee (perhaps Mahoney should be thanking George Allen), her work on that case would be a big plus. Mahoney may not be a social conservative (neither is Estrada, for that matter), but let’s not forget that Mahoney IS a judicial conservative. She’s no Anthony Kennedy. She would be the kind of justice—smart, disciplined, skilled-- I’d suspect John Roberts would appreciate having on the Court for the next 20 or 30 years. And she could get confirmed in late 2007/early 2008.
I went through the other contenders in the book, including why some knocked themselves out for good. But there are other possibilities: Diane Sykes of the 7th Circuit is one. Priscilla Owen of the 5th is another, though I’d put my money on JRB if President Bush wanted to go strong this year. And one of my sources insists that Edith Brown Clement of the 5th could make a comeback, but I have a hard time believing that. She’d be incredibly disappointing to the base, and she also didn’t impress folks in the White House.
Ind. Courts - Applications sought for Judge Patrick Sullivan's Court of Appeals seat
Here is a press release issued by the Chief Justice's office:
Attorneys and trial judges interested in applying for the upcoming vacancy on the Second District of the Indiana Court of Appeals must submit applications by April 4, 2007, Chief Justice Randall T. Shepard announced today. The vacancy is occasioned by the August 1, 2007 retirement of Indiana Court of Appeals Judge Patrick Sullivan.Here is the webpage containing the instructions and application for the judicial position. Several points of interest:
“A position on the Court of Appeals is a uniquely satisfying experience. The court is on the cutting edge of the many legal challenges facing our society. I would encourage any interested attorney or trial judge to apply and to urge others to consider this opportunity,” said Chief Justice Shepard.
Chief Justice Shepard chairs the Indiana Judicial Nominating Commission. The 7-member Commission includes three lawyers elected by their peers and three citizen members appointed by the Governor. The Commission will conduct initial public interviews of qualified candidates on April 23 and April 24 in Indianapolis, followed by second interviews on May 11, 2007.
A candidate must have been an Indiana attorney for ten years or a trial judge for five years and must live in one of the 19 central Indiana counties in the second judicial district. The annual salary and allowances for a Court of Appeals judge is $137,968.
- Ten completed applications must be delivered to the Commission's office no later than Wednesday, April 4, 2007. Applications received after 4:30 p.m. on April 4, 2007 will not be considered. Applicants are encouraged to retain proof of delivery. Applicants who plan to deliver their applications as late as April 4, 2007 will help the Commission organize the interview process by notifying Commission staff during the preceding week of their intentions.
- Upon the Commission's receipt of ten complete applications from a candidate, the candidate's name will be made public. IC 33-27-3-2(d). After the Commission has evaluated each application and determines whether to interview all or some of the applicants, the applications of the candidates to be interviewed become public records. IC 33-27-3-2(d)(1).
- The Commission will conduct public interviews in Indianapolis on Monday, April 23 and Tuesday, April 24, 2007, after which the Commission will select a number of candidates for second interviews scheduled for Friday, May 11, 2007. Upon the conclusion of the second round of interviews, the Commission will deliberate in executive session, then vote in a public session to nominate to the Governor the three most highly qualified candidates. IC 33-27-3-2.
- The Commission will consider on behalf of each applicant a reasonable number of letters of recommendation. Letters of recommendation may be sent to the Commission's office, and will be forwarded immediately to each Commission member. (Judges and other judicial officers are not prohibited under the Code of Judicial Conduct from writing on behalf of candidates on the basis of personal knowledge of the candidates' qualifications). Letters sent to individual Commission members will be distributed to all other members. Most Commission members prefer to not meet with candidates except during the interviews.
Ind. Decisions - Supreme court issues reversal based on ineffective counsel
In Harris v. State, a 9-page, 5-0 opinion, Justice Boehm writes:
We hold that appellate counsel is ineffective if counsel fails to provide the trial record establishing facts that support a valid claim raised in the appeal but unsupported by the record provided. * * *
The trial transcript showed that “Harris and his friend were able to get the girls consent to their sexual advances because the girls wanted a place to stay for the night.” Testimony from B showed that during this chain of events and “about five minutes” after Harris had sex with A, the foursome “switched” and Harris took B back to his room where the two had sex in the same bed which the four had just used. This testimony, available only in the transcript, should have caused the Court of Appeals to hold that Harris’s crimes were a single criminal episode. The Court of Appeals observed that it was “hampered” by lack of the record and that its decision was made “on the basis of the record before” them. There is a reasonable probability that the record would have caused either the Court of Appeals or this Court to rule that the record established a single episode. In light of this record we so hold today. Accordingly, Harris’s appellate counsel was ineffective.
Conclusion Transfer is granted and the judgment of the post-conviction court is reversed. Harris’s sentence is revised to thirty years, which is the maximum permitted by Indiana statute at the time for these two crimes committed in the course of a single episode.
Law - More on: Two parents' rights cases before the U.S. Supreme Court [Updated]
The case involving the right, if any, of a non-attorney parent to represent his child in court, reported on in this ILB entry yesterday, was argued today before the Supreme Court. Here is an AP report:
Parents should not be forced to hire a lawyer to sue public school districts over their children's special education needs, the lawyer for parents of an autistic child told the Supreme Court Tuesday.Here is the 71-page transcript of today's oral arguments. Here, from SCOTUSblog, is an argument preview, with links to the briefs.
"What we're advocating here is access to the courts," said Jean-Claude Andre, who represents Jeff and Sandee Winkelman, and their son, Jacob, in their fight against the Parma, Ohio school district.
Until now, most federal courts have said parents don't have the right to sue and, if they are not lawyers, cannot represent their children in lawsuits filed under the Individuals With Disabilities in Education Act, the main federal special education law.
The Winkelmans can't afford a lawyer or the cost of private schooling for 9-year-old Jacob. Neither parent is a lawyer. * * *
The Winkelmans have spent about $30,000 in legal fees since first contesting Jacob's treatment in 2003. Jeff Winkelman has taken a second job while his wife has researched previous court rulings and written her own filings. * * *
Whether Jacob should have private schooling at public expense is not before the Supreme Court, only his parents' right to go into federal court without a lawyer.
Pierre Bergeron, a lawyer for the school district, said the law exists to protect the rights of children, not their parents. Andre, representing the Winkelmans free of charge, said the law closely links the rights of children and their parents.
Several justices indicated they agree with Andre. "Throughout the whole act, they talk about parents and students," said Justice Stephen Breyer.
Chief Justice John Roberts, Justice Samuel Alito and Justice Antonin Scalia seemed most skeptical of the parents' claims.
Alito said he is concerned that parents who represent themselves or their children would have "difficulty maintaining emotional detachment" from the lawsuit.
Parents unhappy with a district's plan can appeal the decision through an administrative process. If they remain dissatisfied, they can file a civil lawsuit on their child's behalf, federal courts have said.
At that point, however, they must find a lawyer, the 6th U.S. Circuit Court of Appeals ruled in the Winkelmans' case. People who are not lawyers can represent themselves in court proceedings, but not other parties. The appeals court said the law requires the child to be the plaintiff.
[Update 2/28/07] Here is the NYT's Linda Greenhouse's coverage of yesterday's oral arguements in the Parma case. A quote:
A lawyer from the solicitor general’s office argued for the Winkelmans, as did a lawyer from a Los Angeles law firm who had agreed to handle their Supreme Court appeal without charge. “What we’re advocating here is really access to courts,” that lawyer, Jean-Claude André, told the justices.
The key to the case, Mr. André and David B. Salmons, an assistant to the solicitor general, told the court, lay in the section of the Individuals With Disabilities Education Act providing that a federal lawsuit may be brought by “any party aggrieved” by the prior administrative proceedings aimed at working out differences between parents and school districts.
Both lawyers emphasized that parents should be seen as advocating their own rights in such lawsuits, not simply standing in as representatives of their children. “Our position is that parents share in the substantive right to a ‘free appropriate public education’ under the act,” Mr. Salmons said.
Because parents are “parties” representing their own interests, the lawyers said, they are entitled to invoke the separate federal statute, part of the Judiciary Act, that provides that “in all courts of the United States, the parties may plead and conduct their own cases personally or by counsel.”
Pierre H. Bergeron, representing the Parma City School District, said that to the contrary, claims asserted by parents in these lawsuits were simply “derivative,” based on the rights that the Individuals with Disabilities Education Act gives to children themselves.
The statute gives parents certain procedural rights but not substantive entitlements, Mr. Bergeron said, adding that this was not enough to “circumvent” the basic rule that a person who is not a lawyer cannot represent another person in court.
Bar associations around the country have invoked that underlying rule to bring suits against parents who have brought disability cases on their own, charging the parents with violating state statutes against the “unauthorized practice of law.” The Cleveland Bar Association, in fact, began an investigation of the Winkelmans and another nonlawyer parent who was helping them with their case; the investigation has been put on hold.
Ind. Law - Different takes on new Wellpoint CEO
The Indianapolis Star heads the story today: "A historic handoff at Indy's WellPoint: Firm to be biggest with woman as CEO."
The NY Times heads its story "Top Lawyer at WellPoint Is Selected as Next Chief."
The WSJ Blog heads its entry: "Yet Another Company Names a Lawyer CEO."
Ind. Decisions - Court of Appeals issues 5 today (and 12 NFP)
For publication opinions today (5):
Daniel H. Raess, M.D. v. Joseph E. Doescher - This is the opinion on rehearing in the workplace bully case (here is a list of earlier ILB entries). "Plaintiff-Appellee Joseph E. Doescher has filed a petition for rehearing in which he claims that the trial transcript was materially misstated in our opinion. We grant rehearing for the limited purpose of correcting a misstatement; however, we reject Doescher’s claim that the misstatement was material. * * * The term 'bullying' is implied in the final statement, not explicit, and the quotation should have shown that distinction. However, as we noted in our original opinion, there is no doubt that Namie’s testimony and Doescher’s counsel combined to mislead and confuse the jury into considering the case as a “workplace bully” case."
Arica Drake Prince v. Allen Co. Dept. of Child Services - "Arica Drake Prince appeals the termination of her parental rights to her five children. Prince claims the evidence was insufficient to support the judgment. Because Prince had remained sober only during the months she was on probation and ordered by a criminal court to stay in a drug treatment facility, she had not yet demonstrated she could remain sober without the threat of imprisonment. In light of her history of relapses, we cannot say the court erred when it found no change in the circumstances resulting in the children being removed from Prince’s care. Because the evidence also demonstrated termination was in the children’s best interests, we affirm."
In the Matter of G.R., Bernard Leonelli and Mary Leonelli v. Noble County Department of Child Services - "We conclude that because Mother’s parental rights were terminated prior to the filing of the Leonellis’ petition for placement, Mrs. Leonelli was no longer G.R.’s grandparent and the trial court was therefore not required to consider her for placement under 31-34-4-2(a) or any other CHINS statute. Mr. Leonelli was not a grandparent to G.R. under the CHINS statutes because he had never been her blood or adoptive relative."
Bobby Greeno v. State of Indiana - "The Fourth Amendment permits a police officer, without any reasonable suspicion of any wrongdoing, to approach a citizen to ask questions; however, that citizen remains free to ignore the questions and walk away. Accordingly, when a citizen in such a circumstance walks away from the officer, the officer must have reasonable suspicion a crime is, was, or is about to occur prior to yelling “stop” and chasing the citizen. Because the officer had no reasonable suspicion when he yelled for Greeno to stop and then chased after Greeno, his warrantless search of Greeno was improper. We therefore reverse the denial of Greeno’s motion to suppress."
Dreibelbiss Title Company, Inc. v. Morequity, Inc. - "Dreibelbiss Title Company (“Dreibelbiss”) appeals a judgment against it for breach of a title insurance policy it issued to MorEquity (“Lender”), a mortgage lender. The trial court properly found Dreibelbiss failed to insure that Lender’s mortgage would be a first lien on the real estate that secured the mortgage, and the damages the court awarded were supported by the evidence. * * * At the time of the foreclosure the Lender held a lien for $131,552.99, and after the Bank’s lien was satisfied there was nothing left to satisfy any part of the Lender’s lien. We cannot say the trial court erred in finding the Lender was damaged in that amount. We accordingly affirm."
NFP civil opinions today (6):
Harold Grubbs and Ima Jean Grubbs v. Holiday Inn Franchising, Inc. (NFP) - "Harold and Ima Jean Grubbs (hereinafter “Grubbs”) appeal a judgment against them on a promissory note, arguing there was no consideration for the note or, in the alternative, there was a failure of consideration. Because Grubbs received consideration in exchange for the note, we affirm." From the dissent: "In sum, the admissible parol evidence leads to the conclusion that the promissory note was separate and apart from the Agreement and was given in exchange for a fully financed, operating hotel with an exclusive license. Because Holiday Inn provided none of these things, consideration for the promissory note failed and, therefore, the trial court’s judgment was contrary to law."
Chrystal M. Finklea v. Dora J. Bennett (NFP) - "The jury was in the best position to resolve conflicts in the evidence regarding medical expenses, lost time, pain and suffering, and inability to function as a whole person, and to assess damages appropriately. The trial court did not err in denying Finklea’s motion to correct error."
Jeffrey A. Langbehn, et al. v. Michael J. Bogese, Jr., et al. (NFP) - a complicated dispute involving the Lake County Solid Waste Management District.
Julie Moore Walker, et al. v. James Thad Martin, et al. (NFP) - Wrongful death action. "Hence, it is apparent that the three parties—Wood, LaFountaine, and Martin—were in business for individual commercial gain. And we cannot agree with the Moore’s contention that Wood was engaged in a joint venture with Martin based on nothing more than Martin’s status as an employee or independent contractor of LaFountaine. Thus, the Moores may not successfully claim that Wood may be held liable for Martin’s conduct under a joint venture theory."
Kerry L. Manworren v. Abby M. (Manworren) Courts (NFP) - "Kerry Manworren appeals the order that he pay $136 per week in child support. He claims the court deviated from the support amount that would result from application of the Child Support Guidelines ($90), but did not enter the findings required by Ind. Child Support Rule 3 to justify such a deviation. The court did not enter findings supporting a deviation, and Kerry’s ex-wife, Abby Manworren Courts, concedes application of the Guidelines to the facts properly found by the trial court results in a $90 support obligation. We must therefore reverse and remand."
Mary McWhirter, Ronald Ryker and Carl McWhirter v. Marion County Department of Child Services (NFP) - termination, affirmed. "We agree that poverty alone does not show unfitness. That does not mean, however, that poverty which causes a parent to neglect a child or expose the child to danger cannot be considered by a trial court in determining whether to terminate parental rights. Here, the evidence presented demonstrates that the decision to terminate parental rights was not based upon the Parents’ poverty, but upon their neglect of their children coupled with their failure to progress sufficiently to allow the children to return. In short, we cannot say that the trial court’s decision was clearly erroneous."
NFP criminal opinions today (6) [Access to Cases]:
Jeremy Southwood v. State of Indiana (NFP)
Anthony Wallace v. State of Indiana (NFP)
Jacob R. Patterson v. State of Indiana (NFP)
Sonny Hoskins v. State of Indiana (NFP)
Jacob L. Johnson v. State of Indiana (NFP)
William Beaver v. Darlene Beaver (NFP)
Law - More on: N.Y. High Court Says Mistaken Avowal of Fatherhood Imposes an 'Equitable Paternity'
Last year the ILB had this entry on cases in New York and Illinois where a "father" who has been paying child support later learns he is not the biological father. Today Diana Skaggs of the Divorce Law Journal has this report about the status of Kentucky caselaw:
Denzik v. Denzik * * * permitted a husband to recoup child support payments many years later, in a civil action for damages, when he was found not to be the biological father of the child born during the marriage. Where will it end? Who knows, but now the Court of Appeals, in a case not yet final but designated to be published, has addressed whether a father who acknowledged paternity has recourse to avoid contempt for non-payment and for recoupment. In short, it was remanded to determine whether there was fraud or misrepresentation, in which case accrued child support may be avoided. Prediction: This it the tip of the iceberg.For a good overview on paternity issues, skim through this compilation of Diana's entries on the subject of paternity from the past year.
Ind. Law - "State expected to defend Soliday in residency dispute"
Bob Kasarda of the NWI Times writes today:
VALPARAISO | The Indiana attorney general's office may be coming forward to defend newly-elected state Rep. Ed Soliday, R-Valparaiso, against a lawsuit accusing him of living outside his legislative district, according to an attorney who filed the suit.Here is list of earlier ILB entries on the Soliday election dispute.
Portage-based attorney Ken Elwood said he was contacted last week by Solicitor General Tom Fisher, who requested a copy of the lawsuit and said the office would be joining the legal battle on Soliday's behalf.
"I think it's ridiculous," Elwood said.
If the state should step in to represent anyone in this legal dispute, it should be all the disenfranchised voters from the 4th District, he said.
Staci Schneider, a spokeswoman for Indiana Attorney General Steve Carter, a Republican, said Monday the office had no comment on the issue.
Five voters from Porter and Jasper counties filed suit Wednesday claiming Soliday does not live within his legislative district as is required by law.
The group argues the error occurred Oct. 16, 2001, when Porter County commissioners exceeded their authority by reconfiguring the House district lines while revamping a few local precincts.
That change inappropriately moved Soliday's property at 2307 Throughwoods Drive from the 10th District to the 4th District, which he now represents.
"Only the state Legislature has the constitutional authority to redraw its House Districts," according to the lawsuit.
The lawsuit before Porter Superior Court Judge Bill Alexa asks the court to replace Soliday with Democratic challenger Sylvia Graham, who he defeated last fall for the two-year term. If that is found to be improper, the group asks that a special election be ordered..
Environment - Survey of CAFO bills pending in General Assembly
Seth Slabaugh of the Muncie Star-Press has a good survey article today titled "Bills aim for CAFO trust: Inspections, training and buffer zones under debate." It begins:
MUNCIE -- Several bills seeking to increase public confidence in concentrated animal feeding operations (CAFOs) are making their way through the Indiana General Assembly as the 2007 session reaches the halfway point.The story includes a sidebar listing the bills introduced on the topic. The three that are moving are:
The bills would increase CAFO permit fees to pay for more inspections; prohibit CAFOs within a mile of a school, city or town; establish good-character disclosure requirements; require not only state permitting of CAFOs but also the approval of local health departments and zoning authorities; broaden public notice of permit applications, and make other changes.
"With more animal feeding operations statewide, the public needs to have confidence that they are being regulated as they should be," said Sen. Beverly Gard, R-Greenfield. "With the number of facilities coming in, we need to beef up IDEM's regulatory program, particularly inspections, to ensure public confidence and weed out the bad actors."
Bill: H.B. 1197
# Author: Rep. Phil Pflum, D-Milton. Co-authored by Tom Saunders, R-Lewisville, and Dennis Tyler, D-Muncie.
# Summary: Prohibits CFOs and CAFOs within a mile of a public school, nursing home, child-care center or municipality. Requires civil penalties for various categories of violations relating to CFOs and CAFOs. Requires IDEM to inspect each CFO and CAFO at least once a year. Applies an annual inspection fee on CFOs and CAFOs to fund inspections. Requires the state chemist to establish a training program for CFO and CAFO manure applicators and haulers.
# Status: On Feb. 21, passed the House 62-36. Referred to Senate.
Bill: S.B. 431
# Author: Sen. Bev Gard, R-Greenfield.
# Summary: Establishes good character disclosure requirements for CFOs and CAFOs. Sets fees for more CFO and CAFO inspections. Requires the state chemist to adopt rules relating to CAFO and CFO manure application and storage.
# Status: On Feb. 20, passed Committee on Energy and Environmental Affairs. Scheduled for second-reading amendments and third reading in Senate this week. [ILB-the bill passed 2nd reading yesterday, 2/26, with two amendments, which are available at the above link.]
Bill: H.B. 1308
# Author: Dave Cheatham, D-North Vernon, David Niezgodski, D-South Bend.
# Summary: Allows the state to approve CFOs and CAFOs only if the construction has been approved by the local health department and the local zoning authority.
# Status: On Jan. 16, passed by Committee on Agriculture and Rural Development. [ILB-passed 2nd reading with one amendment 2/23.] Scheduled for third reading in the House this week.
Monday, February 26, 2007
Ind. Decisions - Court of Appeals issues 2 today (and 16 NFP)
For publication opinions today (2):
Mary Swift v.Speedway Super America - "Swift resigned from Speedway on March 10, 2004. Swift needed to be employed on March 31, 2004 in order to be eligible for payment of the January bonus. Swift needed to be employed on April 31, 2004 in order to be eligible for payment of the February bonus. Therefore, pursuant to the terms of the Store Manager Bonus Program, Swift was not eligible for compensation for the bonuses she seeks. Swift forfeited the potential compensation for bonus credits by resigning on March 10, 2004. The trial court did not err by granting summary judgment in favor of Speedway."
David L. Clark and Aaron Clark d/b/a Clark Electric Co. v. Theresa K. Hunter - "I concur fully with the majority’s opinion regarding the sufficiency of evidence, the prejudgment interest, and the foreclosure on the mechanic’s lien. However, I write separately as I must respectfully dissent in part from the majority’s conclusion that Indiana Code section 32-38-3-14(a) requires an award of attorney’s fees when the plaintiff recovers any judgment brought for the enforcement of a mechanic’s lien."
NFP civil opinions today (2):
Joel C. Hammond, M.D. v. Thalia Hammond (NFP) - "I agree with the majority’s decision to remand the issue of C.L.H.’s post-secondary educational expenses to the trial court because of its lack of findings on the issue. I pause, however, to note that I believe the trial court would have to find extraordinary circumstances to justify requiring Father to pay such a high percentage of C.L.H.’s post-secondary education expenses at the six-year out-of-state school. Turning to the second issue, I respectfully disagree with the majority’s conclusion that it was improper for the trial court to require Father to pay Mother the difference between $837,000 and the actual sale price of the marital residence."
Margaret Lewis Cruz v. Richard Anthony Cruz (NFP) -division of property, affirmed.
NFP criminal opinions today (14):
Gregory Pearson v. State of Indiana (NFP)
Charles Ray Selser v. State of Indiana (NFP)
Brian A. Streeter v. State of Indiana (NFP)
Tiffany Edwards v. State of Indiana (NFP)
Justin D. Doss v. State of Indiana (NFP)
Aareon Neely v. State of Indiana (NFP)
Victor Brewer v. State of Indiana (NFP)
Jonathon See v. State of Indiana (NFP)
Paula Hamilton v. State of Indiana (NFP)
Larry C. Johnson v. State of Indiana (NFP)
Kenneth Macken, Jr. v. State of Indiana (NFP)
Daniel Bernauer v. State of Indiana (NFP)
Michael L. Dupree v. State of Indiana (NFP)
Jerry Smith v. State of Indiana (NFP)
Ind. Courts - "Judge upset at handgun in court"
The Anderson Herald Bulletin has a story by Shawn McGrath that begins:
A Madison County judge wants the government center’s security policy clarified after a Grant County sheriff’s employee was able to bring a loaded handgun into the courtroom during a hearing in which his daughter’s murderer pleaded guilty to the slaying.
Madison Superior Court 3 Judge Thomas Newman Jr., who is also the chief judge of the unified courts, said he brought the issue up during the monthly unified courts judges’ meeting on Thursday.
Newman became upset after learning Grant County Sheriff’s Department employee Willie Clariett, the father of Lorene “Tami” Love, brought a handgun into Newman’s courtroom and sat in the front row and directly behind Darrell Edmonds on Feb. 5
Edmonds, 18, Anderson, was in court to plead guilty to killing Love.
Clariett was wearing his sheriff’s uniform and was let through courthouse security with his service handgun, Newman said. Newman said he didn’t know what had happened, or Clariett’s relationship to Love, until two days after the hearing.
“I was just upset,” Newman said Friday. “I was just mortified. I was stunned.”
Ind. Courts - Expungement - one more thing
A reader writes this morning to remind the ILB of its entry from Jan. 11th, titled "High court panel rejects local prosecutor’s bid to clear record", which includes a link to the Jan. 5, 2007 Supreme Court order and a quote from a story in the Fort Wayne Journal Gazette , including:
The Indiana Supreme Court Disciplinary Commission denied a local deputy prosecutor’s request Friday to expunge a more than 20-year-old private reprimand.
Jack E. Roebel, a local civil law attorney and Allen County deputy prosecutor, filed a petition with the court in October asking judges to remove the 1985 disciplinary action because of his good record since then and because it prohibits him from ever being a candidate for Allen Superior Court judge. * * *
In the opinion issued Friday, Chief Justice Randall T. Shepard of the Indiana Supreme Court wrote despite Roebel’s “exemplary” conduct since his reprimand, the court has no procedures to expunge a lawyer’s record of professional misconduct. Further, he wrote that Roebel’s petition was essentially a request for judicial relief from the statutory restrictions imposed by the legislature on candidates for judge in the Allen Superior Court.
“Since this is a legislatively imposed restriction, we feel constrained by the General Assembly’s directive,” he wrote. “This court now finds that the … petition to expunge (his) private reprimand is hereby denied.”
Law - Two parents' rights cases before the U.S. Supreme Court [Updated]
Tony Mauro of Legal Times writes today in a story headlined: "Parents Fight for the Right to Represent Their Children in Case Before High Court: Local bar associations have investigated parent-advocates for unauthorized practice of law." His long and fascinating report begins:
For Sandee and Jeff Winkelman, the money to pay lawyers ran out in 2004. But they still had their son Jacob to fight for, so they kept going on their own.The second case is a pending petition for writ of certiorari in the grandparent visitation case of Fausey v. Hiller. Howard Bashman of How Appealing is counsel of record on the petition. The question presented:
Jacob is their son, now 9 years old, who has autism. At one point for Jacob, says Sandee, "laying on the floor and screaming -- that was his day at school."
The Winkelmans wanted something better for Jacob, and on Tuesday, their battle against the Parma, Ohio, school district goes before the Supreme Court. But the justices won't be weighing the best plan for Jacob. Instead, they will decide whether nonlawyer parents such as the Winkelmans can represent their kids when disputes under the Individuals with Disabilities Education Act reach federal court.
If the Winkelmans lose, says Georgetown University Law Center professor David Vladeck, "it means these cases just can't be litigated -- not because they're not valid, but because they are brought by people of modest means. I hope the Court understands that." Vladeck has written extensively on the controversy.
The issue of nonlawyer representation has been hard-fought around the country by desperate parents who say there are not enough lawyers able or willing to take on their costly and complex disputes with local school districts. Circuit courts have split over the issue, setting the stage for high court review.
Meanwhile, a skilled corps of parent-advocates has sprung up to fill the void left by lawyers. As a reward for the parents' zeal, however, some local bar associations have gone after them, claiming they are engaging in the unauthorized practice of law. After negative publicity last year, the Cleveland Bar Association withdrew a complaint against a parent who aided the Winkelmans -- at least until the Supreme Court rules in their case.
In Troxel v. Granville, 530 U.S. 57 (2000), this Court concluded that Washington’s Grandparent Visitation Statute unconstitutionally infringed a fit parent’s federal constitutional right to direct the care and upbringing of his or her children. Left expressly unanswered by the plurality opinion in Troxel, id. at 73, the question presented in this case is:See more from How Appealing here.
Whether the Fourteenth Amendment’s Due Process Clause is violated when a court orders grandparent visitation over a fit parent’s objection, where the grandparent has not proved by clear and convincing evidence that such an order is necessary to prevent harm or potential harm to the child.
[Updated 12:07 p.m.] The Greene Couny Daily World has a story today by Nick Schneider about SB 282, a bill which would, according to the digest "Provides that a child's grandparent may seek visitation rights when a parent or guardian of the child unreasonably refuses or restricts visitation. Eliminates current conditions under which a grandparent may seek visitation rights." Some quotes from the story:
The Rev. Lee Ann West, pastor of HIS Church - a small non-denominational congregation in Dugger - has been advocating for a change in the law for the last three years.A check of the action on the bill shows that it is still in Senate committee, and thus is most likely dead.
She's hoping this might be the year when the General Assembly will address her concerns and pass a law that is being sponsored in the State Senate by two area lawmakers.
Last year, Rev. West saw a similar grandparent visitation rights bill die in a senate committee and referred to a summer off-session study committee to refine its language.
This legislative session, Greene County's two state senators - District 39 State Sen. John Waterman (R-Shelburn) and District 48 State Sen. Lindel Hume (D-Princeton) - are carrying the bill in their chamber in hopes it might be enacted into law on July 1.
Ind. Courts - "Hammond City Court on last legs?"
Susan Brown of the NWI Times reports today:
HAMMOND | Mayor Thomas McDermott Jr. has vetoed renewing City Court for another four years.For a related story, see this ILB entry from Nov. 11, 2006, titled "Centralize many of Lake County's 27 courts?"
Adopted by the council at its last regular meeting two weeks ago, the ordinance re-establishing the court was not signed by the mayor within the requisite 10 days, resulting in a pocket veto.
By law, City Clerk Robert Golec now is required to notify the council. He will present the veto to the City Council at its meeting tonight.
"If I do not present the veto at the next regular or special session, the veto stands," Golec said.
Six council votes would be required to override the mayor's veto.
McDermott said his veto was prompted by the four-year period of the renewal and the court's being a potential area for cutting costs.
The ordinance would re-establish the court into 2011, the mayor said. Depending on election results, that could extend the court into another administration.
McDermott said deals made by the previous administration have been a major source of frustration for him during his term in office.
"I always thought that was unfair," he said.
There are no guarantees he or City Court Judge Jeffrey Harkin will be re-elected and, if approved, the court would operate into the next term, the mayor said.
In addition, the mayor is eyeing the court as a means to cut staffing.
"We have to start thinking about cutting government costs," McDermott said.
The City Court could be redundant, he said, suggesting its duties could be combined with the Lake Superior Court on Russell Street.
Sunday, February 25, 2007
Ind. Law - Last Week in Review at the Indiana General Assembly
Here is the Evansville Courier & Press' Bryan Corbin's review of the past week in the General Assembly. A quote from this valuable review (and preview) :
Looking ahead to the coming week:
- Long days are likely ahead for legislators. Monday is the last day to amend Senate bills; Wednesday is the deadline to pass Senate bills and send them to the House. Meanwhile, Tuesday is the deadline for the House to pass its bills and send them to the Senate. On Monday alone, the House has 80 third-reading bills on its docket.
[One of them,] A proposal affecting the funding available for I-69, House Bill 1830, is eligible for a conclusive third-reading vote Monday.
Ind. Gov't. - "Special step not so unusual"
Lesley Stedman Weidenbener of the Louisville Courier Journal has a very good column today that should be read in full. Some quotes:
Last week featured the legislative session's first major partisan blowup when Democrats, who control the House, waived the chamber's rules and stuck a $2 million appropriation into the budget to win the vote they needed to pass the bill.
Minority Republicans threw a fit.
They complained about the Democrats' methods -- suspending a rule that requires a two-thirds majority vote to amend a bill on so-called third reading, when it's past the normal amendment stage and eligible for passage.
GOP leaders said they couldn't remember that rule ever having been waived and said it was unjust and stripped the minority of its chance to participate in the process.
But the House rules -- adopted unanimously by members from both parties -- allow it to happen. * * *
In fact, it was a little ironic that Rep. Jackie Walorski of Lakeville was among the Republicans who criticized it. She called the amendment a "shenanigan."
But just last year, when Republicans were struggling to find the votes to approve Gov. Mitch Daniels' lease of the Indiana Toll Road to a private operator, leaders amended the bill specifically to win support.
Days before the final vote, Walorski remained undecided and told The Courier-Journal she was still trying to see if she could negotiate more benefits for her district.
In the end, the bill's authors sprinkled millions of dollars for transportation and economic development throughout the toll road region in an attempt to secure votes -- including Walorski's -- cutting into the lease proceeds available for highway construction. * * *
This trip down memory lane is not to pick on Walorski. And in fact, that situation was a little different because the toll road lease was an especially sensitive issue to her area. It's hard to claim that's true with the Fry amendment. Everybody has a school district that thinks it doesn't get enough cash.
But last week's budget vote was, after all, just a step in a long process. That money for Fry's district won't stay in the budget in the Senate and probably won't be in the final bill.
With last year's bill, though, the toll road counties are already spending the rewards of their lawmakers' persistence.
Ind. Law - More on: Another year, another effort to ban video games
INDIANAPOLIS (AP) -- Senators decided to hold off on a proposal that would have restricted the sale of adult-rated video games to young people after the legislation's sponsors said they could not find a way to write the bill without violating constitutional rights.
The Senate voted last week to send the issue to a study committee. Bill sponsor Sen. David Ford, R-Hartford City, said he hoped the study committee could come up with a bill that could pass a future session of the General Assembly and withstand a legal challenge on constitutional grounds.
Ind. Gov't. - "Remember the controversy in the Indiana General Assembly [in 2004] when House Speaker Pat Bauer attempted to permit an absent member to vote via computer?"
"Remember the controversy in the Indiana General Assembly [in 2004] when House Speaker Pat Bauer attempted to permit an absent member to vote via computer?" That is a quote from this ILB entry last Sunday. The entry was about an Eastern Kentucky legislator who had his college intern cast several votes for him, and I used it as a take-off for other stories about Pennsylvania and New York, as well as the Indiana classic where an effort was made to allow an Indiana legislator in, I believe, Florida, to cast a vote via his laptop.
Today the Indianapolis Star has this item in its regular Sunday column, Behind Closed Doors:
Breach of rules provokes wrathI've underlined the portion above because of its tie-ins to this Feb. 5, 2006 ILB entry, which was the beginning of a series of entries expressing concern about the video record of the House and Senate. Here is a quote from a column in the Fort Wayne Journal Gazette at the time (unfortunately no longer accessible online):
Call it the case of the disappearing vote.
During a roll call on an amendment in the Indiana House on Friday, Rep. Dave Cheatham, D-North Vernon, voted no.
Which was strange, since Cheatham wasn't even in the House. Instead, he had asked to be excused to attend a funeral in Southern Indiana.
Republicans noted the vote and complained. Then they noticed something even stranger. Though they had a copy of the roll call showing Cheatham's vote, the public record had been altered and a new roll call -- this time showing Cheatham had not voted, along with a few other mysterious changes -- had taken its place.
House Minority Leader Brian Bosma, R-Indianapolis, was furious. "It's just as if it never happened," he said angrily.
House rules bar members from voting for another member. It happens frequently, though, when a representative has stepped away from his or her desk for a few minutes. That scenario, Bosma said, was one thing; voting for a member not even in Central Indiana was another.
And, he said, it was even worse to then change the official record. That can be done -- and occasionally is, when a member has accidentally voted the wrong way -- but there's a parliamentary process that must be followed.
In this case, Bosma pointed out, there was no process at all. Just the whim of the majority. "What else is being changed around here?" he asked, saying that Republicans may have to examine the archived video of every vote taken this session to ensure that the public record is accurate.
"Follow the rules," he scolded Democrats. "Think twice before we go any further down this path."
Rep. Chet Dobis, a Merrillville Democrat, was presiding over the chamber at the time, while House Speaker B. Patrick Bauer, D-South Bend, was meeting with the governor.
Dobis, known as a stickler for following the rules, told members that, from now on, they shouldn't ask someone to push their vote button for them from across the room, let alone the state.
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?The law concerning the Indiana Legislative Council, IC 2-5-1.1, contains a number of provisions about the video record - sections 12.1, and 13 through 16. A review of this statute, along with the Rules of the House, reveals that neither the rules nor the statutes have yet been "expanded to cover this issue."
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.
A review of the House rules did, however, reveal this provision:
75. Change of Voting Records. The roll call as recorded on the recording equipment shall not be altered or changed in any manner, by any person, except by a constitutional majority upon written petition setting forth the reasons for the change of the recorded vote. The petition and the action thereon shall be entered in the Journal.A Nov. 8, 2006 ILB entry expressed concerns about the video archives of the House and Senate, noting that they were important Indiana historical documents, and set out some recommendations:
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. [Note: This has now changed - the Senate is now following the House precedent of making the previous 2007 session days' videos available for viewing on demand. But where are the 2006 video records of either house?]Conclusion. All of this ties in to the concerns the ILB has expressed many times, that during this era of changing technologies, the Indiana General Assembly is dropping the ball on its responsibilities to permanently preserve and make accessible the Indiana administrative rules, the Indiana statutes, and the Journals of the House and Senate (including the voting records), as well as the newest record under the control of the General Assembly, the video archive of the session days.
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.
Saturday, February 24, 2007
Ind. Courts - Some perspective on "Businessman's criminal rap sheet erased in legal deal" [Updated]
First off, two more items relating to this story. Thursday Ruthann Robinson had a good overview of the events in the NWI Times. Some quotes:
In July, Dominic Pitzel, 53, a Crown Point businessman, petitioned the court to clear his record of his more than 20-year-old felony convictions.The Gary Post Tribune has an editorial today about the events. Some quotes:
It wasn't the first time Pitzel requested such an action in the cases. It's just the first time it succeeded.
However, Lake Criminal Court Judge Diane Ross Boswell found out she may have gone too far on Jan. 2 when she not only ordered the robbery, aggravated assault, theft, burglary, pointing a gun and carrying a handgun without a license convictions set aside -- but all records of those convictions destroyed, court records show.
In 2000 and 2001, two special prosecutors on the case -- appointed because Lake County Prosecutor Bernard Carter disclosed Pitzel's father is a "personal friend" -- asked judges to deny the post-conviction requests made by Pitzel's then-lawyer Willie Harris.
But the second special prosecutor assigned to the case, Michael D. O'Neall, of Jasper County, later reversed his position and asked the judge to comply with Pitzel's request, which had been made by attorney Marc Laterzo.
O'Neall said Wednesday he agreed only to the conviction being set aside, not the records destroyed. The stipulation filed in January makes no mention of an expungement agreement.
"I'll tell you, that's the last special prosecution case I'll take from Lake County," O'Neall said.
The court's electronic docket shows no record of Laterzo entering his appearance or of a new post-conviction relief petition being filed. However, a check of the resurrected files Wednesday turned up both as being filed in open court July 18. * * *
After reading a local media account [that would be the Gary Post Tribune, which ran three stories] of the unusual order and the discrepancies in the record, Senior Lake Criminal Court Judge Salvador Vasquez said he spoke with Boswell about the case.
He said expungements are rare, and there are narrow guidelines for granting them.
In fact, legal experts say the only Indiana law under which arrests can be expunged is when the petitioner has been free from subsequent arrests. Records show Pitzel was arrested in 2003 for contributing to the delinquency of a minor, a charge that prosecutors dismissed in July 2005 after Pitzel paid a fine and went six months without an arrest.
"There was never a hearing on this matter," Vasquez said. "You just don't make quick decisions. But to err is human, and when you make a mistake, you've got to correct it."
Thus, Boswell's order Wednesday to save the files from destruction.
Lake County Chief Deputy Clerk Sylvia Brown said the Jan. 2 expungement order was one of only a handful she has seen in her many years in the clerk's office. That's why she called the state court administration for guidelines, she said.
Brown said she began following the expungement order by erasing computer records of Pitzel's convictions. Her next step was to destroy the hard copies, but Boswell's new order stopped that process.
Brown said she did not know if the computer files would be re-entered.
Is there any wonder why people become fed up with the criminal justice system in this country?Here is a list the ILB entries on this expungement.
The case of Crown Point businessman Dominic Pitzel is the perfect example. Pitzel has convictions for burglary, theft and pointing a firearm. He did, anyway. The record has been expunged. The court records have disappeared. It's all as if nothing ever happened.
Lake Superior Court Judge Diane Ross Boswell signed the order clearing Pitzel's record. But after the Post-Tribune exposed the sweetest of sweetheart deals, the judge rescinded her order, saying she wanted to make sure things were being done properly. * * *
[Attorney Mark Laterzo] justified the post-conviction relief by saying Pitzel has pretty much been a model citizen since his convictions 20 and 30 years ago. Not exactly. Pitzel pleaded guilty to intimidation for threatening a Crown Point police officer, and criminal recklessness for running a Crown Point firefighter off the road in 1993. The firefighter was returning to the fire at Maple Manor, the former county home for the poor, which Pitzel bought in 1991.
We encourage Boswell to stand firm with her decision to rescind the order. There's nothing wrong with admitting to a mistake. It also will restore some faith in the system.
These stories have caused the ILB to do some research on the subject of expungement of adult criminal records in Indiana.
"Expunge," "purge", "seal", "conviction set aside" -- do these terms all mean the same thing or are there distinctions? Are there statutes that cover these actions? Are there court rules? Is there case law?
The only statute I have located, IC 35-38-5 deals with expungement of arrest records. It is quite limited, applying only in the case where an individual is arrested but criminal charges are not filed, or where criminal charges are dropped because of mistaken identify, no offense was in fact committed, or there was an absence of probable cause. The procedures to be followed are set out in the statute.
A check of the Trial Rules shows no occurances of the words "purge" or "expunge."
The word "seal" does appear, but not with respect to the sealing of criminal records. For example, Rule 5(G) deals with "Filing of Documents and Information Excluded from Public Access and Confidential Pursuant to Administrative rule 9(G)(1)." Reference also is made to records sealed by the court pursuant to IC 5-14-3-5.5.
Nothing relevant was found in the criminal procedure rules or the post-conviction remedies rules.
Rule 9 of the Administrative Rules lists at (G) "Court Records Excluded From Public Access." Under (1): "Case records. The following information in case records is excluded from public access and is confidential:" we have "(c) Information excluded from public access by specific court order;" and "(g) All orders of expungement entered in criminal or juvenile proceedings." The commentary that follows (G) remarks:
This section does not limit the authority of a judge in a particular case to order the sealing of particular records or to exclude from public access during the pendency of a case motions to suppress or motions otherwise seeking to limit or exclude matters from presentation at a jury trial, and all proceedings and rulings thereon. Such exclusion of public access to pre-trial proceedings should be invoked sparingly and only when the court is convinced that admonitions to prospective jurors and the jury selection process will likely be inadequate to assure a fair trial.Section 9(H) is titled "Prohibiting Public Access to Information In Court Records." This is a fairly long section that may bear close reading. However, the commentary following it begins:
The prohibition of access to addresses under this section includes, without limitation, mail and e-mail addresses.
With respect to expungement orders excluded from public access under section (G)(1)(g) of this rule, an interested person may seek a copy or other verification of an expungement order by filing a request under section (I) of this rule.
In addition to deliberative material excluded under this rule, a court may exclude from public access materials generated or created by a court reporter with the exception of the official transcript.
This section is intended to address those extraordinary circumstances in which information that is otherwise publicly accessible is to be excluded from public access. This section generally incorporates a presumption of openness, and the need for demonstrating compelling grounds to overcome the presumption.That would seem to rule out records of criminal convictions.
Parties should be aware that their request is not retroactive. Copies of the public record may have been disseminated prior to any request, and corrective action taken under the provisions of this rule will not affect those records.
The "Court's Bench and Media Guide" has a section on expungement:
ExpungementI am unaware of the basis for the underlined sentence above.
Expungement is a process through which the legal records of an arrest can be destroyed or returned to individuals under narrow circumstances. However, Indiana’s expungement statutes do not allow records of convictions to be sealed after the passage of time. Indiana also has a procedure under which the distribution of criminal histories can be limited but that is not considered an expungement under Indiana law. Both processes include filing a petition with the sentencing court. The judge can decide the case based on the pleadings or schedule a hearing which would be in open court. These processes cannot be used to limit disclosure of convictions if the person has been classified as a sex offender whose identity has been posted to the sex offender registry website.
Indiana’s juvenile statutes also contain expungement provisions. A person may petition a juvenile court to expunge records pertaining to the person’s involvement in juvenile court proceedings (delinquency allegations or CHINS allegations). This petition may be filed at any time with the juvenile court.
Some other jurisdictions appear to allow expungement and have formalized procedures. For instance, here is a "how-to" page from the Utah Court's site. It begins "Getting a record expunged is the process of sealing a criminal case after the case has been resolved."
Michigan has a statute relating to the setting aside of certain convictions. This is apparently treated as an expungement - see this Q&A from Legal Aid of Western Michigan:
Q - I have been denied public housing or employment because I have a criminal conviction on my record. Is there anything I can do to clear my record of that conviction?Finally, a question that must be asked is - What is the value of expungement in the era of the internet? Adam Litpak of the New York Times wrote about this in an Oct. 17, 2006 column and I posted an entry quoting from the column here. Here is just a smidgen of what he wrote:
A. - Yes, you might be able to have your conviction set aside (expunged). If you are able to set aside (expunge) your criminal conviction, it is treated the same as if that conviction never occurred. Therefore, on housing or job applications, when asked whether you have ever been convicted of a crime, you can answer "no."
In 41 states, people accused or convicted of crimes have the legal right to rewrite history. They can have their criminal records expunged, and in theory that means that all traces of their encounters with the justice system will disappear. * * * But real expungement is becoming significantly harder to accomplish in the electronic age. Records once held only in paper form by law enforcement agencies, courts and corrections departments are now routinely digitized *** Lida Rodriguez-Taseff, a lawyer in Miami, tells her clients that expungement is a waste of time. “To tell someone their record is gone is essentially to lie to them,” Ms. Rodriguez-Taseff said. “In an electronic age, people should understand that once they have been convicted or arrested that will never go away.”Once something is posted on the internet, it may be there forever, as college students who have posted photos of themselves behaving badly on MySpace have found out. Everything that has ever been written about you in a newspaper or even in a blog is likely to pop up in a Google search -- once information has appeared online, there is really no way to put it back in the bottle. And that is the irony in the Gary story.
[Updated 2/25/07] As if to place an exclaimation point on that last sentence, the Gary Post-Tribune has a story today by Andy Grimm that rehashes in detail the facts of the convictions businessman Dominic "Nick" Pitzel sought to have expunged from the record. A quote:
"I can tell you if he wanted that stuff to go away, it hasn't gone according to plan," said one observer who knows Pitzel.More from the story:
The outright destruction of hard copies of the records, rather than simply removing references in computer databases for the county courts and state and national law enforcement, was nearly unprecedented. Clerk's office staff said they had destroyed only five felony files in 20 years.
Winning expungement in a felony case where the defendant pleaded guilty is rarer still, said Valparaiso University Law Enforcement professor David Vandercoy. Even more exceptional is expungement of records in a case where the defendant pleaded guilty, or was tried and found guilty.
"The only time you get expungement of records regarding a conviction are in limited circumstances where you've got a gubernatorial pardon," Vandercoy said. "And even if you get the pardon that removes the conviction, that would just be something that was included in the record."
Expungement of records seems to be a procedure reserved for defendants who likely never belonged before a court in the first place, Vandercoy said.
State law appears to provide for expungement of records only in cases where the defendant was arrested and never charged, was arrested or charged in a case of mistaken identity.
Ind. Decisions - "Court voids ’04 stormwater fee"
Amanda Iacone of the Fort Wayne Journal Gazette reports today on the Feb. 21st decision of the Court of Appeals in Brockmann Enterprises, LLC v. City of New Haven, et al. - see ILB entry here. From today's story:
The Indiana Court of Appeals has ruled a storm water rate the city of New Haven enacted in 2004 was illegal and is now void.
That rate has been replaced, however, by another one passed in 2005.
The appellate decision, which was released earlier this week, overturns a lower-court ruling in favor of New Haven. Brockmann Enterprises, which owns property in New Haven and protested the rate, appealed the Allen Circuit Court decision last year.
Brockmann sued the city in June 2005, saying that the rate of $8.89 for non-residential property and the $5.35 per month per home fee was discriminatory and imposed unequal benefits and burdens on the same and differing classes of property, according to the initial complaint.
Brockmann sought a refund for all fees the city had collected for the storm water rate and asked that a judge find the fees unconstitutional and discriminatory and to void the fees. Brockmann also asked that the city pay the company’s attorney fees, according to the complaint.
In April 2004, New Haven city council passed an ordinance that created a storm water management board and also set the storm water rate. The money collected was intended to pay for storm water collection and disposal to comply with federal EPA clean water standards, according to the appeals court decision.
In the appeal, Brockmann argued that New Haven lacked the authority to establish the storm water rate. The court determined that New Haven did not follow the proper procedure in setting the rate. Under state law, the board of storm water management should have made a recommendation to the City Council on the rate and then asked council to approve it, according to the court’s decision.
“Here, the board was not allowed any opportunity to perform the very function for which it was created,” the decision said of the storm water management board.
The appeals court ruled the rates void and reversed the circuit court’s decision that favored the city. * * *
Cathleen Shrader, attorney for Brockmann Enterprises, said Brockmann is pleased with the decision.
Ind. Courts - "100-year-old woman called for jury duty"
Nick Werner of the Muncie Star-Press reports today, in a story that begins:
MUNCIE -- The likelihood that suspects in Indiana courts might be judged by a jury of their grandparents' peers is increasing since the state eliminated automatic jury exemptions for seniors.
In a murder trial scheduled this week in Delaware Circuit Court 1, at least 15 of the 80 people summoned for jury selection were 66 or older.
One woman was 100 years old.
"If you are 100 years old, I don't think you should have to be bothered by jury duty," Delaware Circuit Court 1's Marianne Vorhees said.
The murder trial and its corresponding jury selection were canceled because the defendant pleaded guilty to voluntary manslaughter on Wednesday. But it called attention to an interesting debate among those in the judicial system. Should courts disqualify older people from jury duty, or at least provide exemptions for them? And if so, at what age?
Before July 2006, anyone older than 65 in Indiana who did not want to serve on jury duty was exempt -- no questions asked. The exemption did not ban those older than 65 who wanted to serve on juries. State legislators eliminated that exemption -- as well as antiquated exemptions for ferry boat captains and veterinarians -- in an effort to broaden the jury pool.
Indiana was one of nine states that dropped age-oriented exemptions between 1998 and 2006. Currently, 14 states allow older citizens to claim exemption from jury duty based on their age, according to the National Center for Jury Studies.
The 100-year-old woman, whose name has not been released by court officials, would probably never have made it to the jury box for obvious reasons, Judge Vorhees said.
Her case, however, represents the unintended consequence of eliminating the age exemption, according to Delaware County court administrator Lana Scroggins. That is older people who would never pass muster are flooding the jury pools, bogging the judicial system and costing taxpayers, Scroggins said. Court employees, who must ensure a trial will have enough jurors and alternates, now send out an estimated 30 percent more summons for jury selection to compensate for seniors who can't make the cut.
"It's a lot of work," Lana said.
Each summons carries a cost, too. This includes postage, labor and the $15 compensation plus mileage for prospective jurors that actually appear in court. A trial requires anywhere from 40 to 80 prospective jurors and last year courts issued summons for 120 criminal and civil trials. It was unclear how many of those actually went before juries and how many were canceled in advance.
Friday, February 23, 2007
Ind. Courts - Reports on bills of interest to the Judiciary discussed this week
The Indiana Judicial Center has posted its reports on bills of interest to the Judiciary in play this week in the General Assembly. Access them here.
Ind. Decisions - Transfer list for week ending February 23, 2007
Here is the Indiana Supreme Court's transfer list for the week ending February 23, 2007.
Over 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.
Ind. Courts - "Chief Justice helps rededicate LaGrange Circuit Courtroom"
WTHD 105.5's Tim Murray reports today that "LaGrange County's newly restored Circuit Courtroom was re-dedicated Friday with help from the Chief Justice of Indiana's Supreme Court.." The story includes audio, plus photos of the gorgeous restored courtroom:
The project, which cost about 200-thousand dollars, included the removal of a suspended ceiling and of paneling. Local artist Carl Mosher painted cherubs holding an unfurled American flag on the ceiling's dome.
Two other paintings on the ceiling and a painting of Lady Justice on the wall behind the jury box were also refurbished.
Courts - More on sealed cases in Connecticut
Typing "sealed cases" in the ILB search box turns up a long list of entries, including this one from June 9, 2004, headed "2nd Circuit rules docket sheets in Connecticut courts are public documents." The entry includes a quote from the Hartford Courant:
The U.S. 2nd Circuit Court of Appeals ruled Tuesday that the press and public have a First Amendment right to access the docket sheets that serve as an index to court files, and revived a media challenge involving thousands of sealed Connecticut court cases dating back decades.Here are some quotes from an AP report dated 2/22/07 and headlined "Conn. Judge Grants Media Bid to Lift Secrecy Seal on Some Cases." Some quotes:
U.S. District Court Judge Gerard L. Goettel last November dismissed a lawsuit filed by The Hartford Courant and the Connecticut Law Tribune that sought limited information about the sealed files, saying top judicial branch officials had no power to undo orders made by judges to keep those files secret.
But lawyers for the media argued before both Goettel and the three-judge appellate panel in New York that their request was to access not the files, but merely the docket sheets. Docket sheets identify the parties involved in a case, the judge to whom it was assigned, the nature of the litigation and a table of contents of the various motions and pleadings that were filed.
MIDDLETOWN, Conn. (AP) -- A Superior Court judge's ruling will reveal the identities of people in more than two dozen lawsuits so secretive that their very existence could not previously be confirmed, the Hartford Courant reported Thursday.
Judge Robert E. Beach's ruling, dated last Friday, affects 27 of 40 cases that had been "super-sealed'' by Connecticut judges. The special designation removed cases from court dockets, and court clerks were not even allowed to acknowledge their existence.
"Some have suggested that sealing orders may have been motivated by unseemly factors,'' Beach wrote in his 32-page decision. "Public confidence in the integrity of the judicial branch is essential in its functioning in a free society.''
The ruling follows legal challenges filed four years ago by the Courant and the Connecticut Law Tribune. The two publications sued to get the court system to reveal the identities of people who took advantage of the judicial branch practice of "super-sealing'' cases.
The practice remained a secret until 2003, when the Law Tribune and the Courant revealed the existence of Level 1 cases involving the divorce of University of Connecticut President Philip Austin and a paternity suit against Clarence Clemons, the saxophonist for Bruce Springsteen's E Street Band. * * *
In 2003, court officials voted to abolish the practice, but did not retroactively unseal any of the files.
Officials eventually unsealed most of the cases, saying they should have never been sealed, but left docket sheets for 40 others - primarily divorces, child custody matters and paternity lawsuits - for Beach to consider.
Beach ruled that docket sheets for 27 cases be released with all information intact. Parties in the cases have 20 days to appeal.
In 12 cases, Beach ordered sheets to be released with the parties' names deleted because they involve cases in which releasing the identity of the parties could compromise their safety, he said. Some of those cases involve people who sought to change their names.
Beach ordered docket sheets for two cases to remain sealed because parties claimed to be FBI informants and cannot have their names revealed. He also ruled that a child custody case since transferred to New York should remain sealed.
Attorney Daniel Klau, who represented the Law Tribune, said the judge's ruling support the point made by the media organizations from the beginning.
"The initial objective of the lawsuit was always just to get the docket sheets in the cases unredacted so we'd know who were the parties, the nature of the case and the judge who issued order to make this case disappear,'' Klau said Thursday.
Klau said a docket sheet is basically a table of contents for the lawsuit that lists the parties, the nature of the case and every document that has been filed. It also contains orders or rulings and the names of the judge or judges who issued them.
Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)
For publication opinions today (1):
In Thabit Gault v. State of Indiana, a 19-page opinion (including a "concur in result" beginning on p. 15), Judge Crone writes:
We restate the issues as follows: I. Whether sufficient evidence supports Gault’s conviction; and II. Whether the trial court committed reversible error in denying Gault’s counsel an opportunity to inspect a police report used to refresh the recollection of a State’s witness at trial. * * *
At trial, defense counsel Shane Beal cross-examined Officer McGuire regarding Gault’s arrest. Officer McGuire expressed uncertainty and stated that reading his police report would refresh his recollection. At this point, as the State acknowledges, the prosecutor “apparently supplied” Officer McGuire’s police report to either Beal or Officer McGuire. Officer McGuire read a portion of the report and answered Beal’s questions. Beal then asked for “a couple minutes” to read the report. The prosecutor responded that the police report was “not discoverable evidence[,]” thus apparently invoking the work product privilege. Id. Beal said, “If he’s used it to testify from, then I’m allowed to have the entire copy to review.” The trial court disagreed, stating that the report was “not discoverable.”
In this case, established precedent leads us to conclude that the State waived its work product privilege, at least with respect to the portion of the police report that Officer McGuire used to refresh his memory. Thus, the trial court should have permitted Gault’s counsel to review it. Nevertheless, Gault’s bald assertion of prejudice is insufficient to establish reversible error, and the evidence of his guilt is substantial. We therefore affirm his conviction. * * *
BAKER, J., concurs.
VAIDIK, J., concurs as to Issue I and concurs in result as to Issue II, concluding: Having concluded, wrongly, in my opinion, that the trial court erred in refusing to allow Gault to review the police report, the majority nonetheless determines that the evidence of his guilt is substantial and affirms the conviction. In doing so, the majority cites Indiana Appellate Rule 66(A) (“No error . . . in any ruling . . . is ground for granting relief or reversal on appeal where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.”). I question how we can judge the probable impact of the trial court’s refusal to compel disclosure of the police report if we do not know the contents of the report. We do not know the contents of the police report because whether the report constitutes work product was never at issue before the trial court; both parties assumed that the police report constitutes work product of the prosecutor. The only question before the trial court was whether the prosecutor had waived its work product privilege under IRE 612. Consequently, there was no in camera review of the document by the trial court, and we do not have a copy of the report in the record before us. Therefore, even if I were to agree that the trial court erred in denying Gault access to the police report, I do not understand how we could determine the probable impact of that error on Gault’s conviction without knowing the contents of the report.
This leads me to my greatest concern with the lead opinion. The majority uses this case as a springboard to comment, in dicta, on the work product privilege as it pertains to police reports. I do not share the conviction of my colleagues on this issue. First, I do not see this as a pervasive problem that needs fixing. Second, to the extent that it is a problem, we should deal with it in cases where the issue is squarely presented to us. For these reasons, I concur in result as to issue II.
NFP civil opinions today (3):
In Hydrotech Corporation v. Indiana Office of Environmental Adjudication (NFP), a 12-page opinion, Senior Judge Barteau concludes:
The trial court erred by limiting the award of attorney fees to the hours billed prior to the date the documents were tendered by OEA. A party does not prevail in an APRA action until a determination is made regarding the propriety of the denial of access to public records. Once a party prevails, attorney fees shall be awarded from the date of the PAC’s opinion until the date a prevailing party is determined. The trial court erred by using the date of tender by OEA to limit the attorney fee award.
The trial court did not err by determining the rate of a reasonable fee in this matter that was within the range of evidence. Because Hydrotech was required to pursue its attorney fees in this court, we remand this case to the trial court for a hearing during which evidence of Hydrotech’s appellate attorney fees shall be submitted and an appropriate award shall be made against OEA.
Copy Services, Inc. v. University of Notre Dame Du Lac (NFP) - "The Shop argues that the University’s acceptances of its multiple renewals establish a genuine issue of material fact as to whether the University knowingly misrepresented its construction of the Lease. The University contends that its acceptances of renewals do not constitute representations that the Lease would be perpetual. We agree with the University. The University’s acceptance of renewals is not inconsistent with their position that they also had the right to reject the Shop’s request for renewal. Thus, the fact that the University accepted the Shop’s renewals of the Lease for several years does not establish that the University believed that the Lease provided for perpetual renewals. See Smyrniotis, 744 N.E.2d at 532 n.2 (rejecting lessee’s argument that lessor ratified belief that lease was perpetual by continuing to accept payments after initial term of lease). We therefore affirm the ruling of the trial court."
Dell Computer Home Systems v. Kweku K. Bentil (NFP) - "Dell Computer Home Systems (“Dell”) appeals the trial court’s grant of the motion by Kweku K. Bentil for summary judgment and its order that Dell pay Bentil $2,989.00. We reverse."
NFP criminal opinions today (3):
Bart Bell v. State of Indiana (NFP)
Russell A. Lucas v. State of Indiana (NFP)
Debbra K. Jackson v. State of Indiana (NFP)
Ind. Courts - Chief Justice Counsel David J. Remondini moves to state court administration position
From a press release issued today by the Supreme Court:
David Remondini, longtime Counsel to the Chief Justice Randall T. Shepard, has been named to the newly created position of Chief Deputy Executive Director for State Court Administration, Chief Justice Shepard and Executive Director Lilly Judson announced.
Mr. Remondini, who has worked for the Chief Justice since 1995 after a 15-year career as a reporter for The Indianapolis Star, assumed his new duties on Feb. 22nd.
In the new position, Mr. Remondini will oversee the day-to-day operations of the Division of State Court Administration and its many projects and programs. He will report directly to Mrs. Judson.
During his tenure with the Chief Justice, Mr. Remondini has been responsible for overseeing the development of the Supreme Court's statewide pro bono effort, its project for self-represented litigants, the Conference on Legal Education Opportunity law school scholarship program, and the “cameras in the court” projects for the appellate and trial courts. He also supervised the startup of the Court's webcasting and “Courts in the Classroom” project and served as the Chief Justice's liaison to the news media, state and local bar associations and a host of other groups and organizations.
“Dave has had an enormous impact on the Court over the last 11 years. He has been involved in nearly every aspect of the Court's operations. I have appreciated his dedication and commitment both to the Court and to the people of Indiana. I will miss having him in my office every day. I am very glad he is not going too far away,” said Chief Justice Shepard.
The Division of State Court Administration is the “paymaster” and benefits overseer for the state's judges and prosecutors. It also organizes the statistical output of Indiana's trial courts. The Division also manages a number of programs that provide direct support to the courts and the public, including court interpreter certification, the Court Appointed Special Advocate/Guardian Ad Litem program, the Civil Legal Aid fund and the Conference on Legal Education Opportunity program.
“I told the Chief Justice he is not losing his Counsel; he is gaining a much improved Division of State Court Administration. I am thrilled Dave is going to join our talented staff. His broad knowledge of the trial courts and the legal system will be a tremendous addition to our operations,” said Mrs. Judson.
Mr. Remondini, 48, is a graduate of Ripon College in Wisconsin and earned his law degree from Indiana University School of Law at Indianapolis. He is a native of Weymouth, Massachusetts.
During the transition period, Mr. Remondini will continue to handle media relations for the Chief Justice.
Ind. Law - Indiana Lawmakers tonight features SJR 7 and SB 65
You can catch Indiana Lawmakers [this weekend] on WFYI TV 20 in Indianapolis and assorted public television stations statewide. Jon Schwantes hosts the show, with reports from the State House by WFYI 90.1 FM News Director Mary Hartnett and analysis from INGroup's Ed Feigenbaum.
In-studio guests for this week's show about SJR 7 [definition of marriage] and SB 65 [definition of "family or household member" ] are Sen. Brandt Hershman (R), Rep. David Orentlicher (D), Sue Swayze from Indiana Family Action, and Walter Botich from Stop the Amendment.
The show airs Friday at 11:00 p.m. and Sunday at 4:30 p.m. on TV 20, and Saturday at 6:30 a.m. on WFYI 90.1 FM.
Ind. Law - Still more on the ABA's proposed death penalty moratorium
From an editorial today in the Fort Wayne Journal Gazette. It concludes:
A handful of states – including Illinois, New York and New Jersey – have suspended capital punishment over the fairness issue. Other states have suspended executions because of concerns about their lethal injection procedures.For earlier entries, type "moratorium" in the right-column search box.
In Indiana, 24 inmates await execution.
A moratorium would not prevent a judge from sentencing someone convicted of a crime to death but would defer the execution until the state rectifies the system’s deficiencies.
The governor has been silent on the moratorium recommendation, declining to comment on the bar association report, but silence is not an adequate response.
Someday, Indiana citizens may decide to join millions of others around the world in abolishing the death penalty altogether. In the meantime, if the state is going to execute people in the name of its citizens, at the very least, the system should be fair.
Ind. Law - Still more on: "Election official bows out of lawmaker's residency dispute"
A lawsuit filed by five voters asks a Porter County judge to declare the election of State Rep. Ed Soliday void, and either seat his Democrat opponent, Sylvia Graham, or call a special election for the 4th House District seat.The AP also has a story today that appears in several Indianapolis papers. Some quotes:
The suit, filed in Porter Superior Court Judge William Alexa’s court on Wednesday, declares that Soliday actually lives in the 10th District, not the 4th District.
The lawsuit focuses largely on an action taken by the Porter County Commissioners in October of 2001, when they passed an ordinance changing and adding precincts, including those in Center Township. The suit claims that the ordinance passed was invalid, and that the commissioners do not have the authority to redraw precincts that change a state legislative district.
The Chesterton Tribune recently reported that after the commissioners passed that ordinance, County Attorney Gwenn Rinkenberger asked election officials for the new precinct map and legal description. However, her file does not show that that information was submitted, and the documents could not be located either in the records of the commissioners or the county auditor. * * *
Soliday has said that he verified that his residency is in the 4th House district before he filed and that his voter registration card issued by the county identifies him as living in the proper precinct and House district. He has also said the effort to remove him smacks of partisan politics and could backfire on his Democratic opponents.
The suit contends that the county commissioners who were in office in 2001 -- the late Larry Sheets, former commissioner Dave Burrus and current commissioner John Evans -- passed an ordinance adding precincts, but that the precinct maps and descriptions were never appended within the appropriate file. That deficiency in the record means that the ordinance was not properly passed or ratified, the suit contends.
Minutes from the commissioners’ meeting shows that the change in precincts was needed in part because of recent annexations. Soliday’s neighborhood had been annexed by Valparaiso the year before.
A county precinct map shows that prior to October, 2001, Soliday’s residence on Throughwoods Drive was in Center Township precinct 18. The commissioners’ ordinance is believed to have changed precinct 29 to include Soliday’s neighborhood. By state statute, precinct 18 is in the 10th House District, while precinct 29 is in the 4th District.
The lawsuit contends that the county’s new precinct map was not submitted to or ratified by the Indiana Legislature and that the commissioners “do not have the authority, actual or implied, to redraw its voting precinct as to effect the House District within which a candidate or voter reside.” The suit claims that only the State Legislature has the constitutional authority to redraw its House districts.
The suit contends that as a result, the Porter County Election Board improperly placed Soliday on the ballot and improperly certified him as the elected representative. The only valid candidate on the ballot, the suit states, was Graham (though the suit erroneously spells her last name as “Grahm.”). The lawsuit asks that either Graham be seated or that a special election be held to fill the seat.
The plaintiffs contend the error occurred Oct. 16, 2001, when the Porter County commissioners exceeded their authority by reconfiguring the House district's lines while revamping a few local precincts. That change inappropriately moved Soliday's property from the 10th District to the 4th District.
"Only the state legislature has the constitutional authority to redraw its House districts," the lawsuit says.
The lawsuit before Porter Superior Court Judge Bill Alexa asks the court to replace Soliday with Sylvia Graham. If that is found to be improper, the group asks that a special election be ordered. * * *
J. Bradley King, the Republican co-director of the Indiana Election Division, said earlier this month that he believes it is too late for the Indiana Election Division to take action. King said the residency question should have been brought up before the election.
Ind. Law - Local attorney James Voyles defends high profile clients
"Local attorney a favorite of athletes: Among James Voyles' current clients are Jamaal Tinsley, Dominic Rhodes" reads the headline to a story today by Christopher Lloyd in the Indianapolis Star. It begins:
If you're a famous sports figure in urgent need of an Indianapolis attorney, chances are you will call James Voyles.A side-bar lists some who are, including Mike Tyson, Larry Bird, and Bob Knight.
Voyles has a full docket these days. He's representing Pacers guard Jamaal Tinsley against charges stemming from the 8 Seconds Saloon brawl. He's also defending Colts running back Dominic Rhodes against drunken driving charges
And former Pacers guard Stephen Jackson hired Voyles for his upcoming trial on charges stemming from an October incident outside an Indianapolis strip club, just as he did after the 2004 Pacers-Pistons brawl.
Reached on his cell phone Thursday afternoon, Voyles, 64, said he was on his way to Merrillville to handle a client's case. This, after he counseled Tinsley in the early-morning hours and then showed up later in federal court in Indianapolis to represent a company being sentenced in a concrete price-fixing case.
"I don't have any idea why people hire me," said Voyles, who got his law degree from Indiana University. "I assume they try to hire me because they think I do a good job. I would hope so."
He noted that not all his clients are rich or famous.
My issue of Indiana Super Lawyers 2007 arrived in the mail yesterday. Voyles is listed on page 24 as one of the top 10.
Thursday, February 22, 2007
Ind. Courts - Indiana Supreme Court issues decision on child support while in prison
In Lambert v. Lambert, an 11-page opinion, Chief Justice Shepard writes:
When appellant Jeffrey Lambert and his former wife were about to be divorced, it was already apparent that Lambert was soon headed for prison. The trial court issued a child support order based on Lambert’s wages from his existing private employment. It was appropriate to base support after release on that rate of income, and thus place the burden on Lambert to establish after his release, through petition to modify, that his income might be lower than it had been before his conviction. While our Child Support Guidelines obligate every parent to provide some support even when they have no apparent present income, it was error to set support based on employment income that plainly would not be there during incarceration. * * *
Here, the court was justified in predicting that the obligor might re-attain something like his pre-incarceration income – and placing on the obligor the burden to petition for a modification. Ordering that same support during incarceration was error, however, unless there were other means (like the obligor’s income derived from rental properties and his portion of the property division) to meet it. The record here suggests that such means might exist in this case. We affirm the trial court’s support order as respects the period after Lambert’s incarceration and remand for entry of such current amount as reflects Lambert’s actual present resources.
Ind. Courts - Judicial mandate bill clears Indiana senate
The Paper of Montgomery County reports, in a story by Barry Lewis:
Freshman Sen. Phil Boots' (R-Crawfordsville) bill concerning judges' mandates passed out of the Senate by a 44-3 vote Tuesday on third reading and is now headed to the House.The bill is SB 279. For background, start with this ILB report from Feb. 10th.
The bill would need to be passed by the House in order to become law.
The bill was first heard in the Senate Judiciary Committee and passed 6-2 on Feb. 7. The bill states that if a county challenges a judges' mandate on funds, then the judges would be represented by the State Attorney General. Although the Attorney General would have fees, they should be a lot less than private practice attorneys.
Since authoring the bill, Boots added three other senators as co-authors. Over in the House, the bill will be sponsored by Rep. Linda Lawson (D-Hammond) and Rep. Ralph Foley (Martinsville).
"Judges are state employees and it only makes sense that they be represented by the State Attorney General," Boots said when the bill passed out of committee. "There would still be fees involved, but not the outrageous rates that some of the private attorneys are charging."
Boots originally authored a bill calling for the elimination of mandates altogether, but that bill will not be heard this year in committee. This amended bill is an attempt to get something on the books to help counties when battling judges in these types of cases.
Boots said that even if this bill is passed, it would have no impact on the current suit involving Montgomery County and three local judges.
Ind. Decisions - Court of Appeals issues 0 today (and 12 NFP)
For publication opinions today (0):
NFP civil opinions today (3):
Randy Lee Clark v. Jill Lynne Clark (NFP) - child support; affirmed.
Donna Hayes v. Warrick County Office of Family & Children (NFP) - termination; affirmed.
James Byrd and Rebecca Byrd v. Teresa Plaiss, as the County Auditor, Darlene McCoy, as Treasurer and Floyd County, Indiana (NFP) - "Pursuant to the rationale in Irwin Mortgage, the 180-day time limit began to run on April 28, 2003, and expired on October 27, 2003. Consequently, the Byrds’ Tort Claim Notice, filed on March 29, 2004, was untimely and their negligence action against the County is 'barred.' I.C. § 34-13-3-8(a). Therefore, the trial court properly granted summary judgment in favor of the County."
NFP criminal opinions today (9):
Jeremy Edgar Little v. State of Indiana (NFP)
Gary L. Petry v. State of Indiana (NFP)
Joseph P. Trogdon v. State of Indiana (NFP)
Marcella Wiley v. State of Indiana (NFP)
Noah W. Klug v. State of Indiana (NFP)
Kevin Stone v. State of Indiana (NFP)
Robert Hall v. State of Indiana (NFP)
Jamaal Wright v. State of Indiana (NFP)
Kevin Huffer v. State of Indiana (NFP)
Ind. Law - Indiana Supreme Court reaffirms employment at will doctrine
In Paul Meyers v. James Meyers et al, a 7-page opinion, Justice Dickson writes:
We reaffirm the Indiana employment at will doctrine and decline to find exception for alleged wrongful discharge in retaliation for the assertion of a claim for unpaid wages.Part 1 of the opinion reviews the history of the employment at will doctrine in Indiana and concludes:
In Morgan Drive Away, we emphasize that the "employment at will doctrine has stead-fastly been recognized and enforced as the public policy of this state" and that "[r]evision or re-jection of the doctrine is better left to the legislature." 489 N.E.2d at 934. We likewise decline to allow an exception to the doctrine in this case. The trial court was correct to grant the defen-dants' motion to dismiss Count III seeking damages for retaliatory discharge.
Ind. Law- Still more on: Senate is urged to change annexation law
Bill Ruthhart of the Indianapolis Star reports today in a story headlined "Senate panel rejects freeze on annexations." Some quotes:
A Senate committee dealt a blow to annexation opponents Wednesday, voting against a freeze on communities' ability to expand boundaries without the permission of property owners.Lesley Stedman Weidenbener of the Louisville Courier Journal also has a report today. Some quotes:
Sen. Beverly Gard, R-Greenfield, asked for a moratorium so state legislators could form a special study committee to overhaul Indiana's annexation law.
Involuntary annexations, those conducted without the permission of property owners, have been the source of standoffs between property owners and municipalities across the state.
In fast-growing Hamilton County, three high-profile annexation fights have dominated the headlines, and two are pending in court.
Property owners in those areas, who fear that annexation will mean higher taxes, have pushed for changes in state law that they say would give landowners a better chance of fighting municipalities.
Because the issue is so complex, Gard asked the Senate Local Government and Elections Committee to form an interim legislative study committee to perform a "complete rewrite" of the state's annexation laws.
The committee voted 5-4 to reject that request, citing concerns that a statewide freeze could harm economic development efforts in cities and towns. * * *
Sen. Beverly Gard, R-Greenfield, asked for a moratorium so state legislators could form a special study committee to overhaul Indiana's annexation law.
Involuntary annexations, those conducted without the permission of property owners, have been the source of standoffs between property owners and municipalities across the state.
In fast-growing Hamilton County, three high-profile annexation fights have dominated the headlines, and two are pending in court.
Property owners in those areas, who fear that annexation will mean higher taxes, have pushed for changes in state law that they say would give landowners a better chance of fighting municipalities.
Because the issue is so complex, Gard asked the Senate Local Government and Elections Committee to form an interim legislative study committee to perform a "complete rewrite" of the state's annexation laws.
The committee voted 5-4 to reject that request, citing concerns that a statewide freeze could harm economic development efforts in cities and towns.
A Senate committee narrowly defeated two bills yesterday that would have granted more rights to property owners who are fighting annexations by nearby cities and towns.For background, start with this ILB entry from Feb. 18th.
Opponents said the bills would stunt city growth and economic development, and punish all cities for problems caused by a few.
The defeats are a blow to opponents of Jeffersonville's proposal to annex about 3,660 households, as well as those trying to block similar efforts by other cities.
They had hoped the bills would give them a better chance of getting their fights into court and forcing cities to pay their legal fees if the property owners prevailed.
But Sen. Beverly Gard, R-Greenfield, said "the deck was stacked" against the legislation because too many of the senators on the Local Government and Elections Committee are from larger communities and back their mayors' abilities to expand their cities.
"I'm disappointed," Gard said. "If we could get these bills before the Senate, there would be a different outcome."
The committee voted 5-4 against:
Senate Bill 112, which would have required a city to pay the attorneys' fees for homeowners who defeat an annexation attempt in court.
SB 161, which would have reduced the number of signatures needed to challenge an annexation in court from 65 percent of the affected landowners to 51 percent. * * *
Current law could prevent opponents of the Jeffersonville plan from even taking the issue to court, where a judge would decide whether the annexation is appropriate.
That's because more than 35 percent of property owners in the proposed area have waivers on their deeds that prevent them from opposing annexation. So even if every other property owner was willing to sign a petition opposing it, that wouldn't be enough to meet the 65 percent threshold.
[Vanessa Smith, president of Citizens Against Annexation, the group fighting the Jeffersonville annexation proposal,] said the waivers were signed by developers in exchange for receiving city sewer service for their subdivisions, a practice that is common statewide. The waivers passed on to the buyers of the homes.
SB 161 could have lowered the threshold to 51 percent -- if the bill had passed and become effective before the Jeffersonville City Council adopted its annexation ordinance. That process is expected to begin next month. * * *
Sen. Tom Wyss, R-Fort Wayne, said a moratorium would threaten economic development because cities sometimes need to push through annexations to make services available to proposed plants.
And Sen. John Broden, D-South Bend, said he might support a study of annexation as long as there was no moratorium.
"I regret there are some hostile situations," he said. "But a moratorium paints too broad a brush."
Gard said she will try to resurrect some of the proposals before the session ends in late April.
Ind. Law - More on the ABA's proposed death penalty moratorium
Some quotes from an editorial today in the Evansville Courier&Press:
Back in 2001, seven newspapers, this one included, conducted an investigation of how the death penalty is carried out in Indiana. Their conclusion was that capital punishment is not evenly executed: It is more of a lottery as to who lives and who dies.The complete set of Indiana reports is available here, from the ABA site. They include:
In a small county with a limited tax base, it is less likely that the accused will be made to face the death penalty - given the public expense of such cases - than in a large county with adequate personnel and revenue.
In a county with a large liberal population, it is less likely that prosecutors can find 12 jurors willing to impose the death penalty than in another county with a more conservative populace.
These are just some of the reasons why this newspaper decided some years ago that Indiana should abandon the death penalty in favor of life in prison without parole. And now a report by a study team that's part of a death-penalty project from the American Bar Association has again found that the death penalty in Indiana is highly inconsistent.
From a news report by The Associated Press, published Wednesday in the Courier & Press, the bar group said: "The seemingly random process of charging decisions, plea agreements and jury recommendations is just part of a death-penalty system that has aptly been called Indiana's 'other lottery.'" * * *
The team report recommends that Indian temporarily halt executions until the state improves the fairness and accuracy in carrying out the death penalty.
Given the presumed political support for capital punishment in Indiana, a moratorium might not seem likely. The ABA, however, cited a recent statewide survey conducted on its behalf which found that three in five Hoosiers support such a moratorium.
This newspaper's preference would be for an end to capital punishment, not only because of the inequities and the costs, but also because of the pain that years and years of appeals brings to the victims' survivors. At the least, Indiana should strongly consider such a moratorium.
Indiana Death Penalty Assessment Report
* Executive Summary of the Indiana Death Penalty Report
* Full Indiana Death Penalty Assessment Report (1.57 MB)
* Indiana Death Penalty Assessment Guide
* Indiana Death Penalty Assessment Team Biographies
Additional Report Resources
* Fact Sheet: Problems with Indiana's Death Penalty System and Recommendations for Reform (direct link)
* Compliance Charts: Indiana's Compliance with ABA Recommendations
* Frequently Asked Questions
Courts - Kentucky bill on senior judge standards advances
Deborah Yetter of the Louisville Courier Journal reports today, in a story that begins:
FRANKFORT, Ky. -- A bill setting minimum standards for senior judges and extending the life of the program -- set to expire this year -- passed the House Judiciary Committee yesterday.For background,. see this ILB entry from Jan. 14th, headed "Kentucky senior judge program sparks many objections."
It would bar anyone who lost the last judicial election from the program, which allows some judges to work part-time after they retire or leave office.
Candidates under age 60 would be required to have 20 years' experience on the bench and those over 60 would need 10 years under House Bill 465.
Rep. Rob Wilkey, D-Scottsville, the sponsor, said his intent is to require additional qualifications for candidates now entitled to be in the program if their age and years of government service -- not just judicial service -- total 75.
"There ought to be some minimum requirements," Wilkey said.
The program became controversial earlier this year when former Jefferson District Judge Paula Fitzgerald became a senior judge, even though she lost the November election and had consistently poor bar ratings.
In addition, the LA Times ran a lengthy three-part series on the Las Vegas court system last year. Part III dealt with that system's senior judges. For details, see this June 12, 2006 ILB entry - the last paragraph deals with the Las Vegas senior judges issues.
Ind. Courts - Still more on "Businessman's criminal rap sheet erased in legal deal"
Ruth Ann Krause of the Gary Post Tribune writes today that:
Lake Superior Court Judge Diane Ross Boswell, who last month ordered the destruction of public records related to felony convictions for Crown Point businessman Dominic Pitzel, has rescinded the order.This is the reporter's third story on the issue - see yesterday's ILB entry. More from today's story:
Boswell, in an order dated Tuesday, amended her previous directive to expunge records in the Lake County clerk's office.
In an interview, Boswell said she was in the process of reviewing her decision "to make sure we're doing it right." That review came about as a result of a discussion as to whether she could order the files expunged, which veteran attorneys handling criminal cases have described as unprecedented.Several questions occur to the ILB, including (1) The story implies that under the court rules a judge may order criminal records expunged and the order will be carried out, even though these records otherwise must be maintained for 55 years: (2) What does "expunge" mean - does it mean totally destroy or is it the equivalent of "seal"?
"They asked to have them expunged," Boswell said of defense attorney Marc Laterzo and special prosecutor Michael O'Neall, the Jasper County prosecutor who was appointed to the case. Lake County Prosecutor Bernard Carter said he is a friend of Pitzel and his father has served as a political campaign advisor.
"They had an agreed order to have them expunged," Boswell said.
The agreement, called a stipulation to post-conviction relief, does not indicate both sides asked that the records be destroyed. Both sides asked that the convictions be vacated, or set aside, for theft of less than $100 in 1975, pointing a firearm in 1976 and burglary in 1985. * * *
Boswell said she would research case law and discuss the issue with the Indiana Supreme Court division of state court administration, which works with county clerks and judges.
John Newman, director of information management with the division of state court administration, said administrative rules outline a retention schedule for felony case files. Criminal felony records must be maintained for 55 years after the case is closed, but a judge's order takes precedence when an expungement is granted.
Administrative Rule 7 states that the circuit court clerk, judge or other officer must seek written authorization from the division of state court administration to destroy the records. That provision doesn't apply when a judge orders an expungement, Newman said.
Indiana law allows a person who is arrested but not charged to ask the records be expunged in cases if there is mistaken identity, no offense was committed or there is a lack of probable cause that a crime was committed. There is no section dealing with judges ordering criminal case files destroyed.
Last week when The Post-Tribune requested Pitzel's case files, Chief Deputy Clerk Sylvia Brown took Pitzel's burglary case file out of a reporter's hands and said, "You can't see this record. It's been expunged. You can't have it. There'll be a lawsuit over it if there's a story. I'm sorry."
Brown said Wednesday she was in the process of expunging the records, as Boswell had ordered and that the files had not been destroyed. The burglary file, however, had extensive black marker on the docket sheets for the 1985 case. That file was not available Wednesday.
Asked what would happen if Boswell decides they shouldn't be destroyed after information already has been deleted from the public records, she said: "We'll try to recreate them."
Wednesday, February 21, 2007
Law - Even more on the cervical cancer vaccine issue
An editorial in the Washington Post on Feb. 11, and quoted in this ILB entry, titled "Profit and Public Health: A useful vaccine, and a tone-deaf lobbying campaign on its behalf," included this quote: "There is, though, something unseemly about a company that stands to make billions of dollars driving a debate that already is sensitive because it involves young girls, sex and parental rights. Merck's commercial interests unnecessarily muddy the waters and give critics ammunition with which to attack worthwhile legislation. * * * The best move Merck can now make is to back off. * * * Merck's help needlessly clouds the issue."
Today Merck did just that. A story in the NY Times Business section, headlined "Merck to Halt Lobbying for Vaccine for Girls," begins:
Reacting to a furor from some parents, advocacy groups and public health experts, Merck said yesterday that it would stop lobbying state legislatures to require the use of its new cervical cancer vaccine.For other ILB entries on the cervical cancer vaccine, check this list.
The company said it made the decision after realizing that its lobbying campaign had fueled objections across the country that could undermine adoption of the vaccine.
At least 20 states are considering making its use mandatory for schoolgirls, and the governor of Texas, Rick Perry, has already done so by executive order. Part of the states’ rush to embrace the vaccine has been instigated by Merck efforts that began before federal regulators approved the product last year.
Law - Email accounts and death
The Sidney Australia Morning Herald has an interesting article today titled "Life after death: Your email account may very well survive you but that's where the problems begin." Some quotes:
If you've got a web-based email account and a mobile phone, and you're under 50, chances are you don't have a physical address book. So if you suddenly died, would your partner or parents know how to contact your friends to let them know?The article then helpfully goes through the policies of Yahoo, Hotmail, and Google.
Gaining authorised access to someone else's email is a complicated issue. First, there's the privacy of the people whose messages are in your account to consider and this is something the email providers take very seriously. There's also the issue of whether you actually want your family to read your old angst-ridden emails or reminders of ill-considered love affairs long since passed. Timeliness is also important as the main players in the free email game tend to erase all records if the account hasn't been used in a while - sometimes in as little as one month, which isn't a lot of time when people are dealing with grief and trying to sort out someone's estate.
For more, see this comprehensive article titled "Email after death" in Office Watch.
Courts - Former NY Chief Judge makes some progress in getting his license back
Bill Hughes of the New York Journal News had this interesting story today. Some quotes:
The former chief judge of New York state's highest court who suffered a spectacular fall from grace after being arrested for stalking an ex-girlfriend has received preliminary approval to have his law license reinstated.I remember this story when it happened back in the early '90s. It came to mind when I read, earlier this month, about Astronaut Lisa Nowak.
Sol Wachtler, who was disbarred after his 1993 conviction on federal charges including blackmail and extortion, has received approval from the state's Appellate Division for a hearing before the Committee on Character and Fitness, a key step toward reinstatement that was denied to him on his first application in April 2003.
Wachtler, now 76 years old, made international headlines after FBI agents arrested him near his home on Long Island on Nov. 7, 1992. Wachtler ultimately admitted he sent threatening and sexually offensive letters to Joy Silverman, a Manhattan woman with whom he had carried on an extramarital affair, then tried to extort money in a scheme to win her back after their relationship soured.
On the day of his arrest, federal agents trailed Wachtler from Albany to a Thruway rest stop in Sloatsburg, where he stopped to make phone calls related to his extortion plot.
While he was in prison, Wachtler wrote an autobiography titled "After the Madness: A Judge's Own Prison Memoir," in which he advocated for significant prison reform. In September of last year he wrote an op-ed article that ran in The New York Times slamming former Gov. George Pataki's veto of a bill that would have prevented mentally ill prisoners from being placed in solitary confinement in prison. * * *
As a judge, Wachtler was instrumental in writing many ground-breaking decisions that caused major legal shifts in New York state, including the elimination of marriage defense in rape cases.
"The achievements of Wachtler have been greatly overshadowed and forgotten due to his scandalous affair with socialite Joy Silverman," wrote John Caher in his 1998 biography of Wachtler, titled "King of the Mountain."
According to Caher, former state editor for The Albany Times Union, "The judge extended free speech rights, opened legal doors for women, minorities, and the handicapped, and authored landmark decisions on the right-to-die."
Jennifer Frey of the Washington Post had a story last week on "women who snapped." Judge Wachtler may be a good example of a man who "snapped."
Ind. Law - More on: "Reformers urge state to freeze executions"; blogs as media
In this ILB entry yesterday, I quoted from the Indianapolis Star coverage of the American Bar Association's Death Penalty Moratorium Implementation Project and the forthcoming Indiana Report, which was to be released later that day. The report calls for Indiana to impose a moratorium on executions. [The Indiana report is now available here.]
Here is AP coverage of the report from Rick Callahan. A number of Indiana papers ran this coverage. The NWI Times had this story today. A quote: "The assessment team that reviewed Indiana's death penalty system found that the state is in full compliance with only 10 of the 79 protocols the ABA drafted in 2001 to ensure that capital punishment is applied fairly to convicted murderers."
Blogs as Media. In yesterday's entry, I noted that the report was not yet available online and that the Star apparently had received an embargoed copy. Today I received this note from Joel Schumm, who chaired the Indiana study and who is associate professor at Indiana University School of Law-Indianapolis:
Hi Marcia, I'm not one to make excuses but am more than eager to offer an apology when one is warranted. I think we owe you one.I appreciated the note and am posting it here as part of my continuing effort to assure that blogs which attempt to do serious journalism are recognized as part of the media. Speaking specifically about the ILB, the Indiana Courts, with what I consider to be great foresight, graciously issued the ILB press credentials several years ago. I considered asking for legislative press credentials at the start of this session, but decided I was unlikely to need them, and would wait until I did. Others of you out there who issue press releases and the like might consider adding the ILB to your lists. I would appreciate it.
Embargoed copies of the Indiana Death Penalty Assessment were released to a number of media people (including the Star) late last week. I believe this is the practice that has been followed in other assessment states. The ABA has never released embargoed copies to a blog, but Indiana is certainly different. Your blog is not only widely read but also well-respected. A copy should have been sent to you. I've talked with the Project Director in DC who will keep legal blogs in mind as reports are released in the remaining three states.
Ind. Courts - More on "Businessman's criminal rap sheet erased in legal deal"
The special prosecutor involved in the agreement that wiped out felony convictions for Crown Point businessman Dominic Pitzel said he didn't remember that court-ordered destruction of public records was part of the deal.
"I don't recall there would be any expungement of the records," Jasper County Prosecutor Michael O'Neall, who was appointed special prosecutor, said in an interview Tuesday.
Lake County Prosecutor Bernard Carter said his office had requested a special prosecutor for another of Pitzel's cases for contributing to the delinquency of a minor because Pitzel is a friend of Carter's. Carter said Pitzel's father has served as a political adviser on his campaigns.
O'Neall and defense attorney Marc Laterzo signed off on an agreement to grant the appeals for Pitzel, 53. Lake Superior Court Judge Diane Ross Boswell on Jan. 2 issued an order for the post-conviction relief, dismissal of the charges and expunging of Pitzel's records.
Pitzel's criminal record no longer reflects convictions for burglary in 1985, theft of less than $100 in 1975 and pointing a firearm in 1974. He received a four-year prison sentence for burglary, three years' probation for theft and a six-month jail sentence for pointing a firearm. Two of the convictions were felonies and the third was a misdemeanor.
Two of the case files have been destroyed, and the Post-Tribune was denied access to the third file, which was being purged of information related to Pitzel, who had a co-defendant in the case.
Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)
For publication opinions today (1):
Brockmann Enterprises, LLC v. City of New Haven, et al. - Judge Bailey: "[Dispositive issue] Whether the City of New Haven had authority to establish a Storm Water Service Charge without action by the Board of Directors of the City of New Haven Department of Storm Water Management. * * * On appeal, Brockmann argues that it is entitled to judgment as a matter of law because the City lacked authority to establish the Charge without action by the Board. The Defendants rely on the Home Rule Act and “the statutes generally pertaining to the control of municipally owned utilities and the statutes allowing the creation of a storm water management department” as authority for the City’s action. * * * [I]f there is a statute requiring a specific manner for exercising a power, the city must exercise the power in that manner. I.C. § 36-1-3-6(a). * * * Here, the Board was not allowed any opportunity to perform the very function for which it was created. The City did not follow the procedure prescribed by statute. Accordingly, we conclude that the provisions of Ordinance G-04-02 relating to the Charge are void, including §54.04 through §54.08. * * * Conclusion. We conclude that the City of New Haven lacked authority to establish the Storm Water Service Charge in a manner contrary to the process contained in statute. Reversed."
NFP civil opinions today (3):
Joseph M. and Sandra L. Hrstich v. City of East Chicago (NFP) - [This case involves a slow response to a public records request.] Judge Barnes: "On August 23, 2005, the Hrstichs filed Formal Complaint 05-FC-176 with Karen Davis (“Davis”), the Public Access Counselor of Indiana. The Complaint alleged a violation of APRA because the August 17, 2005 written request had resulted in neither production of the requested records or a written response. Davis requested the City’s response on or before September 7, 2005. * * * On September 20, 2005, Ruff advised Davis in writing as follows: “Enclosed are the documents for Mr. Austgen. This is the City’s complete file on the building.” (App. 39.) On September 21, 2005, Davis issued an advisory opinion that the City violated APRA by failing to timely provide a written response to the August 17, 2005 written request for documents. Davis further opined, “If the City is not providing you with records that are named in your request because it does not maintain those records it should so state.” * * * Here, the Hrstichs were promptly provided a large quantity of documents (275 pages) at a minimal cost. In the twelve-day interim, they were repeatedly advised that the City was not challenging their right to the documents and intended to provide them. Moreover, the City had sent a written response (by facsimile) to the Hrstichs’ attorney on August 24, 2005. Clearly the overall objective of APRA was satisfied and the Hrstichs did not suffer an actual denial of documents due them.3 Thus, the Hrstichs have not established that they incurred attorney fees to coerce the tender of documents. The trial court properly found that they did not establish their entitlement to judgment as a matter of law."
Short on Cash.Net of New Castle, Inc., and Kevin Short v. Department of Financial Institutions and Steve Carter, Attorney General of Indiana (NFP) - "Short and HCO were bound by the Preliminary Injunction and had notice of the hearing on contempt, but failed to timely file for a change of judge under the circumstances of this case. Furthermore, the trial court did not abuse its discretion in granting the State’s Motion for Default Judgment against SOC. And, although the Motion for Leave to Add Necessary Parties made specific allegations against the second-generation defendants, the Amended Complaint did not include these allegations. Thus, the trial court abused its discretion in granting Default Judgment against Short and HCO. Affirmed in part and reversed in part."
Peter Rottier, Edythe Rottier and Lake County Trust Company v. County of Starke, Indiana (NFP) - "Peter and Edythe Rottier and the Lake County Trust Company (“Appellants”) appeal the trial court’s judgment denying their request for attorney’s fees from Starke County. We affirm."
NFP criminal opinions today (1):
Vincent E. Cross v. State of Indiana (NFP)
Tuesday, February 20, 2007
Ind. Law - Yet more on: "University of Saint Francis has begun exploring the possibility of opening a law school"
Updating this ILB entry from Feb. 5th on Mitch Harper's post on his blog, Fort Wayne Observed, headed "The Domino's Theory: Could the Ave Maria School of Law form the core of a St. Francis Law School?" -- Alas, it is not to be. Harper's report this afternoon is headed "Ann Arbor Law School headed to Florida, not Fort Wayne."
Courts - "Mistrial declared in Notre Dame coach's malpractice case"
The AP is reporting this afternoon, in a story that begins:
BOSTON (AP) -- A judge declared a mistrial Tuesday in Notre Dame coach Charlie Weis' medical malpractice lawsuit after a juror collapsed and several doctors - including the two defendants - rushed to his aid.Here is an earlier report on the case, from Feb. 16th.
The juror, an older man, began moaning as he listened to an expert testifying in defense of Massachusetts General Hospital surgeons Charles Ferguson and Richard Hodin. Weis claims they botched his care after gastric bypass surgery in June 2002.
The judge immediately ordered the other jurors out of the courtroom, but some saw Ferguson, Hodin and other doctors who were in the courtroom rush to the collapsed juror's aid.
An attorney for Weis said it was with "great reluctance" that he ask for the mistrial in the case that was expected to go to the jury Wednesday.
"I cannot think of an instance there would be more reason than when a juror has this kind of incident," attorney Michael Mone said.
A lawyer for the doctors said a mistrial would be unfair to the surgeons, who had rearranged their schedules to accommodate Weis, who is in the offseason for football.
Judge Charles Spurlock, however, agreed to grant a mistrial.
"The integrity of the court is more important than schedules," Spurlock said.
Ind. Decisions - 7th Circuit issues one Indiana opinion today
In Shadday, Miranda v. Omni Hotel Mgmt (SD Ind., Judge Tinder), a 15-page opinion, Judge Posner writes on the innkeepers duty to safeguard its guests. The opinion begins:
This diversity tort suit charges the owner of a hotel in Washington, D.C. with negligence in having failed to prevent the rape of the plaintiff, a guest at the hotel, by another guest. The district judge gave summary judgment for the defendant. The parties agree that District of Columbia law governs the substantive issues.Posner's opinion includes on p. 10 a satellite view of the Shoreham’s neighborhood. The opinion concludes: "For reasons stated earlier, the plaintiff failed to present enough evidence to establish a genuine issue concerning the sufficiency of the care exercised by the hotel to protect its guests against the kind of outrage that befell her. The district judge was therefore right to grant summary judgment for the defendant."
The plaintiff is a young woman employed in a casket factory. A member of the steelworkers union, she attended a “Women in Steel” union conference at the Omni Shore 2 No. 06-2022 ham Hotel, a large, high-class hotel in a nice part of Washington (near Connecticut Avenue, Rock Creek Parkway, and the National Zoo). In the bar of the hotel, the first night of her stay, she met and had drinks with a seemingly very respectable Guatemalan lawyer—he was visiting Washington as a member of a delegation that included that country’s president. The bar closed at 1 a.m. and the patrons repaired to the lobby, where at 2 a.m., as the plaintiff was waiting in front of a bank of elevators to return to her room, the lawyer accosted her and began kissing and fondling her. She resisted, but didn’t cry out, because there was no one in sight. She fought her way free, and, an elevator having arrived, she ran into it, but he followed her and raped her in the elevator. She got out at the next floor and was discovered by a security guard. The rapist was soon arrested. He did not deny the crime, and he was convicted of sexual assault.
Ind. Decisions - Court of Appeals issues one today
In Robert E. Armstrong v. Kenneth W. Keene, a 7-page opinion, Judge Vaidik writes:
Robert E. Armstrong appeals the trial court’s grant of summary judgment in favor of Kenneth W. Keene. Specifically, Armstrong argues that the court erred by concluding that he was not entitled to foreclosure for his default on a contract to buy real estate pursuant to the seminal case of Skendzel v. Marshall, 261 Ind. 226, 301 N.E.2d 641 (1973). Concluding that Skendzel does not apply to this case because Armstrong relinquished his interest in the real estate by executing a Bill of Sale upon default, we affirm the trial court’s grant of summary judgment in favor of Keene. * * *
Buyer argues that the trial court erred in concluding that he was not entitled to foreclosure of the real estate pursuant to Skendzel. More than thirty years ago, the Indiana Supreme Court addressed the equity of forfeiture as a remedy in land contracts in Skendzel. Our Supreme Court initially observed that forfeitures are generally disfavored by law because a significant injustice results where the vendee (buyer) has a substantial interest in the property. Skendzel, 301 N.E.2d at 645-46. The court determined that a land sales contract is akin to a mortgage and, therefore, the remedy of foreclosure is more consonant with notions of fairness and justice: [quotation omitted]
Here, the trial court concluded, and the Seller argues, that Skendzel does not apply because Buyer relinquished his interest in Squirt’s Bar by executing the Bill of Sale and Consent to Transfer. They are correct. The issue in Skendzel was whether the forfeiture provision in the land contract applied or whether the vendee (buyer) was entitled to foreclosure. That is not the issue in this case. There was no forfeiture pursuant to the Real Estate Contract because upon defaulting, Buyer executed the Bill of Sale, whereby he “grant[ed], s[o]l[d], transfer[red], and deliver[ed]” his interest in the real estate to Seller. This fact is missing from Skendzel and readily distinguishes the two cases.
Ind. Courts - Proposed rule revisions open for public comment
The Indiana Supreme Court Committee on Rules of Practice and Procedure has posted proposed amendments to a number of rules for public comment. The Committee invites public comment on the proposed rule amendments. Those wishing to comment should do so, in writing, not later than May 11, 2007. Access the list, with links to copies of the proposals, here.
Ind. Law - More on: Proposal to alter punitive damages law [Updated]
[Updated - 11:46 a.m.] The US Supreme Court this morning issued a decision overthrowing a $80 million punitive damages ruling against Philip Morris. From the WSJ Blog:
In an opinion by Justice Stephen Breyer, the high court said that punitive damages awards based in part on a desire to punish a company for actions that harm people not involved in a particular lawsuit amounts “to a taking of property from the defendant without due process.” Added Breyer: “To permit punishment for injuring a non-party victim would add a near-standardless dimension to the punitive damages equation. The fundamental due process concerns to which our punitive damages cases refer — risks of arbitrariness, uncertainty and lack of notice — will be magnified.”The decision is Philip Morris USA v. Williams.
Here is a report by Greg Stohr on Bloomberg.com. Some quotes:
Feb. 20 (Bloomberg) -- The U.S. Supreme Court tightened the constitutional limits on punitive damages, setting aside a $79.5 million award in a smoker case against Altria Group Inc.'s Philip Morris USA unit.
The justices, voting 5-4 in the case of an Oregon man who died of lung cancer, said a lower court improperly let jurors punish Philip Morris for the health problems of other smokers.
``To permit punishment for injuring a non-party victim would add a near standardless dimension to the punitive damages question,'' Justice Stephen Breyer wrote for the court.
The decision gives new ammunition to frequent targets of product-liability suits, including Merck & Co., which faces as many as 40,000 claims over its withdrawn Vioxx painkiller, and Ford Motor Co., whose Explorer sport-utility vehicle has spawned hundreds of claims over rollover accidents. The Supreme Court had never before considered a punitive award in a health or personal- injury case.
At the same time, the justices said Philip Morris ultimately might have to pay the award, stopping short of declaring it excessive and sending the case back to the Oregon Supreme Court for further proceedings. * * *
Justices John Paul Stevens, Ruth Bader Ginsburg, Antonin Scalia and Clarence Thomas dissented. The vote marked something of a shift for Stevens, who had joined previous Supreme Court decisions limiting damages.
Stevens said the majority, by barring punishment for harm to others, had imposed ``a novel limit on the state's power to impose punishment in civil litigation.''
Thomas said the case ``proves once again that this court's punitive damages jurisprudence is insusceptible of principled application.''
Ind. Law - "Reformers urge state to freeze executions" [Updated]
"Reformers urge state to freeze executions: Death penalty isn't evenly applied, says a report by politicians, Indiana law experts," is the headline to this story in the the Indianapolis Star today by Jon Murray. Some quotes from the sidebar:
A new report calling for a moratorium on the death penalty in Indiana will be released today during a news conference in the Statehouse.Some quotes from the main story:
The report was compiled by the American Bar Association's Death Penalty Moratorium Implementation Project with help from a seven-member team of Hoosiers.
The report highlights five crimes involving seven offenders that resulted in just one being executed -- showing Indiana's inconsistent use of the death penalty. * * *
Indiana assessment team
- Joel Schumm: chairman, associate professor at Indiana University School of Law-Indianapolis.
- James J. Bell: attorney with Bingham McHale and a two-term chairman of the criminal justice section of the Indiana State Bar Association.
- State Sen. John Broden, D-South Bend: member of the Indiana Senate committees on Corrections and Criminal and Civil Procedures.
- Robert Gevers II: attorney, former Allen County prosecutor.
- Marce Gonzales: attorney in Merrillville, concentrating in criminal defense, appeals and defense of lawyer discipline cases.
- Former Gov. Joe Kernan
- Paula Sites: attorney and assistant executive director of the Indiana Public Defender Council.
The seven-member group is part of a national campaign by the American Bar Association project that began in 1997 to block executions nationally until similar issues are addressed in the 38 states where the death penalty is an option.Here is the webpage of the American Bar Association Death Penalty Moratorium Implementation Project. Here is the Indiana page of the project.
Indiana is the fifth state targeted by the campaign, whose recommendations have not yet been followed. Last year, similar panels in Alabama and Georgia urged moratoriums, but executions were not halted. The Florida and Arizona teams urged reforms but couldn't agree on the moratorium issue.
A handful of states have instituted moratoriums -- Illinois, in 2000 by then-Gov. George Ryan; New York, in 2004 by that state's highest court; and New Jersey, in 2006 by the state Legislature, according to the Death Penalty Information Center.
Some other states have stopped executing prisoners because of concerns over the effectiveness of their lethal injection procedures.
Indiana has 24 inmates on Death Row. Under a moratorium, executions would be halted, but courts still could sentence offenders to death. * * *
The group called for a dozen changes. They would ask Indiana to:
The report noted some of Indiana's strengths. The state provides two attorneys for death penalty defendants, pays for expert witnesses and has a detailed clemency process before each execution.
- Require law enforcement agencies to record video or audio of all interrogations.
- Adopt stiffer qualifications for defense attorneys and bar them from handling more than two death penalty cases at once.
- Create an independent statewide authority to assign attorneys to death penalty defendants.
- Attorneys now are appointed by judges or public defenders.
- During Indiana Supreme Court sentencing appeals, consider whether the death penalty is being used consistently and for the worst offenders.
- Address the findings of at least two studies showing that harsher sentences are given to murderers when their victims are white.
- Ban the execution of offenders with severe mental illnesses. * * *
Joel Schumm, the chairman of Indiana's panel, said problems highlighted in the report span all phases of a case and can snowball if not corrected. He is an associate professor at the Indiana University School of Law-Indianapolis.
The Indiana Report has not yet been released. According to the Star report (the Star apparently received an embargoed copy - the ILB did not) the Indiana Report is to be released at the press conference today. When it is available, the ILB will link to it here. Check back.
[Update] The Indiana reports are now available on the ABA project's main page.
Ind. Law - Another year, another effort to ban video games
Mary Beth Schneider of the Indianapolis Star writes today in a story headlined "Bill aims to enforce age limits on games: Measure calls for fines of up to $1,000 for sale or rental of adult-themed video games to minors." Some quotes:
Sen. David C. Ford, the Hartford City Republican who authored Senate Bill 238 along with Sen. Vi Simpson, D-Ellettsville, said it was important for the committee to see the kinds of video games that the bill is trying to keep out of the hands of children."Senate panel approves bill to restrict certain video games" is the headline to an AP story today by Deanna Martin. Some quotes:
Lobbyists for retail and video gaming industries opposed the proposal, saying similar attempts in other states have been struck down as unconstitutional. They include a November decision by the 7th U.S. Circuit Court of Appeals in Chicago striking down an Illinois law as overly broad.
In 2001, Indianapolis lost its bid to be the first city in the nation to ban minors from playing violent video games in public arcades without parental consent, when the U.S. Supreme Court refused to hear the case. * * *
Sally Jefferson, a spokeswoman for the New York-based Entertainment Software Association, told the committee that the video industry has worked hard to develop the rating system to give parents the tools they need to keep inappropriate games out of their children's hands. * * *
Ford, though, said the lobbyists' arguments against his bill are "disingenuous." All the bill does, he said, is enforce the ratings system by making it a Class B infraction, punishable by up to a $1,000 fine, to sell or rent videos rated "M" for mature or "AO" for adult only to anyone younger than 18.
The big-screen television in the Senate chambers typically shows mundane information about legislation up for debate and how senators voted.Here is a list of earlier ILB entries on video games. The most recent, from Nov. 28, 2006, includes a quote from an AP story that begins:
Monday, it showed video game clips featuring bloody violence and topless strippers.
"My thought was you needed to know what you were voting on," said Sen. David Ford, R-Hartford City, chairman of the Senate Technology Committee. * * *
Sen. Brent Waltz, R-Greenwood, said he was shocked by the clips and complained that they should not have been shown in the Senate chambers during a meeting open to the public.
"I am absolutely totally appalled - first by the content and second that you would bring that kind of filth into this Senate chamber," Waltz said. "You ought to be ashamed of yourself."
Ford took responsibility for the decision to show the clips and said he could have handled the situation differently. But he said lawmakers needed to realize the graphic content of some video games. * * *
A representative of the Entertainment Software Association noted that attempts to enact similar restrictions in other states, and in Indianapolis, have been struck down by court rulings.
Ford, the bill's co-author, said he would continue to work on the bill so that it would be constitutional.
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 Nov. 28th entry also includes a link to the 7th Circuit opinion of that date, Entertainment Software Ass'n. v. Blagojevich, affirming the district court decision of "U.S. District Judge Matthew Kennelly, who struck down the video game restrictions in December  as unconstitutional."
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.
This ILB entry from Dec. 30, 2005 includes this quote from Ars Technica about another, earlier effort introduced by an Indiana legislator:
The state capitol, Indianapolis, was one of the first cities in the nation to try and strike out at violent video games, first going after arcades and other entertainment vendors back in 2000. The quest ended up where they all do: in front of a judge, and left for dead. Now that California, Illinois, and Michigan have all suffered astounding defeats in their attempts to address PC and console game sales, Indiana wants to join the ranks of the failures.The Ars Technica story is still available; here is another quote:
Because this law effectively establishes ESRB ratings as law, it will be ruled unconstitutional if it ever passes.For a comprehensive background piece, see this Dec. 3, 2005 ILB entry, titled "Federal judge strikes down Illinois law on video games; Bayh backs federal legislation; Michigan injunction; earlier Indianapolis effort."
Monday, February 19, 2007
Ind. Decisions - Court of Appeals issues 1 today (and 16 NFP)
For publication opinions today (1):
Querrey & Harrow, Ltd., et al. v. Transcontinental Insurance Company - Hoffman, Sr. Judge: "Defendants-Appellees raise numerous issues, which we consolidate as: I. Whether the trial court erred in holding that Indiana allows an excess insurer to bring an action for legal malpractice against an insured’s attorneys. II. Whether the trial court erred in holding there was a genuine issue of material fact as to whether an attorney-client relationship existed between the insured’s attorneys and CNA. III. Whether CNA’s legal malpractice action was timely filed. * * * We remand with instructions that the trial court enter summary judgment for Querry and Sanders."
NFP civil opinions today (2):
Eric Luckhart and Nanette Luckhart v. Delaware County Division of Family & Children (NFP) - termination; affirmed.
Scott Ripple, et al. v. Mark Day (NFP) - Baker: "Appellant-defendant Scott Ripple, M.D. and Midwest Medical Management, Inc., d/b/a Healthcheck (Healthcheck) (collectively referred to as the appellants), appeal from a $900,000 judgment entered in favor of appellee-plaintiff Mark Day regarding his medical malpractice claim. Specifically, Healthcheck argues that the judgment must be set aside because the trial court erred in excluding evidence of Day’s methamphetamine use and drug treatment, that the trial court erred in denying Dr. Ripple’s motion to strike allegedly inadmissible medical opinions of a registered nurse, and that the trial court erred in refusing to give a proposed instruction regarding proximate cause. Concluding that the exclusion of evidence regarding Day’s prior drug usage was proper and finding no other error, we affirm the judgment of the trial court."
NFP criminal opinions today (14):
Michael E. Zanussi v. State of Indiana (NFP)
Lonnie Garner, Jr. v. State of Indiana (NFP)
Timothy N. Davis v. State of Indiana (NFP)
Kenneth J. Floyd, II v. State of Indiana (NFP)
John W. McAnelly, Jr. v. State of Indiana (NFP)
Donald H. Schott, Jr. v. State of Indiana (NFP)
David Ohm v. State of Indiana (NFP)
Nathan Dalton v. State of Indiana (NFP)
Preston Harris v. State of Indiana (NFP)
Michael Eugene Manning v. State of Indiana (NFP)
Mary E. Allison v. State of Indiana (NFP)
Leondre C. Woodson v. State of Indiana (NFP)
Samuel E. Sallee v. State of Indiana (NFP)
Calvin Tillman v. State of Indiana (NFP)
Ind. Courts - Proposed revision of the Rules for Court-Administered Alcohol and Drug Programs
An announcement has been posted on the Indiana Court website that the Certification Sub-committee of the Court Alcohol and Drug Program Advisory Committee of the Judicial Conference of Indiana will conduct a public hearing concerning proposed revision of the Rules for Court-Administered Alcohol and Drug Programs under IC 12-23-14.
Ind. Law - Proposal to alter punitive damages law
Here is the digest to HB 1481, which is now eligible for 2nd reading:
Citations Affected: IC 34-51-3.For background on punitive damages in Indiana, see this May 15, 2004 ILB entry and scroll about half-way down to the section beginning:
Synopsis: Punitive damage awards. Provides that contracted attorney fees and reasonable costs are to be paid out of a punitive damage award. Requires: (1) 75% of the remainder of a punitive damage award to be paid to the person to whom the damages were awarded; and (2) 25% of the remainder of the award to be deposited in the violent crime victims compensation fund. Makes technical corrections. (Current law requires: (1) 25% of a punitive damage award to be paid to the person to whom the damages were awarded; and (2) 75% of the award to be deposited in the violent crime victims compensation fund.) Effective: July 1, 2007.
And what of Indiana? Indiana's punitive damages allocation statute, IC 34-51-3-6, provides that an award of punitive damages is to be paid to the clerk of the court, who is then to pay 75% to the State's Violent Crime Victims' Compensation Fund and 25% to the plaintiff. This law was enacted in 1998. The law was challenged and upheld by the Indiana Supreme court in the case of Cheatham v. Pohle (5/30/03). Access the Indiana Law Blog coverage of the opinion here.There is much more in the entry.
Also see this May 20, 2004 ILB entry, which included this quote from an opinion piece in the Wall Street Journal:
At least eight states currently take a slice of punitive-damages awards. Most let lawyers eat first. Iowa, for instances, takes 75% after lawyers are paid; Alaska and Missouri take 50%. Only Indiana does what Gov. Schwarzenegger proposes, taking its 75% of punitive-damages awards before the lawyer's cut and putting the money in a fund to compensate victims of violent crimes. Last year, an Indiana woman won $100,000 in compensatory damages and $100,000 in punitive damages from her ex-husband after he widely distributed photos of the couple having sex. The state claimed its $75,000. She and her lawyers challenged the constitutionality of the statute. They lost.For more, see this March 29, 2006 ILB entry, titled "State will take most of couple's $2 million verdict". Read it in conjunction with this entry from the following day, and this entry from Nov. 6, 2006, quoting an editorial from the Fort Wayne Journal Gazette.
Finally, if you have TimesSelect ($$$), take a look at this article by Adam Liptak in today's NY Times, titled "When Lawyers and Juries Mete Out Punishment." A few "select" quotes:
Compensatory damages compensate: they pay for medical expenses, lost wages and “pain and suffering.” They are meant to make the plaintiff whole. Putting a price on Ms. Buell-Wilson’s suffering is impossible, and a jury is as capable as anyone else in trying.
Punitive damages, by contrast, are by definition the extreme case. They are meant to punish and deter defendants who engage in extraordinary wrongdoing. They are similar in purpose to criminal fines, and they can be a windfall to the plaintiffs. * * *
Most countries do not use civil cases to punish wrongdoing. Nor do they entrust juries to make cost-benefit policy judgments about how much safety we want. In the United States, we deputize plaintiffs’ lawyers and juries to supplement government safety regulators and law enforcement officials.
Ind. Law- More on: Senate is urged to change annexation law
"Freeze sought on annexations: State senator files 2 measures to support homeowners unwilling to be taken over" is the headline to a story today by Bill Ruthhart in the Indianapolis Star. Some quotes:
State legislators soon may be asked to freeze the power of cities and towns to expand their boundaries without the permission of landowners.A sidebar notes that "Senate Bill 161 and SB 112 will be heard in the Senate Local Government and Elections committee, which meets at 1 p.m. Wednesday in Room 130 at the Statehouse." The sidebar also summarizes the two pending suits, Home Place, Southwest Clay Twp., and the pending Geist annexation.
Such a moratorium would bar municipalities from pressing ahead with involuntary annexations of unwilling landowners.
Property owners in Hamilton County, a fast-growing area and the battleground for three high-profile annexation fights, are among those hoping that legislators will provide them with some relief.
Sen. Beverly Gard, R-Greenfield, has filed two bills on behalf of annexation opponents, though she has acknowledged that neither goes far enough to solve the problem. Looking ahead, she'd like to form an interim legislative study committee after this year's session ends to work on an overhaul of Indiana's annexation law.
A freeze on involuntary annexations would remain in effect while all sides hammer out a big-picture solution. * * *
In Carmel, city leaders voted in 2004 to annex Home Place and southwest Clay Township. Property owners in both areas collected enough signatures to fight the annexation. Carmel lost both cases in county courts, and appealed.
The Home Place case is pending before the Indiana Court of Appeals, while the southwest Clay case is scheduled for a hearing before the Indiana Supreme Court next month.
For more than a year, leaders in Fishers have considered annexing more than 2,000 homes in affluent neighborhoods near Geist Reservoir. Fishers is awaiting the outcome of the Carmel cases before moving forward.
Gard's district includes Geist and parts of Fishers. She opposes the town's effort to force annexation on homeowners, citing the potential for a 22 percent increase in property taxes. * * *
Under state law, opponents have 90 days to collect the signatures of 65 percent of property owners in an annexation area. Then those property owners can challenge the municipality in court, but doing so often costs a lot in legal fees.
Opposition groups in Geist and Home Place said they've set fundraising goals of around $100,000 for legal fees, while property owners in southwest Clay say they've spent more than $450,000 in their case.
Gard's Senate Bill 161 would reduce the percentage of signatures needed to challenge annexation from 65 percent to 51 percent. Her other proposal, SB 112, would force a community to reimburse property owners for legal fees if a judge rules against annexation.
"In most cases, these forced annexations are a slam-dunk, because most property owners don't know they can fight them, and if they do, they can't afford to," said Mike Fisher, a Geist resident opposed to annexation. "These bills at least give us a fighting chance."
But do they level the playing field?
"I don't think what's been proposed is going to solve the problem," said Sen. Gary Dillon, R-Columbia City. "If it's 51 percent instead of 65 percent, who can still afford $200,000 or $300,000 to go to court?"
Gard admitted her proposals are bandages for a larger problem, but said she'd still like to see them passed if a moratorium is ruled out.
Municipal leaders say any effort to curtail forced annexations would hurt the state's economy, because in some cases cities and towns need to resort to involuntary annexations to allow boundaries to reach areas where new industry can locate.
Law - "Trial lawyers find nothing funny in cartoon"
"Trial lawyers find nothing funny in cartoon: Joke was published in Ky. bar magazine" is the headline to a story by Andrew Wolfson in today's Louisville Courier Journal. It begins:
Former U.S. Supreme Court Justice Sandra Day O'Connor once said she didn't like lawyer jokes because "lawyers don't think they are funny and everyone else doesn't think they are jokes."
That might explain why Kentucky trial lawyers are in such a tizzy over a lawyer joke in last month's Kentucky Bar Association magazine that they say mocks them and their efforts on behalf of injured clients.
Ind. Law - Last Week in Review at the Indiana General Assembly
Here is the Evansville Courier & Press' Bryan Corbin's review of the past week in the General Assembly. Some quotes:
How Indiana government will fund local schools, higher education and other state services and projects is again under the microscope at the Legislature. An attempt to restructure property taxes suffered a setback last week, though a plan for Interstate 69 funding advanced. Here are some of the highlights of the sixth week of the Indiana General Assembly's 2007 session: * * *The story reports that today "Opponents of SJR 7, a proposal to ban same-sex marriage in the state constitution, are scheduled to hold a rally today at the Statehouse" and "The American Bar Association plans an event at the Statehouse on Tuesday, calling for a temporary halt to executions in Indiana."
- Last week, SJR 7, the proposed constitutional amendment to define marriage as being between a man and a woman, was passed out of the Senate and awaits action in the House.
- The Senate on Monday approved Senate Bill 1, the plan to fund Interstate 69 construction through Southwestern Indiana, using the proceeds from building two privatized toll roads in northwestern and central Indiana. The vote was 36-13. The bill now moves to the House.
- The Senate Health and Provider Services Committee heard a bill Wednesday that would require doctors to tell women seeking an abortion that human life begins at conception. The proposal was criticized by witnesses. No vote on Senate Bill 135 has been taken yet.
Sunday, February 18, 2007
Law - Kentucky legislator who let intern vote criticized
"Legislator who let intern vote criticized: House speaker says action violated rules" is the headline to a story today by Joseph Gerth in the Louisville Courier-Journal. Some quotes from the start of the story:
FRANKFORT, Ky. — In an apparent violation of the rules, an Eastern Kentucky legislator had his college intern cast several votes for him last Tuesday.Well, this brought back memories to the ILB. This April 8, 2004 ILB entry begins:
Rep. Brandon Smith, R-Hazard, said he was outside the House chamber, talking to a constituent on his cell phone, at the time.
But he said he was in contact with the intern -- a University of Louisville senior -- at all times and would signal him whether to vote "yes" or "no" and then monitor the tote board to make sure he voted properly.
House Speaker Jody Richards, D-Bowling Green, said Smith's actions violate House rules, which require members to cast their own votes. Richards said he plans to talk to Smith about how votes are cast and warn other members not to allow others to vote for them.
Smith, however, said he doesn't believe he violated any rules. And he said the matter came to light only because he is a candidate for state treasurer.
"This whole thing reeks of politics," he said.
This is not the first time questions have arisen about members voting. In 1986, for instance, former Democratic Rep. Terry Mann rigged a rubber band to hold down the voting device on his desk and cast a "yes" vote every time voting opened.
House Rule 68 says, "No member shall vote for another member, nor shall any person not a member cast a vote for a member."
Another provision, however, appears to open the door for members to cast votes for other members under limited circumstances. It says, "A member shall vote only when at the member's seat or visibly approaching it."
House leadership has traditionally allowed some flexibility.
It's not uncommon, for instance, for a member who is away from his desk to signal another legislator to vote for him on the House's electronic voting system.
Remember the controversy in the Indiana General Assembly this year when House Speaker Pat Bauer attempted to permit an absent member to vote via computer? Read on:And that was just the start of a very interesting ILB entry. More, from Jan. 8, 2005, this ILB entry quotes from a NY Times story that begins:At the end of March, it was alleged that one of Pennsylvania's senior state representatives, William Rieger (D -- Phila.) had engaged in what is called "ghost" voting. In Pennsylvania, representatives are required to be present for a vote. But Rep. Rieger allegedly rigged his voting button so that it would automatically cast his vote on six bills to be considered that day -- even though he had gone home to Philadelphia.
ALBANY, Jan. 6 - A revolutionary change is coming to the State Assembly, as odd as it might sound to those uninitiated in Albany's ways: the Assembly is adopting new rules requiring lawmakers to actually be present in the Capitol when they want to vote on bills.
The change alters one of the more curious, and criticized, aspects of the byzantine system of lawmaking in the capital, where legislators use a kind of cruise-control approach to voting: once lawmakers sign in for the day, they are counted as voting yes on all bills unless they signal otherwise.
Ind. Courts - "Businessman's criminal rap sheet erased in legal deal"
Ruth Ann Krause of the Gary Post Tribune reports today that a trial court judge has wiped out cases files and records of prior convictions of a Crown Point businessman. Some quotes from the lengthy story:
Crown Point businessman Dominic Pitzel started 2007 with a clean slate.
Pitzel's three criminal convictions and public records disappeared with the signature of Lake Superior Court Judge Diane Ross Boswell on Jan. 2.
The deal is unprecedented, say lawyers with decades of criminal law experience who were contacted for this story.
It was arranged between a special prosecutor appointed by a staff member of Lake County Prosecutor Bernard Carter's office, who is said to be a friend of Pitzel's, and defense attorney Marc Laterzo. * * *
Since January, case files have been destroyed that would show the legal basis for Pitzel's post-conviction relief on convictions for burglary, theft and pointing a firearm dating back 20 to 30 years.
Boswell ordered the public records expunged -- including those kept in the Indiana State Police Department Central Repository in Indianapolis, the National Crime Information Center in Clarksburg, W.Va., and "other agencies maintaining records of an individual's criminal convictions."
The clerk's office destroyed two of the files. The Post-Tribune was denied access to a third file, which was being purged of information related to Pitzel.
In effect, the convictions never happened, despite Pitzel pleading guilty in two of the cases and convicted for burglary by a criminal court jury in the third case. He received a four-year prison sentence in the burglary case.
Indiana law allows for arrest records to be expunged under limited circumstances.
Had Boswell not ordered the records expunged, the documents would have been maintained for 55 years after the case was closed, according to Indiana Supreme Court rules governing retention of felony case files.
Not law but interesting - Indianapolis Star to feature databases
Indianapolis Star Editor Dennis Ryerson writes today :
It's no secret that you can learn a lot from numbers. But to do so, you need the numbers placed into context and in a form that provides some meaning.I have two suggestions for Mr. Ryerson:
The Star is starting to do just that with a new "Data Central" section of our Web site, IndyStar.com. You can find it in the "Essentials" box on the left side of our home page.
We've posted several databases in addition to state salary and NCAA. For example, on Data Central you can find a county map showing homicides that have taken place in Marion County this year. Click on a red dot on the map and you will learn the victim's name, the weapon used, the motive, and the date and specific location of the crime.
On Data Central you can find results of standardized testing for the state's schools, and a list of consumer protection litigation actions taken against businesses by the Indiana attorney general.
Our goal, beginning now, is to add at least one new database each week. In coming weeks you will see more crime data, real estate databases listing property sales and bankruptcies.
We, and you, will be examining State Police speeding ticket information. We, and you, will be looking at records involving concealed-weapons permits, and small-business loans, health-care information and campaign-finance information.
It's a long, seemingly endless list.
What database information would you be interested in? In what ways can we make that information meaningful to you?
First, your state employee salaries database is very useful, as far as it goes. But it is based on June 30, 2006 figures. When will it be updated?
Oddly, the database does not contain the salaries of Ivy Tech employees, although it does appear to contain the other state universities. When will these employees be added?
Further, although you say the database contains the salaries of all three branches of state government, that is not correct. The salaries of the state senators and representatives are listed, but NOT the salaries of their staff, and NOT the salaries of the Legislative Services Agency employees. Why are these state employees omitted and when will they be added?
Second, you do not list the most useful database, in my opinion, the Star has ever provided - the Marion County property tax search. I still have the link because the ILB posted an entry on April 11, 2004, comparing the Star's database with those presented by papers in other areas of the state, some of which provide more information plus very useful tax calculators. Will you contain to maintain, update, and improve this property tax database?
Ind. Law - Baker & Daniels CEO Brian Burke featured
In a story today in the business section of the Indianapolis Star headed "My big break: Lawyer patterns career after his early mentor," Baker & Daniels CEO Brian Burke relates how a mentor influenced his career. The feature begins:
My most important big break was working with Charles "Chuck" Whistler beginning in the summer of 1978.In November the Star ran a similar feature, on Barnes & Thornburg managing partner Alan A. Levin.
I was a young lawyer at the time -- 30 years of age. I had just joined Baker & Daniels after serving four and a half years in the Navy.
Others at the firm worked with Chuck Whistler more than I did, but I was fortunate enough to know him and learn from him until January 1981, when he passed away after heart surgery.
Chuck had a profound impact on my career and how I live my life. I have tried to follow his example throughout my career. That's why I consider working with him my most important big break.
For those who don't know of him, Chuck practiced law with Baker & Daniels for more than 30 years, even though he's probably as well-known for his community service. He was a driving force behind the renovation of Downtown Indianapolis, and his life as a community servant was as important to him as his law career. Every year, an award in his name recognizes people in Indianapolis who've provided outstanding service to the community.
Saturday, February 17, 2007
Ind. Courts - More on: Greene County Courthouse work hits snag
Laura Lane of the Bloomington Herald Times reports on the standoff impacting the renovation of the Greene County Courthouse. Some quotes:
BLOOMFIELD — Greene County owes Weddle Brothers Construction Co. more than $700,000 on a courthouse renovation project that began more than four years ago and still isn’t finished.The ILB has posted a number of other entries on the Greene County Courthouse - access them here.
The company wants to be paid now and has stopped working on the project until the issue is resolved. Work shut down at the end of the day Jan. 29, and has not yet resumed.
County officials claim Weddle Brothers has not carried out work in accordance with a contract and is bound to continue working. They say the construction company is in default of its contract and subject to termination if workers do not return to the site this week.
It’s the latest in a long, drawn-out project that began innocently enough Sept. 3, 2002, when then-commissioners president Tom Britton donned a white hard hat and dug some dirt with a golden shovel to break ground for the anticipated renovation.
“We’ve been 10 years getting to this point,” Britton said then, referring to a decade of debate about whether the courthouse should be renovated and how the project would be financed. “This is going to be something we’ll be real proud of.”
Since then, the cost of what was expected to be a $10.5 million project has increased twice. In 2005, the county took out a $2.5 million additional line of credit to help cover extra costs that arose after the courthouse foundation shifted, causing an 18-month construction delay. * * * The cost now: $17 million.
Weddle Brothers says it waited seven months to be paid or to hear a response from the county as to why payment for the Phase II work was not forthcoming.
The county responded that by walking off the project after the building’s foundation shifted and walls cracked in January 2003, Weddle Brothers contributed to the delays and additional costs by being absent from the site for a year.
Law - Yet more on the cervical cancer vaccine issue [Updated]
"Furor on Rush to Require Cervical Cancer Vaccine" is the headline to a front-page story today in the NY Times that begins:
Racing to embrace a new vaccine, at least 20 states are considering mandatory inoculation of young girls against the sexually transmitted virus that causes cervical cancer.There is much more to the article. For background to this question, which initially appeared to present a simple choice - innoculate to prevent cancer of not? - start with this Feb. 11th ILB entry.
But a roaring backlash has some health experts worried that the proponents, including the vaccine’s maker, Merck, have pushed too far too fast, potentially undermining eventual prospects for the broadest possible immunization.
Groups wary of drug industry motives find themselves on the same side of the anti-vaccination debate with unexpected political allies: religious and cultural conservatives who oppose mandatory use of the vaccine because they say it would encourage sexual activity by young girls.
Even some who support use of the vaccine question the rush and the vaccine’s high cost — about $400 for the three-shot course. “The decision to make this mandatory this early has created a significant controversy over things that have nothing to do with the vaccine,” said Dr. Joseph A. Bocchini, chairman of the committee on infectious diseases of the American Academy of Pediatrics.
Like most other public health experts, Dr. Bocchini advocates the vaccine’s use. But many say the rush toward mandatory inoculation could prove counterproductive.
Most of the proposals call for vaccinating girls before they enter the 6th grade, a group that would include about two million girls nationwide annually if all states imposed the requirement.
In Texas, Gov. Rick Perry recently issued an order that girls be vaccinated. But some legislators are trying to overturn the order, with some opponents complaining because the governor’s former chief of staff is now a lobbyist for Merck. State lawmakers are scheduled to hold a hearing Monday on a bill to rescind that order.
[Updated 2/18/07] Bob Kasarda of the NWI Times has a story today about how at least one county health department has begun purchasing Gardasil for distribution in its programs.
Ind. Courts - Warrick County DUI/Drug Court is a success
14 News at WFIE is reporting today, in a story by Drew Speier that begins:
DUI and drug offenders, some serving time in prison, are being released and given a second chance. It's happening in Warrick County, and supporters say they have the numbers to show the program is worth the risk. The Warrick County DUI/Drug Court began exactly one year ago. There are only three in Indiana and only about 90 nationwide.
It all began when Warrick County received $250,000 in federal funds to start the program. And if you talk to the man behind it, Judge Meier, it not only prevents people from becoming repeat offenders, it's giving many of them a second change they would have never gotten anywhere else.
Judge Meier says, "Drug courts typically do not take drunk drivers, drunk driving courts typically do not take drug offenders, we take both."
Judge Meier says it good to give a second chance, "I've been around this system for 30 some odd years so many of these people we've never really given them a chance."
Meier believes, for many drug and alcohol offenders, incarceration isn't always the answer, "Lot of them started off with misdemeanors, not serious offenses but the system never really made an effort to find out what was wrong, why are they using drugs?" But that's now changed in Warrick County where Judge Meier presides over one of three DUI/drug courts in the state of Indiana.
He gives his clients a legitimate shot at treatment and recovery. Judge Meier also takes time to visit them in his courtroom on a regular basis.
Ind. Courts - Videotaped interrogation leads judge to suppress evidence from a post-arrest interrogation
It took a minute to figure out this story today by Andy Grimm in the Gary Post Tribune. First, the headline reads: "Evidence blocked after interrogation: Aalegedly [sic.] soliciting sex from teen in an Internet chatroom." Generally, the ILB does not see typos like that in newspaper headlines (although the ILB itself makes plenty of typing typos). The story begins:
A District Court judge has blocked evidence from a post-arrest interrogation of a Valparaiso man charged with allegedly soliciting sex in an Internet chatroom from an undercover FBI agent.District court? Then it dawned -- federal district court. The story continues:
FBI agents who questioned Matthew Hensley following his Aug. 18 arrest violated the former middle school basketball coach's rights by convincing him to answer their questions after he had asked for a lawyer, District Judge Philip P. Simon wrote in a 12-page opinion.Here is the 12-page opinion in U.S. v. Hensley (ND Ind., 2/14/07). Judge Philip P. Simon writes:
After Hensley said he would like a lawyer present before he answered questions, Agent Demetrius Flowers told him that if Hensley gave no statement, a judge would be more likely to keep him in jail at a detention hearing. The interview was videotaped, and Simon quoted Flowers in a transcript telling Hensley:
"Once I step in front of a judge, he is going to hear my side of the story and he is not going to hear anything you say and that is going to go a long way towards deciding whether you stay in custody or not."
Hensley refused to speak to the agents initially, but decided to talk and signed a waiver of his rights after spending two hours alone in a holding cell.
"Agent Flowers gave the Miranda warnings with one hand and snatched them back with the other," Simon wrote.
Hensley's attorney, Alex Woloshansky, said the ruling was a blow to the prosecution's case, and said he is trying to have Hensley's confiscated computer hard drive examined by an independent expert.
"I am all for videotaped interrogations," Woloshansky said. "What happens in the privacy of an interrogation room often doesn't get accurately relayed in a courtroom."
Hensley has remained in jail since his arrest Aug. 18.
He was arrested at a Valparaiso park where he had arranged a rendezvous with an FBI agent posing as a 13-year-old girl, one of two dozen area men charged in similar Internet stings by federal agents.
Matthew Hensley was arrested by federal agents and read his Miranda rights. He immediately told the arresting agents that he wanted to talk to a lawyer. The agents responded by telling him that a judge would soon hear from the agents and that this was his only chance to tell his side of the story. The agents then implied that if Hensley did not talk with the agents, he would stay in jail pending trial. Because the agents did not honor Hensley’s request for counsel, the statement he subsequently gave is suppressed. * * *
CONCLUSION. This case presents a textbook violation of Edwards. The agents’ failure to comply with the central tenet of that case – namely, when a suspect indicates that he wishes to deal with police through counsel, interrogation must cease immediately – mandates suppression of any statements from the August 19, 2006, interrogations. Furthermore, the agents’ coercive attempt to undermine the Miranda rights that they read no less than two minutes beforehand cannot be countenanced, as such attempts eliminate the voluntary aspect of any Miranda waiver. For the foregoing reasons, the Defendant’s Motion to Suppress [Doc. 33] is GRANTED.
Ind. Courts - Former Grant Circuit Court Judge Tom Hunt honored
The Marion Chronicle Tribune reports:
Former Grant Circuit Court Judge Tom Hunt received the Indiana governor's highest award, the Sagamore of the Wabash, Friday at the luncheon.
State Rep. Tim Harris, who presented the award to Hunt, said letters written in support of the former judge mentioned his long legal work and his time spent on community organizations.
What stuck out the most, though, was Hunt's mentoring of young attorneys who came through his court.
"I'm very humbled and overwhelmed by this," said Hunt, who did not know ahead of time that he would receive the award. "I'm just at a loss for words."
Hunt retired from the circuit court at the end of 2006.
Ind. Courts - San Diego paper applauds MTV "Juvies" show
"MTV's juvenile court appearance makes for good reality-check TV" is the headline of a column by Jane Clifford, family editor for the San Diego Union-Tribune. Some quotes:
“MTV Juvies” is set in Indiana's Lake County Juvenile Center, and it shows what happens to good kids who make some bad decisions.For background, see this list of earlier ILB entries on this project.
“Every young person who has ever driven too fast, drunk too much or left a party right before the cops came will relate to the gritty new documentary series,” the show's description reads.
The stars are first-time offenders, and you see them during their stay at the detention center, as well as an unprecedented look inside the juvenile court, proceedings that are usually closed to the public but open for this show, thanks to the determination of executive producer Karen Grau. Yep, it's reality TV when 15-year-old Sara runs away to Texas for a new life, gets picked up by the cops and hauled back to Indiana. She goes before Judge Mary Beth Bonaventura, who decides to release Sara to her mother. No one is more shocked than Sara when her mother, in tears, tells the judge that she's been having trouble lately with Sara and wants to leave her daughter in lockup.
“That's the central message of the show, that a young person's quick decision can have life-changing consequences,” says Ian Rowe, vice president of MTV Strategic Partnerships & Public Affairs.
It is sobering to see how fast a situation familiar to many teenagers can turn bad. * * *
But the program isn't about shock value, and it doesn't stop with just telling these kids' stories.
“It's important for us not only to put a show on but have a tremendous amount of resources available afterwards,” Rowe says.
And it's all on the show's Web site – www.mtv.com/thinkmtv/features/juvies/ – where young viewers can go for more information.
“If they see the judge make a decision and want to understand why or learn more, there's a podcast they can listen to where she explains her decisions,” Rowe says. “If they see one of the characters who's a runaway, they can go to the site for resources.”
And on a different part of the Web site – www.mtv.com/ontv/dyn/juvies/series.jhtml
– viewers will find “Life After Juvies,” where they can catch up with the kids after they come out of detention. In the weekly series, the teens talk about their experience and what's happened to them and their families.
Friday, February 16, 2007
Ind. Courts - Reports on bills of interest to the Judiciary discussed this week
The Indiana Judicial Center has posted its reports on bills of interest to the Judiciary in play this week in the General Assembly. Access them here.
This series of very comprehensive reports this week covers nearly three dozen bills of interest. As the introduction to this week's survey notes: "The General Assembly has completed an extremely busy week of committee hearings. Next week is the last week for committee meetings. The last day for third readings is Tuesday, February 27th for the House and Wednesday, February 28th for the Senate."
Ind. Decisions - Transfer list for week ending February 16, 2007
Here is the Indiana Supreme Court's transfer list for the week ending February 16, 2007.(Always be sure to go through all the pages, as the "list" is really two combined lists.)
Over 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.
Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)
For publication opinions today (4):
In the Matter of P.M. v. State of Indiana - Sullivan: "Appellant, P.M., was adjudicated a delinquent child for committing an act which would be Theft as a Class D misdemeanor if committed by an adult.1 In appealing his adjudication, P.M. claims that the juvenile court abused its discretion in admitting into evidence certain incriminating statements which were allegedly obtained in violation of his constitutional right against self-incrimination. We affirm."
Robert Williams v. State of Indiana - sentencing, affirmed.
Eric D. Smith v. Juanita Harris - Friedlander: "In conclusion Smith has offered no good reason for his failure to diligently prosecute his case. For almost seven months he did nothing to move his case along, and the responsibility for that inactivity must be borne entirely by Smith, as he had no attorney. * * * For these reasons, we are satisfied that the trial court did not abuse its discretion in dismissing Smith’s case under T.R. 41(E). Judgment affirmed."
In the Matter of the Guardianship of Helen P. Knepper, Opinion on Rehearing - Baker: "As a result, we affirm our original holding that the grandchildren waived the issue regarding the applicability of Indiana Code section 29-3-8-5 and conclude that the trial court properly entered judgment for Hester."
NFP civil opinions today (2):
Bryan Mitchell v. Cassandra L. Welch, et al. (NFP) - Barteau, Sr. Judge: "Because the affirmative defense of statute of frauds was waived, the trial court erred in applying the statute. However, the trial court’s error is harmless because the trial court’s determination that the evidence was insufficient to prove Mitchell’s claims is not clearly erroneous. Affirmed."
Lindsey Cotton v. Angela Stephenson (NFP) - child custody, affirmed.
NFP criminal opinions today (5):
William Dixson v. State of Indiana (NFP)
Deanna Austin v. State of Indiana (NFP)
Kenneth L. Caldwell v. State of Indiana (NFP)
Christa D. Sain v. State of Indiana (NFP)
Charles Laughner v. State of Indiana (NFP)
Courts - Report on bloggers receiving credentials to cover Libby trial
On Jan. 15th the ILB had an entry titled "Bloggers in Some States Get Press Credentials." Yesterday the NY Times had a front-page story about some bloggers who received press credentials to cover the Libby trial. Some quotes selected from the long story which focuses on the blog, Firedoglake.com:
All day long during the trial, one Firedoglake blogger is on duty to beam to the Web from the courthouse media room a rough, real-time transcript of the testimony. With no audio or video feed permitted, the Firedoglake “live blog” has offered the fullest, fastest public report available. Many mainstream journalists use it to check on the trial. * * *
For blogs, the Libby trial marks a courthouse coming of age. It is the first federal case for which independent bloggers have been given official credentials along with reporters from the traditional news media, said Robert A. Cox, president of the Media Bloggers Association.
“My goal is to get judges to think of bloggers as citizen journalists who should get the same protections as other journalists get,” Mr. Cox said.
He acknowledged that the Libby case had vividly illustrated the limits on those protections, as one reporter, Judith Miller, formerly of The New York Times, went to jail and others were forced to testify about once-confidential sources.
With a yeasty mix of commentary, invective and inside jokes, Fire-doglake has seen its audience grow steadily during the trial, reaching 200,000 visitors and requiring an additional computer server on its busiest days — like Tuesday, with the revelation that Mr. Cheney would not appear. * * *
Sheldon L. Snook, the court official in charge of the news media, said the decision to admit bloggers — 5 to 10 of about 100 reporters present on busy trial days — has worked out well.
“It seems they can provide legal analysis and a level of detail that might not be of interest to the general public but certainly has an audience,” Mr. Snook said.
Ind. Courts - "Judge Cantrell puts her driving school in park"
John Byrne reports today in a Gary Post Tribune story that begins:
Lake Superior Court Judge Julie Cantrell is shutting down her controversial court-administered driving school.For background, start with this ILB entry from Dec. 29, 2006.
Cantrell asked the Lake County Council on Thursday to close out the budget on the program, which has drawn recent interest from federal investigators and a rebuke from state court administrators.
Cantrell had said last year she was putting the program "on temporary hiatus," after fellow judge Jesse Villalpando alleged in a wide-ranging critique that she was overcharging defendants for taking part in the school, then diverting the funds.
Ind. Courts - More on: Former City of Greenwood court manager pleads guilty
The former Greenwood City Court manager has been sentenced to six months' home detention and a year's probation after pleading guilty to theft of more than $10,000 from the court.
Paula S. Borges, 42, Franklin, was sentenced Monday in Johnson Circuit Court.
Judge Mark Loyd accepted a plea agreement worked out between Shelby County Prosecutor R. Kent Apsley and defense attorney George "Jay" Hoffman. Apsley was special prosecutor in the case.
As part of the plea deal, Borges on Monday repaid $500 of the $10,937 missing from the court's funds. The $500 is the deductible required by the court's insurance policy.
Borges also repaid $15,111 to the State Board of Accounts for a special audit of the court's records and $1,875 to the City of Greenwood in over-billed wages, Apsley said.
Ind. Courts - Cameras in trial courtrooms pilot hits snag
The Fort Wayne Journal Gazette has this editorial today:
When the Indiana Supreme Court started a pilot program last spring to test the influence of cameras in Indiana courtrooms, the goal was to film enough court sessions to come to some conclusion.The editorial reports that: "Attorneys for media groups have asked the court to change the pilot plan, which now allows either party or the judge to reject cameras, and instead allow judges alone to make the call. The justices should grant the request."
Great idea, but it hasn’t worked out that way.
Since then just five hearings have been filmed statewide in the courtrooms of judges who had agreed to be part of the pilot, the last on Aug. 25.
It’s not the judges who don’t want cameras. Rather, defense attorneys are using their veto authority under the rules of the program to reject cameras because they don’t want their clients turning up on TV.
More from the editorial:
Allen Superior Judge Nancy Eshcoff Boyer, who presides in civil cases, is one of the eight judges around the state taking part in the pilot program. Since the project began, Boyer has asked all parties that come to her courtroom to sign release forms to allow media cameras, and 90 percent refuse.Here is a list of earlier ILB entries pertaining to cameras in courtrooms.
Media cameras filmed in her courtroom for the first time during a summary judgment hearing in July, which went well, but she said she has had no requests and virtually no interest from the media to film in her courtroom since then.
Micki Wilson, executive director of the Indiana Trial Lawyers Association, said trial attorneys welcome scrutiny, but they’re wary of the circus atmosphere that sometimes accompanies TV cameras. “Justice is not entertainment,” she said. “It’s about peoples’ lives, and that makes us cautious.”
The Supreme Court can’t be expected to make a thoughtful decision about cameras without more data. For that to happen, the court must trust judges to balance the rights of defendants and parties to civil suits with the need to cast as much light as possible on the judicial process.
Law - "Va. Bar Could Reverse Limits On Firms Hiring Legislators"
Here is an interesting story in the Washington Post today that begins:
RICHMOND -- The organization charged with regulating Virginia attorneys is pushing to erase an ethics rule that for a half-century has prohibited the state's legislators from being employed alongside lobbyists at the commonwealth's largest law firms.Please correct me if I'm wrong, but I don't believe Indiana has such a prohibition.
The change, proposed by the Virginia State Bar's standing committee on legal ethics, could spark a bidding war among Richmond's leading law firms, which would be free to hire the speaker of the House of Delegates or the Senate floor leader even as their lobbyists prowl the halls of the General Assembly.
That has outraged some in the legislature, who say the move would create dangerous conflicts of interest for the lawmakers and the lobbyists. And they say it adds to a perception that the General Assembly is a good old boys' club where deals are cut behind closed doors instead of in public committee rooms. * * *
Virginia's existing rule is stronger than in many states, where sitting lawmakers and lobbyists are often allowed to work in the same law firm, according to state bar officials. Arizona, Illinois, Washington and New Hampshire permit the practice, officials said. At least nine other bar associations prohibit firms from having both lobbyists and sitting lawmakers. Maryland does not have any such prohibition, but the state imposes certain restrictions on lawmakers who work for firms with lobbying arms.
Not mentioned on the Post story is one practice I've noticed in Indianapolis in the past; law firms putting candidates for office on the firm payroll while they make their run for office.
Then of course there is the issue of state universities putting legislators on the payroll. See this ILB entry titled "Ind. Gov't. - Should legislators should be allowed to serve as officers or directors of state universities and schools?" from Oct. 8, 2006.
Thursday, February 15, 2007
Law - More on "Big Insurer Will Pay 640 Katrina Claims"
On Jan. 24th the ILB quoted the NY Times that "State Farm has reached a settlement with the Attorney General of Mississippi in a number of Katrina storm damage cases."
In early January, a jury awarded a State Farm policyholder in Mississippi $2.5 million in punitive damages — later reduced to $1 million — after a federal district judge ruled that the insurer had failed to prove that it owed nothing for a house destroyed by the hurricane. The judge, L. T. Senter Jr., also ordered State Farm to pay the full value of the home, $225,000.A list of background ILB entries on the flood insurance and water vs. wind damage issues relating to the Katrina storm are available here.
Less than two weeks later, State Farm agreed to settle 640 lawsuits and to reopen as many as 35,000 previously resolved claims for damage. The agreement would have cost State Farm at least $130 million and was expected to jump-start the rebuilding of the Mississippi coast. But a few days later, Judge Senter rejected the agreement, saying he needed more information to determine whether it was fair.
Judge Senter has ordered State Farm and a group of trial lawyers to defend their agreement in a hearing on Feb. 28 in Gulfport, Miss. According to court papers, the judge said he was concerned that the agreement did not provide enough money for homeowners.
Randy J. Maniloff, a lawyer in Philadelphia who represents insurance companies, said he thought State Farm was sending a message to the court. “This is a message that we want to stay in this state,” he said. “But we simply cannot afford to do so if the legal climate forces us out.”
State Farm and other insurers had previously stopped selling new policies along the Gulf Coast. But the decision to halt sales throughout Mississippi was the most sweeping retrenchment of any insurance company so far in the state.
Ind. Decisions - Still more on "Court tosses challenge to hunter harassment law"
An AP story this afternoon reports:
A northern Indiana couple likely will appeal to the state Supreme Court their convictions for disrupting a deer hunt, their attorney said.Oddly, the rest of the story duplicates a NWI Times story from Jan. 18th, quoted in this ILB entry.
In fact, references in today's story such as "The appeals court ruled Wednesday ..." are actually references to the Jan. 17th ruling, which was on a Wednesday. Very sloppy.
A check of the docket today does not reveal any action by the Court of Appeals since Jan. 17th and nothing therein indicates an appeal is in the works as of this point, except this entry re the couple's Chicago attorney dated 1/24/07:
RENEWAL NOTICE OF TEMPORARY ADMISSION AND FEES PAID FOR 2007 WITH THE ROLL OF ATTORNEYS FOR **JAMES A. MORSCH.For background, see this list of earlier ILB entries.
Ind. Decisions - 7th Circuit decides one Indiana case todayCadleway Properties v. Ossian StateBank (ND Ind. - Judge Lee) - Judge Easterbrook writes:
Cadleway Properties and Ossian State Bank filed suits in state court to foreclose on security interests that Richard A. Magley and several of his businesses had given to secure loans. The Small Business Administration, a guarantor on some of these loans, removed both proceedings, which were consolidated in federal court. The current appeal arises from a dispute between Cadleway and Ossian State Bank about which of them is the beneficiary of Magley’s guaranty of a loan to 5620 Industrial Road, LLC. Cadleway is the creditor, but the district court held that the Bank receives the proceeds of the guaranty because Cadleway sold the Bank a package of other notes, one of them secured by a mortgage that contains a “dragnet clause.” The district court treated this clause, which says that any security granted by the borrower in the future may be applied not only to this loan but also to any other indebtedness to the same lender, as assigning to the Bank all security interests within the dragnet’s scope.Among the 7th Circuit opinions today, another case of interest is out of Illinois, Ligas, Stanley v. Golden, Anne. The opinion by Judge Kanne begins:
On appeal, Cadleway and the Bank debate whether the ruling reflects a correct understanding of Indiana law. Neither side discussed either the district court’s jurisdiction to make such a decision (which does not affect the SBA) or our jurisdiction to entertain an immediate appeal. At oral argument, therefore, we directed each side to file supplemental memoranda on the multiple jurisdictional issues that dog this appeal. These have been received, and it is now clear that the appeal must be dismissed for want of jurisdiction.
The appellants are the representatives of a number of developmentally disabled people who were worried that they might have been unwilling members of a proposed class in a lawsuit filed under the Americans with Disabilities Act. Fearing that the remedy being sought by the plaintiffs was contrary to their wishes, they sought to intervene. The plaintiffs and defendants opposed the intervention, and the district court denied the petition. The intervenors appeal that decision, and we affirm.
Posted by Marcia Oddi on Thursday, February 15, 2007
Courts - More on: "Jurists seal cases of colleagues: Litigants include relatives of those with ties to court"
"Kept confidential are the name of the judge who sealed the lawsuit, the names of the lawyers who litigated the case, the judge's reasoning in sealing the case, and whether Darrian or her ex-husband requested the case be hidden from her fans."
Continuing to follow the Las Vegas Review-Journal stories on cases decided in secret in the Nevada court system (see Feb. 12th ILB entry here), the Review-Journal ran a story by Frank Geary on Valentine's Day (access it here) headed "Porn star bares all except lawsuit against ex." A few quotes from the lengthy story:
Because she is the star in nearly 100 porn movies, it's hard to imagine that Penthouse Pet Racquel Darrian is shy about much.
Her age, weight, bra size, eye and hair color, sexual orientation, cosmetic surgery, one-time drug habit, tattoo, favorite actor, favorite food and sexual fantasy are broadcast on carnal Web sites that speak glowingly of the temptress, known in her prime as the "brunette goddess of porn."
But kept confidential from Darrian's legion of lustful onlookers are the dispute, deliberations and outcome of a lawsuit she filed in Clark County in 2000 against her former husband and porn co-star, Bradley Gerig, who went by the stage name Derrick Lane in the 1990s, according to Web sites devoted to the adult-entertainment industry.
Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)
For publication opinions today (1):
William J. Kimrey & David S. Healey v. J. David Donahue, Indiana Department of Corrections, et al. Sullivan: "Having determined that the legislature did not intend to provide the Claimants with a private right of action to enforce I.C. § 11-11-3-6, we hold that dismissal of the Claimants’ complaint for lack of subject matter jurisdiction was appropriate."
NFP civil opinions today (1):
Milton Rutan, et al. v. Jay Elmore, et al. (NFP) - a 2-1 opinion denying interlocutory appeal; dissent writes: "I write separately to address the utility of the latent/patent distinction embodied in the principle that the majority applies, namely, that a “landlord may be held liable for injuries caused by latent defects of which the landlord was aware but which were unknown to the tenant and were not disclosed by the landlord.”
NFP criminal opinions today (5):
Michelle Gammon v. State of Indiana (NFP)
Daryl Robinson v. State of Indiana (NFP)
Anentin Jaramillo v. State of Indiana (NFP)
Raymond S. Dugan v. State of Indiana (NFP)
Kevin D. Smith v. State of Indiana (NFP)
Ind. Law - "Bill targeting paid adoptions moves on"
The Hamilton County adoption of twins born to a surrogate mother could spark a change in state law making it a crime to be paid for arranging surrogate births.For more on the twins' case, see this Jan. 21st, 2007 ILB entry, quoting from an earlier Corcoran story.
The Senate Judiciary Committee voted unanimously Wednesday to recommend Senate passage of a bill that would punish people who arrange surrogate births in exchange for anything of value. They would face misdemeanor convictions and up to a year in jail and a $5,000 fine for each offense.
In addition, Senate Bill 199 would allow surrogate mothers and those who hire them to sue the person arranging or facilitating the contracts for up to three times the amount of the contracts if things go wrong. The entire Senate could take up the legislation next week, sending the bill to the Indiana House.
"It will have a chilling effect," said Steven M. Kirsh, a well-known Hamilton County adoption attorney who testified Wednesday. Kirsh's law firm does not arrange surrogate births.
The legislator who authored the bill said she does not want Indiana to become a hub for surrogate births involving parties from other states. Her legislation would prohibit only those arrangements involving "surrogate facilitation" and would not affect agreements in which no one is paid to bring parties together.
"This wouldn't make surrogacy illegal," said Sen. Patricia L. Miller, R-Indianapolis. "This would make it a crime to get paid to arrange one."
Monrovia-based Surrogate Mothers Inc., run by attorney Steven C. Litz, is the only known company in Indiana advertising such services. Litz, who arranged the twins' births and handled their adoptions in Hamilton County, did not return a phone call seeking comment.
State welfare officials are appealing the adoption, which was first reported in The Indianapolis Star in July 2005.
Ind. Law - More on: "Election official bows out of lawmaker's residency dispute"
This Feb. 3, 2007 ILB entry began by quoting from an AP story: "VALPARAISO, Ind. - The debate over whether a newly elected lawmaker actually lives in his northern Indiana district may be headed to court after a top state election official announced he'll stay out of the dispute."
Today Bob Kasarda of the NWI Times has a story headlined "Legal challenge predicted in dispute over lawmaker's residency: Democratic Chair Leon West said local voter will likely take dispute to court." Some quotes (the ILB loves the ending):
VALPARAISO | Porter County Democratic Party Chairman Leon West said he believes a local voter is going to file a lawsuit challenging the residency of newly elected Rep. Ed Soliday, R-Valparaiso.
West said he did not know for sure who would make the move, but has heard of several people interested in taking the case to court. * * *
If a legal challenge is posed, West said it will be carried out without financial backing from the local Democratic Party. The party does not have the extra money to fund the challenge, which might go on for some time.
The challenge will most likely be carried out through the generosity of an attorney, he said.
Courts - Justice testifies against cameras in U.S. Supreme Court oral arguments
"Justice pleads with Senate: No cameras in high court" is the headline to a story by Joan Biskupic of USA TODAY that begins:
Supreme Court Justice Anthony Kennedy pleaded with senators Wednesday not to try to force the high court to televise its oral arguments, saying it could undermine substantive legal discussion and lead the justices to speak in "sound bites."See also this story by Tony Mauro of Legal Times.
Kennedy's comments, which echoed previous statements by some of the nine justices but had a more impassioned tone, came during a Senate Judiciary Committee session in which he emphasized a need for higher salaries for federal judges.
Sen. Arlen Specter of Pennsylvania, the panel's senior Republican, sought instead to highlight federal judges' resistance to cameras in their courtrooms.
Specter and a few other Republicans and Democrats, including committee Chairman Patrick Leahy, D-Vt., have pushed legislation to allow federal court proceedings to be televised. The bills have never gotten very far in Congress.
The Supreme Court has never permitted cameras of any kind at its sessions. Lower federal courts bar cameras at all trials, but cameras are allowed in some appellate court hearings at the judges' discretion. All 50 states allow some TV and still cameras in state courts; rules vary based on the type of proceeding and parties involved.
Specter, a lawyer who has argued before the high court, noted that its courtroom is relatively small with few seats for the public. He said he believes televising court sessions would help the public better understand the law and how the court works.
Kennedy said the justices find the hour-long oral arguments a constructive forum for getting answers from lawyers and for telegraphing their own views to one another. He noted that the justices do not discuss cases with one another before oral arguments.
If TV cameras were in the room, Kennedy said, he would begin to worry about his colleagues speaking in "sound bites," rather than probing legal issues sufficiently. He said a "majority" of the justices think television would "change our collegial dynamic."
"Please, senator," Kennedy implored Specter at one point, asking him not to encourage television cameras at Supreme Court proceedings.
Sen. John Cornyn, R-Texas, a former Texas Supreme Court justice, told Kennedy he sympathized with the concern that jurists would try "to outdo each other" for the cameras. Cornyn said that did not happen in Texas, which allows some court proceedings to be televised. Cornyn added that he agreed with Specter about the educational value of televising court proceedings. * * *
The Judicial Conference of the United States, which sets policy for the lower federal trial and appellate court, has long prohibited cameras in trial courts based on the view that cameras could intimidate witnesses. The conference has permitted appellate judges — who do their work without witnesses — to decide in specific cases whether to allow cameras.
Ind. Gov't. - "Madison council violated law: Closed meeting rules improper"
Several Indiana papers this morning are running an AP story reporting on an opinion of the Indiana Public Access Counseler. Here is the opinion, dated Feb. 7, 2007, and headed Formal Complaint 07-FC-4; Alleged Violation of the Open Door Law by the Madison Common Council and Mayor.
From the story:
MADISON, Ind. -- The state public access counselor says the Madison City Council violated the Open Door Law when it held an emergency meeting to buy land for an industrial park.It appears that the Public Access Counseler's website is being updated more frequently. The most recent official advisory opinion posted today is: 07-FC-9; Alleged Violation of the Open Door Law by the Centerville Center Township Public Library Board of Trustees. It is dated Feb. 12th.
But Mayor Al Huntington said the decision was prompted by the need to move fast or lose the deal.
Huntington said the meeting was called after the seller threatened to raise the price if the city didn't close on the 62 acres by the end of the year. Facing the deadline, Huntington scheduled a meeting on Dec. 31 to finalize the deal.
"If we didn't move fast, then we could possibly not buy the property for the right price, which means it could have been costly to the city," the mayor said.
Hanover resident Warren Auxier filed a complaint with Indiana Public Access Counselor Karen Davis.
He said that Madison did not provide the required 48-hour notice and that the meeting did not meet the definition of an emergency, which is not subject to the notice.
The complaint also contended that the City Council should not have had a meeting behind closed doors to discuss strategy because the council had already executed an agreement to purchase the property.
City Attorney Rob Barlow denied that an agreement was in place before the closed meeting.
Davis agreed with Auxier on all three allegations. She noted that "it is difficult to ignore the impression that the city is taking inconsistent positions."
"How could the city lose the 'benefit of its bargain' if no bargain has been struck at the time that the city convened" the closed meeting, Davis asked in her written opinion.
It involves the issues including whether the library may may require individuals attending the meeting to sign-in, whether adequate space should be provided for the public to observe the meeting, and whether tape recorders may be prohibited. Some quotes from the opinion:
There are no provisions in the Open Door Law for a sign up sheet, but sign up sheets are not prohibited. If a person wishing to attend a meeting prefers to not sign a sheet indicating attendance, the person may not be denied access to the meeting. Your complaint does not allege that anyone was asked to leave, but you allege that members of the public were told by someone not a member of the Board that the sign up sheet was mandatory. The Board denies that the public was told it must sign the sheet. A voluntary sign up sheet may be used so long as the public is informed that signing up is not mandatory in order to attend the meeting. Requiring that a person who wishes to address the Board during the meeting sign up in advance or at the meeting does not violate the Open Door Law, since the Open Door Law does not provide the public with a right to speak during a meeting, only to observe and record the meeting.
A governing body should provide adequate room for the public to observe and record a meeting. If attendance at a meeting is unanticipated or is greater than normal, it is not per se a violation of the Open Door Law to not be able to accommodate every single person who wishes to observe a meeting. However, now that attendance at meetings has been higher than usual, the Board should make every effort to try to accommodate those who wish to attend. We have said that having an overflow area with a visual or auditory means for observing the meeting is sufficient to accommodate unexpected attendance. The Board has said that it will no longer use its small Board room, but will use the largest room in the Library for meetings in the future.
Because the Open Door Law specifically provides that the public has the right to record a meeting, a governing body may not ban the use of tape recorders. Because a meeting is a gathering of the governing body, it is essential that members of the public be allowed to record what the Board is saying. The Board denies that you were told you could not tape record the December 13 meeting. If the Board told you that you could not tape record the meeting yourself because the Board was recording the meeting, this would have been a violation of the Open Door Law.
Ind. Courts - "Winter snow, cold doesn't keep Cupid from Porter County Courthouse"
Christin Nance reports today in the Gary Post-Tribune in a story that begins:
Ten inches of overnight snow kept county workers away from the Porter County Courthouse but it couldn't stop two judges and at least two couples from weddings WednesdayBob Kasarda supplies other details in this NWI Times story:
Judges David Chidester and Mary Harper phoned the couples to assure them that the courthouse would open specifically for marriages at 1:30 p.m. on Valentine's Day.
The first couple -- Eric and Annelies Kappler, both 31, -- held hands with their three children during the ceremony. They said their wedding rings were not finished in time, but it didn't take away from their ceremony.
"You don't know how many years I've been waiting for this," Eric's mother, Charlene Kappler, blurted out after the couple sealed their vows with a kiss.
She nearly had to wait a little longer had it not been for the generosity of Chidester and Porter Circuit Court Judge Mary Harper, who agreed to open up the Porter County Courthouse in Valparaiso for a few hours Wednesday to fulfill the wishes of couples who planed to marry there on Valentine's Day.
The courthouse and other county buildings were closed for the day in the wake of Tuesday's winter storm and out of concern of continued weather problems.
Chidester and Harper, who happen to be married to each other, attempted to spread word of their plans by radio and by calling the 16 couples scheduled to be married Wednesday at the courthouse. They were helped by courthouse security officer Richie Tabor, who also came in on his day off.
"That's just because we're hopeless romantics," Harper said.
Chidester, who presides over most of the courthouse weddings, said Valentine's Day has traditionally been the most popular date for nuptials, though New Year's Eve and Christmas Eve are catching up.
Wednesday, February 14, 2007
Ind. Decisions - 7th Circuit decides Vincennes University case
In Gilles v. Blanchard (SD Ind., McKinney), a 14-page opinion (which includes on p. 4 a satellite photo of the campus, as in Posner's recent opinion including a satellite photo of a downtown Indianapolis alley), Judge Posner writes:
Vincennes University, the oldest institution of higher education in Indiana (founded in 1806 by future President William Henry Harrison before Indiana was admitted to statehood)—and a public institution since its inception—has its main, and only residential, campus in the town of Vincennes (population 18,000) in southwestern Indiana. About 5,000 students, all undergraduate, are enrolled full time at the Vincennes campus.
James Gilles (“Brother Jim”) (home page http://www. thecampusministry.org/, visited Feb. 2, 2007) is a traveling evangelist—the latest in a line of Christian itinerant preachers stretching back to Saint Paul and prominent in Methodism in nineteenth-century America. Born near Vincennes, Gilles gives the following account of his salvation. * * *
The issue more simply posed is whether a university should be able to bar uninvited speakers under a policy that by decentralizing the invitation process assures nondiscrimination, and a reasonable diversity of viewpoints consistent with the university’s autonomy and right of self-governance. We have tried to explain why the Constitution does not commit a university that allows a faculty member or student group to invite a professor of theology to give a talk on campus also to invite Brother Jim and anyone else who would like to use, however worthily, the university’s facilities as his soapbox. To call the library lawn therefore a “limited designated public forum” is an unnecessary flourish. Affirmed.
Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)
For publication opinions today (1):
Steven Lang v. Starke Co. Office of Family & Children - Judge Robb: "Steven Lang appeals from the trial court’s order involuntarily terminating his parent-child relationship with his three daughters. On appeal, he raises four issues, which we consolidate and restate as: (1) whether clear and convincing evidence supports the trial court’s order terminating Lang’s parental rights; (2) whether Lang was denied effective assistance of counsel; and (3) whether the involuntary termination violated Lang’s due process rights. We affirm, concluding that clear and convincing evidence exists to support the trial court’s order, that Lang’s counsel was effective, and that Lang was afforded due process."
NFP civil opinions today (4):
Yvonne C. Storey, et al. v. Harold Baker, et al. (NFP) Drag strip case. Judge Vaidik: "Because the Storeys signed a valid release and waiver as to all claims of negligence against the Defendants, and because they failed to properly raise any other claims before the trial court, we affirm summary judgment."
Stan Garus v. Steven Wright, et al (NFP) - Judge Baker: "Pro se appellant-plaintiff Stan Garus, a Bloomington landlord, appeals from a small claims trial court judgment awarding him $4,690.50 in an action he brought against defendants Steven Wright, Michael Spiering, and Jared Crane (collectively, the defendants). Garus raises two issues on appeal, which we restate as: (1) whether the trial court erred by not accepting a proffered settlement agreement, and (2) whether the trial court erred by not awarding Garus $5,773, the full amount that he requested in his complaint. Finding no error, we affirm the judgment of the trial court."
Carlos Michael Bowen v. Barry Sullivan (NFP) - Pro se appellant. Judge Vaidik: "Carlos Bowen appeals the trial court’s grant of judgment in favor of Barry Sullivan on Bowen’s small claims action for fraud. Because Bowen is appealing from a negative judgment, he has the burden of showing that the trial court’s judgment is contrary to law. Finding that the trial court’s judgment is not contrary to law, we affirm. * * * Bowen clearly believes that Sullivan knew of problems with the boat when he sold it. Sullivan testified that he knew of no such problems. The trial court, after seeing the witnesses first hand, listening to their testimony, and viewing the documentary evidence, granted judgment in favor of Sullivan. For us to reverse that decision, we would have to reweigh the evidence and judge the credibility of the witnesses. This we cannot do."
NFP criminal opinions today (6):
Antwan Richmond v. State of Indiana (NFP)
Albert Chalmers v. State of Indiana (NFP)
Thomas Lano v. State of Indiana (NFP)
Timothy A. Woolum, Sr. v. State of Indiana (NFP)
Antrell Blissett v. State of Indiana (NFP)
Dwayne James Hoard v. State of Indiana (NFP)
Law - Instructive example of a good law exam answer
I read this entry by Prof. Orin Kerr yesterday in The Volokh Conspirary and thought it was a lot of fun to compare the answer I quickly sketched out in my mind with Kerr's "Bad Answers, Good Answers, and Terrific Answers."
Courts - More on: Wisconsin Right to Life sues re questionaire to judges
Wisconsin rules that prohibit judicial candidates from making comments that seem like promises to rule in specific ways will remain in place during a key race for the state Supreme Court, a federal judge ruled Tuesday.From Wisconsin Politics:
U.S. District Judge John Shabaz denied an anti-abortion group's request for a temporary injunction that would have suspended the rules during the spring elections.
Shabaz said the rules should stay intact because the lawsuit by Wisconsin Right to Life and eight state residents was likely to fail. He is expected to rule on the merits of the case later this year.
The lawsuit is challenging the constitutionality of two rules. One forbids judicial candidates from making public statements that could be seen as committing themselves to a particular ruling. The other requires judges to recuse themselves in cases on which they have taken sides publicly.
The anti-abortion group says the rules have prevented candidates from answering a questionnaire soliciting their views on abortion rulings and other topics. It says the rules violate judicial candidates' free speech rights and deprive citizens of information they need to vote.
But Shabaz said the group failed to show that candidates would answer the questionnaire if the rules were not in place. He also said the state "has a compelling interest in ensuring that its judges be impartial to the parties before it."
James Bopp Jr., an Indiana lawyer representing the anti-abortion group, said the rules have been interpreted too broadly, prohibiting candidates from discussing their views on issues like last fall's statewide referendum on the death penalty.
Bopp said the group was not looking for a promise to rule against abortion rights in specific cases but only for an understanding of their views on the issue. He said he would convince Shabaz to change his mind when he rules on the merits.
"We've done the surveys, and people have refused to answer because of the judicial canons," he said. "The rules are understood by judicial candidates to prohibit announcing their views."
Lawyers representing the state argue the rules are more narrow and only prevent candidates from telegraphing how they will rule on specific controversies. The goal is to maintain the impartiality of judges, they say. Shabaz appeared to buy that argument in his ruling from the bench Tuesday.
The ruling comes one week before Washington County Judge Annette Ziegler and Madison attorneys Linda Clifford and Joe Sommers square off in a primary for the opening on the high court. The two top candidates will advance to the April 3 election, which may decide the political leaning of the divided court.
Despite the rules, Wisconsin Right to Life's political action committee recently endorsed Ziegler, who is seen as the conservative in the race.
Shabaz said the state has a compelling interest in restricting the ability of judicial candidates to answer questionnaires and the like, especially to preserve the appearance of impartiality and open-mindedness. Shabaz also said the court canon is narrowly tailored so it appears to pass constitutional free speech muster.
Shabaz noted that the right of a willing listener is protected under the First Amendment, as is the right of a willing speaker. Shabaz said he recognizes Wisconsin Right to Life as that listener and their pursuit of sending out surveys questioning a candidate’s belief of the legal reasoning behind Roe v. Wade. However, Shabaz said there needs to be a willingness of a speaker, and most candidates would have the likelihood of not filling out such surveys anyway.
State of Wisconsin lawyer Thomas Balistreri argued few, if any, judicial candidates would return any surveys.
“Its pure hypothecial conjecture that they are willing speakers … in 2007,” Balistreri said.
Wisconsin Right to Life executive director Barbara Lyons said afterward that Shabaz’s argument is “circular.” Lyons said that Shabaz thinks the reason judge’s don’t answer questionnaires is due to the court rules, and now he ruled that he’s not lifting the restrictions because judges are not returning surveys.
James Bopp, Jr., attorney for Wisconsin Right to Life added that revealing personal views doesn’t impact a judge’s discretion.
“Announcing your views has nothing to do with being impartial,” Bopp said.
Shabaz also agreed with Balistreri that he hopes to "dispose of this trial by motion." Bopp did not present any new testimony during the pre-trial conference today, but also said he doubts the case will go to a jury trial.
Shabaz also set the last pretrial conference to meet May 5 and set the jury trial to begin June 1 if the case, Duwe v. Alexander, gets that far.
If the case does go to trial, it will not affect this year's state Supreme Court race, as the spring election takes place April 3.
Ind. Law - "Same-sex marriage ban proposal raises concerns" [Correction added]
Dan Shaw of the Lafayette Journal and Courier writes today:
Barry Schreier, a spokesman for Citizens for Civil Rights, said he believes a similar constitutional amendment in Indiana would undermine Purdue's policy of granting those benefits to the domestic partners of employees. Purdue adopted the policy in 2000, partly as a way to avoid losing scholars and administrators to universities that already had granted the benefits.For more on the ambiguity issue, see this ILB entry from Feb. 1, particularly the last portion. For more on the Michigan decision, see this ILB entry from Feb. 2nd.
"This strikes at the financial competitiveness of the university," Schreier said of the proposed Indiana amendment.
Still, the fears of Schreier and others did not stop the Indiana Senate on Monday from passing Senate Joint Resolution 7, which next goes to the Indiana House of Representatives. If approved by the entire General Assembly, the resolution would allow Hoosiers to vote on the constitutional amendment on the 2008 ballot.
On Monday, Joe Bennett, a Purdue spokesman, said lawyers have told university officials that they shouldn't be concerned about the resolution. And he doesn't think the Michigan decision is an indication of what effects a ban on same-sex marriages would have in Indiana.
"Just because something happens in one area, that doesn't mean it will happen here," he said. "There are going to be differences."
Gayla Ruark of the Purdue University Human Resources Department said 31 university employees take advantage of the health insurance granted to domestic partners.
Indiana law already bans gay marriage. But Schreier said he thinks the constitutional ban on same-sex marriages may affect Purdue's policy because of the resolution's second provision. It states: "This Constitution or any other Indiana law may not be construed to require that marital status be conferred upon unmarried couples or groups."
[ILB note: As a reader has correctly pointed out, the Lafayette paper's quote omits part of SJR 7's section 2, which reads: "This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups."]
Schreier said the passage is unclear and will invite judges to interpret its meaning. That result will be ironic since proponents of the amendment say they want to prevent judges from defining marriage other than as a union between a man and a woman, he said.
Ind. Decisions - "Judge in Behrman case rejects bid for new trial"
The AP is reporting today:
MARTINSVILLE, Ind. -- Juror misbehavior during the murder trial of a man accused of killing Indiana University student Jill Behrman doesn't warrant a new trial, a judge ruled yesterday.For background, see this Jan. 20th ILB entry and its links to the Behrman story.
Morgan Superior Court Judge Christopher Burnham denied John Myers II's request for a new trial.
Defense attorney Patrick Baker filed court papers Dec. 29 alleging that the sequestered jurors misbehaved, drank alcohol, and smuggled in a television set, and that at least one called home on a bailiff's cellular telephone.
But Burham ruled that Myers' attorneys had not proven jury misconduct or that it would have affected the outcome of the trial.
"The Defendant has failed to establish that juror misconduct existed in this case," Burnam's ruling said.
"Even assuming ... that there was juror misconduct in this case, the Defendant has failed to establish that the misconduct was gross and probably harmed him."
Ind. Decisions - "Judge Rules Drug Documents Must Be Returned to Eli Lilly"
"A federal district judge in Brooklyn (ED NY) ruled yesterday that confidential marketing materials belonging to Eli Lilly & Company about its top-selling anti-psychotic drug Zyprexa must be returned to the company by a doctor and a lawyer who, the judge said, engaged in a scheme to leak them to the news media." That is the lead (or "lede" if you are old-school) to a story today in the NY Times. More from the story:
The documents were part of evidence provided by Lilly as part of a lawsuit filed by patients who claimed that side effects from Zyprexa caused excessive weight gain and diabetes.Here is a link to the 78-page opinion. For more, see this entry in How Appealing.
In the 78-page decision, Judge Jack B. Weinstein of Federal District Court ordered Dr. David Egilman, a special expert for the plaintiffs, and James B. Gottstein, a lawyer in Alaska, to return the documents to Lilly.
A New York Times reporter, Alex Berenson, was given a copy of the documents, which showed that Lilly executives had kept information from doctors about Zyprexa’s links to obesity and higher blood sugar, a claim Lilly has denied. He wrote front-page articles based on the information.
Eli Lilly has now paid $1.2 billion to settle more than 28,000 cases from individuals who contended that they developed diabetes or other diseases from taking Zyprexa.
Tuesday, February 13, 2007
Ind. Courts - Sealed documents in otherwise "unsealed" cases
In this Feb. 6th entry, the ILB reported on the case of John Doe v. Town of Plainfield, Indiana, an interlocutory appeal from the trial court’s grant of the Town of Plainfield’s motion to reconsider an earlier order that had allowed Doe to proceed anonymously. After checking the Clerk of the Courts' online docket for the case, I wrote:
Oddly, no record of this case (32A01-0605-CV-188) appears in the Clerk of the Courts' docket. Surely that is not part of the authorization to proceed anonymously.Last week I contacted the Clerk of the Supreme Court, Court of Appeals, and Tax Court for the State of Indiana, Kevin S. Smith, to find out why the case was not listed in the public docket.
The answer, it turns out, is that years ago, when the docket was simply an internal tool, entire unsealed cases which included sealed documents were not listed in the docket, as a way of flagging to staff the fact that the case contained information that was "under seal" and not to be freely distributed.
This assured that the staff did not inadvertently turn over a sealed document to someone coming into the Clerk's Office requesting to view "the entire record" in an otherwise unsealed case. This was never changed when the docket became on online public tool.
According to Mr. Smith, his office changed the internal policy several months ago "so that in the future only sealed cases would receive the 'sealed' notation on our electronic docket, finding that other internal procedures already in place for handling sealed documents in unsealed cases were sufficient to prevent inadvertent disclosure."
He said the Plainfield appeal I had asked about was processed by the Clerk's Office before the change. "It has been corrected now, so you should be able to find the docket in the case you're interested in. Thanks for bringing it to our attention."
This means that in the future the presence of sealed documents in unsealed cases will not prevent the case docket from being listed online. I've now checked again for the docket of the John Doe v. Plainfield case and find that it is now available online. A recent entry to the case's docket states:
1. APPELLANT'S MOTION TO FILE DOCUMENT UNDER SEAL IS GRANTED. 2. THE CLERK OF THE COURT OF APPEALS SHALL RELEASE EXHIBIT B ONLY TO THE PARTIES TO THE APPEAL AND THEIR RESPECTIVE COUNSEL OF RECORD. SAID EXHIBIT SHALL NOT BE MADE AVAILABLE TO THE GENERAL PUBLIC.Mr. Smith cautions, however:
[T]he new way we handle things will be prospective, as we have no way of knowing what cases were previously handled under the "old" way before I changed our practice. However, if those "old" cases (meaning those designated as "sealed" before I made the policy change) are brought to our attention like you did with the Doe v. Plainfield case, we can then make the adjustment to that case at that time.What about "sealed" cases? What if a case, sealed by the trial court judge, is appealed? What shows up on the docket? Is even the existence of the appeal kept off the docket? More coming, perhaps tomorrow.
Environment - Great Lakes compact; EPA libraries destruction update
Great Lakes Compact. Acoording to a story in the Chicago Sun-Times from Nov. 18, 2005 (see this ILB entry):
Fear that fast-growing, thirsty communities -- as far off as China and as close as Wisconsin -- could get their hands on Great Lakes water has driven border-state governors to band together to control the largest single source of fresh surface water on the planet.See also a story by NYT environmental writer Felicity Barringer, headlined "Growth Stirs a Battle to Draw More Water From the Great Lakes," quoted in this Aug. 12, 2005 ILB entry.
The controversial agreement spells out who can and can't draw on this increasingly valuable resource, holding one-fifth of the world's -- and 90 percent of America's -- fresh water.
The governors are to sign the Great Lakes Basin Water Resources Compact on Dec. 13 in Milwaukee. Then begins the arduous task of getting it through eight state legislatures and Congress.
Today the Minneapolis-St. Paul StarTribune reports:
Minnesota is poised to become the first of eight states to approve a new Great Lakes Compact, a binding interstate and international agreement that would restrict additional large diversions of water out of the watershed emptied by the lakes and the St. Lawrence River.EPA libraries destruction update. The ILB has posted several entries on reports that EPA was destroying its regional libraries. Start with this one from Dec. 5, 2006. Here is a report dated Feb. 12, 2007, titled "EPA Libraries: Where Do They Stand Now?"
The state Senate gave preliminary approval to the compact on a voice vote Monday and is expected to vote final approval this week. The House already has approved it, and Gov. Tim Pawlenty was a signatory to the compact proposal in late 2005.
"This gets the ball rolling, and being the first shows that Minnesota wants to have this strong protection through all the Great Lakes," said Allison Wolf, legislative director for the Minnesota Center for Environmental Advocacy. * * *
Concerns among Great Lakes states about preserving one of the continent's and the world's largest repositories of fresh water are nothing new. Organizations and agreements such as the Great Lakes Commission and the Great Lakes Basin Compact have existed for decades, but their agreements on water use have been nonbinding or found to be unenforceable, according to a Department of Natural Resources summary of the compact.
Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
NFP criminal opinions today (4):
David C. Marzini v. State of Indiana (NFP)
Rayne Shideler v. State of Indiana (NFP)
George Goode v. State of Indiana (NFP)
Kevin M. Cardwell v.State of Indiana (NFP)
Ind. Decisions - 7th Circuit issues interesting non-Indiana decision re location of an "adult business"
The case is Illinois One News v. City of Marshall Illinois. The opinion is written by Chief Judge Easterbrook. Some quotes:
Large cities such as Chicago can insist that adult businesses stay away from residential areas and schools, while leaving plenty of land for their operation. But if it is constitutional for Chicago to insist that these businesses move a mile or two to find a suitable spot, why can’t Marshall insist that The Gift Spot move a few hundred yards? The answer “because Marshall is so small that even a short move will place us outside its borders” falls flat. Suppose all county seats in rural Illinois were two miles square (four square miles), while equivalent cities in Indiana were six miles square (36 square miles). Could it be that the Constitution would allow Indiana’s cities to establish 2,000 foot (or 5,000 foot) buffer zones between residential areas and adult businesses, while Illinois’s cities could not have more than 200 feet of separation? That’s the gist of Illinois One’s argument, and it makes little sense given that the same first amendment applies in both Illinois and Indiana.[More] See this entry on the case from the Decision of the Day blog.
Ind. Courts - More on: Marion County's public defender imposes hiring freeze
The City-County Council unanimously approved a proposal to move the public defender's office out of the City-County Building and into a private office Downtown.
The proposal to lease 50,000 square feet at 151 N. Delaware St. will move about 200 employees into a space nearly double the current size. The lease will cost $720,000 in the first 10 years.
David Cook, the county's chief public defender, stopped hiring new attorneys in December because there was no space in his crowded office. He had been given authority and funding to hire about 30 employees to help staff new courts and speed up the legal process.
By moving cases more quickly, city officials hope to shorten stays in the crowded jail and end early releases, which they said helped fuel last summer's violent crime spike.
Council member Jackie Nytes said the move will free up nearly 27,000 square feet in the City-County Building for other needs.
Ind. Law - New tollroads, constitutional ban on same sex marriage, cervical cancer measure - all pass Senate
Three measures the ILB has been following passed the Indiana Senate yesterday. Here is some of the coverage. For earlier stories, type the bill number in the ILB search box.
A bill intended to reduce cervical cancer among women by providing information about a new vaccine to the parents of young girls passed the Indiana Senate yesterday.
Senate Bill 327 requires schools to send information about Gardasil, a vaccine that protects against some forms of human papillomavirus, to the parents of girls entering the sixth grade.
The bill passed 44-5 after an emotional and sometimes testy debate, with some of the chamber's most conservative senators voting against it. It now moves to the House for consideration.
More than 20 other states , including Kentucky , have introduced similar or stronger legislation. In Texas, Gov. Rick Perry issued an order that girls be vaccinated.
Yesterday, several senators argued that it's too soon to be urging a vaccine that was only approved last year. "I'm not saying the vaccine is bad," said Sen. Jeff Drozda, R- Westfield. "I'm saying there's a lot we don't know."
Sen. Mike Delph, R-Carmel, raised questions about the company that makes the vaccine, Merck & Co. Inc., and its contributions to Women in Government, a national nonprofit group to which a number of Indiana's lawmakers belong. "This is all about Merck's bottom line," he said.
But Lawson said she has not discussed the proposal with Merck and is backing it because she believes it is proper . She said 347 Hoosier s died from cervical cancer last year.
A proposed ban on same-sex marriages now faces just one more hurdle in the House before Hoosiers will be able to vote on the constitutional amendment.SB 1 - Bryan Corbin of the Evansville C&P has a story headed "Indiana road bill zips along." Some quotes:
The Indiana Senate voted 39-10 Monday to pass the amendment, which defines marriage as a union between a man and a woman.
State law already bans same-sex marriages, but supporters of the constitutional amendment have maintained their measure would prevent activist judges from changing that law.
"By passing this amendment, we are giving the people the right to decide whether the definition of marriage should be preserved and put beyond the reach of the courts," said Sen. Brandt Hershman, R-Wheatfield.
In order to amend the constitution, two separately elected legislatures must pass the amendment with the exact same language. Both chambers passed the amendment in 2005.
Monday's vote was not quite as overwhelming as the 42-8 Senate vote two years ago.
Sen. Tim Lanane, D-Anderson, said the amendment reflects an intolerance of same-sex couples. "If you think sexual orientation is a matter of nature, then this resolution makes no sense and is discriminatory," Lanane said. "If you believe homosexuality is somehow a learned behavior, maybe this resolution makes sense, but I still say it's discriminatory." * * *
The proposal now moves to the House, where Speaker B. Patrick Bauer, D-South Bend, has said he will allow a vote on the amendment even though he has called it redundant. In 2005, the House passed the amendment 76-23.
Nationwide, 27 states have passed constitutional amendments defining marriage.
Gov. Mitch Daniels' plan to fund Interstate 69 construction through Southwestern Indiana by building two privatized toll roads in the central and northwestern parts of the state cleared a major hurdle Monday.
After hours of debate, the Indiana Senate passed Senate Bill 1, also known as the Indiana Commerce Connector bill, 36-13. Three of Southwestern Indiana's five senators voted for it, including one Democrat. The bill now goes to the House. * * *
During third-reading debate Monday on Senate Bill 1, some senators expressed concern about the legal authority the Legislature would be giving up if it passed the bill as written.
"I'm not ready to allow the governor to go forward with the Commerce Connector until my questions are answered," said Sen. Vi Simpson, D-Bloomington, who voted no.
But Sen. Vaneta Becker, R-Evansville, told senators she supports the connector because its proceeds would fund Interstate 69.
"We have been discussing, debating and cussing to get I-69 in Southwest Indiana for longer than I have been a legislator, and that's 26 years - longer than I have been in the General Assembly. The people that I represent would like to see us move forward," Becker said. "The longer we wait, the more that (the interstate) costs."
Sounding a voice of skepticism, Sen. Lindel Hume, D-Princeton, said private operators would have to charge high enough tolls not only to build a new toll road but also turn a profit.
Hume noted Daniels has been termed "bold" for introducing the privatized toll-road proposal to fund interstate construction.
"Well, Evel Knievel was bold, but he never strapped me to his motorcycle and I didn't have to jump the ravine with him. And we're asking the people of Indiana to cross this ravine, and we don't know how it's going to work out," Hume said.
See also this story by Jim Stinsom of the Gary Post Tribune on SB 1 and this one from the NWI Times.. The Indianapolis Star has this story, headlined "Governor's toll road plan cruises out of Senate: House likely to be cagier about privately run beltway, bypass."
Niki Kelly of the Fort Wayne Journal Gazette covers all three measures in one story today.
Monday, February 12, 2007
Ind. Courts - Former City of Greenwood court manager pleads guilty
Paul Bird of the Indianapolis Star is reporting this afternoon:
The former Greenwood City Court manager has been sentenced to six months home detention and a year’s probation after pleading guilty to theft of more than $10,000 from the court.Judge Gregory's comment was reported in a Nov. 1, 2005 Star story - see ILB entry here.
Paula S. Borges, 42, Franklin, was sentenced Monday in Johnson Circuit Court.
Judge Mark Loyd accepted a plea agreement worked out between Shelby County Prosecutor R. Kent Apsley and defense attorney George “Jay” Hoffman. Apsley was special prosecutor in the case.
As part of the plea deal, Borges on Monday repaid $500 of the $10,937 missing from the court’s funds. The $500 is the deductible required by the court’s insurance policy.
Borges also repaid $15,111 to the State Board of Accounts for a special audit of the court’s records and $1,875 to the City of Greenwood in over billed wages, Aspley said.
Hoffman said the outcome was fair.
“It was a fair outcome for a nice lady who made bad choices during a tough time in her life,” Hoffman said.
The theft was money collected from traffic fines.
At the time of her October 2005 arrest, Greenwood City Court Judge Lewis Gregory said he was “beyond shock.”
Ind. Courts - An embarrassing but necessary correction
If you read the Feb. 10th ILB entry on the Cass County Courthouse search for interior photos, you may be interested in the correction I just posted at the end of the entry.
Ind. Courts - Daviess Circuit Court Judge Robert L. Arthur to retire
Nate Smith of the Washington Times-Herald reports, in a story that begins:
Daviess Circuit Court Judge Robert L. Arthur announced his retirement from the bench this week, effective April 27.
Arthur, who was appointed after his father James retired in 1982, has served as judge for 24 years. This will be the first time in 37 years that someone other than a Arthur will be on the circuit bench.
“There are places to go and people to see,” Arthur said. “It’s time.”
Arthur has sent his letters of resignation to Indiana Gov. Mitch Daniels and Supreme Court Chief Justice Randall Shepard.
Daviess County Prosecutor Byron Overton said Arthur’s retirement was a loss for the county.
“He’s fair to all sides and he’s been an outstanding judge,” Overton said. “Somebody’s going to have some big shoes to fill.”
Judith Dwyer, former Daviess Superior Court judge and colleague to both Arthurs, said Robert has “the perfect temperament to be a judge.”
“He is always courteous to the bar, their clients and unrepresented people who come to his court,” Dwyer said. “He has been most helpful to me to work with Judge Arthur and his father, James Arthur, through all the years I was also a judge.
“In the words of my father, they were both gentlemen and scholars. To me, it is the end of an era,” Dwyer said.
Another judge Arthur helped was Martin County Circuit Judge Joe Howell. When Howell took to the bench in 1993, Arthur was his mentor judge as assigned by the Indiana Supreme Court.
“He’s probably one of the most patient, even-handed judges in the area,” Howell said. “I hold him in the highest regard as a judge, attorney and as a person. As he leaves the bench, the Indiana judicial system is losing a real asset.”
Courts - "Jurists seal cases of colleagues: Litigants include relatives of those with ties to court"
A story this weekend from the Las Vegas Review-Journal begins:
Keeping from the public information about judicial colleagues or their relatives is among the uses Clark County judges have found for their authority to seal civil cases, given them by a Nevada Supreme Court decision 12 years ago.A little research has produced this goldmine (an apt characterization, as this is Nevada) of information about "The Whitehead Case."
Litigants whose cases have been sealed by District Court judges include a Clark County Family Court judge, a Las Vegas law firm with which a former state Supreme Court justice is associated, a medical practice owned by the husband of a former state Supreme Court justice, a lawyer who serves as a temporary judge on matters before the Supreme Court, and an MGM Mirage attorney who unsuccessfully ran for Las Vegas Municipal Court in 2003.
One of the litigants whose case was sealed is Hutchison & Steffen, a firm with which the author of the 1995 Whitehead Decision, on which judges now rely for authority to seal them, is associated. Thomas L. Steffen served on the Nevada Supreme Court from 1982 to 1997, and according to the firm's Web site is "of counsel" to the law firm partly owned by, and named for, one of his sons.
Moreover, here is a story from from the Dec. 11, 2006 Las Vegas Review-Journal. A few quotes from the end of the long story:
Whitehead asked the Nevada Supreme Court to halt the investigation and to decide the case in secret, concealing not only the allegations and outcome, but the existence of the case.
His attorneys contended that since complaints to the Judicial Discipline Commission and its investigations were confidential, Whitehead could appeal in secret. After the Supreme Court agreed to the unprecedented secrecy, the Review-Journal revealed the case anyway.
The court unsealed the case but launched a sweeping effort to discover who leaked information to the newspaper.
The case resulted in the Supreme Court issuing new rules for the discipline commission and the Legislature increasing the panel's funding, making it stronger and more effective.
In August 1995, Whitehead agreed to resign in return for a promise he wouldn't face federal prosecution.
Ind. Decisions - 7th Circuit today has two interesting, non-Indiana cases
The first, USA v. Nettles, Gale, involves the appeal of Gale Nettles, who was charged with attempting to destroy the federal courthouse in Chicago. Howard Bashman of How Appealing has a write-up here.
The second is a prisoner appeal, Moore, Allan O. v. Madigan, Lisa, where Judge Manion writes:
Allan Moore filed a petition for a writ of habeas corpus in federal court challenging his conviction in Illinois state court. The district court dismissed the petition as time-barred. Moore appeals, arguing that the deadline for filing his petition should have been tolled because of an inadequate prison library, which allegedly did not contain the relevant statute of limitations. Because the factual record is insufficiently developed, we vacate the district court’s dismissal and remand for further proceedings. * * *
We cannot glean from the record whether the prison library contained the relevant statute of limitations. Although Moore does not unequivocally assert that the library lacked the statute of limitations, he does assert that there are “no lawbooks in [his] cell nor are they letting us go to the maximum Law Library for Federal Habeas Corpus for State Prisoner’s [sic].” Moore also claims that the books that are available are “real old,” irrelevant to his needs, and that the law has changed from that available in the library. The state never had an opportunity to respond to this contention. The record thus does not establish whether the prison library was adequate. Accordingly, just as the Fifth and Ninth Circuits proceeded, we consider it premature to answer the question of whether an inadequate library provides a basis for statutory or equitable tolling. If, on remand, the district court determines that the library contained a copy of the statute of limitations and the state did not prevent Moore from accessing the statute, there would be no need to reach the further legal question regarding tolling. We therefore express no opinion at this time regarding whether an inadequate prison library may provide a basis for statutory or equitable tolling.
III. Because the factual record is insufficiently developed, we VACATE the district court’s dismissal and REMAND for further proceedings.
Law - "Internet's Ubiquity Multiplies Venues To Try Web Crimes" [Updated]
The Wall Street Journal has an article today by Laurie P. Cohen, who has written a number of comprehensive pieces on federal sentencing issues, on venue in cases involving internet crimes. The article is not yet available to nonsubscribers, but I will post the link if it becomes available.
[Updated 2/14/07] Here is a link to the article. Here is a quote:
Unlike many crimes with relatively limited geographic scope, Internet abuses cross every border, giving the government enormous leeway these days to pick jurisdictions where it brings cases. The Sixth Amendment of the U.S. Constitution holds that federal criminal cases should be tried in the state and district in which an offense was committed. And venues count: Pittsburgh and St. Louis, for example, are viewed by lawyers as much more legally conservative than, say, Boston and San Francisco.
To some critics, the process smacks of "forum shopping," a once-common practice by plaintiffs' attorneys seeking the most hospitable venues to bring civil suits.
"The big concern is that the government can pick a jurisdiction where the jury will be most sympathetic," says Orin Kerr, a computer-crime expert at George Washington University's law school. Because the Internet is everywhere, he says, "federal law allows the government to pick whatever jurisdiction it wants in an Internet crime case."
Ind. Law - Some articles in latest issue of Res Gestae
The latest issue of Res Gestae, the journal of the ISBA, from Jan/Feb 2007, contains my "Year in Review via the Indiana Law Blog," which presents an overview of the year 2006 in Indiana law. See this Dec. 31, 2006 ILB entry for more.
Also this month, is an excellent article by Donald R. Lundberg, titled "Mining for Metadata: Ethics Questions Surrounding Inadvertently Sent Embedded Data." I liked it so much I've received permission to post it -- here it is.
I've recently run into two metadata issues. One involves a state agency using the possibility of the existence of metadata as a reason to resist providing digital copies of public documents. The other involved a concern from a federal court that metadata from a document was showing up online, even though the opinion involved was one the court had converted to pdf format itself - that one has been resolved.
Courts - More on: Motion to reconsider filed by both sides re local Louisiana school board prayer decision by the 5th Circuit
Updating this ILB entry from January 20th on the three-year legal battle over prayers at Tangipahoa Parish School Board meetings, where both sides had asked the 5th U.S. Circuit Court of Appeals to reconsider its divided decision, the Advocate of Baton Rouge reported Sunday:
DENHAM SPRINGS — Judges of the 5th U.S. Circuit Court of Appeals will rehear arguments on whether prayers that open School Board meetings in Tangipahoa Parish are constitutional, a court order said Friday.
Both the School Board and the American Civil Liberties Union, which is representing the parent and public school children who sued over the board practice in October 2003, sought the rehearing en banc, or before the full court.
An order filed Friday in the New Orleans-based appeals court said a majority of justices polled voted in favor of granting the rehearing en banc.
Both sides in the litigation must file briefs, and oral arguments are scheduled for the week of May 21, a cover letter with the order says.
Neither side was satisfied with Dec. 15 decision from a three-judge panel of the court and filed motions seeking a rehearing.
The split decision left open the possibility for non-sectarian prayer but didn’t deliver the definitive call over which Supreme Court precedent should hold sway. The order on Friday vacated that decision.
“We’re pleased that the court is going to grant the rehearing, and we’re optimistic they will agree, (that) the full panel will take look at the jurisprudence and agree with us,” Joe Cook, executive director of the ACLU’s Louisiana chapter, said Saturday.
The American Civil Liberties Union is pressing for a legal standard that would bar all prayers at meetings to ensure that a school system doesn’t advance or inhibit religion.
The School Board is pushing for a different precedent that would treat the board under a exemption now reserved for Congress and legislatures, allowing sectarian prayers as long as they don’t advance religion.
“I think both sides would like some clarification on what course of conduct in the future is appropriate and is not,” School Board attorney Kirk Gasperecz said Saturday.
“I’m not sure the parties got the guidelines they hoped for in the original decision.”
Sunday, February 11, 2007
Ind. Courts - "I spent years trying to turn myself in"
"I spent years trying to turn myself in: Arrest warrant misplaced, so police in three states ignore confession" is the headline to a lengthy story today in the Fort Wayne Journal Gazette by Dionne Waugh. Here is a quote from the story:
[Joseph L. Squires], now 24, said he tried for years to take responsibility for his actions that August day, which he said were caused by drug and alcohol abuse. He wanted to be arrested. He contacted law enforcement offices in Allen County repeatedly, he said, to confess and face his punishment but was told there was no warrant for his arrest.
It wasn’t until about two weeks ago that Allen County prosecutors finally charged Squires with robbery and auto theft.
The reason, Allen County Prosecutor Karen Richards said, is because the original arrest warrant information never made it from the prosecutor’s office to the warrants division of the Allen County Sheriff’s Department. She said her office filed paperwork in the clerk’s office May 14, 2004.
“Somehow it never ended up where it was supposed to,” she said. “We just assumed they’d continued to look for him and hadn’t found him. We had no idea it didn’t get to the warrants office.”
Squires, who was released on bond last week after being arraigned on the charges, said he’d been consumed with guilt for years.
Ind. Law - Circuit and Court of Appeals judges give opinions on sheriff's statutory obligations
The South Bend Tribune has a story today on what a county is statutorily obligated to do, in light of a reduction in the county budget. The story is reported by James Wensits, Jamie Loo, and Sue Lowe:
"We may have to look at what we're statutorily obligated to do, and what we're not," county Auditor Michael C. Eby said.The report then examines what state law says about the sheriff's role:
That could mean an end to county police road patrols, according to the auditor, who points out that criminal justice/public safety costs comprise about 75 percent of the overall county budget.
The sheriff's statutory obligations, Eby believes, are limited to operating the jail and providing security and other services for county courts.
But Sheriff Frank Canarecci disagrees, particularly with the suggestion that he may have to end road patrols. "I don't see that as an option," Canarecci said.
According to the sheriff, his statutory obligations go beyond taking care of the courts and the jail and include "maintaining peace."
To do that, Canarecci said, he must maintain his road patrols. "Public safety is an essential service," the sheriff said.
According to Chapter 36 of the Indiana Code, which addresses local governments, a county is required to have a sheriff but doesn't specifically include county police officers.
The county is required to pay a sheriff's salary, maintain a vehicle for transporting prisoners and pay for meals and for health care for prisoners without insurance.
Although deputies and officers are mentioned several times in Chapter 36, the wording of the law doesn't quite require a department to be established under the sheriff.
But it isn't just the sheriff and county officials who disagree as to the statutorily required nature of the law officer's duties.
Circuit Court Judge Michael Gotsch said the traditional interpretation of state law has always been that the sheriff has the duty to provide housing of prisoners along with court services and security.
Without looking it up, Indiana Court of Appeals Judge Michael P. Barnes initially agreed with Gotsch, saying, "I don't think there's any statutory requirement for the sheriff to provide patrols."
But at the request of a Tribune reporter last week, Barnes dug a little more deeply into Indiana Code and came up with a different view.
As listed, he said, the sheriff's duties include "suppress breaches of the peace," "calling the power of the county to the sheriff's aid if necessary" and "pursue and jail felons" in addition to taking care of the jail and tending to and preserving order in county courts.
"I suspect that the sheriff could make a case that to pursue and jail all felons and to suppress breaches of the peace, calling the power of the county to the sheriff's aid, if necessary, means that he should patrol and arrest without process persons who commit an offense within his view," Barnes said.
Should the issue become a legal one, Barnes cited a section of Indiana Code, 36-2-13-5, that he believes covers the situation. "I think that's where the argument is going to be made," Barnes said.
Law - Still more on the Kentucky Fen-Phen story
The ILB has had a number of entries on the Kentucky fen-phen scandal - see the list here.
Today Andrew Wolfson of the Louisville Courier Journal has a long story that begins:
The attorneys accused of misappropriating more than $64 million from Kentucky's fen-phen settlement initially withheld another $27.7 million, which they turned over to their clients only after the Kentucky Bar Association began investigating the case, newly filed court records show.
The additional payments also came after one of the lawyers -- Melbourne Mills Jr. -- discovered in January 2002 that the settlement was for $50 million more than the other two lawyers, William Gallion and Shirley Cunningham Jr., had told him, according to the records.
Ind. Courts - Time flies on the bench, according to new Elkhart judge
Rod Rowe of the Goshen News writes today:
There have been minor changes and upgrades, but 2006 was a fast year for one of Elkhart County’s newest judges.
Elkhart Superior Court 1 Judge Evan Roberts, Nappanee, commented on his first year on the bench after a recent afternoon of criminal hearings in the Elkhart County Courts Building.
“It’s unbelievable. It has gone by amazingly fast,” he said of his first year. “I am still totally honored every day to come to this job. It is a privilege and honor to be here.”
Judge Roberts, who has practiced law 17 years, was named by Gov. Mitch Daniels 14 months ago to fill out the unexpired term of Judge Ben Pfaff, after he was removed from the bench. * * *
The schedule calls for divorce cases to be heard in Superior Court 1 on Monday mornings and criminal cases in the afternoon. And in nearby Superior Court 2, Judge Steve Bowers handles criminal cases in the morning and divorce cases in the afternoon.
The system was inherited by Judges Roberts and Bowers, as it was set up by their predecessors.
“We’ve made progress here,” Roberts explained this week. A new digital recording backup system was installed in Superior Courts 1 and 5 and in the magistrate’s courtroom, he explained, at a cost of $47,000.
Superior Court 1 was repainted and 30-year-old furniture was replaced, he said.
And the lawyer’s lounge in the courts building was upgraded with new furnishings, two computers and a printer for use by lawyers. Roberts said five attorneys helped paint the room, too.
The judge explained he hopes attorneys spend more time in the room, and eventually work on cases as they spend time there. He cited the work that is accomplished by attorneys who visit the bailiff’s office/lawyers’ lounge in the Goshen courthouse.
Ind. Law - Last Week in Review at the Indiana General Assembly
Here is the Evansville Courier & Press' Bryan Corbin's review of the past week in the General Assembly. Some quotes:
- A bill that would encourage parents to have their middle school-aged daughters vaccinated for the human papilloma virus is moving through the Senate. A group of six female Republican senators is advocating for Senate Bill 327, which encourages but does not mandate that girls ages 11 and 12 receive the immunization, which can prevent cervical cancer. Attempts to change the bill's wording failed in the Senate on Thursday. Now it's eligible for a third-reading vote by the entire Senate. * * *
Here are some issues on the agenda during the coming week at the Legislature:
- Senate Bill 1, the governor's plan to fund Interstate 69 construction through Southwest Indiana using proceeds from two privatized toll roads, could be voted on in the state Senate as early as Monday. The bill would give the governor and INDOT the tolling authority for the two proposed new toll roads, the Illiana Expressway in northwest Indiana and the Commerce Connector around the Indianapolis suburbs. On Thursday, the Senate defeated an attempt to separate the two projects, 29-19. It is now eligible for a conclusive third-reading vote; if it passes there, Senate Bill 1 would go to the House.
- A proposed amendment to the state constitution, to legally define marriage as between a man and a woman, also is eligible for a third-reading vote in the Senate. After a lengthy debate Thursday, senators voted down attempts to change the wording of the amendment, SJR 7.
It passed the Legislature once before, in 2005, but to be ratified it must pass again in identical form. Then it would go before the voters in a November 2008 referendum.
Law - Yet more on: Indiana lags behind Texas in protecting its girls
What utter, and potentially tragic, silliness. Legislation that would save the lives of Hoosier girls and women by including a cancer prevention drug among required school vaccinations has been reduced to, essentially, sending a note home from school.The Lafayette Journal and Courier has an editorial today that seems pretty unclear about its position, but nonetheless recommends leaving the decision up to families. It concludes:
Originally, the Indiana Senate measure would have required the vaccination of most sixth-grade girls against sexually transmitted disease that can cause cervical cancer.
The drug Gardasil, approved by the federal government in June, protects girls and women against the human papillomavirus, or HPV, a sexually transmitted disease that can cause cervical cancer.
So let's be absolutely clear here: It prevents cancer. It can save the lives of Hoosier girls and women. And, yes, it can save the high medical cost of treating cancer, through prevention.
And yet the best the Legislature can do now is consider a watered-down proposal requiring that information about the link between HPV and cervical cancer, and about the availability of the new vaccine, be provided to parents.
This comes at a time when at least 18 states are discussing whether to require the vaccination. In Texas, Gov. Rick Perry is using an executive order to bypass the legislature and mandate that schoolgirls receive the vaccine.
So what's the problem?
Some who are opposed say this is a decision for parents - whether or not to have their daughters vaccinated - and not the government.
True, that's why the legislation, before it was amended, would have allowed parents to opt their daughters out of the requirement, with no penalty.
Others say it promotes sexual promiscuity. To that, we prefer the response of Indiana health commissioner Judy Monroe, included in an Associated Press story: "There's no evidence that seat belts have increased reckless driving. There is no evidence that when we get tetanus shots, we seek rusty nails."
And some others apparently have a problem with the drug company, Merck and Co., that developed the vaccine. According to the AP, Merck has pushed efforts to persuade state legislatures to mandate the vaccine and has worked closely with Women in Government, a group of female state lawmakers from around the country. Some say that relationship is too close for comfort.
What this particular aspect of the discussion loses sight of is that the company created a drug to fight a form of cancer. How wonderful is that?
As Senate President Pro Tem David Long, R-Fort Wayne, said, "It's a vaccine against cancer. People need to focus on that and not worry about who manufactures it or who provides it. Every vaccine in this country and in the world is produced by a drug company. It's just an attempt to distract the discussion."
But the best Indiana can do is consider a bill to provide information to parents. The school principal or the school nurse could do that without a law.
"It's the first vaccine we've ever had that prevents cancer," said Frankfort physician Dr. Stephen Tharp, who heads the Indiana Cancer Consortium. "This is an opportunity to save lives."The ILB thinks that the editorial's statement about the polio vaccine may be misleading, and has located some relevant materials, including: An Op Ed piece from the Jan. 25, 2007 NY Times, titled "For the Good of the Herd." The writer, Arthur Allen, is the author of “Vaccine: The Controversial Story of Medicine’s Greatest Lifesaver.” His book is reviewed here, in the Feb. 4, 2007 NY Times Book Review, in a review written by David Oshinsky, who "holds the Jack S. Blanton chair in history at the University of Texas at Austin. His most recent book, “Polio: An American Story,” won the Pulitzer Prize for history." Oshinsky is interviewed here, on the PBS News Hour, on April 12, 2005.
The vaccine can be administered to healthy girls and women ages 9 to 26. Experts advise giving it to girls or women before they become sexually active.
While such a vaccine should be soothing to parents, it could create difficult conversations with pre-teen daughters. Some opponents of the vaccine say that it gives a green light to premarital sex.
Common modern-day vaccines have proven effective against other diseases that often came with a death sentence.
But even the polio vaccine, created by Jonas Salk and licensed in 1955, was not immediately required by any state. And at that time, pretty much the entire country viewed polio as a menace to be battled together.
In time, Gardasil and other vaccines may have a similar impact against cervical cancer. We encourage parents to protect their young girls against what could be a terrifying and painful disease.
After all, the most important job for parents is keeping their children safe and healthy.
An editorial that made a lot of sense to me today is in the Washington Post. It is titled "Profit and Public Health: A useful vaccine, and a tone-deaf lobbying campaign on its behalf." A quote: "There is, though, something unseemly about a company that stands to make billions of dollars driving a debate that already is sensitive because it involves young girls, sex and parental rights. Merck's commercial interests unnecessarily muddy the waters and give critics ammunition with which to attack worthwhile legislation. * * * The best move Merck can now make is to back off. * * * Merck's help needlessly clouds the issue."
For more, see this Feb. 7th ILB entry.
Saturday, February 10, 2007
Ind. Courts: More on "Montgomery County judges issue mandate for staff raises" [Updated]
The Paper of Montgomery County's web site has a new report by Barry Lewis on the status of its judicial mandate case:
The judges salary mandate case between the three judges and the Montgomery County Council is within two weeks of going to the Indiana Supreme Court for some type of action.See this Jan. 6 ILB entry for more information. See also this ILB report from yesterday on legislation on mandates pending before the Indiana Senate.
The judges' attorneys, Kreig DeVault, filed their brief to the Supreme Court this week and now the Council's attorneys, Kincaid, Taylor, Sims, Chadd & Minnette, will have 15 days to submit a rebuttal. Following that, the case rests in the hands of the state's highest court. The Supreme Court then will decide what will happen next. The next step could be court-ordered mediation, a judgment or a hearing.
The case was originally heard in Montgomery County Circuit Court with Special Judge Julian L. Ridlen presiding. After the two day trial in July, Ridlen came back and found in favor of the judges on Sept.21, 2006. Ridlen ordered the county to increase salaries for court employees and to pay for the judges' legal fees. The mandate was originally issued Aug. 22, 2005.
On Oct. 25, 2006, Ridlen's findings were certified and sent to the Indiana Supreme Court.
Attorney Dan Taylor filed the County Council's brief with the Supreme Court on Jan. 4, 2007.
The mandate ordered increases for all nine court employees. The mandate is seeking pay increases of $31,200 for court reporters (up from $23,638), $31,200 for administrative assistants (up from $21,068) and $27,200 for secretaries and bailiffs (up from $19,142).
Should Ridlen's ruling stand, the county would be looking at a little more than $170,000 in back pay since the judges argued the mandate was retroactive to the date it was filed (Aug. 16, 2005) and would also face having to pay combined legal fees which are well above $100,000.
[Updated 6:00 p.m.] The Paper has another story today, again by Barry Lewis:
Two adversaries in the local judges mandate case were on opposite sides once again, but this time it was at the Indiana Statehouse.As reported in the Crawfordsville Journal-Review:
A bill authored by freshman Sen. Phil Boots (R-Crawfordsville) was heard in the Judiciary Committee Wednesday. The bill stemmed from the judges' mandate cases. The bill states that if a county challenges a judges' mandate on funds, then the judges would be represented by the State Attorney General. Although the Attorney General would have fees, they would be a lot less than private practice attorneys.
"Judges are state employees and it only makes sense that that be represented by the State Attorney General," Boots said. "There would still be fees involved, but not the outrageous rates that some of the private attorneys are charging."
Boots originally authored a bill calling for the elimination of mandates altogether, but that bill will not be heard this year in committee. This amended bill is an amount to get something on the books to help counties when battling the judges in these type of cases.
Judge Thomas Milligan was in attendance and testified in front of the committee.
"The people from the Judicial Center in Indianapolis suggested that I attend and be in attendance for questions and I actually testified to the bill," he said. "Basically, I talked about how we didn't think it was right to limit our freedom and not be allowed to hire private attorneys. I also talked about the separation of powers between the legislative and judicial bodies."
The committee passed the bill by a 5-2 vote and it will now head to the Senate Floor for a second recording. It would need to pass a third reading before heading to the House of Representatives.
"It didn't really surprise me that it passed," Milligan said. "After both sides gave their testimony the committee members discussed it and the general tone seemed to be they weren't sure if this was the right answer, but they were willing to keep it alive to see what could be worked out."
On August 16, 2005, Montgomery County Judges Thomas Milligan of Circuit Court, Judge David Ault of Superior Court, and Judge Peggy Lohorn of Superior Court II, issued a mandate order requiring the Montgomery County Council to increase the salaries for the Montgomery County Court personnel. The judges issued an amended order for mandate of funds on August 22, 2005.
Ind. Courts - Cass County looking for interior photos of Courthouse [Corrected]
"County officials are seeking old photos of the interior of the building for restoration efforts" is the caption to an exterior Courthouse photo in this story in the South Bend Tribune by Barbara Dempsey. Some quotes:
Exterior photos of the building are abundant but those of the interior are another matter and [Cass County Administrator Terry Proctor] has no idea if any can be found.My thought. If that fails, photos from other Indiana courthouses from the same period might be helpful.
"We have none," he said this week, after meeting with architects doing a feasibility study on the facility's possible reuse.
"Its history is important to all of us and anytime we bump into old photographs, it is helpful," he said.
So he is asking anyone who might have such vintage photographs to step forward.
It might be a photo of someone's ancestors after their wedding. Maybe the photo was taken in the clerk's office. Maybe it was taken in a hall.
Other photos might be of a group of men meeting in the judge's chambers, or county employees at their desks. Such photos often can reveal the décor of office furnishings in the background.
"We don't know what the decorations were or what the furniture was," Proctor said.
"It would be nice to find something to see what the tables and chairs looked like," he said.
Proctor said county government does have a couple of old tables from the building but he doesn't know if they were judge's benches or prosecutors' tables, and he'd like to see them in an old picture.
It's also possible, he said, that copies could be made and the photographs framed for wall art in the building.
In a related story, WTHD reports that the LaGrange County’s Circuit Courtroom has been restored to much of its original condition, including the painted ceiling murals. Chief Justice Shepard was be the featured speaker at the rededication, set for Feb. 23rd.
[Correction 2/12/07] A reader has sent in this necessary correction:
Just thought you’d want to know: the article to which this post refers must be talking about Cass County, Michigan. Cass County, Indiana demolished the old courthouse in the 1970s and has a modern, office building thing. http://www.cqc.com/~ccfsupc/index.html
Ind. Gov't. - More on: "State Web site breached: 5,600 notified hacker saw their credit-card numbers"
Updating yesterday's ILB entry, Niki Kelly of the Fort Wayne Journal Gazette reports today:
State technology officials sent letters Friday to 5,600 people and businesses informing them that a hacker obtained thousands of credit card numbers from the state Web site.Yesterday the ILB pointed to deficiencies in the current Indiana law. One missing provision that would have been very helpful to those affected by the State of Indiana's error would have been a law allowing consumers to freeze access to their credit files to prevent crooks from opening fraudulent accounts using stolen information. See this story from Bankrate.com that begins:
Although numbers are usually encrypted or shortened to the last four digits, the Office of Technology conceded a technical error allowed the full credit card numbers to remain on the system and be viewed by the intruder. * * *
Chris Cotterill, director of the site, www.IN.gov, said the hacking occurred in early January but wasn’t discovered until Jan. 25.
The next week was spent undergoing an outside audit, which revealed the credit card numbers had been compromised. That news came 10 minutes into the Super Bowl on Sunday.
“It was one thing that the hacker got in and another that they were able to access the info because of our technical mistake,” Cotterill said Friday, noting that no disciplinary action has yet been taken.
“Our sole focus right now is the people who have been affected,” he said.
The state has already notified the Secret Service and the credit card companies of those cards that were viewed. Each account has been placed on a watch list to track potential fraudulent activity. None has been apparent so far.
All three consumer reporting agencies have been contacted, and the affected cardholders were asked to review their credit card statements since Jan. 1.
“We had planned for this but didn’t expect it,” Cotterill said. “This has caused a top-to-bottom review of all Web activity.”
He said the state Web site offers more than 300 online services and has been conducting online transactions for about a decade. Some examples include renewing a professional license, reserving a campsite, getting a crash report from the Indiana State Police and receiving business information from the secretary of state’s office.
The letter was sent from “the IN.gov Team” and did not include the name of the person in charge – something Cotterill said he now regrets.
He said he signed his name to the first draft but was advised by staffers that Hoosiers receiving the letter could use his name to find his phone number and harass his family.
“I will say on the record that the buck stops with me, and I am deeply apologetic,” Cotterill said.
The state has set up a hotline for those affected to ask questions from 10 a.m. to 8 p.m. on Saturday and Sunday and 8 a.m. to 10 p.m. during the week. That number is 1-888-438-8397. E-mails can also be sent to securityconcerns@www.IN.gov.
Since 2003 all California residents have had the right to freeze their credit reports, prohibiting credit from being issued in their names. This was a first in the United States. Now, more states offer their residents the same rights: New Jersey, Louisiana, Texas, Vermont, Washington, Nevada, Connecticut, Illinois, Maine, North Carolina and Colorado. However, Texas, Vermont, Illinois and Washington limit this opportunity to those who have been the victim of identity theft or a security breach. [ILB: Notice that Indiana does not appear under either category.]Here is a 12/23/06 story from the Milwaukee Journal Sentinel that begins:
Anyone can ask the three major credit reporting agencies to place a fraud alert on their credit reports. Fraud alerts are supposed to alert you when someone applies for credit in your name and signals creditors to contact you for permission to issue credit in your name. Residents of any state can put a fraud alert on their reports. Creditors, however, aren't required to abide by or even check the alert.
A credit freeze goes a step further. With a credit freeze, no one can open any form of credit in your name. Your credit file is off limits to potential lenders, insurers and even potential employers. Here's how it works.
When you apply for a loan, credit card or cell phone, the company issuing credit contacts one of the three credit reporting agencies and requests to see your credit file. If you have a freeze on your account, the company will be told that it cannot see your credit file because your account is frozen. At this point, most companies would not allow the loan, issue the credit card or activate the cell phone.
But this does not mean that you won't be able to get credit for yourself or allow potential employers to run a background check. The three credit bureaus assign a personal identification number for you when you freeze your report. Using this PIN, you can lift the freeze when necessary.
With a credit lock-down, a criminal can have your name, birthday and Social Security number -- but it won't matter. No credit will be issued.
Wisconsin consumers will have a new tool for fending off identity theft starting Jan. 1: "freezing" their credit report.According to this story from WMAQ-TV in Chicago, "Twenty states, including Illinois, give consumers the right to put a security freeze on their credit reports. A similar bill has been introduced in Indiana."
A security freeze, which prevents the release of information from a person's credit report, should deter fraud such as the unauthorized opening of new credit card accounts, supporters of the measure say.
New credit usually isn't granted unless the creditor can review the file to check on an applicant's creditworthiness. The freeze blocks credit checks, which is likely to thwart attempts by an information thief to open up new accounts in someone else's name.
Consumer advocates contend a security freeze is better than credit monitoring, a pay service that alerts customers to any critical changes to the credit report and allows them to look at their report any time.
"Credit monitoring is like putting a sign on your front door that says, 'Please don't break in.' But the security freeze is a deadbolt on the door," said Gail Hillebrand, senior attorney for the Financial Services Campaign of Consumers Union.
Friday, February 09, 2007
Ind. Courts - Reports on bills of interest to the Judiciary discussed this week
The Indiana Judicial Center has posted its reports on bills of interest to the Judiciary discussed this week. Access them here.
Included was this review of the Senate committee hearing on SB 279:
The Senate Judiciary Committee heard SB 279, dealing with the representation of judges in mandate litigation. This bill was authored by Sen. Boots, a former county councilmember in Montgomery County, where a mandate action is still pending. The bill would require the Attorney General to represent judges in judicial mandate cases, and the proponents of the bill testified that this would protect counties from unchecked attorney fees incurred by judges in these cases. There was also discussion about the use of these fees as an intimidation tactic. Judge Milligan, Montgomery Circuit Court, Judge Tom Felts, IJA Vice-President, and Court of Appeals Judge Paul Mathias, all testified in opposition to the bill stressing concerns about the independence of the judiciary and highlighting that there should be an even playing field in terms of fees and representation in these cases. Judges Mathias and Felts testified that if there is a problem, it should be dealt with through an amendment to T.R. 60.5. After much discussion, the bill passed out of the committee by a vote of 6-2; however, the majority of the members stated they were voting the bill out in order to keep the issue on the front burner while allowing the Court time to consider alternative solutions.See also this ILB entry from January 18th.
Ind. Gov't. - "State Web site breached: 5,600 notified hacker saw their credit-card numbers"
The Fort Wayne Journal Gazette, among others, is reporting that:
Indiana's state government Web site has been broken into, and the hacker saw credit-card information for about 5,600 people and businesses, the state Office of Technology said today.Taking Down Words has posted the actual advisory sent out by the State, access it here.
The state has mailed letters to those people and businesses explaining what happened and what may happen next.
"(T)he State has implemented the highest levels of security and submitted itself to regular independent audits to ensure that data is safeguarded," the letter said. "Despite these efforts, the State's Web site recently experienced a security breach during which some credit card numbers were obtained without authorization." Because of technical errors, the letter said, those numbers were not encrypted, or scrambled, were not removed from the state's computer systems, and the hacker viewed the unencrypted numbers. It says it has fixed the errors and has taken additional measures to ensure security is as strong as possible.
The state recommends that people receiving the letters review credit-card statements since Jan. 1 and immediately report any questionable or unusual activity to card companies.
They are asked to call the site's security hotline at 888-438-8397 if they need additional information, or e-mail securityconcerns@www.IN.gov.
This chapter does not apply to the following:SECTION 6 added a new Article 24-4.9, Disclosure of Security Breach. It begins with the same exemptions.
(1) The executive, judicial, or legislative department of state government or any political subdivision.
Despite the exemption from the law, the State has sent out notices to those impacted. One wonders why last year's General Assembly thought the state and local government should not be held to the same standard as others.
Especially since the Indiana law does not do much, other than require the notice the State has sent out. The ILB posted serious criticisms of this new law on March 11, 2006. Access them here. The commentary ended:
Finally, and most importantly, HEA 1101's new IC 24-4.9 offers no remedies to those consumers whose security has been breached, other than requiring that they be notified of the breach. What of the remedies that would pause or help repair the damage the breach has caused -- the remedies of security freezes, credit monitoring and credit repair set forth in Professor Ramasastry's article?For more, see not only the article by Anita Ramasastry, Associate Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology, titled "Data Insecurity: What Remedy Should Consumers Have When Companies Do Not Keep Their Data Safe?" referenced above, but also this article, "The Clean Credit and Identity Theft Protection Act: Model State Laws," which proposes a comprehensive model act addressing:
Short of that, the biggest question here is: Is the new IC 24-4.9 now to be the exclusive remedy available to Indiana residents for these security breaches resulting in disclosure of their information? Or can consumers whose records have been released bring suit for negligence and ask for damages, costs, security freezes, and credit monitoring or credit repair? Will the companies whose negligence resulted in the disclosure be able to claim compliance with the minimal notification requirements of the new law as a defense?
- Security Freeze;
- Protection for Credit Header Information;
- Right to File a Police Report Regarding Identity Theft;
- Factual Declaration of Innocence After Identity Theft;
- Consumer-Driven Credit Monitoring;
- Prevention of and Protection From Security Breaches;
- Social Security Number Protection;
- Banning Credit Scoring and Insurance Scoring for Use in Insurance Decisions;
- Adequate Destruction of Personal Records; and
- Severability Clause.
Ind. Decisions - Transfer list for week ending February 9, 2007
The Supreme Court did not have conference this week; therefore, there is no transfer list for the week ending Feb. 9, 2007.
Ind. Decisions - Court of Appeals issues 2 today (and 3 NFP)
For publication opinions today (2):
John McGuire a/k/a Jack McGuire and Ruth McGuire v. Century Surety Company - "We cannot say the trial court abused its discretion in denying the McGuires’ motion for an extension of time to respond to Century’s summary judgment motion. We also conclude that the McGuires’ bankruptcy filing did not stay further action on their third-party complaint and that the trial court properly granted summary judgment in Century’s favor. We affirm."
John Dugan v. State of Indiana - "We recognize and give credit to the trial court’s efforts in this case to assure that the law was followed and that Dugan was not prejudiced. The trial court was not required to bifurcate the proceedings, and it declined to do so. However, the trial court ordered that the State limit its use of the “serious violent felon” language, even during voir dire, in order to offset any prejudice to Dugan. See, e.g., Williams v. State, 834 N.E.2d 225, 228 (Ind. Ct. App. 2005) (held that trial court “circumvented legitimate concerns regarding fairness by avoiding reference to Williams as a “serious violent felon”” until his guilt or innocence on underlying offense was determined). For the foregoing reasons, we affirm Dugan’s conviction for illegal possession of a firearm by a serious violent felon. Affirmed."
NFP criminal opinions today (2):
Kevin Clopton v. State of Indiana (NFP)
Jason Schapker v. State of Indiana (NFP)
Ind. Law - Yet another paper editorializes against SJR 7
The Indiana Senate Judiciary Committee has voted to advance a constitutional amendment that would ban same-sex marriage in the state. Committee members would have served their constituents better by addressing serious concerns about the proposal. They should have considered, too, the consequences of a similar constitutional mandate in neighboring Michigan.The Tribune also has this story today by Jondi Schmitt on the second reading debate yesterday on SJR 1. Some quotes:
Indiana Sen. John Broden, D-South Bend, tried during the Jan. 31 hearing (as he also had in 2005 when the Senate first voted for the amendment) to get some tough questions answered. Broden's worries were waved off and Senate Joint Resolution 7 in support of the proposed amendment passed along party lines.
In Michigan, the state Constitution's gay marriage ban has been hurtful, unnecessary and divisive. Last week, the Michigan Court of Appeals reversed a 2005 decision by an Ingham County Circuit Court judge by concluding that the amendment prohibits public employers -- which include school districts and state universities -- from recognizing same-sex unions for any purpose. That is, the Constitution bans them from providing health insurance to same-sex domestic partners. The decision is expected to be appealed to the Michigan Supreme Court.
Indiana state government now extends employment benefits to same-sex couples by executive order, as it has through the administrations of several governors. State universities do likewise. Broden expressed worries that the amendment will tie the hands of future General Assemblies by not allowing them to adopt legislation regarding civil unions, and that it will interfere with domestic partner benefits. Broden's concern two years ago -- that the language is vague and potentially fraught with undesired consequences -- has yet to be sufficiently addressed.
One could argue that the answer is to amend the amendment in order to eliminate the vagueness. A better answer is to vote down the SJR7. It isn't needed. State law already bans same-sex marriage and has been affirmed by the state Court of Appeals.
Legislators should be very reluctant to carve new legislative and policy restrictions into the Indiana Constitution, where they will remain forever, regardless of their consequences.
Debate grew passionate and "personal" Thursday when the Indiana Senate discussed a proposed amendment to the Indiana Constitution to define marriage as between one woman and one man.
Sen. Anita Bowser, D-Michigan City, said the amendment is in direct violation of the State Constitution, calling attention to the Privileges and Amenities Clause.
"It says, in effect, the General Assembly will not lend any citizen, or class of citizens, privileges or amenities which upon the same terms shall not equally belong to all citizens," she said. "This is a very precious clause in our state constitution and it hurts me greatly to see it just likely ignored."
Bowser said the amendment was a "piece of trash."
"Who next is going to be on your hatred list?" she asked. "Hispanics? Immigrants? Because there is a waning of this particular issue throughout the United States when people realize how ridiculous it is." * * *
During its committee hearing last week, Sen. Tim Lanane, D-Anderson, tried to amend the resolution to exclude subsection B, which some Democrats say is too broad and is too open to interpretation. * * *
Lanane's amendment was defeated in committee, but that was not the end of it.
Sen. John Broden, D-South Bend, proposed the amendment on the Senate Floor. He asked the Senate to strike subsection B from the amendment before passing it on to the House.
"I strongly fear, and many others who are respected legal scholars would concur, that Subsection B would do more than just ban gay marriage," Broden said. "It would actually ban public universities, and public actors paying domestic partnership benefits from offering that benefit to both heterosexual and same-sex partners. It would also have a significant impact on our present domestic violence laws, which are some of the most respected laws in the nation."
Ind. Courts - Three St. Joe County judges write on legislative proposal to make changes in county judiciary
The South Bend Tribune today has a very long opinion piece signed by: Michael G. Gotsch, the St. Joseph Circuit Court judge; Peter J. Nemeth, the St. Joseph Probate judge; and John Marnocha, the chief judge of the St. Joseph Superior Court. Some quotes:
Recently, a bill was introduced in the Indiana General Assembly to remove the juvenile cases from the Probate Court and assign them to the Circuit Court, elect the judges of the Superior Court and appoint the judge of Circuit Court as the chief judge of the Superior Court. Although introduced with the intention of reforming the local court system, we believe the HB 1571 will have far-reaching and unfortunate consequences. * * *The ILB has posted two previous entires on HB 1571, on Jan. 24th and Jan. 25th.
In an editorial on Jan. 31, The Tribune Editorial Board indicated that it opposes the current version of the bill. We agree -- any reforms to the local court system should occur only after consultation with the local judiciary and a comprehensive study by the Commission on Courts. We encourage anyone who favors an impartial and independent judiciary to oppose HB 1571.
At that time, HB 1571 was not available online. It is now available. A check shows that the Speaker of the House, B. Patrick Bauer, also from South Bend, referred it to the Committee on Rules and Legislative Procedures. Such an assignment often means the bill is DOA, or at least will merit a special look.
Ind. Law - Still more on "Dispute raises concern about new state law"
Updating the ILB entries from Feb. 4th and 7th about an unidentified (by the NWI Times) "new state law that gives landowners more strength to challenge government actions involving their property", and its impact on a zoning dispute in Porter County, Vicki Urbanik of the Chesterton Tribune has a story that reports:
The state law that prompted Tuesday’s decision, I.C. 36-7-4-1109 [SEA 135 from the 2006 session (P.L. 49-2006)], was passed in last year’s session of the Indiana Legislature. Rinkenberger said although the language is highly convoluted, her interpretation is that once a property owner files an application for a particular use -- such as primary plat for a subdivision or a building permit -- the zoning in effect at that time applies, unless the government can prove that a rezone would not be detrimental to the property owner.
In this particular case, the Porter County Plan Commission filed a petition to rezone the I-2 land in August. In October, the Buchers’ DBL Development filed a petition for a primary plat for a light industrial park on the property.
When the plan commission first discussed rezoning the land -- at the same meeting at which they approved a residential subdivision for the Buchers on the adjoining parcel -- it was noted that because the planners’ upcoming agendas were so full with new subdivsions, it would take several months before the plan commission could even hold a public hearing on the case.
Rinkenberger said that if the planners and the commissioners completed the process of rezoning before the primary plat was filed, then the state law in question would not have applied. But once the primary plat was filed, she said the rezoning petition should have been withdrawn because the land was still zoned I-2.
Rinkenberger said she wasn’t aware of the state law until just recently, after the commissioners voted 2-1 to rezone the land to residential, when the case went back to the plan commission. In two separate votes, the plan commission voted 5-4 to recommend against the rezoning.
Harper noted that the plan commission has won some favorable court rulings in lawsuits. But, citing the new state law, he also indicated that he felt this would be one case in which the county couldn’t win.
He said he’s disappointed that the legislators passed the bill last year, since the new law affects the ability of every plan commission in Indiana in its authority to rezone land and control growth.
He went on to note that the Bucher case has been called controversial, in part because those who oppose the rezoning have argued that when the Buchers bought the I-2 property, they had the expectation that they would be able to use the property as zoned.
But Harper turned the tables a bit and cited the residents now fighting the Illiana Expressway. He said if the expectation of zoning is the standard, then “what about the expectation of people in south Porter County” to expect to continue to live in a rural environment.
Cramming residential properties next to an industrial park isn’t everyone’s view of progress, he said.
“Progress to one man isn’t progress to another,” he said.
For her part, Knoblock said she has nothing against the Bucher family, but only felt the parcel should be rezoned residential because residential developments now surround the property on three sides. “I wouldn’t want to live there” with an industrial park next door.
With the zoning now settled, the plan commission is set to consider the primary plat for the industrial park at its Feb. 14 meeting.
Thursday, February 08, 2007
Law - Still more on: Indiana lags behind Texas in protecting its girls [Updated]
Yesterday the ILB referenced a Wall Street Journal article titled: "Moves to Vaccinate Girls For Cervical Cancer Draw Fire." The article is now available online. It does a good job of identifying all the issues presented by this proposal.
Senate leaders are pushing for a bill they hope will encourage sixth-grade girls to become vaccinated against a sexually transmitted disease that can cause cervical cancer - legislation they say is a good balance between parental rights and protecting women's health.Take a look at the latest information on the bill this afternoon -- seven 2nd reading amendments were filed, apparently one passed but simply added to the information to be sent home with the child.
The bill as drafted would simply give parents information about the link between human papillomavirus, or HPV, and cervical cancer, and would state that an HPV vaccine is available.
The original version of the legislation would have required most girls be vaccinated, although it included no penalties if they did not get the series of three shots. A Senate committee watered down that bill to help address concerns from some parents, who said such a requirement would interfere with the way they raise their children. * * *
Gardasil, made by Merck and approved by the federal government in June, protects girls and women against strains of HPV that are responsible for most cases of cervical cancer. A government advisory panel has recommended that all girls get the shots at 11 and 12, before they are likely to be sexually active.
At least 18 states are debating whether to require the vaccine. Republican Gov. Rick Perry recently used an executive order that bypassed the Legislature to make Texas the first state to mandate that schoolgirls get vaccinated against HPV. Some Texas lawmakers want to try to override the order.
Indiana Gov. Mitch Daniels said Thursday that he would not issue such an executive order. He questioned whether he has that power as governor, and said the issue should be left up to the General Assembly.
Senate President Pro Tem David Long, R-Fort Wayne, said the Senate bill puts the conversation about the vaccine where it belongs: between parents, their children and their family doctors.
"You've got a bill in place right now that protects parental rights while still providing information about the vaccine," he said.
For background, see this ILB entry from Feb. 2 quoting from reporter Martin's earlier story, and also quoting from a report of Gov. Perry's action in Texas.
[Updated 2/9/07] The Lafayette Journal & Jourier has this story today by Mary Beth Schneider of the Indianapolis Star. It begins:
Gov. Mitch Daniels said Thursday that he will not issue an executive order requiring schoolgirls to be vaccinated against the virus that causes cervical cancer.
Gov. Rick Perry of Texas became the first governor to take that step on Feb. 2. Daniels, though, said he would not follow suit.
"No. I'm not sure I have the authority or any governor should have the authority to issue such an order on his own in our state," Daniels said.
The issue is being debated in the legislature, and that, he said, is the proper forum.
A bill that would have required girls to be vaccinated against the human papillomavirus has been watered down in the Senate, and now only requires that information about the vaccine be sent home with girls entering the sixth grade.
The measure has the backing of all six Republican women in the Indiana Senate, and Thursday morning they joined Senate President Pro Tempore David Long, R-Fort Wayne, at a news conference to discuss the bill.
Law - More on: Federal judge rules on wine shipping into Kentucky [Updated]
In a Dec. 27, 2006 entry, the ILB quoted from an AP story that began:
LOUISVILLE - Out-of-state wineries can ship their wares into Kentucky, even if a customer buys the wines online or over the phone, a federal judge ruled Tuesday.Included in the entry is a link to the 36-page opinion in Cherry Hill Vineyards v. Hudgins.
The ruling by U.S. District Judge Charles R. Simpson III upholds a state law set to take effect in January, but eliminates the requirement that someone purchase the wine in person before it is shipped.
Today Alex Davis of the Louisville Courier Journal is reporting, in a story headlined "State drops out of wine suit," that the State will not appeal the ruling. The paper's "Quick Take" reads:
Last we knew: A judge ruled in December that a Kentucky law limiting shipments of wine from small out-of-state producers that was to take effect Jan. 1 was unconstitutional.From the story itself:
The latest: State regulators have dropped out of the case. Kentucky residents can place telephone or online orders for wine rather than having to order at wineries.
What's next: Out-of-state wineries making less than 50,000 gallons a year can apply for a license to ship to Kentucky. The state's 43 licensed wineries can start shipping.
The decision means that 43 licensed wineries in Kentucky are now able to ship wine to customers who place phone or online orders. Small wineries in other states will be eligible to do the same, but the state Office of Alcoholic Beverage Control hadn't received any applications for licenses as of yesterday.[Updated 2/18/07] See also this 2/5/07 article titled "Kentucky’s Legislature Cashes In - Will Kentucky’s Wineries Have to Cash Out?" from AppellationAmerica.com. [Thanks to Kentucky Law Blog.com for the link.]
To be considered for a shipping license, a winery must produce no more than 50,000 gallons of wine annually.
Kentucky's wine-shipping laws have been the target of a lawsuit since May 2005. The case was launched by the Huber Orchard and Winery in Clark County, Ind., although the most recent plaintiff was Oregon-based Cherry Hill Vineyards.
U.S. District Judge Charles R. Simpson III ruled in late December that a state law set to take effect Jan. 1 would be unconstitutional because it required a customer to visit a winery in person to order a shipment by mail. The theory was that Kentucky wineries would benefit unfairly from the in-person rule, because they are more accessible to the state's consumers than out-of-state operations. * * *
In a related matter, the plaintiffs' lawyers in the lawsuit are seeking $205,048 in attorney fees. A Jan. 24 request for the fees names both the state and the wholesalers, although Meyer said his group has no plans to cover any of the costs. The largest request came from James Tanford, a law professor at Indiana University in Bloomington seeking more than $80,000, including $400 an hour for legal work and $100 an hour for travel.
Tanford said there will be "a huge amount of room for judicial discretion" in the amount of fees actually awarded, partly because the court ruled for the state in some parts of the case.
Tanford has worked on wine-shipping suits in 16 other states, and he said the Kentucky case was the only one in which a state government hired outside legal counsel to assist with its defense.
Ploskonka said the private firms that helped the state have not yet made their requests for payment.
Ind. Decisions - Court of Appeals issues 2 today (and 1 NFP)
For publication opinions today (2):
American Fire & Casualty Co. v. Direction in Design, Inc., et al - "American Fire & Casualty Company (“American Fire”) appeals from the Hamilton Superior Court’s denial of partial summary judgment in a suit brought by Thomas and Christina Roller (“the Rollers”) against Direction in Design, Inc. (“DDI”). American Fire raises a single issue: whether the trial court erred in denying it partial summary judgment on the issue of whether coverage for claims for repair and replacement of faulty workmanship existed under the commercial general liability (“CGL”) policy it issued to DDI. Concluding that the trial court properly denied summary judgment, we affirm and remand for proceedings consistent with this opinion."
State of Indiana v. K.H. - "K.H. was adjudicated to be a delinquent child for committing two acts of child molesting, which would be Class C felonies if committed by an adult. K.H. was placed on the sex offender registry as a result of those acts. He later filed a petition to have his delinquency adjudication expunged and also requested removal from the sex offender registry. The trial court denied his request to expunge his record, but ordered K.H. removed from the sex offender registry. The State appeals and argues that K.H. waived this argument by agreeing to be placed on the sex offender registry during the delinquency proceedings. Concluding that K.H.’s removal from the sex offender registry was appropriate, we affirm."
NFP civil opinions today (0):
NFP criminal opinions today (1):
Christopher Haupt v. State of Indiana (NFP)
Ind. Law- Senate is urged to change annexation law
Lesley Stedman Weidenbener reports today in the Louisville Courier Journal on a Senate committee hearing yesterday. Here are some quotes from a long story:
Opponents of forced annexations told a Senate committee yesterday that state law makes it difficult and too expensive for most property owners to fight cities trying to expand their borders.The ILB has posted dozens of entries relating to annexation issues over the past few years, including the following:
Homeowners facing annexations by Jeffersonville, Carmel, Fishers and Muncie urged the committee to eliminate so-called involuntary annexations and put the burden on cities to convince a majority of homeowners to become residents.
But short of that change -- something the Indiana Association of Cities and Towns adamantly opposes -- more than a dozen people asked the senators to pass two bills before them:
Senate Bill 112, which would require a city to pay the attorney fees for homeowners who defeat an annexation attempt in court.
Senate Bill 161, which would reduce the number of signatures needed to challenge an annexation in court from 65 percent of the affected landowners to 51 percent.
"You have a chance to do the right thing and change the current statutes that heavily and unfairly favor the annexing municipality, to make it easier for people to voice their concerns," said Vanessa Smith, president of Citizens Against Annexation, which is fighting a proposal by the city of Jeffersonville.
"Please show us that you honor our democracy and vote to change these laws."
Mayors from across the state defended current law and said most cities turn to involuntary annexations only rarely and only when such moves are necessary for the good of the larger community.
"We need to preserve and protect the ability for communities to grow," said LaPorte Mayor Leigh Morris.
Still, several committee members were moved by homeowners' stories and said they'd like to consider banning involuntary annexations. * * *
The law does require cities to take substantial steps to complete an involuntary annexation. A city council must pass an ordinance and have pubic hearings. It must develop a fiscal plan for the annexed area, detailing the services it will provide to the new residents and how it will pay for them.
Opponents of the annexation ordinance have 90 days from the time the council or town board passes it to gather signatures from at least 65 percent of landowners.
If they do, the issue goes to court, where a judge decides whether the city has followed the steps outlined by state law, whether it has developed an appropriate fiscal plan and whether the annexation is in the best interest of the residents.
Homeowners who have fought or are fighting annexations told senators that 90 days isn't long enough to collect what sometimes can be thousands of signatures. They said the court battle can cost as much as $300,000, and they said that if opponents fail to collect enough signatures, they can't even challenge the most basic points of law.
"This is not a fair process," said Bob Thomas, president of a group that fought an annexation attempt by Carmel. "This is an uneven process."
- From Nov. 15, 2004: Critics question state annexation laws
- Nov. 23, 2004: Editorial proposes changes to annexation law
- Dec. 9, 2006: Property owners across Indiana are fighting annexations
Ind. Courts - NWI Times applauds MTV "Juvies" show
An editorial in the NWI Times today begins:
The new MTV series "Juvies" shows teens a behind-the-scenes look at the criminal justice system.For background, see this list of some earlier ILB entries on the project.
The series is a good educational effort.
Lake County Juvenile Court Judge Mary Beth Bonaventura allowed cameras into her court -- something that rarely happens in Indiana -- last year to let young audiences see what happens when kids their age are accused of breaking the law.
The 200 rolls of film shot on those days turned into an eight-part series.
MTV referred to the show as a "gritty and tense documentary."
It is that -- and more.
The show features some youths who have made bad decisions.
Bonaventura has said some of the cases include teens caught smoking marijuana and a young cashier who allowed a friend to sneak away with $300 worth of merchandise.
Two episodes air tonight. The first deals with a teen who says he was wrongly accused of stealing a car and a teen who has a volatile relationship with her mother.
The second includes a teen who asks the judge for a drug test, a Hurricane Katrina survivor who retaliates against a bully and boys reminiscing about innocent times.
Wednesday, February 07, 2007
Ind. Decisions - 7th Circuit case out of Illinois in which things get totally out of hand
The case is Redwood v. Dobson, and involves a racial slur, among other things. Howard Bashman, of How Appealing, highlights the case here this afternoon, concluding with "There aren't too many federal appellate court rulings discussing how attorneys and witnesses must behave during depositions, so this decision may be useful not only within the Seventh Circuit, but elsewhere as well."
Decision of the Day Blog also picks it up, with the headling "Choose Your Clients Wisely."
Don't miss the YouTube link referenced in the second paragraph of the Decision of the Day entry, which leads not to this case, but to the "infamous Joe Jamail", about which Judge Easterbrook writes, beginning on p. 9, "Danner’s conduct of this deposition was shameful—not as bad as the insult-riddled performance by Joe Jamail that incensed the Supreme Court of Delaware, see Paramount Communications Inc. v. QVC Network Inc., 637 A.2d 34, 52-57 (Del. 1994), but far below the standards to which lawyers must adhere."
Ind. Decisions - Prewett on winning side of lawsuit over allegedly defamatory website
Yesterday's Court of Appeals decision in the case of Prewett v. Hamilton (see ILB entry here - 5th case) is the subject of a long story today by Nate Smith in the Washington (Indiana) Times-Herald. It begins:
The Indiana Court of Appeals handed down its decision Tuesday in the case of Paul Hamilton vs. Morgan Prewett and found in Prewett’s favor, but ordered Prewett to pay his own attorney’s fees.
Hamilton has said he may appeal to the Indiana Supreme Court.
On Oct. 24, 2006, a three-judge panel heard arguments at Vincennes University on the case. Hamilton sued Prewett over his Web site titled “Paul Hamilten, The World’s Smartest Man” in Daviess Superior Court in 2002. Hamilton is the founder of Hamilton’s Water Conditioning, a Washington business.
The 35-page Web site contained a story of a man named “Paul Hamilten” who owned a water purification company. The story depicts the main character, “Hamilten,” in a less than flattering light.
The appeal prepared by Hamilton’s attorney, John R. Price, asked the court to turn over the original 2002 case because Prewett failed to supply evidence to support his motion to dismiss the suit, arguing that Prewett did defame Hamilton.
Both Prewett and Hamilton had asked the court to rule on a motion that would make Hamilton pay Prewett’s attorney’s fees.
“It was a decision that I had hoped for,” Blake Chambers, Prewett’s attorney said. “I am very happy for Morgan. It has been a long hard road for Morgan.”
Ind. Decisions - One Indiana decision from the 7th Circuit today
In Custom Vehicles v. Forest River (ND Ind., Judge Miller, Jr.), a 10-page opinion, Judge Posner concludes:
In the absence of registration, a producer can still obtain relief by proving that the defendant is using a mark that “is likely to cause confusion . . . as to the origin, sponsorship or approval of his or her goods.” Lanham Act, § 43(a), 15 U.S.C. § 1125(a); Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 209 (2000); 5 McCarthy on Trademarks and Unfair Competition, supra, § 27:14. But as we said earlier, without proof of secondary meaning there is no basis for thinking a descriptive mark the name of a brand—no basis therefore for supposing that consumers would think Forest River’s van “Work and Play” had been produced by Custom Vehicles instead. AFFIRMED.
Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)
For publication opinions today (3):
In State of Indiana v. Lecoy T. Motley, an 8-page, 2-1 opinion, with an appeal beginning on p. 6, Judge Robb writes:
The State appeals after Lecoy Motley, who was charged with murder and the Class C felony of carrying a handgun without a license, was acquitted following a jury trial. The State raises the issue of whether the trial court properly ruled that recordings of Motley’s jailhouse telephone calls were inadmissible for lack of foundation. Concluding that the State provided sufficient foundation supporting admissibility of the recordings, we reverse. * * *
The testimony provided by Officer Lapin regarding his familiarity with Motley’s voice prior to recognizing it in recorded telephone calls, as well as the circumstances and details of the recorded conversations, was sufficient to establish a foundation for the trial court to admit the recordings into evidence. Therefore, we reverse the trial court’s ruling excluding the recordings.
SULLIVAN, Judge, dissenting Although I believe that the trial court would have been within its permissible discretion to have admitted the recordings of Motley’s telephone conversations, I am unable to agree that the court abused that discretion in excluding the evidence for lack of an adequate foundation. * * *
In his discretion, the trial court was entitled to conclude that merely “thinking and believing” that the voice was Motley was inadequate identification foundation for admission of the evidence given the manner in which Lapin reached his conclusion.
Given the deferential standard of review we must give to discretionary evidentiary rulings, I believe Chief Judge Kirsch’s opinion in Washington was the more appropriate resolution to the issue in that case. I would so hold in the case before us.
Leonard Townsend, Jr. v. State of Indiana - "We hold that the trial court did not abuse its discretion in declining to find Townsend’s minimal criminal history to be a mitigating circumstance and that it properly ordered that Townsend’s sentences for murder and attempted murder run consecutively. We reverse Townsend’s conviction for battery, and remand with instructions that the trial court vacate that conviction."
In PricewaterhouseCoopers, LLP v. James D. Massey and Dennis E. Murray, Sr., an 18-page opinion, Chief Judge Kirsch writes:
PricewaterhouseCoopers, LLP (including its predecessor Coopers & Lybrand) (“PwC”) brings this interlocutory appeal contending that the trial court erred in denying its motion to dismiss the complaint of James D. Massey and Dennis E. Murray, Sr. (together, “Massey/Murray”), former directors of Conseco, Inc. (“Conseco”). On appeal, PwC raises three issues of which we find the following to be dispositive: whether Massey/Murray’s claims are solely derivative in nature such that Massey/Murray have no standing to sue PwC in a direct action. We reverse and remand. * * *NFP civil opinions today (2):
As a final note, we address a concern raised in oral argument about insider trading. Specifically, if we allow Massey/Murray to bring this direct action against Conseco’s auditor just because Massey/Murray were in a position to personally meet with the auditor and assert their reliance, there is a risk of running afoul of insider trading laws. * * *
Like our brethren in the Seventh Circuit, “We are not inclined to create such a generous exception to bedrock corporate law principles, and instead hold that [Massey/Murray] must take their proper place in the recovery line along with all other investors.”
NFP criminal opinions today (7):
Keith A. White v. State of Indiana (NFP)
Michael D. Shaw v. State of Indiana (NFP)
Philip E. Mannebach v. State of Indiana (NFP)
Dexter L. Berry v. State of Indiana (NFP)
Daniel F. Reissmann v. State of Indiana (NFP)
Robert Dalmaso v. State of Indiana (NFP)
David Darst v. State of Indiana (NFP)
Law - More on: Indiana lags behind Texas in protecting its girls
"Moves to Vaccinate Girls For Cervical Cancer Draw Fire" is the headline to this story today in the Wall Street Journal that begins:
Bills being drafted in some 20 U.S. states that would make a cervical-cancer vaccine mandatory for preteen girls are sparking a backlash among parents and consumer advocates.Unfortunately, the WSJ story is not freely available online at this point. Check back later - often their stories are republished in other papers.
The bills coincide with an aggressive lobbying campaign by Merck & Co., the maker of the only such vaccine on the market. Called Gardasil, the three-shot regimen provides protection against the human papillomavirus, a sexually transmitted virus that is responsible for the majority of cases of cervical cancer.
For backgournd, see this ILB entry from Feb. 2nd.
Ind. Law - More historical resources, digitized
The Indiana Sanborn Map collection: It used to be you had to check a number of local libraries to get all the historical information about what had been on a piece of Indianapolis property years ago from the fire insurance maps put out by the Sanborn company. Now 439 of these maps have been digitized and are available online, also via the IUPUI University Library.
The digitization of Volumes 1-6 of the Plat Books of Indiana Counties was made possible by a grant from the library fund of Indianapolis Foundation, an affiliate of the Central Indiana Community Foundation. These geographic resources are historic guides to the communities of Indiana, showing townships, roads and section numbers. The Plat books are owned by and scanned in collaboration with the Indiana State Library.
Ind. Law - This is tremendous
The Indiana Supreme Court and the Indiana Historical Bureau are collaborating on a major project to gather in one place copies of original documents and research materials relating to Indiana's constitutional history. The first phase will make documents and transcriptions that led to Indiana statehood in 1816 available and fully searchable on the Web. Sources for the original documents include the National Archives and Records Administration, the Indiana State Archives, the Indiana State Library, and the Library of Congress.Here are the 39 documents currently available. They include, for example, the 900-plus page Laws of the NW Territory and the 1085-page Journal of the Constitutional Convention of 1850-1851, and the Journals of the General Assembly of Indiana Territory from 1805-1815. What will be next? The ILB hopes, for starts, the ACTS of Indiana from at least 1852 to the present, as well as the equivalent Journals of the Indiana House and Senate.
A major goal of the collection is to make this historical information available for use, especially by the legal profession and educators and students at all levels.
The IUPUI University Library has digitized and organized the material to make it user-friendly and fully searchable and serves as the host for this Web-based material. The documents and transcriptions also will be available through the Indiana Historical Bureau Web site and the Indiana Courts' "Courts in the Classroom" Web site.
The project [traces] Indiana's constitutional history with material from 1816 through the 1850-1851 constitutional convention and the resulting constitution, which governs Indiana today. The Collection [includes] the 1851 convention, journal and reports and debates, as well as the four volumes of the Indiana Historical Bureau's Constitution Making in Indiana. Future additions will include publications about constitutional issues and other materials to enhance the educational value of the Collection.
Law - "Open Access and Legal Scholarship"
"Download It While Its Hot: Open Access and Legal Scholarship" is the title of a law review article by Lawrence Solum, of the Legal Theory Blog. The abstract:
This Article analyzes the shift of legal scholarship from the old world of law reviews to today's world of peer reviews to tomorrow's world of open access legal blogs. This shift is occurring in three dimensions. First, legal scholarship is moving from the long form (treatises and law review articles) to the short form (very short articles, blog posts, and online collaborations). Second, a regime of exclusive rights is giving way to a regime of open access. Third, intermediaries (law school editorial boards, peer-reviewed journals) are being supplemented by disintermediated forms (papers on the Internet, blogs). Blogs and internet conversations between academics are expanding interdisciplinary legal scholarship and increasing the avenues of communication among legal scholars, practitioners and a wide array of interested laypersons worldwide.Access it here.
Ind. Courts - St. Joseph County Commissioners balk at prosecutor's office travel request
Here are a few quotes from what James Wensits of the South Bend Tribune writes today:
SOUTH BEND -- Something kind of snapped with the St. Joseph County Commissioners Tuesday.
Maybe it was years of squabbling over tight budgets, or perhaps it was all the talk about Circuit Breaker legislation and its expected devastating effect on local governments.
Whatever it was, when the county prosecutor's office representative asked permission to send 30 employees to Indianapolis for a four-day seminar, they balked, then tabled the request and asked for a do-over. * * *
[A] request presented by Patrick J. Higgins Jr., the prosecutor's office chief of staff and operations, sought permission to send six attorneys and 24 "non-attorneys" from the office's child support division to a June conference in Indianapolis.
The total bill for the visit, including registration, hotel accommodations, mileage reimbursements and meal money will be just over $13,000.
Although the state will reimburse the county for two-thirds of that total, the county's share will still exceed $4,300,
Higgins defended the request, saying that the training is mandated by the state and necessary both to keep workers current with state procedures and for their state certification.
He also noted later that half of his employees have less than two years' experience and that the state is constantly changing procedures and tweaking computer software.
"Thirty people is a lot," grumbled County Commissioner Steve Ross, D-2nd, who called the request "exorbitant."
Ind. Gov't. - Database of Attorney General's consumer protection filings
The ILB has seen several items about this new database, but no direct links. Here is the intro:
Welcome to the online, searchable database of the Indiana Attorney General’s Consumer Protection Division. We have created this tool to enhance citizens’ ability to further research legal actions the Attorney General’s Office has initiated against violators of Indiana’s consumer protection laws. For the first time, this office is making available an online, searchable database that contains the Attorney General’s legal actions filed in Indiana Courts and decisions from courts on those cases.Here is the database. You may either search by business name or county, or you may call up a list of ALL filings. The actual complaints, consent judgments, default judgments, etc. are also viewable.
Until now, this public information was only available through requests made to the Consumer Protection Division or by contacting each court individually where cases have been filed. IndianaConsumer.com allows instant access to public filings and court orders that will assist you in making informed decisions about companies you may consider doing business with. We hope that you find this site useful.
Ind. Law - More on "Dispute raises concern about new state law"
Updating this entry from Sunday, the NWI Times again has a story about the impact of "a law" passed last year without identifying the law. Today's story is headlined "State law stops disputed rezoning: Commissioners say the law will impact planners across the state." The story begins:
VALPARAISO | The Porter County Board of Commissioners ditched a controversial rezoning attempt Tuesday evening in response to a new state law that gives landowners more strength to challenge government actions involving their property.As reported in the ILB entry last Sunday, "Presumably the law referenced [by the Times story] is SEA 135 from the 2006 session (P.L. 49-2006)."
"I'm disappointed in our legislators in passing this law," Commissioner Bob Harper said.
The state law in question, which reportedly received overwhelming support from lawmakers, gives landowners the right to pursue the use of their property according to the terms of the zoning that is valid at the time a use application is filed.
In this case, the landowner came along after the county initiated the rezoning and stopped the process by filing an application to develop the property according to its current zoning, county attorney Gwenn Rinkenberger said.
Landowner Larry Bucher, who declined comment Tuesday, has said he made county officials aware of his plans to develop a business park before the rezoning was initiated.
At Rinkenberger's recommendation, commissioners Harper and Carole Knoblock voted Tuesday to deny the proposed rezoning of 41 acres from general industrial and rural residential 1,000 feet north of Evans Avenue, between County Road 325 East and Ind. 2 in Washington Township. * * *
Porter County Plan Commission attorney Ken Elwood has said the state law in question would be detrimental to government bodies if it is interpreted to allow property owners to step in and derail rezonings or other changes by simply filing an application to use their land.
On Tuesday, Harper repeated his concern that the expectation to keep parts of Porter County rural is losing out to development being promoted as the only valid form of progress.
Environment - "Ag panel weighs site restrictions on mega-farms"
Tuesday's House Agriculture and Rural Development Committee meeting is the subject of a story today by the AP's Rick Callahan. Some quotes:
bill that would prohibit large livestock farms within 2 miles around schools, cities and towns drew criticism Tuesday from a state agricultural official and support from residents who said dust and odors from the farms make them ill.For background see this Feb. 5th entry, or type "CAFO" in the ILB search box.
More than a dozen speakers addressed the House Agriculture and Rural Development Committee to testify on two bills, including one co-authored by Rep. Phillip Pflum, the panel’s chairman. His legislation is one of several bills before the General Assembly that target the state’s growing number of confined-feeding operations, the farms where thousands of hogs, dairy cows and poultry are raised in tight quarters.
Pflum, D-Milton, said his legislation is a “compromise bill” that aims to address rural residents’ concerns about the farms’ odors, dust and manure runoff while still permitting the continued growth of the state’s livestock industry. “It’s a bill I think we may be able to get passed. Would I like to go further than this, personally, yes. But this whole process is a compromise,” he said after Tuesday’s hearing.
His bill would prohibit construction of large livestock farms within 2 miles of a school, city or town. It would also would require certification of the farm workers who apply livestock waste to farmland as fertilizer – the most common method of disposing of the large amounts of manure the farms generate. In addition, it would permit only manure application by “incorporation or injection” below a field’s surface.
Pflum said that when it comes to regulating manure applications, “the counties are all over the map on how to regulate this, or not to regulate it. We need all 92 counties to operate under the same standards.”
Nellie Seal told the panel she has lived in rural Hancock County for decades and never complained about nearby livestock farms until large hog farms opened nearby. Seal said the farms’ smells and manure-tainted dust blowing off nearby fields now make her husband, a grain farmer, nauseous and sometimes force her to stay indoors. “This is an everyday fact that we live with,” said Seal, who was joined by other east-central Indiana residents who complained about nuisances posed by large livestock farms.
Andy Miller, the commissioner of the Indiana State Department of Agriculture, said the agency opposes Pflum’s bill, calling it a threat to the state’s billion-dollar livestock industry. He said Indiana’s hog and dairy industries grew 8 percent to 10 percent last year in response to consumers’ growing demand for pork and milk products. He said the state’s livestock farms take great steps to protect the environment from damage from the animal waste the farms generate. * * *
Pflum said his panel is expected to vote by next Tuesday on his bill, and one sponsored by Rep. Dave Cheatham, D-North Vernon. It would prevent state officials from authorizing a new confined-feeding operation without local health and zoning officials’ endorsement. Cheatham’s bill also would create procedures for local approval of the farms, including a system for appealing a farm’s approval or rejection.
Tuesday, February 06, 2007
Law - Still more on efforts to receive compensation for land taken to build Kentucky Camp Breckenridge
On Jan. 30th the ILB had this entry quoting a Louisville Courier Journal story by Jim Adams headlined "O'Connor may mediate dispute." The ILB entry also included a lot of background on the issue.
Now the "may" can be changed to a "will," according to this AP story that begins:
WASHINGTON (AP) -- Former Supreme Court Justice Sandra Day O'Connor has agreed to mediate a long-running dispute over government reimbursement for land that was taken during World War II.
Ind. Courts - "Pipe burst floods Hancock Courthouse offices"
Bill McCleery of the Indianapolis Star reports late this afternoon:
A water pipe burst Tuesday above the third floor of the Hancock County courthouse, sending water spurting downward and flooding several courtrooms and offices on the second and third floors of the building.Here are stories on the Hancock Courthouse, including, sadly, this one from Dec. 16th headed "Hancock courthouse work reveals historic features."
"We're assuming the pipe froze," said Greenfield Fire Chief Lewis McQueen. "It was a water line to a sprinkler head, running through an unheated portion of the building."
County officials recently spent $6 million on an interior renovation and historical restoration of the courthouse, which was built a century ago.
As of Tuesday afternoon, insurance adjustors had not determined monetary costs of repairing damages, McQueen said. In addition to fixing the water line, workers will need to replace carpeting, repair ceilings and perform other repairs, he said.
"It's disheartening," McQueen observed. "But those things happen."
The pipe burst about 9:15 a.m., McQueen estimated. County workers tried to cover computers and other equipment with tarps to protect whatever they could, he said.
The courthouse remained closed Tuesday afternoon pending repairs. McQueen was unsure when the courthouse might reopen.
Law - " Huge database aims to include photo of every Tucson house"
An article today in the Arizona Daily Star begins:
Photographers from a Canadian company are going house to house, shooting pictures of the roughly 300,000 houses in metropolitan Tucson.Here is what it says on the Zaio.com website:
It's part of an effort to photograph and appraise every house in the country, creating a database that can be sold to banks and insurance companies.
While the city attorney says the activity is perfectly legal, it has officials and some residents concerned about privacy rights.
Zaio is in the process of photographing and appraising each and every property in cities across the country. That means every house, commercial building, industrial and institutional structure is being photographed and appraised property-by-property and street-by-street. We call this historic event “Photographing America.” The resulting database of images and valuations is called “GeoPic,” and is a useful resource for real estate, mortgage and insurance industries. The photographs are also an effective aid to police, fire and ambulance dispatching. Zaio has developed proprietary software and systems to continuously maintain and update the database as properties change and redevelopment occurs. Each photo is individually framed to strict GeoPic standards and photos are generally taken during summer months when landscaping is in full color. The database grows over time as updates constantly improve upon prior releases.Thanks to Slashdot.com for their entry on this.
Of course, the top of everyone's house (and much more) is already accessible via Google Maps. And Google Earth "combines the power of Google Search with satellite imagery, maps, terrain and 3D buildings to put the world's geographic information at your fingertips." Take a look at this.
Ind. Courts - Son of former Elkhart judge charged as adult
From the South Bend Tribune:
The teenage son of a former Elkhart judge has been charged with receiving stolen property and dangerous possession of a handgun.
Sixteen-year-old Cole Pfaff allegedly was found with firearms stolen in a burglary.
His case has been waived to adult court. Charges were filed against him Jan. 31.
Cole Pfaff's father, Benjamin Pfaff, resigned from Elkhart Superior Court 1 after the Indiana Commission on Judicial Qualifications found he violated judicial codes of conduct. Benjamin Pfaff was accused of threatening a Simonton Lake man verbally and with a handgun in 2003.
He's still practicing law in the area, and is defending his son.
In a Wednesday court hearing, Pfaff filed a motion to correct the dangerous possession charge brought against his son. The motion was granted, and an initial hearing on the matter is scheduled for Wednesday.
Ind. Courts - "Thief takes judge’s card for a joyride"
Dionne Waugh writes today for the Fort Wayne Journal Gazette:
Police charged a Fort Wayne woman Monday with racking up nearly $2,000 worth of charges on an Allen Superior Court judge’s stolen credit card.
Barbara Ann Evans, 39, of the 3000 block of Woodrow Avenue, is charged with two counts of forgery, two counts of credit card fraud, three counts of receiving stolen property and one count of check fraud.
According to court documents, Evans is accused of running up charges using the stolen credit cards and checks of Allen Superior Court Judge Kenneth Scheibenberger and his wife, Susan.
Ind. Decisions - 7th Circuit issues two today from Indiana
In Miles Distributors v. Specialty Con (ND Ind., Judge Nuechterlein), an 18-page opinion, Judge Flaum writes:
After Specialty Construction Brands, Inc. (hereinafter “TEC”), a manufacturer of tile installation products, stopped supplying wholesale materials to Miles Distributors, Inc. (“Miles”), Miles filed suit against TEC, alleging restraint of trade in violation of the Sherman Act, 15 U.S.C. § 1, and a state law claim for interference with prospective business advantage. On February 27, 2006, the district court granted summary judgment in favor of TEC on all claims, and Miles appealed. For the following reasons, we affirm the district court’s ruling.In USA v. Wiley, Claude (SD Ind., Judge Tinder), a 24-page opinion (including a concurrance beginning on p. 22), Judge Ripple writes:
Claude Wiley, Jr. and Tatu M. Brown were charged in a single indictment with various counts relating to a drug conspiracy. Mr. Brown subsequently entered a conditional guilty plea to a single count of conspiracy and the district court sentenced him to 188 months’ imprisonment. Mr. Wiley proceeded to trial and was convicted of a conspiracy charge and of certain distribution charges. The district court sentenced him to 395 months’ imprisonment.
Mr. Brown and Mr. Wiley timely filed these direct appeals. Mr. Brown contends that evidence obtained from a search of his home was inadmissible because the affidavit in support of the warrant did not establish probable cause. He further submits that the good faith exception to the warrant requirement is inapplicable. Mr. Wiley contends that the jury was instructed improperly as to the weight to give the testimony of Government informants who received a benefit in exchange for their testimony. For the reasons set forth in the following opinion, we affirm the convictions of both defendants.
Ind. Decisions - Court of Appeals issues 5 today (and 8 NFP)
[The ILB has just returned from serving jury duty.]
For publication opinions today (5):
Paula M. Novotny v. Renewal By Anderson Corp., et al - "Issue. Whether the trial court erred in granting the motion by Andersen and AGF to compel arbitration of Novotny’s claims against Andersen and AGF." The Court here concludes that although the Uniform Arbitration Act “specifically exempts from its coverage all consumer leases, sales, and loan contracts,” as those terms are defined in the Uniform Consumer Credit Code. Ind. Code § 34-57-2-1, the parties can bargain that away via a consumer credit sale agreement and security agreement which contains an arbitration clause.
In John Doe v. Town of Plainfield, Indiana, a 13-page opinion, Judge Sharpnack writes:
John Doe brings this interlocutory appeal from the trial court’s grant of the Town of Plainfield’s (“Plainfield”) motion to reconsider an earlier order that had allowed Doe to proceed anonymously. Doe raises one issue, which we revise and restate as whether the trial court abused its discretion when it granted Plainfield’s motion to reconsider and denied Doe’s request to proceed anonymously. We reverse and remand. * * *See also this brief story this afternoon in the Indianapolis Star.
“This unusual practice has been permitted in exceptional cases where the party has a privacy right so substantial as to outweigh the customary and constitutionally-embedded presumption of openness in judicial proceedings.” * * *
“[Courts have] identified a number of factors that should be considered to determine whether a plaintiff’s interest in privacy is so significant as to outweigh the strong presumption favoring public identification of litigants.” Id. These factors include: (1) whether the plaintiff is challenging governmental activity; (2) whether the plaintiff would be required to disclose information of the utmost intimacy; (3) whether the plaintiff would be compelled to admit his or her intention to engage in illegal conduct, thereby risking criminal prosecution; (4) whether the plaintiff would risk suffering injury if identified; (5) whether the party defending against a suit brought under an anonym would be prejudiced; (6) whether the interests of children are at stake; (7) whether there are less drastic means of protecting legitimate interests of either the party seeking anonymity or the opposing party; (8) the extent to which the identity of the litigant has been kept confidential; and (9) the public interest in knowing the litigant’s identities. * * *
Doe argues that four factors are relevant to this analysis. Specifically, Doe argues that the following factors support his position: (A) he is challenging governmental action; (B) disclosure of Doe’s name would subject him to threats of physical harm to himself and his child; (C) Plainfield will not be prejudiced by the anonymity of Doe’s name; and (D) there is no strong public interest in the disclosure of Doe’s name. * * *
In summary, all relevant factors favor anonymity and we conclude that Doe’s need for anonymity outweighs the presumption of openness in judicial proceedings. See City of Indianapolis, 2006 WL 2289187 at 2. Thus, we conclude that the trial court abused its discretion when it granted Plainfield’s motion to reconsider and denied Doe’s request to proceed anonymously.
For the foregoing reasons, we reverse the trial court’s grant of Plainfield’s motion to reconsider and remand for proceedings consistent with this opinion. Reversed and remanded.
Oddly, no record of this case (32A01-0605-CV-188) appears in the Clerk of the Courts docket. Surely that is not part of the authorization to proceed anonymously.
Paul Hamilton v. Morgan Prewett is a 30-page opinion, including a concurring opinion beginning on p. 23. As set out in Judge Baker's opinion:
Prewett and his wife, Georgia Prewett (Georgia), reside in Daviess County. Hamilton maintains his business, Hamilton Water Conditioning, in Daviess County. Neither the record nor the parties’ briefs address how the parties were acquainted, if at all. On June 21, 2002, Hamilton filed a lawsuit against the Prewetts in the Daviess County Superior Court after Hamilton found a website entitled “Paul Hamilten—The World’s Smartest Man” (the Website), which Hamilton claims defamed him and his business. Hamilton’s complaint alleged claims of defamation, intentional infliction of emotional distress, and punitive damages. On September 25, 2002, Hamilton filed an Amended Complaint and added his son, Michael Hamilton (Michael), as a party plaintiff because Michael was the legal owner of Hamilton Water Conditioning.NFP civil opinions today (4):
While there was a one-letter difference between the man on the website, “Paul Hamilten” (“Hamilten”), and appellant Paul Hamilton, Prewett has never denied that he was the author of the Website or represented that the Website was not a reference to Hamilton or Hamilton Water Conditioning. Instead, as detailed below, Prewett argues that the Website was a form of comedy, parody, or satire. The Website was written from the perspective of “Hamilten,” a man in the business of water conditioning, and portrayed “Hamilten” as a manipulative individual both personally and professionally. * * *
In light of the parodistic nature of the Website taken as a whole, we hold that the Website is a parody because no reasonable person could believe its claims to be true. Therefore, Hamilton’s defamation claim must fail because parody cannot constitute a false statement of fact and cannot support a defamation claim. 50 Am. Jur. 2d Libel and Slander § 156 (2006); New Times, 146 S.W.3d. at 161. Because the Website is a parody, the trial court properly granted summary judgment in favor of Prewett.7 See Gatto, 774 N.E.2d at 923 (holding that the determination of whether a communication is defamatory is to be presented to the jury as a question of fact only if the communication is reasonably susceptible to either defamatory or non-defamatory interpretation). * * *
In the interest of judicial economy, both parties ask that we determine whether the anti-SLAPP statute applies to Hamilton’s lawsuit. * * *
While we acknowledge that there may be instances where entertainment is a public issue or an issue of public interest that warrants anti-SLAPP protection, we do not find this to be one of those occasions. Hamilton’s suit against Prewett, while unsuccessful on the merits, is not the type of lawsuit that the anti-SLAPP statute was enacted to prevent. Unlike the plaintiffs in the previous Indiana anti-SLAPP cases, Hamilton did not file his suit to stifle Prewett’s speech on a public issue or an issue of public interest.
In the Matter of the Termination of the Parent-Child Relationships of N.H. and E.M., minor children and their father, Gregory Hardister v. Marion County Division of Child Services (NFP)
In the Matter of Termination of Parent-Child Relationship of J.A., M.P.B., M.L.B., A.M.S., J.S. & L.J.S.; Ursula Johnson v. Lake County Office of Family and Children (NFP)
In the Matter of K.B., K.S.B. and J.B.; Sabrina Byrd v. Lake County Department of Child Services (NFP)
NFP criminal opinions today (4):
Anthony Logan v. State of Indiana (NFP)
John Harlow v. State of Indiana (NFP)
Fredrick Michael Baer v. State of Indiana (NFP)
C.G. v. State of Indiana (NFP)
Monday, February 05, 2007
Law - Expansion of DNA sampling at federal level
On Oct. 8, 2006 the ILB had this entry on the expansion of DNA collection at the state level, headed "More on: Indiana felons must provide DNA." [Note: My emphasis here and below.]
Today the NYTimes has a front-page story by Julia Preston headlined "U.S. Set to Begin a Vast Expansion of DNA Sampling." Some quotes:
The Justice Department is completing rules to allow the collection of DNA from most people arrested or detained by federal authorities, a vast expansion of DNA gathering that will include hundreds of thousands of illegal immigrants, by far the largest group affected.
The new forensic DNA sampling was authorized by Congress in a little-noticed amendment to a January 2006 renewal of the Violence Against Women Act, which provides protections and assistance for victims of sexual crimes. The amendment permits DNA collecting from anyone under criminal arrest by federal authorities, and also from illegal immigrants detained by federal agents.
Over the last year, the Justice Department has been conducting an internal review and consulting with other agencies to prepare regulations to carry out the law.
The goal, justice officials said, is to make the practice of DNA sampling as routine as fingerprinting for anyone detained by federal agents, including illegal immigrants. Until now, federal authorities have taken DNA samples only from convicted felons.
The law has strong support from crime victims’ organizations and some women’s groups, who say it will help law enforcement identify sexual predators and also detect dangerous criminals among illegal immigrants.
“Obviously, the bigger the DNA database, the better,” said Lynn Parrish, the spokeswoman for the Rape, Abuse and Incest National Network, based in Washington. “If this had been implemented years ago, it could have prevented many crimes. Rapists are generalists. They don’t just rape, they also murder.”
Peter Neufeld, a lawyer who is a co-director of the Innocence Project, which has exonerated dozens of prison inmates using DNA evidence, said the government was overreaching by seeking to apply DNA sampling as universally as fingerprinting.
“Whereas fingerprints merely identify the person who left them,” Mr. Neufeld said, “DNA profiles have the potential to reveal our physical diseases and mental disorders. It becomes intrusive when the government begins to mine our most intimate matters.” * * *
Forensic DNA is culled either from a tiny blood sample taken from a fingertip (the F.B.I.’s preferred method) or from a swab of the inside of the mouth. Federal samples are logged into the F.B.I.’s laboratory, analyzed and transformed into profiles that can be read by computer. The profiles are loaded into a database called the National DNA Index System.
The F.B.I. also loads DNA profiles from local and state police into the federal database and runs searches. Only seven states now collect DNA from suspects when they are arrested; of those, only two states are authorized by their laws to send those samples to the federal database.
Mr. Neufeld, of the Innocence Project, said his group supported broad DNA collection from convicted criminals. But, he said, “There is no demonstrable nexus between being detained for an immigration matter and the likelihood you are going to commit some serious violent crime.”
Ind. Courts - More on: Another county likely will ban cell phones in Courthouse
(LAGRANGE) - LaGrange County Commissioners chose not to act on a request to ban cell phones in county buildings this morning.[More] Here is the same story from WTHD, reported by Tim Murray.
Commission President George Bachman said Judge George Brown asked him about placing a ban on cell phones and electronic devices.
Steuben and Allen counties banned them from their courthouses after someone used a phone to record a closed juvenile hearing, and others were taking pictures of witnesses.
But officials thought a local ban would be ineffective. Commissioner Phil Curtis said cell phones are an accepted tool in business. Commissioner Roger Boots added that an exemption for county employees would confuse the public when they see people still using cell phones in the courthouse. Curtis said the judges already have the authority to ban the devices in courtrooms.
Others noted that LaGrange County’s courthouse lacks the restricted access needed to enforce such a ban. And pictures could still be taken outside the building.
Ind. Decisions - Three Indiana cases today from 7th CircuitIn USA v. Horne, Dewan A. (SD Ind., Judge Hamilton), a 6-page opinion, Judge Posner begins:
The defendant advertised fictitious vintage cars on eBay. If a person interested in such cars saw the ad and communicated with the defendant and they struck a deal, the defendant would offer him the option of coming to Indianapolis to pick up the car and pay for it on the spot in cash or the equivalent. With the aid of a gun-toting accomplice the defendant would then try to rob the car buff of the cash and anything else of value; in the only completed robbery, the take included the navigation system in the victims’ truck. A jury convicted the defendant of violating, conspiring to violate, and attempting to violate the Hobbs Act, 18 U.S.C. § 1951(a), which so far as bears on this case makes robbery that “in any way or degree obstructs, delays, or affects commerce” a federal crime, and also of using a gun in connection with a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). The judge imposed sentences of 112 months for the Hobbs Act violations and 84 months for the gun violation, for a total of 196 months.Moran Foods Inc v. Mid-Atlantic Market (ND Ind., Judge Miller) is a 12-page opinion by Judge Posner, reversing and remanding the district court, with instructions. The opinion begins:
The defendant argues that his crimes, since they all occurred in Indianapolis in face-to-face encounters with his victims and no car or cash or any other object was transported across state lines, did not affect interstate commerce. This ignores the fact that eBay, the online auction site, is an avenue of interstate commerce, like an interstate highway or long-distance telephone service. The people who buy and sell through eBay are scattered around the world—indeed most of the vehicle sales made through eBay are interstate or international.
This is a complicated diversity suit with a federal-law counterclaim. We shall simplify ruthlessly. Moran Foods franchises grocery stores under the name “Save-A-Lot” and sells the stores many of the groceries they need. Mid-Atlantic (and an affiliate that we’ll ignore) was one of the franchisees. Mid-Atlantic’s stores faltered, and eventually defaulted, leaving it owing Moran a considerable amount of money for groceries bought but not paid for. Mid-Atlantic later declared bankruptcy. Roger Camp, the owner of Mid-Atlantic, and his wife, Susan Camp, had guaranteed the company’s debts to Moran. (The various contracts recite that they are governed by Missouri law.) When they refused to honor their guaranties, Moran brought this suit for breach of contract against the two Camps plus Mid-Atlantic. Mid- Atlantic and Susan Camp counterclaimed. Mid-Atlantic claimed that Moran had violated a provision of their contract that required Moran to furnish certain accounting services to Mid-Atlantic. Susan Camp claimed that Moran had violated the Equal Credit Opportunity Act, which so far as relates to this case forbids “any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction . . . on the basis of . . . marital status.” 15 U.S.C. § 1691(a)(1).Daniels, Michael v. Knight, Stanley (SD Ind., Judge Young) - prisoner appeal - "The district court’s denial of Daniels’ § 2254 petition is AFFIRMED."
Ind. Courts - Position of Deputy Clerk of the Indiana Courts is open
A job posting on the Indiana Courts website is advertising the position of Deputy Clerk of Indiana Supreme Court, Court of Appeals, and Tax Court.
David Schanker, who currently holds the Indiana position, reportedly is headed to Wisconsin to assume a similar spot there.
Last year about this same time (Jan. 31, 2006), the ILB posted this entry reporting that the Supreme Court was merging the Clerk of Courts position with the Court Administrator position. This followed upon legislation passed in 2004, where the Clerk’s position was changed from an elected position to one appointed by the Chief Justice whenever the elected Clerk completed his or her term, or left office.
Ind. Law - Still more on: "University of Saint Francis has begun exploring the possibility of opening a law school"
Updating this ILB entry from Jan. 7, 2007 is a fascinating item just posted by Mitch Harper of the blog, Fort Wayne Observed, headed "The Domino's Theory: Could the Ave Maria School of Law form the core of a St. Francis Law School?"
Ind. Law - Another paper editorializes against SJR 7
In our view, this amendment trivializes a serious document by involving constitutional law in someone's choice of a life partner.
Not only is the amendment faulty for what it might do to couples of all makeup, but it seems a weapon of demagoguery, all for political gain in a conservative state.
To that, supporters of the amendment say that it is no such thing, but rather is intended to protect traditional marriage between a man and a woman. They look at the supposed decline of the traditional American family and see this amendment as a way to hold it together.
If the latter is true, then they will miss the mark. If there is any one factor most responsible for the decline of the American family, it is heterosexual divorce. Yet no one suggests a constitutional amendment to ban divorce by married men and women as a way to stem the breakup of the family.
This proposed constitutional amendment is, at its heart, cynical in nature and deserves to be defeated.
Ind. Courts - More on: Costs of David Camm retrials lead to legislation
Updating this Jan. 27th ILB entry, headed "Costs of David Camm retrials lead to legislation", here is another story on HB 1692, which proposes that the state pay when local courts are ordered to re-try criminal cases. The story, by Kate Braser, is in the Evansville Courier & Press.
Ind. Gov't. - "Battle lines drawn over farm feed lots"
Niki Kelly of the Fort Wayne Journal Gazette has a great story today on the battle over CAFOs and CFOs in Indiana. Some quotes from the lengthy, comprehensive report:
Confined feeding operations are either the future of agriculture production or hazardous operations that threaten Hoosiers’ health.
And Indiana legislators are set this year to mediate the dispute, which is plagued by the push and pull of property rights.
The rights of a farmer in an area long-zoned for agriculture to move his business into the 21st century – and the rights of neighbors seeking a peaceful country life to live without tainted water and powerful odors.
Who will win?
The first chapter in the legislative battle began last week when proponents and opponents took to the Senate floor to discuss three possible legislative solutions.
The House will get its chance this week, with three more bills up for discussion Tuesday in the House Agriculture and Rural Development Committee.
Confined feeding operations and concentrated animal feeding operations – known as CFOs and CAFOs – have proliferated in recent years in Indiana.
Confined feeding operations are generally much smaller operations and are governed by state law.
But concentrated animal feeding operations – where large numbers of animals are fed and raised on a small plot of land rather than grazed – are subject to more regulatory requirements than confined feeding operations.
The U.S. Environmental Protection Agency considers them to be a potential point source of pollution because of the possibility for waste to enter the waters of the U.S. through accidental discharge.
Because of this they are required to get a federal water permit, and the Indiana Department of Environmental Management is the EPA’s permitting authority for concentrated animal feeding operations. * * *
IDEM has the authority to regulate water pollution at these large agricultural operations. But local governments regulate odor, traffic, zoning and land-use issues.
Several people testified at last week’s concentrated animal feeding operation hearing that the permitting process needs to be changed. Currently, they said, farmers go to IDEM for a permit and when they have that in hand, the county has little option but to give them a building permit.
Zoning laws – if they exist at all – don’t address these megafarms and local residents have found themselves reeling because they have no way to block their growth.
The suggestions in the legislature range far and wide.
Senate Bill 447 would establish a three-year moratorium on all new confined feeding operations, Senate Bill 570 would restrict the ability of local government to limit concentrated animal feeding operations and Senate Bill 431 would increase fees, inspections and notice to neighbors while instituting a “good character” clause.
House Bill 1197 would create a two-mile buffer zone between confined feeding operations and schools or municipalities, and House Bill 1308 would not allow IDEM to permit new confined feeding operations unless local health and zoning officials approve first.
Law - Last Week in Review at the Indiana General Assembly
Here is Senator Sue Errington's latest "Week in Review at the Indiana General Assembly" column. It begins:
Legislators have had a very productive week working through longer floor calendars as committee activities are now in high gear and more bills are advancing through the first phase of the process. Some of the more controversial issues are beginning to surface. Lengthy hearings took place this week on several proposals including the Governor's healthier Indiana insurance program. The following brief summary highlights some of this week's activities in the Senate.See this ILB entry for earlier Errington columns.
Here is the weekly report of Bryan Corbin of the Evansville Courier & Press, now titled "Indiana Legislative NOTEBOOK." Some quotes:
The issues that dominated the Statehouse last week — the governor’s plan to fund Interstate 69 and a constitutional definition of marriage — are likely to get plenty of debate this week, too.The report also includes a section headed "Looking ahead to this coming week at the Legislature," and includes:
Having completed its fourth week of the 2007 session, the Indiana General Assembly is grappling with such issues as a minimum-wage increase, full-day kindergarten and a two-year state budget. Here are highlights of the week just past.
On Tuesday, the full Senate will hear the Commerce Connector bill, Senate Bill 1, on a second reading, meaning senators could attach amendments to it.(The ILB has had recent entries on all of these proposals.) Earlier Corbin columns are linked here.
Also Tuesday, the full Senate is scheduled to hear SJR 7, the proposed constitutional amendment to define marriage, on a second reading.
Other controversial legislation Tuesday is Senate Bill 327, which would encourage, but not require, that middle-school-aged girls be vaccinated for the Human Papilloma Virus, or HPV, as part of their school immunizations. The HPV vaccine can protect against some forms of cervical cancer. The full Senate will hear Senate Bill 327 on second reading Tuesday.
Both of these columns, from the Muncie Senator, and from the Evansville reporter, are enormously useful resources; each with its different take on the news.
Sunday, February 04, 2007
Ind. Decisions - Still more on school expulsion decision and its implications
In early July of 2006, the Indiana Court of Appeals issued an opinion, Logansport School Corporation v. P.F., dealing with school expulsion. As an Indianapolis Star story summarized on Agust 17th:
• Ruling: The Indiana Court of Appeals ruled 2-1 that school boards must hear all appeals on behalf of expelled students or none.A number of ILB entries since have followed up on how schools are addressing the opinion, including: 9/7/06 and 9/13/06.
• Impact on schools: Many boards consider appeals on a case-by-case basis, granting them rarely. They must change their policies.
• Impact on students: Administrators' decisions would stand if a board votes to end appeals, with a court challenge the only recourse.
Today the Marion Chronicle-Tribune has a story by Katie Pence that reports:
All public school districts in the area said they have either always heard expulsion hearings or already had created a policy dismissing the boards' involvement in the expulsion process.
Administrators said the court of appeals ruled for an "all-or-nothing" approach to prevent favoritism during expulsion hearings and to create a more formalized way of dealing with the expulsion process.
Marion Superintendent Andrew Nixon said the board adopted a resolution several years ago stating members would not hear any expulsion cases.
Nixon said he and the board believe Indiana has an elaborate method for handling expulsions and there is no need for the board to handle the issue.
"There are at least two significant steps before it would get to the board anyway," he said, noting hearings are done at the building level and the district level. "There is a fine line between a board that makes policies and a board that gets involved in day-to-day decision making."
Ind. Law - "Dispute raises concern about new state law"
Bob Kasarda of the NWI Times reports today in an interesting, but quite limited, story:
VALPARAISO | The issue put before state lawmakers last year seemed pretty straightforward.Presumably the law referenced is SEA 135 from the 2006 session (P.L. 49-2006), which, according to its digest:
They were asked to support legislation prohibiting government from stepping in and rezoning land or making any other changes that would interfere with an owner's proper use of the property, according to Matt Tusing, deputy communications director for the Republican caucus in the Indiana House.
He said the proposal received overwhelming support and it became law March 15.
"Everyone pretty much agreed you just can't change the rules halfway through the game," Tusing said.
The law, however, is proving to be less than straightforward in its application in a controversial rezoning case to be taken up for final consideration Tuesday by the Porter County commissioners. The proposal calls for rezoning 41 acres from general industrial to rural residential 1,000 feet north of Evans Avenue, between County Road 325 East and Ind. 2 in Washington Township.
The dispute pits individual property rights against the powers of government, and has left both sides yelling foul.
Porter County Plan Commission attorney Ken Elwood said he does not believe the new state law applies to this case because the county initiated the rezoning before landowner Larry Bucher applied to develop the property in question.
It would be a huge blow to plan commissions and other government bodies if the law is interpreted to allow property owners to step in and derail rezonings or other changes by simply filing an application to use their land, he said.
"I think we have some more research to do, and I'm not sure it looks real good for us," Elwood said.
Bucher's attorney, Steve Hardin, of the Baker & Daniels law firm in Indianapolis, does not see the threat.
"This is not thwarting government," he said. "This just protects landowners' rights."
Hardin disagrees it is a matter of who acts first with a parcel of land -- the government or landowner. The new law clearly gives the property owner the rights afforded the land at the time a use application is filed, even if a rezoning or other change is pending, he said.
This right was not extended to Bucher, Hardin said.
Bucher informally made county officials aware in July of his plans to develop a business park on the land in question, which has been zoned for industrial use since 1959, Hardin said. That same month, Porter County Commissioner Bob Harper instructed the county Plan Commission attorney to research the commission's ability to rezone land without an owner's consent.
Provides that, with certain exceptions, the granting of building permits, approvals for construction or development, and certain other permits is governed for at least three years after a person applies for a permit by the law, rules, and approvals in effect at the time that the applicant applies for the permit. Specifies that the provisions concerning application of laws, rules, and regulations in effect at the time of application for a permit do not apply if the development or other activity to which the permit relates is not completed within seven years after the development or activity is commenced.
Ind. Courts - "Randolph officials tour aging courthouse"
Joy Leiker of the Muncie Star-Press has another story today on the Randolph County Courthouse. Some quotes:
WINCHESTER -- For two hours Saturday morning, the focus inside the Randolph County Courthouse was on the exposed pink insulation, silver duct work and bricks held in place with everything from electrical tape to plywood.
Members of the Randolph County Council and Board of Commissioners toured the courthouse during their second joint meeting of the new year. * * *
Keith Dilworth, chief deputy to Prosecutor David Daly, pointed to a loose brick he taped to the wall to keep it in place -- in 2000. The 6-foot-tall Daly stood flat-footed and touched the conduit running above his desk. He said even his young child has asked what's wrong with his office.
Bricks and open ceilings are only part of the problem. The county needs more space -- for both its employees and files -- but also needs updates to its electrical lines and equipment. Inside the third floor clerk's office, the wires and extension cords are like a maze.
But these needs are of no surprise to these elected officials, not even to the newbies like Max Edwards. He's one of three new people elected to the county council last November.
"We've got to find some money," Edwards said at the end of the tour. "It's depressing to know how much we've got to do and (that) so much was left undone. It's foolish to let something go this long." * * *
At one time, the courthouse's rough condition put it in line for demolition. But officials have since rescinded that vote, and now, commissioners and council members are talking about how to proceed.
Environment - Carroll County residents frustrated with dairy plans
Odor, traffic, zoning -- those are three specific issues we do not have legal jurisdiction over," said Amy Hartsock, public information officer for IDEM.
The panel of six [IDEM] officials stressed that IDEM also does not have any jurisdiction over how a confined animal feeding operation will affect property values, insect populations and a host of other concerns.
"They are measures to protect public health and the environment through water management," said technical specialist Dennis Lasiter about the focused goal of IDEM's regulations.
Ind. Gov't. - "Pay raise is risky business for lawmakers"
Mary Beth Schneider of the Indianapolis Star has a comprehensive story today on legislative pay and benefits.
The latter entry includes a chart from the National Conference of State Legislatures comparing legislators' pay after separating the states into three categories. "Full-time" or professional legislatures are those where the members spend 80 percent or more of a full-time job on their legislative work. Legislators in these states are paid enough to make a living without requiring outside income. These states include Michigan and Illinois.
Legislatures in the second category of states, according to the NCSL, 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 first category, it's usually not enough to allow them to make a living without having other sources of income."
Where is Indiana? According to the NCSL, it is farther down the scale, with the other "citizen legislatures." According to the NCSL: "In [these] 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. They are often called traditional or citizen legislatures and they are most often found in the smallest population, more rural states."
At the end of the 11/28/06 ILB, the question is asked:
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 sidebar to today's Star story makes the same point, but I disagree with its premise:
Indiana's legislators spend less time in the Statehouse each year than their counterparts in surrounding states and, accordingly, are paid less.The 11/26/06 ILB entry concluded:
Indiana: Base bay of $11,600, plus expense pay of $137 daily when the legislature is in session and $54.80 when out of session. Indiana has a part-time legislature.
Illinois: Base pay of $57,619 per year, plus expense pay of $102 per day. Illinois' is considered a close-to-full-time legislature.
Ohio: $56,569 per year, no expense pay. Ohio's is considered a close-to-full-time legislature.
Michigan: $79,650 per year, plus $12,000 in an annual expense allowance. Michigan's is a full-time legislature.
Kentucky: $170.17 per day plus $100.10 daily expense pay. This is a hybrid legislature, closer to full than part time.
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.Shall we make the decision by default -- i.e. raise the compensation and thus create a full-time professional legislature, or shall we make the decision head-on -- that this is what we want/need for Indiana at this point. And if it is to be a full-time legislaure with professional members, then what shall we expect from them?
[Gary Welsh of Advance Indiana has also posted on the Star story this morning.]
Saturday, February 03, 2007
Ind. Law - "Election official bows out of lawmaker's residency dispute"
The AP is reporting:
VALPARAISO, Ind. - The debate over whether a newly elected lawmaker actually lives in his northern Indiana district may be headed to court after a top state election official announced he'll stay out of the dispute.Check out this ILB entry from Nov. 25, 2004, comparing the then-just-ended controversy over Indiana's District 46 race, and the then-just-looming controversy over a disputed state Senate election in Kentucky, where the issue was whether the apparent winning candidate, Dana Stephenson, met the district's residency requirements.
J. Bradley King, the Republican co-director of the Indiana Election Division, said Friday he disagrees with his Democratic counterpart that the body has the authority to decide the case.
In a letter King sent Friday to his Democratic Co-Director, Pam Potesta, he said that it's too late for the Indiana Election Division to act in the case involving Republican State Rep. Ed Soliday, R-Valparaiso.
Had the issue been raised after Soliday was nominated by Republicans, King said, the election division would have had authority to act while he was still a candidate.
"The role of the election division regarding officeholders is limited to the ceremonial tasks of issuing certificates of election and commissions once the election process is completed," King said.
As a result, King said he would not be able to agree to issue any statement as the official position of the bipartisan election division. He did not offer an opinion as to who has the authority to resolve the dispute.
Democrats contend that Soliday does not live within his northern Indiana legislative district, as is required by law. In the November election, Democrats reclaimed control of the House and now have a 51-49 majority
Indiana Democratic Chairman Dan Parker said last week that he felt the dispute should be taken to court, where he hoped a special election would be ordered for the 4th House District.
Soliday said Friday he's growing increasingly frustrated with the partisan nature of the dispute, saying there appears to be no clear solution or explanation for the problem.
He said his house is just outside the district in one map on Porter County's own Web site and inside the district on another map. Both maps were prepared by state's legislative services office, Soliday said.
"You have two maps created by the state that say two different things," he said. "Who erred where? None of which is me."
Yesterday I tried to put together a summary of the election dispute in Kentucky over "District 37" that is pitting the legislative branch against the judicial branch. I said: "It is relevant not only because it involves a neighboring state, but because such election disputes can and have happened here in Indiana, and may occur again."
Ind. Courts - Another county likely will ban cell phones in Courthouse
WLKI is reporting:
(LAGRANGE) - Cell phones could be banished from the LaGrange County Courthouse and possibly other county buildings in the not to distant future.
LaGrange County Commissioners have placed the issue on their agenda for Monday morning. County Commissioner George Bachman said they got a request for the ban last month from one of the county’s two judges.
The request followed similar bans in Allen and Steuben counties after court officials say the devices were used to record portions of private court hearings and to photograph witnesses.
Courts - "Roberts Supports Court's Shrinking Docket"
"Roberts Supports Court's Shrinking Docket" is the headline to this Washington Post report on Chief Justice John Roberts' speech Thursday at Northwestern University. Here are some quotes:
The court's dwindling caseload has been a topic of controversy, as the number of cases it has taken is about half what it was 20 years ago. Roberts said during confirmation hearings in 2005 that he thought the justices should be taking more cases.I found this paragraph, which I will quote again, most intriguing, and would like to know more about what the Chief Justice means:
"I regarded this as a matter of great concern when I was a practicing lawyer, somewhat less significant when I became a Court of Appeals judge," Roberts said. And now that he has seen it from the high court's viewpoint, he says that at times, there just are not that many cases that merit the court's review.
"The court is still limited to choosing from the petitions filed," he said, and not relaxing standards just to have more cases.
He said there are several reasons for the shrinking docket, most notably the absence of bold initiatives from Congress.
"The court's docket tends to increase when there is major legislation enacted, particularly if the legislation is complex and the stakes are high and it affects a broad segment of the population," Roberts said. "The relative lack of major legislation in recent years, I think, can account to some extent to the corresponding decline in the court's docket."
He also said technology plays a role, because it is easier than ever for lawyers and judges to know the rulings of courts around the country, and that because "judges of all varieties focus more on statutory language" it tends to "narrow the range of disagreements in the courts" that the Supreme Court is often called upon to settle.
"The court's docket ebbs and flows unpredictably," he said, and this year is a good example. Although the court is on track to hear about 80 cases, the same number as it has in recent years, it canceled one day of arguments in December because there was nothing to hear. But a rush of grants after the first of the year means justices will hear more cases in April than it had meant to.
Roberts also returned to a familiar theme: his penchant for narrowly decided cases that are signed by as many members of the court as possible.
"Yes, we might be able to furnish clearer guidance with more sweeping opinions, but our job is to decide cases, not promulgate comprehensive rules," Roberts said. "And I think we are more apt to err when we go beyond what is necessary to decide the case before us."
He said the "distinctive voices" of the justices are more valuable in the private conferences in which cases are decided, rather than in the opinions the court issues.
He also said technology plays a role, because it is easier than ever for lawyers and judges to know the rulings of courts around the country, and that because "judges of all varieties focus more on statutory language" it tends to "narrow the range of disagreements in the courts" that the Supreme Court is often called upon to settle.
Ind. Courts - Reports on bills of interest to the Judiciary discussed this week
The Indiana Judicial Center has posted its reports on bills of interest to the Judiciary discussed this week. Access them here.
Included was this review of the Senate committee hearing on SB 24:
The Senate Corrections, Criminal, and Civil Matters Committee heard extensive testimony on SB 24, concerning the death penalty and mental illness, Sen. Bowser’s bill which would provide for pre-trial dismissal of a death penalty proceeding if the defendant proves by a preponderance that he or she was mentally ill at the time of the offense. Sen. Bowser explained that the legislation, particularly the definition of “mentally ill” (“severe mental disorder or disability that significantly impaired . . . capacity to appreciate the nature, consequences, or wrongfulness of the individual’s conduct,” or “exercise rational judgment,” or “conform the individual’s conduct to the requirements of the law”), was written by an American Bar Association task force. Testifying in favor of the bill were Dr. Phillip Coons, professor emeritus of psychiatry from the I.U. School of Medecine, representing the American Psychiatric Association; Carla Gaff-Clark, Ph.D., representing Mental Health America’s Indiana chapter; and representatives from religious organizations and the National Alliance on Mental Illness. Larry Landis of the Public Defender’s Council testified that the bill would be similar to Indiana’s legislation for avoidance of capital proceedings for mentally retarded individuals, which has helped avoid lengthy and expensive capital trials against individuals who ultimately cannot be executed under the Eighth Amendment. Prosecuting Attorneys Council’s Steve Johnson testified against the bill, pointing out that under present law the mental illness issue can be fully heard and assessed by jurors during the trial. He also argued that deferring action on this sort of procedure is prudent given the Panetti v. Quarterman case now pending before the U.S. Supreme Court on whether a state may execute a person who has severe mental illness. The Committee Chair held the bill, to allow members more time to consider the merits of the bill and whether to defer legislating until Panetti is decided.See also this ILB entry from Jan. 31st.
Friday, February 02, 2007
Law - Indiana lags behind Texas in protecting its girls
"Texas Requires Cancer Vaccine for Girls" is the headline to this story posted late this afternoon in the Washington Post. Some quotes:
AUSTIN, Texas -- Bypassing the Legislature, Republican Gov. Rick Perry signed an order Friday making Texas the first state to require that schoolgirls get vaccinated against the sexually transmitted virus that causes cervical cancer.Meanwhile, in our Indiana General Assembly this week, a committee stripped out such a mandate in a proposal and decided instead to send notes home with the children simply saying such a vaccine was available. See the Indianapolis Star story from Jan. 31st here. The story, by Deanna Martin, concludes:
By issuing an executive order, Perry apparently sidesteps opposition in the Legislature from conservatives and parents' rights groups who fear such a requirement would condone premarital sex and interfere with the way parents raise their children.
Beginning in September 2008, girls entering the sixth grade _ meaning, generally, girls ages 11 and 12 _ will have to get Gardasil, Merck & Co.'s new vaccine against strains of the human papillomavirus, or HPV.
Perry, a conservative Christian who opposes abortion and stem-cell research using embryonic cells, counts on the religious right for his political base. But he has said the cervical cancer vaccine is no different from the one that protects children against polio.
"The HPV vaccine provides us with an incredible opportunity to effectively target and prevent cervical cancer," Perry said in announcing the order.
"If there are diseases in our society that are going to cost us large amounts of money, it just makes good economic sense, not to mention the health and well-being of these individuals to have those vaccines available," he said.
Monica Boyer, with Indiana Voice for the Family, said Merck stands to make billions from the vaccine if states require it. Several health officials who spoke for the bill Wednesday had done business with Merck in the past, although they said Merck did not urge them to speak in support of the bill.
[Bill sponsor Sen. Connie Lawson, R-Danville] said it didn't matter who makes the vaccine.
"Have you ever dreamt that someday we might have a vaccine against cancer? And it's here," Lawson said. "What difference does it make what company makes it? If it's there, and if it's available, why wouldn't we want to protect the health of Hoosier women?"
Indiana's health commissioner agreed.
"To have a vaccine that prevents cancer is a milestone in public health," [Health Commissioner Judy] Monroe said. "We have eradicated smallpox. We have almost eradicated polio, at least in this country. We have an opportunity now to eradicate cervical cancer, and we should all join together to do so."
Ind. Decisions - Transfer list for week ending February 2, 2007
Here is the Indiana Supreme Court's transfer list for the week ending February 2, 2007.(Always be sure to go through all the pages, as the "list" is really two combined lists.)
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.
Courts - Michigan Court: No Same-Sex Benefits from Public Universities and Governments [Updated]
The AP is reporting:
LANSING, Mich. (AP) -- Public universities and state and local governments would violate the state constitution by providing health insurance to the partners of gay employees, the Michigan Court of Appeals ruled Friday.Thanks to How Appealing, here is the Michigan opinion in National Pride v. Gov. of Michigan.
A three-judge panel said a 2004 voter-approved ban on gay marriage also applies to same-sex domestic partner benefits. The decision reverses a 2005 ruling from an Ingham County judge who said universities and governments could provide the benefits.
"The marriage amendment's plain language prohibits public employers from recognizing same-sex unions for any purpose," the court wrote.
A constitutional amendment passed by Michigan voters in November 2004 made the union between a man and a woman the only agreement recognized as a marriage "or similar union for any purpose." Those six words led to the court fight over benefits for gay couples.
Gay couples and others had argued that the public intended to ban gay marriage but not block benefits for unmarried opposite sex or same-sex domestic partners.
The appeals court agreed with the Michigan attorney general, Republican Mike Cox, who said in a March 2005 opinion that same-sex benefits are not allowed in a state that does not recognize same-sex unions.
What does the Michigan Constitution say?
Article 1, section 25 provides: “To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.”On page 2 of the opinion, the Court states:
Thus, while other states have adopted constitutional amendments and/or statutes that place limitations on governmental recognition of same-sex relationships, no court in any of these states has had the occasion to interpret language approximating the “similar union” language found in Michigan’s marriage amendment.The disputed subsection (b) in SJR 7 (as noted in the ILB entry from 2/1/07) reads:
This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups.On a related note, see this story today from The Indiana Daily Student, by Carrie Ritchie, headlined "Same-sex legislation worries some at IU: Many say ban would threaten University benefits."
[Updated 3:47 p.m.] For background on the Michigan case, see this ILB entry from 10/7/05, which at the end includes links to the lower court documents and opinion.
Ind. Decisions - 7th Circuit Wisconsin decision of interest
As the saying goes, it's not paranoia if they're really out to get you: Those who fear that the government may be monitoring their every move suffered a legal setback from the U.S. Court of Appeals for the Seventh Circuit today. A unanimous three-judge panel, in an opinion by Circuit Judge Richard A. Posner, held that the police did not violate a drug suspect's Fourth Amendment rights when the police attached a GPS tracking device to the suspect's car without first having sought or obtained court approval.
Today's opinion suggests that the Fourth Amendment calculus might produce a different answer if the government were actually tracking everyone, a group that by definition includes appellate judges. But since, as far as we know, the government isn't yet tracking everyone, folks whom the government is in fact tracking are well advised not to drive their cars repeatedly to remote areas where their meth labs are located.
Courts - Jurors asking questions during trial
Since the beginning of 2003, court rules in Indiana have permitted questions by jurors. See Rule 20(a)(7) of the Indiana Jury Rules. (Unfortunately, it is unclear from the online version what portions of section 20 have been amended since 1/1/2003. But this ILB entry from 11/28/04 indicates that the questioning witnesses change did come about in 2003, follwed by later changes "to freely discuss elements of a case before they begin deliberating.")
This is not the case in most other jurisdictions, as was made clear again this week in commentary about the Scooter Libbly trial in federal court. Some quotes from a story yesterday in the Washington Post. Some quotes:
It is very unusual for jurors to be able to ask questions during court proceedings, but U.S. District Judge Reggie B. Walton is allowing it as Libby stands trial for allegedly lying to investigators who were trying to determine who leaked the name of CIA officer Valerie Plame after her husband, former ambassador Joseph C. Wilson IV, criticized President Bush's war plans. The 12 jurors and three alternates get to write questions down and pass them to Walton, who reviews them with the attorneys and decides which ones he will ask on their behalf.The Wall Street Journal Blog today asks for readers' comments on whether jurors should be permitted to ask questions of witnesses. Check it out here.
Some of the questions have been dead on, showing that the highly educated jurors -- who include an art curator, a retired math teacher and an international health policy adviser -- seem to home in on key evidence or testimony. Other questions have elicited new insights into witnesses' thinking, and still others have evoked a few laughs.
The whole practice has been controversial among attorneys on both sides -- worried about losing control of the points they hope to score with each witness's testimony -- who argue quietly with Walton at the bench over what can be asked. * * *
While the lawyers may prefer to control the questioning, Walton has told them that it is important for the jurors to be able to probe the things they want answered. He has allowed jurors in his courtroom to ask questions for several years, a rare practice that is slowly becoming more common among some judges.
About 15 percent of state courts and 8 percent of federal courts permit jury questions, and three states require that questions from jurors be allowed: Arizona, Colorado and Indiana.
For other interesting ILB entires along this line, see "Vioxx jurors question witnesses" from 10/14/05; "Kentucky courts wrestle with jury questions" from 4/23/06; and "When jurors have a say" from 5/25/06.
Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)
For publication opinions today (2):
Timothy Glenn v. Dow Agrosciences, LLC - reversed and remanded. Non-compete; trade secrets
Cincinnati Insurance Company and Indiana Insurance Company v. Dr. T. Brandon Davis - reversed and remanded.
NFP civil opinions today (2):
NFP criminal opinions today (2):
Kahsmir Lajuan Bray v. State of Indiana (NFP) - see NWI Times article, 2/3/07.
Thomas Hogston v. State of Indiana (NFP)
Law - "New Vintage of Wine Litigation Is Fermenting"
"New Vintage of Wine Litigation Is Fermenting" is the heading of this long report in The National Law Journal, written by Amanda Bronstad. It begins:
A new crop of litigation is fermenting across the nation in a second round of challenges to state shipping laws that limit direct sales of wine to consumers.More from the story:
New suits and amended complaints filed in the past year are attacking requirements that consumers must purchase wine in person, with the first court decisions recently issued in Maine and Kentucky. Wineries also are challenging legal shipping limits that are based on production volume.
In both types of cases, out-of-state wineries accuse the states of discriminating against them.
The recent litigation puts a new twist on the direct-shipping issues that prompted a recent U.S. Supreme Court ruling. In the ruling, the Supreme Court found that laws in New York and Michigan discriminated against out-of-state wineries by allowing only in-state wineries to ship directly to consumers. Granholm v. Heald, 544 U.S. 460 (2005). The ruling pitted the commerce clause against the 21st Amendment.
More rulings and cases are expected this year, with an anticipated circuit split on the two new issues surfacing in the laws, said Richard Van Duzer, a partner at San Francisco-based Farella Braun + Martel who specializes in wine litigation.
"Ultimately, this will be back before the Supreme Court, which will have to be more explicit about what it said and what it hasn't said," he said.
James Tanford, a professor at Indiana University School of Law who has brought 21 suits on behalf of wineries, said many of the states amended their laws "to give the appearance of an equal economic opportunity for out-of-state wineries but to impose so many regulatory burdens it wouldn't happen."_______
Among the most common complaints are those involving volume caps and in-person purchasing requirements.
Tanford said that in-person purchasing requirements discriminate against out-of-state wineries because "95 percent of the wine is grown on the West Coast, and if you have to go there to make a face-to-face appearance it won't happen. It puts a barrier on sales that will exclude most out-of-state wineries. There is no conceivable justification for that." * * *
In Indiana, two out-of-state wineries and five Indiana residents are challenging portions of the state's law that were revised last year, including a requirement that initial purchases of wine be made in person. Baude v. Heath, No. 1:05-cv-00735 (S.D. Ind.).*
They said the new law "has exactly the same discriminatory effect as those condemned in Granholm," according to a motion for summary judgment filed on July 21.
In response, the state's defendants called the lawsuit "part of a national litigation campaign" against alcohol regulations in several states, according to cross-motions filed on Nov. 17.
Calls seeking comment to the Indiana Attorney General's Office were not returned.
BAUDE et al v. HEATH
John Daniel Tinder, presiding
Tim A. Baker, referral
Date filed: 05/18/2005
Date of last update: 01/23/2007
Thursday, February 01, 2007
Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
Eldred King v. Estate of Jeffrey Johnston (NFP) - deals with dogs and horses
NFP criminal opinions today (0):
Law - More on the California challenge to lethal injections
Last Friday the ILB posted this entry, titled "Law - "N.C. is 11th state to halt lethal injections." It concludes with a note about Indiana's lethal injection challenge.
Today (thanks to a link from How Appealing), the San Francisco Chronicle has an interesting story by Bob Egelko:
The Chronicle and other newspapers urged a federal judge Wednesday to deny Gov. Arnold Schwarzenegger's request that the state be allowed to keep secret the expert advice it receives and deliberations it undertakes before proposing changes in how it executes prisoners.
Schwarzenegger's suggestion that the state make public only the proposed changes and not the discussions or consultations leading to the revisions would "shut Californians out of the debate over the death penalty,'' attorney Karl Olson said in papers filed in U.S. District Court in San Jose.
Olson represents The Chronicle's owner, Hearst Corp., as well as the Los Angeles Times and McClatchy Newspapers, publisher of the Sacramento Bee, Modesto Bee and Fresno Bee.
The state is under orders from U.S. District Judge Jeremy Fogel to revamp its execution procedures and minimize the risk that lethal injection will subject an inmate to a slow and agonizing death.
In a ruling Dec. 15, Fogel said lethal injections are carried out by poorly selected and trained staff in dimly lit and overcrowded conditions at San Quentin State Prison, with inadequate monitoring and record keeping and few safeguards against a botched execution.
He extended a stay of execution that he originally issued last February for Michael Morales of Stockton, convicted of raping and murdering 17-year-old Terri Winchell in 1981. The ruling left all other executions in California on hold.
Schwarzenegger ordered changes in prison staff screening and training, and filed papers with Fogel on Jan. 15, saying the state would prepare a full set of revisions by May 15. Lawyers for the governor and the prison system asked Fogel to keep their deliberations secret from Morales' lawyers and the public.
"The review of the lethal injection protocol will require frank debate and candid consideration of policy alternatives,'' state lawyers said. That internal debate would be harmed, they said, by disclosure of the outside advice that officials receive and the options they consider.
The proposed secrecy order was criticized by Morales' lawyers and by the newspapers, which Fogel allowed into the case to contest the sealing of documents. The judge has scheduled a hearing for Feb. 20.
In Wednesday's filing, Olson noted that Florida Gov. Jeb Bush established an 11-member commission on the same day as Fogel's ruling to meet publicly and propose changes in that state's execution methods. Olson said Bush's action refuted any claim by California officials that "the review of the lethal injection procedure can flourish only in the dark.''
Ind. Law - Same sex marriage amendment advances [Updated]
This ILB entry from two years ago (March 24, 2005), titled "Ind. Law - Impact of same sex marriage ban in Ohio and Michigan Constitutions may portend Indiana issues," is just as relevant this morning. (See also this list.)
Today there are a number of stories about SJR 7 passing out of Senate committee. Bill Ruthhart, writing for the Indianapolis Star, reports at length in a story including a valuable sidebar showing who voted for and against the amendment, and "what's next." Much of the testimony yesterday was focused not on subsection (a) of the proposed addition of a new Section 38 to the Indiana Bill of Rights, which would provide that "Marriage in Indiana consists only of the union of one man and one woman," but on subsection (b), which would provide:
This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups.There was testimony back and forth about whether this subsection would prevent the General Assembly from legalizing civil unions, or conferring other rights. More from the story:
Many opponents focused on that language, saying it could corrupt the intent of domestic violence and health-benefit laws that apply to all unmarried couples, and they pointed to the fallout from similar proposals in Ohio and Michigan.Lesley Stedman Weidenbener of the Louisville Courier Journal reports:
In Ohio, the result has been a legal debate about whether the state's domestic-violence laws apply to unmarried couples. In Michigan, public universities and municipalities have faced lawsuits for offering domestic-partner benefits.
Opponents said they feared the same would happen in Indiana if the amendment is approved this session and adopted by voters next year.
Proponents were unswayed. "In my judgment, those claims are bogus," said James Bopp Jr., a Terre Haute attorney who specializes in constitutional law. Bopp said the Michigan and Ohio amendments are different because they prevent legislatures in those states from recognizing, in any law, couples who aren't married.
The Indiana amendment, he said, would prevent the courts only from allowing unmarried couples to receive marriage benefits. He said legislators also still could pass laws granting those privileges to unmarried couples.
Bopp also told lawmakers that adoption rights and domestic-partner benefits offered by state universities would be unaffected by the amendment. And he said Indiana's domestic-violence law would continue to apply to all.
Kerry Hyatt Blomquist wasn't so sure. An attorney for the Indiana Coalition Against Domestic Violence, Blomquist urged the committee to vote against the amendment. She said that if the amendment passes, courts could decide that the state's domestic-violence laws apply only to married couples.
The General Assembly initially approved the marriage-ban proposal two years ago. If it passes again in exactly the same form, it will go on the general election ballot in 2008 for final approval.Mike Smithof the AP has a story here in the Fort Wayne Journal Gazette.
The proposed amendment has two parts. First, it defines marriage as the union of one man and one woman. The second part says that state law "may not be construed" to provide the "incidents" of marriage on unmarried couples or groups.
The language in the second part is what proved the most controversial during yesterday's hearing.
Opponents called that provision vague and said it could be used to invalidate domestic-violence laws that pertain to unmarried couples or a law that allows single Hoosiers, in addition to married couples, to adopt.
They also said it could nullify contracts between unmarried people, including many older Hoosiers, that address inheritance, health care and other legal issues.
Kerry Hyatt Blomquist, legal counsel to the Indiana Coalition Against Domestic Violence, pointed to problems in Ohio, where a recent constitutional ban on same-sex marriage has led to a court battle.
Several Ohio courts have ruled that the state's 1979 domestic-violence law doesn't apply to unmarried partners because the state's constitutional amendment gives their relationship no legal status. The Ohio Supreme Court is now considering the issue.
Blomquist said a similar situation in Indiana would be devastating.
"Fifty-two percent of domestic-violence victims are not married to their abusers," she said.
Walter Botich, president of the group Stop the Amendment, said similar problems could develop with other laws.
But Jim Bopp, an attorney who is active in state and federal election cases and anti-abortion cases, told senators that such claims "are bogus." He said the Indiana proposal's language is significantly different from that of Ohio's ban.
Bopp said the Indiana language would simply prevent a court from ordering marriage-like benefits for unmarried couples. But he said it wouldn't prevent the legislature from writing laws that allow unmarried couples to have specific benefits.
Jondi Schmitt of the South Bend Tribune has a story that begins:
In a hearing disrupted by protesters supporting same-sex marriage, the state Senate Judiciary Committee passed a joint resolution to amend the Indiana Constitution to provide that "marriage in Indiana consists only of the union of one man and one woman."One wonders: If the aim is to take the issue out of the hands of "activist" judges, then why amend the Indiana Constitution with language that is demonstrably ambigous, as illustrated by the conflicting opinions quoted in the stories above, and will require years of court interpretation, as has already proven to be the case in several of our sister states?
Wednesday's meeting marked the third time the issue was put before the state Senate. It passed during the 2005 session, but the proposed amendment must be agreed to by a second General Assembly and then confirmed by a majority of the state's registered voters to become effective.
"The point of this resolution is to move this issue, the definition of marriage as we have known it throughout the ages, out of the hands of the what is an activist effort to seek a judicial rewrite of the definition of traditional marriage," said Sen. Brandt Hershman, R-Wheatfield, the resolution's author.
The cynical answer is that the supporters think that, once ratified, subsection (a) will stand, regardless of the certainty of major future court fights about the meaning of (b) and its impact on Indiana's citizens.
[Updated 10:58 a.m.] The Indianapolis Star makes a similar point today in its editorial opposing the amendment. A quote: "While supporters argue that it restricts judicial activism, the vagueness of the language makes this an open question."
Ind. Gov't. - Shifting executive responsibilites away from Governor
In 1941 the General Assembly, unhappy with the Governor, enacted a number of laws taking various agencies out from under the authority of the Governor and placing the responsibility for heading them under other state elected officials, including the Secretary of State, Treasurer, Auditor, and Attorney General. These laws were declared unconstitutional by the Indiana Supreme Court in the case of Tucker v. State, 218 Ind. 641 at 697-699 (Filed June 26, 1941. Rehearing denied July 11, 1941). For more on this, see this Jan. 10, 2005 ILB entry. See also "Maintaining the Balance of Power between the Legislative and Executive Branches of Indiana State Government post 1941," available here.
Today Rick Callahan of the AP has this story, headlined "Bill seeks to shift licensing duties: Secretary of state would have BMV." It begins:
A bill that would shift administration of the Bureau of Motor Vehicles from its current governor-appointed post to one chosen by Indiana's voters -- the secretary of state -- cleared a House committee yesterday.
The House Roads and Transportation Committee heard about an hour of testimony before voting 7-5 to send the legislation to the full House for debate.
The bill also would abolish the Bureau of Motor Vehicles Commission, which provides oversight for the state's 139 license branches. The commission's powers, duties, functions and property would be overseen by the secretary of state.
Rep. Scott Pelath, D-Michigan City, told the committee his bill would make a single person accountable for the agency, which has had a troubled history that includes delays and long lines last summer during the transition to a new computer system.
Pelath said it also would aid Indiana's elections by making the secretary of state -- who oversees elections -- responsible for the agency that issues driver's licenses, which many Hoosiers use as the photo ID required in order to vote.
"There are things that could work better, and by moving forward we can improve elections by putting them under one roof and providing more accountability," he said. "I think it makes sense to have one elected official who can be held accountable for the BMV."
Ind. Decisions - "Court refuses to disqualify candidate"
The AP has a story on yesterday's Court of Appeals decision in the case of J. Bradley King and Krisi Robertson in their official Governmental capacities as Co-directors of the Indiana Election Division, et al. v. Leo T. Burns, et al. (see ILB entry here):
- The Indiana Court of Appeals refused to disqualify a candidate whose paperwork was filed at the wrong office before he won the election.
While there was no dispute that the form certifying Leo Burns' candidacy was filed at the Cass County clerk's office instead of the Indiana Election Division as state law requires, the mistake did not affect the outcome of the election, the three-judge panel ruled Wednesday.
"We decline to disenfranchise the voters of Cass County by overturning their decision that Burns should be their circuit court judge, based on a technical violation of a law that had no practical effect on the validity of the November 7, 2006 general election," Judge Michael P. Barnes wrote in the nine-page opinion.
Burns publicly announced his candidacy for circuit judge on May 14 after no Democrat ran in the primary election, and a Democratic caucus picked him as the party's candidate on May 23.
The next day, the county chairman filed a form certifying Burns as the Democratic candidate at the county clerk's office. But state law requires the form to be filed with the state, not the county, and the county clerk did not forward the form to state election officials.
In August, Burns discovered his name wasn't on an online roster of candidates certified in the election, and found out about the missing form when he called the state Election Division. The next month, Burns obtained a court injunction ordering the state to certify him as a candidate. Election officials appealed but were denied a stay of the order, and Burns appeared on the ballot and won the election.
Declaring Burns' candidacy invalid at this point based on a technicality would defeat the purpose of the election, the judges ruled.
"There is no allegation here of any fraud in Burnss candidacy or in the November 7 general election, nor any assertion or evidence that he failed to comply with every statute governing elections and qualifications for a circuit court judge, save one," the ruling said.