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Saturday, March 31, 2007

Ind. Law - Screening patients for alcohol-drugs may mean insurer won't pay their claims

Bryan Corbin of the Evansville Courier & Press had an interesting story this week about HB 1378. The story begins:

A woman who has a glass of wine at dinner trips and falls outside the restaurant.

The hospital emergency room treats her broken ankle, but although she is insured, her health-insurance company won't pay the claim. The reason: A blood test showed she had alcohol in her system, even though she wasn't legally intoxicated. And that denial is perfectly legal.

Indiana lawmakers heard that Portland, Ore., example Thursday as they considered a proposal to change the law, so insurers cannot deny claims solely because patients test positive for alcohol or drugs.

Over one year, Deaconess Hospital in Evansville treated six patients who tested positive in alcohol-drug screenings, whose insurance companies later wouldn't pay their claims.

Those unreimbursed charges totaled more than $360,000, said Paul Swiz, manager of regional network services at Deaconess Health System in Evansville.

As a result, Swiz said, Deaconess

no longer conducts routine blood-alcohol screenings of trauma-room patients, so insurers won't deny payment. "It's sort of a Catch-22," Swiz told a state Senate committee Thursday.

The culprit is a 1947 law, the Uniform Accident and Sickness Policy Provision Law, which allows insurance companies to deny coverage if insured patients have alcohol or intoxicating substances in their systems when injured. Some insurance carriers ignore the 60-year-old law and pay anyway; others enforce it.

Posted by Marcia Oddi on Saturday, March 31, 2007
Posted to Indiana Law

Ind. Courts - Report of Court of Appeals oral argument held in Evansville

Kate Braser of the Evansville Courier & Press reported yesterday (complete with a photo of the judges) on the oral argument held Thurday in Evansville. Some quotes:

A crowd of more than 100 at the University of Southern Indiana got a closeup look at how part of the Indiana judicial system works.

Three of the 15 judges on the Indiana Court of Appeals visited Evansville on Thursday to hear an appeal from Lake County Superior Court. * * *

The visit marked the Court of Appeals' sixth visit to USI and the 181st oral argument heard on the road.

Hearing the case were Judges Melissa May, Nancy Vaidik and Michael Barnes.

May previously practiced law in Evansville. Representing the state was Scott Barnhart, originally from Newburgh. His parents attended the session.

The defendant in the case, Sergio Campos, is charged with dealing cocaine after police stopped a car in which he was a passenger.

At issue is whether the search was fair.

Posted by Marcia Oddi on Saturday, March 31, 2007
Posted to Indiana Courts

Ind. Decisions - Still more on lethal injection challenge pending before federal judge

Updating this ILB entry from yesterday, which quoted from an AP story on the action challenging Indiana lethal injection procedures that is pending before U.S. District Judge Richard L. Young, the Louisville Courier Journal has this AP story today about a similar challenge pending before a federal judge in Kentucky. It begins:

Kentucky's executioners can be questioned about their training and qualifications by attorneys for a death row inmate challenging the use of lethal injection, a federal judge ruled yesterday.

Members of the execution team could remain anonymous, but their background, training and experience could be explored, according to the ruling by U.S. District Judge Karen Caldwell in Lexington.

The decision came in the case of Brian Keith Moore, who is awaiting execution for a 1979 murder in Louisville.

He is challenging the use of lethal injection on grounds that the drugs used will cause him excruciating pain in violation of the constitutional ban on cruel and unusual punishment.

Posted by Marcia Oddi on Saturday, March 31, 2007
Posted to Ind Fed D.Ct. Decisions

Ind.Decisions - More on "Gay-rights article stirs debate over student freedoms"

Updating this ILB entry from March 26, 2007, Krista J. Stockman of the Fort Wayne Journal Gazette reports today in a story headlined "Journalism groups rally to aid adviser."

The journalism teacher who allowed the student newspaper to publish an opinion piece urging tolerance for gays is apparently going to be fired. Some quotes from today's story:

Amy Sorrell, who has been a teacher at Woodlan for four years, was notified Thursday that the school board will vote May 1 on terminating her contract. Administrators outlined seven reasons for firing her, including not following directives from Principal Ed Yoder regarding the editorial policy of the newspaper, altering the newspaper class curriculum, neglecting the yearbook program and engaging in a campaign placing East Allen County Schools and Yoder in a false light by implying they are intolerant.

The accusations stem from the publishing of an opinion piece in the Jan. 19 issue of the Tomahawk that questioned intolerance toward homosexuals. Shortly after the newspaper was distributed, district officials said the content of the column was inappropriate for an audience that includes children as young as 11 years old and that it should have been cleared first by Yoder. * * *

[S]upporters across the country are lining up to fight for Sorrell, who teaches other classes including AP English, and the students’ First Amendment rights.

The Student Press Law Center, an advocacy group for student newspapers based in Arlington, Va., is working to find a local attorney to help Sorrell in her fight. * * *

In recent weeks, Sorrell and her students have also received support from the Indiana chapter of the American Civil Liberties Union, the Indiana High School Press Association and journalism professors and experts at Indiana and Ball State universities.

“A lot of groups just absolutely find this the most amazing thing that has happened in years in this state, to fire a teacher over a personal opinion column about tolerance in the schools,” said David Adams, a journalism professor at Indiana University and adviser for the Indiana Daily Student. In nearly four decades of working with student journalists, he said, he has never seen a case like this.

Posted by Marcia Oddi on Saturday, March 31, 2007
Posted to Ind. (7th Cir.) Decisions

Courts - "Webcasts open a window to Texas Supreme Court"

The Houston Chronicle reports today:

WHILE the Texas Supreme Court falls below the U.S. Supreme Court in the judicial hierarchy, it leaped ahead of its federal counterpart last week in the transparency of its proceedings.

Congressmen, television networks and journalists have tried for decades to convince the U.S. Supreme Court to allow its proceedings to be televised, but have not overcome the steely resistance of the justices. "The day you see a camera come into our courtroom, it's going to roll over my dead body," Supreme Court Justice David Souter once said.

Not so in Texas, where last week, our Supreme Court began offering live video Webcasts of oral arguments on its Web site (www.supreme.courts.state.tx.us/). These Webcasts provide Texans with a wonderful opportunity to gain insight into the decision-making of the highest court in the state, a court which decides the scope of our rights under the Texas Constitution, the constitutionality and proper interpretation of the statutes passed by our legislators, and many other cases critical to the functioning of our civil justice system.

Here is the page from which to access the oral arguments.

The video arguments are available beginning with March 2007. However, in this day of You-Tube, the access to the Court's videos is fairly clunky, and I never did get it to work -- you apparently have to download additional plug-ins.

Audio versions of the Texas Supreme Court oral arguments have been available since Septemeber 2004 and can be downloaded as MP3s (like the 7th Circuit), which allows the user to listen via I-Tunes, etc., as well as on the computer.

Posted by Marcia Oddi on Saturday, March 31, 2007
Posted to Courts in general

Friday, March 30, 2007

Law - "Students Sue Anti-Cheating Service" for copyright violation

Maria Glod of the Washington Post has an interesting story today that I ran across via this Slashdot entry. From the Post story:

Two McLean High School students have launched a court challenge against a California company hired by their school to catch cheaters, claiming the anti-plagiarism service violates copyright laws.

The lawsuit, filed this week in U.S. District Court in Alexandria, seeks $900,000 in damages from the for-profit service known as Turnitin. The service seeks to root out cheaters by comparing student term papers and essays against a database of more than 22 million student papers as well as online sources and electronic archives of journals. In the process, the student papers are added to the database. * * *

"All of these kids are essentially straight-A students, and they have no interest in plagiarizing," said Robert A. Vanderhye, a McLean attorney representing the students pro bono. "The problem with [Turnitin] is the archiving of the documents. They are violating a right these students have to be in control of their own property." * * *

Andrew Beckerman-Rodau, co-director of the intellectual property law program at Suffolk University Law School, said that although the law regarding fair use is subject to interpretation, he thinks the students have a good case.

"Typically, if you quote something for education purposes, scholarship or news reports, that's considered fair use," Beckerman-Rodau said. "But it seems like Turnitin is a commercial use. They turn around and sell this service, and it's expensive. And the service only works because they get these papers."

Posted by Marcia Oddi on Friday, March 30, 2007
Posted to General Law Related

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.

The report reminds us that:

Next week is the last week for committee meetings. The last day for third readings is Tuesday, April 10th for the Senate and Wednesday, April 11th for the House.

Posted by Marcia Oddi on Friday, March 30, 2007
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending March 30, 2007

Here is the Indiana Supreme Court's transfer list for the week ending March 30, 2007.

No cases were granted transfer this week.

(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.

Posted by Marcia Oddi on Friday, March 30, 2007
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 5 today (and 8 NFP)

For publication opinions today (5):

In the Matter of C.S., L.S., and M.S., and Christopher Montgomery v. Marion Co. Office of Family & Children - "Christopher Montgomery appeals the trial court’s determination that his child, C.S., is a child in need of services (“CHINS”), alleging that the trial court’s determination was not supported by sufficient evidence. Concluding that the evidence and findings do not support the trial court’s judgment, we reverse."

In Rebecca Shaw, Estate of Kayla N. Hughes and Stephen Hughes v. LDS Enterprises, Inc. d/b/a I&I Steakhouse, et al, a 14-page opinion, Judge May writes:

Kayla Hughes was killed in an automobile accident after she spent some time at I&I Steakhouse, a restaurant owned by LDC Enterprises. Her parents, Rebecca Shaw and Steven Hughes (collectively, “Shaw”), sued LDC alleging employees of the restaurant served alcohol to Kayla, who was sixteen at the time. LDC moved to dismiss three counts of the complaint on the ground they were governed by Illinois law, and the trial court granted the motion.[ft 1] Shaw asserts on appeal Indiana law applies. We reverse. * * *

The last event necessary to make LDC liable for its alleged wrong took place in Indiana with Kayla’s death, and application of Illinois law would leave Shaw without a remedy. The substantive law of Indiana therefore applies. The counts in Shaw’s amended complaint alleging nuisance under Indiana statutory and common law, and seeking injunctive relief should not have been dismissed. We reverse and remand. Reversed and remanded.
[1] Dépeçage is the process of analyzing different issues within the same case separately under the laws of different states. Simon v. United States, 805 N.E.2d 798, 801 (Ind. 2004). Indiana’s choice-of-law rules do not permit dépeçage. Id. at 803. This appears to be the reason the counts were dismissed rather than analyzed under Illinois law by the Indiana court.

[ILB - This choice-of-laws case includes, in addition to a number of interesting footnotes, application of the Lex Loci Delicti presumption ("we hold the last act necessary to make LDC liable for nuisance was the injury in Indiana"), discussion of the availability of relief under the Illinois and Indiana dram shop acts, etc.]

Denny A. Wages v. State of Indiana - "The trial court did not abuse its discretion in ruling that Kern will be permitted to testify as to her observations of Wages’s driving shortly before the fatal wreck. We affirm."

Richard J. McVey v. State of Indiana - "Based on the foregoing, we conclude that (1) the trial court properly admitted McVey’s voluntary statements made during a polygraph examination; (2) the trial court properly excluded evidence of the victim’s prior sexual history under Indiana Evidence Rule 412; (3) the trial court properly denied McVey’s Motion for a New Trial; and (4) several of the special probation conditions for adult sex offenders imposed upon McVey are not sufficiently clear to inform him of what conduct is prohibited, and thus, we remand to the trial court to reconsider and clarify these conditions with greater specificity. Affirmed in part, reversed in part, and remanded with instructions."

Travis D. Fentress v. State of Indiana - "Because the foil ball was properly discovered during a Terry search and was properly opened and examined pursuant to a search incident to arrest based on probable cause, we conclude that the cocaine was properly admitted into evidence. Therefore, the trial court did not abuse its discretion by allowing the cocaine to be admitted into evidence."

NFP civil opinions today (3):

Patricia Cummins v. The Kroger Company (NFP) - "In other words, we conclude that no reasonable trier of fact could conclude that Cummins was let go for any reason other than her inability to perform her job without assistance. We therefore cannot say that the trial court erred in granting summary judgment in favor of Kroger."

Phyllis Dean v. Jack Reed (NFP) - "We note here that we understand the trial court’s loss of patience in the present case. This was a case which had been languishing on the court’s docket without significant progress for years. Both parties had failed to appear for pre-trial conferences, and the case had even been dismissed once for failure to prosecute but later reinstated. The plaintiff ultimately failed to appear at the hearing upon her own motion for summary judgment. Had the trial court exercised its discretion in dismissing the case yet again for failure to prosecute, we cannot say that the trial court would have erred in so doing. However, in granting summary judgment to Reed upon all of Dean’s claims when Dean had moved only for partial summary judgment and when the designated evidence, which was submitted solely by Dean, did not support summary judgment, the trial court’s actions, however understandable, were improper. The judgment of the trial court is reversed, and the cause is remanded for proceedings consistent with this opinion."

Myron R. Huffman v. Marcia A. Huffman (NFP) - "The trial court did not abuse its discretion in dividing the marital estate. We affirm."

NFP criminal opinions today (5):

David S. Delucenay v. State of Indiana (NFP)

Rodney Strong v. State of Indiana (NFP)

Adel Yazidi v. State of Indiana (NFP)

Matthew Knippenberg v. State of Indiana (NFP)

Andrew T. Serafine v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, March 30, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One Indiana decision from 7th Circuit today

The case is Spiegla v. Hull (ND Ind., Allen Sharp, Judge), a 12-page opinion. SYKES, Circuit Judge:

This First Amendment retaliation case is before us for the second time. In the first appeal, we held that Indiana State Correctional Officer Nancy Spiegla engaged in protected speech by reporting a possible security lapse to an assistant superintendent at the Westville Correctional Facility where she worked. On remand, a jury found that the defendants—Westville’s superintendent, assistant superintendent, and a senior corrections officer—retaliated against her on the basis of this protected speech and awarded her $210,000 in damages. The defendants appealed, and after briefing was completed, the Supreme Court decided Garcetti v. Ceballos, 126 S. Ct. 1951, 1960 (2006), holding that the First Amendment does not protect statements made pursuant to a public employee’s official duties because that employee is not speaking as a “citizen” but as an employee. Because our first holding addressed the degree of First Amendment protection afforded public employees under then-existing case law, we must now reexamine its soundness in light of Garcetti.

The speech at issue here is a complaint Spiegla made about having been prevented by her immediate supervisor from investigating a possible security breach while she was on duty and stationed at the prison’s main gate. Spiegla noted the incident in her log and later that same day reported it to an assistant superintendent. In bringing the possible security lapse to his attention, Spiegla was speaking not as a citizen but as a correctional officer charged with the duty to ensure the prison’s safety and security. Accordingly, the First Amendment does not insulate her statements from employer discipline, and the judgment in her favor must be vacated. * * *

Accordingly, the judgment entered in Spiegla’s favor must be vacated, but not without our observation that the record and the jury’s verdict substantiate that Spiegla was punished for simply trying to follow the rules. Garcetti instructed that public employers should, “ ‘as a matter of good judgment,’ be ‘receptive to constructive criticism offered by their employees.’ ” Garcetti, 126 S. Ct. at 1962 (quoting Connick, 461 U.S. at 149). Our holding here, however, is a straightforward application of the principle in Garcetti that there is not a “constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.” Id. The judgment is VACATED and the case is REMANDED to the district court with instructions to enter judgment for the defendants.

Posted by Marcia Oddi on Friday, March 30, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - 7th Circuit Judge Posner lauded in Harvard Law Review issue

Howard Bashman pointed out late last evening in this How Appealing entry that the current (March 2007) issue of the Harvard Law Review fetes "25 years of Richard Posner, the Judge."

Posted by Marcia Oddi on Friday, March 30, 2007
Posted to Indiana Courts

Ind. Courts - More on: Evansville lawyer sentenced in misdemeanor case

Updating this ILB entry from March 13th, Gavin Lesnick of the Evansville Courier & Press reports today:

Police said they discovered a meth lab Thursday night in the law office of an Evansville attorney who recently was sentenced to treatment for an earlier drug-related offense.

Brad Happe, 30, is facing preliminary charges of dealing meth-amphetamine and possession of precursors after police raided his law office and reportedly found materials used to make methamphetamine inside. * * *

Police confiscated suspected anhydrous ammonia, pseudoephedrine tablets, lithium batteries, sulfuric acid and other items commonly associated with manufacturing meth, Althoff said.

This arrest comes a little more than a month after Happe was sentenced on a misdemeanor charge after an arrest for visiting a common nuisance.

In that April 2006 incident police, found him outside a home where a meth lab was discovered.

Happe was ordered into a treatment program and was due to appear in court June 14 to review his progress.

Posted by Marcia Oddi on Friday, March 30, 2007
Posted to Indiana Courts

Ind. Decisions - More on lethal injection challenge pending before federal judge

As mentioned in several recent ILB entries (here for instance), an action challenging Indiana lethal injection procedures is pending before U.S. District Judge Richard L. Young. A detailed account has now been written by the AP's Tom Coyne. Some quotes:

SOUTH BEND, Ind. - A man sentenced to die by lethal injection on May 4 and another death row inmate have asked a federal judge to allow them to join a third condemned prisoner in challenging the state's execution method, alleging it constitutes cruel and unusual punishment.

David Leon Woods, who fatally stabbed a DeKalb County neighbor in April 1984, and Michael Lambert, who killed a Muncie police officer in 1990, have asked U.S. District Judge Richard L. Young in Indianapolis to allow them to join Norman Timberlake in challenging Indiana's lethal injection protocol. * * *

The state is challenging the motions by Woods, filed March 5, and by Lambert, filed March 1, saying they have known for years how the state executes inmates and have waited until now to challenge it. Adding more defendants and attorneys to the Timberlake case would only complicate it, the state claims.

Timberlake, in his argument against the state's execution method, states he "will be fully conscious and in agonizing pain for the duration of the execution process." He states that Indiana inmates who have been executed have repeatedly failed to receive adequate anesthesia and have remained conscious during the administration of lethal drugs.

The state denies its method of executing inmates constitutes cruel and unusual punishment.

Timberlake's attorneys have no objection to Woods and Lambert joining the case. Young has not yet ruled.

This is from a Chicago Tribune editorial quoted here earlier this week:
Even when the government convicts the right person, it can horribly botch the punishment. In December, it took Florida authorities 34 minutes to end the life of Angel Nieves Diaz because a poorly trained executioner incorrectly inserted a needle into his arm. The blunder prompted then-Gov. Jeb Bush to halt executions until the state improved its lethal injection procedures. * * *

Society's standards of justice and punishment continue to evolve. In the early 1900s, states began to substitute the electric chair as a more humane method of execution than the gallows. In the 1980s, lethal injection began to replace the electric chair and firing squads. Now lethal injection is coming under more scrutiny as evidence grows that it subjects the condemned to a great deal of pain. Eleven states have halted executions while they examine their lethal injection procedures.

Posted by Marcia Oddi on Friday, March 30, 2007
Posted to Ind Fed D.Ct. Decisions

Ind. Law - South Bend Tribune editorial against SJR 7

I was tickled this morning to see that the South Bend Tribune, the same paper that earlier this week published this full-page ad paid for by "Indiana Family Action, AFA of Indiana PAC, FRCAction, Focus on the Family Action," today published this editorial titled "Gay marriage amendment is not needed."

[Thanks to Taking Down Words for making the ad available.]

Posted by Marcia Oddi on Friday, March 30, 2007
Posted to Indiana Law

Ind. Gov't. - More on "Ivy Tech’s troubled roots: Political entanglements deter community college mission"

Following up on this March 25th ILB entry, quoting from a signed editorial in the Fort Wayne Journal Gazette by Karen Francisco, and linking to earlier ILB entries on the topic, see this column today by Matthew Tully of the Indianapolis Star, headed "Makeover tip for Ivy Tech: Stop hiring lawmakers." Some quotes:

After weeks of negative publicity, [incoming Ivy Tech President Thomas] Snyder could give Ivy Tech an image boost by erasing a decade of questions about its integrity. All he has to do is say the school will start selecting administrators from among the 6.3 million Hoosiers who don't serve in the state legislature.

Instead of continuing to hire people such as the following:

• Speaker Pat Bauer, D-South Bend, who holds a $112,000-a-year vice presidential post.

• House Ways and Means Chairman Bill Crawford, D-Indianapolis, whose director of outreach post pays $71,000 a year.

• Rep. Craig Fry, D-Mishawaka, who is dean of apprenticeship studies, a job with an annual salary of $107,000.

Giving high-paying Ivy Tech jobs to state lawmakers -- former Republican Senate boss Bob Garton, an Ivy Tech administrator, was hired by the school during his Senate tenure -- is one of those much-criticized but long-accepted practices. It's such a part of the institution that people at the Statehouse joke about it. Every so often, a story runs in this paper or elsewhere, pointing out the conflict and generating short-term outrage.

Then the issue goes away.

And lawmakers continue collecting paychecks from an institution whose budget and policies they oversee.

Posted by Marcia Oddi on Friday, March 30, 2007
Posted to Indiana Government

Ind. Law - US News law school rankings now available [Updated]

And unfortunately, the leaked rankings I posted yesterday were correct, insofar as the two IUs are concerned.

IU-Bloomington, #36; IU-Indianapolis, #85; Notre Dame, #28; Valparaiso, Tier 4 (where schools are listed alphabetically).

In 2007, IU-Bloomington was 37; IU-Indianapolis was 77. In 2006 the rankings were 36 and 95. See the complete US News 2008 lists here.

[More] Today's Wall Street Journal has a column (paid subscription only) by Naomi Schaefer Riley that begins by telling that the presdient of Arizona State University "may get $60,000 tacked on to his salary this year if he can manage to improve his school's ranking in the U.S. News & World Report annual college survey."

For more, see this story from March 18th in the Phoenix East Valley Tribune, which is freely available.

Posted by Marcia Oddi on Friday, March 30, 2007
Posted to Indiana Law

Thursday, March 29, 2007

Ind. Decisions - Voter ID decision featured in new law journal article

Prof. Rick Hasen of Election Law Blog has a new law journal article, The Untimely Death of Bush V. Gore, posted on SSRN. Access the 40-page article, and read an extended summary, here. The concluding paragraph of the summary reads:

Part III returns to the failure of the courts in the wake of Bush v. Gore. It begins by noting that the rise in election litigation that this country witnessed after Bush v. Gore continues unabated. It then uses the Supreme Court's recent opinion in Purcell v. Gonzales to show that the Court has failed to learn the lessons of Bush v. Gore. The Court's decision to issue a quick opinion, its casual empiricism, and its discouraging of pre-election litigation demonstrate that all members of the Court—both liberal and conservative Justices—are insufficiently sensitive to the kind of trouble their election administration opinions may cause. Part III concludes with an examination of Judge Posner's troubling Seventh Circuit opinion in Crawford v. Marion County Election Board upholding Indiana's voter identification law against a dissent by Judge Evans.
Crawford is, of course, the Indiana voter ID case. See this long list of earlier ILB entries on the case.

[Thanks to Legal Theory Blog for the link.]

Posted by Marcia Oddi on Thursday, March 29, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on "Supreme Court sets execution date in 1984 stabbing death"

Prof. Douglas Berman of Sentencing Law & Policy Blog has posted this entry today, which I quote in full:

Tracking the execution realities of 2007

Though there is constant chatter about capital punishment nationwide, I cannot help highlighting again that only one state is continuing to administer the death penalty.

As detailed in this Houston Chronicle story, Texas executed its tenth murderer of 2007 last night, and it has another execution scheduled for tonight and three more scheduled in April. (As discussed here, one of the scheduled April execution is a woman with a distinctive claim of innocence.)

Meanwhile, mostly as a result of lethal injection litigation, no other state in the country has executed anyone since an early January execution in Oklahoma. And over the last five months there have been only 3 execution outside Texas.

As detailed here at DPIC, these dynamics could change soon. There are federal and Ohio executions scheduled for April, and Tennessee and Nebraska have executions scheduled for May. But even if other states get back in the execution business, it seems likely that 2007 will have the fewest US executions in over a decade.

I have just written Prof. Berman to point out that Indiana remains in the mix.

Posted by Marcia Oddi on Thursday, March 29, 2007
Posted to Indiana Decisions

Environment - "CAFO bill worries health officials"

Joshua Stowe of the South Bend Tribune reports today:

A state Senate bill that would void St. Joseph County's feedlot ordinance worries county health officials, health advocates and some area politicians who want the measure amended before it's passed.

Senate Bill 431, authored by Sen. Beverly Gard, R-Greenfield, would make the state responsible for regulating most aspects of confined feeding operations and concentrated animal feeding operations.

According to a synopsis of the bill, the measure would give the Indiana Department of Environmental Management and state environmental boards "sole regulatory authority for protection of human health and the environment concerning CFOs and CAFOs."

Further, the bill would mean that local governments could regulate such operations only with respect to land use and zoning.

Marc Nelson, environmental health manager for the St. Joseph County Health Department, believes that's a bad idea. Nelson oversaw the volunteer task force that helped craft the county's ordinance to regulate CAFOs in an effort to protect public health.

"I think that people of Wabash County and this county and many other counties have spoken that they want tighter controls on these CAFOs," he said, "and I think that legislators should be responsive to what people want."

For background, begin with this ILB entry from March 23rd.

Posted by Marcia Oddi on Thursday, March 29, 2007
Posted to Environment

Ind. Decisions - "Indiana man gets 27 months in prison for selling counterfeit software on eBay" [Updated]

Heather Havenstein of ComputerWorld reports today:

An Indiana man was sentenced yesterday to 27 months in prison for selling more than $700,000 worth of counterfeit software on eBay, according to the U.S. Department of Justice.

Courtney Smith of Anderson, Ind., was sentenced by the Southern District Court of Indiana for violating criminal copyright infringement laws by selling the counterfeit software over the Internet. Smith admitted in court that he bought counterfeit Rockwell Automation Inc. software through eBay, duplicated it and resold the software to other eBay users. Rockwell specializes in factory management software.

Between March and May 2004, Smith sold counterfeit copies of the software in 32 or more separate eBay auctions for more than $4,000, according to the district court. The retail value of the software was $700,000.

"Mr. Smith exploited eBay to sell hundreds of thousands of dollars' worth of counterfeit software at drastically reduced prices, thereby illegally profiting on the back of the copyright holder," Alice Fisher, assistant attorney general at the Justice Department, said in a statement.

The case stems from a DOJ effort to combat online auction piracy. In December 2004, FBI agents executed a search warrant at Smith's home, where they seized several computers, CDs and other devices used to manufacture and counterfeit software, the DOJ said.

[Updated 3/30/07] For additional coverage, see this story from TechShout.com. A quote:
According to Assistant US Attorney, Steve DeBrota, “This kind of scheme is a recognized problem and fairly wide spread. This problem has significantly increased over time. An increasing number of businesses are seeking out and buying counterfeit software to save some money.”

BeBrota also mentioned that besides, Rockwell Automation who was hurt by this fraud, the people and entire companies who bought and sold the counterfeit software could also be liable.

Posted by Marcia Oddi on Thursday, March 29, 2007
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 27 NFP) [Updated]

For publication opinions today (1):

Joshua J. Nolan v. State of Indiana - "We affirm Nolan’s convictions. There is sufficient evidence to support the jury’s conclusion that K.M. was “unaware” of Nolan’s act of deviate sexual conduct upon her. Although Nolan has waived his appeal of a mistake-of-fact defense, no such defense could have properly been offered on the issue of K.M.’s consent. K.M.’s testimony also was not so inherently improbable as to require reversal, nor were the jury’s verdicts on the rape and criminal deviate conduct counts inconsistent. Finally, although the prosecutor’s call of Nolan’s defense counsel to the witness stand was highly inappropriate, the prosecutor’s subsequent statement to the jury that opposing counsel’s testimony was unnecessary overcame any misconduct. Affirmed."

NFP civil opinions today (5):

G&G Industrial Machining, Inc. and Clifford Garrett v. Essex Machine, Inc. and Essex Realty (NFP) - "Appellants contend that they were deprived due process of law because their attorney, Rosenthal, did not inform them of the September 13, 2005 trial date. However, it is undisputed that Rosenthal attended a conference with the trial court in which the trial date was selected, and that he received written notice of same. It is irrelevant that Rosenthal’s Motion to Withdraw as Attorney was granted three days later. Notice to Appellants’ attorney constituted notice upon the Appellants. We conclude that the Appellants were not deprived due process of law. Conclusion The trial court did not abuse its discretion in denying Appellants’ “Motion to Correct Error or in the alternative to Set Aside Judgment pursuant to Trial Rule 60(b).”"

Joy S. Anderson v. Ralph Hastings and Darlene Hastings (NFP) - "Joy S. Anderson appeals the trial court’s order of eviction and small claims damages award in favor of Ralph and Darlene Hastings (the “Hastings”). Anderson claims that the trial court erred in awarding damages because it failed to comply with Indiana’s Ejectment and Quiet Title Statute. We affirm."

Nicholas E. Buskirk v. Hancock County Department of Child Services (NFP) - termination of parental rights, affirmed.

[Two added later this morning by Clerk]

John B. Davis v. Coldwater Place, LLC (NFP) - "Davis raises one issue, which we restate as whether the small claims court erred in interpreting Davis’s agreement with Coldwater. We affirm."

Dorothy Laverne Austin v. Globe American Casualty Company, et al. (NFP) - "Specifically, the Appellants argue that the trial court erred by granting summary judgment to the Appellees on Abbott’s bad faith claim and on the Appellants’ malicious prosecution and abuse of process claims because there are genuine issues of material fact that preclude the entry of summary judgment.3 Finding no error in the trial court’s grant of summary judgment to the Appellees, we affirm the judgment of the trial court."

NFP criminal opinions today (22):

Corey Brazelton v. State of Indiana (NFP)

Christopher Valdez v. State of Indiana (NFP)

Stanley Rodgers v. State of Indiana (NFP)

Rodney L. Baker v. State of Indiana (NFP)

Bruce Haymaker v. State of Indiana (NFP)

Mauro Ruiz v. State of Indiana (NFP)

Glen Hobbs v. State of Indiana (NFP)

John W. Lee Barta v. State of Indiana (NFP)

Latoya Bonds v. State of Indiana (NFP)

Kenneth T. Griffin v. State of Indiana (NFP)

Rocky Marciano Shroyer v. State of Indiana (NFP)

Bobby Edward Lehner, Jr. v. State of Indiana (NFP)

Ramon Taylor v. State of Indiana (NFP)

Mark Richmond v. State of Indiana (NFP)

Peter Brown v. State of Indiana (NFP)

Matthew Winkle v. State of Indiana (NFP)

Robert Clark v. State of Indiana (NFP)

[Five added later this morning by Clerk]

Steven Hollin v. State of Indiana (NFP)

Forest Hill v. State of Indiana (NFP)

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

Gregory Griffey v. State of Indiana (NFP)

Wayne A. White v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 29, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two Court of Appeals panels "on the road" Thursday, March 29 [Corrected]

Today, March 29th, one Court of Appeals panel is on the road, hearing oral arguments at the University of Southern Indiana in Evansville (as noted at the end of this March 24th ILB entry), while another panel is at Franklin College, hearing State v. Karl Jackson, a case that originated in Hamilton County, where the Court is asked to decide under what circumstances a person may be convicted of driving with a license suspended for the status of being a habitual traffic violator. See the details in this press release from the Court.

Posted by Marcia Oddi on Thursday, March 29, 2007
Posted to Ind. App.Ct. Decisions

Ind. Law - US News law school rankings out soon

The US NEWS 2008 Law School Rankings are to be released here on Friday. The ILB doesn't completely trust so-called "leaked" rankings such as this one, which has IU-Indy at #85 and IU-Bloomington at #36.

In 2007, IU-Bloomington was 37; IU-Indianapolis was 77. In 2006 the rankings were 36 and 95. See the 2007 ILB entry here.

Posted by Marcia Oddi on Thursday, March 29, 2007
Posted to Indiana Law

Wednesday, March 28, 2007

Ind. Decisions - "Lawsuit against ex-IPALCO execs tossed"

The Indianapolis Star is reporting this afternoon that:

A federal judge has rejected a lawsuit brought by investors against former IPALCO executives.

In a ruling issued today, Judge David F. Hamilton wrote that the plaintiffs failed to prove "a breach of duties" by the executives.

The lawsuit was brought on behalf of roughly 2,000 people who reportedly lost more than $100 million because of the sale to AES, whose stock was described by the plaintiffs as volatile and high-risk.

The workers claim IPALCO's top officers reaped more than $70 million by selling IPALCO stock while employees were left in the dark about AES stock's unreliability.

The decision in this case, Nelson v. IPALCO, is 113-page long. Access it here.

Posted by Marcia Oddi on Wednesday, March 28, 2007
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Supreme Court sets execution date in 1984 stabbing death"

The AP is reporting:

INDIANAPOLIS (AP) -- A man on death row for 22 years for killing a 77-year-old neighbor during a robbery is scheduled to die by injection on May 4. * * *

Woods [David Leon Woods, see ILB summary of the Court's 3/26/07 order here] would be the first person to be put to death in Indiana since January 2006, when Marvin Bieghler was executed. In 2005, five people were executed at the state prison in Michigan City, the most in the state since the death penalty was reinstated in the 1970s.

Norman Timberlake was scheduled to die Jan. 19 for the 1993 slaying of a state trooper, but the Indiana Supreme Court granted him a stay because of his mental illness, saying it wanted to wait for a U.S. Supreme Court ruling in a similar case. Timberlake's attorneys have argued that he should not die because he is insane and therefore does not qualify for the death penalty.

An Indianapolis Star story from March 27th (see ILB entry here) notes:
Woods and Death Row inmate Michael Allen Lambert have asked a U.S. District Court judge to add them to a lawsuit filed by another inmate, Norman Timberlake, whose execution has been on hold since January. Timberlake's suit contends that Indiana's lethal injection procedures amount to cruel and unusual punishment.

Posted by Marcia Oddi on Wednesday, March 28, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

For publication opinions today (2):

In MJ Acquisitions, Inc. v. Tec Investments, LLC, Delaware Co. Auditor and Delaware Co. Treasurer, a 14-page opinion, Judge Najam concludes:

We hold that the Delaware County Treasurer should not have included the property on the 2004 delinquency list for the 2004 tax sale. By statute, the Treasurer was required to apply the purchase price paid by MJ at the 2003 tax sale first to the delinquent taxes that prompted that sale and then to any other taxes that had become due and owing in the year of that sale, including the amount that resulted from the 2002 reassessment. And the Treasurer should not have included the property on the 2004 delinquency list based on unpaid taxes due and owing in the spring of 2004, because only unpaid taxes from the spring of the preceding year or earlier qualify the property for a delinquency list.

We reverse the trial court’s order directing the Delaware County Auditor to issue a tax deed to Tec, and we remand to the trial court with instructions to enter judgment denying Tec’s petition for the issuance of a tax deed and setting aside the tax deed issued to Tec by the Delaware County Auditor. We further instruct the Delaware County Auditor to refund the purchase money from the 2004 tax sale to Tec as provided under Indiana Code Section 6-1.1-25-11(a), and we instruct Tec to execute, acknowledge, and deliver to MJ a deed conveying Tec’s interest in the property to MJ as provided under Indiana Code Section 6-1.1-25-11(b). Reversed and remanded with instructions.

In Mark J. Hand v. State of Indiana , an 18-page opinion, Chief Judge baker writes:
Appellant-defendant Mark J. Hand appeals his convictions for Battery Resulting in Serious Bodily Injury,1 a class C felony, and Domestic Battery,2 a class A misdemeanor. Specifically, Hand argues that (1) the State presented insufficient evidence to support the class C felony battery conviction, (2) evidence of his prior bad acts was erroneously admitted at trial, and (3) the prosecutor committed misconduct that constituted fundamental error. Concluding that there was no prosecutorial misconduct but that there was insufficient evidence of the victim’s serious bodily injury to convict Hand of class C felony battery, we remand this case to the trial court with instructions to vacate the class C felony battery conviction. * * *

As the prosecutor stated, “[H]e hasn’t testified, he hasn’t taken an oath, he hasn’t been cross examined. Reference to the contrary is simply wrong.” Hand’s voice, as heard by the jury on the recordings, was clearly not “testimony,” and the prosecutor’s comments were in direct response to the defense counsel’s implication to the contrary. As noted above, prosecutors are entitled to respond to allegations and inferences raised by the defense even if the prosecutor’s response would otherwise be objectionable. Dumas, 803 N.E.2d at 1118. Therefore, we do not find the prosecutor’s comments to constitute fundamental error, especially in light of the fact that Hand’s counsel first drew the jury’s attention to Hand’s intention to testify at trial. The judgment of the trial court is affirmed in part, reversed in part, and remanded to the trial court with instructions to vacate the class C felony battery conviction.

NFP civil opinions today (2):

Chalice Kay Fisher n/k/a Chalice Kay Strong v. Eric Cam Fisher (NFP) - custody dispute, affirmed.

Lawrence T. Burks v. American Acceptance Company, LLC (NFP) - "For the foregoing reasons, the trial court did not abuse its discretion by denying Burks’s request for attorney fees and we deny Burks’s request for appellate attorney fees."

NFP criminal opinions today (8):

Robert Clark v. State of Indiana (NFP)

Dewayne Coleman v. State of Indiana (NFP)

Barbara L. (Decamp) Walker v. State of Indiana (NFP)

Thomas L. Pryor v. State of Indiana (NFP)

Larry Boatwright v. State of Indiana (NFP)

Marlon Kimbrough v. State of Indiana (NFP)

Demetrius A. Franklin v. State of Indiana (NFP)

Charles N. Easton v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 28, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Indiana Insurance Guaranty Association v. Bedford Regional Medical Center, an 8-page, 5-0 opinion, Justice Boehm writes:

We hold that a policyholder of a failed insurance company may recover from the Indiana Insurance Guaranty Association for lost wages paid to a deceased claimant if the amount would have been reimbursable under the policy issued by the insolvent insurer. * * *

Finally, we concede that our reading of the statute to permit reimbursement of lost wage claims to the date of payment, but not prospectively, is itself problematic because it may encourage delay in resolving claims. The legislature may seek to address this issue, but as the statute stands today, we conclude that allowing reimbursement for lost wage claims of a decedent is the proper reading and one consistent with the IIGA’s practice of reimbursing policyholders for wage claims to the date of settlement with living claimants.

Conclusion The trial court’s grant of summary judgment for BRMC is affirmed.

Posted by Marcia Oddi on Wednesday, March 28, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - USSC decision that started with an Indiana federal court ruling is now the leading precedent on judicial immunity

A brief item in the Washington Post today tells us:

On this day 29 years ago, the Supreme Court ruled that U.S. judges cannot be sued for judicial actions made in error, with malice or in excess of authority. Stump v. Sparkman started after an Indiana Judge (Stump) ordered the surgical sterilization of a 15-year-old girl because her mother alleged she was "somewhat retarded."
A link from the Post takes us to this Wikipedia entry.

Here is the U.S. Supreme Court decision, via Findlaw.com. See the end of this page from Oyez, where you can see how the justices lined up.

Posted by Marcia Oddi on Wednesday, March 28, 2007
Posted to Ind Fed D.Ct. Decisions

Law - "Health insurance options dwindle for self-employed"

Many attorneys get their health insurance through a group plan offered via their bar association. Yesterday Lisa Girion of the LA Times had this story of interest that begins:

A major source of health insurance for people who work for themselves is disappearing, casting thousands of contractors, freelancers and solo practitioners into the ranks of the uninsured with little hope of obtaining new coverage.

Health plans offered by professional associations were once havens for millions of people who couldn't get coverage anywhere else. But as medical costs have soared, groups representing professions as varied as law and golf have been forced to stop offering the benefit or been dropped by insurers.

More than 8,000 people with coverage through the California Assn. of Realtors could be next if Blue Shield of California succeeds with its plan to cancel the group's health coverage. * * *

"The association business used to be a huge part of the group health insurance business," said Robert Laszewski, a Washington-based health policy consultant and former insurance executive. "Now, it's like the buggy whip business — almost entirely gone."

Insurance carriers began pulling out of association markets about 10 years ago amid mandates requiring the groups — like employers — to offer coverage to all members who wanted to buy it, regardless of preexisting conditions. Unlike employers, however, who typically pick up the much of the premiums for employees, most associations do not share in the costs. Instead, they arrange for their members to purchase coverage at group, rather than individual, rates.

In today's marketplace, that's almost always a better deal for older members and often the only option for people with preexisting conditions. But insurers are eager to sell individual policies to the young and healthy for as little as $100 a month, scooping the cream off the risk pool. That leaves higher-risk older and less-healthy people to the group market, resulting in what is known as adverse selection.

As healthy members leave an association health plan, the concentration of members with higher-than-average medical costs increases. That forces the underwriter to raise premiums. A "death spiral" sets in, when medical costs exceed the plan's ability to raise premiums to cover them.

"The problem with associations is they go into a death spiral because they get the worst risk," said Alan Fox, vice president of plan design for the American Psychological Assn. Insurance Trust, which covered thousands of psychologists and their families for 35 years before discontinuing its health plan in 1999.

The list of casualties also includes health plans once sponsored by the American Bar Assn., which still hopes to resurrect the benefit it dropped last year, and the California Bar Assn., which lost its coverage when its insurer pulled out in the early 1990s.

Posted by Marcia Oddi on Wednesday, March 28, 2007
Posted to General Law Related

Law - New Kentucky Law Journal article addresses the issue of what body is to judge the Qualifications, Elections, and Returns of Members of the General Assembly

In this ILB entry from Feb. 3, 2007, the ILB noted the overlap between the state Rep. Ed Soliday election dispute in Indiana and the long-running disputed state Senate election in Kentucky. In both cases the issue was whether the apparent winning candidate met the district's residency requirements. The situation was highlighted in the Dana Stephenson dispute, because the question was whether she lived in Indiana at the time of her election to the Kentucky state senate.

For more on the Soliday dispute, see this list of ILB entries. For more on the Stephenson dispute, see this list.

In a 1/8/05, entry, the ILB wrote:

The impending standoff is between the Kentucky legislature and courts, involving a newly elected Kentucky state senator who may or may not have been a resident of Indiana and may or may not therefore be ineligible to take office. 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.
Today The Kentucky Law Blog points to "an article in the most recent edition of the Kentucky Law Journal, released today. The article, titled The Legislative Privilege to Judge the Qualifications, Elections, and Returns of Members, examines the case of Stephenson v. Woodward."

Posted by Marcia Oddi on Wednesday, March 28, 2007
Posted to General Law Related

Ind. Law - More on convicted felons on ballot in Lake County

This ILB entry from Jan. 26, 2007 includes this quote from a NWI Times story: "Town Councilman David Uzelac said he intends to fight for his right to run for another term despite a state legal opinion saying otherwise."

This March 3, 2007 ILB entry includes this quote from the Gary Post-Tribune:

A day after Merrillville council candidate Tom Goralczyk claimed David Uzelac was ineligible to run for office because of his criminal record, a similar situation may have arisen in Hobart.

John Curley, Lake County GOP chairman, was notified late Thursday night by a colleague that Mark A. Kopil, a candidate for Republican Tom Ehrhardt's seat on the Hobart City Council, pleaded guilty in 2002 to a misdemeanor charge of theft for stealing a $500 portable radio from the Merrillville Environmental Management Association when he was a volunteer for the organization.

The charge had been reduced from a felony, and Kopil served a year suspended.

But according to a state law passed in 2005, any person convicted of a felony reduced to a misdemeanor can't run for office. * * *

Kopil said he is trying to get his record expunged, claiming the charges were politically motivated. If he has no luck there, he plans to file an appeal.

Today Andy Grimm of the Post-Tribuune reports on yet a third prospective candidate for election in Lake County. Some quotes:
A decades-old criminal conviction will keep incumbent East Chicago City Councilman Jesse Gomez from running to keep his seat in the Democratic Primary after all, Lake County Superior Court Judge Lorenzo Arredondo ruled Tuesday.

Arredondo overturned a March 17 decision by the Lake County Election Board and ordered county election officials to remove Gomez's name from the May 8 ballot.

East Chicago city employee Angel Acosta appealed the Election Board decision to Arredondo's court, stating that a state law that took effect in 2005 made Gomez ineligible because he pleaded guilty to a felony drug offense in 1983, but had the charges against him reduced after serving probation.

Board members voted to keep Merrillville Town Councilman David Uzelac on the ballot despite a challenge based on his 1986 guilty plea to felony theft charges that later were reduced to a misdemeanor count. * * *

The Post-Tribune could not reach Tom Goralcyzk, who filed the eligibility complaint against Uzelac. Goralcyzk has two weeks remaining to appeal the ruling on his challenge.

Uzelac has said the felony eligibility law was designed with his criminal record in mind, and his longtime rival, Merrillville state Rep. Chet Dobis, was among the bill's supporters. Dobis since received an opinion from Attorney General Steve Carter supporting the law's constitutionality.

State law had barred convicted felons from holding elected office, but in 2005, the criteria broadened to exclude candidates who had pleaded guilty to felonies, but made deals with prosecutors to have the charges reduced after completing probation. The practice was and is fairly commonplace, and applying the new law to candidates who made such deals before 2005 likely won't hold up to constitutional scrutiny, said election board attorney David Saks.

"But I don't know what (Gomez) can do before May 8," Saks said.

Bill Dolan of the Times also has a story on Gomez today. Some quotes:
CROWN POINT | Lake County election officials removed East Chicago City Councilman Jesse Gomez's name from the May 8 ballot.

Lake Circuit Court Judge Lorenzo Arredondo ordered Gomez off the ballot Tuesday in response to a lawsuit filed last week by Angel Acosta, an East Chicago resident who alleged Gomez was unqualified to run because of his criminal background.

"The law doesn't allow candidates who pleaded guilty to felonies to seek or retain public office," said Jewel Harris Jr., a Gary lawyer representing Acosta. * * *

Gomez was elected to the City Council when state law permitted elected officials to serve if they had felony convictions that had been reduced later to lesser crimes. The Indiana Legislature amended the law months later to close that loophole.

Acosta challenged Gomez's candidacy earlier this month before the Lake County elections board, which refused by a 3-2 vote March 13 to remove Gomez on legal advice that the new law unconstitutionally punished Gomez.

Tuesday's ruling overturned the elections board vote.

Here is a link to Official Opinion 2006-4 of the Attorney General, with a Jan. 25, 2007 cover letter.

Posted by Marcia Oddi on Wednesday, March 28, 2007
Posted to Indiana Law

Tuesday, March 27, 2007

Law - "Supreme Court of Texas refuses to extend that State's grandparent visitation law to step-grandparents"

That is the heading of this entry today in Howard Bashman's blog, How Appealing, which quotes from the Texas court's opinion, including "the step-grandfather is neither a biological nor an adoptive grandparent."

Readers may recall a similar decision by the Indiana Court of Appeals in the case of Mark Maser, et al. v. Hance Hicks (6/2/04 IndCtApp) (see ILB entry here), which included the following:

For purposes of the Grandparent Visitation Act, Ind. Code § 31-9-2-77 (1998) defines “maternal or paternal grandparent” as including: “(1) the adoptive parent of the child’s parent; (2) the parent of the child’s adoptive parent; and (3) the parent of the child’s parent.” Here, Step-Grandfather is the step-father of K.M.’s mother; thus, he does not fit into any of the categories in the statutory definition of a grandparent entitled to petition for grandparent visitation rights. The Grandparent Visitation Act applies only to requests for visitation made by grandparents. We decline to expand the plain meaning of the statute by including step-grandparents as “grandparents” for purposes of the application of the Grandparent Visitation Act. Because he is not a “grandparent” as defined by I.C. § 31-9-2-77, Step-Grandfather did not have standing under the Grandparent Visitation Act to petition for grandparent visitation rights with K.M. Therefore, the trial court’s order granting Step-Grandfather grandparent visitation rights with K.M. is clearly erroneous. See, e.g., Hammons [v. Jenkins-Griffith, 764 N.E.2d 303 (Ind. Ct. App. 2002)] at 305-306 (holding that great-grandparents were not entitled to petition for grandparent visitation rights because Grandparent Visitation Act applied only to “grandparents”).

Posted by Marcia Oddi on Tuesday, March 27, 2007
Posted to General Law Related

Ind. Courts - IBJ reports state courts considering a move to the old LS Ayres building

A story today by Cory Schouten of the Indianapolis Business Journal begins:

A big question is looming for property managers at National City Center and First Indiana Plaza: Will tenants stay or will they go?

Each of the downtown office buildings already is struggling, with occupancy rates in the 60-percent range at the end of 2006. But a grim situation could worsen if some of their largest tenants with expiring leases find a better deal elsewhere.

Law firm Bose McKinney & Evans is considering a move from 80,000 square feet at First Indiana Plaza to about 100,000 square feet in Chase Tower. The Chase space was used by Guidant Corp. before its sale last year.

And the Indiana Supreme Court, Court of Appeals and Tax Court are considering a move from National City Center to 30 S. Meridian, where Eli Lilly and Co. plans to vacate a total of 99,000 square feet.

Posted by Marcia Oddi on Tuesday, March 27, 2007
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 5 today (and 12 NFP)

For publication opinions today (5):

In 600 Land Development, Inc. v. Metropolitan Board of Zoning Appeals of Marion County, et al. , a 27-page opinion, Judge Robb writes:

600 Land, Inc., an Indiana corporation, appeals the trial court’s denial of its motion for partial summary judgment and order affirming the decision of the Metropolitan Board of Zoning Appeals of Marion County (the “BZA”), denying 600 Land’s petition for a special exception. On appeal, 600 Land raises three issues, which we restate as: (1) whether the Industrial Zoning Ordinance of Marion County (the “IZO”) allows 600 Land to operate a solid waste transfer station and recycling facility on its property without seeking a special exception; (2) whether the BZA’s denial of 600 Land’s petition was based on sufficient evidence; and (3) whether the procedure through which the BZA denied 600 Land’s petition deprived 600 Land of due process. We conclude that the IZO does not allow the operation of a waste transfer station without a special exception. However, we reverse, as we also conclude that the BZA’s denial of the petition was not based on sufficient evidence. * * *

Conclusion We hold that the IZO requires 600 Land to obtain a special exception for the operation of its proposed transfer station, and that the trial court properly denied 600 Land’s motion for summary judgment on this issue. However, we conclude that the findings the BZA made in denying 600 Land’s petition for a special exception were unsupported by the evidence and that therefore its denial of 600 Land’s petition was an abuse of discretion. Thus, we remand to the trial court with instructions to remand to the BZA with instructions to grant 600 Land’s petition. Affirmed in part, reversed in part, and remanded.

In Precedent Partners I, L.P., et al. v. Michelle Hulen, et al. , a 9-page opinion, Judge Najam writes:
On August 25, 1995, fifteen-year-old Michelle was riding her bike along Meadows Boulevard, a dedicated public street and main thoroughfare in The Meadows, when she turned onto a cross street and collided with a pickup truck being driven by Jose Guardado. Guardado was driving in The Meadows in connection with his work installing drywall at one of the residences. He was an employee of, or independent contractor for, Best Drywall. Guardado was not employed by and did not have any relationship with either Precedent or the Association. As a result of the collision, Michelle sustained significant and permanent bodily injuries. * * *

The law does not impose a duty on a business to guard against injury to the public from the negligent acts of someone over whom the business has no control and which injury occurs off the business’ premises. Snyder Elevators, Inc. v. Baker, 529 N.E.2d 855, 859 (Ind. Ct. App. 1988), trans. denied. Neither Precedent nor the Association was accountable for the conduct of Guardado and neither controlled the premises where the accident occurred. We hold that the trial court erred when it denied Precedent’s and the Association’s joint summary judgment motion. We reverse and remand with instructions to enter summary judgment in favor of Precedent and the Association and against the Hulens. Reversed and remanded with instructions.

Thomas Jones v. State of Indiana - "Appellant-Defendant Thomas Jones (“Jones”) appeals his conviction for Class D felony possession of a narcotic drug in Marion Superior Court following a bench trial. On appeal, Jones asserts that the trial court erred by allowing the State to amend the charging information one week before trial. Concluding that the trial court did not err, we affirm."

Nicholas A. Radick v. State of Indiana, a 12-page opinion with a dissent beginning on p. 7. involves a question of double jeorpardy. Judge Sharpnack writes:

Despite any inconsistency in the verdicts, the convictions are permissible because they are supported by sufficient evidence. See, e.g., Slate v. State, 798 N.E.2d 510, 519-520 (Ind. Ct. App. 2003) (holding that the jury’s guilty verdict for the offense of operating a vehicle while intoxicated as a Class A misdemeanor was not wholly inconsistent with its acquittal of the defendant on the charge of public intoxication).

For the foregoing reasons, we affirm Radick’s convictions for operating a vehicle while intoxicated causing death as a class C felony and operating a vehicle with a controlled substance listed in Schedule I or II as a class C misdemeanor. Affirmed.

CRONE, J. concurs SULLIVAN, J. dissents with separate opinion [ which begins] The jury did not find Radick guilty of causing death with respect to the two charged offenses. There was only one death as a result of Radick’s conduct. The causing-death element of the charged offense of operating with a controlled substance was eliminated by the jury verdict, thereby averting one double jeopardy problem. However, that fact does not cure what I perceive to be a separate double jeopardy impediment to the two convictions.

In T.S. v. State of Indiana , a 27-page opinion, Judge Robb writes:
T.S., a minor, appeals from a proceeding in which he was adjudicated a juvenile delinquent based on the juvenile court’s finding that T.S. committed an act that if committed by an adult would be the crime of possession of marijuana, a Class A misdemeanor. On appeal, T.S. raises the sole issue of whether the trial court erred in denying T.S.’s motion to suppress evidence he claims was obtained in violation of Article I, Section 11 of the Indiana Constitution, and the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. Concluding that the procedure through which the evidence against T.S. was obtained did not violate T.S.’s federal or state constitutional rights, we affirm. * * *

Conclusion We hold that Sergeant Driskell acted as a school resource officer in furtherance of educationally related goals, and that therefore, the reasonableness standard of T.L.O. applies to his seizure of T.S. We further hold that T.S. was seized within the meaning of the Fourth Amendment, but that this seizure was reasonable. Finally, we hold that the seizure was reasonable under the Indiana Constitution. Because the procedure through which the State obtained the evidence against T.S. complied with both the United States and Indiana constitutions, the trial court properly admitted the evidence.

NFP civil opinions today (2):

Geoffrey Massey v. Kristina M. (Massey) Higgins (NFP) - "Geoffrey Massey (“Father”) appeals from the trial court’s order modifying the parenting time he has with his minor daughter, H.M. Father raises two issues for our review, which we consolidate and restate as whether the trial court abused its discretion in reducing Father’s parenting time due to the distance between Father’s residence and the residence of Kristina Higgins (“Mother”), with whom H.M. lives. We affirm."

Joan Schmitt v. City of Evansville (NFP) - "Joan Schmitt filed a small claims action against the City of Evansville, the City of Evansville Board of Public Works, and the City of Evansville Sewer and Water Utility (“City”). She appeals the trial court’s order granting the City’s Motion for Judgment on the Evidence. We affirm. * * * Here, Buchanan testified that the defect had existed for three to six months. The sewer was underground, not subject to observation. There was no evidence that the City knew or should have known of the condition. To the contrary, Schmitt stated plainly that she had not had any problems with the sewer prior to this incident. Regardless of whose responsibility it was to maintain the defective “Y connection,” the City cannot be found liable for Schmitt’s damages absent evidence that the City had actual or constructive notice of the defect."

NFP criminal opinions today (10):

Dwayne Noble v. State of Indiana (NFP)

Darryl L. Abron v. State of Indiana (NFP)

Richard Parrott v. State of Indiana (NFP)

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

Christopher Kyner v. State of Indiana (NFP)

David Kirk v. State of Indiana (NFP)

Michael Ray Hiser v. State of Indiana (NFP)

Jake Carroll v. State of Indiana (NFP)

Timothy Kopkey v. State of Indiana (NFP)

Joe M. Smith v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 27, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two Indiana decisions today from the 7th Circuit

Washington, Leon v. City Fort Wayne (ND Ind., Theresa L. Springmann, Judge) - The facts of this case are confusing, involving whether a 911 call was intentional or playful. CUDAHY, Circuit Judge:

The plaintiffs claim that they were simply play-fighting when Clara Washington mistakenly called 911. In January 2002, the plaintiffs brought a 42 U.S.C. § 1983 lawsuit against the City of Fort Wayne, Officer James Haupert, Officer Joel Slygh and Sergeant Fred Rogers (collectively, “the officers”). The plaintiffs argue that the officers violated their Fourth Amendment right to be free from unreasonable seizure by arresting them without probable cause. Officer Haupert, Officer Slygh and Sergeant Rogers filed a motion for summary judgment on the basis of qualified immunity. The district court denied the officers’ motion for summary judgment, and they now appeal. * * * Summary judgment is not appropriate when the facts are disputed as they are here. * * * We affirm.
USA v. VanWaeyenberghe, Gary (ND Ind., Allen Sharp, Judge) - ROVNER, Circuit Judge:
Despite the promising name— First Choice Investment Capital—First Choice should not have been the first choice for any investor. This is because it was a fraud. Set up to market earned automobile receivables (EARs) as an investment opportunity that would return 11% interest on a monthly basis, the program flourished at collecting investors’ money. It did not, however, do so well at returning it. Consequently, Gary Van Waeyenberghe, the mastermind behind First Choice and at least one other investment “opportunity,” was charged in a 54-count indictment with conspiracy to defraud, 18 U.S.C. § 371, mail fraud, 18 U.S.C. § 1341, wire fraud, 18 U.S.C. § 1343, and money laundering, 18 U.S.C. § 1957. The jury returned a verdict of guilty on all counts, and Van Waeyenberghe appeals, raising a number of issues related to his trial and sentencing. * * * Affirmed.

Posted by Marcia Oddi on Tuesday, March 27, 2007
Posted to Ind. (7th Cir.) Decisions

Law - "Challenge of Grandparent’s Right of Custody Denied High Court Review"

Grandparent visitation rights (see a list of some ILB entries here) was the subject of this Feb. 26, 2007 ILB entry, which included a discussion of the grandparent visitation case of Fausey v. Hiller, for which a cert petition had been filed. The question presented in the case was:

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.
Yesterday the Supreme Court denied review. Here is a story by Asher Hawkins of the Legal Intelligencer that begins:
The U.S. Supreme Court has denied a certiorari petition in a case brought by a widowed father from northern Pennsylvania who disputed his former mother-in-law’s partial physical custody of his young son under the state’s Grandparents’ Visitation Act.

The father’s appellate attorney said he and his client are disappointed with the high court’s denial of cert because the roughly two-dozen states whose courts have ruled on such legislation are evenly split between two different schools of thought when it comes to standard.

According to Howard Bashman of Willow Grove, 13 states require grandparents to prove that harm to the child would result if visitation is not granted, while courts in 12 other states -- including Pennsylvania -- focus on the best interests of the child.

“I think my client is disappointed that the Supreme Court did not view the existing division among the states on the constitutionality of grandparent visitation laws to be deserving of review at this time,” Bashman said.

For more links, see this entry by Howard Bashman of How Appealing.

Posted by Marcia Oddi on Tuesday, March 27, 2007
Posted to General Law Related

Ind. Decisions - "Death Row inmate loses chance for another appeal"

Reporting on yesterday's Supreme Court ruling in David Leon Woods v. State of Indiana (see ILB entry here), the Indianapolis Star has this brief item:

The Indiana Supreme Court on Monday denied a Death Row inmate's request for another appeal and soon will set an execution date.

In a unanimous decision, the court ruled that David Leon Woods could not start a second appeal based on a claim that he shouldn't be executed because he's mentally retarded. Woods' motion also contended that his first appeal was unfair because he had a dispute over strategy with his attorneys.

Woods killed Juan Placencia, 77, in 1984 during a home robbery in Garrett, Ind. Woods stabbed the man more than 20 times.

Woods and Death Row inmate Michael Allen Lambert have asked a U.S. District Court judge to add them to a lawsuit filed by another inmate, Norman Timberlake, whose execution has been on hold since January. Timberlake's suit contends that Indiana's lethal injection procedures amount to cruel and unusual punishment.

Posted by Marcia Oddi on Tuesday, March 27, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Florida story on southern Indiana lawyer's battle with Indiana clocks

An article from the Palm Beach Post this morning by Emily J. Minor features Steven Gustafson, 48, "a lawyer in southern Indiana, [who] was a bit obsessed for a while about this time change of ours - this 'spring forward' government-required maneuver that has so many of us out of whack."

The story relates that some ago, Gustafson, "lived in a small pocket of Indiana that observed daylight-saving time", he was "an appellate lawyer in the town of New Albany - right across the river from Louisville, Ky." But most of the surrounding counties did not observe DST. The result:

Since springing forward was "more or less a local option," Gustafson would show up at the Floyd County Courthouse for a hearing, all prompt and prepared. And the other parties would not.

By their wristwatches, they had another 60 minutes of dawdling time.

"Every time someone didn't show up, you'd just wait an hour," he said. "It was a mess." Such a mess that Gustafson decided to make it a federal case.

He filed a petition in U.S. District Court to force the secretary of transportation, the federal government's person in charge of time-change rules, to put everyone in southern Indiana on the same schedule. A year later, Gustafson's complaint was thrown out.

"The federal court ruled that I was right on the statutes, but that having to sit around for an hour waiting for people did not give me standing to make the secretary of transportation enforce the law," he said.

A few years after that, all of Indiana went on daylight-saving time, so "the things I was talking about are essentially moot now," said Gustafson, who nonetheless still hates the time change.

"As far as I'm concerned, the time of day is an astronomical fact that should be immune from government tinkering," he said.

A quick search of the internet reveals this site named "End Daylight Saving Time" featuring a June 14, 2000 press release by Mr. Gustafson that begins with this:
Steven A. Gustafson has filed a petition for mandamus, declaratory judgment, and injunctive relief in United States District Court. The purpose of this complaint is to challenge the observation of Daylight Saving Time in Southern Indiana as illegal, and compel the Secretary of the U.S. Department of Transportation to enforce the law. Daylight Saving Time, as is well known, is a federal statute requiring people to set their clocks one hour ahead between the first Saturday in April and the last Saturday in October.
What does all this mean? Possibly that news takes a long time to make its way down to Florida.

Posted by Marcia Oddi on Tuesday, March 27, 2007
Posted to Indiana Law

Ind. Courts - "Porter County drug court now helping 11 offenders"

Joyce Russell of the NWI Times reports today on the progress of participants in the new Porter County drug court.

See this list of other ILB drug court stories.

Posted by Marcia Oddi on Tuesday, March 27, 2007
Posted to Indiana Law

Monday, March 26, 2007

Law - Divorce Law Journal hosts The Blawg Review, issue #101

Each week a different law blog hosts "The Blawg Review." The Review, which appears as one long entry on the website of the host for the week, provides a tour of interesting law blog posts from the prior week.

The trick, for the host, is to make it interesting. Louisville attorney Diane Skaggs, of the Divorce Law Journal, is the host this week of The Blawg Review, issue #101. Her theme is, of course, of course, The Kentucky Derby, and she has done a great job. Check it out here.

Posted by Marcia Oddi on Monday, March 26, 2007
Posted to General Law Related

Ind. Decisions - Supreme Court issues one today

In David Leon Woods v. State of Indiana, a 7-page "Published Order Concerning Sucessive Petition for Post-Conviction Relief in Captial Case," Chief Justice Shepard writes for a 5-0 Court:

Having exhausted the judicial review to which he is entitled as a matter of right, David Leon Woods remains sentenced to death for the intentional killing of an elderly DeKalb County man during a robbery. Before us now is Woods’s request to litigate a second, or “successive” post-conviction proceeding involving two claims: (1) that he is exempt from the death penalty because he is mentally retarded, and (2) that his first state post-conviction proceeding was unfair because he had a dispute with his attorneys about strategy. Because we conclude Woods has not met the threshold showing required on either claim, we deny authorization for any further successive post-conviction proceedings. A date for execution of the sentence will be set by separate order.

Posted by Marcia Oddi on Monday, March 26, 2007
Posted to Ind. Sup.Ct. Decisions

Law - No Indiana schools made the list of "most underrated law schools"

I don't know if that is good or bad. See the list here.

Thanks to Legal Times Law Blog for the tip.

Posted by Marcia Oddi on Monday, March 26, 2007
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Arch Insurance Company v. County of Scott (NFP) - "Issue. Whether the trial court erred in issuing declaratory judgment that Arch has a duty to defend the County in an underlying lawsuit. * * * The trial court did not abuse its discretion in denying Arch’s motion for default judgment on the counterclaim and choosing to decide the case on the merits. The Richards Lawsuit only alleges a claim under the theory of breach of contract. Such a claim is not covered under the insurance policy issued by Arch to the County, because the underlying complaint does not allege damages of personal or bodily injury or property damage. Therefore, based upon the contentions contained in the Richards Lawsuit, Arch does not have a duty to defend. Reversed and remanded."

NFP criminal opinions today (1):

Christopher J. Smith v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 26, 2007
Posted to Ind. App.Ct. Decisions

Ind. Law - More on SJR 7

Mike Smith of the AP has a column today titled "Debate widens on same-sex ban: Major health insurance companies, others are now weighing in over the impact of a proposed state constitutional amendment," reviewing the testiony last week in the public hearing on SJR 7.

Posted by Marcia Oddi on Monday, March 26, 2007
Posted to Indiana Law

Law - Remember how Perry Mason could tell what typewriter a note was written on?

Remember how Perry Mason could tell what typewriter a note was written on? Well, read on. Andrew Wolfson of the Louisville Courier Journal writes again today on the continuing fen-phen scandal in Kentucky. (For many earlier ILB entries, type "fen-phen" in the search box.) From today's story:

New evidence shows that prominent Cincinnati lawyer Stan Chesley was one of the "chief architects" of a scheme to defraud plaintiffs in Kentucky's multimillion-dollar case over the diet drug fen-phen, the lawyer who now represents most of them contends in court papers filed last week.

Chesley has contended that he had no direct contact with clients and merely served as the lawyer for the three Lexington attorneys later accused of plundering the $200 million settlement.

But a forensic computer expert's report "blows that position apart," according to a filing by Angela Ford, who has sued Chesley and the Lexington lawyers on behalf of more than 400 former clients.

The expert says that a letter sent to clients in 2002 was written on the computer of a lawyer in Chesley's firm.

Ford says in court papers that the report "proves beyond any doubt" that Chesley was a "co-conspirator" in what "appears to be the biggest theft in Kentucky history." * * *

Chesley has consistently contended he had no contact with the clients -- and therefore no legal duty to them.

But in the report, Stan Mitchell of Nashville's LogicForceConsulting, said his analysis of computers used by lawyers in the case shows that the April 7, 2002, letter to clients was written on the computer of Fay Stilz, an attorney in Chesley's firm. She didn't respond to a message left on her voice mail.

Here is the webpage of the computer forensics consultant. Fascinating.

Posted by Marcia Oddi on Monday, March 26, 2007
Posted to General Law Related

Ind.Decisions - "Gay-rights article stirs debate over student freedoms"

Rebecca Neal of the Indianapolis Star writes today on the ongoing controversy in Woodburn Indiana over a student's opinion piece in the school paper. The teacher in charge of the paper has been suspended. Some quotes:

WOODBURN, Ind. -- Amy Sorrell figured the articles on teen pregnancy, teen motherhood and sexually transmitted diseases would be controversial, so she submitted them to her principal before publishing.

But the Woodlan Junior-Senior High School teacher didn't preapprove a student column calling for tolerance toward gays and lesbians that appeared in the same edition of the school paper.

Little did she know, that piece would make state and national news -- and get her suspended from her job this month.

"If we can talk about herpes and gonorrhea on one page, we should be able to talk about tolerance on the next page," says Sorrell, who doesn't believe she did anything wrong.

The controversy in this northeast Indiana town has found its way to national media outlets and has raised objections and concern from national journalism groups.

The case has also triggered debate over how much freedom student publications should have and how much editorial control principals should wield. * * *

[School principal Ed] Yoder, however, seems to be on solid legal ground for taking action on what he considers a violation of school rules.

An East Allen County Schools policy says principals are the publishers of school newspapers and allows them to edit or remove stories, a move that the U.S. Supreme Court has ruled constitutional, said one Indiana legal scholar.

"There's no doubt to the constitutionality of that, since it's a school activity," said Henry Karlson, a law professor at the Indiana University School of Law-Indianapolis. "Like any other part of the curriculum, and a student newspaper is part of the curriculum of a class, the principal has control."

The landmark student newspaper Supreme Court case, Hazelwood School District v. Kuhlmeier, requires school officials to demonstrate a reasonable educational justification before editing or removing stories.

What about colleges? Does the Supreme Court's 1988 decision in Hazelwood apply to colleges, or only high schools and elementary schools?

Because of a 7th Circuit decision in Hosty v. Carter, which the Supreme Court declined to review last year, the same rule applies to public universities in Indiana, Illinois and Wisconsin. For more, see this ILB entry from March 2, 2006, and this one from March 24th, 2006.

For more coverage of this issue, see the Hosty v. Carter Information Page at the Student Press Law Center. It includes a history of the case, what looks to be links to all the appellate filings, commentary, etc. The en banc, 24-page, 2005 7th Circuit opinion is here, along with the oral arguments); the 7-4 opinion was written by Judge Easterbrook. His opinion begins:

Controversy began to swirl when Jeni Porche became editor in chief of the Innovator, the student newspaper at Governors State University. None of the articles concerned the apostrophe missing from the University’s name. Instead the students tackled meatier fare, such as its decision not to renew the teaching contract of Geoffrey de Laforcade, the paper’s faculty adviser.
The dissent (see. p. 15) begins:
EVANS, Circuit Judge, joined by ROVNER, WOOD, and WILLIAMS, Circuit Judges, dissenting. In concluding that Hazelwood extends to a university setting, the majority applies limitations on speech that the Supreme Court created for use in the narrow circumstances of elementary and secondary education. Because these restrictions on free speech rights have no place in the world of college and graduate school, I respectfully dissent.

The majority’s conclusion flows from an incorrect premise— that there is no legal distinction between college and high school students.

Posted by Marcia Oddi on Monday, March 26, 2007
Posted to Ind. (7th Cir.) Decisions

Sunday, March 25, 2007

Law - Chicago Tribune editorializes against death penalty

"Abolish the death penalty" writes the Chicago Tribune today. The editorial begins by stating that it has "long been the position of this editorial page that the government should have the legal right to impose capital punishment--the death penalty." It continues:

A Tribune editorial in 1952 called the death penalty "the most powerful deterrent to other criminals." In 1976 this page said, "The danger of executing an innocent person is often cited, but we think unjustifiably."

That last sentence sounds chilling today, in light of evidence in recent years of scores of cases in which government has wrongfully convicted defendants and sentenced them to death. The evidence of recent years argues that it is necessary to curb the government's power. It is time to abolish the death penalty.

We have learned much, particularly with advances in DNA technology, about the criminal justice system's capacity to make terrible mistakes. These revelations--many stemming from investigations by this newspaper--shake the foundation of support for capital punishment.

Who gets a sentence of life and who gets death is often a matter of random luck, of politics, of geography, even a matter of racism. Mistakes can occur at every level of the process. * * *

The system is arbitrary, and the system just plain gets it wrong. In the three decades since the death penalty was reinstated in the U.S., more than 120 people have been released from Death Row after evidence was presented that undermined the case against them. In that time Illinois has executed 12 people--and freed 18 from Death Row.

This newspaper has done groundbreaking reporting on cases that suggest innocent people have been executed. * * *

Even when the government convicts the right person, it can horribly botch the punishment. In December, it took Florida authorities 34 minutes to end the life of Angel Nieves Diaz because a poorly trained executioner incorrectly inserted a needle into his arm. The blunder prompted then-Gov. Jeb Bush to halt executions until the state improved its lethal injection procedures. * * *

Society's standards of justice and punishment continue to evolve. In the early 1900s, states began to substitute the electric chair as a more humane method of execution than the gallows. In the 1980s, lethal injection began to replace the electric chair and firing squads. Now lethal injection is coming under more scrutiny as evidence grows that it subjects the condemned to a great deal of pain. Eleven states have halted executions while they examine their lethal injection procedures.

In the last five years, the U.S. Supreme Court has ruled that it is unconstitutional to execute juveniles and the mentally retarded.

New Jersey placed a moratorium on executions in 2005, in part because of legislators' concerns about irreversible mistakes. A special commission in New Jersey has recommended abolishing the death penalty and replacing it with life imprisonment without possibility of parole. The commission cited, among other reasons, the high cost of prosecuting and carrying out the sentence in a capital case. That far exceeds the cost of trying a defendant and keeping him locked up for life. * * *

When it acknowledged widespread problems in its system of capital punishment, Illinois prompted a nationwide soul-searching. Illinois can now lead the country by recognizing those errors will not be sufficiently addressed, that the state cannot have moral certainty that new injustices won't be heaped atop old ones.

Research on the deterrent effect of capital punishment has produced conflicting results over the years. But with the small number of instances--less than one-half of one percent of all murderers are executed--it seems that if capital punishment ever did serve to stop violence, it does not do so now.

Illinois already has the necessary alternative to death: life without possibility of parole. It is not a comfortable existence. It can mean life in a Supermax prison, where inmates spend 23 hours a day alone in 7-by-12-foot cells.

The evidence of mistakes, the evidence of arbitrary decisions, the sobering knowledge that government can't provide certainty that the innocent will not be put to death--all that prompts this call for an end to capital punishment. It is time to stop killing in the people's name.

Posted by Marcia Oddi on Sunday, March 25, 2007
Posted to General Law Related

Environment - "Farmland values surge as demand fueled by ethanol propels corn prices upward"

Indianapolis Star business writer Jeff Swiatek has a story today headlined "Seeing more green
Farmland values surge as demand fueled by ethanol propels corn prices upward."
The story tells how, because of the rising price of corn, the price of farmland is also going up. A quote:

"This is a very exciting period. I've been getting lots of calls" from farmers and landowners, said Alan Miller, a Purdue University Cooperative Extension Service specialist for farm business management.

Prices for land are up because corn, the main row crop grown on U.S. farmland, has risen 60 percent in value in the past year, to $3.32 a bushel last month, thanks to soaring demand for corn from fuel-producing ethanol plants.

Land is appreciating so fast that farmland appraisers and brokers are unsure of current values.
Salyers, a broker with three years of experience for Halderman Farm Management and Real Estate Services, notes with wonder how 120 acres of farm ground sold in Clinton County last month for about $5,000 an acre. That's 16 percent more than comparable cropland a mile away sold for last August, he said.

"With corn prices going up, a lot of optimism is out there now" among farmers and land investors, he said.

With much of Indiana and other parts of the Midwest covered by farm ground, its jump in value is no small event.

For farmers who own ground, their net worth is suddenly higher, raising their borrowing limits and giving them a chance to sell land at prices few expected to see this soon. For investors and other landlords, the jump in prices enables them to charge more rent for their land at a time when rents had stagnated. Cropland rents in Indiana typically run $100 to $150 an acre, depending on quality of the ground.

Read today's story in conjunction with the Business Week Special Report referenced in this ILB entry yesterday.

Posted by Marcia Oddi on Sunday, March 25, 2007
Posted to Environment | Indiana economic development

Ind. Law - the Upcoming Week in the Indiana General Assembly

Here is the Evansville Courier & Press' Bryan Corbin's look at the week just past and the week ahead during the Legislature's 2007 session. Today's story begins:

Now that the governor has withdrawn his controversial toll road proposal, a possible expansion of gambling is emerging as a major issue during the final five weeks of the Indiana General Assembly's session.

If slot machines are allowed at the state's two horse tracks, the slot revenue potentially could fund temporary property-tax relief and life-sciences research - two ideas taken from other bills that haven't passed this session.

Posted by Marcia Oddi on Sunday, March 25, 2007
Posted to Indiana Law

Ind. Gov't. - "Ivy Tech’s troubled roots: Political entanglements deter community college mission"

"Ivy Tech’s troubled roots: Political entanglements deter community college mission" is the headline to a signed editorial in the Fort Wayne Journal Gazette this morning, written by Karen Francisco. Some quotes:

A new president has been named at Ivy Tech Community College, but the same old politics remain. The tumultuous search for a president is a clear indication of how politically charged Indiana’s community college system has grown and how it could disrupt the very vital role it should play in the state’s economic revitalization.

In the wake of a public airing of internal intrigue and at its transition in leadership, renewed scrutiny of Ivy Tech’s role may be in order to ensure state funds are being used efficiently and that Indiana has a seamless education system designed to serve both students and the state’s economic interests. * * *

“You don’t have to be too politically sophisticated to see (Ivy Tech) has become a place where elected officials have been hired in droves,” said Julia Vaughn, policy director for Common Cause/Indiana. “(The college) seems to have grown tremendously over a short period of time. I have to chuckle as I read the stories about the politics involved in the search. It seems rather inevitable that would be case.”

Established as a statewide vocational and technical training program less than 45 years ago, Ivy Tech is now the second-largest institution of higher education in Indiana. With a spring enrollment of almost 72,000 students on 23 campuses, it ranks behind the 91,000-student Indiana University system and just ahead of the 65,000-student Purdue University system.

And while IU and Purdue command the history and alumni support, Ivy Tech holds its own in political clout. Powerful lawmakers past and present are on its payroll, including House Speaker Patrick Bauer, former Senate President Pro Tem Robert Garton and House Ways and Means Committee Chairman William Crawford.

Publicly, there are few who will suggest that Ivy Tech benefits unfairly from the legislative muscle. Privately, however, education officials and lawmakers outside the college suggest its political status is a conflict and the source of bad policy.

A quote from later in the story, from James Jacobs of Columbia University: “It seems unusual for state legislators to be in the administration. You would hope that support for post-secondary education would be a non-partisan decision – it should just be understood that it’s important for the state.” For more on this, see this ILB entry from Oct. 8, 2006, titled "Should legislators should be allowed to serve as officers or directors of state universities and schools?"

More from today's editorial:

[C]ommunity colleges elsewhere tend to fall to the bottom of the education funding food chain – after K-12 schools and higher ed. With its tremendous political clout, Ivy Tech has quietly become the favored party.

Just look at its appropriations record: For the current academic year, the community college received a 4 percent increase in funding, according to figures from the Indiana Commission for Higher Education. By comparison, Purdue University received 1.2 percent in additional dollars; Indiana University received 0.4 percent less than the previous year.

In the Democratic version of the next biennial budget, Ivy Tech stands to receive an additional 6 percent in funding, while the state’s other public universities are in line for 2 percent increases. In building projects, Ivy Tech is in line for $26.7 million for a technology center in Fort Wayne, $69.4 million for expansion at the Indianapolis campus, $1 million for a new Lamkin Center and another $30 million for centers at Logansport and Sellersburg.

Duplication? Some observers suggest that the new community college system is trying to be all things to all people. It continues to hold the lock on the vocational and technical programs it has long delivered with great success, but also has been set up by the Indiana Commission of Higher Education to serve as the higher education entry point for more and more students.

Posted by Marcia Oddi on Sunday, March 25, 2007
Posted to Indiana Government

Saturday, March 24, 2007

Ind. Courts - Reports of Court of Appeals oral arguments at Valparaiso University [Updated]

From James D. Wolf Jr. of the Gary Post-Tribune:

VALPARAISO -- The government of the people, by the people and for the people traveled to meet the people as the Indiana Court of Appeals held oral arguments at Valparaiso University Law School on Friday.

Three judges -- Nancy Vaidik, Michael Barnes and Terry Crone -- heard arguments on whether Barber vs. State had sufficient evidence to convict the defendant of reckless homicide in a car accident.

The appeal, from Marion County, was the 179th argument heard "on the road" and the fifth at VU since the court began bringing cases to colleges, high schools and county courthouses after its 2001 centennial. * * *

The arena-style classroom was standing room only as defender and prosecutor made arguments and the judges questioned logic and precedents. * * *

Prosecutor Cynthia Ploughe said she likes people's reactions "because it's so different than what you see on TV." Even law students are surprised it is more brainstorming than adversarial.

Among the public was Vaidik's mom, Elaine Harris of Portage.

"She has been coming to my gymnastic meets, my dance recitals and everything else, and now she comes to my oral arguments," Vaidik said as she introduced her.

From Jean Starr of the NWI Times:
Judge Nancy Vaidik returned to the bench in Valparaiso on Friday -- not only to hear arguments in a homicide case but also to open up the judicial process to the public.

Vaidik, a former Porter Superior Court judge, was part of a three-member Court of Appeals panel that heard oral arguments in Valparaiso University law school's Wesemann Hall in the case of a fatal 2004 traffic accident.

Vaidik and judges Michael P. Barnes and Terry A. Cronek [ILB- see note at end of entry] listened as both sides presented their arguments in the case of (Benton) Barber v. State.

Ruth Johnson, of the Marion County Public Defender Agency, represented Barber, and Deputy Attorney General Cynthia Ploughe argued the state's case.

Last year, Barber was charged with and convicted of two counts of reckless homicide and one count of failure to stop after an accident resulting in death, both Class C felonies. He was given two consecutive maximum sentences of eight years for the two homicides and eight years for failing to stop.

Barber filed an appeal challenging both the sufficiency of the evidence supporting his convictions and the sentence.

Ploughe argued that Barber drove recklessly, committing several traffic violations leading up to the crash, in which the other driver swerved into oncoming traffic.

At the conclusion of the arguments, the three judges remained to answer questions of the audience about the judicial process. * * *

A member of the Indiana Court of Appeals since 2000, Vaidik attended Valparaiso University and served as a judge in Porter Superior Court from 1993 to 2000.

Vaidik said the most successfully argued cases are presented by attorneys who are ready to address issues that aren't outlined in the brief. The open dialogue set up in the oral arguments gives attorneys the opportunity to get into the judges' brains.

Note: Of course it is "Crone", not "Cronek", but, coming from NW Indiana, I can tell you that the new spelling gives the judge's name a nice regional twist.

[Updated 3/26/07] The Indiana Court of Appeals will hold oral argument in the case Sergio Campos v. State of Indiana on Thursday, March 29th at 2:00 p.m. CT at the University of Southern Indiana in Evansville. See the Court's press release here, and an earlier ILB entry here.

Posted by Marcia Oddi on Saturday, March 24, 2007
Posted to Indiana Courts

Law - Connecticut adopts the "mode of operation" rule re tort liability

Lynne Tuohy of The Hart ford Courant reports today:

What began as a nasty lunchtime fall at a Stop & Shop salad bar has evolved into a dramatic change in liability law for Connecticut businesses that invite customers to help themselves.

The state Supreme Court, in a unanimous decision released Friday, adopted a far more plaintiff-friendly rule in negligence cases involving so-called self-service operations, whether they are big-box department stores or small cafes with salad bars.

Patrons injured on the premises of a business formerly had to show that the owner/operator was on notice that a particular hazard existed, and failed to remedy it. The new rule puts the onus on business operators to recognize that their "mode of operation" creates foreseeable hazards that they should take reasonable steps to address. * * *

Kelly lost her negligence case at the trial court level, after failing to persuade the judge to adopt the "mode of operation" rule in place of the rule that a proprietor have advance notice of a particular, hazardous condition. Under the old rule, Kelly would have to prove that the store knew there was lettuce on the floor and neglected to remove it within a reasonable time frame. * * *

With Friday's ruling, Connecticut joins at least 22 other states that have adopted the "mode of operation" rule. Justice Richard N. Palmer noted that self-service operations have the potential to create many new hazards caused not only by an oversight by the shop's employees, but by other customers as well.

"Because self-service businesses are likely to achieve savings by virtue of their method of operation, it is appropriate to hold them responsible for injuries to customers that are a foreseeable consequence of their use of that merchandising approach unless they take reasonable precautions to prevent such injuries," Palmer wrote.

Justice Peter Zarella, joined by Appellate Judge Ian McLachlan, who was brought into the case as appellate judges sometimes are, wrote separately to emphasize that any new rule of premise liability should not encompass all self-service operations, but only those that are improperly designed or operated.

"The focus of the analysis is not on how long the piece of lettuce was on the floor but on whether the design or operation of the salad bar created a foreseeable risk of harm," Zarella wrote.

This entry from How Appealing includes links to the majority and concurring opinions.

Posted by Marcia Oddi on Saturday, March 24, 2007
Posted to General Law Related

Law - "Pediatricians Voice Anger Over Costs of Vaccines"

The NY Times has an important story today on the high costs of vaccines, that ties into earlier ILB entries on the cervical cancer vaccine, vaccines in general, and medical care costs.

The story relates that vaccines have become too expensive for doctors to stock, at hundreds of dollars per injections. Doctors' reimbursements are generally under $20 per shot. Here are some quotes:

The nation’s pediatricians, the foot soldiers in the campaign to vaccinate America’s children, are starting to revolt.

The soaring cost and rising number of new vaccines, doctors say, make it increasingly difficult for them to buy the shots they give their patients. They also complain that insurers often do not reimburse them enough, so they can lose money on every dose they deliver.

As a result, some pediatricians are not offering the newest and most costly vaccines. And some public health experts say that if the situation worsens, it could lead to a breakdown in the nation’s immunization program, with a rise in otherwise preventable diseases.

“We cannot pay for the vaccination of the American public any longer,” said Dr. Dorothy A. Levine, a pediatrician in Stamford and New Canaan, Conn. “We’re not giving them with as much vigor as we should, and the main reason is financial.”

Dr. Levine, for instance, is not offering Gardasil, the new vaccine that prevents cervical cancer; it costs $360 for three shots. Nor is she giving shots of RotaTeq, the $190 vaccine against the diarrhea-causing rotavirus.

The situation underscores the role played in the United States by market dynamics in providing immunization, a public health service in many other countries.

About 85 percent of the nation’s children get all or at least some of their inoculations from private physicians’ offices, which operate as businesses. The federal and state governments pay for vaccines for about 55 percent of children, mainly poor ones. But even those government-subsidized vaccines are mainly administered by private doctors.

More from the story:
Other doctors are asking patients to pay upfront or, in a new twist, are sending them to the drugstore. Typically, physicians have not written prescriptions for vaccines, as they do for drugs, but instead buy and store them, recouping their money when they give the vaccines to patients.

Michele Rabito of Douglaston, Queens, was given prescriptions for the first two Gardasil shots for her 15-year-old daughter, Paige. Her pediatrician would not provide the vaccine himself because Ms. Rabito’s insurance did not cover it.

The pharmacy took a day or two to fill each prescription because it did not normally carry Gardasil, Ms. Rabito said. And it charged her $185 a dose, about $65 more than the wholesale cost. Ms. Rabito then brought each vial back to the doctor’s office, where her daughter was vaccinated.

“It’s a lot of trouble and a lot of money,” she said, although she added that she did not blame her pediatrician.

Getting a vaccination was not always so difficult. In 1980, it cost only about $23, or $59 adjusted for inflation, for the seven shots and four oral doses needed to immunize a child, according to data provided by Dr. Thomas Saari, who is emeritus professor of pediatrics at the University of Wisconsin.

Today, though, a child who receives all the recommended vaccines would receive as many as 37 shots and 3 oral doses by the 18th birthday — at a cost exceeding $1,600.

Costs have nearly tripled since 2001 alone. And several new and costly vaccines have been added just since 2005. Besides Gardasil and RotaTeq, both made by Merck, the new ones include Menactra, a $80 meningitis vaccine made by Sanofi-Aventis.

Also newly recommended are a vaccine against hepatitis A, a booster shot for chickenpox, a booster shot against whooping cough, and yearly flu shots until a child’s fifth birthday instead of only until the second birthday.

Public health experts say vaccines, including the new ones, are among the most cost-effective of health measures. And higher prices have attracted new companies to the vaccine business, which was once considered a moribund backwater of the pharmaceutical industry.

But money has become a problem, not only for pediatricians but for doctors who give adult vaccines, and also for the federal and state governments.

Some states that once provided free vaccines to all children, like North Dakota, have had to abandon that practice. The Washington State Department of Health, which is still trying to provide vaccines for all, is requesting an additional $13 million a year from the state Legislature to pay for the new vaccines, which would nearly double the $16 million current appropriation.

Spending by the federal Vaccines for Children program, which pays for immunizations for Medicaid children and some others, has grown to $2.5 billion, up from $500 million in 2000.

Posted by Marcia Oddi on Saturday, March 24, 2007
Posted to General Law Related

Not law but interesting - "Computer technician accidentally wipes out info on Alaska's $38 billion fund"

From an AP story earlier this week:

JUNEAU, Alaska: Perhaps you know that sinking feeling when a single keystroke accidentally destroys hours of work. Now imagine wiping out a disk drive containing information for an account worth $38 billion.

That is what happened to a computer technician reformatting a disk drive at the Alaska Department of Revenue. While doing routine maintenance work, the technician accidentally deleted applicant information for an oil-funded account — one of Alaska residents' biggest perks — and mistakenly reformatted the backup drive, as well.

There was still hope, until the department discovered its third line of defense, backup tapes, were unreadable.

This may be the ultimate "worst nightmare" story, far exceeding the one about sleeping through a college final exam. And it doesn't get any better - more from the story:
Over the next few days, as the department, the division and consultants from Microsoft Corp. and Dell Inc. labored to retrieve the data, it became obvious the worst-case scenario was at hand.

Nine months worth of applicant information for the yearly payout from the Alaska Permanent Fund was gone: some 800,000 electronic images that had been painstakingly scanned into the system months earlier, the 2006 paper applications that people had either mailed in or filed over the counter, and supporting documentation such as birth certificates and proof of residence.

And the only backup was the paperwork itself — stored in more than 300 cardboard boxes.

"We had to bring that paper back to the scanning room, and send it through again, and quality control it, and then you have to have a way to link that paper to that person's file," Skow said.

Luckily they still had the paper applications.

Why are we hearing about this now, more than six months later? Because, according to the story:

The department is asking lawmakers to approve a supplemental budget request for $220,700 to cover the excess costs incurred during the six-week recovery effort, including about $128,400 in overtime and $71,800 for computer consultants.

Posted by Marcia Oddi on Saturday, March 24, 2007
Posted to General News

Environment - Ethanol; flood buyouts; coal-based power plants

Business Week had a Special Report earlier this week titled "Ethanol's Growing List of Enemies: As demand for the alternative fuel drives corn prices up, an unlikely assortment of groups are uniting with the hopes of cutting government support." The story reports that ethanol opponents:

have different reasons for opposing ethanol. But their common contentions are that the focus on corn-based ethanol has been too hasty, and the government's active involvement—through subsidies for ethanol refiners and high tariffs to keep out alternatives like ethanol made from sugar—is likely to lead to chaos in other sectors of the economy.
The Fort Wayne Journal Gazette had a front-page story last Sunday by Dan Stockman headlined "Flood buyouts leave green space, memories behind." The story reports that the city is changing its policy on buy-outs in flood prone area:
Kennedy said that if the city had bought just four houses a year between 1982 and 2002, dozens of homes damaged in the Flood of ’03 might not have existed, saving millions of dollars in damage and freeing volunteers and resources to fight the flood elsewhere.

Because the city targets buyouts in areas that are most flood-prone and most difficult to protect, he said, most of the city’s buyouts would have been in areas that were hit hard in 2003, such as Junk Ditch.

The city did buy houses between 1982 and 2002, but only when large grants came in, rather than buying a few houses every year regardless.

Director of Public Works Greg Meszaros said that had the city bought houses every year in addition to those bought through grants, as many as 150 houses might have been torn down before the flood hit. Most of those would have been in areas that were devastated in 2003 and again in 2005, officials said.

But now, thanks to an increase in the city’s stormwater fee from $2.20 a month to $3.65, the city is dedicating $500,000 a year for five years to buying houses. Combined with federal grants and other money, entire neighborhoods are disappearing.

“Multiplied year after year, it makes a difference,” Meszaros said. “It’s a momentum thing, so we’re actually spending a little faster than we thought.”

Some areas can be protected with flood walls and levees. Others cannot be protected and are targeted for buyouts. * * *

Many experts say the best way to beat a flood is to avoid it. By recognizing there are some areas that should never be built on, millions of dollars in damage and the emotional cost of ruined lives could be avoided every year. Junk Ditch, which was originally a wetlands, is often cited as an example of a neighborhood that should never have happened.

That issue of the Journal Gazette also had an editorial praising the policy change. It concludes:
Some areas can be protected by levees and flood walls, but others cannot. For those areas the only way to prevent flood damage is to demolish the building and create green space to collect floodwater when the rivers rise. City leaders were right to add home buyouts to their flood-fighting strategy.
From last Sunday's Indianapolis Star, see this lengthy story by Maureen Groppe, headlined "Emission critical: Hoosier state's plentiful coal, high-polluting power plants and manufacturing base face uncertain hurdles under proposed environmental reform."

Posted by Marcia Oddi on Saturday, March 24, 2007
Posted to Environment

Law - Making a federal case out of the Kentucky fen-phen settlement

The ILB has posted a long list of entries on the Kentucky Fen-Phen settlements scandal, with headlines from press stories such as "The three lawyers accused of plundering Kentucky's $200 million fen-phen settlement tore up or burned' notes."

Today the front page of the NY Times sports a story by their legal writer Adam Liptak, headlined "Fraud Inquiry Looks at Lawyers in Diet-Drug Case." The story begins:

LEXINGTON, Ky., March 22 — W. L. Carter knew there was something fishy going on when he went to his lawyers’ office a few years ago to pick up his settlement check for the heart damage he had sustained from taking the diet drug combination fen-phen.

The check was, for starters, much smaller than he had expected. And his own lawyers threatened to retaliate against him if he ever told anyone, including his family, how much he had been paid. “You will be fined $100,000, you will go to jail and you will be sued,” Mr. Carter recalled them saying.

Mr. Carter was right to have been suspicious. The lawyers defrauded their clients, a state judge has ruled in a civil case, when they settled fen-phen lawsuits on behalf of 440 of them for $200 million but kept the bulk of the money for themselves. Legal experts said the fraud might be one of the biggest and most brazen in legal history.

This week, several clients testified before a federal grand jury that has begun to investigate potential criminal wrongdoing arising from the settlement.

More from the story - much of this is familar if you've read the past Louisville Courier Journal coverage:
The basic facts are not in dispute. When the clients sued the drug maker, they agreed to pay the lawyers 30 percent to 33 percent of any money that was recovered, plus expenses. In this case, that would have left the 440 clients to divide perhaps $135 million.

But the clients received only $74 million. An additional $20 million went to a questionable “charitable fund.” The rest — $106 million — went to lawyers. Though amounts of the individual settlements remain sealed, court papers suggest they were from $100,000 to $5 million. On average, plaintiffs received less than 40 percent of what the settlement agreement specified, instead of the roughly 70 percent to which they were entitled.

Had the lawyers merely taken what they were contractually entitled to, they would have become very rich men, said Tracy Curtis, a mortgage loan officer who is also suing her former lawyers. “They could have taken the high road,” Ms. Curtis said. “They would have made plenty of money.”

In court papers, the three lawyers denied wrongdoing and defended accepting fees above their contingent-fee agreements as reasonable in the circumstances and approved by the court.

Their efforts resulted in, they said, what “may conceivably be the largest settlement in the history of this commonwealth.” At a hearing in 2002, they noted, the original judge in the case said they deserved the higher compensation “for their services and for the incredible risks they took” and for “the administrative headaches that came with that.”

But the judge who made that statement and who approved the settlement, Joseph F. Bamberger, received a financial benefit from the windfall. After retiring from the bench in 2004, Judge Bamberger became a director of the $20 million charity for a $5,000 monthly fee. He has since repaid what he received.

Judge Bamberger was reprimanded last year by the Judicial Conduct Commission in Kentucky. The commission said his actions were disturbing, inexcusable and shocking to the conscience.

Posted by Marcia Oddi on Saturday, March 24, 2007
Posted to General Law Related

Ind. Courts - "Judge to limit relatives of victims, defendants at sentencing hearings"

The Muncie StarPress reports today, in a story by Nick Werner:

MUNCIE -- A Delaware County judge has instituted a new rule restricting how many people can witness criminal sentencing hearings in his courtroom after a hearing this week that ended in chaos and flared tempers.

"A courtroom is a courtroom and it's not The Jerry Springer Show," Delaware Circuit Court 2 Judge Richard Dailey said.

Dailey issued a rule, effective immediately, that no more than two members of a defendant's family and two people representing the victim would be allowed to attend sentencing hearings in his courtroom at the same time.

The new rule comes on the heels of a Thursday sentencing hearing in which Dailey ordered sheriff's deputies to forcibly remove four people from his courtroom, including two women who were jailed for contempt.

The hearing included an argument between a woman and the man convicted of causing her 15-year-old daughter's death while driving drunk, uncontrollable wailing and screaming from the defendant's family after Dailey announced his decision to imprison the man for eight years, and a struggle between the drunken driver's son and a sheriff's deputy.

"It was the most egregious thing I've seen in 30 years of being a judge," Dailey said.

Dailey said he sympathized with members of a defendant or victim's family that might be prevented from witnessing an entire hearing. His highest, priority, however, is maintaining order in the courtroom, the judge said.

Priority would be given to those wishing to make victim's statements or those testifying as character witnesses for the defendant.

People attending court on behalf of a defendant or victim could be shuffled in and out so that everyone could witness some of the hearing, Dailey said. The restrictions are not expected to be in place during trials.

Dailey announced his decision Thursday afternoon and said he had not yet heard any complaints from attorneys or prosecutors as of Friday.

Delaware County Prosecutor Mark McKinney said Friday it was a shame that concerns over safety were overriding the public's right to attend court proceedings. He said poor planning in designing courtrooms -- in which defendants, prosecutors and those in the gallery are sometimes separated by a distance of only a few feet -- might be responsible.

Mike McMahon, research director for the Indiana Judicial Center, said he did not know of any legal precedents in Indiana that would pertain to a decision such as Dailey's and the public's right to attend criminal proceedings.

"There is a basic principle that a judge has a broad authority to control the courtroom," McMahon said.

Posted by Marcia Oddi on Saturday, March 24, 2007
Posted to Ind. Trial Ct. Decisions

Friday, March 23, 2007

Ind. Decisions - More on "Judge Rules Drug Documents Must Be Returned to Eli Lilly"

The ILB has had a number of entries (see list here) on Lilly's drug Zyprexa. Most recently was this entry from Feb. 14th, 2007 on the 78-page ED NY decision , holding that, to quote the NY Times, "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."

Julie Hilden, a FindLaw columnist, was disappointed with the decision, as she relates today in a column titled "A New York Times Reporter's First Amendment Civil Disobedience Claim: The Case of the Secret Eli Lilly Zyprexa Documents," which begins:

Last month, Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York issued a decision in litigation that, as he noted in his opinion, "raises intriguing questions of when it is appropriate to conduct civil litigation in secrecy, and of what are appropriate limits on civil disobedience by newspaper reporters, forensic experts, and attorneys."

The litigation involved top-selling anti-psychotic drug Zyprexa. The plaintiffs claim that the drug's maker, Eli Lilly, gave inadequate warnings regarding the risk of obesity and diabetes in Zyprexa users.

During the litigation, a reporter, an expert, and an attorney who was not otherwise involved in the case decided to defy the court-imposed protective order that was issued to maintain the confidentiality of certain documents.

Their motivation was both urgent and understandable: They were concerned for the health and safety of those taking Zyprexa. But their tactics were questionable:

In order to circumvent the protective order, they concocted a deceptive ruse to ensure that the content of documents produced in the ongoing Zyprexa litigation became public.

Moreover, they failed to try legal means before they resorted to illegal ones, ignoring a specific procedure that would have allowed them to challenge the documents' secrecy vis-à-vis the public in court. As I will explain, this error complicated what would have otherwise been a simple case of justified civil disobedience.

Posted by Marcia Oddi on Friday, March 23, 2007
Posted to Indiana Decisions

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.

Posted by Marcia Oddi on Friday, March 23, 2007
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending March 23, 2007

Here is the Indiana Supreme Court's transfer list for the week ending March 23, 2007.

(Always be sure to go through all the pages, as the "list" is really two combined lists.)

Two cases were granted transfer this week: (1) In the Matter of the Guardianship of E.N., and (2) Bridgestone Americas Holding, Inc., et al. v. Violet Mayberry, et al. The former (see this ILB entry from Aug. 25, 2006 - 2nd case), concerning an estate plan, includes a strong dissent by Judge Barnes. The latter is a trade secrets case, see this ILB entry from March 13th.

Among the transfers denied today was the case of City of Kokomo v. Scott Kern (written about earlier today here), thereby upholding the Court of Appeals decision.

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.

Posted by Marcia Oddi on Friday, March 23, 2007
Posted to Indiana Transfer Lists

Environment - Still more on CAFO bills pending in General Assembly, and a revelation from North Carolina

When last the ILB looked at CAFO bills in this General Assembly, it was March 4th and Feb. 27th.

Pam Tharp of the Richmond Palladium Item had an excellent report on March 18th about concerns on both sides about the CAFO issue. The three bills in second house committee, SB 431 (fees for inspection), HB 1197 (one mile buffer), and HB 1308 (local zoning) are addressed, as well as the economic interests of a number of the members. Don't miss this story if you are following CAFO legislation; save it along with the two earlier stories referenced above.

In addition, Niki Kelly of the Fort Wayne Journal Gazette had a good report March 20th on the Senate committee meeeting on one of the two House bills. Some quotes:

An environmental committee in the Senate took its first look Monday at a confined feeding bill sent from the House that contains a controversial prohibition against new massive agriculture operations locating within one mile of a city or school.

Members of the Senate Energy and Environmental Affairs Committee did not vote on House Bill 1197, brought by Rep. Phil Pflum, D-Milton.

“I can’t support a moratorium because I want to see the pork industry grow in our state,” said Pflum, himself a farmer and longtime member of the Indiana Farm Bureau. “But I am asking the General Assembly to pass a setback. Rural areas are where I think these operations belong.”

Confined and concentrated feeding operations are the new wave in animal production in which hundreds to thousands of cows, pigs and chickens are raised in a small area and the treated waste is kept in lagoons or is applied to nearby acreage.

Cities and counties have the ability to pass regulations – including limitations on where the operations can exist – but many units have not done so, and citizens are now stuck with confined feeding facilities as neighbors.

They complain about the smell and especially the loss in property value, and Pflum said “our local zoning boards are sort of all over the map on this issue.”

That’s why competing pieces of legislation have hit the legislature this year.

The biggest part of Pflum’s bill is the one-mile prohibition with some exceptions. He had trouble answering questions about the rest of the bill, including whether the state setback would pre-empt local zoning ordinances that already exist or whether cities, towns or counties could pass more restrictive laws.

“Regardless of how you feel about a setback, this bill has loose ends all over the place that need to be fixed,” said Sen. Karen Tallian, D-Portage.

Committee members questioned whether increased fees in the bill would be enough to pay for annual inspections, which are required in the bill. * * *

Pflum conceded several times the bill had flaws but insisted the group pass it.

“If you believe we are going to leave this session without a setback and calm the nerves of the critics you are mistaken,” he said. “Maybe I’m asking this General Assembly to play the role of bad guy. This is a big issue for folks, and we need to do something.

“Let’s protect as many citizens as we can.”

But Sen. Beverly Gard, R-Greenfield, said her committee doesn’t pass legislation unless it is in proper order.

On March 9th, 2006, the ILB had an entry titled "Environment - Ten-year moratorium on new hog farms in North Carolina will end soon, with no viable solution in sight." A quote from that entry:
In the mid-1990s, the story reports, after several major lagoon ruptures sent millions of gallons of waste into rivers and countless complaints of the stench created by thousands of pigs raised in close quarters, "public pressure led state lawmakers to ban new hog farms. None have been built since 1997. In 2000, two top pork producers, Smithfield Foods and Premium Standard Farms, agreed to pay for a study to identify more environmentally sound technologies."
Today the Raleigh NC News & Observer has this story by Wade Rawlins. Some quotes from the story, which could have been headlined "Hog Creep":
Lawmakers tried to halt the growth of the hog industry in North Carolina 10 years ago, but new hog farms have continued to be built, adding a capacity of more than 500,000 swine.

Seventy-three new hog farms have been given permits, 25 expansions have been allowed and four farms reactivated under exemptions to a 1997 law that established a moratorium on new hog farms, state water regulators say. Nearly all those farms use the type of hog manure disposal systems -- waste pits and spray fields -- that the state would like to phase out because of water pollution concerns.

Molly Diggins, state director of the Sierra Club's North Carolina chapter, described the growth of the industry under the moratorium as "hog creep."

"I'm very surprised," Diggins said when told the number of farms. "People assumed that the total number of hogs has been kept steady and that there are not new lagoons and spray fields being built. People knew those exemptions would allow some slippage, but not at that level. The moratorium isn't working, and it should be replaced with a permanent ban on new lagoons and spray fields."

More from the story:
Environmental groups are pressing state lawmakers to adopt a permanent ban this year on lagoons and fields where they spray the waste. They also want state funding to allow the replacement of hog waste lagoons on some farms, using waste disposal systems that pollute less. The 10-year-old moratorium on new and expanded hog farms expires in September.

Meanwhile, Smithfield Foods is seeking to take advantage of the new farms. The company is seeking permission from the state to process 1 million more pigs a year at its massive slaughterhouse in Bladen County. As part of its application, Smithfield is asking regulators to let it buy hogs from new farms that don't have innovative waste disposal methods. Currently, its state permit bars it from buying hogs off farms built after 2002, unless the farms use cleaner waste technology. State regulators have recommended keeping that ban in place.

North Carolina is the nation's second largest hog producer, after Iowa. About 9.5 million hogs are raised each year on 2,300 factory farms concentrated in Eastern North Carolina.

The total number of hog farms has dropped from about 4,500 in 1997 to about 2,300 last year, largely because of the disappearance of smaller farms. [ILB emphasis] The number of hogs produced in the state has fluctuated between 9.3 million and 10 million a year depending on market demand.

The story also has a number of quotes from the hog industry that the increased growth under the moratorium was authorized and recognized. However, nothing I have read previously indicated growth was continuing. The story today concludes:
"North Carolina citizens have been led to believe that the number of hogs and hog lagoons had been frozen in place 10 years ago," said Rick Dove, a representative of the Waterkeeper Alliance, an environmental advocacy group. "That is nothing short of an absolute falsehood. We have allowed this industry to grow at great cost to our environment."

Posted by Marcia Oddi on Friday, March 23, 2007
Posted to Environment

Courts - More on "Series on improperly sealed court files nominated for Pulitzer"

Earlier this month the ILB posted an entry on the Seattle Times series, titled "Your Courts, Their Secrets."

This week another Seattle publication, Seattle Weekly, has this story, titled "Your News, Their Secrets." The story begins:

The Seattle Times' 2006 investigative series called "Your Courts, Their Secrets" has already won a National Headliner Award, came close last week to winning a celebrated Goldsmith Prize for Investigative Reporting, and is said to be a finalist for a Pulitzer Prize next month. Using lawsuits to force local courts to open case files previously sealed by judges, the paper uncovered stories about a 13-year-old girl raped while in the state's care, school principals who ignored a teacher's fondling of students, and a medical malpractice suit that cost the University of Washington more than $3 million, to mention a few. In a pat on its own back, the Times said the series changed the way the courts operate and that the practice of file sealing "has evaporated."

Good for the Times. But when it comes to its own legal affairs on matters of public import, the newspaper has taken the opposite tack. The Seattle Times Co. is refusing to allow a citizens' group to view legal documents or sit in on a key arbitration hearing next month on its 24-year-old joint operating agreement (JOA) with the Hearst Corp.'s Seattle Post-Intelligencer—a session that could determine whether the city of Seattle continues to have two daily newspapers.

"Ironic, isn't it," attorney Kathy George says with a wry smile. "We raised a similar point [about the Times' hypocrisy] in our arguments." A former P-I reporter, George is hoping to save her old newspaper in the courtroom, acting as legal counsel for the Committee for a Two-Newspaper Town (CTNT).

In court papers, George noted that "the Times and Hearst have been leading advocates in our state and federal courts for openness in the civil and criminal justice systems," even going to court, as the Times did, for example, in the file-sealing series last year, to pry out secrets. "In light of the considerable body of case law that the Times and Hearst have developed in an open justice system, it is ethically and legally indefensible for them to insist upon secrecy in their own legal dispute."

Posted by Marcia Oddi on Friday, March 23, 2007
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Connie Williamson v. Timothy Williamson (NFP) - "There has been a substantial change in circumstances that justify modifying custody in favor of Timothy, and the trial court did not abuse its discretion by granting Timothy’s petition to modify custody. The trial court abused its discretion by imputing to Connie a higher income than that supported by the evidence. The trial court did not err in its calculation of overnight visits to be attributed to Connie. We affirm with regard to the custody modification and attribution of overnight visits. We reverse and remand for the trial court to recalculate Connie’s support obligation based on the evidence of her income presented at the evidentiary hearing."

NFP criminal opinions today (3):

C.Q. v. State of Indiana (NFP)

Vincent L. Puckett v. State of Indiana (NFP)

Shanda K. Oliver v. State of Indiana (NFP) - See this post by Michael Ausbrook, who writes "The court unanimously reversed a marijuana misdemeanor conviction, because the trial court forced Ms. Oliver to go to trial without a lawyer. Or at least the trial court did not make sufficient inquiry into the matter. * * * I will say that were I the Deputy Attorney General on this case, I'd ask the court to publish the opinion. And I'm a little surprised the court didn't publish on its own. There aren't that many Indiana cases around on forcing defendants to trial without a lawyer."

Posted by Marcia Oddi on Friday, March 23, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court rules in Kokomo fireman case

The Indiana Supreme Court heard oral arguments yesterday in the case of City of Kokomo v. Scott Kern. The Court's calender described the case: "After Kern was demoted for published remarks he made about his employer, the City’s fire department, the Howard Circuit Court entered a judgment finding the demotion invalid because it infringed upon Kern’s right to free speech. The Court of Appeals reversed." The Court of Appeals 8/17/06 decision is here.

Although nothing is posted on the Supreme Court site, the City of Kokomo has sent out a press release that reads in part:

Within hours of hearing oral argument on whether to review the Indiana Court of Appeals' decision that reversed the Howard Circuit Court's decision, the Indiana Supreme Court found Scott Kern's arguments unpersuasive and agreed with the Court of Appeals, denying Scott Kern's appeal. This decision by the Indiana Supreme Court affirms the City of Kokomo's Board of Public Works and Safety decision to discipline Kern for criticizing the Kokomo Fire Department's administration.

Fire Chief Dave Duncan stated, "The Indiana Supreme Court's quick decision confirms that the facts speak for themselves. The morale and efficiency of the department have improved since we took disciplinary action, and I believe the morale and efficiency will improve even more now that this issue is behind us."

In 2004, Scott Kern was demoted from captain to firefighter for publicly trying to bring the Kokomo Fire Department into disrepute and undermine the fire department's administration. In a public hearing before the Board of Public Works and Safety, Kern admitted that he submitted an incomplete application for a fire works display. After Kern's application was properly denied by Fire Chief Dave Duncan, Kern chose to voice his displeasure by publicly criticizing Chief Duncan's decision. Kern admitted in his testimony that his comments were intended to bring the fire department into disrepute. Fire Chief Dave Duncan sought to discipline Kern not only for these comments but also for three other violations of the fire department's policies.

This decision by the Indiana Supreme Court affirms the long-standing principle that public employees possess rights protected by the First Amendment to the U.S. Constitution, but these rights have limits and should not be abused. When a public employee seeks to publicly criticize with the intent to bring a department into disrepute, the Indiana Supreme Court believes that the employee can be severely disciplined.

Corporation Counsel Jon Mayes added, "This is an important case not only for the City of Kokomo, but also for every city in Indiana. The City is a firm believer in protecting the First Amendment rights of citizens, but the courts recognize that those being unjustly criticized also have rights."

Posted by Marcia Oddi on Friday, March 23, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Court of Appeals holds oral arguments in Valpo and Evansville

As the ILB reported here on March 15, the Indiana Court of Appeals is holding oral arguments this morning (March 23rd) at Valparaiso Law School in, as the Chesterton Tribune reported, "the case of a man accused of road rage in a crash which killed two people in Indianapolis."

Next Thursday, March 29th, according to this press release from the Court:

The Indiana Court of Appeals will hold oral argument in the case Sergio Campos v. State of Indiana on Thursday, March 29th at 2:00 p.m. CT at the University of Southern Indiana's Health Professions Center Mitchell Auditorium. A three-member panel of Judge Melissa S. May, Judge Nancy H. Vaidik, and Judge Michael P. Barnes will hear the case on appeal from Lake Superior Court.

The Court is asked to decide several questions regarding procedure and constitutional law in this search and seizure case. Among the questions the Court will examine are whether a passenger who does not own the car in which he is stopped has standing to challenge a police search that uncovers drugs he owns; whether police, after completing a traffic stop for speeding, may then tell a driver a search of his car is “necessary” when no additional evidence of a crime is apparent; and whether police officers may secretly record conversations between people waiting in a police car when they have not been given their Miranda warnings that they have a right to remain silent.

Posted by Marcia Oddi on Friday, March 23, 2007
Posted to Ind. App.Ct. Decisions

Ind. Law - "Law puts meth lab clean-up burden on landlords" [Updated]

Arthur E. Foulkes of the Terre Haute Tribune Star writes today:

New rules for cleaning up after methamphetamine labs in Indiana may create more financial risk for landlords of rental housing.

The new regulations, which take effect today, require that people who own land where a meth lab has been discovered must use a state-approved inspector to verify that their property has been cleaned up well enough to meet standards set by the Indiana Department of Environmental Management.

The new regulations also prohibit selling any property where a meth lab has been found until after a state-approved inspector gives the landowner a “certificate of decontamination.”

There are presently seven IDEM-approved inspectors in Indiana, according to the IDEM Web site. The inspection service closest to Terre Haute is Crisis Cleaning in Bloomfield. Others are in Gary, Indianapolis, Fort Wayne and Greenwood.

“IDEM does not regulate or control fees for cleanup and inspection services,” the IDEM Web site states.

Meth lab property cleanups can cost between $5,000 and $70,000, said Steve Mojonnier, a rule writer in the Office of Land Quality at IDEM. “It all depends on how much contamination there is [and] where it is,” he said. People making meth are “usually not very neat about it,” he added.

The new regulations put a greater burden on property owners, Mojonnier said; however, even without the regulations, meth lab cleanups often are very expensive. Sometimes the owner of a home with a relatively low market value will have it demolished rather than go to the expense of cleaning it up, he said.

Here is the new, 18-page rule.

First you've heard of it? See this lengthy ILB entry from August 6, 2006, which concludes with this:

How much is this going to cost the property owner? Nowhere in the information in pages 1 and 2 of the proposed rule does anyone venture a quess. But the cleanup contractors will make money. See this statement on p. 2:
[T]he economic impact of this rulemaking cannot be meaningfully quantified at this time. Compliance with this rule will be a significant cost to property owners affected by this rule. At the same time, compliance with this rule would allow remediation contractors, wrecking contractors, and other contractors to receive payment for services performed under this rule. The Department expects the costs to property owners to roughly balance the benefits to contractors who clean up these properties.
Well yes.

So does this proposed rule go beyond the directive set in the authorizing statute? Or is it the statute that places these responsibilities on the property owner? In either case, if not the property owner, then who should be responsible for the cost of the cleanup?

[Update 3/27/07] The Chesterton Tribune has a brief story today, apparently based on an IDEM press release. A quote:
“Under the new rule,” IDEM explained, “a qualified inspector must check for and clean up the hazardous residue from interior surfaces before new occupants can move into houses, apartments, and hotel rooms where drugs were manufactured. The rule also establishes cleanup levels tat must be attained and a list of contractors who are qualified to inspect and clean up the former site.”

Property owners can find the qualified inspector list on IDEM’s website at www.idem.IN.gov/programs/land/drug_lab

IDEM maintains the qualified inspector list and provides training to contractors who want to become qualified inspectors.

“Property owners now have a way to provide new occupants or prospective purchasers with credible certification that the living space has been cleaned up to state standards,” said IDEM Commissioner Thomas Easterly. “I encourage all property owners, realtors, health departments, and cleanup inspectors to visit our website for more information.”

Posted by Marcia Oddi on Friday, March 23, 2007
Posted to Indiana Law

Ind. Courts - More on "Star files challenge to open adoption records" [Correction]

The Indianapolis Star this morning has the expanded version of it story, first posted yesterday afternoon (see ILB entry here) on its suit [see correction] against the Clerk of the Indiana Courts to allow access to the briefs in the appeal of the case, In the Matter of the Adoption of Infants H, Marion County Dept. of Child Services v. Stephen Melinger et al.. [Correction - The Star isn't suing the clerk; they are making a request for access under Administrative Rule 9--like a request under the Access to Public Records Act.]

The Star has filed a Request for Evidentiary Hearing Under Ind. Admin. Rule (9)(I)(2) - access it here. The Star has also filed a 22-page Verified Petition for Access to Judicial Records - access it here.

Here is the outline of the Star's argument:

A. Under The Common Law and the First Amendment, Public Access to Judicial Records is Presumed.
1. The Policy Favoring Public Access.

2. The Historic Public Nature of Adoption Proceedings.

3. Public Access to Documents Used In Judicial Decision-Making.

B. Access Also Should Be Presumed Under The Indiana Constitution, Given That Its Protection of Free Expression Is Broader Than The First Amendment.

C. The Star Has Presumptive Common Law and Constitutional Rights of Access To The Records Of This Adoption Appeal.

1. The Adoption Statute Cannot Preclude Access to Judicial Records.

2. The Adoption Statute's Absolute Ban On Public Access To Judicial Records Violates The Separation of Powers.

D. In Accordance With Administrative Rule 9, The Court Should Grant A Hearing on The Star's Petition for Access to the Melinger Adoption Records.
Here is some of the introductory language from the Petition:
Indiana Newspapers, Inc., d/b/a THE INDIANAPOLIS STAR, seeks access, pursuant to Ind. Admin. Rule 9(I), to the judicial records in this appeal of the trial court's order approving a New Jersey man's adoption of twin girls born to a surrogate mother. Unlike most adoptions, this case was the subject of extensive public interest and news coverage as a result of the intervention of child protection personnel, who feared that the adoption was not in the best interests of the children. The Marion County juvenile court allowed public access to a related child-welfare proceeding that stemmed from those concerns. The controversy also led to the introduction of legislation in the Indiana General Assembly to prevent the state from becoming a haven for adoptions by out-of-state residents of children born to surrogate mothers.

This adoption proceeding raises serious issues of public importance as to the trial court's compliance with the Interstate Compact on the Placement of Children, Ind. Code 12-17-8-1 et seq. and 31-19-1-1 et seq. and Indiana law precluding adoption of children for placement in foreign states unless the children are shown to have special needs. Ind. Code 31-19-2-3. As THE STAR demonstrates in greater detail below, under the common law, the First Amendment, and arguably the free expression clause of the Indiana Constitution, access to these court records is presumed. This presumption applies to court records of adoption proceedings, which were public when the U.S. Constitution and the Indiana Constitution were adopted. This presumption can be overcome only by a showing of a compelling governmental interest.

The Indiana adoption statute, by which the General Assembly declared that all court records relating to adoptions were confidential, cannot bar THE STAR'S access to these records. Such statute impermissibly intrudes on the province of the judiciary, and thus violates the separation of powers clause of the Indiana Constitution. Even if the statute were not constitutionally infirm, Admin. Rule 9 gives the Court discretion to provide access to otherwise confidential records, although it impermissibly places on the requestor the burden of justifying access. But even if the Rule 9(I)'s standard were applied, the requirements for access are met in that: (a) extraordinary circumstances exist which require deviation from the confidentiality requirements; (b) the public interest will be served by allowing access; (c) dissemination of the information to which access is sought will create no significant risk of substantial harm to any party, third parties, or the general public, and (d) release of the information will create no prejudicial effect on on-going proceedings.

From Kevin Corcoran's story today:
A juvenile court judge allowed public access in 2005 to the Melinger child welfare case file, which included information about the adoptions, citing the legal and ethical issues raised by the case. Several months later, a different trial judge removed the child welfare file from public view.

The clerk of Indiana's appellate courts, Kevin S. Smith, won't disclose records in the appeal, citing a state law that makes adoption filings strictly secret. Some Indiana lawmakers say his stance takes their goal of creating a zone of privacy around adoptions too far.

"The principals involved in that case are not confidential," said Senate Judiciary Chairman Richard D. Bray, R-Martinsville. "That's public policy."

A sidebar to the story notes:
When legal adoption began in the United States, all records were open.

• History: Adoption records filed in Indiana before July 9, 1941, were open at the time they were filed and remain open today. But by 1960, more than half of all states had shut down access to modern adoption records, often in response to a 1941 amendment to the Social Security Act that required child welfare records be kept confidential. Some states seeking to meet the federal mandate interpreted this to include adoption files.

• Elsewhere: No state makes adoption records from recent decades available to the general public, but at least 35 states, not including Indiana, allow access to non-identifying information.

The focus of this request, as I understand it, however, is not to open all adoption records. It is to allow access to the filings (the "judicial records") in this specific appeal.

Posted by Marcia Oddi on Friday, March 23, 2007
Posted to Indiana Courts

Thursday, March 22, 2007

Ind. Law - Watch the House Committee Hearing on SJR 7

The General Assembly has now made available online the archive version of its 3.5 hour House Rules Committee hearing yesterday on SJR 7. Access it here. Read reports of the hearing via this ILB entry from earlier today.

Posted by Marcia Oddi on Thursday, March 22, 2007
Posted to Indiana Law

Ind. Decisions - 7th Circuit decides one Indiana case today

USA v. Duncan, Criss E. (ND Ind., Allen Sharp, Judge.) - Per Curiam: "The district court’s sentence of 457 months’ imprisonment is not unreasonable in light of the factors set forth in 18 U.S.C. § 3553(a). The decision of the district court is affirmed."

Posted by Marcia Oddi on Thursday, March 22, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Star files challenge to open adoption records"

Recall this ILB entry quoting from an Indianapolis Star story from Jan. 21, 2007, by Kevin Corcoran, headlined "State appeals twin girls' adoption by N.J. man." (The earlier, lengthy Star story is still available, here.) Some quotes:

Months after a Hamilton County judge decided in closed court to allow an unmarried New Jersey man to adopt twin girls over the objection of child welfare officials, the state is appealing the decision.

The state's notice to the Indiana Court of Appeals indicates officials will challenge whether the blond, blue-eyed girls, born six weeks early to a surrogate mother at Methodist Hospital in April 2005, had special needs making them hard to place. * * *

Melinger's attorney, Steven C. Litz, filed an emergency motion in Hamilton County last week seeking a hearing on whether parties in the case should be held in contempt for violating confidentiality orders.

Litz's motion also asked for an emergency restraining order against The Indianapolis Star prohibiting it "from publishing further articles relating to this matter, including the filing of this motion." Hughes denied that motion Thursday.

Early this afternoon the Star posted this story by Corcoran on its website, reporting:
The Indianapolis Star today challenged a decision by the clerk of Indiana's courts to withhold records in the appeal of an umarried New Jersey man's controversial adoption in 2005 of twins born to a paid surrogate mother. * * *

In a petition filed today with the Indiana Court of Appeals, the newspaper's attorneys argued the public interest would be served by opening the appellate records. The adoptions drew scrutiny after Indiana child welfare officials responded to concerns that hospital employees had raised regarding Melinger's ability to care for the girls before they were discharged from Methodist's neonatal intensive-care unit.

A juvenile court judge allowed access in 2005 to the Melinger child welfare case file, which included information about the adoptions, citing important ethical and policy issues raised by the girls' births and their subsequent adoptions. Several months later, a different trial judge removed the child welfare file from public view.

The Star's petition for access was filed after the clerk of the appellate courts, Kevin S. Smith, refused to allow a Star reporter to examine records the Indiana Court of Appeals will rely on to make its public ruling on the Melinger adoptions.

The ILB has attempted to access the record of the case in the Court Clerk's docket. Even if a case is sealed, it is my understanding, as has been reported in recent ILB entries, something should turn up -- at least the indication that such a case exists and that it is sealed, hopefully more.

Entering Melinger's name in the docket did not yield a return; entering the name of the guardian (obtained from the earlier Star story), did return this case number, 29 A 02 - 0611 - CV - 01018. The case number produced this copy of the public docket to date.

Posted by Marcia Oddi on Thursday, March 22, 2007
Posted to Indiana Courts

Not Law but Interesting - You know you're getting older when ...

You know you're getting older when you can easily answer the Washington Post's Political Trivia Quiz each day. For instance, today:

John Mitchell served in what capacity prior to a conviction for his involvement in Watergate?
A. Chief of Staff
B. Attorney General
C. White House Counsel
D. National Security Advisor

Posted by Marcia Oddi on Thursday, March 22, 2007
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 0 today (and 11 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Danny L. Kreais v. Alva J. and Sandra K. Butler (NFP) - "Kreais is a party to the lease as a tenant based on his signature and his testimony that he signed the lease in his personal capacity. The trial court did not abuse its discretion in calculating damages as to the personal property that was converted by Kreais. Finally, pursuant to the lease, the Butlers are entitled to attorney’s fees and costs. Affirmed."

Marilyn Barlow v. City of Mitchell (NFP) - "Marilyn Barlow appeals the trial court’s order entering judgment against her and in favor of the City of Mitchell in the amount of $38,200.00 for her violations of three City of Mitchell ordinances regarding weeds, junk, and litter, unsafe buildings, and animals. Because Barlow defaulted on the City of Mitchell’s complaint and the hearing in this case was only to address damages, many of Barlow’s arguments are not available on appeal. As for damages, we conclude that the trial court properly computed them; therefore, we affirm the court."

NFP criminal opinions today (9):

John Smith v. State of Indiana (NFP)

Jason Clay Baldauf v. State of Indiana (NFP)

Tavario Baskin v. State of Indiana (NFP)

Timothy Rindge v. Joyce Rindge (NFP)

Ronald Holley v. State of Indiana (NFP)

Cynthia Williams v. State of Indiana (NFP)

Timothy Cooper v. State of Indiana (NFP)

Alexander J. Anglemyer v. State of Indiana (NFP)

Victor Pinkston v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 22, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - Heather Smith has been appointed Deputy Clerk of the Indiana Supreme Court, Court of Appeals, and Tax Court

From a press release today:

Heather L. Smith has been appointed Deputy Clerk of the Indiana Supreme Court, Court of Appeals, and Tax Court, announced Kevin S. Smith, Clerk of the Supreme Court, Court of Appeals, and Tax Court, today. Ms. Smith replaces David R. Schanker, who held the position for over seven years before accepting appointment to become the Clerk of the Wisconsin Supreme Court and Court of Appeals. Ms. Smith will start work April 2, 2007.

Ms. Smith has been a staff attorney for the Indiana Court of Appeals since February of 2003, where her responsibilities included review of motions and petitions and drafting orders. Previously, she worked as a hearing officer at the Indiana Department of Revenue, as legal counsel in the trust department of Union Federal Bank of Indianapolis, and as a real estate attorney for Duke Realty Corporation. During and following law school, Ms. Smith served as an intern and law clerk for the Indiana Court of Appeals, working for the Honorable George B. Hoffman, Jr., and the Honorable James S. Kirsch.

Ms. Smith graduated cum laude with a B.A. in economics from Spelman College in Atlanta, and received a J.D. from the Indiana University School of Law, Indianapolis.

“Heather's amiable, professional demeanor, her keen intellect and understanding of the appellate rules and appellate procedure, and her dedicated, ‘can do' spirit have earned the respect of the Clerk's Office staff and the judges and attorneys with whom she has worked,” stated Kevin S. Smith. “We are thrilled to have Heather coming on board.”

The Deputy Clerk works at the direction of the Clerk and, among other things, manages the day-to-day operations of the Clerk's Office.

Posted by Marcia Oddi on Thursday, March 22, 2007
Posted to Indiana Courts

Ind. Courts - "Courtroom camera plan fizzles"

Jon Murray of the Indianapolis Star reported Monday that the cameras in Indiana trial courts project has "fizzled." Some quotes:

The faces of Marion Superior Court Judges Robert Altice and Patricia Gifford are rarely beamed onto Central Indiana TV screens, but don't blame them for shooing cameras away from their courtrooms.

Both agreed to take part in an 18-month experiment allowing cameras and recording devices into eight courtrooms across the state. Most times, the judges said, they have no problem opening their courtrooms to cameras, but the project has fizzled because the prosecution and defense also have veto power.

Halfway through the pilot project, Indianapolis media requests have met rejection all but three times; in other cities, only two requests have succeeded.

The Indiana Broadcasters Association, which initiated the pilot project in hopes of opening all county courtrooms to cameras, is waiting for the Indiana Supreme Court's response to a request in January to modify its order. The association suggested requiring only the judge's consent.

Dan Byron, the association's general counsel, estimated 350 cases have stayed off-limits despite media interest, almost always because of defense objections. * * *

Gifford said her experience presiding over Mike Tyson's rape trial in 1992 changed her mind about cameras. In that case, a closed-circuit system broadcast a feed to another room for journalists. "I had to admit you completely forgot (the camera) was there," she said.

Altice and Gifford support taking away the veto from attorneys so that more media requests will be approved. "If you really want to do a study," Altice said, "you've got to have something to study."

Meanwhile, the NY Law Journal has a story today headlined "N.Y. Senate Committee Backs Bill to Allow Courtroom Cameras." The report concludes:
The sponsor of DeFrancisco's bill in the Assembly, Queens Democrat Mark Weprin, said he is hoping that support from Gov. Eliot Spitzer for opening courtrooms to audiovisual coverage will give the legislation an additional boost.

"It's embarrassing New York state is one of the few states where people cannot see on a television what they have a constitutional right to see in person," Weprin said.

Kennedy said her group's member newspapers want it to renew its efforts to get cameras back in courtrooms.

"With the advent of newspaper Web sites, many of which can offer full-motion video, it's becoming more imperative for our members to be able to present information to their readers in new electronic formats," Kennedy said. "What's changed for us is newspaper Web sites. Our members have become a lot more interested in seeing cameras return to the courts in New York state."

Rex Smith, editor of the Times Union newspaper in Albany, said the changing nature of the delivery of news is making New York's ban on video coverage more and more antiquated.

"Storytelling today is not just about words. It's about videos and it's about photographs," he said. "There is no reason that the courts shouldn't have access to information on all the various media platforms that they expect to get their news from these days."

Posted by Marcia Oddi on Thursday, March 22, 2007
Posted to Indiana Courts

Ind. Decisions - Court of Appeals judge rejects recusal motion

On Jan. 24, 2007, the Court of Appeals issued a 3-0 NFP opinion in the case: In Re the Visitation of M.S. and K.S. by Next Best Friend Beverly R. Newman (NFP). Judge Baker wrote the 26-page opinion, in which Judges Darden and Robb concurred.

Yesterday a 4-page NFP Memodandum Decision on Rehearing, was posted, dated March 20, 2007, authored by Judge Robb. Some quotes:

Appellant-Petitioner Beverly R. Newman has moved that I disqualify myself from participation in this case. More specifically, she has filed a petition for rehearing from this court’s decision in the case of In re the Visitation of M.S. and K.S., No. 29A05-0606-CV-322 (Ind. Ct. App., Jan. 24, 2007), in which we affirmed the trial court’s denial of Newman’s request for court-ordered grandparent visitation. In part, she seeks rehearing “in order for Justice [sic] Robb to address whether recusal is appropriate . . . .” * * *

Newman alleges that because I am the chairperson for the Indiana Family Courts Task Force and Judge Steve David, the trial court judge in this case, is a member of the Task Force, our “close working relationship” for many years on this task force “give[s] rise to an appearance of impropriety with respect to [my] participation on the panel herein . . . .” * * *

To the extent Newman is intending to imply by her allegation that I am in a position to “direct and evaluate Judge David” that I have any control over Judge David’s disposition of his cases, the allegation is spurious. To the extent that she is arguing that I have a special interest in protecting Judge David’s reputation as an honest, impartial, competent judge by affirming his orders because we serve on the same task force, I have no more interest in protecting Judge David’s judicial reputation than I do any other judge of this state. Parties are certainly entitled to request recusal when they think the facts and circumstances warrant; however, they should be certain that the facts and circumstances justify the request. The only concrete allegation Newman has made is that Judge David and I serve on the same task force and this fails to show even the appearance of impropriety. No reasonable person aware of the circumstances would question my impartiality in this matter, and I therefore decline to recuse myself from these proceedings.

Posted by Marcia Oddi on Thursday, March 22, 2007
Posted to Ind. App.Ct. Decisions

Ind. Law - "3 top firms to legislators: Kill gay-marriage ban"

There are a number of stories today on yesterday's House Committeee hearing on SJR 7.

Niki Kelly of the Fort Wayne Journal Gazette's story includes these quotes:

Wednesday’s 3 1/2 -hour hearing focused almost solely on the intended and unintended consequences of the second section – 29 crucial words.

Opponents fear it jeopardizes domestic violence protection for unmarried couples – straight or gay; handcuffs future legislators from recognizing civil unions; and puts at risk domestic partner health care benefits offered by private companies or universities.

Mark Osowick, executive director of recruiting for Cummins Inc. – one the state’s largest employers – expressed opposition to the amendment because it could have a detrimental effect on recruiting talent.

“Simply put, SJR 7 is bad for the state of Indiana, and it’s especially bad for business in Indiana,” he said, noting that Cummins provides domestic partner benefits for its 5,500 employees.

“A crucial part of our success … is providing employees with a great place to work and a great place to live. Anything that makes Indiana less inclusive … makes it more difficult for us to compete.

“This sends the message that Indiana is not tolerant of diversity.”

Aviva Anne Orenstein, a law professor at Indiana University, called the phrasing unnecessary and vague. But most importantly, she said, it’s simply undemocratic.

“It restricts the legislature. Hoosiers in the future are going to be bound by Hoosiers today,” she said. “A future Indiana legislature could not mandate health benefits for same-sex couples even if they thought it was in the economic interest of the state.”

Then mothers of gay and lesbian children put a human face on the issue, saying that all of their children had chosen to leave the state because of its intolerant nature.

Marcia Neff said two of her sons are gay and did not choose their sexual orientation. They did, however, choose more accepting environments – in Madison, Wis., and San Francisco.

Sarah Patterson told about her lesbian daughter who moved to Pennsylvania – one of the 23 states without a constitutional ban on gay marriage – and now has three children with her partner.

“They drive a minivan, take their children to music lessons and regularly attend church. They are a family,” she said. “This is a family that could have contributed to Indiana. They won’t come back.”

Proponents of the measure had their own fair share of lawyers and experts.

Roger Bennett, a Lafayette attorney, said the language does not restrict private business or universities, nor does it limit future legislatures.

“All such charges I have seen are, to put it kindly, mistaken,” he said. “If you’re scared, blame the scare mongers, not the authors or supporters of this amendment.

“It’s difficult to respond to their accusations … in the sense that it’s always difficult to prove a negative.”

Curt Smith of the Indiana Family Institute said the amendment is important to pass before actions in other states to legalize same-sex marriage are brought to Indiana’s doorstep.

He conceded the language might affect at least a hundred legal incidents of marriage – though no definition of that term is generally accepted – but only in the sense that judicial power would be curbed, not legislative.

“It should be up to you. It’s the concern that unelected judges who are not answerable to the people make policy,” Smith said. “That’s where the separation of powers breaks down.” * * *

House Rules Chairman Scott Pelath, D-Michigan City, did not commit to taking any action, saying all options are open and legislators needed to weekend to consider the next step.

If the House passes the amendment in its current form, the issue goes to the voters at the 2008 general election.

Conventional wisdom has been that if the amendment has been changed it would start the process over again; meaning voters wouldn’t get a vote until at least 2010.

Pelath said there is a 1972 Indiana Supreme Court case that gives some precedent to putting the first paragraph on the ballot even if the language of the second section is struck.

Note: See this ILB entry from yesterday (immediately below) on the 1972 decision.

Lesley Stedman Weidenbener of the Louisville Courier Journal reports:

Citing concern about unintended consequences, a House committee chairman postponed action yesterday on a proposed constitutional amendment to ban same-sex marriage.

House Rules and Legislative Procedures Chairman Scott Pelath, D-Michigan City, said the "chances are pretty strong" the committee will vote on the proposal -- but not necessarily in its current form.

"I think members of the committee need time to meditate on this over the weekend, and I think we need to determine what the best course of action is going to be," Pelath said after a nearly four-hour meeting. "We're going to deal with this issue in one way or another in one form or another."

At issue is whether the proposed amendment would prevent existing laws or a future legislature from providing some marriage-like benefits to same-sex couples. * * *

critics of the plan say it ties the hands of lawmakers as well as the courts.

"Hoosiers in the future are going to be bound by Hoosiers today," said Aviva Anne Orenstein, a professor at the Indiana University School of Law. "That's not democratic."

Making changes in the amendment proposal could affect when Hoosiers get to vote on it.

Amendments to the Indiana Constitution must be passed by two consecutively elected legislatures before being placed on a general election ballot. The House and Senate have approved the proposal once and are considering it now for the second time. If approved, it would go on the November 2008 ballot.

The proposal's authors say if the language is changed at all, the process would begin again.

But Pelath said yesterday he's not so sure, citing an Indiana Supreme Court decision that he said upheld a proposed constitutional amendment even though it was approved by lawmakers in slightly different forms in 1967 and 1969. * * *

Yesterday, Kerry Hyatt Blomquist, chief counsel for the Indiana Coalition Against Domestic Violence, said she fears the language in the second section could lead a judge to dismiss domestic battery charges against a man accused of beating a woman simply because the couple isn't married. That happened in Ohio, where voters ratified a constitutional amendment that is similar in idea but worded differently.

"Section B of this amendment is vague, undefined and it's ambiguous," Blomquist said. "We have yet to see a proposed definition of 'legal incidents of marriage.' "

Mark Sniderman, a member of the Jewish Community Relations Council board, said the language means the legislature might be able to pass a law that, for example, created a domestic partnership with benefits for same-sex couples that were similar to marriage. However, if someone sued to stop the law, the amendment would keep the court from being able to enforce it, he said.

Much of the debate focused on the use of the word "construe" in the proposed amendment.

Roger Bennett, a Lafayette attorney and supporter of the amendment, said the court would be required to "construe" or interpret a law passed by the General Assembly only if it were ambiguous. Then, the amendment would prevent the court from determining that lawmakers meant to provide marriage-like benefits.

"All that's required is legislative clarity," Bennett said.

But Pelath said he's concerned that no law can be written clearly enough to avoid court interpretation.

Bill Ruthhart's Indianapolis Star story is headlined "3 top firms to legislators: Kill gay-marriage ban." Some quotes:
Three of the state's largest employers urged an Indiana House committee Wednesday to kill a proposed constitutional amendment banning same-sex marriage.

Representatives for Cummins and WellPoint told members of the House Rules and Legislative Procedures Committee the amendment would hurt their effort to recruit employees and could jeopardize domestic-partner benefits they offer. Dow AgroSciences voiced similar concerns in a letter.

"I think there's ambiguity on the question of benefit coverage, and mostly, I think we're also concerned about the message this sends," said Randy Brown, chief human resources director for WellPoint, an Indianapolis health insurer. "We want to send a message that Indiana is a welcoming state to any talented person."

Much of Wednesday's discussion echoed testimony heard by the Senate earlier this session.
Supporters, mostly from conservative groups and churches, spoke of the importance of protecting marriage and keeping activist judges from redefining its meaning.

Opponents, many of whom were university professors or members of gay-rights groups, talked about how the proposal would inject what amounts to state-sanctioned discrimination into the constitution.

But Wednesday's testimony from three of the state's top employers offered a new wrinkle in what has become one of the defining issues of this legislative session. None of the three had previously spoken out against the amendment, which legislators have been considering since 2004. * * *

Cummins, WellPoint and Dow AgroSciences, an Indianapolis-based biotechnology producer, together employ more than 10,000 workers in Indiana, offering the kind of high-paying jobs Gov. Mitch Daniels has made a priority in the state's job-recruitment efforts.

Rep. Scott Pelath, D-Michigan City, the committee's chairman, said he invited representatives from the governor's office to testify about the impact the amendment might have on economic development. They declined, Pelath said. * * *

After Wednesday's hearing, Pelath said he was no more or less sure of what the committee would do.
"As of now, there's no course of action that is committed to or ruled out at this point," Pelath said. "But we're going to deal with this issue one way or another in one form or another."

Note: The ILB made MP3s of the entire hearing (including the various speakers individually) and may post them this weekend.

[More] See also this AP story by Mike Smith, published full-length in the Lafayette Journal & Courier.

Posted by Marcia Oddi on Thursday, March 22, 2007
Posted to Indiana Law

Wednesday, March 21, 2007

Ind. Law - Some initial thoughts on House hearing on SJR 7

I was able to watch the entire House Committee hearing on SJR 7 this morning. I thought it was a very well-run hearing and thought the opponents of the measure made a particularly powerful case.

One of the supporters of the amendment, I believe it was a legislator, referred to "a case from the 1970s" that, I heard him say, upheld the proposition that a constitutional amendment must pass two General Assemblies with exactly the same wording. He referred to a legal memorandum from, I believe, the Legislative Services Agency. He called the case "Reissline v. Thomas."

I'd like to review a copy of the memo. I hope one of you readers will be able to send it to the ILB.

Roeschlein v. Thomas 258 Ind. 16, 280 N.E.2d 581 (1972) is the case where the Indiana Supreme Court upheld the new Article 7, the new judicial article making the Supreme and Appellate Courts appointive, rather than elective. The per curiam opinion began:

PER CURIAM.---This is an original class action in which the plaintiff seeks to have the amendment revising Article 7 (the Judicial Article) of the Indiana Constitution which was ratified in the general election of November 3, 1970, declared illegal and void, and seeks an injunction restraining the Governor from acting until such amendment has been constitutionally adopted.
Plaintiffs in the case argued about the internal legislative process that produced the two Joint Resolutions (which did not even have the same number in the two General Assemblies and which in at least one session passed the two houses in different forms and had to go to conference committee):
There is no hint in the case at bar that House Joint Resolution No. 6 or House Joint Resolution No. 12 were not duly and lawfully attested by the signatures of the presiding officers nor is there any suggestion the attestation on the Joint Resolutions was due to fraud or mistake of fact. No question is raised as to the legislative intent of the respective Joint Resolutions, so no reason is presented by plaintiff why we should not be bound by the firmly established general rule preventing courts from looking behind the authentication of the act or joint resolution to the journals of the houses. * * *

We now reaffirm the repeated stand taken by our Supreme Court that courts should not look beyond the authentication of the presiding officers of the legislature to determine from their journals whether there has been a defect in following the constitutional directives of Article 16, § 1.

A second claim made was also given short shift (shrift?) by the Court:
Thus plaintiff is arguing that the Judicial Amendment is invalid because of the failure of the Secretary of State to certify the Judicial Amendment and the additional failure of some county clerks to include it in the notice of the General Election of November 3, 1970. This, he contends, breaks the chain of steps necessary to properly submit a constitutional amendment to the electorate.

This argument comes to us singularly unencumbered with applicable authority. It amounts to nothing more than a bald assertion that the Judicial Amendment is invalid because certain details of the election laws were not followed verbatim.

Plaintiffs also challenged the language used to describe the proposed constitutional amendment on the election ballot. The Court said:
This precise question has been previously litigated in this jurisdiction. In Oviatt v. Behme (1958), 238 Ind. 69, 147 N. E. 2d 897, the Indiana Supreme Court analyzed the adequacy of language describing a constitutional amendment which extended the terms of certain county officials from two to four years. After pointing out the absence of any mandatory language in the constitution concerning this subject, the court held that even though an important limitation was omitted in the ballot description, the language used was adequate. The specific rule laid down in Oviatt v. Behme, supra, is:
"So long as the amendment is sufficiently identified and is not confused with any other amendments, submitted at the time, we, as a court, do not have the right to strike it down on any theory that the legislature failed to use good judgment in the method of submitting the amendment. Some amendments may be so lengthy that it would create a physical and mechanical problem in setting them forth on a ballot or voting machine. Appellees further point out that the Constitution of 1852, when it was submitted to the voters of this State for approval, was not printed in full or even the substance thereof set out on the ballots. Acts 1851, ch. 29, § 3, p. 54. The amendment in question was sufficiently identified and properly ratified." (Emphasis supplied.)
The Court also, in dicta of course, references a case identified as State ex rel. Thompson, Attorney General v. Winnett et al. (1907), 78 Neb. 379, 110 N. W. 1113, saying "The court in this case relied on the principle of substantial compliance to uphold the amendment."

Remarkably, this same Nebraska opinion is cited approvingly in a recent Indiana Supreme Court opinion, D&M Healthcare v. Kernan (2003):

Over a century ago, this common sense approach prevailed over formalism. Election by voting machines was constitutional because the machines served the purpose and form of written votes, though not literally compliant. Id. Similarly, the Supreme Court of Nebraska upheld constitutional amendments even though the procedures used to enact the amendments did not follow the letter of the state constitutional requirement that proposed constitutional amendments be published regularly in newspapers. State ex rel. Thompson v. Winnett, 110 N.W. 1113, 1115-17 (Neb. 1907). Because there was substantial compliance with the constitution, albeit incomplete compliance, the Supreme Court of Nebraska upheld the amendments. Id. at 1116.

In short, I find nothing in the Roeschlein v. Thomas opinion, or any other Indiana opinion, upholding a proposition that a constitutional amendment in Indiana must pass two General Assemblies in precisely the same form. To the contrary, it appears that our Court has endorsed the doctrine of substantial compliance. I would like to review a memo that comes to a different conclusion, based on these cases.

Posted by Marcia Oddi on Wednesday, March 21, 2007
Posted to Indiana Law

Ind. Decisions - 7th Circuit decides two Indiana cases, in one it rules the NCAA must comply with a subpoena issued by the US Dept of Education

U.S. Dept. Educ v. Nat'l Collegiate Athletic Ass'n. (SD Ind., John Daniel Tinder, Judge.) - Posner: The University of the District of Columbia self-reported "violations involving its basketball teams in the 2004-2005 season. The exact nature of the violations is unclear, but they seem to have included misuse of federal funds, and the Inspector General of the Department of Education began an investigation of that misuse. In the course of the investigation the Department issued a subpoena to the NCAA for documents that UDC had submitted, or the Association had prepared, in connection with the Association’s investigation of UDC’s self-reported violations. The Association moved to quash the subpoena or in the alternative for the protective order described below. The district court denied the motion; the Association appeals only from the denial of the protective order. * * *

In this case, in any event, the burden of compliance with the subpoena, even without a protective order to cushion the effect of compliance, is speculative and is outweighed by the investigatory needs of the Department of Education.

Krieg, Robert A. v. Seybold, Wayne (ND Ind., William C. Lee, Judge) - Judge Flaum: "On October 28, 2004, Jack Antrobus, the Superintendent of Marion, Indiana’s Streets and Public Works Department administered a random drug test to all employees in the Streets and Sanitation Department. Robert Krieg, a Streets and Sanitation Department employee, refused to be tested, and Antrobus ordered him to leave the building. On November 15, 2004, the City’s Board of Public Works voted to terminate Krieg’s employment. Krieg filed suit arguing that the drug test violated his Fourth Amendment rights and that the City terminated him without due process. The district court granted summary judgment to the City, and Krieg appeals. For the following reasons, we affirm the district court’s judgment."

Posted by Marcia Oddi on Wednesday, March 21, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 5 NFP)

For publication opinions today (3):

Heather Parks and Jimmy Phillips v. Delaware County Department of Child Services - "Heather Parks (“Mother”) and Jimmy Phillips (“Father”) appeal the involuntary termination of their parental rights to their two sons, J.P. and B.P. (collectively “the Children”). Mother and Father argue that there is not clear and convincing evidence to support the trial court’s orders terminating their parental rights. Because the sua sponte findings entered by the trial court are insufficient and hinder an effective appellate review, we remand to the trial court."

Mark D. Bennett v. State of Indiana - "The restitution order in Bennett’s case contains no set amount, specifically requires unknown future expenses, has no end date, and is not based upon any evidence. As such, the order violates Indiana Code Section 35-50-5-3(a), is an improper sentence, and constitutes fundamental error. Accordingly, we must reverse this portion of Bennett’s sentence and remand with instructions to the trial court to determine the cost of any counseling N.P. received before the time of sentencing as a result of Bennett’s crimes.*
*In reaching our conclusion, we note that the current restitution statute seems to be at odds with the stated purposes of restitution orders (to impress upon the criminal defendant the magnitude of the loss he has caused and to defray costs to the victims caused by the offense, see Henderson, 848 N.E.2d at 346) -- particularly in cases such as this where the victim’s damages very likely will continue long after the defendant is sentenced."

Debra Huntington v. Tom Riggs, et al. - "As we stated previously, under the doctrine of title by acquiescence, the Huntington family acquired the Disputed Land prior to the Riggses’ purchase of the Von Grosinsky’s property. As this boundary line agreement is not only binding on the original owners but also “upon each and all persons claiming under to through them,” the Riggses are estopped from disputing Huntington’s ownership over the Disputed Land. onsequently, the trial court erred in entering summary judgment in favor of the Riggses’ Counterclaim. Thus, we reverse the trial court’s summary judgment in favor of the Riggses."

NFP civil opinions today (1):

In the Matter of S.C.H.B., and Sharlene Haven v. Jasper Co. Dept. of Child Services (NFP) - "Sharlene Haven (“Mother”) appeals the involuntary termination of her parental rights to her son, S.C.H.B. Concluding that the Jasper County Department of Child Services (“JCDCS”) proved by clear and convincing evidence that there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of S.C.H.B. and that termination is in the best interests of S.C.H.B., we affirm the termination of Mother’s parental rights to S.C.H.B."

NFP criminal opinions today (4):

Bedford Lee Atwell v. State of Indiana (NFP)

James W. Arthur, Jr. v. State of Indiana (NFP)

Kenneth Douglas v. State of Indiana (NFP)

Anthony Blanco v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 21, 2007
Posted to Ind. App.Ct. Decisions

Courts - "Does an acquitted defendant have the right to ask the district court to expunge the court record of his prosecution? "

Decision of the Day Blog reports there is a circuit split on the question:

On appeal, the First Circuit explains that the circuits are split over whether a district court has jurisdiction over an expungement motion. The Third, Eighth, and Ninth Circuits have concluded that courts lack jurisdiction, while the Second, Seventh, Tenth, and D.C. Circuits have reached the opposite conclusion. The First decides to make it an even split by holding that the district court lacked jurisdiction to consider the issue. Accordingly, it dismisses the appeal.

Posted by Marcia Oddi on Wednesday, March 21, 2007
Posted to Courts in general

Ind. Gov't. - Another State of Indiana web site hacked; 71,000 Social Security numbers accessed

Early in February the reports were "State Web site breached: 5,600 notified hacker saw their credit-card numbers" - see ILB entries here and here. From a report at the time: "Chris Cotterill, director of the site, www.IN.gov, said the hacking occurred in early January but wasn’t discovered until Jan. 25."

Apparently the breach was much larger, and the State is just finding it out. An AP story today reports:

An audit of a state government Web site database after someone hacked into the system found that personal information including Social Security numbers for 71,000 health-care workers had been accessed, officials said yesterday.

The breach occurred Jan. 3 at the same time that the hacker accessed credit-card information of about 5,600 people and businesses.

There have been no reports of anyone's information being abused.

But the state Office of Technology sent letters to the 71,000 certified nurse aides, qualified medication aides and home-health aides last week warning them to review their credit reports and seek fraud alerts, said Chris Cotterill, the director of IN.gov, the state's Web site. * * *

The state discovered that the credit-card information had been accessed early last month.

That triggered the audit, which found last week that the health-care workers' information had been accessed.

Cotterill said that the information was on the Web site to allow health-care providers to check the credentials of workers and that the security problem had been fixed.

"We don't expect anything more to turn up," he said.

"Part of that audit was an overview of our security controls, and we've identified some things we'll be doing to improve security."

Posted by Marcia Oddi on Wednesday, March 21, 2007
Posted to Indiana Government

Ind. Courts - Woman continues to disrupt hearing

Kate Braser of the Evansville Courier & Press reports today:

A Vanderburgh Circuit Court magistrate will try for a third time today to advise a woman of the charges she faces after allegedly trespassing into her child's classroom.

Sarah Essett of 2230 Ponderosa Place faces preliminary charges of Class D felony battery and Class D felony trespassing for the incident at Caze Elementary, but so far Vanderburgh Circuit Court Magistrate David Kiely has been unable to formally read through the charges because of Essett's behavior in court.

On Thursday, Essett called Kiely "Chicken Little" and acted like a chicken, squawking and flapping her arms. Kiely ordered her held without bond over the weekend until he could appoint her an attorney.

On Tuesday, Essett appeared in court again, but refused to sit down, complaining repeatedly of a sore throat and a medical emergency. * * *

Her appointed attorney, Cole Banks, told Kiely he'd been unsuccessful in speaking with Essett prior to the court appearance. Banks said he tried to talk with Essett, but she continuously complained of a "medical emergency."

"I don't know that she is going to be willing to sit down or go through any of this," Banks said as Essett stood beside him.

Banks requested that Essett be examined by a psychiatrist for competency to stand trial and to determine whether she was sane at the time of the alleged crime.

Kiely ordered that Essett continue to be held without bond. He asked Banks to try and get Essett to sign a waiver allowing a psychiatric evaluation. Kiely also inquired about Essett's psychiatric history.

"Does she have a guardian?" he asked.

A Department of Children and Family Services caseworker at the hearing said she is unaware of a guardian for Essett.

"She's been on her own," the woman said of Essett.

Essett appears in court again this afternoon to determine whether she will be evaluated and so Kiely can again try to advise Essett of the charges.

Posted by Marcia Oddi on Wednesday, March 21, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Law - "Spotlight on same-sex marriage ban"

The House Rules and Legislative Procedures Committee will hold a hearing on Indiana Senate Joint Resolution 7 at 9 a.m. today in the House Chambers at the Statehouse. Apparently you will be able to view it live online, via this link. [Or try this link.]

Bill Ruthhart of the Indianapolis Star has a story this morning. Debate reportedly will focus on the second sentence of the proposed amendment; the first sentence adds to the Indiana Constitution the same prohibition the General Assembly enacted into the statutes several years ago. From the story:

The amendment's author, Sen. Brandt Hershman, R-Wheatfield, has maintained that if any of the proposal's language is changed, the process likely would have to be delayed two years and the amendment would have to be passed by another General Assembly.

[Speaker Patrick] Bauer, though, has suggested that even if the amendment's second sentence is removed, the first sentence still could move on to voters if passed this session.

"Every lawyer you meet will have a different opinion on this. A few that I've met have said that if similar language, like the first part, is passed, then that similar language is still eligible (to be placed on the ballot)," Bauer said. "I think that might be the case, but we'll see."

Hershman said he's found no consistent legal opinion supporting Bauer's theory.

He said if the House tried to push only the first portion of the amendment to the ballot, opponents could immediately challenge the move with a lawsuit.

What's more, Hershman said, if the second sentence is removed, the amendment's intent would be undercut.

The second part, he said, is designed to keep judges from circumventing the definition of marriage by establishing civil unions that also carry the benefits of marriage.

"If we simply said marriage is between a man and a woman, it would not prevent courts from finding a creative way around this," Hershman said.

"It is very clear that any vote to amend this language will be a vote to kill this amendment and take it out of the hands of the voters to decide, nothing less."

Bauer has said he will let the "process run its course."

From earlier in the story:
"There's no other way to deal with this matter except straight up," said Rep. Scott Pelath, D-Michigan City, who chairs the committee. "We need to conduct a hearing, take testimony and . . . hear a diversity of viewpoints."

Pelath can expect just that in a debate over the amendment's second sentence, which opponents have said could lead to lawsuits challenging the legality of domestic-partner benefits offered by the state's public universities and other public employers.

Foes of the ban also say it could jeopardize the protections afforded unmarried women under the state's domestic violence laws.

The amendment's first sentence defines marriage as the union between a man and a woman. The second states that neither the constitution nor state law can bestow "the legal incidents of marriage" to "unmarried couples or groups."

Opponents have characterized that language as vague with uncertain consequences -- and House Democrats appear to be listening.

Bauer said he's open to changing the amendment's language, but "only for the purpose of the problems with the second half, only if it's done by the committee process, and only if the people from the corporations and the universities show up and competently present their case."

In a separate story today, the Star reports that:
No private employers testified against a constitutional amendment banning same-sex marriage when it was before the Senate, but that will change when discussion begins today in the House.

Cummins Inc. Chairman and Chief Executive Officer Tim Solso has sent a letter to House Speaker B. Patrick Bauer, D-South Bend, encouraging him to oppose the amendment.

In his letter, Solso told Bauer that that the amendment would hurt Cummins' ability to attract the best employees.

"Anything that makes Indiana a less inclusive and less welcoming place for our current and future employees is bad for our business -- and bad for the state," Solso wrote.

The diesel-engine maker was one of the first major employers in the state to offer domestic-partner benefits. Solso told Bauer the amendment's vague language could affect his company's ability to continue to offer the benefits.

Mark Land, a spokesman for Cummins, said a human resources representative will testify against the proposed amendment before the House Rules and Legislative Procedures Committee this morning.

A press release from Indiana Equality states that among those testifying against SJR 7 today will be: Ms. Kerry Hyatt Blomquist, legal counsel, Indiana Coalition Against Domestic Violence; Dr. Keith Bowman, professor of materials engineering, Purdue University; Prof. Aviva Anne Orenstein, family law professor, Indiana University School of Law; Rev. Larry Kleiman, pastor, St. Peter's United Church of Christ, Carmel; Dr. Richard Schneirov, president, The Indiana Chapter of the American Association of University Professors.

See a list of earlier ILB entries on SJR 7 here. See particularly this one from March 16th and this one from March 19th.

Posted by Marcia Oddi on Wednesday, March 21, 2007
Posted to Indiana Law

Law - Cybersquatting, does intent matter?

Last week the ILB had an entry including this quote from a Louisville Courier Journal story:

Jeffersonville's Board of Ethics made plans last night to investigate whether the campaign of Mayor Rob Waiz violated the city's ethics ordinance when it bought several Internet addresses likely to be used by the campaign of former Mayor Tom Galligan.
Today the Indianapolis Star Sports Section has an AP story (not available from the Star site, but also carried at this Minnesota link) that reports:
DES MOINES, Iowa (AP) — If you can’t beat ’em, buy ’em.

The University of Iowa has come up with a proactive method for fighting Web sites built to criticize its coaches by buying domain names.

Web sites ripping college coaches have popped up in increasing numbers in recent years. But the ongoing battle between Internet sites and athletic departments took a new twist last summer when University of Iowa officials purchased seven domain names, including firekirkferentz.com, in order to keep them off the market.

The Minnesota paper credits a blog, Deadspin.com, which had this entry Monday:
So here's a clever idea: To make sure that no enterprising and surly fan starts a campaign to take down the head coach at your program, the University of Iowa has bought the rights to FireKirkFerentz.com.

The Iowa football coach has struggled in recent years, and, as FireRonZook.com fans can attest, these sites can really gain traction when matters are streaming downhill. The Hawkeyes are taking no chances; they have also bought the rights to FireLisaBluder.com and FireGaryBarta.com; that's the women's basketball coach and the athletic director, respectively. If you go to either site, it will send you to HawkeyeSports.com.

They're a little too late in one regard, though; Fire Steve Alford is fully operational. Gotta be quicker next time, guys.

Posted by Marcia Oddi on Wednesday, March 21, 2007
Posted to General Law Related

Tuesday, March 20, 2007

Ind. Courts - State Court Administration seeks Employment Law Staff Attorney

The Indiana Supreme Court, Division of State Court Administration, is seeking applicants for an attorney position with an emphasis on public sector employment law. This attorney will provide employment law advice and other related services to Indiana trial court judges. Find more information here.

Posted by Marcia Oddi on Tuesday, March 20, 2007
Posted to Indiana Courts

Ind. Decisions - Interesting (make that entertaining) 7th Circuit opinion out of ND Illinois [Updated]

The case is JCW INVESTMENTS, INC., d/b/a Tekky Toys, Plaintiff-Appellee v. NOVELTY, INC.. Judge Diane P. Wood writes:

Meet Pull My Finger® Fred. He is a white, middle-aged, overweight man with black hair and a receding hairline, sitting in an armchair wearing a white tank top and blue pants. Fred is a plush doll and when one squeezes Fred’s extended finger on his right hand, he farts. He also makes somewhat crude, somewhat funny statements about the bodily noises he emits, such as “Did somebody step on a duck?” or “Silent but deadly.”

Fartman could be Fred’s twin. Fartman, also a plush doll, is a white, middle-aged, overweight man with black hair and a receding hairline, sitting in an armchair wearing a white tank top and blue pants. Fartman (as his name suggests) also farts when one squeezes his extended finger; he too cracks jokes about the bodily function. Two of Fartman’s seven jokes are the same as two of the 10 spoken by Fred. Needless to say, Tekky Toys, which manufactures Fred, was not happy when Novelty, Inc., began producing Fartman, nor about Novelty’s production of a farting Santa doll sold under the name Pull-My- Finger Santa.

Tekky sued for copyright infringement, trademark infringement, and unfair competition and eventually won on all claims. The district court awarded $116,000 based on lost profits resulting from the copyright infringement, $125,000 in lost profits attributable to trademark infringement, and $50,000 in punitive damages based on state unfair competition law. The district court then awarded Tekky $575,099.82 in attorneys’ fees. On appeal, Novelty offers a number of arguments for why it should not be held liable for copyright infringement, argues that Illinois’s punitive damages remedy for unfair competition is preempted by federal law, and contends that the attorneys’ fees awarded by the district court should have been capped according to Tekky’s contingent-fee arrangement with its attorneys. For the reasons set forth below, we affirm.

I. Somewhat to our surprise, it turns out that there is a niche market for farting dolls, and it is quite lucrative. Tekky Toys, an Illinois corporation, designs and sells a whole line of them. * * *

Novelty wants us to take the entity that is Fred, subtract each element that it contends is common, and then consider whether Novelty copied whatever leftover components are creative. But this ignores the fact that the details—such as the appearance of Fred’s face or even his chair—represent creative expression. It is not the idea of a farting, crude man that is protected, but this particular embodiment of that concept. Novelty could have created another plush doll of a middle-aged farting man that would seem nothing like Fred. He could, for example, have a blond mullet and wear flannel, have a nose that is drawn on rather than protruding substantially from the rest of the head, be standing rather than ensconced in an armchair, and be wearing shorts rather than blue pants. To see how easy this would be, one need look no further than Tekky’s Frankie doll, which is also a plush doll, but differs in numerous details: he is not sitting, and he has blond hair, a tattoo, and a red-and-white striped tank. Frankie is not a copy of Fred. Fartman is. We have no trouble concluding that the district court properly granted partial summary judgment to Tekky on the issue of liability for copyright infringement.

[More] A reader writes:
As an adult male that still harbors an inner Beavis and Butthead, this was kind of fun. And perhaps Judge Wood even has a bit of the Beavis.

Here is a link to the actual doll: http://www.baronbob.com/pullmyfingerfred.htm

Really, I hesitate to link to this site, but ....

[Still More] Attorney David M. Hooper writes: "Why couldn’t THIS case have been assigned to Posner? Now THAT would have been a read!"

True, but I think the decision benefited from a woman's sensibilities. Judge Wood was, after all, surprised to learn that there is a niche market for farting dolls.

Posted by Marcia Oddi on Tuesday, March 20, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 10 NFP)

For publication opinions today (4):

Richard Andrew Gordon v. Purdue University - "Richard Andrew Gordon appeals the trial court’s dismissal of his first amended complaint against Purdue University (“Purdue”) and the trial court’s denial of his request to file a second amended complaint. * * *

Here, Purdue had already filed a motion for judgment on the pleadings, a motion for summary judgment, a motion to clarify/reconsider, and a motion to dismiss Gordon’s first amended complaint. Despite an opportunity to amend his complaint to include a claim of bad faith, Gordon’s first amended complaint failed to make the proper allegations. Moreover, despite Gordon’s attempts to revise the first amended complaint’s allegations, the proposed second amended complaint also did not contain allegations of “the conscious doing of a wrong because of dishonest purpose or moral obliquity” or “a state of mind affirmatively operating with furtive design or ill will.” Turner, 743 N.E.2d at 1171. Rather, the second amended complaint again raised issues that had been previously resolved in the summary judgment orders. Under these circumstances, we cannot say that the trial court abused its discretion by denying Gordon’s request to file a second amended complaint. See, e.g., Kelley v. Vigo County Sch. Corp., 806 N.E.2d 824, 831 (Ind. Ct. App. 2004) (holding that the trial court did not abuse its discretion by denying the plaintiff’s motion to file a third amended complaint where the amendment would have been futile), reh’g denied, trans. denied.

For the foregoing reasons, we affirm the trial court’s dismissal of Gordon’s first amended complaint and denial of Gordon’s request to file a second amended complaint."

Djuan Edwards v. State of Indiana - "Based on the foregoing, we find the trial court did not abuse its discretion by admitting hearsay evidence related to two prior shootings and evidence relating to jail house phone calls, and the trial court properly denied Edwards’ Motion for Directed Verdict."

Chad McQueen v. State of Indiana - "Chad McQueen appeals the trial court’s revocation of his direct commitment to a community corrections program and order to serve the remainder of his six-year sentence in the Indiana Department of Correction (“DOC”). Because McQueen admitted that he took OxyContin and as a result tested positive for oxycodone in violation of the Henry County Work Release Center rules, McQueen cannot establish fundamental error in the trial court’s admission of testimony regarding the results of the toxicology report. Next, because McQueen had violated several of the Work Release Center rules and had been given numerous chances, the trial court did not err in revoking his direct commitment and ordering him to serve the remainder of his sentence in the DOC. Finally, violation of a condition of community corrections does not constitute an offense within the purview of double jeopardy analysis; therefore, there is no double jeopardy violation here. We therefore affirm the trial court."

Insurance Co. of North America v. Home Loan Corporation d/b/a Expanded Mortgage Credit - "Insurance Company of North America (“INA”) appeals the denial of two motions for summary judgment against Home Loan Corporation d/b/a Expanded Mortgage Credit (“Home Loan”). We reverse and remand. Issue. The dispositive issue is whether the trial court abused its discretion in denying INA’s motion for summary judgment on the issue of collateral estoppel."

NFP civil opinions today (4):

Ted Itin v. Ferrantella Construction (NFP) - "Ted Itin appeals a decision of the Worker’s Compensation Board of Indiana (the Review Board) to deny Itin’s Application for Adjustment of Claim in which he requested that his former employer, Ferrantella Construction (the Employer), provide additional medical treatment and physical therapy for injuries allegedly received while working for the Employer. Itin presents the following restated issue for review: Did the single hearing member err in permitting the Employer to introduce into evidence a surveillance videodisk? We affirm. * * *

The Employer counters that the videodisk was properly admitted, but that in any event, the Review Board expressly deleted the findings related to the disk and therefore this does not constitute a reversible issue. We agree with the Employer as to the latter assertion. * * *

Entirely independent of the activities depicted on the videodisk, the foregoing evidence supports the Review Board’s decision. Judgment affirmed."

Mark A. Urick and Heather Urick v. George Huizinga and Blinds, Inc., d.b.a. Window Fashion Designs (NFP) - "Mark A. Urick filed a complaint against George H. Huizinga, Jr. and Blinds, Inc., d/b/a Window Fashion Design (collectively, Huizinga), alleging breach of contract. Huizinga filed a counterclaim against Mark and a third-party complaint against Mark’s wife, Heather P. Urick (also referred to as Heather Pons)(collectively, the Uricks), alleging actual and constructive fraud, breach of fiduciary relationship, and unjust enrichment. Following a bench trial, the trial court granted judgment in favor of Huizinga on both Mark’s complaint and Huizinga’s counterclaim and third-party complaint. The Uricks appeal and raise the following restated issues: 1. Was there sufficient evidence to support the finding of actual fraud? 2. Was the trial court’s damages award erroneous? We affirm."

Genese J. Elliot v. St. Joseph Co. Office of Family and Children (NFP) - "Appellant Genese Elliot (“Mother”), appeals the termination of her parent-child relationship with A.D., contending that there is insufficient evidence to support the termination. We affirm."

Judymae K. Adams v. Louie D. Adams (NFP) - dissolution of marriage.

NFP criminal opinions today (6):

James Bullitt v. State of Indiana (NFP)

Max R. Mollette v. State of Indiana (NFP)

Steven W. Kamp v. State of Indiana (NFP)

Alejandro Torres v. State of Indiana (NFP)

Ramayel Cain v. State of Indiana (NFP)

Elzier Stewart v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 20, 2007
Posted to Ind. App.Ct. Decisions

Law - Law reviews irrelevant to judges; is there any question why?

Adam Liptak of the NY Times had a column Monday titled "When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant." (Apparently availble only to TimesSelect customers, but try here). Judges from the 2nd Circuit met with law professors at a conference on the topic earlier this month where judges told the profs that "their scholarship no longer had any impact on the courts.."

Some [of the profs] suggested, gently, that judges might not have the intellectual curiosity to appreciate modern legal scholarship.

Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions — which is to say the practice of law — is beneath them. * * *

The assembled judges pleaded with the law professors to write about actual cases and doctrines, in quick, plain and accessible articles.

“If the academy does want to change the world,” Judge Reena Raggi said, “it does need to be part of the world.”

To an extent, her plea has been answered by the Internet. On blogs like the Volokh Conspiracy and Balkinization, law professors analyze legal developments with skill and flair almost immediately after they happen. Law professors also seem to be litigating more, representing clients and putting their views before courts in supporting briefs.

Law reviews, by contrast, feel as ancient as telegrams, but slower.

Posted by Marcia Oddi on Tuesday, March 20, 2007
Posted to General Law Related

Monday, March 19, 2007

Ind. Courts - Judicial Technology and Automation Committee Now Hiring

The Indiana Supreme Court, Division of State Court Administration, Judicial Technology and Automation Committee is advertising five openings, for both attorney and technical types.

Posted by Marcia Oddi on Monday, March 19, 2007
Posted to Indiana Courts

Ind. Law - More on: "House to consider gay marriage amendment"

Today's story by Bill Ruthhart in the Indianapolis Star, headlined "A battle for benefits: Gay couples worry amendment to ban same-sex marriage could cut out domestic-partner coverage," includes this quote:

At Wednesday's hearing, Indiana Equality, a gay-rights group that has led the charge against the amendment, is expected to point to a recent Michigan appeals court ruling. That decision found Michigan's public employers could not offer domestic-partner benefits because of the state's constitutional amendment banning same-sex marriages.

Hershman said that the language in the Michigan amendment is "unique and much more aggressive" than Indiana's, and that a similar court decision could not happen here.

A side-bar compares the language of the two amendments:
Here is the constitutional amendment banning same-sex marriage adopted by Michigan and the one proposed for Indiana.

• Michigan: "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."

• Indiana: "Marriage in Indiana consists only of the union of one man and one woman.

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."

What about another adjoining state where a similar constitutional amendment has caused controversy? Here is the language of the pertinent Ohio constitutional provision:
Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions.

This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

This article titled "Gay marriage ripe for decision in 3 courts," from Stateline.org, updated March 1, 2007, includes this information:
The same-sex marriage controversy also is breeding a host of legal issues beyond the question of whether gays should be granted marriage licenses.

Cases in Michigan and Ohio question whether those states’ constitutional same-sex marriage bans might have unintended consequences. In February 2007, a Michigan appeals court held that the state’s ban prohibited public universities, state agencies and local governments from offering health insurance to partners of gay and lesbian employees. In Ohio, two lower courts cited the state’s gay marriage ban in denying protection under domestic violence laws to unmarried couples.

Michigan and Ohio are among 17 states whose constitutional gay-marriage bans are written broadly and go beyond defining marriage as a union between a man and a woman to potentially prohibiting other spousal rights.
There has been quite a bit of litigation in Ohio on the meaning of the second sentence of its recent constitutional amendment. Oral arguments have been held before the Ohio Supreme Court in one case, State of Ohio v. Michael Carswell, relating to a lower court ruling holding the domestic violence law constitutional despite the new constitutional provision. Here is the docket for the case. There is apparently a split in Ohio among the appellate courts - this decision, State v. Shaffer, from the 3rd Circuit held that the domestic violence statute violates the Ohio Constitution, because of the recent "defense of marriage" constitutional amendment. [Thanks to the Cleveland Law Library Weblog]

From an NPR Report from Dec. 27, 2005: " An Ohio lawmaker is suing Miami University, charging that its policy of offering benefits to employees' same-sex domestic partners violates an amendment to the state Constitution banning civil unions. Ohio is among a growing number of states where public colleges offering such benefits face legal challenges."

According to another Cleveland Law Library entry, dated Nov. 21, 2006 (nearly a year later), however:

The judge granted summary judgment to Miami University and other defendants in the lawsuit filed by Ohio Rep. Tom Brinkman. The lawsuit claimed that the University's benefits to same sex partners violated the "gay marriage" amendment to the Ohio Constitution, Article 15, Section 11. The Butler County Common Pleas Court found that the plaintiff did not demonstrate taxpayer standing. Although his complaint asserted he paid tuition to the University, he did not argue this as a basis for standing in his response to defendants' motion for summary judgment.
What does all this mean? What it means to me is: The fact that people disagree about what the proposed language means should be more than enough to keep that language out of the Constitution, for heavens sake!

For more, see these two ILB entries from April 4, 2005 and March 24, 2005. And here from Feb. 2, 2007 is ILB discussion of the Michigan Court of Appeals ruling that "Public universities and state and local governments would violate the state constitution by providing health insurance to the partners of gay employees."

Posted by Marcia Oddi on Monday, March 19, 2007
Posted to Indiana Law

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

For publication opinions today (3):

State of Indiana v. Robert M. Foy - "Pursuant to App. R. 14(B)(1)(a), a party generally must bring a motion requesting certification of an interlocutory order within thirty days of the date of the interlocutory order unless, for good cause, the trial court permits a belated motion. In the event the trial court grants a belated motion and certifies the appeal, it “shall make a finding that the certification is based on a showing of good cause, and shall set forth the basis for that finding.” App. R. 14(B)(1)(a). We have not previously defined “good cause” within the meaning of App. R. 14(B). * * * [Here] we cannot say the trial court abused its discretion when it found good cause to permit the State’s belated motion and certified the interlocutory appeal."

"Foy contends the trial court erred when it found the search warrant was supported by probable cause. * * * McCord’s probable cause affidavit is based largely on information provided to him by the 911 dispatcher, other officers, and emergency and ambulance personnel. The substantial majority of the information contained in McCord’s affidavit, therefore, may be fairly characterized as hearsay. * * * [T]he hearsay information in this case came from law enforcement officers, emergency and medical professionals, and someone in the alleged victim’s home who called 911 seeking medical help rather than to report criminal activity. The information provided a sufficient basis of fact to permit a reasonably prudent person to believe a search of the Foys’ residence would uncover evidence of a crime. Esquerdo v. State, 640 N.E.2d 1023 (Ind. 1994). Based upon the totality of the evidence, there was a substantial basis for concluding that probable cause existed."

"The State contends the trial court erred in granting Foy’s motion to suppress because, it asserts, the search warrant was sufficiently particular. [The warrant authorized a search for trace evidence. The Court notes that there are authorities that refute defendant's assertion that the phrase “trace evidence” imposes no “limitation as to the type of evidence referred to and provides links to the FBI trace evidence unit and the state police crime lab. After referencing other states and federal decisions, the court concludes] The trial court, therefore, erred by granting Foy’s motion to suppress the evidence seized pursuant to the search warrant."

Bruce Antonio Howard v. State of Indiana - "Perhaps creating the most significant concern regarding the legality of this search was the point that Officer Vantlin testified that he had previously told Howard he was going to search him every time he saw him. These circumstances did not warrant a pat-down search incident to a Terry stop. We conclude that the seizure of Howard’s person and thereby his possessions was illegal. See Sanchez v. State, 803 N.E.2d 215, 221 (Ind. Ct. App. 2004), trans. denied (citing Wong Sun v. United States, 371 U.S 471, 485 (1963) (the exclusionary rule, also known as the ‘fruit of the poisonous tree’ doctrine, bars from trial physical, tangible materials obtained during or as a direct result of an unlawful invasion)). As such, the trial court should have suppressed the evidence. Reversed."

Timothy Golden v. State of Indiana - "Appellant-defendant Timothy Golden appeals the aggregate twenty-year sentence that was imposed following his guilty plea to Sexual Misconduct with a Minor,1 a class B felony, and to being a Repeat Sex Offender.2 Specifically, Golden claims that the sentence was inappropriate because the trial court erroneously rejected a proffered mitigating factor and incorrectly found the existence of aggravating circumstances. Thus, Golden maintains that the trial court improperly balanced the relevant mitigating and aggravating circumstances when deciding what sentence to impose. Moreover, Golden contends that the sentence was inappropriate in light of the nature of the offense and his character. Finding no error, we affirm the judgment of the trial court."

NFP civil opinions today (1):

In the Matter of the Involuntary Termination of Parent-Child Relationships of T.W., J.W., and K.W.; Monique Wilson v. Marion County Department of Child Services and Child Advocates, Inc. (NFP) - "Appellant-respondent Monique Wilson appeals from the juvenile court’s order terminating her parental rights with respect to her minor children, T.W., J.W., and K.W. Specifically, Wilson argues that there is insufficient evidence supporting the juvenile court’s determination to terminate her parental rights. Finding no error, we affirm the judgment of the juvenile court."

NFP criminal opinions today (3):

Felicia D. Gordon v. State of Indiana (NFP)

Darrell W. Mitchell v. State of Indiana (NFP)

Paul Lewis v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 19, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Another federal judge sought again"

The US Judicial Conference announcements last week (see this March 14th ILB entry) included a recommendation for another judge in the SD Indiana, as John Lucas reports today in the Evansville Courier & Press. Some quotes:

In what has become something of a recurring exercise in recent years, the U.S. Senate is being asked to authorize an additional federal judge for the Southern District of Indiana.

The district, which comprises the lower two-thirds of the state including Indianapolis, now has five judges. They serve courthouses in the state capital, Evansville, Terre Haute and New Albany.

Jurists say another judge is needed because those five carry among the highest caseloads in the nation - the third highest when cases are weighted for complexity.

They have sought the appointment of an additional judge for the district since the mid-1990s. The last time a new federal judge was assigned to Indiana was in 1978, when the Evansville office was staffed. Judge Richard Young, who currently fills the Evansville position, splits his time among courtrooms here, Terre Haute and Indianapolis.

Data compiled by the district's chief judge, Larry McKinney, show that in 2005 the district had 603 filings per judge compared with a national average of 476. Federal judges in the Southern District of Indiana also average conducting 29 trials a year, compared to an average of 18 for their counterparts in the nation's 93 other districts.

Even if another judgeship was approved, McKinney said, the judges' weighted caseloads would still be well above the national average. * * *

They attributed the Southern Indiana district's high caseload in part to product liability litigation involving the major pharmaceutical and medical device companies with headquarters in the district. Judges here managed the multidistrict litigation involving Prozac manufactured by the Eli Lilly Co. of Indianapolis, McKinney noted.

The district also includes the Federal Bureau of Prisons "Death Row" at Terre Haute, where 37 inmates sentenced to be executed are housed. The district's judges handle litigation and appeals arising from those death penalty cases.

"Death penalty cases require significant amounts of judicial time and effort, and the impact of these cases is straining already taxed resources," the chief judge said in a survey of judgeship needs.

Posted by Marcia Oddi on Monday, March 19, 2007
Posted to Indiana Courts

Ind. Courts - Reports on bills of interest to the Judiciary discussed last week [Updated]

The Indiana Judicial Center has had trouble with its blog and so has temporarily posted its reports on bills of interest to the Judiciary in play last week in the General Assembly at a different location.

Access them here.

[Updated] The blog is now back in its old location and format.

Posted by Marcia Oddi on Monday, March 19, 2007
Posted to Indiana Courts

Law - Adult adoption put to test in case where IBM founder's granddaughter adopted her lesbian companion, then couple split

"Partner Adopted by an Heiress Stakes Her Claim" is the headline to this story today on the front page of the NY Times. Some quotes:

[D]escendants of Thomas J. Watson Sr., the founder of I.B.M., [own] more than 300 acres worth nearly $20 million on the northern tip of this sea-splashed idyll 90 miles northeast of Portland. * * *

Recently, though, the Watson name has surfaced in a different context, a most unusual lawsuit. It concerns Olive F. Watson, 59, granddaughter of the I.B.M. founder and daughter of Thomas J. Watson Jr., the company’s longtime chief executive; and Patricia Ann Spado, 59, her former lesbian partner of 14 years.

In 1991, Ms. Watson, then 43, adopted Ms. Spado, then 44, under a Maine law that allows one adult to adopt another. The reason, Ms. Spado has contended in court documents, was to allow Ms. Spado to qualify as an heir to Ms. Watson’s estate.

But less than a year after the adoption, Ms. Watson and Ms. Spado broke up. Then in 2004, Ms. Watson’s mother died, leaving multimillion-dollar trusts established by her husband to be divided among their 18 grandchildren.

Re-enter Ms. Spado with a claim: Because she was adopted by Olive F. Watson, she said, she is technically Thomas J. Watson Jr.’s 19th grandchild and is therefore eligible for a share of the trusts.

The story continues with descriptions of the legal efforts on both sides, and then broadens into a look at the use of adult adoption nationally:
Many states allow adult adoption, but the laws were primarily intended for situations like a stepparent adopting a stepchild later in life, said D. Marianne Blair, an adoption expert at the University of Tulsa College of Law.

However, some same-sex couples began using the adoption process to establish financial security or inheritance for their partners, said Arthur S. Leonard, a professor at New York Law School.

“Before we had domestic partnership ordinances, before same-sex marriage or civil unions, back then there wasn’t much you could do,” Professor Leonard said.

Then as now, the adoption laws varied by state, and it is not known how many of these arrangements have been made.

In New York, some people sought adoption as a way to inherit a rent-controlled apartment from a same-sex partner, Professor Leonard said, but a 1984 court ruling said that same-sex couples could not use adoption to create legal family ties.

A state court in Delaware later allowed same-sex partner adoptions there, Professor Leonard said.

An AP story by Karen Hawkins dated March 12th and headlined "Adult adoption isn't just about flashy court cases," reports:
[T]he issue has gotten national attention of late, thanks to the ongoing paternity battle over the late Anna Nicole Smith's daughter and a multimillion-dollar dispute involving a former lesbian couple working its way through courts in Maine.

One of the men who claims to be the father of Smith's infant daughter, the 59-year-old husband of actress Zsa Zsa Gabor, is a prince who purportedly gained his title not by blood but by being adopted - as an adult - by a German princess.

And in Maine, the family of an IBM founder is fighting to keep his lesbian daughter's former partner, whom she'd adopted, from collecting millions in inheritance.

But most adult adoption scenarios are far more mundane, legal experts say, typically undertaken by two non-biologically related people looking to formalize an existing parent-child relationship * * *

Stepparents might be forced to wait until a stepchild is older than 18 to adopt because the noncustodial biological parent doesn't approve.

What is the law in Indiana? IC 31-19-2, re filing the petition for adoption, provides at section 1 that "An individual who is at least eighteen (18) years of age may be adopted by a resident of Indiana," but "If the court in which a petition for adoption is filed under this section considers it necessary, the court may order: (1) the type of investigation that is conducted in an adoption of a child who is less than eighteen (18) years of age; or (2) any other inquiry that the court considers advisable; before granting the petition for adoption."

Posted by Marcia Oddi on Monday, March 19, 2007
Posted to General Law Related

Law - More on "What to make of those astronomical Supreme Court signing bonuses?"

All of you whose jaws dropped when you read about the "astronomical Supreme Court signing bonuses" last week will also be interested in these two items.

First, a great, up-to-date table of not only 2007 New York City Elite Law Firm Salaries, but also those of other markets, including Chicago.

Second, this article, "Where Will In-House Counsel Draw the Line on Associate Costs?" - available via Law.com. Some quotes:

Who's paying for this? Do you think that when the decision is made to up first-year salaries that the partnership votes to take less money to pay for it? Or do you think that the associates will be expected to "earn their keep"? (The latter is a nicer way of saying that clients will be billed for the overworked first-year associates' time and efforts.) * * *

Companies can hire an incredibly smart and experienced associate or partner in the next town over from New York or Washington, D.C., or Los Angeles or Chicago who bills $250 an hour, and who can do the same work in half the time of that $200 associate or his $800 partner. And the Internet makes lawyers from around the world as accessible as those next door. Don't forget about the non-law firm consultants, who can do most of the work of associates in any number of disciplines -- document review or discovery work, contracts, research and analysis, investigations -- at a fraction of the cost. Why do we continue to give big firms this kind of work at their inflated rates when it's clear that their pricing is in no way related to the value the associates provide? These rate hikes are about attracting top grads, not about increased or better client service.

So where will in-house counsel draw the line on new associate costs? Why don't corporate clients simply say: We're not paying for this anymore? In-house legal executives need to stand up and exercise their considerable influence. Demand to know -- in detail -- why prestigious firms believe their inexperienced associates provide more value than a successful partner in a less expensive firm or an expert legal service vendor/consultant. Tell them that you're happy to pay high rates for high quality and experience, but you'll be the judge of the value provided. And if they answer that they had no choice but to follow the market in order to attract the same 50 graduates from the same 25 top-ten schools, then label them the sheep that they are, and vote with your feet.

Great legal service is expensive, but someone needs to remind the managing partners of the prestigious firms that it should never cost more than it's worth. Associates who receive these pay hikes (but from whose hides these costs will be recouped) and your clients all deserve better.

The article is authored by Susan Hackett, the general counsel of the Association of Corporate Counsel.

Posted by Marcia Oddi on Monday, March 19, 2007
Posted to General Law Related

Sunday, March 18, 2007

Law - More on: Does Avowal of Fatherhood Impose an 'Equitable Paternity'

Last month the ILB had an entry on this issue, noting that there had cases in New York and Illinois where a "father" who has been paying child support later learns he is not the biological father, and now Kentucky was looking at the issue.

Today Andrew Wolfson of the Louisville Courier Journal has a long story on how the issue is being addressed in Kentucky. Some quotes:

For 11 years, Gary Denzik paid child support for the girl he loved and thought was his daughter. Then his ex-wife sent him a DNA test showing he wasn't the father after all.

"It killed me," said Denzik of Bowling Green. "It was like hearing your child had died in a car accident."

Denzik got a court order stopping his payments and sued his ex-wife for fraud. A jury later found she knew all along he wasn't the father -- that he was a so-called duped dad -- and awarded him $54,770 in damages, the amount he paid in child support the past five years.

The Kentucky Supreme Court narrowly upheld that verdict last June but left unanswered vexing questions about what makes a father a father: Is it the man who contributed only the sperm? Or the one who changed a child's diapers, taught her how to ride a bike and took her to soccer practice?

Courts around the country are struggling with those questions, including in two emotional cases from Jefferson County.

In one, Ren Hinshaw, 58, is fighting to retain joint custody of a child he helped raised and loves as his own, even after finding out the boy is not his biological child. "He is my son, and I am his dad," Hinshaw said in an e-mail to the newspaper.

The child's mother says Hinshaw should have no right to custody.

In another case, a biological father, James G. Rhoades Jr., 36, of Tallahassee, Fla, is battling to play a part in the life of a baby he fathered with a married woman from Louisville. The woman and her husband want to keep him out of the infant's life to preserve the sanctity of their family.

"I know this involves a family," Rhoades said, "but he is my family too."

More from the story:
"DNA has changed everything," said Denzik's lawyer, Kelly Thompson, who has since been elected to the state Court of Appeals.

At least seven states -- but not Kentucky -- have enacted laws allowing men to challenge paternity whenever deception is discovered, no matter the child's age, so that they no longer have to pay child support.

A second story by Wolfson today is headlined "Some states handle paternity with Uniform Parentage Act." Some quotes:
What is a father? Kentucky law on that question is a quagmire.

"The bottom line on the law … is that we just don't know," says Diana Skaggs, president of the Kentucky chapter of the American Academy of Matrimonial Attorneys.

But she and other family lawyers say there is a way out of the swamp: the Uniform Parentage Act.

A model law adopted in seven states, the act allows outsiders to a marriage to challenge paternity within two years of the birth of the child.

That gives so-called duped dads and other parents a reasonable time to resolve the status of a child without waiting so long that the consequences to the child could be traumatic. * * *

Indiana law allows a man to challenge paternity any time if he can show fraud, duress or "mistake of material fact," according to William Wilson, a South Bend lawyer who is the author of an Indiana family law blog. The father also can come forward if medical evidence proves the child can't be his.

The model act, drawn up by more than 300 lawyers, judges and law professors across the country, also includes other sections, including one that defines the rights of mothers who give birth through surrogates and in vitro fertilization.

It also provides for a registry for notifying fathers of children born out of wedlock who aren't actively involved in raising the child if there is a proceeding for termination of parental rights or adoption. (In Kentucky, a proposed putative father registry died in this year's session.) Drafted in 1973 and amended most recently in 2002, the act abolishes all legal distinctions between legitimate and illegitimate children and recommends procedures for establishing paternity.

The Uniform Parentage Act is endorsed by the American Bar Association, the National Child Support Enforcement Association, the American Academy of Matrimonial Lawyers and the National Association of Public Health Registrars.

The "Diana Skaggs" quoted in the story above is Diana Skaggs of the Divorce Law Journal, a Kentucky blog the ILB references frequently. See her posts today here and here.

As for the Indiana law, Indiana statutes re paternity are found at IC 31-14. However, IC 16-37-2, Certification of Births, contains a provision last amended in 2006, IC 16-37-2-2.1, concerning paternity affidavits, that provides in part:

(h) Notwithstanding any other law, a man who is a party to a paternity affidavit executed under this section may, within sixty (60) days of the date that a paternity affidavit is executed under this section, file an action in a court with jurisdiction over paternity to request an order for a genetic test.
(i) A paternity affidavit that is properly executed under this section may not be rescinded more than sixty (60) days after the paternity affidavit is executed unless a court:

(1) has determined that fraud, duress, or material mistake of fact existed in the execution of the paternity affidavit; and
(2) at the request of a man described in subsection (h), has ordered a genetic test, and the test indicates that the man is excluded as the father of the child.

(j) Unless good cause is shown, a court shall not suspend the legal responsibilities under subsection (g)(2)(A) of a party to the executed paternity affidavit during a challenge to the affidavit.
(k) The court may not set aside the paternity affidavit unless a genetic test ordered under subsection (h) or (i) excludes the person who executed the paternity affidavit as the child's biological father.
(l) If a paternity affidavit is not executed under subsection (b), the hospital where the birth occurs or a person in attendance at the birth shall inform the child's mother of services available for establishing paternity.
(m) Except as provided in this section, if a man has executed a paternity affidavit in accordance with this section, the executed paternity affidavit conclusively establishes the man as the legal father of a child without any further proceedings by a court.
IC 31-14-6-1.1 allows for geneic testing in paternity actions. IC 31-14-5-3 provides that generally "The mother, a man alleging to be the child's father, or the department or its agents must file a paternity action not later than two (2) years after the child is born".

A March 8, 2007 Indiana Court of Appeals decision involved a combined case of four separate putative fathers' requests for genetic testing to disestablish paternity under Indiana Code section 31-14-6-1.1. The opinion, In Re the Paternity of E.M.L.G., R.L.J., J.A.J. and N.A.H. , is summarized in this ILB entry. From the opinion:

All four of the fathers admittedly signed a paternity affidavit pursuant to this statute and did not rescind or set aside the affidavit within the sixty-day time frame provided for under Indiana Code section 16-37-2-2.1. Therefore, under the plain, unambiguous language of the statute, paternity was already established. * * *

Additionally, as we have previously noted, “[t]he Indiana Code has no provision for the filing of an action to disestablish paternity.” In re Paternity of H.J.B., 829 N.E.2d 157, 159 (Ind. Ct. App. 2005). Rather, the Indiana statutes governing paternity actions, found in Article 14 of Title 31 of the Indiana Code provide a means to establish paternity, not to disestablish it. Our General Assembly has clearly and unequivocally prescribed that it “favors the public policy of establishing paternity under [Article 14] of a child born out of wedlock.” Ind. Code § 31-14-1-1 (1998). Given this explicit language, when we look at Article 14 of Title 31 in its entirety, we conclude that the trial court improperly determined that Indiana Code section 31-14-6-1 provides a method by which legal fathers may disestablish paternity outside of the sixty-day time limitation, absent a claim of fraud, duress or material mistake of fact. Moreover, under these statutes, a trial court does not have the authority to treat child support proceedings as proceedings to disestablish paternity.

The soundness of the public policy underlying our decision today is illustrated by the facts of these four cases. If genetic testing were to disestablish paternity, then each child would be considered a “filius nullius,” which in Latin means a “son of nobody. [ILB - emphasis added]

None of the putative fathers here had alleged fraud, duress, or material mistake of fact. The Court cited a number of cases, but none under current statute law where the putative fathers had in fact successfully alleged fraud, duress, or material mistake of fact

Posted by Marcia Oddi on Sunday, March 18, 2007
Posted to General Law Related

Law - "Prosecutors brush off D.C. sway"

Andy Grimm writes today in the Gary Post-Tribune that begins:

If allegations by ousted prosecutors and Democratic congressional leaders are true, and White House officials fired U.S. attorneys for not pursuing corruption cases against Democratic politicians, Joseph Van Bokkelen is a popular man in Washington.

Conventional wisdom in local political circles is that public corruption largely remains constant from year to year, but that indictments for public corruption vary depending on whether the top federal prosecutor in the Northern District was appointed by a Republican or a Democrat. * * *

Van Bokkelen's wide-ranging corruption probe, Operation Restore Public Integrity, has nabbed more than 50 public officials since he was appointed by Bush in 2001, according to Justice Department statistics. Nearly all were against officials in Democratic strongholds in Lake County, where Republican officeholders are few and far between.

For background, see this ILB entry from Jan. 10, 2007 re Van Bokkelen's nomination to a federal judgeship by President Bush.

Posted by Marcia Oddi on Sunday, March 18, 2007
Posted to General Law Related

Ind. Law - Barnes & Thornburg partner Bill Moreau featured

Continuing its now weekly "My Big Break" series, the Indianapolis Star today features Barnes & Thornburg partner William Moreau. Moreau is the third B&T attorney featured in the series. See a list of all recent "Big Break" stories here.

Today's feature begins:

On Tuesday, Nov. 4, 1980, Ronald Reagan unknowingly gave me my first big break in the practice of law -- he won the presidency and swept out nine incumbent U.S. Senate Democrats, including my boss, mentor and hero, Birch Bayh.

On Tuesday, Nov. 4, 1980, Ronald Reagan unknowingly gave me my first big break in the practice of law -- he won the presidency and swept out nine incumbent U.S. Senate Democrats, including my boss, mentor and hero, Birch Bayh.

Posted by Marcia Oddi on Sunday, March 18, 2007
Posted to Indiana Law

Ind. Courts - "Bill fails to protect juveniles from self-incrimination"

Bob Kasarda of the NWI Times reports today:

VALPARAISO | Porter Circuit Court Judge Mary Harper said legislation designed to help improve mental health treatment for juvenile offenders has been altered and now jeopardizes the effort.

House Bill 1339 is aimed at protecting juveniles against self incrimination, but wording was added before it cleared the House that puts the youths at risk of legal repercussions for being honest during mental health screenings, she said.

The paragraph in question would allow statements made by the youths during the screening to be used as evidence of their guilt if they relate to a homicide, an intention to commit a crime, or if the child and his legal guardian consent to the disclosure of the statement.

Harper said these exceptions need to be removed if a proposal to screen juveniles entering detention centers for risk of suicide or violence to others is to succeed.

This level of confidentiality is already in place if the screening is done by mental health professionals, she said. Yet hiring a professional is out of the question financially for counties like Porter, which admits more than 1,000 juveniles to the detention center each year and around the clock.

It is Harper's hope to have the targeted text removed from the legislation now that it is before the state Senate.

State Rep. Charlie Brown, who co-authored the bill, said he has no problem with the provision in question and said the wording was approved by juvenile justice officials and public defenders.

Attempts to secure a comment on the bill from juvenile officials with the Indiana Criminal Justice Institute were unsuccessful.

Posted by Marcia Oddi on Sunday, March 18, 2007
Posted to Indiana Courts

Courts - Terre Haute attorney was named chief judge of the Court of Customs and Patent Appeals in 1956 by President Eisenhower

The Terre Haute Tribune-Star has a feature today by Dipa Sarkar titled "Historical Treasure: Judge Noble Johnson was devoted to Terre Haute."

Posted by Marcia Oddi on Sunday, March 18, 2007
Posted to Courts in general

Ind. Law - the Upcoming Week in the Indiana General Assembly

This week the Evansville Courier & Press' Bryan Corbin's does not review of the past week in the General Assembly. Instead, today's report looks ahead at the coming week, and focuses on two issues, roads and same-sex marriage, plus a number of other upcoming hearings of interest, including the cervical cancer vaccine and coal mining legislation. Some quotes:

After last week's public hearing on Senate Bill 1 in Pendleton, Ind., that drew hundreds, the House Roads and Transportation Committee will hold more hearings Tuesday in Martinsville, Ind., and Thursday in Shelbyville, Ind.

The committee's chairwoman, state Rep. Terri Austin, D-Anderson, is convening a separate joint hearing Wednesday on two mass transit-related bills.

"We are not positioning ourselves well as a state in terms of mass transit and infrastructure, and we are behind," Austin said.

On tap is House Bill 1659, which would encourage development of mass transit systems across the state; and also Senate Bill 105, which would study an Indianapolis-to-Muncie mass transit rail system. * * *

After last week's public hearing on Senate Bill 1 in Pendleton, Ind., that drew hundreds, the House Roads and Transportation Committee will hold more hearings Tuesday in Martinsville, Ind., and Thursday in Shelbyville, Ind.

The committee's chairwoman, state Rep. Terri Austin, D-Anderson, is convening a separate joint hearing Wednesday on two mass transit-related bills.

"We are not positioning ourselves well as a state in terms of mass transit and infrastructure, and we are behind," Austin said.

On tap is House Bill 1659, which would encourage development of mass transit systems across the state; and also Senate Bill 105, which would study an Indianapolis-to-Muncie mass transit rail system.

Lesley Stedman Weidenbener of the Louisville Courier Journal has a story titled "Signals on gay-marriage amendment," Some quotes:
A committee hearing Wednesday will signal whether Hoosiers are likely to be voting in 2008 to ban same-sex marriage in the state constitution or whether the long amendment process will just be getting under way again. * * *

in Indiana, two consecutively elected legislatures must approve a proposed amendment before it can go to voters on a general election ballot.

That means lawmakers must approve the proposal either this year or next for it to be on the November ballot in 2008.

Already this year, the Senate has approved the proposed amendment. And the House Rules Committee is scheduled to consider it at 9 a.m. Wednesday in the House chamber.

But Bauer indicated last week that there might need to be changes. At issue is the second part of the proposed amendment.

The first section would put the same-sex marriage ban into the constitution. Although that's controversial among gay-rights groups, it's not terribly troublesome to many lawmakers.

But the second section states that no state law can be construed to provide the benefits of marriage to unmarried couples or groups. Critics say that means state universities might not be able to provide benefits to same-sex couples or the state's domestic-violence laws could no longer treat unmarried couples living together the same as married couples.

Those issues have come up in other states that have passed constitutional amendments banning same-sex marriage, although the language used in those places is different from what is proposed in Indiana.

But Bauer seems concerned and he called on those who may have similar fears -- particularly universities -- to show up at Wednesday's hearing.

He didn't say the amendment would necessarily be changed but it certainly seems possible.

Proponents of the measure say any change means it can't go on the ballot in 2008. Two consecutively elected legislatures must approve the same amendment, they say.

But Bauer says he has talked with attorneys who have a different interpretation. They say that if the first part of the amendment stays the same -- the section banning same-sex marriages -- that part could go on the ballot.

As the committee hearing on SJR 7 is at 9:00 AM Wednesday in the House Chamber, one wonders whether it will be viewable online.

Access the most recent ILB entry reviewing the options on SJR 7 here.

Posted by Marcia Oddi on Sunday, March 18, 2007
Posted to Indiana Law

Saturday, March 17, 2007

Courts - More on "Judicial Conference Urges End to 'Secret' Dockets"

This ILB entry from March 14th about changes to be made in the federal court system briefly mentioned the federal Judicial Conference's pilot project aimed at making audio of court proceedings available online. This story today from Mark Apuzzo of the AP has more on the plan:

The federal judiciary approved a pilot program this week to make free audio recordings of court proceedings available online. Although a court's participation in the program is voluntary, U.S. District Judge Thomas F. Hogan, the executive committee chairman of the policy-making Judicial Conference, said he expects the system ultimately will be widely used.

"I do hope the Judicial Conference efforts will be looked at as an attempt to see if we can make court proceedings more inclusive and transparent to people," Hogan said in an interview.

News organizations and open-government groups applauded the decision, which will allow the files to be played on television and radio and posted on Internet news sites and blogs. * * *

Hogan, the chief judge in the Washington, D.C., federal court, made news in the Libby case by creating a media room with a closed-circuit video feed for the trial. He said the response was positive and he received no complaints about the broadcast of the Libby tapes.

With so many high-profile cases, the Washington courthouse is a good testing ground for the audio program, Hogan said. He said he does not yet know how many judges will sign up here or nationwide.

He said judges will have discretion over when to turn the recorder off, such as during an FBI informant's testimony or when a rape victim takes the stand. Ronald Collins, a scholar at the First Amendment Center, said lawyers will haggle over when that's appropriate.

"Inevitably there's going to be a U.S. attorney who objects on secrecy grounds, a defense counsel who objects on prejudicial grounds or invasion of privacy. There's going to be a victim who objects," Collins said. "Those determinations will be made on a case-by-case basis but the default position is open."

Posted by Marcia Oddi on Saturday, March 17, 2007
Posted to Courts in general

Law - "Blogs can top the presses"

"Column One is a showcase for Los Angeles Times stories that are notably original, surprising, amusing or just plain interesting. It appears every day but Sunday and gets its name from its location in the newspaper — in the far-left column of the front page."

Today's Column One story is written by Terry McDermott and titled "Blogs can top the presses." This is a very good, and very long, report. Here are a few quotes:

BLOGGING has famously unleashed the opinions of multitudes. There are, by very rough count, 60 million bloggers around the world today. Some projections have that number nearly doubling again this year. Depending on which side of a vitriolic divide you fall — that is, whether you think this is good or bad — this represents either the end of civilization or the rise of true democracy.

There are blogs for baseball teams, for fast food, for God and for Satan; there are lots of blogs on politics and Hollywood and at least one that deals exclusively with pharmaceutical industry research. There are hundreds of blogs on Iraq and more than you would imagine in Mongolia.

Though the numbers and breadth of blogging are indeed astonishing, it's not at all clear what the numbers mean, if they mean anything at all. Much of what constitutes the phenomenon of blogging is apt to be inconsequential for the simple but powerful fact that nobody reads most of them. That is, aside from their authors, literally nobody.

Most of these blogs are the creations of individuals who have a passion to write, usually about a single subject, that subject often being themselves. Some of them are truly horrible and, thankfully, short-lived. The passion burns out.

Others, though, are remarkably good. There are sports blogs devoted to single teams that are far more acute in their analysis than mainstream media (MSM) covering the same sport. This is particularly true in baseball, where statistically driven analysis has been adopted wholesale in the blogosphere while the MSM has been slow to recognize its value.

The blogs that have captured the most attention are those that devote themselves mainly to politics and public affairs.

The article tells of how:
over the last two months, one of the biggest news stories in the country — the Bush administration's firing of a group of U.S. attorneys — was pieced together by the reporters of the blog Talking Points Memo.

The bloggers used the usual tools of good journalists everywhere — determination, insight, ingenuity — plus a powerful new force that was not available to reporters until blogging came along: the ability to communicate almost instantaneously with readers via the Internet and to deputize those readers as editorial researchers, in effect multiplying the reporting power by an order of magnitude.

In December, Josh Marshall, who owns and runs TPM , posted a short item linking to a news report in the Arkansas Democrat-Gazette about the firing of the U.S. attorney for that state. Marshall later followed up, adding that several U.S. attorneys were apparently being replaced and asked his 100,000 or so daily readers to write in if they knew anything about U.S. attorneys being fired in their areas.

For the two months that followed, Talking Points Memo and one of its sister sites, TPM Muckraker, accumulated evidence from around the country on who the axed prosecutors were, and why politics might be behind the firings. The cause was taken up among Democrats in Congress. One senior Justice Department official has resigned, and Atty. Gen. Alberto R. Gonzales is now in the media crosshairs.

Posted by Marcia Oddi on Saturday, March 17, 2007
Posted to General Law Related

Friday, March 16, 2007

Ind. Courts - More on Allen County Superior Court Judge Robert Hockensmith has died

Mitch Harper's Fort Wayne Observed has details this evening.of Judge Hockensmith's funeral arrangements, set for Tuesday at 12 noon at the E. Harper & Son Funeral Home, IN 930 East, New Haven, Indiana. See earlier item here.

Posted by Marcia Oddi on Friday, March 16, 2007
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending March 16, 2007

Here is the Indiana Supreme Court's transfer list for the week ending March 16, 2007.

(The "list" is really two combined lists. This week we have two lists, with one case on each.)

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.

Posted by Marcia Oddi on Friday, March 16, 2007
Posted to Indiana Transfer Lists

Ind. Law - "House to consider gay marriage amendment" [Updated]

Mike Smith of the AP reports that SJR 7 will receive a hearing in the House:

A proposed constitutional amendment to ban same-sex marriage will get a key hearing before an Indiana House committee next week. But a provision critics say could have unintended consequences could be removed, a top lawmaker suggested Thursday.

Proponents of the amendment have said that if any of the language changes, it would restart the lengthy process of amending the constitution. But House Speaker Patrick Bauer, who has consulted attorneys on the matter, said the section that specifically bans same-sex marriage could still advance even if another provision is removed.

Here is the text of SJR 7:
SECTION 1. The following amendment to the Constitution of the State of Indiana, which was agreed to by the One Hundred Fourteenth General Assembly and referred to this General Assembly for reconsideration and agreement, is agreed to by this the One Hundred Fifteenth General Assembly of the State of Indiana.


Section 38. (a) Marriage in Indiana consists only of the union of one man and one woman.

(b) 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.

The proposed new Sec. 38(b) is problematic - see this ILB entry from Feb. 1, 2007, and this one from April 4, 2005, as well as this long list of ILB entries referencing SJR 7 over the past two General Assemblies - remember SJR 7 first passed in 2005, in the second year of the 114th General Assembly, and must be passed again in this, the 115th, General Assembly (in either this year or next), before it may be submitted to the voters.

We keep reading from the supporters of SJR 7 that the amendment must pass two General Assemblies in the same form, and that if one word is changed, you'll need to pack it up and start over. But where in the Constitution does it say that? What exactly does Art. 16 of the Indiana Constitution, the Article that deals with constitutional amendments, provide?

Section 1. (a) An amendment to this Constitution may be proposed in either branch of the General Assembly. If the amendment is agreed to by a majority of the members elected to each of the two houses, the proposed amendment shall, with the yeas and nays thereon, be entered on their journals, and referred to the General Assembly to be chosen at the next general election.

(b) If, in the General Assembly so next chosen, the proposed amendment is agreed to by a majority of all the members elected to each House, then the General Assembly shall submit the amendment to the electors of the State at the next general election.

(c) If a majority of the electors voting on the amendment ratify the amendment, the amendment becomes a part of this Constitution.
(History: As Amended November 3, 1998).

This is fairly vague as to the nitty-gritty. What about case law?

It turns out there are very few Indiana Supreme Court rulings on the procedure to be followed in amending the Constitution. The ILB has been unable to find a case touching on this specific matter. The closest I came was a case where the description of the constitutional amendment on the ballot outlined only part of its provisions. The Court ruled that was ok.

So where does that leave us? Here are my thoughts so far.

What would be the result if this General Assembly passed a version of SJR 7 that provided only:

Section 38. Marriage in Indiana consists only of the union of one man and one woman.
What would happen next? The General Assembly would need to enact ballot language - a bill doing that is pending as SB 289. [But see below]

The question of amending the Indiana Constitution by adding a new Section 38 to the Bill of Rights, to read as set out in the revised SJR, would then appear on the ballot. Voters would vote.

Would they vote for it, since the prohibition is already in the statute law?

If the amendment was ratified, would it then be challenged because it did not pass two sessions in the same form? [Remember, in my example, the language submitted to the voters: "Marriage in Indiana consists only of the union of one man and one woman." has indeed passed two General Assemblies.] Presumably such a suit would be brought only by opponents of any such constitutional amendment, as a victory would result in the Court invalidating the amendment.

[More] My description of SB 289 is not correct. In past years the General Assembly has enacted ballot language. See, for example, SEA 36 from 2004. This year, it looks like the General Assembly is making an effort to delegate this role to the Indiana Legislative Council and their word, literally, is to be law. Specifically, the new language provides:

The legislative council has absolute discretion to determine the contents of a summary prepared under this section. A person may not bring an action in any court based on the exercise of this discretion.
In the cases I have just finished reviewing, the most frequent challenge to a constitutional amendment is to the ballot language. One can bet that the validity of this handoff to the Legislative Council, if it is enacted, will also be challenged, despite the language prohibiting any challenge to the ballot language that results. If one could in the past challenge in court the ballot language written by the General Assemby, one wonders how the General Assembly can prevent such a challenge by delgating the responsibility to the Legislative Council?

[Updated at 5:00 PM] Advance Indiana quotes Ed Feigenbaum of Legislative Insight today as writing:

But there are also some who suggest that any alteration in the language of the Joint Resolution itself would serve to prevent the measure from being placed before Hoosiers for ratification . . . and you can expect a legal firestorm over how all this will shake out procedurally.
I don't think so. Why would proponents challenge putting the proposed constitituional prohibition against same-sex marriage before the voters, even without the second sentence, if that is what ended up being passed? The prohibition in the first sentence gets the job done.

Posted by Marcia Oddi on Friday, March 16, 2007
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 6 today (and 17 NFP)

For publication opinions today (6):

In Indiana Patient's Compensation Fund v. Eric Butcher and Dorothy Butcher, an 18-page opinion, Judge Barnes writes:

The Indiana Patient’s Compensation Fund (“the Fund”) appeals the trial court’s order of judgment collectively awarding Eric, Dorothy, and Samuel Butcher $3,500,000 for an act of medical malpractice. We reverse and remand. * * *

Conclusion There is no evidence that Dorothy suffered physical injuries as a result of the healthcare providers’ malpractice. We reverse the trial court’s conclusion that Dorothy is entitled to recovery for physical injuries. Neither Eric nor Dorothy was the actual victim of the malpractice, and they may not recover under their own statutory caps. Their total recovery is limited to $1,250,000. We reverse the trial court’s order requiring the Fund to pay Eric and Dorothy $3,500,000 and remand to the trial court for a new order consistent with this opinion. Reversed and remanded.

Carole J.Schuler v. James Graf, et al - "Carole J. Schuler appeals the trial court’s judgment ordering specific performance of a land sale contract executed between Schuler and James and Leanne Graf. We affirm. Issues: 1. Whether the contract for the sale of real estate was sufficiently definite to satisfy the Statute of Frauds. 2. Whether the trial court abused its discretion in ordering specific performance."

In Indiana Patient's Compensation Fund v. Lori and Darrin Winkle a 16-page opinion, Judge Robb writes:

Concluding that Lori and Darrin are not entitled to separate excess damage awards arising from the death of their unborn child, we affirm the trial court’s award of one statutory excess damage award to Lori, and reverse the remainder of the trial court’s order. * * *

Lori is entitled to a statutory cap for her injuries. Because the Winkles’ unborn child is not a “patient” pursuant to the Act and because Lori and Darrin therefore have no one from whom their negligent infliction of emotional distress claims can derive, they are not entitled to separate statutory caps for their emotional damages. The trial court’s order is therefore affirmed as to a single cap to Lori, and reversed as to the remainder. Affirmed in part and reversed in part.

Vernon & Shirley Graves v. John Marvin Johnson, Jr., et al - insurance dispute.

Nausher Sial v. State of Indiana - "Finding that Sial’s attorney was ineffective for failing to advise his client of the penal consequences of pleading guilty, we reverse the judgment of the post-conviction court and remand this proceeding for trial."

Dennis Turner v. State of Indiana - "Turner argues the trial court abused its discretion by admitting evidence obtained after a pretextual traffic stop. The stop of Turner’s vehicle was not reasonable in light of the circumstances and, therefore, violates Article I, Section 11 of the Indiana Constitution. Evidence arising out of the illegal stop, including a videotaped confession, must accordingly be suppressed. We reverse and remand."

NFP civil opinions today (8):

In Louise McCoskey v. Randall & Roberts Funeral Home (NFP), a 7-page opinion, Judge May writes:

Louise McCoskey appeals a judgment requiring her to pay Randall & Roberts Funeral Home a portion of the funeral and burial expenses for Earl Brown. McCoskey raises two issues, of which we need address only one: whether a statement by the trial court judge would give an objective person, knowledgeable of all the circumstances, a reasonable basis for doubting the judge’s impartiality. Because the judge’s comments reasonably could be read to suggest his judgment was clouded by his personal knowledge of one of the parties to the contract at issue, we must reverse and remand for a trial before a new judge.
Karen Johnson-Quick v. Billy D. Sexton and Globe Life and Accident Insurance Company (NFP) - dispute re insurance benificiaries and attorney fees, reversed and remanded.

Flex-N-Gate Corporation v. Town of Veedersburg (NFP) - "In light of the facts before us, we can only conclude that Corporation’s conduct and participation in developing an electrical rate applicable solely to its own operations demonstrates its intent to be bound by those rates and to waive any condition regarding electrical rates as provided for in the Agreement. In addition, Corporation’s failure to take any affirmative steps to show a contrary intent constitutes waiver of the condition in the Agreement. By operation of law, therefore, Corporation waived the electrical rate condition contained in the Agreement. Thus, the trial court properly granted summary judgment in favor of Town."

Priscilla Cessna v. Kenneth E. Buher & Joan Buher (NFP) - "The trial court found and concluded that the Buhers have a prescriptive easement and an implied easement of necessity for the waterline at issue. The trial court denied Cessna’s request for permanent injunction and damages. We affirm."

Clifford Edwin Reske v. Michelle (Reske) Honeycutt (NFP) - custody, affirmed.

Hal-Mark Rental Center, Inc. v. Sentry Select Insurance Company (NFP) - "Here, Hal-Mark’s policy clearly and unambiguously provided that Hal-Mark would not be able to obtain coverage under the False Pretense provision if it 'fail[ed] to obtain, verify and document, prior to the transaction, the other party’s business address, telephone number and drivers license number.' Thus, the policy provided coverage for situations involving false pretense except for when the insured failed to fulfill these requirements. We have held that “one express limitation in coverage does not render [an insurance] policy illusory as a matter of law.” Jones, 635 N.E.2d at 202. Accordingly, we conclude that the trial court’s entry of summary judgment in favor of Sentry was not erroneous. The judgment of the trial court is affirmed."

James Bedree v. Wells Fargo Bank (NFP)

In Paternity of D.S., Robert E. Summerville v. Kimiya S. Brooks (NFP), an 11-page opinion, Judge May writes:

Robert E. Summerville (“Father”) appeals the dismissal of his petition to change custody of his son, D.S., from D.S.’s maternal grandmother, Jessica Brooks, (“Grandmother”) to himself. Father agreed in June of 2002 that Grandmother was de facto custodian and should be given “joint legal and sole physical custody” of D.S. We therefore cannot conclude the court erred by labeling Grandmother de facto custodian. However, the court applied the wrong legal standard for determining whether to modify custody. In this situation, we reverse and remand. * * *

If, as Father argues, Grandmother did not rebut the presumption in his favor, then he should have been given custody of D.S. Accordingly, we must reverse the dismissal of Father’s petition to modify custody and remand for further proceedings, at which Grandmother will have the burden to rebut the presumption favoring Father. Reversed and remanded.

NFP criminal opinions today (9):

James Nuxoll v. State of Indiana (NFP)

Nathan Bickerstaff v. State of Indiana (NFP)

Allen Arnett v. State of Indiana (NFP)

Sabas Blanco v. State of Indiana (NFP)

Andrew Clinton Barker v. State of Indiana (NFP)

Damon A. Collins v. State of Indiana (NFP)

Durand Huggins v. State of Indiana (NFP)

Tinnisha Mitchell v. State of Indiana (NFP)

Michael Robert Rains v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, March 16, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Suit over Ruth Lilly trusts ends"

Jon Murray of the Indianapolis Star writes today of the impact of the Supreme Court decision last week to grant transfer in the case of "Americans for the Arts and The Poetry Foundation v. Ruth Lilly Charitable Remainder Annuity Trust #1." Some quotes:

Officials at the Poetry Foundation in Chicago and Americans for the Arts in New York expressed disappointment Thursday but said they're still grateful for Lilly's enormous bequests.

Their suit argued that National City failed to move money from Eli Lilly and Co. stock quickly enough. A prolonged slide in its share price slashed about $100 million from the trusts' $286 million value.

Those trusts will pay a lifetime annuity to Ruth Lilly and to six nieces and nephews for five years. The remainder will be split three ways -- 35 percent each to the Poetry Foundation and the Lilly Endowment, and 30 percent to Americans for the Arts.

The Lilly Endowment was not actively involved in the suit.

"The point of the lawsuit was that . . . even if the value of any stock goes up, you're not really recouping" the initial loss, said Robert L. Lynch, president and CEO of Americans for the Arts.

Similarly, Poetry Foundation spokeswoman Anne Halsey said the organization had a financial responsibility to press the case.

But with the Supreme Court's unanimous decision not to accept the case last week, "that's past tense now," Lynch said.

See this ILB entry from Oct. 20, 2006 for background.

Posted by Marcia Oddi on Friday, March 16, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Governor appoints temporary judge in Lake County

The NWI Times reports:

HAMMOND | The Indiana Supreme Court is temporarily filling the vacancy left by the death of Lake Superior Court Judge Robert A. Pete.

Retired Jasper County Judge E. Duane Daugherty will serve in Room Five of the court until a permanent judge is appointed by Gov. Mitch Daniels.

Pete served five years on the bench until his March 6 death.

Posted by Marcia Oddi on Friday, March 16, 2007
Posted to Indiana Courts

Thursday, March 15, 2007

Ind. Courts - Allen County Superior Court Judge Robert Hockensmith has died

Mitch Harper's Fort Wayne Observed has posted a Valedictory to Judge Hockensmith this evening. Access it here.

[More] Today's Fort Wayne Journal Gazette has this story, headlined "Hockensmith, revered judge, dies at age 78."

Posted by Marcia Oddi on Thursday, March 15, 2007
Posted to Indiana Courts

Ind. Decisions - 7th Circuit issues 3 Indiana decisions today

IN RE: Garzolini Tire and Fuel (SD Ind., Richard L. Young, Judge) is a bankruptcy appeal and deals with the signatures on the mortgage. In a 5-page opinion Judge Easterbrook writes:

Garzolini Tire maintains that these signatures are inadequate, because the Garzolinis may have been signing exclusively in their personal capacities. The notary’s attestation does not reveal in which capacity they signed, so the document is ineffective under Ind. Code §32-21-2-3. Although Ind. Code §32-21-2-3 and its predecessors deal with the recording of mortgages rather than with the rights of the parties to the transaction, see Hubble v. Wright, 23 Ind. 322 (1864), in a bankruptcy proceeding the trustee or debtor in possession can assume the position of a hypothetical third party that could take ahead of a non-recorded mortgage. See 11 U.S.C. §544(a). * * *

This particular mortgage was acknowledged by two corporate officers, proved before a notary public, and later proved before a bankruptcy judge. As long as the Garzolinis were acting on behalf of Garzolini Tire, there is no problem. And whether they were so acting is a question not of law but of fact—and the bankruptcy judge found that they acted in both corporate and personal capacities.

The bankruptcy judge’s understanding of this document seems to us entirely sensible, if it is not inevitable. Each Garzolini signed twice—once on the left side in a corporate capacity, and once on the right in a personal capacity. The left side gives the corporate name, followed by “By” and the signature of the corporation’s President. It does not take the word “President” after Bruno’s name to illuminate the capacity in which one signs when the immediately preceding text is “GARZOLINI TIRE & FUEL, INC., By:” The next line makes this clear; Robert Garzolini, as Vice President (or “V.P.”), attests the signature, a step unnecessary and inappropriate unless Bruno was signing for the corporation as its President. And the notary tells us that the signatures are genuine. We have no doubt that Indiana’s courts would treat this as an effective mortgage.

USA v. Luster, Dewayne (SD Ind., Sarah Evans Barker, Judge) is a 12-page opinion by Judge Sykes that affirms the lower court:
First, ample evidence supported the jury’s finding that Luster participated in an extensive cocaine distribution operation headed by codefendant Prentice Davis. Numerous recordings of telephone conversations between Luster and Dramane Johnson, Davis’s primary distribution agent, showed Luster placing frequent orders for large quantities of cocaine he knew were tied to Davis. This and other evidence permitted the inference that Luster worked cooperatively with Johnson and Davis to distribute cocaine and was not merely in a “buyer-seller” relationship with them, as he maintains. Second, the evidence Luster argues should have been excluded—Davis’s testimony that Luster bought cocaine from him in 2000—was properly admitted under the “inextricably intertwined” doctrine because it provided the jury essential background information about the origins and operational structure of the charged conspiracy. Third, the district court properly applied the firearms sentencing enhancement because Luster reasonably could have foreseen that Davis and Johnson possessed firearms in furtherance of their large cocaine distribution enterprise.
In Miller, Keith v. Vannatta, John (ND Ind., Theresa L. Springmann, Judge), an 11-page per curiam opinion, the panel writes:
Indiana prisoner Keith Miller, who is 71 years old, is serving a 48-year sentence for his convictions on 18 counts of state securities violations. Miller, who was convicted in absentia after failing to appear for trial, attended his sentencing hearing but remained silent throughout the proceedings on the advice of his attorney, Kevin McShane. McShane likewise refused to participate. After his convictions and sentence were up held on appeal, Miller successfully petitioned for postconviction relief and was granted resentencing, but the Indiana Court of Appeals reversed that decision. Miller then filed a petition for a writ of habeas corpus in federal court, which was denied. On appeal Miller argues that the state appellate court unreasonably concluded that McShane’s performance at sentencing was not deficient or prejudicial, and he further contends that United States v. Cronic, 466 U.S. 648 (1984), rather than Strickland v. Washington, 466 U.S. 668 (1984), governs his claim. We conclude that Cronic is indeed the proper framework, but that, regardless of which standard we apply, Miller meets his burden. Accordingly, for the reasons set forth in the following opinion, we reverse the district court’s decision and remand with instructions to grant the writ of habeas corpus. * * *

In this case, McShane’s advocacy at sentencing was so non-existent as to fall within even a very narrow exception. Other than orally moving for a new trial and explaining several times that neither he nor Miller would participate in the proceedings, McShane said nothing throughout the sentencing hearing. By his own admission, he did not offer a shred of mitigating evidence, object to (or consult with his client about) errors in the PSR, or even lobby for a sentence lower than the one urged by the State. In his own words, he “did nothing.” * * *

Although the State insists that McShane’s failure to participate was “strategic” and all but unreviewable, no discernable strategy was at work here. McShane explained why he instructed Miller to remain silent—to prevent the judge from learning that Miller was aware of his trial date—but McShane never explained his own silence. He gave no indication that he had reason to believe the court would force him to testify against his own client by revealing what Miller knew. In any event, McShane could have declined to discuss the trial but still commented on issues relating to the sentence. To hold that “strategy” justified McShane’s decision would be to make a mockery of the word.

Finally, we are compelled to express our concern with the advocacy on behalf of the State in this matter. We are hard-pressed to recall so pronounced a dereliction of duty on the part of an attorney as occurred at Miller’s sentencing hearing. Of course, we do not suggest that the State should have conceded its case, but, where so great a lapse occurs, it would behoove the State to acknowledge the gravity of the circumstances and address the shortcomings in its case. Instead, regrettably, both in the briefs and at oral argument, we experienced only an intractable effort to rationalize at any cost the constitutional violation that took place.

III. The Indiana Court of Appeals unreasonably applied federal law in concluding that McShane’s decision to stand mute at Miller’s sentencing hearing did not amount to ineffective assistance of counsel. McShane’s total abandonment of his client warrants the application of Cronic, and we presume that the non-participation prejudiced Miller’s position at sentencing. Moreover, we would reach the same result even if we found it necessary for Miller to establish prejudice. Accordingly, we REVERSE the denial of Miller’s petition and REMAND the case to the district court with instructions to grant the writ of habeas corpus to the extent that Miller must be resentenced with the assistance of counsel.

Posted by Marcia Oddi on Thursday, March 15, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (1):

Harry Harrison v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 15, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Combined oral arguments on four Blakely-related cases before Supreme Court next week

A week from today, Thursday, March 22, 2007, the Supreme Court will hear oral arguments in David Boyle v. State, Warren Gutermuth v. State, Curtis Medina v. State, and David Moshenek v. State. As explained by the Court's calendar description:

This combined oral argument addresses whether a belated appeal or other proceeding referred to in Post-Conviction Rule 2 is a "direct appeal" for purposes of Blakely v. Washington, 124 S.Ct. 2531 (2004), and Smylie v. State, 823 N.E.2d 679 (Ind. 2005), and if so, what evidence of timeliness and diligence is required.

Boyle pleaded guilty in 1995 and initiated a Post-Conviction Rule 1 proceeding, then withdrew the post-conviction petition in 2004. The trial court allowed him to file a belated notice of appeal in 2005, without - the State asserts - a showing that he had been diligent in seeking a belated appeal. The Court of Appeals affirmed and applied Blakely. Boyle v. State, 851 N.E.2d 996 (Ind. Ct. App. 2006), trans. pending. The State has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorney for Boyle;Christina Klineman of Indianapolis, IN. Attorney for State; Michael Worden of Indianapolis, IN.

Gutermuth pleaded guilty in 1994. He challenged his sentence in Post-Conviction Rule 1 proceedings in 2000, then initiated the instant Post-Conviction Rule 2 belated appeal in 2005. The Court of Appeals applied Blakely. Gutermuth v. State, 848 N.E.2d 716 (Ind. Ct. App. 2006), vacated. The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal. Attorney for Gutermuth; Jeffrey Stonebraker of Jeffersonville, IN. Attorney for State; Scott Barnhart of Indianapolis, IN.

Medina pleaded guilty in 1997. The trial court granted Medina's request, filed in 2006, for permission to file a belated notice of appeal. The Court of Appeals declined to apply Blakely. Medina v. State, No. 71A03-0604-CR-163 (Ind. Ct. App. Nov. 29, 2006) (unpublished mem.), trans. pending. Medina has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorney for Medina; John Pinnow of Greenwood, IN. Attorney for State; Kelly Miklos of Indianapolis, IN.

Moshenek pleaded guilty in 1989. He initiated a Post-Conviction Rule 1 proceeding in 1994. The trial court denied his request, filed in 2005, for permission to file a belated motion to correct error, finding that Moshenek had not been diligent in seeking a belated appeal. The Court of Appeals reversed in Moshenek v. State, 851 N.E.2d 339 (Ind. Ct. App. 2006), trans. pending. The State has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorney for Moshenek; Teresa Harper of Bloomington, IN. Attorney for State; Kelly Miklos of Indianapolis.

Posted by Marcia Oddi on Thursday, March 15, 2007
Posted to Ind. Sup.Ct. Decisions

Law - "The Little Book of Plagiarism"

7th Circuit Court of Appeals Judge Richard A. Posner has a new book out, The Little Book of Plagiarism. What I've learned from it came in handy yesterday when reading an article in the NY Times, headed "In a Charge of Plagiarism, an Echo of a Father’s Case." The report by Karen W. Arenson, about a professor accused of plagiarizing parts of her doctorial dissertation, includes this:

Déjà vu? Flash back to 1982, when her father, Claude Jonnard, a business school professor at Fairleigh Dickinson University, also in New Jersey, was accused of copying government documents in a book under his own name, without citing any of them.

Mr. Jonnard said at the time that his actions were neither illegal nor unethical because the documents were not copyrighted. Willard Gingerich, Fairleigh Dickinson’s current provost, said records showed that the university looked into the accusation but took no action because the professor had not broken the law, and because the person making the accusation had recently been dismissed.

Now to Posner's little book, p. 12:
There is considerable overlap between plagiarism and copyright infringement, but not all plagiarism is copyright infringement and not all copyright infringement is plagiarism.
Posner points out that "the federal government is forbidden by statute to claim copyright in the documents it produces," so that an author incorporating such material as her own in a publication:
would not have been guilty of infringing copyright -- but she would still have been a plagiarist because she concealed the copying.

Posted by Marcia Oddi on Thursday, March 15, 2007
Posted to Courts in general

Ind. Law - "Indiana's public access laws need teeth to discourage disregard for public"

The NWI Times has an opinion piece today recounting how at a recent Hammond City Council meeting the 9-member all-Democratic Council recessed a public meeting for over an hour to hold a "caucus."

A party caucus can be a legitimate meeting. But it was hardly legitimate in this case. It was a blatant exercise in shutting out the public when the public's business was being discussed. * * *

Making it worse was that they came out of the caucus and, without a word, upheld the mayor's veto on the four-year extension of the Hammond City Court.

"We talked about Democratic Party unity, making sure that the dirty laundry didn't come out on the floor," Councilman Anthony Higgs said.

"We just wanted to get everybody on the same page," Councilman Al Salinas said. "We needed to air out that issue."

Ahem, gentlemen! That's what the City Council meetings are for!

"The public has an interest in knowing more than the result of a vote or nonvote," said Steve Key, counsel for the Hoosier State Press Association. "The whole intent of the Open Door Law is that the action of public agencies are taken openly. Silence does not fully inform anybody of anything."

Instead of doing the public's business in public, where it should be, the council has left itself open for a lawsuit from any interested party who might want to challenge its actions.

Indiana has a public access counselor who advises governments, the public and the media on public access issues, but those rulings are merely advisory.

Perhaps the Hammond council should be taken to task by taking it to court. Key says the council is breaking the law.

This case -- along with others like it across the state -- is a good argument for putting teeth in the state's public access law to discourage disregard for the public.

Make those rulings binding, with the possibility of penalties for not complying, and government officials would be far more likely to see the light of open government.

Posted by Marcia Oddi on Thursday, March 15, 2007
Posted to Indiana Law

Ind. Courts - Court of Appeals will hear oral arguments at Valparaiso University

The Chesterton Tribune reports:

The Indiana Court of Appeals is scheduled to hear an oral argument on March 23 on the campus of Valparaiso University in the case of a man accused of road rage in a crash which killed two people in Indianapolis.

Oral arguments will be heard beginning at 11 a.m. at the VU School of Law at Wesemann Hall, VU said in a statement released on Tuesday. Arguments are open to the public.

Judges Nancy Vaidik, Michael Barnes, and Terry Crone will be participating in the oral argument in the case of Benton Barber vs. the State of Indiana. Barber was convicted last year of charges resulting from a 2004 highway crash in Indianapolis in which two teens were killed, VU said. Prosecutors said that the crash was the result of road rage and the incident prompted state legislators to increase penalties for aggressive driving.

The court, VU said, is being asked to decide whether there was sufficient evidence to convict the defendant for reckless homicide and failure to stop after an accident resulting in death, and whether the defendant’s sentence was proper.

Posted by Marcia Oddi on Thursday, March 15, 2007
Posted to Indiana Courts

Ind. Courts - "Lawyer resentenced in drug case"

Jim Adams of the Louisville Courier Journal reported yesterday:
A lawyer convicted in 2000 of conspiring to launder money from drug sales is no longer on supervised release under terms of his third sentence imposed this morning in federal court. George T. Rorrer III , 49, said after the sentencing that he now has a job in sales, and would like to resume the practice of law, “but that’s not up to me.” Rorrer resigned his license to practice in Indiana in 2003, and his Kentucky license was placed in “automatic temporary suspension” following his conviction in 2000.

Posted by Marcia Oddi on Thursday, March 15, 2007
Posted to Indiana Courts

Wednesday, March 14, 2007

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

Kikalos, Nick v. USA (ND Ind., James T. Moody, Judge), a 9-page opinion, FLAUM, Circuit Judge, writes:

The Supreme Court held that “the protection of the revenue authorizes the Commissioner to demand information in a particular form, and he is entitled to insist that the form be observed so as to advise him expeditiously and accurately of the true nature of the claim.” Likewise, in this case, the Commissioner was entitled to require that the Kikaloses follow the treasury regulations and “focus attention on the merits of the dispute.” Martin, 833 F.2d at 660-61. Consequently, the district court did not err by finding that the Kikaloses did not file an informal refund claim.
In Fane, Marcella v. Locke Reynolds (SD Ind., John Daniel Tinder, Judge), a 13-page opinion, FLAUM, Circuit Judge, writes:
From July 2001 until August 2003, Marcella Fane worked as a paralegal at Locke Reynolds, LLP. After she was terminated, Fane filed suit against Locke Reynolds, alleging racial discrimination in relation to her pay, workload, and termination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 as well as 42 U.S.C. § 1981. Finding that Fane had failed to establish a prima facie case of discrimination, the district court granted summary judgment in favor of Locke Reynolds, and Fane appeals. For the following reasons, we affirm.

Posted by Marcia Oddi on Wednesday, March 14, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Knox County Circuit Court judge turned down on request to pay court reporters overtime

This ILB entry from Monday, March 12th quoted a story in the Vincennes Sun-Commercial about Knox County Circuit Court Judge Sherry L. Biddinger Gregg.

Today's story from the Vincennes paper reports:

Circuit Court Judge Sherry L. Biddinger Gregg request to pay two reporters in her office overtime was turned down by the county council Tuesday.

However, the judge was told she could go ahead and hire a third reporter to do the extra work.

Biddinger-Gregg doesn't want to hire another employee.

“I don't want to pick up a third person because things work so well in the office as they are,” the judge said. “The division of responsibility is clear and my employees say they can handle extra work.”

The judge told council members approving overtime for her court reporters would save the county $9,000 in paying someone else part-time.

Gregg said each employee works about 50 hours a week. Full-time county employees are only required to work 35 hours a week; employees who work more than 40 hours a week earn overtime compensation.

Councilman Tim Ellerman said court reporters in the other county courts opposed Biddinger-Gregg's request, indicating they felt it was unfair. Currently, Superior Courts I and II employ four court reporters in their offices.

“I heard several feel it is unfair and want to make the same amount of money as others,” he said. “I don't believe everyone should be treated equally. Fairness can almost be counterproductive. These court reporters are working more, they are getting paid more. It isn't like they are getting paid extra money and doing the same amount of work. I think Gregg should be allowed to run her court how she sees fit.” * * *

Fellow council members disagreed. Councilman John Ivers said the item had already been discussed during budget hearings held last fall.

“If we approve this, it will only create more problems with overtime, something we've already tried to crack down on,” he said. “We've been down this road with the Health Department and with the Auditor's office. I suggest you go ahead and pursue the hiring of a third person.”

Ellerman's motion to approve Biddinger-Gregg's request was denied, six to one, with Ellerman casting the only yea vote.

Posted by Marcia Oddi on Wednesday, March 14, 2007
Posted to Indiana Courts

Not law but important - Governor signs executive order on making health care costs accessible

The ILB posted interesting entries Feb. 28th and March 4th on negotiating health care costs, including this quote from a WSJ story: "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."

Today Governor Daniels has published in the Indiana Register Executive Order 07-05, which posits that "the health care system can be transformed to deliver safer, higher-quality care in a more cost-effective manner by empowering consumers with information about the options, price, and quality of the health care available to them." The order sets out a number of steps the State plans to take as a start to making health care costs available to the patient. It concludes:

Over time, the information realized by meeting these goals can be used to improve patient care and enhance the effectiveness of our health care system by increasing the availability of uniform and comparable information with which all stakeholders can make informed decisions. These steps are the foundation for a value-driven health care system that delivers continued progress in medical care and good health for Hoosier employees as well as for all Americans.

Posted by Marcia Oddi on Wednesday, March 14, 2007
Posted to General News

Courts - Supreme Court Clerks may be limiting the number of cert petitions granted in order to avoid "DIGs"

This is fascinating. What is a "DIG"? It stands for dismissed as improvidently granted. Stephanie Francis Ward has a long article in the ABAJournal that explains:

Anup Malani doesn’t recall which clerk wrote the memo six years ago suggesting that the U.S. Supreme Court grant certiorari to an affirmative action case.

But Malani, who was clerking for Justice Sandra Day O’Connor, remembers the result. After full briefing and oral argument, the court dismissed the case as improvidently granted, otherwise known as a DIG.

The case, Adarand Constructors Inc. v. Mineta, 534 U.S. 103 (2001), involved a challenge to the U.S. Department of Transportation’s affirmative action program for federally funded contracts. The Supreme Court said the petitioner had failed to challenge an appeals court ruling that denied standing.

Luckily, the justices and other clerks probably didn’t know the identity of the memo’s author either, says Malani, now a law professor at the University of Chicago. But, he says, he assumed the author was embarrassed.

“For one thing, the court seems unprofessional when it admits a mistake,” Malani says. “If I were that person that recommended something that got DIGed, I would have forced the court to look bad.” * * *

University of Minnesota law professor David R. Stras may be the first with numbers to back this up. In an article slated to be published this month in the Texas Law Review, Stras examined the papers of Justice Harry A. Blackmun, reviewing every cert pool memo from the 1984, 1985, 1991 and 1992 terms.

As Stras himself writes in SCOTUSblog:
As some of you may recall from earlier posts, this month's issue of the Texas Law Review will contain my review essay, "The Supreme Court's Gatekeepers: The Role of Law Clerks in the Certiorari Process." I just posted the final version of the essay on SSRN, see here, which is now available for download. The essay empirically identifies three characteristics of the cert pool for the first time: (1) it is stingy with respect to making grant recommendations; (2) it emphasizes objective criteria of certworthiness in making its recommendations, such as the presence of lower court conflict; and (3) there is strong statistical evidence suggesting that its recommendations are correlated with the eventual decisions made by the Court on petitions for certiorari.
Here is the link to the 51-page article on SSRN which has, it appears, as much about the clerks' cert pool as most readers ever will want to know.

Posted by Marcia Oddi on Wednesday, March 14, 2007
Posted to Courts in general

Ind. Law - Still more on: 100 Year Anniversary of Indiana Eugenics Legislation: Hoosier State Led World In Enactment of Involuntary Sterilization Laws

Updating these ILB entries from earlier this month, the Courts site now has a special page for its Wednesday, April 11, 2007 CLE offering, "Three Generations of Imbeciles are Enough": Reflections on 100 Years of Eugenics in Indiana. Access it here.

The webpage includes valuable supproting materials, inlcuding Indiana eugenics leglislation, Indiana Supreme Court decisions, journal articles, etc. For those unable to attend, there is a link to the live webcast.

On the following day, Thursday, April 12, 2007, a symposium on the topic will take place at the Indiana State Library.

Posted by Marcia Oddi on Wednesday, March 14, 2007
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (5):

James V. Woods v. State of Indiana (NFP)

William C. Beverly v. State of Indiana (NFP)

Douglas J. Nilson v. State of Indiana (NFP)

Ralph K. Elam v. State of Indiana (NFP)

Tina Foullois v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 14, 2007
Posted to Ind. App.Ct. Decisions

Environment - "Judges Say E.P.A. Ignored Order in Setting Emission Standards"

Felicity Barringer of the NY Times reports today on yesterday's DC Circuit opinion in Sierra Club v. EPA. Some quotes:

A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit rebuked the Environmental Protection Agency in a decision Tuesday, indicating that the regulators had flouted Congress and the courts in setting the standards governing hazardous air pollution emissions from plants making bricks and ceramics.

The panel concurred in a single opinion that the agency had ignored a federal appeals court opinion directing it to follow the Clean Air Act’s instructions in setting emission standards for kilns making bricks and ceramics. These kilns collectively emit more than 6,440 tons of toxic acids and small soot, which can cause breathing difficulties, organ damage and cancer.

The ruling said the agency had ignored the court’s order to ensure that the basis for its standards was emission levels achieved by kilns using the most effective technology currently in use in the industry.

“If the Environmental Protection Agency disagrees with the Clean Air Act’s requirements for setting emission standards it should take its concerns to Congress,” the judges wrote in an unusually pointed final paragraph.

“If the E.P.A. disagrees with this court’s interpretation of the Clean Air Act,” they continued, the agency should appeal its earlier ruling. “In the meantime, it must obey the Clean Air Act as written by Congress and interpreted by this court.”

In a statement on the Web site of Earthjustice, the organization that represented the Sierra Club in its suit against the E.P.A. over the standards, James Pew, a lawyer, said: “This decision is not just about brick kilns. It is about an agency that thinks it is above the law, and chooses to ignore Congress, the courts and the citizens who have called upon E.P.A. to protect against this pollution.”

Posted by Marcia Oddi on Wednesday, March 14, 2007
Posted to Environment

Courts - "Judicial Conference Urges End to 'Secret' Dockets"

Tony Mauro has a great story today in Legal Times about changes to be made in the federal court system:

The Judicial Conference took steps Tuesday to end “secret” dockets in federal courts and to eventually put audio of federal court proceedings online.

Meeting at the Supreme Court, the conference — the policy-making body of the federal judiciary — urged all federal courts to end the practice whereby some cases under seal “vanish” from electronic dockets and databases.

When software changes are made, at least the notation “Case Under Seal” or “Sealed v. Sealed” will appear with a docket number, giving the media and others the ability to challenge or examine the circumstances behind the seal, says Chief Judge Thomas Hogan of the U.S. District Court for the District of Columbia.

Media organizations in recent years have reported that in hundreds of criminal cases, entire case files have disappeared from electronic dockets. Last year, the Reporters Committee for Freedom of the Press published a study showing that as many as 18 percent of criminal cases filed in D.C. federal court were missing or “undocketed.”

Often these are cases of defendants who have become informants, and the seal is meant to protect their identity, says Hogan, who credits the reporters committee with alerting him to the problem. Once taken off the electronic docket, Hogan says, these cases are often left off, long after the need to seal them has ended. “It is an unintentional problem that arose,” Hogan says.

Hogan, who chairs the executive committee of the Judicial Conference, says the vanished dockets send the wrong message to the public. “It does look like the courts are trying to hide cases,” Hogan says. He spoke at a press briefing following the judges’ meeting, which is itself closed to the media and public.

With new software that some courts have already, and others will have soon, all previously vanished cases should reappear — albeit still under seal — “in the next couple of months,” Hogan says. “We expect every court to do it.”

The ILB posted this entry on the disappearing federal criminal docket on March 6, 2006.

Mauro also reports:

Hogan indicated that the conference will also look at the larger policy question of whether so many cases should be sealed, and for how long. In Washington, he says, procedures have been put in place so that sealing orders will be reviewed regularly to determine if confidentiality is still needed.
And the third major announcement re makling the federal courts and their reocrds more accessible:
Acting on another issue of public access, the conference also endorsed a pilot project aimed at making audio of court proceedings available online through the federal judiciary’s PACER electronic access system. The U.S. Court of Appeals for the 8th Circuit has posted audiotapes of its oral arguments online since the turn of the century, but other courts have been slow to follow suit.

Under the pilot program, several district courts — not yet chosen — will put the audio of all proceedings, except closed hearings, online.

In an aside, Hogan also praised the arrangements that were made for media and public access to the recent I. Lewis “Scooter” Libby trial held in his courthouse. He says the large media contingent was aided by video from the trial viewable in a media room that was also equipped with wireless Internet access. As a result, Hogan says, coverage of the trial was “a lot more accurate, I thought, and timely.”

The 7th Circuit also has made MP3s of its oral arguments available for a number of years now. But what is being discussed here are federal district courts -- trial courts. That would be fascinating.

Posted by Marcia Oddi on Wednesday, March 14, 2007
Posted to Courts in general

Ind. Law - Potentially interesting election dispute

Ben Zion Hershberg of the Louisville Courier Journal has a story today that begins:

Jeffersonville's Board of Ethics made plans last night to investigate whether the campaign of Mayor Rob Waiz violated the city's ethics ordinance when it bought several Internet addresses likely to be used by the campaign of former Mayor Tom Galligan.
Election cybersquatting? But that apparently is not the issue in this investigation. Instead:
Ethics Board member Rachel Browne said she wants to know if Roger Hardy, Jeffersonville's director of information technology and the Waiz campaign's computer consultant, bought the site names on city time or using city computers. Either action would violate the ethics ordinance.

The Waiz re-election campaign acknowledged last month that it had bought three Internet addresses, or domain names likely to be used by the Galligan campaign to limit his ability to communicate with voters.

The names are tomgalligan, galliganformayor and tomgalliganformayor.

Posted by Marcia Oddi on Wednesday, March 14, 2007
Posted to Indiana Law

Ind. Law - Soliday election dispute hearing delayed

Bob Kasarda of the NWI Times reports today:

VALPARAISO | State Rep. Ed Soliday, R-Valparaiso, nearly will complete the first of his two legislative sessions before the legal challenge to his residency is heard in court.

A hearing on Soliday's request to dismiss the case was postponed Tuesday until April 17 because of a scheduling conflict with his Indianapolis-based attorney, William Bock.

Bock said he would be out of state on the original March 23 hearing date.

The delay was arranged during a teleconference Tuesday morning involving Porter Superior Judge Bill Alexa, Bock and Portage attorney Ken Elwood, who is representing the local voters posing the residency challenge.

Timing in the case has been raised as an issue by both sides in the dispute.

Bock argues the residency challenge should be dismissed because it is unconstitutional to serve a state lawmaker with a civil lawsuit while the Indiana General Assembly is in session.

Elwood has said the prohibition does not apply to Soliday because he does not live in his legislative district as is required by law and is thus not a valid lawmaker.

If the court determines the protection does apply to Soliday, Elwood asks that rather than dismiss the case, the court puts it off until the current legislative session ends. The session is expected to last until April 29.

Concern also has been raised about the legitimacy of the votes being cast by Soliday if it is later determined he does not live within his district, as is required by law.

Here is a list of earlier ILB entries on the dispute.

Posted by Marcia Oddi on Wednesday, March 14, 2007
Posted to Indiana Law

Ind. Courts - Hammond City Court lives

Updating this entry from March 3rd, the NWI Times reports today:

HAMMOND | The City Court's future looked brighter when council members voted Monday for its continuation through an amended ordinance.

In a unanimous vote, the council adopted an amended ordinance, which upholds the state law giving the council, not the mayor, the ability to maintain or abolish City Court.

The ordinance also clarified it is not necessary to re-establish the local court every four years as has been the practice.

Posted by Marcia Oddi on Wednesday, March 14, 2007
Posted to Indiana Courts

Ind. Gov't. - The cost of public records

An editorial in the Fort Wayne Journal Gazette yesterday was headed "Cost of Information."

The digital revolution is scheduled to arrive in the Allen County Recorder’s Office in July, allowing county residents to search for and retrieve business and property records from their home or office computers – and thereby saving a trip to the City-County Building.

It’s time for state lawmakers to catch up with technology and revise a state law that sets the fees county recorders must charge for deeds, mortgages and other information from their files. They should consider giving county recorders some discretion to waive fees in the public interest.

County Recorder John McGauley, who took office in January, believes businesses that use mortgage and other information for business purposes should pay for it.

“But I hate to tell a neighborhood association president that it’s going to cost them $30 for a copy of their neighborhood covenant,” he said. “That doesn’t seem fair.”

The fees – which range from $11 to $20 per document – are deposited in a perpetuation fund, which the legislature established several years ago to set aside money for technological updates. At the height of the county’s financial crisis in 2003, the County Council tapped into the fund to pay the salaries of about half the recorders’ office staff, an arrangement that has continued.

The money needed to move the recorders’ office documents online come from the perpetuation fund. And McGauley believes that the efficiencies gained by going online may eventually allow the office to become almost completely self-supporting.

Maintaining a healthy perpetuation fund should be a primary goal, and waivers would have to be granted equitably, which could be much more difficult than it sounds. But McGauley is right to ask for some leeway to make the fees fit the technology.

Sen. David Ford, R-Hartford City, who specializes in technology issues, fears that recorders will find it difficult to determine who should receive waivers. He argues that legislators should visit all the issues raised by placing government documents online with the goal of making county systems more uniform and ensuring that documents placed online can’t be altered.

This is Sunshine Week, designated to reflect on the importance of unfettered access to information in a democratic society. Granting citizens better, more immediate access to public information, as McGauley is working to offer, is something more government officials should strive to do. But they must take care not to charge the public unreasonable fees to see it.

My thoughts. (1) Public access can be easily stymied by placing a price on the right. (2) Discretionary waivers are certainly not the answer.

This story from Howard Greninger of the Terre Haute TribStar tells how the president of the League of Women Voters of Vigo County, Bionca Gambill, learned that that "public information is not always within easy grasp." The story tells of efforts to obtain a copy of a pubic emergency preparedness document. A quote:

Gambill sought to obtain a CERP from Sullivan County, in the county’s Emergency Management Agency, or EMA, office in the courthouse.

When she asked if she could have a copy of the document, a man in the room said “no probably not because of terrorism,” and left the room, Gambill said. A woman in the office said they “have 20 copies of the thing,” and reached for a 4-inch, 3-ring white binder with perhaps an inch and a half of papers inside.

The woman then hesitated and told Gambill that she would have to call her boss. She asked for Gambill’s name.

“Well, we just wouldn’t want this to go into an editorial,” Gambill said the woman told her.

Reflecting back, Gambill said, “Well I thought that was interesting that emergency management were more fearful of the power of the press than they were getting this information out to a concerned citizen,” Gambill said. * * *

Gambill is familiar with public records and access to those records as an elected official. She is the Linton Township trustee/assessor in Vigo County. She also serves as president of the Sullivan-Vigo Rural Water Corp.

Getting access to a public document was frustrating, Gambill said, “because I typically have no problem with having questions answered from different agencies or offices. [But when] I was Joe citizen going in there, with no credentials and no authority. It was frustrating knowing that I had every right to this information, but was refused,” she said.

Posted by Marcia Oddi on Wednesday, March 14, 2007
Posted to Indiana Government

Ind. Courts - Still more on: Cameras in trial courtrooms pilot hits snag [Updated]

Updating this report from March 11th, the Evansville Courier & Press has an editorial suggesting "Change the rules: Allow judges to decide." Some quotes:

When the Indiana Supreme Court announced in May that it had agreed to an 18-month test run of cameras in the courtroom, we applauded the decision for bringing a new transparency to the state's court system. * * *

But alas, it has not worked. A key restriction has placed undue limitations on cases that might be selected for cameras.

As a result, reports Emily Udell of The Associated Press in Indianapolis, eight months into the effort, cameras have been allowed in only five cases.

Compare those five cases with the approximately 350 requests for camera access to state courtrooms that have been rejected since the project began in July.

The key restriction allows attorneys for either side in any particular case to veto cameras. According to Udell's report, published Monday in the Courier & Press, it has been criminal defense attorneys in most cases who are declining to give their consent for cameras. They say their clients do not want to be photographed or filmed.

Nearly 20 states require only that the judge approve or reject cameras for any one case, and that is what Indiana should do.

At the minimum, the Indiana Supreme Court needs to alter the guidelines for the remainder of the pilot project, which runs to the end of this year, and let judges decide when to allow cameras in.

Otherwise, Indiana will not have a broad enough base of experience from which to judge whether to continue with cameras in the courtroom. That's especially true considering that only eight judges are participating statewide. They include Superior Court Judge Wayne Trockman of Vanderburgh County and Superior Court Judge Robert Alysworth of Warrick County.

The test project has taught us in a relatively few months that if the decision is left to defense attorneys, Hoosiers will rarely see pictures from inside a courtroom. We know that, so let's move on and find out what the reaction and the result will be if the decision is left to the trial judge.

Other concerns were addressed before the project was launched. Jurors, undercover police, informants, minors and victims of sex crimes would not be shown. Cameras could not be a noisy distraction, and with today's modern equipment, that is not a problem.

This week is Sunshine Week, a national observance of laws that allow citizens greater access to their government. In the spirit of Sunshine Week, we urge the Indiana Supreme Court to give judges the authority to decide when cameras will be permitted, thereby making this pilot project a true test of cameras in the courtroom.

[Updated 3/15/07] The Indianapolis Star has an editorial today urging the Supreme Court "to continue to expand its experiment after it ends in December."

Posted by Marcia Oddi on Wednesday, March 14, 2007
Posted to Indiana Courts

Tuesday, March 13, 2007

Ind. Decisions - More on today's Supreme Court ruling re negligent infliction of emotional distress

Here is the direct video link to the 9/6/06 oral argument before the Supreme Court in Amy Smith v. James Toney , decided today by the Court -- see ILB entry from earlier today. This summary accompanies the oral argument video:

Pursuant to Indiana Appellate Rule 64, the United States District Court for the Southern District of Indiana certified the following questions of Indiana state law for the Indiana Supreme Court’s consideration, which the Indiana Supreme Court accepted on February 22, 2006:

1. Under the test elaborated in Groves v. Taylor [729 N.E.2d 569 (Ind. 2000)] for bringing a bystander claim of negligent infliction of emotional distress, are the temporal and relationship determinations regarding whether a plaintiff “actually witnessed or came on the scene soon after the death of a loved one with a relationship to the plaintiff analogous to a spouse, parent, child, grandparent, grandchild, or sibling” issues of law or fact, or are they mixed questions of law and fact?

2. If an issue of law, is a fiancée an “analogous” relationship as used in Groves and is “soon after the death of a loved one” a matter of time alone or also of circumstances?

Posted by Marcia Oddi on Tuesday, March 13, 2007
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (9):

Daniel Reed v. State of Indiana (NFP)

Daniel M.Butcher v. State of Indiana (NFP)

Francisco Ortiz v. State of Indiana (NFP)

Daniel M.Butcher v. State of Indiana (NFP)

Robert Willoughby v. State of Indiana (NFP)

Ricky Cole v. State of Indiana (NFP)

Andre Echols v. State of Indiana (NFP)

Desmon Catlett v. State of Indiana (NFP)

Carlos Wilson v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 13, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides three today, including one certified question from SD Ind. concerning negligent infliction of emotional distress

In Re The Marriage of Virginia (England) Snow v. Steward England is a 7-page, 5-0 opinion by Chief Justice Shepard:

During their marriage, Steward England and Virginia (England) Snow became guardians of Snow’s grandson from a prior marriage. The parties later divorced, submitting a property settlement agreement, which the trial court incorporated into their dissolution decree.

After the dissolution, England remarried, withdrew as guardian, and sought modification of the decree’s section about payments for the benefit of the grandson. The trial court granted modification, and the Court of Appeals affirmed. We conclude that termination of guardianship was not grounds for modifying the dissolution decree. * * *

[W]e hold that when a relationship of in loco parentis exists, that status alone is an insufficient basis for imposing a child support obligation on the stand-in parent. * * *

[W]hether the contract provision entitled “Child Support” is characterized as maintenance, child support, or disposition of property, the termination of guardianship has little practical effect. Given the facts and the decree before us, termination of guardianship is not a basis for modifying the dissolution decree.

Conclusion Because England cannot prevail under any interpretation of the decree, we reverse the order of modification and direct the trial court to grant Snow’s motion to dismiss.

In Amy Smith v. James M. Toney and John Christner Trucking Co. Inc., an 11-page opinion on a certified question (including a two-justice concurring opinion), Justice Boehm writes:
Indiana law allows a claim for negligent infliction of emotional distress under some limited circumstances even if the plaintiff has suffered no physical injury or impact as a result of the defendant’s negligence. We hold today that although a spouse may assert such a claim of negligent infliction of emotional distress a fiancée may not. We also hold that such a claim requires that the plaintiff have learned of the incident by having witnessed the injury or the immediate gruesome aftermath. * * *

In summary, we find that (1) the temporal and relationship determinations under Groves are questions of law; (2) a fiancée is not “analogous to a spouse” under Groves; and (3) “soon after the death of a loved one” is a matter of both time and circumstances.

Shepard, C.J., and Dickson, J., concur. Sullivan, J., concurs in result with separate opinion in which Rucker, J., concurs.

I agree that Eli Welch, the plaintiff Amy Smith’s fiancé, was not in a “relationship to the plaintiff analogous to a spouse” and therefore is not entitled to recover under our Groves v. Taylor precedent. As a couple engaged to be married, their relationship had not been legally established by license or ceremony nor was it one of long duration marked by the financial interdependence, intimacy, and other characteristics of the spousal relationship. The majority opinion makes clear that Welch and Smith were not involved in a cohabiting but unmarried relationship. As such, its comments with respect to relationships other than the fiancé-fiancée relationship at issue here are unnecessary to the decision in this case and therefore not precedential.

[ILB note: Reviewing page 7 of the opinion, an unmentioned "elephant in the room" may be same-sex couples.]

In Frankie Salyers v. State of Indiana, an 8-page opinion (dissent beginning on p. 7), Justice Boehm writes:

Frankie Allen Salyers pleaded guilty but mentally ill to the charge of murder for the kill-ing of Goshen City Police Officer Thomas Goodwin. The trial court sentenced Salyers to life without parole. We affirm. * * * Nothing about the nature of the offense or Salyers’s character leads us to find that Salyers’s sentence is inappropriate. * * *

Shepard, C.J., and Dickson and Rucker, JJ., concur. Sullivan, J., dissents with separate opinion [that begins]: The Court here exercises its authority under Article VII, § 4, of the Indiana Constitution and Indiana Appellate Rule 7(B) to review Salyers’s sentence but concludes that life without possibility of parole imposed by the trial court is appropriate. I respectfully disagree.

Posted by Marcia Oddi on Tuesday, March 13, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Evansville lawyer sentenced in misdemeanor case

Kate Braser of the Evansville Courier & Press reports today:

An Evansville attorney was sentenced this week on a misdemeanor charge filed in April after he was found leaving a home where a meth lab was found.

Brad Happe, of 4619 New Harmony Road, was ordered to attend a treatment program. He must appear in misdemeanor court June 14 for a judge to review his progress. Happe pleaded guilty in August.

Posted by Marcia Oddi on Tuesday, March 13, 2007
Posted to Indiana Courts

Ind. Decisions - "Indiana Supreme Court to hear cell tower dispute"

The Supreme Court transfer list from Feb. 23, 2007 notes that the Court has granted transfer in the case of St. Charles Tower, Inc. v. Board of Zoning Appeals of Evansville-Vanderburgh County.

Tom Raithel of the Evansville Courier & Press reports on the story today, Some quotes:

The court has thrown out an appeals court decision in favor St. Charles Tower, Inc., a Missouri-based company that seeks to build the tower the 185-foot tower. Instead the court has granted the request of the Vanderburgh County Board of Zoning Appeals to hear the case. The court will listen to oral arguments by the attorneys on May 3.

The decision is the latest development in a two-year-old battle. St. Charles Tower originally asked the Board of Zoning Appeals in May 2005 to grant it a special-use permit and a variance that were required to build the tower.

After hearing complaints from several neighbors, the board turned down the request for the special-use permit. Some of the neighbors cited a city ordinance that prohibits a tower from being built within 300 feet of a home, or within 2 feet for every one foot of tower height, whichever is greater.

The board never acted on the variance, since that became a moot point when the special-use permit was denied.

St. Charles took the matter to court, where Vanderburgh Circuit Court Judge Carl Heldt upheld the Board of Appeals’ decision.

St. Charles then appealed to the Court of Appeals of Indiana. This court ruled in a 2-to-1 decision in October in favor of St. Charles.

The appeals court said that board should not have considered the local ordinance in its decision on the special-use permit. However, it left open the possibility that the ordinance should have been considered in granting the company a variance, which it also needed to build the tower.

The Supreme Court’s decision to hear the case throws out the earlier decision by the Court of Appeals, said Joseph Harrison, Jr., an attorney representing the Board.

Here is a list of earlier ILB entries referecning cell towers.

Posted by Marcia Oddi on Tuesday, March 13, 2007
Posted to Ind. Sup.Ct. Decisions

Courts - U.S. Relieves Immigration Judge of Duties in Courtroom

This Oct. 9, 2006 ILB entry begins:

On August 10, 2006 the ILB had a long entry headed "DOJ moves to improve immigration judges, after months of criticism," pulling together several years worth of criticism of immigration judges' decisions by judges on the 7th Circuit, along with other materials.
The entry then quotes a NY Times story which singled out the conduct of a specific immigation judge.

Today Nina Bernstein reports in the NY Times> that the judge, Jeffrey S. Chase, has been relieved of his duties, as have a number of others in recent months. Some quotes:

An immigration judge in New York who has been repeatedly rebuked by federal appeals judges for his hostile questioning of asylum-seekers was relieved of courtroom duties yesterday and reassigned to a desk job, lawyers and a union official said.

The judge, Jeffrey S. Chase, has been portrayed by supporters and even by some of his critics as a scapegoat in an escalating battle between the Justice Department, which employs immigration judges, and federal circuit courts around the country.

The circuit courts have been overwhelmed with asylum appeals since the Bush administration curtailed an internal immigration appeals process, and have complained of a pattern of biased and incoherent decisions and bullying conduct by immigration judges, who are not part of the independent federal judiciary.

A spokesman for the Justice Department would neither confirm nor deny Judge Chase’s reassignment, calling it “a personnel matter” covered by privacy laws. But the spokesman, Charles S. Miller, said that 11 of the nation’s roughly 215 immigration judges had been temporarily suspended from courtroom duties since June, “based on concerns about how they were conducting immigration proceedings.” Some have since returned to the bench, he said.

Last month, the Court of Appeals for the Second Circuit, in Manhattan, took the unusual step of recommending that the Board of Immigration Appeals, a Justice Department internal review panel, scrutinize all Judge Chase’s decisions pending on appeal.

It was the latest sign of impatience from the appeals courts. In response to the mounting pressure, Attorney General Alberto R. Gonzales warned immigration judges last August that they all faced annual performance evaluations for the first time and regular oversight to detect high reversal rates, frequent complaints or unusual backlogs. * * *

Judge Chase’s trajectory has been a cautionary tale of how those unable to accept the system’s deficiencies can lose their judicial bearings.

Before his 1995 appointment, he was chairman of the American Immigration Lawyers Association’s National Asylum Reform Task Force. He rallied on behalf of people from China seeking asylum.

But before long, incredulous tirades became his trademark in many Chinese asylum cases, according to court records and interviews with a dozen lawyers. Openly frustrated with a pattern of boilerplate claims that he suspected had been concocted by smugglers, he adopted “an inquisitorial mode,” said Thomas V. Masucci, a lawyer who represented many Chinese asylum-seekers in his court.

The tables turned after appeals reached federal court last year. In scathing decisions, the court rebuked Judge Chase for “pervasive bias and hostility,” “combative and insulting language,” and remarks “implying that any asylum claim based on China’s coercive family planning policies would be presumed incredible.”

Mr. Lobel described the judge as devastated after a stinging Second Circuit decision was published last year in The New York Law Journal. “He said, ‘I learned my lesson, but some of these cases are still in the pipeline,’ ” Mr. Lobel said then.

The recommendation that all such cases be reviewed came in a Feb. 21 ruling in which the Second Circuit overturned Judge Chase’s decision to deny asylum to Aboubacar Ba, a Mauritania native, in 2004, and to find his application for asylum “frivolous.” [ILB - see link below]

Not only did Judge Chase’s decision show “a plethora of errors and omissions,” the court said, but his tone during the hearing was unacceptable.

The panel pointed to a ”disturbing” incident in which the judge appeared to tread on lawyer-client privilege when he asked Mr. Ba if he had lied to his lawyer: “Yes or no?”

“’It is inconceivable,” the panel wrote, that Judge Chase, “as a judge and lawyer, would not know the impropriety of that question.”

Here is a copy of the 2/21/07, 4-page, 2nd Circuit opinion in Aboubacar Ba v. Gonzales.

Posted by Marcia Oddi on Tuesday, March 13, 2007
Posted to Courts in general

Ind. Decisions - Spencer County adult business ordered to close

Kate Braser of the Evansville Courier & Press reports today:

After more than a year of a court battle between Spencer County and an adult entertainment business the county wanted to shut down, Spencer County Circuit Court Judge Wayne Roell ruled in the county's favor. * * *

The dispute began in the fall of 2005 when the Adult Plaza opened at the site of a former truck stop at the U.S. 231/Interstate 64 interchange in Spencer County.

The plaza sits on the border between Spencer and Dubois counties. From the start, many people in both counties said it wasn't a good fit for the community.

Officials have said the exotic dancers and porn shop failed to fit in with the county's family friendly appeal that includes Holiday World and Splashin' Safari theme parks, the Christmas-themed town of Santa Claus and Lincoln State Park.

While Spencer County officials argued the business would cause increased crime and said it opened without filing proper permits, Dubois County officials helped coordinate a community rally against the business.

In May, more than 300 people attended a protest in Huntingburg, Ind., that raised money to help pay legal fees to fight the business.

Throughout the case, attorneys representing Adult Plaza argued the county's zoning ordinance barring adult businesses from operating within 1,000 feet of churches, schools and residences is unconstitutional.

In his ruling, Roell rejected that claim, writing, "Adult businesses have not been denied a reasonable opportunity to open and operate. The regulations restricting operations within 1,000 feet of a residence are valid."

The case was fought in part by nationally known attorneys on both sides. Owners of the Adult Plaza hired H. Louis Sirkin, a Cincinnati lawyer considered one of the most experienced obscenity trial attorneys in the country.

Spencer County retained lawyer Scott Bergthold of Chattanooga, Tenn., along with Wetherill and county attorney Francis Lueken. Bergthold has helped many communities write laws regulating adult businesses.

Wetherill said county officials are monitoring the business to make sure owners comply with the court order to shut down.

While the court decision forces the adult entertainment center's main building and convenience store building to close immediately, an adult motel on the same property likely will remain open until an upcoming hearing, Wetherill said.

"We don't have any indication they are going to be appealing, but it wouldn't surprise me if they did," he said.

A Jan. 16, 2006 ILB entry quoted from an AP story headlined "Adult business dispute draws top lawyers to fight in Spencer".

An interesting earlier story by Kate Braser, quoted in this July 9, 2006 ILB entry, talks about how "[i]ncreasingly, small, rural counties that border major interstates are finding themselves home to adult-oriented businesses." The story also reported:

Fighting the adult entertainment industry in court can be costly for small counties. To date, Spencer County has appropriated $70,000 for the case, said Sara Arnold, county auditor.
The ILB is trying to obtain a copy of Judge Roell's opinion to post here.

Posted by Marcia Oddi on Tuesday, March 13, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "Candidate who checked wrong box is out"

A story today in the Indianapolis Star reports:

Carmel -- A candidate for the City Council was booted from the Republican Party's May primary ballot because he checked the wrong box about his voting history on an election form.

The Hamilton County Election Board voted 2-1 to remove Larry A. Fritz, leaving incumbent Councilman Rick Sharp unopposed in the GOP primary for City Council District 1. * * *

"This was an honest mistake. My name is correct on the form, and I live where it says I live. We didn't set out to deceive anybody," Fritz said. * * *

Fritz registered to vote in October, in time to vote in the November general election. He has not voted in a Republican Party primary, which is one of the key sources of confirmation that a candidate is a member of the party in which he is running for nomination.

A box on his form was checked on the line reading: "The most recent primary election in which I voted was the primary held by the party with which I claim affiliation. . . . "

Fritz said he should have checked the next line that reads: "I have never voted in a primary election, and claim an affiliation with the party indicated above."

The [Hamilton County] Election Board, which met Friday, wouldn't allow him to file an amended declaration of his candidacy. The deadline for those filings was Feb. 23.

See also this Feb. 1, 2007 ILB entry, which begins:
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:
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.

Posted by Marcia Oddi on Tuesday, March 13, 2007
Posted to Indiana Government

Ind. Decisions - Petition to transfer in trade secrets case pending before the Supreme Court

According to this column by business writer John Ketzenberger in today's Indianapolis Star:

Harmony B. Wigley died Aug. 7, 2001, when her car went out of control on I-69 in Hamilton County. The lawsuit her family filed against tire maker Bridgestone is before the Indiana Supreme Court -- but not for the reason you would think.

The question to be decided by Indiana's top court: whether Bridgestone can protect the formula for a rubber compound as a trade secret.

Amid the lawyers arguing the case are two for the Indiana Legal Foundation, a pro- business group established by Harry Ice nearly 30 years ago. It's typical of the foundation's cases, said Jon Laramore, one of the attorneys in the case. "This is not a glamorous case that would make the front page," Laramore said. "But the issue is of importance to business and the community at large."

Laramore worked closely with Eli Lilly and Co. and Zimmer Holdings, which have many trade secrets they want to shelter.

Indiana law protects trade secrets, but the companies worry the information-gathering process during lawsuits could give away those secrets.

The August 31, 2006 Court of Appeals decision in the case, Bridgestone Americas Holding Inc., et al v. Violet Mayberry, et al, is available here. The ILB summary at the time of the opinion by Judge Najam was:
Bridgestone Americas Holding Inc., Bridgestone/Firestone, Inc., Bridgestone/Firestone North American Tire, LLC, and Bridgestone/Firestone Manufacturing Operations Division (collectively “Bridgestone”) bring this interlocutory appeal to challenge the trial court’s order compelling discovery of Bridgestone’s highly proprietary skim stock formula. [ILB -see order below] Bridgestone presents three issues for our review, which we consolidate and restate as whether the trial court abused its discretion when it ordered Bridgestone to disclose its skim stock formula. We affirm. * * *

To convince us that the trial court abused its discretion, Bridgestone must demonstrate that the trial court’s conclusion is against the logic and natural inferences that can be drawn from the facts and circumstances before the court. See Stuff, 838 N.E.2d at 1099. Bridgestone has not met this burden on appeal. Therefore, we cannot say that the trial court abused its discretion when it fashioned a narrowly tailored protective order under Rule 26(C)(7) and compelled Bridgestone to disclose its skim stock formula.

The trial court order at issue, as quoted in the CA opinion, p. 3, reads:
[T]he Defendant has argued that the “[skim stock]” information is a confidential or secret formula, which the Defendant protects from its competitors. Plaintiff has argued that such information is necessary in the effective preparation and presentation of its case. The Court finds that after considering all of the evidence and arguments of counsel, that the Defendant has failed to establish why [its skim stock formula] should not be made available as part of the discovery process.

In light of the fact that the Court has denied the request for a sharing protective order and the Court’s intent to severely restrict the present order, said information is not to be shared with any person not directly an employee, litigant or expert employed by the parties. Furthermore, no expert consulted by or employed by Plaintiff shall be permitted to retain, disseminate or otherwise utilize such discovery material on behalf of any other person, entity or group other than Plaintiff. Any violation will be treated as a serious matter subjecting that person to potential severe punishment for contempt of court.

A check of the docket shows that although a transfer petition is pending, the Supreme Court has not yet acted on the petition.

Posted by Marcia Oddi on Tuesday, March 13, 2007
Posted to Ind. Sup.Ct. Decisions

Monday, March 12, 2007

Ind. Courts - Knox County Circuit Court judge featured

Sherry L. Biddinger Gregg, Knox County Circuit Court judge and the first female judge in Knox County, was first elected in 1998, according to this story today in the Vincennes Sun-Commercial (reqistration required). A few quotes from the story:

Gregg said when she first started on the bench, attorneys would sit back and watch how she handled things.

“I don't think that was just because I was a woman, but also because I was a brand new judge,” said Gregg. “People would also try to push harder to see how far they can get on their cases.”

She said for the most part people were respectful to her, event those on trial.

Being a judge is everything Gregg thought it would be, even after eight years on the bench.

“It's a different challenge every day and there are no two cases alike,” she said. “I look forward to coming to work everyday. I'm in a position that, even though I have to make real tough decisions, I feel I can help people resolve their differences.”

Though Gregg has a busy court life, including serving on committees of the Indiana Judicial Center, the Indiana Supreme Court and as faculty at judicial conferences, her number one priority is being a mom.

Posted by Marcia Oddi on Monday, March 12, 2007
Posted to Indiana Courts

Ind. Decisions - Two today from 7th Circuit

USA v. Shearer, Kenneth (ND Ind., William C. Lee, Judge), a 10-page opinion, Judge Flam writes:

On August 12, 2004, we affirmed his conviction but vacated his original sentence in light of United States v. Booker, 375 F.3d 508 (7th Cir. 2004). See United States v. Shearer, 379 F.3d 453, 456-57 (7th Cir. 2004). On remand, the district court sentenced Shearer to seventy months’ imprisonment on Counts 1, 3, and 4, and a concurrent sixty-month sentence on Count 2. For the following reasons, the Court affirms Shearer’s sentence.
In Patton, Michael v. MFS/Sun Life (SD Ind., Larry J. McKinney, Chief Judge), a 28-page opinion, Judge Cudahy writes:
When Michael Patton seriously injured his knee, his doctors concluded that he was no longer able to perform his job as a truck driver for Pac- Van, Inc. Patton presented a claim for long-term disability benefits to the administrator of Pac-Van’s employee benefits plan, MFS/Sun Life Financial Distributors, Inc. Sun Life initially approved Patton’s benefits, but discontinued them a year later. It found him able to perform his job in light of his training for an even more physically stressful career as a paramedic and a bizarre series of contradictory letters from his orthopedic specialist, first claiming that Patton was unable to work, then indicating he was, then finally reversing course again and indicating that he was unable to work. Patton sued for the discontinued benefits under the Employee Retirement Income Security Act. The district court limited its review to Sun Life’s administrative record and denied Patton’s motion to permit discovery and the introduction of new evidence. Sun Life moved for summary judgment and the district court granted the motion. Patton now appeals the grant of summary judgment and the denial of his motion for discovery. We reverse. * * *

For the foregoing reasons we reverse the grant of Sun Life’s motion for summary judgment and reverse the denial of Patton’s motion to reopen discovery. On remand, the district court should at least hear additional evidence from Dr. Ambrose on the nature and basis of his diagnosis and the cause of his confusing series of communications to Sun Life. The court may also, in its discretion, permit or disallow the introduction of other additional evidence.

Posted by Marcia Oddi on Monday, March 12, 2007
Posted to Ind. (7th Cir.) Decisions

Not law but interesting - MIT free courses online

The MIT OpenCourseWare program has been available for about four years now. This Reuters story gives a good overview:

BOSTON (Reuters) - The Massachusetts Institute of Technology will become by year's end the first U.S. university to offer all of its roughly 1,800 courses free on the Internet, a school official said on Friday.

"We started this project because MIT believes that one of the best ways to advance education around the world is through the Internet," said Anne Margulies, head of online curriculum.

Online students will not be able to earn an MIT degree or have contact with faculty at the university, located across the river from Boston in Cambridge, Massachusetts.

MIT launched its "OpenCourseWare" program in 2003 and already offers hundreds of courses online. A small number of other U.S. schools are following suit. Stanford put some classes on line last year and Bryn Mawr plans to do so soon.

Last month, 1.5 million users went to the MIT course site, sampling offerings like Cognitive Robotics, Inventions and Patents, and Superconducting Magnets.

Most users -- 60 percent come from outside the United States -- gravitate toward the subjects MIT is best-known for: computer science, physics and mathematics, Margulies said.

Even MIT students who pay thousands of dollars in tuition fees for each course use the free online service to study for exams or sample what courses they may want to take on campus, Margulies said.

I have accessed the courseware offerings frequently. The range and depth is exhaustive. The quality of "sharing" varies, however. Many courses offer online audio or video lectures, online coursebooks, etc. A few, however, limit themselves to a copy of the syllabus or course calendar, or a copy of the reading list (with references available only in a large universtiy library), which is more than a little disappointing. But overall, this is a wonderful resource for the bright student anywhere who is in an unchallenging or resource-poor educational situation. Read some endorsements here.

Posted by Marcia Oddi on Monday, March 12, 2007
Posted to General News

Ind. Law - "Professionals on the Move"

The NWI Times column, "Professionals on the Move," had this item Sunday:

Vernon Petri, a former resident of East Chicago, was recently honored by Indiana Super Lawyers, a publication of law and politics distributed in association with Indianapolis Monthly magazine which lists is limited to 5 percent of Indiana lawyers. The purpose of the list, according to the Super Lawyers publication is "to create a list useful to consumers of legal services."

Posted by Marcia Oddi on Monday, March 12, 2007
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In In Re: J.K., Stephen M. Lafary and Karen S. Lafary v. Jessie D. Kindred and Dawn R. Kindred , a 16-page opinion, with a dissent beginning on p. 13, Judge Sharpnack writes:

Stephen M. Lafary and Karen S. Lafary appeal the trial court’s termination of their guardianship over their granddaughter, J.K. [The issue] is whether the trial court abused its discretion by terminating their guardianship of J.K. We affirm. * * *

The trial court originally granted the guardianship because of “divorce filings, drug issues, criminal cases and instability facing the parents and the child.” The trial court concluded that the circumstances warranting the guardianship had changed and that the guardianship should now be terminated. We cannot say that the Lafarys proved by clear and convincing evidence that the guardianship should continue. * * *

SULLIVAN, J. concurs CRONE, J. dissents with separate opinion [which begins]: I agree with the Lafarys that “where, as here, a parent files a petition to terminate a nonparent’s guardianship over a child, the burden of proving that a guardianship is no longer necessary should rest with the parent.” Slip op. at 8 (citing Harris, 149 Ind. App. 512, 273 N.E.2d 779). Therefore, I respectfully dissent. * * *

It is true, as the majority observes, that the court in Harris cited no authority in stating that the natural father had the burden of establishing that the guardianship should be terminated. 149 Ind. App. at 518, 273 N.E.2d at 782.5 Nonetheless, I believe that Harris is correct and reflects a better understanding of practice and procedure than subsequent cases on this topic. Based on the foregoing, I believe that we should reverse and remand for a hearing on the Kindreds’ petition for terminating the Lafarys’ guardianship in which the Kindreds bear the burden of establishing that the guardianship is no longer necessary.

[ILB note: Harris v. Johnson, 149 Ind. App. 512, 273 N.E.2d 779 (1971)]

In State Farm Mutual Auto Insurance Co. v. D.L.B., and Deana H. Brake, a 16-page opinion, with a dissent beginning on p. 12, Judge Riley writes:
Appellants-Defendants, State Farm Mut. Auto. Ins. Co. (State Farm), appeals the trial court’s grant of Summary Judgment in favor of Appellee-Plaintiff, D.L.B., a minor child by his parent and natural guardian, Deana H. Brake, finding that D.L.B. was entitled to judgment as a matter of law because D.L.B.’s negligent infliction of emotional distress claim, which arose from witnessing his cousin Seth Baker’s (Seth) deadly injuries, is subject to the “each person” limit of liability, separate and distinct from the “each person” limit of liability paid to Seth’s parents. We reverse and remand for further proceedings.

[Issue] Whether State Farm’s policy confines D.L.B.’s negligent infliction of emotional distress claim to a single “each person” limit of liability, which is not independent and separate from the “each person” limit of liability paid to Seth’s parents. * * *

[W]e hold that the definition of bodily injury in State Farm’s policy includes negligent infliction of emotional distress when accompanied by physical manifestations of that distress. We also hold that D.L.B.’s injuries were sustained as a result of his direct involvement in the accident. Thus, D.L.B.’s negligent infliction of emotional distress claim is subject only to the “each accident” limit of liability. Reversed and remanded for further proceedings.

VAIDIK, J., concurs. DARDEN, J., dissents with separate opinion [which begins]: I would respectfully dissent. I believe that the only issue we must consider is whether State Farm’s insurance policy covers the claim asserted on behalf of D.L.B. against Wallace. As such, only the language of State Farm’s policy and Indiana law on contract interpretation should govern. Therefore, I find the United States Court of Appeals for the Seventh Circuit’s opinion in Allstate Ins. Co. v. Tozer, 392 F.3d 950 (7th Cir. 2004) particularly instructive.

[ILB note] Judge Riley also wrote the Jan. 9, 2007 majority opinion in Austin Elliot, et al v. Allstate Insurance Co., in which J. Kirsch concurred and J. Friedlander wrote a dissent including "I believe Tozer was correctly decided on this point and would apply it here," while the majority, in a footnote on p. 11, expressly declined to follow Tozer: "Because the trial court in the instant case relied on Tozer, we find it noteworthy to expressly decline to follow the Seventh Circuit as we conclude that Jakupko reaches the better result."

[Here is a link to the Court of Appeals opinion in Jukupko: State Farm Mutual Automobile Insurance Co. v. Patricia Jakupko, et al (Ct.App. 11/17/06)]

For more see these ILB entries from Jan. 9, 2007 and Dec. 20, 2006

As of today (3/12/07), a number of amicus briefs have been filed in Jakupko, but it has not been set for oral argument.

NFP civil opinions today (0):

NFP criminal opinions today (5):

Claude David Schwartz v. State of Indiana (NFP)

Jessica Bowling v. State of Indiana (NFP)

Jack Reynolds v. State of Indiana (NFP)

Larry Shawn Martin v. State of Indiana (NFP)

Terri Sanders v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 12, 2007
Posted to Ind. App.Ct. Decisions

Sunday, March 11, 2007

Law - Anna Nicole Smith bankruptcy and estate issues become law school case studies

The legal aspects of Anna Nicole Smith's sad life have been incorporated into law school studies, according to the AP story by Jessica Gresko. A few quotes:

Even before her death last month, Smith was a case study for students of estate law. Her lengthy, widely publicized court feud with the family of her late husband, Texas oil tycoon J. Howard Marshall II, over his estate landed them in at least one widely used textbook, "Wills, Trusts and Estates."

Now, because of a poorly drafted will and the courtroom fights over her burial and custody of her infant daughter, law professors are finding her troubles can again serve as an example to students. * * *

Susan French, a law professor at the University of California, Los Angeles * * * assigned Smith's will as reading material and discussed it in class.

French and other professors said Smith's case brings up good points for discussion and touches on issues covered by their classes.

For example, what happens if children are born after a will is written, as Smith's infant daughter was? What happens if a beneficiary dies before the will's creator, as Smith's son did?

One clause, in which Smith appears to disinherit future spouses and children, is particularly intriguing for law classes. It's something a man would write if he might have illegitimate children, professors said. Why would it be in Smith's will? Was she an egg donor? Did she give a baby up for adoption? Or, was it just language carelessly copied from a template?

Smith's will also illustrates one common flaw, that many wills don't include a contingency plan, said Stephen Urice, a professor of trusts and estates at the University of Miami.

Urice's students also read Smith's will and discussed its flaws in class.

"It was enormously helpful," student Lou Mandarini of the classroom critiquing of Smith's will.

Posted by Marcia Oddi on Sunday, March 11, 2007
Posted to General Law Related

Ind. Courts - More on: Cameras in trial courtrooms pilot hits snag

The Fort Wayne News-Sentinel is carrying an AP story by Emily Udell, headlined "Courtroom camera effort stalls." This follows on an earlier Journal Gazette editorial, blogged in this Feb. 16th ILB entry. Today's story begins:

INDIANAPOLIS - A pilot project to allow cameras into Indiana civil and criminal courts has stalled eight months into the effort, with only a few broadcasters gaining access to the courtrooms the project was intended to open.

Only five cases have been recorded since the program's July 2006 launch, and some access proponents worry there won't be enough cases to evaluate by the project's Dec. 31 conclusion.

Coordinators attribute the low participation to the fact that the program requires written consent from all parties involved in a case, including attorneys on both sides. In January, the Indiana Broadcasters Association sent a letter to the Indiana Supreme Court, asking that the program be amended so the judge has sole discretion in deciding to let the media film court proceedings.

Most states allow cameras some level of access to courtrooms. Nearly 20 states require only the judge's consent, said Dan Byron, general counsel for the Indiana Broadcasters Association.

"For this to be a fair test, the Supreme Court is going to have to hand down an order that will take the attorneys and prosecutors out of the loop," said Randy Wheeler, news director at WIKY in Evansville and media pool coordinator for Vanderburgh and Warrick counties.

Approximately 350 requests for media access to state courtrooms have been rejected since the project began, Byron said. In most cases, criminal defense attorneys said their clients did not want to be photographed or filmed.

"The project proposed by broadcasters was really restrictive, in fact, more restrictive than most states," said David Remondini, an Indiana Supreme Court spokesman and liaison for the program. "I knew it was not going to be an easy sell."

Remondini declined to comment on when the court would respond to the broadcast group's letter.

Posted by Marcia Oddi on Sunday, March 11, 2007
Posted to Indiana Courts

Law - Marking the 40th anniversary of the Loving vs. Virginia decision

The Chicago Tribune today has a long story by Kayce T. Ataiyero and Bonnie Miller Rubin, headined "A cultural taboo fades: Ruling altered mind-set on interracial marriage," marking the 40th anniversary of the Loving vs. Virginia decision. It begins:

When Mary Hughes, a white woman from Minnesota, married her husband Millard, a black man from Houston, she knew they would have to make compromises to navigate a society still largely segregated in 1965. A simple road trip to an Ohio wedding became a delicate dance to avoid stopping in Indiana, a state that banned such unions.

Today, the Homewood couple have traveled all over the country, a freedom afforded to them by a landmark Supreme Court case that 40 years ago this summer repealed state bans on interracial marriages. Suddenly, those trips got a whole lot safer.

"I read about [the case] in Time magazine and I thought OK, the United States is finally getting it," Hughes said, recalling how she reacted to the 1967 high court decision. "This whole idea that people of different races couldn't be married, it should not have been an issue."

Affirming the right to love and marry without regard to race swept aside one of the last vestiges of state-sanctioned segregation.

The story notes that '[W]hen the daughter of Secretary of State Dean Rusk married a black man in 1967, the private decision was considered so politically risky that Time magazine gave it cover treatment."

The comparisons with today's fight for gay marriage and civil unions is inescapeable. According to the story, "Brian Powell, a sociology professor at Indiana University" who "interviewed 1,500 Americans on gay marriage, [said that] opponents sounded 'eerily similar' to those who once justified laws that banned race mixing."

Posted by Marcia Oddi on Sunday, March 11, 2007
Posted to General Law Related

Ind. Courts - The floor is falling, the floor is falling!

A Bluffton New-Banner report from March 9 picks up on a story we evidently missed. Picking up in mid-stream:

The area has been a subject of discussion since a Feb. 12 special meeting to address an area of sagging floor and a growing vertical crack along an interior wall in the Law Library.

The Law Library area on third floor consists of two rooms in the northwest corner of the Courthouse. It is located behind Wells Circuit Court.

The area had a combination of 21 heavy, fire-resistant file cabinets, numerous other file cabinets and a large number of old law books, many obsolete.

Total weight of the area is estimated at about 50 tons — 100,000 pounds.

Courthouse Custodian Bobbie Studebaker briefed the commissioners on progress of lightening or repositioning the weight of the library area.

The fire-resistant file cabinets, each weighing about 2,800 pounds when full, have been moved over load-bearing walls of the Courthouse.

Geoff Franks's story reports that:
Analysis of the sagging floor of the third-floor Law Library at the Wells County Courthouse has been put on hold for a couple more weeks. * * *

At their meeting this week, the commissioners also received some additional background information regarding the Courthouse building’s structural capacity from a longtime observer of the building.

Local architect and County Historian Craig Leonard stopped by with information from a study that he conducted in the 1970s of the historic building, which was completed in 1891.

He indicated that the sturdy structural system of the Courthouse consists of masonry vaults between the webs of steel beams.

Original specifications for the building are included in an old book located in the Auditor’s Office, he said.

Leonard also provided a copy of a 1977 letter from County Highway Engineer Larry Owen regarding load capacities of the beams in the Courthouse attic floor.

Employees using the Law Library have noticed some additional, lesser floor problems in another part of the area since the heavy file cabinets were moved, Studebaker reported.

Several hundred old law books had been removed from the Law Library recently to allow room for the movers. * * *

The county plans to send the obsolete books to recycling facilities [ILB emphasis]. Officials believe they can eliminate about 15 tons of weight by removal of the obsolete books.

Posted by Marcia Oddi on Sunday, March 11, 2007
Posted to Indiana Courts

Law - "What to make of those astronomical Supreme Court signing bonuses?"

Dahlia Lithwick of Slate has a story this weekend that made my jaw drop, even though I have been following the stories about the $160,000 salaries now being paid to first-year associates in top-tier New York firms. Some quotes, but I suggest you read the long and totally interesting story in full:

Later this spring, elite law firms will again be offering Supreme Court law clerks signing bonuses of $200,000 (last year's rate) or even more for their first jobs as practicing lawyers.

That will be $200,000 on top of a starting salary of $145,000 to $160,000. Which adds up to an awful lot of Pottery Barn sectional furniture for someone who is, on average, 26 years old and just two years out of school. As Chief Justice John Roberts pointed out recently, that $360,000 beats the heck out of the $212,100 he's taking home for, well, chief justice-ing the entire nation. * * *

These enormous signing bonuses have also spawned a bizarre collision of two ethical rules. The Supreme Court's Rule 7 bars any former clerk from participating "in any professional capacity in any case" before the High Court for two years after they leave. That includes helping or advising their firms on upcoming cases before the court. Thus, the specific expertise for which they were hired is on ice for two years.

On the other hand, and perhaps merely coincidentally, two years seems to have become the unofficial number for the young associates themselves, many of whom agree informally that if they stick around the law firm for that period of time, they can't be accused of having taken the money and run. They'll have fulfilled an ethical obligation.

In fact, the big bonuses create an enormous incentive for young Supreme Court clerks to, well, take the money and run. After two years in private practice, they can pay down or even pay off their law school debts and leave the firm holding the bag. Carter Phillips concedes that the huge bonuses have undermined what he calls a "natural sorting process," wherein some former clerks once naturally gravitated to government service, and others left the court for academia.

Posted by Marcia Oddi on Sunday, March 11, 2007
Posted to General Law Related

Ind. Courts - Proposed increase in court fees would be earmarked for a spinal cord and brain injury research fund

Niki Kelly of the Fort Wayne Journal Gazette reports today on language tucked away in the budget bill passed by the House:

INDIANAPOLIS – You got caught speeding and now must pay the price.

In addition to a basic fine, Hoosiers must cough up $70 in court costs. Then a $2 jury fee. And a $7 record-keeping fee. And $3 for public defenders. A $2 DNA sample processing fee. Then a $16 judicial salaries fee.

By the time everything is added up, average motorists are paying nearly $110 in court costs and fees for any basic traffic infraction.

And tucked away in the House-passed version of the state budget – now in the Senate’s hands – is an additional $18 fee to be added on to 27 moving violations – from running a red light to improper passing and speeding.

This time, though, the money won’t go toward running the judicial system. Instead, the millions of dollars generated statewide would be earmarked for a spinal cord and brain injury research fund.

Rep. Carolene Mays, D-Indianapolis, introduced a bill this year to set up a registry tracking these injuries as well as a research fund.

Instead, House leaders inserted the language into the budget to pay for it via a fee increase.

According to the Legislative Services Agency, more than a million Hoosiers were found guilty of one of the specified motor vehicle operating violations in 2006. Assuming the numbers remain consistent, that means the $18 fee could bring in $19.1 million a year for the spinal cord and brain injury fund. * * *

Senate Appropriations Chairman Robert Meeks, R-LaGrange – who is reviewing the House budget and crafting the Senate’s own version – concedes the state is already involved in medical research via its research universities.

But using the court system to collect money is a bit unusual.

“I’m not normally in favor of raising court costs unless it’s to support the judicial system,” Meeks said. “It’s not that it’s not a good cause, but if it’s a good cause we have to find a different way of funding it.”

The fees are just one of dozens of bargaining chips within the proposed state budget – a two-year, $26 billion spending plan.

In recent years, lawmakers have leaned heavily on fees. Since 2000, courts costs and fees for an infraction have grown more than 50 percent. With the additional $18 fee, that growth would reach more than 80 percent.

Meeks is concerned that if legislators go to the same well too many times, a disgruntled citizen might challenge the whole system.

“Those are supposed to be used for adjudication of the court costs of the ticket,” he said. “If someone would challenge those, which may or may not happen, we may run the risk of losing all of them.”

The story does not indicate that any representatives of the judiciary were contacted for comment. A side-bar priovides "a breakdown of fees collected by county clerks for infractions, such as speeding tickets and other moving violations":
$70 – Court costs
$3 – Law enforcement continuing education fee
$2 – Jury fee
$2 – Document storage fee
$7 – Automated record-keeping fee
$3 – Public defense administration fee
$1 – Judicial insurance adjustment fee
$16 – Judicial salaries fee
$2 – DNA sample processing fee
$3 – Court administration fee
50 cents – Highway work zone fee
Total: $109.50 (this is in addition to any fine the infraction might carry based on the discretion of the judge)

Posted by Marcia Oddi on Sunday, March 11, 2007
Posted to Indiana Courts

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. This week's report begins:

Indiana lawmakers could get an earful this week about Gov. Mitch Daniels' privatized tollway proposal for funding Interstate 69 construction.

And organizers of a Statehouse rally hope to get lawmakers to revisit a cigarette tax increase to fund health care for the uninsured, a concept that suffered a setback recently.

But first, state lawmakers paused last week to remember one of their own: Sen. Anita Bowser, who died in office last week at age 86.

The Senate and Indiana House were not in session Thursday so that lawmakers could attend Bowser's funeral at Michigan City, Ind.

A Democrat, Bowser was elected to the House in 1980 and had served in the Senate since 1992.

A retired professor, Bowser delivered her final speech in the Senate just weeks ago, where she spoke against SJR 7, a proposed constitutional amendment to ban same-sex marriage. That amendment passed the Senate, however, and awaits a hearing in the House.

Bowser's successor in her northern Indiana district has not yet been appointed.

Posted by Marcia Oddi on Sunday, March 11, 2007
Posted to Indiana Law

Ind. Law - Barnes & Thornburg partner Marcus Chandler featured

Continuing its occasional (but recently weekly) "My Big Break" series, the Indianapolis Star today features Marcus Chandler, Barnes & Thornburg's chair of entrepreneurial and global services practice groups. Chandler is the second B&T attorney in the series, the first was managing partner Alan A. Levin. See a list of all recent "Big Break" stories here.

Chandler describes how a conversation 20 years ago with Walker Information's Frank Walker redirected his thinking on better serving clients:

I asked him, "Can you help me create a market for my services?"

Frank said, "That's the dumbest question I ever heard."

This was my big break.

He said, "Rather than create a market, did it ever occur to you to ask business owners what they want from lawyers in large law firms, but are not getting?" Frank Walker gave me medicine, which for a lawyer, was hard to swallow. He said that I should listen to potential clients, instead of instructing them.

I met with private business owners, bankers, accountants, economic development consultants and others during the next year or so. They said that the future of our economy would depend upon the ability of entrepreneurs to build high-technology and high-potential businesses, to replace the large businesses that had left. But, they said, entrepreneurs believed that large law firms were too expensive and specialized to serve their needs efficiently. They wanted lawyers who could tolerate the disorder of an entrepreneurial enterprise, move quickly, and prevent runaway fees.

Posted by Marcia Oddi on Sunday, March 11, 2007
Posted to Indiana Law

Ind.Law - Another sports law story for the weekend

Last Sunday the ILB posted this entry, titled "Former NCAA investigators are valuable law firm additions," quoting from a NY Times story that included several references to an Indianapolis law firm's sports law practice.

This Sunday the Indianapolis Star has its own story about "The Sports [Law] Bar" in Indianapolis. The lengthy story by Tom Spalding, which references a number of Indy law firms, leads the Business Section and is sub-headed: "Nearly every major law firm Downtown has a hand in professional or amateur sports." Some quotes:

Indianapolis built itself into a thriving sports capital. Small wonder that sports attorneys followed suit.

Nearly three decades after the city sized up athletics as an economic engine, nearly every major Downtown law firm has a legal hand in professional or amateur sports events enjoyed by millions of fans nationally. * * *

The city has NFL, NBA and Triple-A franchises, is headquarters for the NCAA and is home to a variety of U.S. amateur sports governing bodies. While some of those entities rely on in-house expertise, others contract legal services. * * *

There is no formal roster of sports attorneys in the city, but anecdotally it's clear that the number of lawyers in Indianapolis who deal with sports is on the rise, said Peyton L. Berg, chair of the Indianapolis Bar Association's sports and entertainment law section. Berg, attorney for Bose McKinney & Evans, said a sports attorney has to be an expert on multiple topics.

"It's all-encompassing," Berg said. "You can do intellectual property, licensing, trademarks, all that stuff, and the next day have a labor and employment dispute. Then the next day someone gets sued." * * *

The city should be proud of what it has built, says Elsa Kircher Cole, general counsel for the NCAA who is on the national board of the Sports Lawyers Association.
"This is part of what Indianapolis has tried to do -- become a center for sports organizations," Cole said. "Indianapolis firms are just as fine as in New York, Chicago and San Francisco -- and they are cheaper."

A side-bar, titled "The Key Players," oddly does not include some attorneys, such as Milt Thompson, who are prominently mentioned in the main story.

Posted by Marcia Oddi on Sunday, March 11, 2007
Posted to Indiana Law

Saturday, March 10, 2007

Law - Some sports law stories for the weekend

"Ticket scalping comes to a head: NCAA, pro sports leagues and entertainers are angling to control profitable resale market" is the headline to a lengthy story today by Greg Johnson on the front page of the LA Times. Some quotes:

You need only two of the primo tickets you bought for the NCAA championship game on April 2 in Atlanta's Georgia Dome. So the next move is to scalp the extras online, where men's college basketball tournament tickets with a face value of $204 are on sale for as much as $5,800 apiece.

Not so fast.

The NCAA, tired of third-party brokers siphoning off money by reselling tournament tickets, is threatening to blacklist fans who are caught scalping tickets anywhere other than RazorGator.com, the NCAA's official ticket reseller.

And the NCAA isn't alone. Sports leagues, college teams, concert promoters and entertainers are all trying to control — and profit from — the booming ticket resale market.

"This is the hottest-button topic right now in the live entertainment world," said Jim Guerinot, the manager for Gwen Stefani, Nine Inch Nails and the Offspring. "No question, millions and millions of dollars are going to third parties with no financial investment in the venue, the artist or the promoter. And everyone's jockeying to assert their interests."

The Wall Street Journal also had an interesting front-page story this morning -- unfortunately not currently freely available online. Written by Adam Thompson, it is headed "In Fantasy Land, Sports Judges Hear Imaginary Cases." It focuses on a website, fantasydispute.com, that examines cases for $9.95 each, "same day response." From the "About Us" page of the site:
Fantasy Dispute Resolution, LLC consists of a group of people with years of experience in both fantasy sports and dispute resolution (yeah, mostly lawyers with plenty of spare time). We have combined these interests to create an affordable, comprehensive, efficient, and fun way to resolve any disputes that arise between fantasy teams.

Posted by Marcia Oddi on Saturday, March 10, 2007
Posted to General Law Related

Environment - "Midwest Has 'Coal Rush,' Seeing No Alternative"

"Midwest Has 'Coal Rush,' Seeing No Alternative" is the headline to a story this morning on the front-page of the Washington Post. Some quotes:

COUNCIL BLUFFS, Iowa -- From the top of a new coal-fired power plant with its 550-foot exhaust stack poking up from the flat western Iowa landscape, MidAmerican Energy Holdings chief executive David L. Sokol peered down at a train looping around a sizable mound of coal.

At this bend in the Missouri River, with Omaha visible in the distance, the new MidAmerican plant is the leading edge of what many people are calling the "coal rush." Due to start up this spring, it will probably be the next coal-fired generating station to come online in the United States. A dozen more are under construction, and about 40 others are likely to start up within five years -- the biggest wave of coal plant construction since the 1970s.

The coal rush in America's heartland is on a collision course with Congress. While lawmakers are drawing up ways to cap and reduce emissions of greenhouse gases, the Energy Department says as many as 150 new coal-fired plants could be built by 2030, adding volumes to the nation's emissions of carbon dioxide, the most prevalent of half a dozen greenhouse gases scientists blame for global warming.

Even after a pledge last month by a consortium of private equity firms to shelve eight of 11 planned coal plants as part of their proposed $45 billion buyout of TXU, the largest utility in Texas, many daunting projects remain on drawing boards. Any one of the three biggest projects could churn out more carbon dioxide than the savings that a group of Northeast states hope to achieve by 2018.

Utility executives say that the coal expansion is needed to meet rising electricity demand as the U.S. population and economy grow. Coal-fired plants provide half the electricity supply in the country. * * *

While newly constructed plants cough up a tiny fraction of the pollutants environmental regulators have focused on in the past -- sulfur dioxide, mercury and nitrogen oxides -- they emit only 15 percent less carbon dioxide. They do that simply by being more efficient. Scrubbers like those used to extract other pollutants from a plant's exhaust don't exist for carbon dioxide.

Environmentalists worry that the new pulverized-coal plants, built to last 40 to 50 years, will saddle the country with high greenhouse-gas emissions for decades. Peabody Energy, for instance, has proposed two giant 1,500 megawatt plants, one for western Kentucky and one for southern Illinois.

Posted by Marcia Oddi on Saturday, March 10, 2007
Posted to Environment

Ind. Gov't. - Still more on: Two lucrative offices issue raised again

Updating this ILB entry from Jan. 28, 2007, see this story by Susan Brown in today's NWI Times. Some quotes:

HAMMOND | Some two months after the City Council's appointments to the Port Authority came into question, Council President Dan Repay said the group is still awaiting a legal opinion from Roger Berger, council attorney.

Repay said he did not expect the council to appoint anyone to the Port Authority seat vacated by former Councilman Ernie Dillon, now a county councilman, until Berger comes to a conclusion.

"In everyone's interest, it would be best that they wait until we have a firm legal opinion," Repay said. * * *

Repay said Berger had contacted several sources and gotten conflicting information.

"He's hopefully close to rendering an opinion," Repay said.

The council is expecting a letter from Berger with not only his own interpretations and recommendations, but those of others, he said.

Repay could not say whether Berger had contacted the office of Indiana Attorney General Steve Carter.

Carter spokeswoman Staci Schneider said in January that Berger, as the attorney for the appointing body, would have been directed to the attorney general's Dual Office Holding Guide, a lengthy document prepared for officeholders and their attorneys. Any interested parties could file a petition in court for a judge to make a determination.

The guide, as noted in an earlier ILB entry, is available here.

Posted by Marcia Oddi on Saturday, March 10, 2007
Posted to Indiana Government

Friday, March 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 in play this week in the General Assembly. Access them here.

Posted by Marcia Oddi on Friday, March 09, 2007
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending March 9, 2007

Here is the Indiana Supreme Court's transfer list for the week ending March 9, 2007.

(Always be sure to go through all the pages, as the "list" is really two combined lists.)

One transfer is granted this week, in Marvin Hochstetler v. Elkhart Co. Highway Dept., Elkhart Co. Sheriff Dept., and Elkhart Co. Commissioners. This is a case the ILB did not summarize; it was issued Oct. 26, 2006, during the ILB's very brief vacation. Access the Court of Appeals opinion here.

Among the cases denied transfer this week was Americans for the Arts and The Poetry Foundation v. Ruth Lilly Charitable Remainder Annuity Trust from Oct. 19, 2006 - see ILB entries here and here. Court of Appeals Judge [now Chief Judge] John Baker's comments during the oral arguments in the case were picked up in a number of papers, as recorded in this ILB entry from August 24, 2006.

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.

Posted by Marcia Oddi on Friday, March 09, 2007
Posted to Indiana Transfer Lists

Courts - Series on improperly sealed court files nominated for Pulitzer

The Pulitzer Finalists have been leaked. The ILB looked up some of the finalists' stories/series and found two terrific law-related series. One was on consumer debt - see more here. The other, from the Seattle Times, is titled "Your Courts, Their Secrets."

The ILB had an entry quoting from the Seattle Times when the series came out, but there is much more here at the series homepage. Check it out - good weekend reading.

This interesting piece, titled "About this project: Ferreting out who, what and why," describes the process the reporters used in their effort to uncover cases that had been inappropriately sealed from public view. It begins:

For this project, we needed to do three things:

Find the sealed files. Figure out who's suing whom. Find out who sealed the file, and why.

Finding the files

The clerk's office at King County Superior Court doesn't keep a list of sealed court cases. So we searched for indicators.

The state Administrative Office of the Courts helped. It ran computer searches of electronic court dockets, looking for docket codes or words (for example, "seal" or "confidential") that suggested a case had been sealed in whole or part. These runs kicked up thousands of cases going back to 1990. (We were looking only for civil lawsuits, such as medical-malpractice cases. The searches did not cover divorce or criminal cases.)

We then checked the cases at the courthouse. You type a case number into the computer, and if the case is sealed, a message pops up, denying access.

We also checked older files that had been shelved instead of scanned into the computer. We walked down rows of files at the clerk's office, looking for yellow folder-sized markers that indicate a case is sealed and locked away in a separate room.

We discovered nearly 300 cases the clerk's office had sealed by mistake. In most, only part of the file was supposed to be sealed. Alerted to these errors, the clerk's office opened up those files.*

We found more than 1,000 cases sealed in part. In some, such crucial records as the complaint or rulings summarizing the evidence were sealed.

In the end, we found 420 civil cases that have been sealed in their entirety since 1990. But there could be more.

*The ILB ran across a similar situation in the Indiana Clerk of the Courts office last month, as set out in this Feb. 13th ILB entry headed "Sealed documents in otherwise 'unsealed' cases." For years, apparently, cases containing any sealed documents were not included in the electronic docket (although you could view the unsealed part of the file if you asked for it by name in the Clerk's office).

After consulting with Kevin S. Smith, Clerk of the Courts, I was assured that changes were already underway and that, in the future, cases would not be totally sealed (and thus excluded from the electronic docket) simply because their file included a sealed document.

I was told that any such cases improperly sealed in the past which were brought to the attention of the Clerk's office would be unsealed, but that this change in dealing with the files would be prospective only, "as we have no way of knowing what cases were previously handled under the 'old' way" before [we] changed our practice."

After further investigation, however, it was determined by Mr. Smith that IT could run a search to flag any "sealed" cases that might meet the criteria for unsealing, and that staff could then, per a note from Mr. Smith dated Feb. 16th, "cull through the results to make any 'sealed' designation changes for 'unsealed' cases we find. It may take a few weeks, since our IT request will have to be placed 'in the cue' with others ahead of ours and since the first priority of my office has to be keeping up with the daily case flow, but we'll get it done as soon as possible."

This ILB considers this to have been a very positive development. When the process is completed, the ILB hopes to obtain a list of the appellate cases the records of which may now for the first time be accessed via the Clerk of the Courts online electronic docket.

Posted by Marcia Oddi on Friday, March 09, 2007
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 1 NFP) [Updated]

For publication opinions today (2):

State of Indiana v. Roger Lindsay - "The State of Indiana appeals the trial court’s dismissal of a charge of Corrupt Business Influence, a Class C felony, as alleged in an indictment against Appellee, Roger Lindsay. We affirm.* * * Having concluded that the 2003 and 2004 offenses do not constitute predicate offenses for the RICO charge and that the five-year statute of limitation was not tolled by acts of concealment, we affirm the trial court’s dismissal of the Class C-felony RICO charge as untimely."

Mark Duncan v. State of Indiana - "We conclude the sixty-five year sentence for murder was proper, but that Duncan’s appellate counsel was ineffective for failing to present upon direct appeal the issue of the propriety of his maximum eight-year sentence for robbery. We remand with instructions for the trial court to reduce that sentence to the presumptive term of four years. Because there were two valid aggravators, the enhanced murder sentence did not rest solely upon a single aggravator which was then also used to impose consecutive sentences. For that reason, we find no defect in the imposition of consecutive sentences.8 Duncan’s appellate counsel was thus not ineffective for failing to present upon direct appeal the issues of his sentence for murder and the imposition of consecutive sentences. As revised, the sentences for the murder and for the robbery are to run consecutively, and we do not deem them to be manifestly unreasonable."

[Update 3/13/07] See Evansville C&P story, "Appeals court orders 4 years cut from murder-robbery sentence."

NFP civil opinions today (0):

NFP criminal opinions today (1):

Randal R. Long v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, March 09, 2007
Posted to Ind. App.Ct. Decisions

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

It has been a while since we've seen a case out of Indiana. Today we have two opinions:

USA v. Shoals, James Charles (ND Ind., William C. Lee, Judge), a 6-page PER CURIAM decision. "James Shoals, a felon, was charged with possessing a firearm, 18 U.S.C. § 922(g)(1). Shoals moved to suppress the gun, shotgun shells, and inculpatory statements he made to police, arguing that he was detained without probable cause or reasonable suspicion. The district court found probable cause lacking, but concluded that the police had reasonable suspicion and therefore their encounter with Shoals was a legitimate stop under Terry v. Ohio, 392 U.S. 1, 27 (1968). Shoals entered a conditional guilty plea, and now challenges the denial of his motion to suppress. We uphold the denial of Shoals’s motion to suppress and affirm his conviction.

USA v. Hawkins, Gerard (SD Ind., Larry J. McKinney, Chief Judge), a 4-page opinion by Judge Posner:

The defendants were convicted by a jury of violating the federal mail fraud statute, and of related crimes, arising from a scheme to defraud mortgage lenders by submitting inflated appraisals of the property to be mortgaged. They were sentenced (following a remand for resentencing in light of United States v. Booker, 543 U.S. 220 (2005)) to 63 and 45 months in prison, respectively. Their appeals challenge only their sentences. * * *

Of course we can still review for plain error. But for an error to be plain, it must first of all be an error. Gerard Hawkins’s appeal brief points to no mistake in the presentence investigation report. It merely asserts, without particulars, that the report is flawed. It is not our duty to paw through the report trying to figure out what errors it might contain.

The submission on behalf of Monique Hawkins is incompetent. In an argument section just two pages in length, the brief contends that Booker “specifically hold[s] that any Guideline sentence be calculated based only on facts found by a jury.” That is the “holding” of the dissenting Justices in Booker. See United States v. Booker, supra, 543 U.S. at 284-85 (Stevens, J., dissenting in part).

Posted by Marcia Oddi on Friday, March 09, 2007
Posted to Ind. (7th Cir.) Decisions

Law - Series on consumer debt nominated for Pulitzer

The Pulitzer Finalists have been leaked. The ILB looked up some of the finalists' stories/series and found two terrific law-related series. (I'll talk about the second later today.)

The first is a 4-part series from the Boston Globe (you may need to register) titled "Debtor's Hell." The description: "This Boston Globe Spotlight Team investigation into the world of consumer debt in the United States found a system where debt collectors have a lopsided advantage, debtors are often treated shabbily by collectors and the courts, and consumers can quickly find themselves in a life-upending financial crisis."

There are dozens of stories and resources at the Boston Globe's homepage for this series. In addition, podcasts are available for the entire series.

Posted by Marcia Oddi on Friday, March 09, 2007
Posted to General Law Related

Courts - Kansas: More on: "Judge orders newspapers to remove story from Web sites"

Updating this ILB entry from March 4th is this AP report from March 6th, headed "Judge Reverses Ruling, 2 Papers Publish Banned Story ":

KANSAS CITY Fifteen upgrades at power plants operated by a Kansas utility may have violated federal clean air rules, according to an internal document published by two Kansas City newspapers on Tuesday after a judge's ban was lifted.

The document is a legal analysis prepared by a lawyer in 2004 for the Board of Public Utilities of Kansas City, Kan. The attorney examined 73 improvement projects at BPU plants for possible violations of Environmental Protection Agency regulations.

Jackson County, Mo., Circuit Judge Kelly Moorhouse on Friday ordered The Kansas City Star and a weekly newspaper, The Pitch, to remove stories about the document from their Web sites. Both publications had obtained the document independently from an anonymous source.

But the Missouri Court of Appeals on Tuesday prohibited Moorhouse from enforcing her ban on publication. The higher court's brief order agreed with the newspapers that the ban caused them "irreparable harm" with no adequate legal remedy.

In motions filed Monday with the Court of Appeals, the newspapers said Moorhouse's order violated the constitutional prohibition on prior restraint of publications except in the most extraordinary situations.

Lawyers for the BPU responded Tuesday that the document should be protected by rules usually protecting attorney-client communications against being made public.

The document analyzed 73 projects for the risks of penalties by the EPA and concluded that 15 were "probably not defensible" and 15 were "questionable."

Labeled a "liability analysis," the document says the BPU could be subject to thousands of dollars in fines. It points out that the utility has the choice of approaching the EPA to reach a settlement or waiting for the EPA to initiate action.

Posted by Marcia Oddi on Friday, March 09, 2007
Posted to Courts in general

Environment - "Lawmakers call for Great Lakes cleanup"

An AP story reports:

WASHINGTON – A massive plan to restore the Great Lakes for future generations needs to be a priority in Congress this year, lawmakers and environmental activists said Wednesday.

Members of Congress representing Great Lakes states outlined a $20 billion plan to improve water quality, restore fish and wildlife around the lakes and guard against invasive species that could inflict economic pain on the region.

“It’s time for Congress to invest in restoring the Great Lakes so that Michigan’s economy, environmental health and quality of life aren’t diminished,” said Michigan Rep. Tim Walberg, R-Tipton.

The Great Lakes provide drinking water to about 40 million people and represent about 20 percent of the world’s supply of fresh water.

The waters are essential to its region’s tourist economy and industrial base.

A similar measure introduced last year failed to gain traction, but lawmakers said it is important to approve the framework before any significant shifts in Congress.

The House bill is backed by Reps. Rahm Emanuel, D-Ill., and Vernon Ehlers, R-Grand Rapids. The Senate version is led by Sens. Carl Levin, D-Mich., and George Voinovich, R-Ohio.

With population booms in the southwest, Ehlers noted that redistricting occurs every decade and that “every 10 years the Great Lakes states lose representation in Congress.”

The proposal would help implement a Great Lakes restoration plan issued in December 2005 and based on suggestions from a broad array of lawmakers, environmentalists and regional activists.

The legislation would approve programs to stop the spread of invasive species and prevent the influx of Asian carp, prevent sewage contamination in the lakes and clean up contaminated sediment.

Posted by Marcia Oddi on Friday, March 09, 2007
Posted to Environment

Ind. Decisions - Update on "Annexation bid in hands of justices"

Yesterday's oral arguments in the case of City of Carmel v. Certain Southwest Clay Township Annexation Territory Landowners are summarized today in this story by Bill Ruthhart of the Indianapolis Star, headlined "Carmel annexation could ride on 2005 deal: State high court justices focus on agreement with property owners in southwest Clay Township."

Here is a link to yesterday's ILB entry. Watch yesterday's oral arguments here.

Posted by Marcia Oddi on Friday, March 09, 2007
Posted to Ind. Sup.Ct. Decisions

Thursday, March 08, 2007

Courts - Michigan Supreme Court justices "acting like children"

Seriously. See this story today in the Detroit News. Some quotes:

LANSING -- With the reputation of Michigan's highest court sinking fast, a simmering dispute among its justices boiled over Wednesday in ugly insinuations, sarcasm and even lyrics from a Broadway tune.

With any pretense of collegiality having vanished, alarmed law professors, prominent attorneys and others say they wonder where the childish dispute between Justice Betty Weaver and her fellow Republicans on the bench will end.

Weaver and Justices Maura Corrigan and Robert Young exchanged sharp comments in the court's opinion in a routine court action released Wednesday.

Weaver criticized what she described as the court's "helter-skelter approach" regarding when and how justices excuse themselves from cases in which they have potential conflicts of interest.

Corrigan, who had withdrawn from the case, wrote: "Betty, can't we stop wasting the taxpayers' money on this frolic and detour? Or are you determined to continue these theatrics."

She called on Weaver, "my one-time friend and still colleague, to rejoin the fold of ordinary mortals with the six others of the people's justices, doing the people's important work. Put an end to this sad and low-comic chapter in our court's history."

The ongoing skirmish at the state's Supreme Court has caught lawmakers' attention.

"I'm concerned that this is a Supreme Court in disarray," said state Rep. Paul Condino, D-Southfield. The House Judiciary Committee, which he chairs, will start examining the court's practices in three weeks.

University of Michigan law professor Richard Friedman said the justices' public displays of animus are unseemly and damaging in the public's eye.

"They've acted like children," Friedman said.

Friedman said the court, more than any other public institution, depends on public confidence to function. When the state's highest court loses decorum, public confidence is diminished.

There is more to the story, plus a link to the opinion quoted.

Thanks to Howard Bashman of How Appealing for highlighting this story. He has a number of other links at this entry.

Posted by Marcia Oddi on Thursday, March 08, 2007
Posted to Courts in general

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

For publication opinions today (2):

The Court of Appeals decides two cases today regarding challenges to the paternity affidavit.

In In Re the Paternity of E.M.L.G., R.L.J., J.A.J. and N.A.H. , a 9-page opinion, Judge Mathias writes:

This is an appeal regarding four consolidated cases. The State appeals from the St. Joseph Probate Court’s denial of its motion to correct error in each of the four cases. At issue is whether the trial court properly granted four putative fathers’ requests for genetic testing to disestablish paternity under Indiana Code section 31-14-6-1.1 Concluding that each putative father did not timely request genetic testing under Indiana Code section 16-37-2-2.1, and therefore was already deemed the legal father, we reverse and remand. * * *

All four of the fathers admittedly signed a paternity affidavit pursuant to this statute and did not rescind or set aside the affidavit within the sixty-day time frame provided for under Indiana Code section 16-37-2-2.1. Therefore, under the plain, unambiguous language of the statute, paternity was already established. * * *

Additionally, as we have previously noted, “[t]he Indiana Code has no provision for the filing of an action to disestablish paternity.” In re Paternity of H.J.B., 829 N.E.2d 157, 159 (Ind. Ct. App. 2005). Rather, the Indiana statutes governing paternity actions, found in Article 14 of Title 31 of the Indiana Code provide a means to establish paternity, not to disestablish it. Our General Assembly has clearly and unequivocally prescribed that it “favors the public policy of establishing paternity under [Article 14] of a child born out of wedlock.” Ind. Code § 31-14-1-1 (1998). Given this explicit language, when we look at Article 14 of Title 31 in its entirety, we conclude that the trial court improperly determined that Indiana Code section 31-14-6-1 provides a method by which legal fathers may disestablish paternity outside of the sixty-day time limitation, absent a claim of fraud, duress or material mistake of fact. Moreover, under these statutes, a trial court does not have the authority to treat child support proceedings as proceedings to disestablish paternity.

The soundness of the public policy underlying our decision today is illustrated by the facts of these four cases. If genetic testing were to disestablish paternity, then each child would be considered a “filius nullius,” which in Latin means a “son of nobody.” * * *

The Appellees rely substantially on our unpublished memorandum decision In re Paternity of M.H., No. 71A03-9905-JV-182 (Ind. Ct. App. September 20, 1999). In that case, we held that an executed paternity affidavit created a rebuttable presumption of paternity that could be contested by the father more than sixty days after he had executed the affidavit. Under Indiana Appellate Rule 65(D), an unpublished decision may not be cited as binding precedent. [ILB - emphasis added] In addition, we are compelled to note that the statutory provisions underlying this memorandum decision were substantially amended in 2001, before the fathers in the proceedings below executed paternity affidavits. * * *

The four putative fathers at issue failed to have their paternity affidavits set aside within the sixty-day time limit as provided for under Indiana Code section 16-37-2-2.1. Therefore, under Indiana Code section 31-14-7-3, each man is deemed the legal father. We conclude that the trial court erred as a matter of law in granting the fathers’ requests for genetic testing to disestablish paternity. Reversed and remanded.

In In Re the Paternity of J.B.T., Terry Davis v. Theresa Marie Audrey Trensey , a 10-page opinion by Judge Friedlander, T executed a paternity agreement after the child's birth, but 6 months later the prosecutor filed a petition to establish paternity in D. Both submitted to genetic testing, which showed D to be the father and directed him to pay child support. From the opinion:
Davis contends that because Jermal W. executed a paternity affidavit, Jermal W. was required to set aside that petition within 60 days, which he did not do. Thus, according to Davis, Jermal W.’s acknowledgement of paternity remains in force. Davis also notes that in entering a paternity order against him (Davis), the trial court neglected to set aside Jermal W.’s affidavit of paternity. Davis cites this as an alternative basis for concluding that Jermal W.’s affidavit is still in effect.

As explained below, we conclude this action is not governed by the paternity affidavit statute, i.e., Ind. Code Ann. § 16-37-2-2.1 (West, PREMISE through 2006 Second Regular Session), but instead by Ind. Code Ann. ch. 31-14-4 et seq. (West, PREMISE through 2006 Second Regular Session) and Ind. Code Ann. § 31-14-6-1 (West, PREMISE through 2006 Second Regular Session). We further conclude that, pursuant to the latter statutes, the trial court correctly ordered the genetic test and entered a finding of paternity against Davis based upon the results thereof. * * *

In summary, this action is not governed by I.C. § 16-37-2-2.1, and the presumption of paternity based upon Jermal W.’s paternity affidavit was properly rebutted by the action filed under I.C. § 31-14-4-1 by the Prosecutor’s Office, and the resulting genetic tests. Moreover, we conclude that in entering a finding of paternity in Davis, the trial court implicitly negated Jermal W.’s paternity affidavit. The trial court is affirmed in all respects.

NFP civil opinions today (8):

Jeffrey M. Perz v. Review Board of the Indiana Department of Workforce Development and Indiana Bell Telephone Company (NFP) - "The Board did not err when it denied Perz’s request to submit additional evidence and the Board’s conclusion that Perz was terminated for just cause is not contrary to law."

Nathan & Sarisa Stumpf v. Hagerman Construction Corporation and D.A. Dodd, Inc. (NFP) - Reversed. "We conclude that Hagerman and Dodd contractually assumed a duty of care to the employees of its subcontractors. Therefore, the trial court erroneously granted summary judgment in favor of Hagerman and Dodd. We further conclude that the trial court did not abuse its discretion in striking the affidavit of [expert witness] Frank Burg."

Terry Hyser v. John Vannatta, Department of Corrections, et al. (NFP)

Three Thousand, Four Hundred, Seventy-Eight Dollars in United States Currency; 6 Unknown Long Guns and a Browning Gun Safe v. State of Indiana and the Knox County Police Department (NFP) - Reversed. "It is fair to speculate and conjecture that Hill might have been selling the marijuana he was growing and that the money found in his safe might have been connected to such sales, but speculation and conjecture alone is not enough to support forfeiture. There is even less reason for speculation and conjecture with respect to the guns. Consistent with our strict construction of the forfeiture statute, we hold there is insufficient evidence to support the forfeiture of the $3478, the gun safe, and the guns found therein. Conclusion. The statutory presumption regarding forfeiture of property does not apply in this case, and there is insufficient evidence to support forfeiture in the absence of that presumption. We reverse the forfeiture order."

Matter of S.G., W.G., Jr., Children in Need of Services; William Gray, Sr. v. Marion County Department of Child Services and Child Advocates, Inc. (NFP)

In Re Guardianship of A.N.M.; Jeannea Madsen v. Deborah & Jimmie Jones (NFP)

Bell Financial Community Credit Union, et al. v. Larry F. Nagy (NFP) - Reversed. "Bell Financial Community Credit Union (“Bell”) appeals the Lake Superior Court’s order for it to deliver to Larry Nagy (“Nagy”) the certificate of title to a certain 1997 GMC rollback tow truck. Bell raises two issues, which we combine and restate as: whether the trial court erred when it determined that Nagy was entitled to the certificate of title for the tow truck free of Bell’s security interest in the truck. Concluding that the trial court’s decision is clearly erroneous, we reverse. * * * The trial court’s conclusion that Nagy is entitled to the certificate of title to the tow truck free of Bell’s security interest as both a buyer in the ordinary course of business and a buyer of an entrusted vehicle is clearly erroneous."

Midwest Minerals, Inc. v. Board of Zoning Appeals of the Area Plan Department/Commission of Vigo County (NFP) - "Midwest Minerals, Inc., (“Midwest”) appeals from the Vigo Superior Court’s order denying Midwest’s petition to overturn the decision of the Vigo County Board of Zoning Appeals’ (“BZA”).1 At issue is whether the BZA properly determined that Midwest’s proposed gas processing unit would engage in “manufacturing” gas, and was thereby required to apply for a special exception. Concluding that chemically transforming extracted natural gas into commercial grade gas constitutes “manufacturing” under Vigo County’s Unified Zoning Ordinance, we affirm."

NFP criminal opinions today (3):

Robert Wilson v. State of Indiana (NFP)

Dustin Chadwick v. State of Indiana (NFP)

William Judge v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 08, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Annexation bid in hands of justices"

Oral arguments in the case of City of Carmel v. Certain Southwest Clay Township Annexation Territory Landowners will be held today at 9:45 a.m. before the Indiana Supreme Court. You may watch them live (or later) here.

Bill Ruthhart reports today in the Indianapolis Star:

Carmel will take its fight to annex an adjacent collection of wealthy neighborhoods to the Indiana Supreme Court today in a case that promises to resonate across the state.

Losing its bid to annex southwest Clay Township -- 8.3 square miles of high-end homes and horse farms -- would be a blow to Carmel as well as cities and towns elsewhere that are hoping to expand their boundaries, secure their tax base and better manage their growth.

Conversely, it would be a victory for homeowners who believe annexations are simply a way of getting them to pay higher taxes.

"This absolutely is being watched statewide. Any community that is growing is worried about what is going to happen with this Carmel case," said Michael Shaver, an annexation consultant who has worked for Carmel and other cities across the state.

"Everyone wants to know, 'How will this affect us?' This case's impact is universal."

Today's court arguments come as annexation feuds across the state are at an all-time high. At the same time, legislators this year have called for an overhaul of the state's annexation laws.

For Carmel, a win means increasing the city's assessed property value to about $7 billion from its current $5.6 billion and folding a large chunk of the township into the city proper.

Annexation opponents, however, project their property taxes would rise by 21 percent should Carmel prevail.

Almost all Indiana annexations are voluntary, meaning property owners give the city or town permission to incorporate their land. But in fast-growing areas, municipalities have started to rely more on involuntary annexations -- those forced on property owners -- to expand boundaries and attract new business.

Most of the feuds over involuntary annexations, like the one in southwest Clay, center on two issues: fairness and money.

City leaders say it's unfair to allow residents in southwest Clay, who live just outside Carmel's boundaries, to benefit from the roads, police protection and parks the city provides without paying for those services.

Southwest Clay residents counter that they don't rely on Carmel for services but instead are served by the county or Clay Township.

The Supreme Court justices will have to decide whether to uphold a ruling by Hamilton Superior Court Judge William Hughes. * * *

Brainard blames state lawmakers, not homeowners, for the expensive annexation battles that are becoming more prevalent in Indiana.

"It's not the fault of the people who live outside of the city limits. It's the legislature's fault for not fixing a 19th-century statute that doesn't work," he said. "It's not fair and it's not equitable for the people inside the city limits who are subsidizing the people who live outside."

State lawmakers are considering whether to establish a special committee to look at the issue.

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

Posted by Marcia Oddi on Thursday, March 08, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Chief Justice Randall T. Shepard To Be Sworn in for Fifth Term

A press release issued by the Indiana Courts announces:

Evansville, Ind. – The Hon. Randall T. Shepard will be sworn in Tuesday, March 13th by Vanderburgh Superior Court Judge Mary Margaret Lloyd for a record fifth five-year term as Indiana's Chief Justice.

The public swearing in ceremony will be held at 4 p.m. in the County Courts Building in Evansville in Room 110, one of the courtrooms where the Chief Justice presided when he was a Vanderburgh Superior Court Judge, from 1980 until 1985.

While serving as a Superior Court Judge, Governor Robert D. Orr appointed him an Associate Justice of the Indiana Supreme Court. He was previously elected Chief Justice by the Indiana Judicial Nominating Commission in 1987, 1992, 1997 and 2002.

Tuesday's ceremony reprises Chief Justice Shepard's first swearing in ceremony as the leader of Indiana's judiciary.

Posted by Marcia Oddi on Thursday, March 08, 2007
Posted to Indiana Courts

Ind. Law - Fort Wayne Journal Gazette editorializes against SJR 7

The Fort Wayne Journal Gazette has a well-reasoned editorial today strongly opposing the passage of SJR 7. Some quotes:

As a proposed amendment to the Indiana Constitution moves closer to approval, opponents are becoming increasingly worried about its unintended consequences.

Rightfully so. The proposal to define marriage as “the union of one man and one woman” carries a message of intolerance that a state desperate to attract and retain new-economy jobs can’t afford to send. * * *

Adopting a constitutional same-sex marriage ban – state law already prohibits same-sex marriage – threatens the capability of universities and companies to attract not only gay and lesbian employees, but any prospective employee looking for a progressive environment to live and work in. Efforts to improve quality of life and attract college graduates are sabotaged by measures intended only to restrict the rights of one class of citizens.

If lawmakers are interested in expanding the state’s economy and making Indiana an attractive place to live and work, they must reject the proposed amendment and its small-minded message.

Here is a list of some earlier ILB entries on SJR 7.

Posted by Marcia Oddi on Thursday, March 08, 2007
Posted to Indiana Law

Law - WSJ features "father-focused" family law firms

The free features in today's Wall Street Journal include this story by Ann Carrns headed "Law Firms Pitch Themselves As the Divorced Guy's Guys." Some quotes:

National lawyers' associations don't track the number of family law firms that specialize by gender, but at least one father-focused firm can now be found in most of the biggest U.S. cities. Such outfits include Jeffery Leving and his Dadsrights.com Web site, in Chicago; Lang, Berman & Lebit on Long Island in New York, which hosts the "nyfathersrights.com" Web site; and Dadslaw Inc. in Orange, Calif., near Los Angeles.

To be sure, there are firms and nonprofit organizations that focus on representing women in divorce cases, particularly those involving domestic violence. They include networks such as Divorce Attorneys for Women, or DAWN, in Grand Rapids, Mich., which maintains the www.dawnforwomen.com site.

Some legal observers say firms focusing on either men or women can foster confrontation between parents, rather than negotiation of an amicable settlement. "They fuel the gender wars, which is not in the best interest of the children," says Andrew Schepard, a family law professor at Hofstra University School of Law in Hempstead, N.Y.

Posted by Marcia Oddi on Thursday, March 08, 2007
Posted to General Law Related

Courts - WSJ features felon who became a law grad seeking NY State bar admission

The lengthy, front-page Wall Street Journal story today by Paul Davies is headed "The High Bar
For Redemption: Inside One Felon's 12-Year Campaign To Practice Law in New York State."
A side-bar sumarizes:

• The Issue: A twice convicted felon completed law school after serving time in prison, but has been denied admission to the New York bar nine times by state justices.

• The Dilemma: What counts as redemption and who gets to decide?

• The Bottom Line: Bar admission standards vary from state to state, and within states are often subjective.
From the story itself:
Bar admission standards vary from state to state, and can be applied differently within the same state. The issue gets especially thorny with ex-convicts. Indiana, Mississippi, Missouri, Oregon and Texas prohibit felons from practicing law. Alabama allows felons to practice only if they've received a full pardon. Like most states, New York requires bar applicants to demonstrate good "character and fitness." Those standards evolve continuously.
Unfortunately, the story currently is not freely available online. Check back.

Recall this Feb. 21st ILB entry quoting a story from the NY Law Journal, which reported:

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.

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.

[Updated 3/10/07] The WSJ story still appears to be unavailable online to nonsubscribers, BUT the WSJ Blog features the story here.

Posted by Marcia Oddi on Thursday, March 08, 2007
Posted to Courts in general

Wednesday, March 07, 2007

Ind. Courts - Judicial commission charges judge after OWI conviction

A press release today from the Indiana Courts announces:

The Indiana Commission on Judicial Qualifications filed judicial disciplinary charges today against the Honorable John F. Hanley, Judge in the Marion Superior Court.

The Commission's attorney, Meg Babcock, announced that the charges allege Judge Hanley violated judicial ethics when he operated a vehicle while intoxicated. Judge Hanley was arrested on December 4, 2006 in Marion County and pled guilty to a Class A Misdemeanor on January 26, 2007. He is serving one year on probation and a 90-day suspension of his driver's license.

The Commission's charges state that Judge Hanley violated rules for judges which hold them to high standards of conduct and require them to preserve the integrity of the judiciary, to respect and comply with the law, and to act at all times in a manner which promotes the public's confidence in the integrity of the judiciary.

Judge Hanley may file an answer to the charges within 20 days. The Supreme Court then will appoint a panel of three judges to preside over an evidentiary hearing and report their findings to the Supreme Court unless the Commission and Judge Hanley submit an agreement for discipline to the Court.

The charging document is available here.

Here is a list of earlier ILB entries on the incident, which occurred in early December, 2006.

Posted by Marcia Oddi on Wednesday, March 07, 2007
Posted to Indiana Courts

Courts - 7th Circuit Rules on FMLA Leave With Disability Benefits

"7th Circuit Rules on FMLA Leave With Disability Benefits" is the title to an article by Jenner & Block attorneys Carla J. Rozycki and David K. Haase in Law.com today. It begins:

Roadway Express, Inc. ("Roadway") violated the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §2601, et. seq., when it required an employee on FMLA leave to concurrently use her paid sick and vacation leave, ruled the 7th U.S. Circuit Court of Appeals on Feb. 26. Repa v. Roadway Express, Inc, ---F. 2nd---, 7th Cir., No. 06-2360, 2/26/07. The 7th Circuit concluded that a Department of Labor ("DOL") regulation (29 C.F.R. §825.207(d)[1]), which was the subject of conflicting interpretations by the parties, precluded Roadway from requiring the employee to substitute paid leave for unpaid FMLA leave because the employee was receiving disability benefits from a health and welfare benefit plan to which Roadway was required to contribute pursuant to a multiemployer bargaining unit collective bargaining agreement.

Posted by Marcia Oddi on Wednesday, March 07, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 7NFP) [Links corrected]

For publication opinions today (1):

In Antonio Agilera v. State of Indiana , a 16-page opinion, Judge Riley writes:

Appellant-Defendant, Antonio Agilera (Agilera), appeals his conviction for child molesting, a Class C felony, Ind. Code § 35-42-4-3. We affirm.

Agilera raises three issues on appeal, which we restate as follows: (1) Whether the trial court abused its discretion by admitting statements by child victim, K.E.; (2) Whether the State presented sufficient evidence to sustain Agilera’s conviction for child molesting; and (3) Whether the trial court abused its discretion by denying Agilera’s Motion for Mistrial. * * *

[W]e find Agilera’s Sixth Amendment Confrontation Clause rights were not violated and the trial court did not abuse its discretion by admitting K.E.’s statements to her mother, grandmother, Detective Buttram, and the forensic investigator. * * *

Whether to grant or deny a motion for mistrial is a decision left to the sound discretion of the trial court. Alvies v. State, 795 N.E.2d 493, 506 (Ind. Ct. App. 2003), trans. denied. We will reverse the trial court’s ruling only upon an abuse of that discretion. * * *

We have recognized that a mistrial is an extreme sanction warranted only when no other cure can be expected to rectify the situation. Id. Reversible error is seldom found when the trial court has admonished the jury to disregard a statement made during the proceedings because a timely and accurate admonition to the jury is presumed to sufficiently protect a defendant’s rights and remove any error created by the objectionable statement. Id. [ILB - emphasis in the original]. * * *

Based on the foregoing, we conclude (1) the trial court did not abuse its discretion by admitting K.E.’s out-of-court statements; (2) the State presented sufficient evidence to sustain Agilera’s conviction for child molesting; and (3) the trial court did not abuse its discretion when it denied Agilera’s Motion for Mistrial.

NFP civil opinions today (1):

Kevin Brown v. Danielle M. (Brown) Pitzer-Brandon (NFP) - Appeal of an order modifying parental time and child support; affirmed

NFP criminal opinions today (6):

Jacob Malone v. State of Indiana (NFP) - See this detailed March 9, 2007 Wabash Plain Dealer story, headed "Indiana Court of Appeals overturns conviction in Manchester murder trial," detailing the result of "the failure to allow alibi testimony."

Daniel Jean-Julian v. State of Indiana (NFP)

Robert McFarland v. State of Indiana (NFP)

Raymond Thompson v. State of Indiana (NFP)

Scully Noland v. State of Indiana (NFP)

Marie Yanez v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 07, 2007
Posted to Ind. App.Ct. Decisions

Ind. Law - Fighting foreclosures and mortgage fraud [Updated]

Today's Fort Wayne Journal Gazette has an editorial titled "Fighting foreclosures." Some quotes:

Two bills advancing in the Indiana General Assembly would take common-sense steps to attack Indiana’s staggering problem of mortgage foreclosures.

The House voted 96-2 to require builders to disclose estimated property taxes for a new home’s full value. [House Bill 1525] Because property taxes are based on the value of the previous year, many buyers of new homes face a very small tax bill – based only on the land and not the home – the first year and are surprised by a much-higher second-year bill.

“Young couples too often enter into a home-building contract not knowing that they face a $3,000-$4,000 property tax bill within a year,” the bill’s sponsor, Rep. Michael Murphy of Indianapolis, said in a news release. “When the taxes come due, these couples can lose their homes and their financial futures.”

House Bill 1525, which Rep. Win Moses of Fort Wayne co-sponsored, would also require the Indiana Housing and Community Development Authority to furnish educational material about home buying and financing to homebuyers whose credit scores of 620 or lower make them less financially stable and more at risk.

“Your credit score is a clear indicator of the probability of foreclosure, particularly in adjustable rate and zero-down-payment mortgages,” Murphy said. “I want to make sure homebuyers know what they are getting into before they commit to long-term debt.”

Senators voted 49-0 for a separate bill [Senate Bill 390] to regulate mortgage “rescuers,” some of whom unscrupulously end up taking the homes or charge high fees without results.

“A lot of people are saying, ‘Pay me money, and I’ll fix it,’ ” said Gary Avery of First Republic Mortgage in Indianapolis, a past president of the Indiana Association of Mortgage Brokers.

In too many cases, though, the “rescuers” do little more than make phone calls the mortgage holder could make.

Last year, Attorney General Steve Carter initiated action against a mortgage rescue company that resulted in a Marion County judge ordering refunds of $3,000 to three consumers, plus $82,000 in penalties and costs. [ILB - See story here]

The bills aim to address the state’s abysmally high foreclosure rate. Nearly 3 percent of Indiana home loans were in foreclosure last summer, second highest in the nation. Last year, the Allen County Sheriff’s Department sold 1,743 foreclosed properties.

The widespread approval for the respective bills in each legislative chamber indicates the bills are non-controversial. Each deserves adoption in the opposite house and should become law.

The Indianapolis Star had an editorial Monday titled "Openness laws could help put a lid on foreclosures":
The legislature has taken some encouraging strides toward bringing sanity to the homeownership scene in Indiana and especially Central Indiana, where foreclosures have ballooned along with artificially cheap mortgages.

Easy passage of bills by Rep. Michael Murphy, R-Indianapolis, and Sen. John Broden, D-South Bend, in their respective chambers bodes well for consumer protection in what has become a jungle of too-easy credit and outright fraud.

New homes in the suburbs have crowded onto the derelict heap alongside inner-city properties in recent years as first-time homeowners without sufficient reserves have taken on exotic mortgages and then floundered when higher rates kicked in along with other unforeseen expenses, including property taxes. * * *

Murphy's bill, passed by the House 96 to 2, would require:

A written estimate of fully assessed property taxes to be provided by a builder in at least 15-point type before a buyer signs a contract.

Any buyer with a credit rating of 620 or less to be given a packet of state-approved educational materials about adjustable-rate mortgages and other key subjects by the lender before a mortgage can be taken out.

Advertising to meet federal truth-in-lending strictures.

Murphy cites a billboard he saw recently on which a builder promised $1-a-month payments. "It's immoral is what it is," he says. "We can't legislate morality, but we can at least make sure everyone's eyes are wide open."

Broden's bill, passed by a vote of 49 to 0, attacks the growing phenomenon of unscrupulous "rescuers" of homeowners in default. Senate Bill 390 would limit how much the consultants can charge, require them to fully inform customers, and preserve the customers' right to rescind questionable agreements.

Senate Bill 390 deserves resounding passage in the House, and House Bill 1525 merits the same reception in the Senate. They won't slay the 800-pound gorilla of widespread mortgage foreclosure, but they will help drag it out into the light.

Here is more about "Mortgage Foreclosure Rescue Scams."

See also this entry from The Mortgage Fraud Blog, and note that the sidebar includes links to a South Bend Tribune series from earlier this year, as well as a Chicago Tribune series.

[Updated 3/9/07] See also this Journal Gazette editorial from March 9th that begins:

More complete public disclosure of who is involved in the sale of homes in Indiana would go far to protect consumers, neighborhoods and lenders from questionable home-buying practices.

A task force with representatives of Indiana Realtors, mortgage brokers, title companies, bankers, appraisers and relevant state agencies is developing several proposals that would go far to guard against mortgage fraud, and the disclosure aspect is the most important.

The state should require that each property deed include the true sales price and that the buyer and seller of each property sign the deed, attesting that the reported price is accurate. Each person or business involved at each stage of the transaction – the real estate agent, title company, appraiser, broker and any others – should be identified by name or registration number on the deed. Such disclosure is more than an incentive to make sure all prices are accurately reported – it also makes investigating any allegations of questionable practices easier because much of the key information is on public records.

Posted by Marcia Oddi on Wednesday, March 07, 2007
Posted to Indiana Law

Ind. Courts - "Teen Court is almost in session"

A 14News story out of SW indiana reports:

Their roles may be make-believe but their decisions will carry weight. Teen court will soon be in session and these Tri-State students are ready to serve as judge and jury.

The sight of [Vanderburgh] Juvenile Court Judge Brett Niemeier coaching a defendant on the witness stand would bring ethics complaints in a normal courtroom, but Niemeier's not playing sides, he's running Teen Court, and helping prosecutors too. * * *

Monday's case is made up, but the next time these students step into their roles, they'll help decide the fate of a real defendant who's pleaded guilty to a first-time minor offense. Judge Niemeier says it is important to look at all sides, "if somebody's here because maybe they got caught with alcohol. We don't just look at the alcohol problem, we look at maybe a truancy problem, maybe a social issue. We try to solve all of those issues.

Posted by Marcia Oddi on Wednesday, March 07, 2007
Posted to Indiana Courts

Courts - Still more on the upshot of: Kentucky Supreme Court carries out records purge

"Dispute over data destruction means records pile up at office" is the headline to this story by Jason Riley in today's Louisville Courier Journal. This photo tells it all.

An ILB entry from Feb. 28th included this:

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.
Today's story reports:
The state Administrative Office of the Courts stopped taking old cases for purging and storage after being criticized for destroying thousands of court records in November, local officials say.

Posted by Marcia Oddi on Wednesday, March 07, 2007
Posted to Courts in general

Ind. Courts - Federal District Court Judge Sarah Evans Barker featured

"A pioneer on the bench" is the heading to this brief entry in today's Indianapolis Star, honoring Women's History Month:

Mishawaka native Sarah Evans Barker, born in 1943, was appointed to the Southern District Court in 1984 by then-President Ronald Reagan. She had served several years as the U.S. attorney for the district. She was the first woman in Indiana to be appointed to the federal bench, a position that paid her an annual salary of $165,000 in 2006. Barker, who lives in Morgantown, presided over the Firestone Tire class-action lawsuits and ordered the sale of the Indianapolis Baptist Temple. She earned her bachelor's degree at Indiana University and studied law at American University in Washington, D.C.

Posted by Marcia Oddi on Wednesday, March 07, 2007
Posted to Indiana Courts

Ind. Courts - "Lake County Superior Court Judge Robert A. Pete was found dead in his Highland home Tuesday morning"

Andy Grimm of the Gary Post-Tribune reports:

Lake County Superior Court Judge Robert A. Pete was found dead in his Highland home Tuesday morning. A bailiff went to Pete's home late Tuesday morning after the judge did not arrive for morning hearings.

Coroner's officials said the 54-year-old judge apparently died of natural causes.

"He was just a wonderful guy. Kind, compassionate, a great judge," said Chief Judge John Pera. "He was very energetic. He worked hard over there for the citizens of Lake County."

Pete presided over the Hammond court room for five years, facing a retention vote in 2004.

Bailiff Dale Dooley worked for Pete and his predecessor, Judge James Richards, who was at the time the longest-serving judge in the state.

"(Pete) came in and did not miss a beat. There wasn't any change in the courtroom at all," said Dooley, who was not the bailiff dispatched to Pete's home.

Pete's death came as a shock to his staff, who were not aware of any health problems.

"He liked to walk now and again," Dooley said. "When he didn't come in, we knew there was something wrong. He would've called if there was going to be a problem."

Pete's most prominent case was likely a 2004 ruling in a lawsuit filed by residents of Gary's Miller neighborhood that blocked collection of the first round of property tax bills following statewide changes to tax assessments. Pete ruled that state laws that gave massive tax breaks to U.S. Steel and the county's three largest other industrial taxpayers were unconstitutional. * * *

He began his law practice in 1977 and worked as a private attorney for 22 years before becoming a part-time commissioner in the courts. He became a magistrate in the county's Gary courtroom in 1999.

He is survived by his wife, Judith, and their four sons.

Posted by Marcia Oddi on Wednesday, March 07, 2007
Posted to Indiana Courts

Tuesday, March 06, 2007

Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP) [Links corrected]

For publication opinions today (1):

Jude Joseph Perez, M.D. v. James D. Bakel, individually and as personal representative of the Estate of Alora Bakel, deceased - Medical malpractice. "It was appropriate for Dr. Perez to reject such a settlement offer asking him to pay more than was permitted at the time by the Medical Malpractice Act and the language of the Prejudgment Interest Act should not be read as requiring Dr. Perez to pay prejudgment interest because of that rejection. The trial court improperly awarded James prejudgment interest. * * * The trial court properly denied Dr. Perez’s request for judgment on the evidence. Dr. Perez’s failure to timely object waives his arguments regarding James’s closing argument and the admission of Dr. Rogove’s trial testimony. However, because James’s $250,000 settlement offer exceeded the statutory limit, the trial court improperly awarded him prejudgment interest and we reverse that part of the trial court’s order."

NFP civil opinions today (4):

Ronald Phegley and Norma Phegley v. James Stricklin as Hamilton Township Assessor, et al (NFP) - Tax lien issue, affirmed.

Susan Perrine v. Marion County Office of Child Services and Child Advocates, Inc. (NFP) - "Specifically, we hold that a single admitted use of methamphetamine, outside the presence of the child and without more, is insufficient to support a CHINS determination. We further hold that Mother was prevented from arranging for trained child care for her disabled daughter at the time of her arrest. Thus, the trial court clearly erred when it concluded that the unavailability of someone “legally responsible” to care for L.S. at the time of Mother’s arrest and incarceration supported its CHINS determination. Therefore, we reverse the trial court’s judgment."

Mary E. Taylor v. Carl R. Taylor (NFP) - "Mary E. Taylor (“Mother”) appeals the trial court’s order emancipating her and Carl Taylor’s (“Father”) nineteen-year-old daughter, Bridgette, and failing to apportion college expenses for Bridgette. We affirm in part, reverse in part and remand."

David Lauridsen v. Jeanette Lauridsen (NFP) - "We reverse as clearly erroneous the trial court’s finding that Father did not pay the health insurance premiums for his three children. On that issue, we remand to the trial court with instructions that it consider Father’s health insurance premium payments in its determination of Father’s child support obligations."

NFP criminal opinions today (6):

Jerry L. Debacher v. State of Indiana (NFP)

Benjamin S. Wash v. State of Indiana (NFP)

John A. Friend, III v. State of Indiana (NFP)

Wanda Hooten v. State of Indiana (NFP)

Leroy Dinkins v. State of Indiana (NFP)

Jerome Robertson v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 06, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two interesting Supreme Court opinions today

Jason Ronco v. State of Indiana concerns jury impasse. In a 5-page, 5-0 opinion, Chief Justice Shepard wriites:

We adopted Jury Rule 28 to give trial judges more flexibility in dealing with jury deliberations that come to a standstill. It was premature for the trial court in this case to declare an impasse after receiving a question of law from the jury during deliberations. On the other hand, the trial court did appropriately answer the jury’s legal query under Ind. Code § 34-36-1-6. We affirm. * * *

One juror indicated that he still did not understand the question and the court’s answer, that he “felt that [he] needed to hear [the instruction] again,” and that “it was going to be a long night.” (Id. at 122-23.) Based on this comment, the court declared that the jury had reached an “impasse” under Jury Rule 28 and directed that they be brought back into the courtroom. The court reread Final Instructions 22 and 23 only and asked if this resolved the jury’s confusion. * * *

Rule 28 confers discretionary authority for “further proceedings” only at moments of “impasse,” by which is meant something far closer to a deadlocked jury than occurred here. In this case, jurors simply had a question about the findings necessary to convict Ronco for resisting law enforcement. A question is not an impasse. Nor does one juror’s “long night” comment suffice; indication of an impasse must come from the jury’s leader or from the jury as a whole. It was premature to invoke Rule 28. On the other hand, the court’s action was proper under Ind. Code § 34-36-1-6, which gives trial courts some discretion to assist the jury in its deliberations. Section 34-36-1-6 empowers a court to respond to either juror disagreement over testimony or the jury’s desire “to be informed as to any point of law arising in the case.” The trial court must respond to a jury question regarding a point of law involved in the case, whereas other questions should prompt caution lest the judge exercise undue influence.

Porter County Sheriff's Department v. Rita J. and Douglas Guzorek is a 5-page, 3-2 denial of a petition for rehearing.

In the initial opinion, from Nov. 28, 2006 (see ILB entry here), Justice Boehm wrote for the majority and Chief Justice Shepard wrote a strong dissent, joined by Justice Sullivan. The lineup was the same today. From today's majority opinion:

Indiana Trial Rule 15(C) is the same as Federal Rule of Civil Procedure 15(c) for these purposes. We cited Donald v. Cook County Sheriff’s Dept., 95 F.3d 548 (7th Cir. 1996) and Woods v. IUPUI, 996 F.2d 880 (7th Cir. 1993) as federal cases allowing relation back where plaintiffs had incorrectly named immune institutional entities rather than individual defendants. In its petition for rehearing, the Porter County Sheriff Department points to Hall v. Norfolk S. Ry. Co., 469 F.3d 590 (7th Cir. 2006) (November 9, 2006). This was an FELA case where an injured railroad worker sued only his current employer which had bought the railroad after the injury but did not name the former employer as a defendant. The Seventh Circuit held that an amended complaint could not add the former employer after the statute of limitations had failed because there was no “mistake” under FRCP 15(c)(3) that allowed the amended complaint to relate back to the date of filing of the original complaint. The Seventh Circuit determined that Donald does not apply where the plaintiff has been represented by counsel through litigation. Hall, 469 F.3d at 597. The Seventh Circuit also expressly rejected Woods, holding that “[a] plaintiff’s ignorance or misunderstanding about who is liable for his injury is not a ‘mistake’ as to the defendant’s ‘identity.’” Id. at 596. It recognized Donald and Woods may be inconsistent with its ruling but termed them “outliers.”

We recognize that Hall represents a retrenchment and disapproval of Donald. We think, however, that the original purpose of Rule 15(c) was to permit relation back where an institution rather than an individual public employee was initially sued because of a mistake as to the applicable law. The Indiana Trial Rule was adopted only four years later and used the same language as the federal rule. We recognize, however, that a recent trend in federal courts is to adopt a narrower view of “mistake” in FRCP 15(c)(3). We adhere to the view that the “mistake” requirement of Indiana Trial Rule 15(C) is satisfied when a plaintiff mistakenly sues an immune party if the proper party knows of the suit and knows that an error has been made.

From the Chief Justice's dissent:
The petition for rehearing in this case further demonstrates the extent to which this Court’s interpretation of Trial Rule 15(c)’s “mistake of identity” requirement to allow relation back takes us outside the mainstream of authority. Appellant points us to the fact that the very authority relied on by our majority has recently been reconsidered and rejected by the Seventh Circuit Court of Appeals.

The Seventh Circuit recognized that the position taken by this Court’s dissenters represents the weight of authority and that the majority opinion essentially eviscerates the mistake of identity requirement. * * *

In light of the Seventh Circuit’s recent decision in Hall, and to remain consistent with the federal courts’ interpretation of the mistake of identity requirement, this Court should grant Porter County Sheriff’s Department’s Petition for Rehearing.

Interestingly, the 7th Circuit's opinion in Hall v. Norfolk S. Ry. Co., 469 F.3d 590 (7th Cir. 2006) is dated November 9, 2006, while the initial Supreme Court decision is dated Nov. 28, 2006. Hall is out of the ND Ind.

Posted by Marcia Oddi on Tuesday, March 06, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Judge orders police, media records preserved"

Ruthann Robinson of the NWI Times reports today:

CROWN POINT | A Lake County judge granted a defense motion for a speedy trial and for media to preserve information from a news conference announcing an arrest in the 16-year-old slaying of Donna Boesel.

On Monday, Lake Criminal Court Judge Diane Ross Boswell set a trial date of May 14 for Rodney Boesel, 51, accused in the 1990 death of his ex-wife.

On Friday, Boswell issued an emergency order for media attending the Feb. 23 news conference to preserve records of the event. Included is an order for Lake County police to preserve notes from the 16-year homicide investigation and information gleaned during the five-hour interview of Rodney Boesel, during which police said Boesel confessed.

A final hearing on the defense motion to preserve information is scheduled for March 19.

Posted by Marcia Oddi on Tuesday, March 06, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Law. - "State to release report on medical errors"

The Indianapolis Star has a brief item this morning:

Gov. Mitch Daniels and State Health Commissioner Dr. Judy Monroe today will release a report detailing medical errors at Indiana hospitals and clinics. The governor - who issued an order two years ago requiring the disclosure - will be joined by state lawmakers and health officials.
The news conference is set for 11:00 a.m.

The Evansville Courier & Press has a lengthy story today, accompanied by a list of reportable errors. A quote from the main story:

"We felt it was very important this group of hospital leaders make sure we convey that information ahead of time," said Harry Smith, the president and CEO of Deaconess Hospital, during a press conference Monday on the St. Mary's campus.

"Our goal now is to be transparent, to make sure we learn from other institutions, to make sure we thoroughly discuss within our own institutions and make sure we don't have punitive measures that prevent this reporting."

Indiana is the second state in the nation, after Minnesota, to require institution-specific reporting of errors that are considered preventable. Reports include the name of the institution, which of 27 defined errors occurred and in what quarter of the year.

Smith said Deaconess Health System had about 25,000 hospital admissions and 100,000 emergency department visits in 2006. He said the three reportable errors included:

- An elderly patient with a do not resuscitate order was allowed to die after a tube that was supposed to be inserted through the nose into the patient's stomach was instead inserted into the patient's lung, and the patient stopped breathing.

- A female patient on the adult mental health unit suffered a broken nose and significant bruising when a male patient hit her without warning.

- A patient admitted to the emergency department after falling and hitting his head on his garage floor fell and hit his head on the floor of a hospital bathroom. Although a technician was holding the patient's arm, the patient twisted out of the technician's grasp.

The patient died of a cerebral hemorrhage nine days later. Whether the first or second fall caused the hemorrhage is unclear.

The Fort Wayne Journal Gazette has this story, that begins:
Parkview Hospital employees committed five serious medical errors in 2006, officials confirmed one day ahead of the release of a new state report.

Lutheran Hospital was responsible for one serious error during the same period, a spokeswoman said.

The errors from both local hospital groups are listed on the Medical Errors Reporting System report – issued under an executive order signed by Gov. Mitch Daniels. The governor’s order requires all Indiana hospitals, ambulatory surgery centers, birthing centers and abortion clinics to publicly report any serious errors made in patient care.

For background, see this Dec. 18, 2005 ILB entry headed "Indiana's hospitals to report medical-errors beginning January 1st," which has a great deal of information (also the Star link is no longer operative), including links to earlier entries and the Executive Order.

Note: I just unsuccessfully attempted to use the Indiana State Department of Health website with a Firefox browser; apparently it is only designed for the Microsoft browser, which appears to be a big oversight.

Posted by Marcia Oddi on Tuesday, March 06, 2007
Posted to Indiana Law

Ind. Courts - Attorney sees opportunity and seizes it

Dionne Waugh of the Fort Wayne Journal Gazette reports today:

When Allen County court officials discussed banning cell phones in the courts, several people said someone would probably start standing outside the buildings and offer to hold people’s phones for a fee.

Well, two months after the county enacted its ban on electronic devices in court facilities, someone has.

Local attorney Sam Bolinger, 48, applied for and received a transient merchant’s permit about two weeks ago from the city. This will allow him to set up a storage cart and charge money for holding cell phones and electronic storage devices outside the Allen County Courthouse.

“I just saw an opportunity – I think. I’ll find out – to solve an issue for everybody,” he said, “and help those going in and out of the building.”

After getting the permit approved, Bolinger hired a welder to design and build the cart, which began this week. Although he won’t personally be standing outside the courthouse, he has hired five employees and plans to be in business at Berry and Calhoun streets by the end of the month.

The employees, who will be paid above minimum wage, have sales and marketing experience and have been through a criminal background check, he said.

They will wear yellow uniforms and caps – the same color as the cart – and will have photo identification badges.

More from the lengthy story:
Officials banned the devices, they said, because they were disruptive and a security concern when people took pictures and video of witnesses, jurors and attorneys in the courtrooms. Cameras are not allowed in Indiana courtrooms. Attorneys and county employees with proper identification are not subject to the ban.

Despite numerous media reports at the beginning of the year, people are still bringing phones to the courthouse. Court security officer Randy Ulrich said they see 150 to 200 people a day attempt to bring a banned electronic device inside. The main courthouse has about 1,500 visitors a day.

When people realize they can’t bring them in, they either leave or hide them in nearby bushes, planters, alleyways, radiator grates or garbage, court officials said. One person even threw a cell phone away in a courthouse trash can.

But some court officials aren’t sure Bolinger’s plan is a good idea.

They question whether someone who rides the bus or gets dropped off for court will have the money to pay to store a phone and whether people will walk to Bolinger’s stand rather than just going back to their car.

“It’s not well thought out,” Ulrich said.

Sour grapes?

Here is a list of earlier ILB entries on court cell phone bans.

Posted by Marcia Oddi on Tuesday, March 06, 2007
Posted to Indiana Courts

Monday, March 05, 2007

Ind. Courts - Executive director of the Indiana Board of Law Examiners to retire

A press release from the Supreme Court today begins:

Mary Place Godsey, the longtime executive director of the Indiana Board of Law Examiners and a national leader in the field of bar admissions and lawyer testing, will direct her final bar exam this July and then complete her career with the Indiana Supreme Court's Board of Law Examiners, Chief Justice Randall T. Shepard announced today.

Ms. Godsey began her career with the appellate courts in a position formerly called the Secretary to Court for the Appellate Court. Later she worked as a secretary for former Chief Justice Norman Arterburn and started law school. After Chief Justice Aterburn retired, she served as a secretary and as a law clerk for former Justice Alfred Pivarnik until 1982, when she began at the Board of Law Examiners as the first attorney to be named executive director.

“Mary Godsey has been a marvelous rock of stability and character amid the ever changing challenges facing attorney testing and accreditation. In Indiana her impact has been wide-ranging. I would estimate that the bar exam applications of well over half of Indiana 's attorneys came under Mary's careful and deliberate scrutiny. Our state's legal profession does a better job for the people it serves because she has dedicated her career to that goal," said Chief Justice Shepard.

Posted by Marcia Oddi on Monday, March 05, 2007
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

John M. Hartley v. Nancy F. Hartley is a 23-page decision dealing with dissolution of marriage, with a concurrance/dissent beginning on p. 19. Judge Sullivan's dissent begins: "I respectfully dissent with respect to that portion of Part I B which concerns valuation of the pension and 401(k) plans and with Part C insofar as it concerns the distribution of those assets. In my view, the trial court erroneously utilized the after-tax values to determine the value of the assets includable in the marital pot."

NFP civil opinions today (5):

Paul L. Pernokis v. Tamara R. Pernokis (NFP) - "In this dissolution case, Paul L. Pernokis (“Husband”), pro se, appeals the trial court’s division of the marital property. Specifically, he contends that the court erred in awarding 100% of the marital property to his ex-wife Tamara R. Pernokis (“Wife”). Because Husband is incarcerated in the Indiana Department of Correction (“DOC”) and consequently unable to support his child, Husband has not met his burden of showing an abuse of discretion in the trial court’s division of the marital property."

Arthur E. Smith v. Tru-Bass Enterprises (NFP) - "Arthur E. Smith (“Smith”) appeals the trial court’s order issuing a tax deed to Tru-Bass Enterprises, LLC (“Tru-Bass Enterprises”) on property that Tru-Bass Enterprises purchased at a Lake County tax sale. Because Smith, proceeding pro se, has failed to conform to the Indiana Rules of Appellate Procedure or to provide us with a cogent argument on any issue, he has waived his appeal. We therefore affirm the judgment of the trial court."

Carole Pearison v. James Pearison, Jr. (NFP) - "Carole Pearison (“Mother”) appeals an order that denied her petition to modify custody1 and support and that found her in contempt for violating prior court orders concerning the parenting time of James Pearison (“Father”). We affirm."

In the Matter of M.D.T. and X.J., Jennifer Turano v. Bartholomew County Department of Child Services (NFP) - Termination, affirmed.

James F. Glass, Sr. v. Walter E. Martin, Superintendent of Miami Correctional Facility (NFP) - "Glass, who was sentenced by the Marion Superior Court and filed this collateral attack in Miami County where he was incarcerated, argues that he is entitled to habeas corpus relief because the Marion Superior Court judge did not sign the judgment of conviction. Finding that any alleged technical irregularity in the manner of entering a judgment of conviction should have been asserted in a post-conviction petition in the court where the judgment was entered and that, nevertheless, Glass would not be entitled to habeas or post-conviction relief based upon his allegation of error, we affirm the judgment of the trial court."

NFP criminal opinions today (4) [Link to Cases]:

Charles Hardin v. State of Indiana (NFP)

Robert Leturgez, Sr. v. State of Indiana (NFP)

Thomas Carter v. State of Indiana (NFP)

Terry D. Neukam v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 05, 2007
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Open Government: Measures to ban serial meetings pass both houses"

The Evansville Courier & Press has an editorial today on the proposals to end serial meetings:

The bill to ban government boards from holding stealth serial meetings is one of the most important confronting the Indiana Legislature this session.

It may not have the broad public interest of full-day kindergarten or highway funding, but it is essential to honest, transparent government in Indiana at the state and local level. Thats why we have chosen to monitor its progress on this page until the day that it is finally passed.

To that end, the Indiana State Senate and the House have each passed their own versions of serial-meeting bills. We have come far from last year when the bill could not even muster a hearing in the House, although it did pass the Senate.

What this is about is the practice of some government boards to meet in small groups that are less than a quorum, one after another, in order to discuss matters they don't want aired in public.

We dont hear a lot about these meetings and certainly all boards don't do it because they are kept secret. Of course, the most prominent case is the one of the Indiana University Board of Trustees, which met to discuss the firing of then-basketball coach Bob Knight.

Unfortunately, it is not now a violation of the law, although it is clearly a violation of the spirit of the states Open Meetings Law, which is intended to provide Hoosiers open access to their governments proceedings.

It is interesting that opposition to these bills is coming from such groups as the Indiana Association of Cities and Towns, the Indiana Association of Counties and the Indiana School Boards Association. All have testified against the legislation.

Supporting the bill is the Hoosier State Press Association.

Of the two bills that have passed, the House version, sponsored by Rep. Russ Stilwell, D-Boonville, should be the preferred one. It prohibits secret meetings of less than a quorum, but allows for exceptions, such as innocent social gatherings.

According to Courier & Press staff writer Bryan Corbin, the Senate bill does that, but allows for more exceptions.

One of them is extremely bothersome. It would allow boards to hold a series of one-on-one meetings behind closed doors. That would, for all purposes, allow them to continue to circumvent the spirit of the Open Meetings Law, and should be unacceptable to all lawmakers who have the interest of the public at heart.

Posted by Marcia Oddi on Monday, March 05, 2007
Posted to Indiana Government

Ind. Law - Review of status of Indiana wineries [Updated]

The Terre Haute Tribune-Star had a long article this weekend on the status of Indiana wineries. The story by Arthur E. Foulkes begins:

TERRE HAUTE — Indiana’s wineries and wine wholesalers are locked in a legal and legislative battle over how Hoosiers can legally buy wine in the state.

One recent casualty in this war was Rockville-based Terre Vin Winery, said the winery’s owner, David Gahimer. Gahimer closed Terre Vin at the end of 2006. New legislation passed in Indianapolis last year was “almost 100 percent” of the reason the winery closed, Gahimer said.

The Indiana Legislature “cost us 42 accounts in one day,” Gahimer said of a law passed last year that prohibited small wineries from skipping wholesalers and selling directly to retailers.

“The final [law] was not good for the industry,” Gahimer said. “We cut our losses and quit.”

I haven't read of any new wine-related legislation moving in this session, but here is a list of alcoholic beverage bills intorduced.

Later in the story, which covers a lot of ground:

The 2005 Supreme Court decision banning discrimination against out-of-state wineries was initially seen as a victory by the wineries and the consumer groups, but now battles are being waged in the different state legislatures — including Indiana’s. Other challenges to the three-tier system, such as a federal lawsuit filed by retail giant Costco to allow retailers to buy directly from producers (skipping wholesalers completely), could bring about even greater change.

In Indiana, the General Assembly wrangled in 2006 primarily over two different bills, one favored by wineries and the other by wholesalers. The result was a compromise package of bills that left both sides “equally happy or unhappy,” WSWI’s Purucker said, although he said he was not sure what changes in the law Indiana’s wholesalers would seek.

“In the art of compromise I think the Legislature did a pretty good job,” Purucker said.

In addition to the Costco case, “a new crop of litigation is fermenting across the nation” regarding wine shipping laws and regulations, according to a recent article in the National Law Journal. One such case, filed in a federal district court in southern Indiana, challenges the requirement that customers wanting wine shipped to their homes first must go to the winery from which they want to order.

James Tanford, an Indiana University law professor who has brought more than 20 suits on behalf of wineries, argues that the in-person requirements for ordering wine discriminates against wineries in distant states, the National Law Journal reports.

Little legislative action is expected in 2007, observers on both sides of the debate have said, but wineries and consumer groups seem less happy with the status quo than the wine wholesalers.

“We have a system where we passed laws … at the end of prohibition [and] ever since [new laws] have been tacked on like Band-Aid on top of Band-Aid,” Butler said. “It’s a very convoluted system. Most of the legislators do not understand it.”

The “web of confusion” created by the shipping requirements in the state have precluded shipping as a cost-effective option for Hoosier wineries, Bill Oliver said. “It’s a tangled up mess right now.”

A list of earlier ILB entries on wine shipping may be found here.

[Updated 3/8/07] A new grass-roots organization, VinSense Inc., "aiming to open Hoosier markets to wines" is announced in this press release, and its main page is here.

Posted by Marcia Oddi on Monday, March 05, 2007
Posted to Indiana Law

Sunday, March 04, 2007

Ind. Law - In Memoriam: State Senator Anita Bowser

An Indiana attorney and legislator, State Senator Anita Bowser (D - Michigan City), died today.

Mitch Harper of Fort Wayne Observed, who served with Senator Bowser in the House, has posted an entry marking her passage, and I'd like to echo it, as well as that of Gary Welsh of Advance Indiana, who has written a heartfelt tribute.

Posted by Marcia Oddi on Sunday, March 04, 2007
Posted to Indiana Law

Ind. Gov't. - Senate passes a non-transparent and convoluted pay raise bill

A few years back the General Assembly enacted a non-transparent and convoluted series of bills that gave members, their families and spouses heavily-subsidized health insurance for life; provided that the state would contribute to legislative pensions at the rate of $4 from the state for every $1 from the legislator; and insured that legislative pension information was not publicly accessible, and that the recipients and costs of the health-care plan was also inaccessible. (See this ILB entry from 1/6/06.)

A number of those legislators involved are no longer in the General Assembly, they have retired (some in their 40s) and are now reaping the benefits. Others were defeated (and are now reaping the benefits), some precisely because the voters, once they finally learned the extent of the benefits, were not happy.

The health insurance plan was disavowed by the House leadership last session and by the leadership of both Houses at the beginning of this session. There was assurance that the law authorizing it would be repealed, so that it would not spring up again at some later date. There was talk of changing the pension plan so that it was a 1:1 match, like that of state employees.

SB 401, passed by the Senate last week, shows that the promised changes may be made, but that significant tradeoffs have been added to the picture.

Take a look at the first section of SB 401:


[EFFECTIVE JULY 1, 2007]: Sec. 1. (a) The annual salary of the
members of the general assembly shall be the following:
        (1) Before 2009,
eleven thousand six hundred dollars ($11,600).

         (2) In 2009 and thereafter, an amount equal to eighteen
percent (18%) of the annual salary of a judge under
IC 33-38-5-6, as adjusted under IC 33-38-5-8.1.

One-half (1/2) the annual salary shall be paid on the fifteenth
day of January, and one-half (1/2) the annual salary shall be paid on the
fifteenth day of February.

Q - Why 2009? A - Because the Constitution prohibits a General Assembly from raising its salary during the term for which it was elected.

Q - Why pay the entire year's salary in the first two months? A- So that a legislator who resigns on Feb. 16th can keep the entire year's salary.

Q - Why not simply raise the salary from $11,600 to what works out to about $21,700 starting in 2009? A - The cynical answer is because that would be too transparent. The actual answer is that tieing it to the trial judges' salaries, which in themselves are now tied by a law passed in 2005 (IC 33-38-5-8.1) to state employees' salaries, means the General Assembly would never have to vote on its own pay raise again, and that in a few years it would take an accountant with knowledge of state government to read this section and calculate what the salaries of legislators were at that time.

Take a look at the new IC 2-3.5-5-5.5 added by SECTION 3, dealing with legislative retirement benefits, and particularly at the new subsection (b):

    (b) This subsection applies after December 31, 2008.
Notwithstanding IC 2-3.5-2-10, as used in this section, "salary"

means the total of the following amounts paid to a participant by
the state for performing legislative services in the year in which the
amounts are paid, determined without regard to any salary
reduction agreement established under Section 125 or Section 457
of the Internal Revenue Code:

        (1) Salary.

        (2) Business per diem allowance and allowances paid in lieu of
the submission of claims for reimbursement (but excluding
any allowances paid for mileage).

        (3) Allowances paid to officers of the house of representatives
and the senate.

Q - What does this mean? A - It seems to mean that the new 2009 "salary" of about $21,700 is not the "salary" for the purposes of legislative PERF. The definition in IC 2-3.5-2-10, itself applicable only to legislators, is expanded here to include the per diem allowance and leadership allowances.

Q - Why is this important? A - because the new subsection (c) provides that:

The state shall make a contribution to the defined contribution fund on behalf of each participant on June 30 of each year. The amount of the contribution is determined by multiplying the participant's salary for that year by a percentage determined for that year by the PERF board under subsection (d).
Subsection (d) seems to provide that in 2009 and beyond the state's PERF and pension contribution to legislators will be the same as that of state employees.

SECTION 4 amends an existing open-ended, continuing appropriation, found at IC 2-3.5-5-8 to adapt it to the new provisions.

Q - What does that mean? A - Most items in the budget are specific amounts. You can read the budget bill and see how much is being appropriated to cover the personnel costs of an agency. You can get the budget breakdown and see the details. But not so for the legislative pension plan. The language says, in essence, there is hereby appropriated for each biennium whatever is necessary (and the amount doesn't appear in the budget bill).

SECTION 10 provides for raises for the governor, beginning in 2009, tied to state employee salaries.

SECTION 12 amends IC 5-10-8-8, which deals with group health insurance for public employees, including the controversial subsections (f) and (j) concerning health care for legislators. Rather than repealing IC 5-10-8-8.4, which provides that the legislative health care benefit may not be revoked except by the law passed by the General Assembly:

IC 5-10-8-8.4. Revocation or alteration by employer
Sec. 8.4. Except as provided by an enactment of the general assembly, an election by an employer under:
(1) section 8(f) of this chapter concerning the payment of a retired employee's premium; or
(2) section 8(j) of this chapter concerning Medicare coverage and program eligibility;
may not be revoked or altered at any time by the employer or a subsequent employer to the detriment of a person entitled to benefits under section 8.2 of this chapter.
As added by P.L.184-2001, SEC.6.
SB 401 adds a new provision to the end of section 8:
(l) The president pro tempore of the senate and the speaker of the house of representatives may not elect to pay any part of the premium for insurance coverage under this chapter for a former member of the general assembly or the spouse of a former member of the general assembly whose last day of service as a member of the general assembly is after July 31, 2007.
Q - What does all this mean? A - It seems to mean that the existing health plan remains in place for retired legislators, their spouses, and employees, but legislators (and their spouses) retiring after this July will not be covered.

Q- Didn't the leadership revoke the plan last year - does this extend it another year? A - I don't know.

SECTION 13 repeals the existing IC 2-3.5-5-5, which appears to be the 4:1 contribution. It currently reads:

Sec. 5. The state shall make contributions to the defined contribution fund on behalf of each participant on June 30 of each year. The amount of these contributions must equal twenty percent (20%) of the annual salary received in that year by each participant for services after June 30, 1989.
As added by P.L.6-1989, SEC.1.
Q - How was "annual salary" defined - was it the $11,600, or more? A - I don't know.

Here is a list of the Senators who voted for and against this bill, from an Indianapolis Star story dated 2/28/07.

At least two papers have written strong editorials saying this legislative pay raise, if there is to be one, has to be more transparent, and not tied to the judges and the state employees, etc. (Reminds me of the song - "The knee bone's connected to the thigh bone, the thigh bone's connected to the hip bone", etc.)

Here is the Star editorial from Feb. 22nd, titled "Lawmakers must keep salary issue out in the open." Here is the Fort Wayne Journal Gazette editorial, titled "Increase pay – openly."

There is more to write, but not right now, on, to quote the Star, "the daily stipends, committee bonuses and other ancillary pay, which boost the total earnings of a legislator to an average of more than $40,000 a year" currently. Where are these amounts set out in the law? How often, and how, are they increased?

Posted by Marcia Oddi on Sunday, March 04, 2007
Posted to Indiana Government | Legislative Benefits

Law - Three-part NY Times series on sex offenders [Updated]

"Doubts Rise as States Detain Sex Offenders After Prison" is the headline to the NY Times front-page story today, the first of a three-part series titled "Locked Away." Today's story begins:

The decision by New York to confine sex offenders beyond their prison terms places the state at the forefront of a growing national movement that is popular with politicians and voters. But such programs have almost never met a stated purpose of treating the worst criminals until they no longer pose a threat.

About 2,700 pedophiles, rapists and other sexual offenders are already being held indefinitely, mostly in special treatment centers, under so-called civil commitment programs in 19 states, which on average cost taxpayers four times more than keeping the offenders in prison.

In announcing a deal with legislative leaders on Thursday, Gov. Eliot Spitzer, a Democrat, suggested that New York’s proposed civil commitment law would “become a national model” and go well beyond confining the most violent predators to also include mental health treatment and intensive supervised release for offenders.

“No one has a bill like this, nobody,” said State Senator Dale M. Volker, a Republican from western New York and a leading proponent in the Legislature of civil confinement.

But in state after state, such expectations have fallen short. The United States Supreme Court has upheld the constitutionality of the laws in part because their aim is to furnish treatment if possible, not punish someone twice for the same crime. Yet only a small fraction of committed offenders have ever completed treatment to the point where they could be released free and clear.

[Updated 3/5/07] Here is Part II, "A Record of Failure at Center for Sex Offenders."

Posted by Marcia Oddi on Sunday, March 04, 2007
Posted to Indiana Law

About this blog - ILB is 11th highest ranking law blog

This ILB ran across this site this morning and was thrilled to find that the ILB is nationally ranked #11 in the all-time list of Most Popular Blawgs (of 1,690 law blogs), at least according to this service (Justica Blawg). And so far in March 2007, the ILB is #8.

Posted by Marcia Oddi on Sunday, March 04, 2007
Posted to About the Indiana Law Blog

Law - Former NCAA investigators are valuable law firm additions

If you have any interest in sports law, don't miss today's front page story in the NY Times. Headlined "Facing N.C.A.A., the Best Defense Is a Legal Team," the long story by Joe Drape mentions Indianapolis law firm Ice Miller a number of times. Our new IU law - Indy dean (see this 1/20/07 ILB entry) is quoted. And I learned facts about IU's Coach Sampson's Oklahoma investigations I hadn't known before:

“You’re talking about a big-time commercial entertainment business that generates millions upon millions of dollars for institutions,” said Gary Roberts, who directed the sports law program at Tulane Law School and was the university’s faculty representative to the N.C.A.A.

In fact, a total of $132.6 million will be distributed through their conferences to the 65 teams that qualify for this year’s N.C.A.A. men’s basketball tournament. A major bowl game last season was worth $14 million to $17 million to each of the conferences of the participating teams.

“There are those who argue that the enforcement process is, in a large part, window dressing,” Mr. Roberts added, “that it is part of keeping the commercial enterprise viable. I don’t think they are crazy.”

Mr. Roberts, who will become the dean of the Indiana University School of Law in Indianapolis in July, said institutions that hired specialized law firms usually fared better than those that did not.

It used to be that the N.C.A.A. caught wind of a problem at a university, investigated and meted out punishment. Now, with a stretched staff and member institutions often feeling wary of the enforcement process, outside firms have become the nexus for law and order in college sports. * * *

David Price, the N.C.A.A.’s vice president for enforcement services, acknowledged that many athletic programs continued to bend, if not outright break, the rules. And his staff, which has nearly doubled in the past few years, cannot hope to catch them all. The N.C.A.A. does not have subpoena power, and it must get all information on the record to build a case.

“We’re certainly very busy, but I also think the N.C.A.A. membership doesn’t want a police state,” he said.

That is why representatives from law firms like Bond, Schoeneck & King; Ice Miller in Indianapolis; and several others consistently attend the 15 to 20 hearings a year held by the N.C.A.A.’s Committee on Infractions. These law firms are the first places athletic directors turn to when confronted with allegations of wrongdoing by their teams.

Athletic directors say a thorough and quiet internal investigation provides an institution with a greater understanding of what went wrong and minimizes the risk of a public relations disaster. Because these lawyers were once a part of the N.C.A.A., they say they understand what punishment fits a particular a offense, so they recommend a course of corrective action for the university and penalties it can immediately impose.

Although the N.C.A.A.’s infractions committee sometimes adds further restrictions, it rarely rejects the recommended sentence. * * *

The University of Oklahoma hired Ice Miller when it faced investigations involving its basketball and football programs. The former men’s basketball coach Kelvin Sampson made prohibited phone calls to prospects, and two football players were found to have received no-show jobs at a booster’s car dealership.

Ice Miller’s collegiate sports practice offers Robin Green Harris, who spent nine years at the N.C.A.A., including a five-year stint as the director of the infractions committee, and Mark Jones, who spent 18 years at the N.C.A.A., most recently as managing director of enforcement. Oklahoma’s athletic director, Joe Castiglione, said the firm’s credentials attracted the university, which has paid $336,000 in legal fees since 2003.

Last May, the Oklahoma men’s basketball program was placed on probation for two years and lost scholarships and some recruiting visits and calls. Now at Indiana, Sampson has been barred from calling and visiting potential recruits for a year.

On the advice of Ice Miller, Oklahoma disassociated from the booster, and reduced the number of football scholarships and limited the number of coaches allowed to recruit off campus. In April, the university will appear before the N.C.A.A. infractions committee, which will decide if these football penalties are sufficient.

Posted by Marcia Oddi on Sunday, March 04, 2007
Posted to General Law Related

Not law but important - Still more on negotiating medical bills [Updated]

This ILB entry from Feb. 28th quoted from a NY Times story on negotiating medical costs.

Today a story in the Gary Post-Tribune by Piet Levy tells about the Post-Tribune's efforts to do just that.

This is a really valuable story that should be read in full; bravo to the Post-Tribune.

[Updated 3/5/07] Today's NY Times has a front-page story headlined "Without Health Benefits, a Good Life Turns Fragile," part of a continuing series called "The Uninsured: Middle Class Not Exempt."

Posted by Marcia Oddi on Sunday, March 04, 2007
Posted to General News

Ind. Law - Fillenwarth Dennerline Groth & Towe partner William Groth featured

Continuing its occasional "My Big Break" series, the Indianapolis Star today features Bill Groth, partner at Fillenwarth Dennerline Groth & Towe, which specializes in employment and labor law. Some quotes:

My first big break came in the summer of 1975, just after graduating from law school. * * * One of the several firms I interviewed at was the small Indianapolis labor law firm then called Fillenwarth & Fillenwarth. * * *

At that time, the Fillenwarth firm was a father-son partnership which represented a number of both large and small labor organizations. Ed Fillenwarth Jr. was only 11 years older than me but already a seasoned labor lawyer. During my initial interview, Ed warned me that working as a labor lawyer would require considerable intellectual dexterity, people skills, long hours, and relatively modest pay. Nevertheless, when he extended an offer for a position as an associate attorney, I accepted without hesitation.

Over the next several years, Ed served as my mentor, schooling me in the intricacies and nuances of all aspects of labor relations law. He gave me independence in handling cases, allowing me to interact professionally with such giants of the management bar as Lee Cross, Henry Ryder, Chuck Whistler and George Zazas. Just as Ed had warned, the job did in fact prove to be a demanding one. But I was always mindful that he had given me the rarest of privileges: earning a living while representing clients and causes I believe in.

Groth is also president of American Values Alliance.

Posted by Marcia Oddi on Sunday, March 04, 2007
Posted to Indiana Law

Ind. Courts - "Allen County near top of U.S. in female judges: But some observers doubt equality has been achieved"

That is the headline to this lengthy story today by Dionne Waugh in the Fort Wayne Journal Gazette. A few quotes:

Though Allen County is following a national trend with an increase of female attorneys, it seems to be ahead of the game with its higher numbers of female judges. There are two female Superior Court judges, four female Superior Court magistrates and one female federal court judge. The county also has a female prosecutor and high-profile female defense attorney, who’s one of few local attorneys certified to try death penalty cases. In northeast Indiana, DeKalb and Huntington counties have female prosecutors.

The women aren’t sure why Allen County, like Marion County, has more women judges than most localities across the country, but they do feel the area has evolved since they first began practicing law. They say strong female attorneys before them paved the way, but they disagree about whether women have finally arrived as equals. * * *

When [Nancy Eshcoff] Boyer [who handles civil cases in Allen Superior Court] entered Indiana University Law School in Indianapolis, 13 percent of her classmates were women. Today, she said, it’s closer to 50 or 51 percent.

“So I would say we’ve made giant leaps forward since 1976 in the last 30 years,” she said, adding that she’s seen the number of female attorneys practice before her double from 25 percent to 50 percent in the past 15 years.

The same is true across the country. On the federal bench, 201 of the 875 judges, or 23 percent, are women, according to USA Today. Among Indiana trial courts, 103 of the 460 judges and magistrates, or 22 percent, are women. At the conference for new judges last month, [Fran] Gull [chief judge of Allen County Superior Court] noted that 12 of the 32 judges, or 38 percent, were women.

Nationally, 25 percent of the country’s lawyers are women and 44 percent of law students are women, which is almost double what it was in 1985, according to www.uslaw.com . As of 1997, women constituted 14 percent of law firm partners, 19 percent of full professors at law schools, 8 percent of law school deans, 19 percent of federal judges and 20 percent of state civil judges, according to the American Bar Association.

Boyer attributed part of that increase in Indiana to U.S. Sen. Evan Bayh, who as governor from 1989 to 1997 sought to boost the number of women in the judiciary, she said.

“When appointments would come available, he would look for qualified women who were available for the appointment as well as qualified men,” she said. “He would at least give them as much consideration as the male attorneys and he was just being fair. So I think some of that had to do with Indiana having a fair number of women in the judiciary.” * * *

As for why Allen County has more female judges than most counties, the women aren’t sure, but surmise that it’s a reflection of society and the result of more women attending law school.

Despite that, Gull’s not convinced that much has changed.

“I think women are perceived better than they were originally,” she said. “There are more women partners in private firms, more women trial attorneys than there ever used to be. We have come a long way, but not far enough because we’re still seeing articles like this where we’re talking about it. We probably always will.”

Boyer understands Gull’s point of view and sees Justice Ginsburg’s concern, noting that the Indiana State Supreme Court has had only one female justice, who served from 1995 to 1999.

“But here in Allen County, I think we’ve been fortunate to have qualified women that have been appointed, elected and hired as judicial officers,” Boyer said. “A year or two ago, I had a jury where the plaintiff’s attorney was a woman and the defense attorney was a woman and we were trying it in front of a woman judge. Every one of us were women and it didn’t seem to faze the jury at all.

“When we can get to that point where it doesn’t matter if you have a woman judge or a woman attorney or a male attorney, and nobody notices – they just notice their legal ability – then I say it’s no longer an issue and then we will have finally arrived.”

Posted by Marcia Oddi on Sunday, March 04, 2007
Posted to Indiana Courts

Environment - More on CAFO bills pending in General Assembly

Rick Callahan of the AP has a lengthy story today in the LCJ headlined "Legislators tackle livestock headaches: Factory-style farms increase." Some quotes:

INDIANAPOLIS — Rural Indiana residents have complained for years about the stench and dust wafting from the state's largest livestock farms.

Those concerns are reflected in several bills this legislative session aimed at tightening the farms' regulation.

As lawmakers debate that legislation, however, records show state regulators are approving the sprawling, factory-style farms at a record rate.

Last year alone, the Indiana Department of Environmental Management approved 106 of the very largest of these farms, clearing the way for more than 2.4 million animals at new farms, according to department records.

Those 106 farms are the largest number of concentrated animal feeding operations that the agency has approved in a single year since it began giving them separate approval in 2003 from smaller farms known as confined feeding operations.

In fact, last year's approvals of the largest farms represent more than the agency endorsed in the previous three years combined, records show.

There is much more to the story. For more on pending legislation, see this ILB entry from 2/27/07.

Posted by Marcia Oddi on Sunday, March 04, 2007
Posted to Environment

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:

Despite partisan finger-pointing over which side was to blame for the defeat of the governor's cigarette-tax health-care plan or the lack of funding for Interstate 69, the Indiana General Assembly got a significant amount accomplished before it broke for its mid-session recess.

Last week saw deadlines for the Indiana House to pass its own bills and send them to the state Senate and vice versa. Lawmakers worked late several nights in a row, hearing dozens of bills. * * *

After a halftime break of several days, lawmakers return to the Statehouse this week for the second half of their 2007 session. Senate and House committees will hear each other's bills, and both sides will try to pass a state budget by the April 29 deadline.

The story concludes with a useful list giving "the status of some top bills this session."

Niki Kelly of the Fort Wayne Journal Gazette also has a good rundown today. It begins:

INDIANAPOLIS – After a two-year span with Republicans in control of both chambers of the Indiana General Assembly, it’s clear that Democrats are asserting their power over GOP Gov. Mitch Daniels’ agenda.

And his own party isn’t giving him much help, either.

Of the five major issues facing lawmakers at halftime of the legislative session, the ones in the governor’s arsenal that look destined for failure are privatizing the Hoosier Lottery and raising the cigarette tax. But leaders believe compromises will be found on the state budget and some sort of property tax relief.

The final component – a phase-in of state-supported full-day kindergarten – has passed the Senate with little debate.

Overall, though, leaders and members assessing the first half agree the mood is tense.

“We haven’t had a Republican governor and Democrat house in 20-plus years,” said Rep. Win Moses, D-Fort Wayne. “(The GOP) is trying to slow the process down some and not give up anything that might be a bargaining chip in April.

“I have never seen a session in which everyone knows that every major issue will be decided in the final three days. Everything else is just preparation.”

Posted by Marcia Oddi on Sunday, March 04, 2007
Posted to Indiana Law

Courts - Kansas: "Judge orders newspapers to remove story from Web sites"

The St. Louis Post-Dispatch has this AP report, dated 3/3/07:

KANSAS CITY, Mo. (AP) -- A judge has ordered two Kansas City newspapers to remove articles about an area utility from their Web sites and temporarily barred the papers from publishing the story.

Jackson County Circuit Judge Kelly Moorhouse issued the temporary restraining order Friday against The Kansas City Star, a daily, and The Pitch, a weekly alternative newspaper that publishes on Thursdays.

The judge also ordered the papers to remove articles about the Board of Public Utilities of Kansas City, Kan., from their Web sites. Both papers had posted the stories Friday before the order but removed the articles by Saturday morning.

Both papers prepared stories about the operations at the BPU based on a confidential document they received. The document was prepared by Stanley Reigel, a Stinson Morrison Hecker attorney working for the utility.

The judge's order said the document was privileged legal communication and BPU would be "irreparably harmed" if the newspapers didn't remove the articles from their Web sites.

Moorhouse said the BPU had "a protected interest in its attorney-client privileged information and monetary damages which might result from a publication of such information would be difficult or impossible to measure in money."

Editors from both papers said they would appeal the order.

Mark Zieman, editor and vice president of the Star, said the public has the right to know about the operations of local utilities.

"To have a published story pulled from our Web site is unprecedented and unbelievable," said Zieman. "When justice prevails, we will publish our findings again."

C.J. Janovy, editor of The Pitch, said she was "appalled" by the order and the paper planned to appeal.

Sam Colville, the Star's attorney, said the injunction violated the constitutional rights of the media and also restricted the public's right to be informed.

"Every moment The Star is restrained constitutes further damage to the constitutional rights of each of us," Colville said.

A message left with the BPU by The Associated Press Saturday was not immediately returned.

Moorhouse scheduled a hearing in the matter for 9:30 a.m. next Friday, although the Star said its attorney would try to seek an expedited hearing.

The Kansas City Star reports the order here, in a story that concludes:
Cases of prior restraint — in which the government tries to prevent the publication of information — are extremely rare.

In Near v. Minnesota, the U.S. Supreme Court ruled that government attempts to censor the media are presumed unconstitutional.

Over the years, the court has repeatedly ruled that courts can try to prevent the dissemination of information only if it presents a “clear and present danger” or a serious and imminent threat to the administration of justice.

The KS Star provides a link to the restraining order.

The Star has taken down its story from the prior day. Here is what Google shows now:

BPU document details possible clean-air violations
Kansas City Star, MO - Mar 2, 2007
At least 15 projects and upgrades at power plants operated by the Board of Public Utilities of Kansas City, Kan., may have violated federal clean air laws, ...

Posted by Marcia Oddi on Sunday, March 04, 2007
Posted to Courts in general

Saturday, March 03, 2007

Ind. Courts - More on: Supreme Court Chooses New Computer System Vendor

Updating this ILB entry from Nov. 6, 2006, the Bloomington Herald Times reports today, in a story by Marcela Creps:

Indiana’s plan to launch a statewide case management court system will start with help from Monroe County.

The Indiana Supreme Court hopes to link all courts and clerk offices across the state, and it approached Monroe County to serve as the initial test site.

The new system will not only allow courts to operate more efficiently, it will give the court employee the ability to analyze their own work to ensure its effectiveness.

Initial work was completed last week as representatives from Tyler Technologies Inc. worked with court staff.

“We have a team of five people, and we’re spending a day in the life of Monroe County,” said Linda Low, project executive for Tyler Tech.

Low said each county court system has its own processes, so the challenge will be creating a system and then training employees in how to re-engineer their current methods.

According to Indiana Supreme Court Justice Frank Sullivan Jr., more than 1.5 million cases are filed in Indiana courts each year. The project will help everyone from law enforcement officers to private citizens receive more accurate and timely information.

“We must ensure that all the functions required by properly managed cases and to produce court information for others can be met by Tyler’s system,” Sullivan said. “That is why this work in Monroe County is so important.”

Rand Lennox, project manager for the Indiana Supreme Court’s Judicial Technology and Automation Committee, said Monroe County was chosen because it is large enough to see high volume. Marion County’s small-claims court was also chosen.

Now that initial information has been gathered, Tyler will start building a test system, which it hopes to deliver in April. Over the summer, testing and training on the new system will take place, with the final version completed by the end of the year.

“This promises to be a huge step forward, compared to the present state of our technological resources,” said Judge Kenneth Todd, presiding judge of the Monroe Circuit Court Board of Judges.

A check of the Indiana Court's JTAC website shows that currently the most recent information there on this project is from Nov. 6, 2006.

Posted by Marcia Oddi on Saturday, March 03, 2007
Posted to Indiana Courts

Ind. Courts - Cass County Courthouse security upgrade

Dave Kitchell of the Pharos-Tribune writes:

Walking through the first floor of the Cass County Government Building will soon be like walking through Indianapolis International Airport.

Grant money county officials received has been used to buy X-ray equipment. Two hand-held wands, an X-ray conveyor and a walk-through X-ray machine will be used at the east entrance of the building off Fourth Street.

There’s just one problem, County Commissioner Dave Arnold said Thursday. There’s no funding for the positions to man the equipment.

That will be one of the issues the Courthouse Security Committee he chairs will work out sometime soon. Arnold said the equipment would require one full-time and two part-time employees, with the full-timer and one part-timer on duty whenever the courthouse is open.

“All the county courthouses are going to higher security,” he said.

Posted by Marcia Oddi on Saturday, March 03, 2007
Posted to Indiana Courts

Law - Still more on "Big Insurer Will Pay 640 Katrina Claims"

Updating this ILB entry from Feb. 15th reporting that a federal judge had rejected the State Farm settlement and had scheduled hearing, NPR this morning had this report.

Posted by Marcia Oddi on Saturday, March 03, 2007
Posted to General Law Related

Law - Two articles this week referencing Lawrence v. Texas

The U.S. Supreme Court's 2003 decision in Lawrence v. Texas is the take-off point for two law articles this week.

Vivia Chen's article in The American Lawyer, headlined "Top Law Firms Undergo a Rainbow Revolution," begins:

In his famous dissent in Lawrence v. Texas, the 2003 U.S. Supreme Court decision that struck down Texas's same-sex sodomy law, Antonin Scalia railed against the legal profession for embracing the "anti-antihomosexual culture." Well, Scalia got that right.

Not only are the nation's elite law firms not anti-gay, they are putting out the lavender welcome mat. Perks that seemed radical just 10 years ago are now standard fare at Am Law 200 firms: health care benefits for domestic partners, nondiscrimination pledges and sponsorship of gay organizations. Firms are also stampeding to recruit candidates at gay job fairs. And according to a survey by gay rights organization Human Rights Campaign, the legal profession ranks high in gay-friendliness when compared to other industries.

Howard Bashman's article for Law.com, titled "'Lawrence' Fails to Open Floodgates to Unfettered Sexual Freedom," begins:
Perhaps owing to the nation's puritanical origins, in the United States we love to legislate about sex -- even sex between consenting adults or between consenting adults and inanimate objects.

In the aftermath of the U.S. Supreme Court's 2003 ruling in Lawrence v. Texas invalidating a Texas ban on homosexual sodomy between willing adult participants, many wondered whether other laws regulating sexual conduct between consenting adults would be vulnerable to legal challenge.

If two recently issued appellate court rulings are any indication, the post-Lawrence fears of those concerned that public morality would no longer remain a valid basis for legislating consensual sexual conduct have proven to be overblown. Instead, these rulings demonstrate that, even where consenting adults are involved, Lawrence has failed to usher in an "anything goes" era, free from governmental interference.

Posted by Marcia Oddi on Saturday, March 03, 2007
Posted to General Law Related

Ind. Law - "Hobart council candidate found to have criminal record"

Some quotes from a story today by Piet Levy of the Gary Post-Tribune:

A day after Merrillville council candidate Tom Goralczyk claimed David Uzelac was ineligible to run for office because of his criminal record, a similar situation may have arisen in Hobart.

John Curley, Lake County GOP chairman, was notified late Thursday night by a colleague that Mark A. Kopil, a candidate for Republican Tom Ehrhardt's seat on the Hobart City Council, pleaded guilty in 2002 to a misdemeanor charge of theft for stealing a $500 portable radio from the Merrillville Environmental Management Association when he was a volunteer for the organization.

The charge had been reduced from a felony, and Kopil served a year suspended.

But according to a state law passed in 2005, any person convicted of a felony reduced to a misdemeanor can't run for office. * * *

Kopil said he is trying to get his record expunged, claiming the charges were politically motivated. If he has no luck there, he plans to file an appeal.

Here is a Jan 26th ILB entry on the David Uzelac issue, including links to some related ILB entries.

Posted by Marcia Oddi on Saturday, March 03, 2007
Posted to Indiana Courts

Ind. Courts - "Governor appoints New Castle city judge"

From the Muncie Star-Press:

NEW CASTLE -- Gov. Mitch Daniels on Friday announced the appointment of Carol Goodwin as New Castle City Court judge.

She succeeds James Small, who resigned as judge Jan. 23 to launch a campaign for mayor. Small had been appointed by Daniels last year to succeed the most recently elected city court judge, David Sadler, who had stepped down to run for a Statehouse seat.

Posted by Marcia Oddi on Saturday, March 03, 2007
Posted to Indiana Courts

Ind. Courts - More on: "Hammond City Court on last legs?"

Apparently not, according to this story today in the NWI Times, written by Susan Brown:

HAMMOND | The City Court won't see its demise any time soon despite a recent veto by Mayor Thomas McDermott Jr.

With the veto against the court's renewal upheld by the City Council last week, it appeared the court would cease to exist by Dec. 31 of this year as prescribed by ordinance.

Instead, experts agree state law prevents the court from being abolished until 2010.

"It was too late anyway," said Tom Carusillo, director of trial court services for the state court administrator. "If you were going to establish or abolish a court you would have had to do it in 2006."

The next opportunity is 2010, he said. State law allows to establish or abolish a court every four years.

Once a state court is created, state law simply dictates it exists until it is abolished. It makes no requirement for four-year renewals as has been the city's practice.

The ordinance is expected to be amended to comply with state law when the council next meets March 12.

"The ordinance is (written) so everybody understands the court exists until the council decides it will not exist," City Attorney Kris Kantar said Friday.

Kantar said the court has been operating since at least the 1930s, though the original ordinance appears not to have been written until 1978.

Kantar said it's unclear why the city's ordinance has been calling for the court's renewal every four years when it hasn't been necessary since at least 1986.

"This is the way it's always been done," she said.

The earlier story, from Feb. 26th, is available here.

Posted by Marcia Oddi on Saturday, March 03, 2007
Posted to Indiana Courts

Ind. Decisions - "Property owners can't be sued over falls on snowy sidewalks"

The main-stream media has now picked up on Wednesday's Court of Appeals decision in the case of Denison Parking and City of Indianapolis v. Davis, summarized in this Feb. 28th ILB entry titled "Court of Appeals rules no duty to clear adjacent public sidewalks."

Jon Murray and Brendan O'Shaughnessy of the Indianapolis Star report today:

Property owners who ignore Indianapolis' snow-removal ordinance can't be held liable when pedestrians slip and fall on sidewalks, the Indiana Court of Appeals ruled this week.

But city officials hope the threat of a [$50.00] fine will be reason enough for businesses and residents to clear sidewalks adjacent to their properties.

"Some businesses may read the decision to say they no longer have to clear their sidewalk, but I don't believe it relieves their civic duty," said James Osborn, chief litigation counsel for the city.

In Wednesday's 3-0 ruling, the appeals panel said Denison Parking can't be sued for damages by a woman who fell on an icy sidewalk in January 2001 outside its Bank One parking garage on the east side of Downtown.

Gary Welsh of Advance Indiana adds this morning: "The problem is compounded because the City of Indianapolis, almost without exception, refuses to enforce its own ordinance requiring property owners to keep sidewalks free of snow and ice."

Posted by Marcia Oddi on Saturday, March 03, 2007
Posted to Ind. App.Ct. Decisions

Ind. Law - "Birth-control debate sinks abortion bill"

Billl Ruthhart of the Indianapolis Star has an interesting story today - some quotes:

A debate over the definition of contraceptives has killed a bill that would have made Indiana abortion law among the strictest in the nation.

As originally proposed, Senate Bill 135 would have required Indiana doctors to tell a woman seeking an abortion that the fetus might feel pain and that life begins at conception.

But, while the bill was in committee, a sentence was inserted that defined contraception as the "use of a drug or device that has been approved to prevent pregnancy by the Federal Food and Drug Administration."

The federal government has defined contraception as anything that prevents pregnancy before a fertilized egg can attach itself to the uterine wall.

Indiana Right to Life and conservative Senate Republicans argue that life begins sooner -- at conception -- and that contraceptives should be defined as drugs and devices that prevent fertilization.

That difference became significant after Sen. Vi Simpson, D-Ellettsville, persuaded a Senate health committee to include the federal definition of contraception in SB 135.

The change was opposed by the bill's author, Sen. Patricia L. Miller, R-Indianapolis, but she nonetheless agreed to it because the legislation would not have made it out of committee without the contraception language.

Miller's only other option was to try to gather enough votes in the full Senate to remove the contraception provision from the legislation. This week, she realized she didn't have enough votes from fellow Republicans to do so.

"We didn't seem to be able to get a consensus," Miller said. "The more I tried to work it out, the more complicated it got, so I decided the best thing to do for now was to not move the bill."

The legislation's death marks a major victory for Planned Parenthood of Indiana, which had lobbied aggressively against the bill. * * *

Senate President Pro Tempore David C. Long, R-Fort Wayne, said the contraception and abortion issues should be handled independently. "I would have liked to see this bill move forward," he said. "The contraceptive issue is a separate issue."

Simpson disagreed. "They are the same issue," she said. "When you start talking about when life begins in the abortion statutes, then you put women who use birth control into a situation where they may have created an abortion.

"I wanted to make sure that this abortion statute would never conflict with our access to contraceptives. That's all I was trying to do."

Posted by Marcia Oddi on Saturday, March 03, 2007
Posted to Indiana Law

Friday, March 02, 2007

Ind. Courts - This week's report from the Indiana Judicial Center on bills of interest

This valuable weekly report is a little different this week. Titled "Mid-Session Review 2007," the March 2, 2007 wrap-up is "a series of topical charts detailing the status of bills of interest to the Judiciary that were heard on third reading."

Here is a link to view all the Mid-Session Charts as one 8-page document.

Posted by Marcia Oddi on Friday, March 02, 2007
Posted to Indiana Courts

Ind. Law - More on: 100 Year Anniversary of Indiana Eugenics Legislation: Hoosier State Led World In Enactment of Involuntary Sterilization Laws

Yesterday the ILB posted an entry on the "Indiana Eugenics: History and Legacy" symposium to be held at the Indiana State Library on April 12th.

The entry also mentioned CLE credits. On the day before the symposium, Wednesday April 11th, an Indiana Supreme Court Legal History Lecture, titled "Three Generations of Imbeciles are Enough:” Reflections on 100 Years of Eugenics in Indiana, will take place in the Indiana Supreme Court Courtroom, from 3:00-4:15 p.m. This is a free CLE worth 1.3 Credit Hours. Access the flyer here.

Posted by Marcia Oddi on Friday, March 02, 2007
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending March 2, 2007

Here is the Indiana Supreme Court's transfer list for the week ending March 2, 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.

Posted by Marcia Oddi on Friday, March 02, 2007
Posted to Indiana Transfer Lists

Ind. Courts - New details on: State's high court to hear Clark battle over fees

The ILB posted two entries yesterday (here and here) on the dispute between the Clark County judges and the county council over the control of probation user fees. The focus was a "notice" filed earlier this week by the Clark County judges.

The ILB was interested particularly in that a "notice" was filed after oral arguments, which occurred last December, and wondered at the procedure involved. The ILB has now obtained a copy of the filing, which may be accessed here. Here is the pertinent language:

6. Pursuant to Cunningham v. Hiles, 402 N.E.2d 17, 20 (Ind.Ct.App. 1980), the Judges hereby give notice that any defense of fiscal crisis has become moot. In Cunningham, the Court of Appeals found that parties have an obligation to advise an appellate tribunal of post-judgment events which may affect the outcome of an appeal. In the instant case, the outcome of this appeal cannot rest on the County's defense of fiscal crisis. Rather, this case must be resolved on the issue of statutory construction and the authority given by the SAPSF to the Council and the Judges to appropriate and use those funds.

Posted by Marcia Oddi on Friday, March 02, 2007
Posted to Indiana Courts

Ind. Decisions - Supreme Court grants transfer in Liggett v. Young

The Indiana Supreme Court has granted transfer in the case of Ronald D. Liggett, et al. v. Dean A. Young, et al. (a 19-page opinion by Judge Baker with a dissent by Judge Sullivan). See the 7/24/06 ILB entry here.

Posted by Marcia Oddi on Friday, March 02, 2007
Posted to Ind. Sup.Ct. Decisions

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

The ILB has had a slew of entries on the topic of regulating outdoor wood-fired boilers/furnaces. First there was outrage from a southern Indiana legislator when the Dept. of Environmental Management (IDEM) published a First Notice asking for public comments on the possibility of regulating the outdoor furnaces/boilers. IDEM was accused of "hiding" the notice in the Indiana Register. (Note that this was back when the serial, paginated, monthly Indiana Register was still availble online.) IDEM backtracked and has done nothing since.

In the face of public demand, local communities all over the state have since made efforts to regulate the outdoor furances/boilers on their own. You may follow much of the history in this list of ILB entries.

Here is another story today, this one from Lake County, reported in the NWI Times by Joyce Russell:

PORTAGE | A suggested ordinance to regulate outdoor furnaces didn't sit well with some members of the Northwestern Regional Planning Commission's Environmental Management Policy Committee or public Thursday morning.

A committee has been working for months on a proposal that would either regulate or ban the furnaces, which are growing in popularity across the country.

The furnaces, also known as outdoor wood heaters or boilers, are systems that burn wood to heat water that is piped underground to a nearby structure, resulting in heat for that structure.

The furnaces have been criticized as polluters and health hazards.

Kevin Breitzke, EMPC vice chair and chairman of the working group, told the EMPC Thursday that his committee had put together an ordinance that would regulate instead of ban outdoor furnaces. The ordinance would allow furnaces on land parcels 25 acres and larger, would require permits, would regulate what could be burned and would require an annual operating permit.

He suggested committee members take the proposal back to their communities for discussion before the EMPC's April 5 meeting.

Not everyone was pleased, however. "The town of Ogden Dunes is looking to ban them. We are looking for that language," said Susan Mihalo, an Ogden Dunes resident and member of Save the Dunes Council.

Charlotte Read, also of the Save the Dunes Council and a member of the EMPC, said she had hoped there would be more details on health effects. She said five or six jurisdictions in the state have banned them and had hoped additional alternative information would have been included.

James Donnelly, of LaPorte, said the ordinance "falls short." He criticized the proposal, saying there was no discussion on health issues along with several other concerns.

Posted by Marcia Oddi on Friday, March 02, 2007
Posted to Environment | Indiana Law

Ind. Law - More on "State expected to defend Soliday in residency dispute" [Updated]

Updating this ILB entry from Feb. 27th, Bob Kasarda of the NWI Times writes today:

The Indianapolis law firm of House Minority Leader Brian Bosma, R-Indianapolis, is seeking to dismiss the local lawsuit challenging the residency of state Rep. Ed Soliday, R-Valparaiso.

The firm argues it is unconstitutional to serve a state lawmaker with a civil lawsuit while the Indiana General Assembly is in session.

The motion to dismiss the case for lack of jurisdiction, which was mailed out Wednesday, cites the state constitution in prohibiting both civil suits and criminal arrests of lawmakers in session, short of treason, a felony or a breach of the peace.

Portage attorney Ken Elwood, who along with attorney Mitch Peters of Merrillville filed the lawsuit on behalf of several local voters, said he is researching the claim, but does not believe it applies.

It does not apply because Soliday does not live within the district he is supposed to represent and is thus is not a valid lawmaker, Elwood said, echoing the allegation at the heart of the lawsuit.

"Everything they're doing is just to deny the inevitable in my opinion," said Elwood, a former chair of the Portage Democratic Party. * * *

Indianapolis attorney William Bock III [of Kroger Gardis & Regas LLP, Rep. Bosm's firm] said in a letter to Elwood and Peters he was retained by Soliday to file the motion to dismiss.

He said pursuing the lawsuit against Soliday is "an abuse of process for which legal remedies are available." The action is also a violation of Elwood and Peter's duties to the court as members of the bar and contrary to their oath to uphold the state constitution.

The letter calls on Elwood and Peters to withdraw the complaint without awaiting action by the judge.

The case is before Porter Superior Judge Bill Alexa, a Democrat, who is a former state senator.

[Updated 3/3/07] "'06 election still hounds Ed Soliday" is the headlined of a story by Jim Stinson in the Gary Post-Tribune. Some quotes:
Democrats recently criticized a possible request by Indiana Attorney General Steve Carter to represent Soliday in Porter Superior Court.

But Soliday said Carter's office almost stepped in when Elwood, an attorney for the Democratic case, threatened to involve Indiana Secretary of State Todd Rokita.

"They always have a spin and a lie," said Soliday. "Steve Carter, quite frankly, wanted to take the case."

Soliday decided to hire a election-savvy attorney, Bill Bock of Indianapolis, which brought flak from the Democrats because the law partnership also employs Rep. Brian Bosma, R-Indianapolis, the GOP House minority leader.

Bock said Elwood is pursuing a case which defies the Indiana Constitution (Article 4, Section 8), and took Elwood to task about it. Bock and Soliday say members of the Indiana General Assembly cannot be sued while in session. Bock said the lawsuit seeks to distract Soliday during session, which is exactly what Section 8 seeks to prevent.

That provision could soon kill the lawsuit -- for now.

Elwood said the lawsuit is not about distraction or politics, but constitutionality.

"This is constitutional law at its most basic form," said Elwood.

Elwood said, at best, the constitution's say on lawsuits while the Indiana General Assembly is in session just puts off "the inevitable." (He hasn't conceded on that point, though.)

"It's a delay," said Elwood. "It's delay, delay, delay."

Elwood said Soliday isn't defending his case on its merits, and said the GOP practically admits Soliday lives in District 10, the domain of Rep. Duane Cheney, D-Portage.

"He's a void candidate," said Elwood.

Soliday could make much of the case moot by resigning and letting the District 4 GOP precinct committeemen choose a replacement. Elwood said the GOP cannot do that because Soliday is not a legitimate representative and there is no GOP "vacancy." Elwood believes Graham would be the candidate to fill the seat, or hold a special election.

Or Soliday could move deeper and indisputably within the district. Soliday said he met with a builder on Friday about house plans he made well before the 2006 election, although lot selection is still undecided.

Posted by Marcia Oddi on Friday, March 02, 2007
Posted to Indiana Law

Law - Yet more on the cervical cancer vaccine issue

Nationally syndicated columnist Ellen Goodman has, to my mind, an excellent column today on the Gardasil controversy, touching on all the issues. It is carried here today, in the Indianapolis Star, and begins:

Hasn't anyone ever told drug companies to put a warning label on their lobbying? You know, the kind you find on every little prescription bottle? Caution: Too much lobbying may result in an overdose of suspicion. Push too hard and you may experience political acid reflux.

As it is, Merck seems to have rolled a million -- or many millions -- into a shoestring. And the real losers may be girls and women who need access to the vaccine against cervical cancer.

Posted by Marcia Oddi on Friday, March 02, 2007
Posted to Indiana Law

Thursday, March 01, 2007

Ind. Courts - Yet more on: State's high court to hear Clark battle over fees

Adding to the information in this entry from earlier today, the New Albany News & Tribune reports:

An attorney for Clark County’s judges has filed a motion with the Indiana Supreme Court asking the justices to declare moot part of the County Council’s argument explaining why it took control of probation user fees in 2005 and 2006.

On Tuesday, attorney Karl Mulvaney filed a motion with the court asking that it declare the council’s declaration of a fiscal crisis moot, because the county has received $4.4 million in County Adjusted Gross and County Economic Development income taxes that had been previously underestimated by the state.

“They took the money issue off the table,” said Circuit Court Judge Daniel F. Donahue.

The lawsuit between the judges and the council was filed more than two years ago. Last year, Special Judge Elaine Brown ruled that the council did not have authority over probation user fees, but the council appealed the ruling and the Indiana Supreme Court agreed to take the case directly, bypassing a lower appeals court.

In mid-December, justices heard oral arguments in the case.

Councilman Monty Snelling said Mulvaney’s filing seems to be premature.

“There’s no way of knowing if (the fiscal crisis) is over,” he said. “The Department of Local Government Finance says (the $4.4 million) has to be used in the rainy-day fund.”

Generally, local governments can use CAGIT and CEDIT revenues for any legal purpose, but the state has said recently released revenues must be held in emergency reserve. The Department of Local Government Finance must approve any expenditure of the county’s $4.4 million.

Following the December hearing with the Supreme Court in Indianapolis, attorneys for the judges and the council said they thought the justices might provide a ruling in the case quickly, because their decision will establish a new standard for control over probation user fees statewide.

“They’re going to wait until the General Assembly is out of session,” Donahue said Wednesday, adding that he believes the ruling will be released during a judicial conference in September.

Posted by Marcia Oddi on Thursday, March 01, 2007
Posted to Indiana Courts

Ind. Decisions - Supreme Court considers contributory negligence and "the last clear chance" doctrine

In Penn Harris Madison School Corporation v. Linda Howard, an 11-page (including a 1-page dissent) 4-1 opinion, Justice Sullivan writes:

Two decades ago, the Legislature abolished the harsh doctrine of “contributory negligence” by which a man or a woman, injured through the fault of another, was denied any recovery if he or she was even slightly at fault. However, the defense of contributory negligence remains available to government entities like public schools. This case requires our focus on this relatively dormant concept. * * *

In this case, the defendant PHM – a public school corporation and, therefore, a governmental entity – asserted the defense of contributory negligence: that it had no liability to Howard because he was at least slightly at fault for the injuries he suffered. As noted above, the jury found in Howard’s favor and against the defendant school corporation.

[The jury awarded plaintiffs $200,000 in damages, the Court of Appeals "The Court of Appeals held that the trial court had committed reversible error in giving the two instructions to which PHM had objected. It also held that the trial court had correctly refused to give the instruction with respect to which the plaintiffs cross-appealed."]

There are three issues in this appeal – two raised by PHM, which is the appellant, and one by the plaintiffs, who are the appellees. First, PHM argues that the trial court’s instruction to the jury on the standard of care to which it should hold Howard was too lenient. Second, PHM argues that the trial court should not have allowed the jury to impose liability on it under another common law tort rule, the doctrine of “last clear chance.” Third, the plaintiffs argue that the trial court should have instructed the jury that the defense of contributory negligence was not available to PHM in these circumstances because of the special obligation of care that schools have for their pupils. We do not reach the plaintiffs’ argument because we affirm the judgment of the trial court. * * *

II. At the plaintiffs’ request, the trial court instructed the jury that it could find in favor of Howard, notwithstanding contributory negligence on his part, if the plaintiffs established entitlement to recovery under the “last clear chance” doctrine. The Court of Appeals found that the trial court had committed reversible error in giving this instruction as well.

The doctrine of last clear chance, as a general proposition, provides that the contributory negligence of a plaintiff does not prevent recovery by that plaintiff for the negligence and injuries caused by the defendant if the defendant by exercising reasonable care might have avoided injuring the plaintiff. In the heyday of contributory negligence, litigation over over the applicability of last clear chance was frequent and intense. But in the world of comparative fault, where the relative fault of plaintiff and defendant are assessed, the last clear chance doctrine, once the subject of intense debate as to its contours, has been much less at issue during the past two decades. The Court of Appeals faithfully applied the last clear chance doctrine in this case. It properly noted that Howard had the burden of proving, among other elements, that the defendant “had the last opportunity through the exercise of reasonable care to avoid the injury.”

[The majority found that the court committed harmless error in both instructions disputed by PHM and affirmed the judgment of the trial court.]

Dickson, Boehm, and Rucker, JJ., concur. Shepard, C.J., dissents with a separate opinion. [that concludes]

This appeal, of course, arises in a contributory negligence setting. The jury is thus asked to decide whether the defendant is 100% at fault or only 99% at fault. For the same reason I would vote to give the plaintiff whose fate was decided by the narrowest of margins a new trial before a properly instructed jury, I think the defendant here is entitled to the same.

Posted by Marcia Oddi on Thursday, March 01, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Owen County by and through its Owen County Board of Commissioners v. Indiana Department of Workforce Development and Casey C. White, a 17-page opinion, Judge Robb writes:

Casey White was employed by the Owen County Highway Department (“Owen County”) until he was fired in December 2005 for allegedly failing a random drug test. White applied for unemployment benefits, which were denied on initial determination. White appealed that decision, and an Administrative Law Judge (“ALJ”) reversed the initial determination, finding that the evidence failed to establish just cause for White’s discharge. The Unemployment Insurance Review Board of the Indiana Department of Workforce Development (“Review Board”) adopted the ALJ’s findings of fact and conclusions of law and affirmed the ALJ’s decision. Owen County then appealed. Concluding that the findings of fact support the Review Board’s determination that White was entitled to unemployment benefits, we affirm. * * *

In addition, because of certain perceived procedural irregularities in Owen County’s initiation of the appeal, the Review Board, pursuant to Indiana Code section 22-4-17-13, has filed the following Certified Question: Whether the procedures described in Ind. Appellate Rule 9(A)(3) and 9(I) (and Form 9-2) are the exclusive means to initiate an appeal from the Review Board, or whether the provisions in Ind. Code §§ 22-4-17-11 and 22-4-17-12 govern the initiation and perfection of an appeal. * * *

Indiana Code section 22-4-17-13 provides that the Review Board, “on its own motion, may certify questions of law to the supreme court or the court of appeals for a decision and determination.” Because the statutory procedure for appealing a Review Board decision differs from the procedure outlined by the Appellate Rules for initiating an appeal in general, the Review Board has certified to this court a question of law regarding the proper procedure for initiating an appeal from a decision of the Review Board. * * *

Both the Appellate Rule itself and our caselaw indicate that the Rule takes precedence over a conflicting statute. The Indiana Supreme Court has the inherent power to establish rules governing the course of litigation in the trial courts. Jackson v. City of Jeffersonville, 771 N.E.2d 703, 705-06 (Ind. Ct. App. 2002), trans. denied. Accordingly, our courts have repeatedly held that when there is a conflict between a procedural statute and a procedural rule adopted by our supreme court, the supreme court rule takes precedence and the conflicting statute is nullified. To be in conflict, it is not necessary that the rule and the statute be directly opposed; rather, they need only be incompatible to the extent that both could not apply in any given situation. In re J.L.V., Jr., 667 N.E.2d 186, 189 (Ind. Ct. App. 1996). A procedural rule enacted by statute cannot operate as an exception to a procedural rule having general application. Jackson, 771 N.E.2d at 706. * * *

Conclusion The procedure outlined in the Appellate Rules should be followed in appeals from the Review Board, notwithstanding a contrary statute. Based on this record, the Review Board’s finding that White was entitled to unemployment benefits was a reasonable one. The decision of the Review Board is affirmed.

NFP civil opinions today (0):

NFP criminal opinions today (4) [Link to Cases]:

Albert W. Horner v. State of Indiana (NFP)

Tiron D. Corthen v. State of Indiana (NFP)

Jessica Bowling v. State of Indiana (NFP)

Tristan Bowling v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 01, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on proposal to change judge selection in St. Joe county

This Feb. 9th ILB entry discusses HB 1571 and ends:

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.
A check of the bill today shows that it is still in first house committee, and still has only one author, Rep. Craig Fry.

In a long story today in the South Bend Tribune, Jeff Parrott reports:

A bill that would change how St. Joseph County selects its judges has died in committee, but it could resurface this legislative session, its author said Wednesday.

Meanwhile, lawyers are making a forceful argument to retain the status quo.

State Rep. Craig Fry's bill to repeal "merit selection" of the county's Superior Court judges, as well as a similar measure authored by Lake County Democrat Charlie Brown, has died in committee for lack of a hearing. But Fry said he believes another lawmaker, one he declined to name, might incorporate the language as an amendment to another bill.

St. Joseph and Lake counties are the only two in Indiana where judges are chosen through merit selection instead of being elected directly by voters. Under merit selection, a committee -- comprised of local lawyers, governor-appointed citizens and a state Supreme Court justice -- interviews and selects applicants for openings on the bench.

Once judges are appointed, they stand for a retention vote every six years. No judge has ever been removed in a retention vote since St. Joseph County adopted the system under a state law enacted in 1973. * * *

Fry said he introduced his bill to "send a message" to judges.

"Those folks are not accountable to anybody once they're appointed," he said. "I feel everybody should be elected. That way if they do something the public doesn't like, they can be discarded."

But local lawyers say they feel fortunate to have merit selection. The St. Joseph County Bar Association's board of governors recently unanimously passed a resolution "strongly opposing" the changes Fry seeks.

Merit selection "removes the taint that money can inject into judicial selection, especially when the public is increasingly uncomfortable with campaign financing," the resolution states, "... and gives litigants greater confidence that a judge is not acting in his or her case out of political motivations."

Rich Urda, county bar president, said the group wants to avoid a situation where trial court judges are presiding over attorneys and others in the community who have contributed time or money toward their election campaigns.

His counterpart in Lake County, Magistrate Michael Pagano, agreed.

"It definitely creates problems," said Pagano, whose bar association also has passed a resolution advocating the preservation of merit selection. "It makes it more difficult to fight the appearance of impropriety, even if there is no impropriety at all."

Posted by Marcia Oddi on Thursday, March 01, 2007
Posted to Indiana Courts

Ind. Courts - Still more on: State's high court to hear Clark battle over fees

Here is the long list of prior ILB entries on the dispute between the Clark County judges and the county council over the control of probation user fees. Oral arguments before the Supreme Court took place Dec. 14, 2006. No opinion has yet issued. A new entry was added to the docket Tuesday:

What is this about?

Ben Zion Hershberg explains today in the Louisville Courier Journal:

A fiscal crisis that was cited as a central issue in the long-running legal dispute between Clark County judges and the county council no longer exists, the [Clerk County] judges have told the Indiana Supreme Court.

As a result, the [Clerk County] judges said in a notice Tuesday, the council should repay an estimated $1.5 million in probation user fees that it has appropriated since the dispute arose. The fees are collected by the local courts.

But Mark Crandley, a lawyer for the council who argued the case in December before the Supreme Court, where it is still pending, said he doesn't believe the judges' notice will affect the case.

"It's undisputed" that Clark County government was experiencing a fiscal crisis in 2003 and 2004, the time that the case primarily is based on, Crandley said, and he doesn't think the Supreme Court will consider more recent developments.

The judges' lawyers, Karl Mulvaney of Indianapolis and David Lewis of Clark County, said in the notice that the council's fiscal crisis claim is now moot because in December the county received $4.4 million in supplemental income tax revenue from the state, relieving any financial strain.

In 2003, the council decided to start using about $500,000 in probation fees collected each year by the four county courts to pay court expenses previously covered by the county's general fund.

The judges filed suit against the council in 2005, arguing that state law gives them -- and not the county council -- the authority to determine how to spend probation user fees.

The council argued that it was forced to take control of the probation funds because of the fiscal crisis and that state law allowing local courts to collect and use probation fees can be interpreted to give the council authority over the funds.

The council has continued to exert its control over the fees by using them in the county budget for this year.

In March 2006, a special judge appointed to handle the case ruled in favor of the judges, saying the council had violated state law when it appropriated fees that were collected and controlled by the courts.

The council appealed the decision and, after an unsuccessful mediation, the Supreme Court heard arguments Dec. 14.

Lewis and Mulvaney contend that the Supreme Court should now decide the case based on the law establishing the local courts' right to collect and use the fees, rather than the fiscal crisis arguments.

"I don't think it's likely the appeal will be dismissed" as a result of the change, Lewis said. But he said he hopes it will lead the Supreme Court to focus on interpretations of the law related to probation user fees.

Lewis said he believes county judges and councils statewide are waiting for a decision on such issues to guide their relationships. * * *

Crandley and Lewis said a decision is expected in the spring.

Posted by Marcia Oddi on Thursday, March 01, 2007
Posted to Indiana Courts

Ind. Law - 100 Year Anniversary of Indiana Eugenics Legislation: Hoosier State Led World In Enactment of Involuntary Sterilization Laws

From a press release issued yestersday:

Symposium and Exhibit Recognize 100 Year Anniversary of Indiana Eugenics Legislation: Hoosier State Led World In Enactment of Involuntary Sterilization Laws

INDIANAPOLIS — One of the darkest chapters of social policy will be explored in a public symposium and exhibit in April focusing on Indiana's enactment of the world's first eugenic sterilization law in 1907. The event and exhibit will examine the relevance of the history of sterilization and other eugenic measures to contemporary issues in human genetics, public health, reproductive health, mental health, and the law.

In April 1907, Indiana Gov. Frank Hanley signed into law the Compulsory Sterilization Law of Indiana, a bill providing for involuntary sterilization "to prevent procreation of confirmed criminals, idiots, imbeciles and rapists." Found unconstitutional by the Indiana Supreme Court 14 years later, a revised bill was enacted in 1927 applying to "inmates of state institutions, who are insane, idiotic, imbecile, feebleminded, and epileptic, and who by the laws of heredity are the probable potential parents of socially inadequate offspring likewise afflicted." This law remained in force until repealed by the Indiana General Assembly in 1974.

During the period the law was in force, approximately 2,500 of Indiana's most vulnerable citizens in state custody were involuntarily sterilized. Because similar laws were passed in 29 other states, historians estimate 65,000 people were involuntarily sterilized in the United States.

Read the entire release here.

About the Symposium:

The public symposium, "Indiana Eugenics: History and Legacy," will be at the Indiana State Library, 140 N. Senate Avenue, Indianapolis on April 12 from 8:30 am – noon. It is sponsored by the Indiana University schools of medicine, law and liberal arts at IUPUI.

Featured speakers include Daniel Kevles, Ph.D., of Yale University and Joe Palca of National Public Radio. A roundtable discussion with Dr. Schneider, Dr. Meslin, and other professionals in medicine, law and history will follow from 2 to 5 p.m. also at the State Library.
A companion exhibit at the Indiana State Library featuring original documents from the period opens April 12 and will run through August.

The exhibit was created in partnership with the Herron School of Art and Design at IUPUI and is open weekdays from 8 a.m. to 4:30 p.m. In addition to the general public, school and other groups are welcome. There is no admission fee.

Admission to the symposium is free, but space is limited and prior registration is required.

This page has the tenative schedule and a link to register online. I'm told CLE credit has been applied for.

Posted by Marcia Oddi on Thursday, March 01, 2007
Posted to Indiana Law