The Indiana Law Blog: April 2007 Archives

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Monday, April 30, 2007

Ind. Decisions - Appeals Court upholds strict Lottery secrecy [Updated]

Reporting on the Court of Appeals decision today in William C. Foreman v. State of Indiana (see ILB entry here, 6th case), Jon Murray of the Indianapolis Star writes:

The Indiana Court of Appeals today upheld the constitutionality of a state lottery secrecy law that sets a penalty of up to 50 years in prison for violators.

The case was brought by William C. Foreman, a former Hoosier Lottery security official who is facing charges in Marion Superior Court including disclosure of confidential information relating to the lottery, a Class A felony.
Foreman appealed a February 2006 ruling by Judge Grant Hawkins denying his motion to dismiss that charge. His attorney, Jack Crawford -- himself a former Hoosier Lottery director -- argues the stiff penalty violates the Indiana Constitution because it is disproprotionate to the offense. It carries a sentence of 20 to 50 years in prison.

The three-judge appeals panel unanimously rejected Crawford's argument.

[Updated 5/1/07] In an updated story this morning, Joh Murray reports:

A three-judge Indiana Court of Appeals panel ruled unanimously Monday that disclosure of confidential information relating to the lottery deserves to be a Class A felony, more severe than other financial crimes.
"It's the same penalty for attempted murder of a police officer or child molesting," said Jack Crawford, Foreman's attorney and a former lottery director.
Judge Ezra H. Friedlander wrote that the crime rises above other white-collar offenses because it likely would involve a Hoosier Lottery employee and could affect revenue for programs benefiting many residents.
The decision upheld Marion Superior Court Judge Grant Hawkins' February 2006 ruling denying Foreman's motion to dismiss the charge.

Here, from Feb. 17, 2006, is the report on the trial court ruling.

Posted by Marcia Oddi on Monday, April 30, 2007
Posted to Ind. App.Ct. Decisions

Law - U.S. Supreme Court rules on high speed chases

Lyle Denniston of SCOTUSblog has an entry just posted titled " A flat new rule on high-speed chases." It begins:

Though two Justices tried hard in separate opinions to ease the impact of the Supreme Court's rulng Monday on high-speed police chases, the fact remains that the main opinion had the unqualified support of five Justices and did lay down a hard-and-fast constitutional rule. Here is how the Court phrases the rule it established: "A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death." Given the inherent dangerousness of most high-speed chases, this flat rule -- the "Scott v . Harris" rule, as it may come to be known -- appears to validate as "reasonable" any intentional police tactic of ending the chase by causing a wreck. The only apparent limitation on the choice of any specific tactic is the option that police have to adopt, or not to adopt, it.

Scott v. Harris is the case with the attached videotape I posted about earlier today ("Inclusions in Court Opinions".)

It turns out that Marty Lederman of SCOTUSblog has also posted an entry on the inclusion - access it here.

Here is a list of some other obervations, as collected by Howard Bashman of How Appealing.

Posted by Marcia Oddi on Monday, April 30, 2007
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 9 today (and 11 NFP)

For publication opinions today (9):

Robin England v. April England - Judge Robb: "Robin England (“Husband”) and April England (“Wife”) were divorced in 2006. As part of the decree of dissolution, the trial court valued the marital assets, including the value of living on the property on which the marital residence sits, and divided them equally between the parties. Husband now appeals, contending that the trial court erred in including a defeasible interest in real property as a marital asset and in its valuation of that interest. Concluding that the trial court properly considered the value of Husband’s continued use and occupancy of what was the marital property in dividing the marital assets, and also concluding that the value the trial court assigned to Husband’s interest is supported by the evidence, we affirm. * * * The trial court did not abuse its discretion in considering Husband’s continued residence on the Rumpke property in dividing the marital assets, or in valuing that interest at $152,437. The judgment of the trial court is affirmed."

Chi Yun Ho, M.D. v. Loretta M. Frye - "Under such circumstances, res ipsa is applicable. [cite omitted] The Fryes met their burden of showing a prima facie case of negligence against Dr. Ho. IThe burden then shifted to Dr. Ho to explain how he met the standard of care. Dr. Ho responded by designating evidence that he met the appropriate standard of care and that the surgery nurse reported to him that the sponge counts were correct. In essence, Dr. Ho contended that he did not breach his duty to Frye because the nurse had the duty to count the sponges and miscounted. However, under Funk, a surgeon cannot “delegate the absolute authority and responsibility to a nurse or nurses to account for sponges and to thus escape responsibility himself.” [cite omitted] As in Cox, Dr. Ho’s explanation is “not free of the inference of negligence,” and Dr. Ho failed to carry his burden of proof. [cite omitted] The Fryes were, therefore, entitled to partial summary judgment on their claim against Dr. Ho. We reverse and remand for a new trial on the Fryes’ damages."

Wayne Township, Marion County, Indiana v. Indiana Dept. of Local Government Finance, and Martha Womacks

Lokmar Y. Abdul-Wadood v. Capt. Batchelor, et al - "Lokmar Y. Abdul-Wadood, pro se, appeals the dismissal of his complaint against three employees of the Indiana State Prison: Captain Batchelor, and Lieutenants Kruper and Pittman (collectively, “the defendants”). We affirm. * * * Abdul-Wadood filed his complaint in the trial court a mere six months after the events alleged to have violated his rights. This suggests he did not see any administrative proceedings through to a final conclusion. Therefore, the trial court did not have jurisdiction over his complaint and properly dismissed it."

Indiana State Board of Education v. Brownsburg School Corp., Board of School Trustees - "In this case, the trial court’s order resolved the sole question presented for review—“whether Indiana Code section 20-8.1-3-17.3(b) [(recodified as Indiana Code § 20-33-2-12(b))] bestows upon [Brownsburg] the discretion to deny students from non-public, non-accredited, or non-approved schools, including home educated students, to enroll in less than a full time schedule unless an IEP is in effect.” Appellant’s App. p. 19. The trial court answered the question affirmatively, and nothing remained for further determination by the agency. Moreover, the children who initiated this appeal are no longer seeking part-time enrollment. Thus, the trial court acted appropriately in not remanding the case for further proceedings."

In William C. Foreman v. State of Indiana , a 14-page opinion (in a case where the record shows Jack Crawford, former lottery commissioner, represents the defendant), Judge Friedlander writes:

In this interlocutory appeal, William C. Foreman appeals the trial court’s order denying his motion to dismiss. Foreman presents the following issue of first impression: Does the penalty for Indiana Code Ann. § 4-30-14-4 (West 2002)—disclosure of confidential information relating to the lottery, a class A felony—violate article 1, section 16 of the Indiana Constitution? * * * Here, the legislature classified the penalty for disclosure of confidential information relating to the lottery as a class A felony. Given the historical backdrop of when I.C. § 4-30-14-4 was enacted, the expressed intent of maintaining the integrity of the lottery, the potential effect the commission of the crime could have on citizens of this state, and the difficulty in detecting the crime, the legislature could have reasonably determined that a severe penalty was required for the offense of disclosing confidential lottery information. Furthermore, we are not free “to set aside the legislative determination as to the appropriate penalty merely because it seems too severe.” State v. Moss-Dwyer, 686 N.E.2d at 112. In light of the presumption of constitutionality of statutes, and the heavy burden on the party asserting unconstitutionality, we are not convinced that the penalty for disclosure of confidential lottery information violates the proportionality provision of the Indiana Constitution."

Cameron M. Niemeyer v. State of Indiana - "Niemeyer’s twelve-year sentence was not inappropriate in light of his character and the offense. We accordingly affirm."

Russell Prewitt v. State of Indiana - Sharpnack: "Because the trial court only had the statutory authority to do one of the three options in Ind. Code § 35-38-2-3(g), not two of the options, we remand for resentencing."

Crone, concurring: "I reluctantly agree with the majority’s reliance on Sharp and its interpretation of Indiana Code Section 35-38-2-3(g) in reversing the trial court’s sentencing order. * * * I write separately to observe that our supreme court’s opinion in Stephens v. State, 818 N.E.2d 936 (Ind. 2004), which was issued subsequent to Sharp, emphasizes the importance of flexibility in probation proceedings."

Steve Markland v. State of Indiana - "Appellant-defendant Steven E. Markland appeals his conviction for Theft,1 claiming insufficiency of the evidence. Markland also argues that the trial court erred in ordering him to make restitution for costs relating to the disinterment and cremation of a body. Finding no error, we affirm the judgment of the trial court."

NFP civil opinions today (5):

In the Matter of the Termination of Parent-Child Relationship of M.H.; April Hill v. Putnam County Department of Child Services (NFP)

In the Matter of the Parent-Child Relationship of L.A.P., Barbara Parsons and Willie Parsons v. Elkhart County Department of Child Services (NFP)

Dennis Ray Peterson v. Dennis Meyer, et al. (NFP)

Brandy Chase, Inc. v. Big Rock Development, LLC (NFP)

Michael M. Cubel v. Debra A. Cubel (NFP)

NFP criminal opinions today (6):

Randy VanArsdale v. State of Indiana (NFP)

Bryan K. Catlett v. State of Indiana (NFP)

Rodney Plumley v. State of Indiana (NFP)

David D. Barany v. State of Indiana (NFP)

Charlie Herbst v. State of Indiana (NFP)

William H. Klinger v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 30, 2007
Posted to Ind. App.Ct. Decisions

Courts - Inclusions in court opinions

Last week the 7th Circuit issued an opinion (see ILB entry here from April 26th) that included what appeared to be a completely gratuitous color photo on page 2 of the downed plane after it had come to rest on a city street. I mentioned it at the end of the entry.

Earlier recent 7th Circuit opinions have included satellite photos from Google (see here and here). I have assumed that these are not pieces of evidence and have wondered what the point was.

Today this entry from Howard Bashman of How Appealing notes that;

"The Court's opinion today in Scott v. Harris, No. 05-1631 -- a dispute about the lawfulness of a high-speed police chace captured on video -- appears online at the Supreme Court's web site with this 91.7 MB RealPlayer video file."

I have not yet reviewed the opinion to see what the point is here - is this a piece of evidence, or what? The U.S. Supreme Court in the past has strongly made the point that it speaks only through the words in its opinions, and that therefore allowing video access to its oral arguments would be unwarrented. But what is the point of this wave of "inclusions" in federal court opinions, if not to better explain the opinion?

[More questions] Some other questions: What do these audio-visual materials come from. Are the part of the trial record? Were they part of the appellants' briefs? Did the Court secure them on its own -- e.g. log on to Google and locate and download a satellite photo?

For more on this, see this later ILB entry today.

Posted by Marcia Oddi on Monday, April 30, 2007
Posted to Courts in general

Ind. Law - Yet more on: Remonstrances decision leads to legislation

Angela Mapes of the Fort Wayne Journal Gazette reports today that the remonstrance bill did pass. Find it in SEA 287 - note that the Enrolled Act is not yet available on the General Assembly's site. From the story:

Senate Bill 287 also will allow any registered voter – not just property taxpayers – to participate in the petition and remonstrance process.

Under current law, property taxpayers who want to stop a renovation or building project of a public building can conduct a petition drive in which the side with more wins.

The General Assembly created the remonstrance system in 1995.

The Indiana Court of Appeals ruled in August that the current process is unconstitutional because it is a de facto election – which the state can’t restrict to just property taxpayers.

For background, start with this ILB entry from April 25th.

Posted by Marcia Oddi on Monday, April 30, 2007
Posted to Indiana Law

Ind. Courts - Another county bans cell phones in Courthouse

In today's Marion Chronicle-Tribune, Teresa Auch reports:

A move to ban cell phones in the Grant County Courthouse has proved irritating to visitors, but courthouse officials say security concerns override any complaints.

Signs popped up in March announcing that cell phones were banned - not just from courtrooms.

Circuit Court Judge Mark Spitzer said the four county judges agreed to institute the ban partly because cell phones would go off during trials.

"If you have somebody who has an important issue that's being heard in the court, and that's interrupted by someone's cell phone going off, that's annoying to say the least and causes everybody to lose focus," Spitzer said.

The main concern, though, was that people would use their cell phones to take pictures. Cameras are barred from most Indiana courtrooms.

"That opens up the ability, for instance, for one side to take pictures of another side's witness while they're on the stand as sort of an intimidation tactic," Spitzer said.

Spitzer said he did not know of any instances of this happening in any of the Grant County courtrooms, but that the judges had heard of it happening elsewhere in Indiana. They decided, then, to stop the problem before it became one.

By applying the ban to the courthouse, instead of just the courtrooms, officials can catch the phones as people go through the metal detector at the entrance, said Grant County Sheriff's Department Capt. John Cook, who is in charge of courthouse security.

Allen and Steuben Counties have also banned cell phones from the Courthouse, as reported in earlier ILB entries.

Posted by Marcia Oddi on Monday, April 30, 2007
Posted to Indiana Courts

Ind. Courts - Demise of Shelby County judges greatly exaggerated

From the Shelbyville News, a story by Ron Hamilton begins:

You'll be glad to know that - despite rumors to the contrary - all three Shelby County judges are fine, fit as a fiddle and conducting business as usual at the county courthouse.

The confusion and phone calls started last weekend. Mysterious rumors began circulating around the county that Superior Court II Judge Russell Sanders had committed suicide when he discovered he had Alzheimer's disease.

"Not true," said Sanders. "I'm healthy, alert and feeling quite well."

By Tuesday morning, it was Superior Court I Judge Jack Tandy who was "dead" of a self-inflicted gunshot wound to the head, depressed over financial problems that had forced him into bankruptcy.

"Absolutely no truth to that whatsover," Tandy said. "How in the world do things like that get started?"

Not to be spared the rumor mill, Thursday morning there was "liars' table" talk around the various diners, restaurants and coffee shops in the county that Circuit Court Judge Charles O'Conner had taken his life, depressed over personal issues.

"I'm surprised rumors are circulating about me," O'Conner said. "I lead a very boring life."

Thursday afternoon, the three county judges decided it was time to quell the gossip and stop the rumor mill. They graciously agreed to be photographed at the courthouse, holding copies of the day's headlines. All three judges have taken the strange suicide rumors in stride and with a self-effacing sense of humor.

The story is accompanied by a photo of the three judges, holding up cpies of the latest edition of The Shelbyville News, to prove their viability.

Posted by Marcia Oddi on Monday, April 30, 2007
Posted to Indiana Courts

Law - "Trials are on the verge of extinction - replaced by settlements and plea deals, by mediations and arbitrations and by decisions from judges based only on lawyers’ written submissions"

Adam Liptak's weekly NY Times column about the legal world this week focuses on the demise of trials. A quote:

Federal courts conducted about 3,600 trials in civil cases last year, down from 5,800 in 1962. That is not an enormous drop — until you consider that the number of cases has quintupled in the meantime.

In percentage terms, only 1.3 percent of federal civil cases ended in trials last year, down from 11.5 percent in 1962.

The trends in criminal cases and in the state courts are broadly similar, though not always quite as striking. But it is beyond dispute that even as the number of lawyers has grown twice as fast as the population and even as the number of lawsuits has exploded, actual trials have become quite rare.

A very interesting article, unfortunately you have to buy the paper or be an online TimesSelect customer to read it in full.

However, How Appealing provides a "TimesSelect temporary pass-through link" that may work.

[More] I've had a chance now to closely read this article, and I highly recommend it.

Posted by Marcia Oddi on Monday, April 30, 2007
Posted to General Law Related

Ind. Decisions - Transfer list for week ending April 27, 2007

There was no transfer list last week - the Court did not have conference last week.

Posted by Marcia Oddi on Monday, April 30, 2007
Posted to Indiana Transfer Lists

Ind. Law - Budget passes, General Assembly adjourns

The papers are reporting that the budget (HB 1001, CCR v. 2) did pass last evening, before the General Assembly adjourned for the year.

The bill continues to include the new legislative "bonuses" for various members of the Senate discussed in the previous ILB entry. They are located on p. 7 of the PDF version of CCR v. 2, beginning on line 46.

In addition, as Niki Kelly points out in her story today in the Fort Wayne Journal Gazette, the bill includes:

State reimbursement on new trial costs when the Indiana Court of Appeals or Indiana Supreme Court calls for a new trial.

To see that language, go to p. 121 of the PDF version of CCR v. 2, starting on line 23. Here is subsection (d), starting on line 42:

(d) The office division of state court administration (IC 33-24-6-1) shall administer a program to pay claims for reimbursement under this section. The maximum amount that may be reimbursed for all proceedings and all offenses arising out of the same facts is fifty thousand dollars ($50,000). The maximum amount that may paid in any particular year for all expenses otherwise eligible for reimbursement under this section is one million dollars ($1,000,000). If the total of all claims that would otherwise be eligible for reimbursement under this section exceed the maximum amount that may be reimbursed under this subsection, the division of state court administration shall prorate reimbursement of eligible expenses, as determined by the division of state court administration.

Read Kelly's long and detailed story here, in conjunction with Patrick Guinane's coverage from the NWI Times, Bryan Corbin's coverage from the Evansville Courier & Press, Mike Smith's AP coverage, and Theodore Kim's Indy Star coverage. Kim's story concludes:

The 225-page budget, which was first provided to the public early Sunday, offered some last-minute surprises. The budget contained a provision giving additional raises to Senate leaders, including $500 for Senate President Pro Tempore David C. Long, R-Fort Wayne.

The bonuses would come on top of the pay raise legislators are already getting under a bill signed into law by Daniels last week, which takes their base pay from $11,600 to more than $20,700 and also guarantees annual raises whenever state employees get one.

Long said he would give "the small $500" that he gets to charity. [Note that the Star reported yesterday: "Long said the increases were “primarily” for committee chairmen. Currently, most committee chairmen do not receive additional pay. Under the provision, most would receive a $1,000 bonus."]

One wonders, though, if any of these Senate "bonuses," which are intended to be effective in FY 2007-2008 (i.e. during the currently elected General Assembly), are valid. Recall that the overall pay raise is keyed to go into effect in 2009. Why? Because of Art. 4, Sec. 29 of the Indiana Constitution:

The members of the General Assembly shall receive for their services a compensation to be fixed by law; but no increase of compensation shall take effect during the session at which such increase may be made.

"A rose by any other name ...".

Posted by Marcia Oddi on Monday, April 30, 2007
Posted to Indiana Law

Sunday, April 29, 2007

Ind. Law - "Budget threatened by new legislative pay provision" [Updated]

Apparently not satisfied with their new pay raise, legislators are adding pay "bonuses" for themselves in the budget bill, according to a story just posted a few minutes ago by Mary Beth Schneider and Karen Eschbacher of the Indianapolis Star. Here are some quotes in what may be a fast-changing story:

Contentious provisions — including bonuses for key lawmakers — threatened to derail passage of the state budget today, with lawmakers facing a midnight deadline to complete work.

Failure would force a special session.

A draft copy of the budget — House Bill 1001 — which was released this morning, shows it still contains a stipulation that would force Gov. Mitch Daniels to appoint Democrats to the Ivy Tech Community College board of trustees. House Ways and Means Chairman Bill Crawford, D-Indianapolis, who is on the Ivy Tech payroll, had said Saturday that that provision was removed. [See yesterday's Star story on this here.]

Today, Crawford said he was shocked to discover this morning that it still is in the budget, buried deep in the 225-page draft. Asked whether it will be removed, he said: “Possibly.”

In addition, the budget contains a provision giving additional raises to Senate leaders, including $500 for Senate President Pro Tempore David Long, R-Fort Wayne.

Those bonuses are on top of the pay raise legislators are already getting under a bill signed into law by Daniels last week, which takes their base pay from $11,600 to more than $20,700 and also guarantees annual raises whenever state employees get one.

With the additional leadership pay, Long, for instance, would get an extra $7,000 a year, up from $6,500. The speaker of the House, B. Patrick Bauer, D-South Bend, would still receive $6,500.

Long said the increases were “primarily” for committee chairmen. Currently, most committee chairmen do not receive additional pay. Under the provision, most would receive a $1,000 bonus.

“It’s a small thank-you for what they do,” he said. “It’s a phenomenal amount of work to do it right. They deserve to be compensated for it.”

But the Ivy Tech and extra-pay provisions threatened to implode budget negotiations, which must conclude today, the final day of the 2007 legislative session.

Those of you who have been following the pay bill in the ILB may not be surprised at this story. For background on the non-transparent legislative pay provisions incorporated in the budget bill, see this ILB entry from April 10th and its links, as well as this entry from April 15th and this one from April 24th.

And there is more. A "companion bill" was passed, along with the legislative pay bill, last week. The ILB admits that it knew nothing about this bill, and read nothing about it in the press until after it had passed.

The bill is SB 501. Part of it makes some sense. State employees who are eligible for state retirement but not yet eligible for Medicare (i.e. not yet 65) are often hesitant to take early retirement because it means they lose their access to affordable group insurance coverage (after the 18-months of Cobra access has terminated).

SB 501 is apparently designed to address that problem. I had not written about it yet because I have not had a chance the review it. My immediate question is, how does providing some extra money to early retirees resolve the access to affordable insurance problem? A related question is - why exactly should legislators who are leavng the General Assembly before they turn 65 be included in this "bonus"?

Here is how Niki Kelly of the Fort Wayne Journal Gazette described the new health care benefit in an April 25th story:

The governor also signed Senate Bill 501, a companion bill that establishes a retirement medical benefits account for state employees of all three branches of government as well as elected and appointed officers.

Legislators previously had authorized a special state-supported retirement health plan for only themselves. But it became a sensitive political issue, and they officially repealed it in the pay raise bill.

As a result, though, the General Assembly decided to set up a similar plan for all retiring state employees or elected officials who have served at least 10 years.

It requires the state to make annual contributions to the account based on the age of the employee, from $500 for employees younger than 30 to $1,400 for employees 50 or older.

In addition, there is a “catch-up” provision for any state employee retiring with at least 15 years of service or elected officer with at least 10 years of service. This supplemental contribution – meant to beef up the account in the first 10 years of existence – would be $1,000 for every year of service.

The catch-up would expire in 2018.

Money in the account can be used for health care costs of all kinds after retirement, including insurance premiums. If there is a balance in the account when the employee reaches 65, the money can be used to supplement Medicare coverage.

Senate President Pro Tem David Long, R-Fort Wayne, said although legislators would be eligible “this is really more for state employees” to bridge the gap between retirement and Medicare coverage.

Rep. Mike Ripley, R-Monroe, voted against the bill in the House, noting he couldn’t vote for a cash benefit for himself. He is serving his 11th year in the legislature.

Ripley said the plan is a great perk for state employees but that he doesn’t “know of any private corporation with a program like this.”

Several Democrats who voted against it said the plan didn’t go far enough.

“You can put money in for 20 years and still not have enough money to buy insurance for two years,” said Rep. Craig Fry, D-Mishawaka.

The new program will cost the state $55.7 million in the first year, with that number staying in that range before dropping substantially in 2018 after the 10-year catch-up provision expires.

So add another piece to the so-called "transparent" legislative benefits package. The ILB hopes at some point to put together a spread-sheet on legislative compensation, that would be able to produce the real amount any specific legislator is receving for his or her legislative service in any year. I don't expect it to be any easy task.

Finally, the Indianapolis Star had an editorial today on legislative ethics rules. A little late. Where were they (and other state papers) on this issue during the session, and why are they still not talking about the real issues of "part-time" legislators heading committees that reflect their real life employment, and "part-time" legislators holding important, highly-paid policy positions at Ivy Tech?

Recall this ILB entry from April 17th, about an Alabama paper winning a Pulitzer Prize this month for its series of stories about a number of their state legislators who worked for Alabama's community college system. In Alabama, according to the story:

Legislators defended the payments they received from the two-year college system, noting they need to earn a living. The lawmakers said they receive just over $30,000 a year in part-time salary and expenses from the Legislature.

From The Birmingham News' announcement of the Pulitzer:

Mr. Blackledge, 43, won for his work exposing extensive corruption and cronyism in Alabama’s network of 26 two-year colleges and training schools.

Mr. Blackledge’s reporting has led to the chancellor’s dismissal and to a move by the governor to ban the hiring of any state legislator by any of the colleges.

[Updated at 6:15 pm] More information on Ivy Tech, Indiana's community college system, has been added to the end of the online Star story this afternoon:

The outgoing Ivy Tech president, Gerald Lamkin, has been at Speaker of the House] Bauer’s office throughout much of the final hours of the session.

Bauer and [House Ways and Means Chairman Bill] Crawford are both employed by Ivy Tech. Bauer is vice president of external partnerships and Crawford is manager of community relations and outreach programs

For more, see this Oct. 8, 2006 ILB entry, headed "Should legislators should be allowed to serve as officers or directors of state universities and schools?"

The newly updated Star report states that:

One of two contentious issues that carried the potential to derail a new state budget was defused this afternoon, just hours before the General Assembly’s midnight adjournment deadline. The other, involving bonuses for key Senate lawmakers — remained unresolved.

The first of the two problem provisions, which would have required Gov. Mitch Daniels to appoint Democrats to the Ivy Tech Community College board of trustees, was removed from the budget.

Here is the revised CCR for HB 1001 (i.e. v.2).

Posted by Marcia Oddi on Sunday, April 29, 2007
Posted to Indiana Government | Indiana Law

Ind. Gov't. - How wrong is your tax assessment in an era of falling home prices?

"Homeowners Wage a Tax Rebellion: Rising Property-Value Assessments Drive Up Appeals as House Prices Decline" is the headline of a freely-available article in this weekend's edition of the Wall Street Journal. Moreover, the article uses three examples, one of them being a homeowner in Fort Wayne, Indiana. Some quotes from the story by Jeff D. Opdyke:

The problem: Tax assessments didn't keep pace with soaring property values in recent years. Now, assessments are catching up at the worst possible time, just as property prices soften. In theory, municipalities are supposed to roll back tax rates to offset rising property assessments. But many don't do it regularly, or do so to a lesser degree than they should, says Kenneth Wilkinson, the appraiser for Lee County.

"In today's market, I'd be lucky to get within $30,000 or $40,000 of my assessed value," says Jack Shearer, a real-estate broker in Fort Wayne, Ind., who a month ago began the process of appealing a recent reassessment that valued his home at $245,000. Mr. Shearer says he brokered the $185,000 sale of a house in his neighborhood four months ago, yet the assessed value on that house recently came in at close to $220,000.

Under Indiana law, assessments are based on sales data that is two years old. Thus Mr. Shearer's house was valued based on data from 2004-05, when, he says, prices "were much stronger."

Indeed, Allen County, home to Fort Wayne, has seen a surge of appeals in recent years, sparked by a statewide move in Indiana, as with other parts of the country, to assess properties based on current market value instead of cost.

That is leading to "sticker shock," says Stacey O'Day, Allen County's assessor. The system "is capturing in one swoop the increase in market value that happened over five years."

It is happening despite the fact that lawmakers in states such as Florida, New Jersey and Nebraska are proposing to cut property taxes or cap increases, or are offering rebate checks to homeowners to take some of the sting out of rising property reassessments.

Because property taxes are a local affair, national data are tough to come by. The National Taxpayers Union, an advocacy group in Washington, estimates that 30% to 60% of all homes are overassessed. The group says homeowners who lodge appeals win a reduction in their home's assessed value 30% to 50% of the time.

The reassessment mania has spawned a mini-industry of consultants and mass-mailings offering to help people cut their bills. Last month, Protest, a property-tax consulting firm in Arlington, Texas, sent mailers to its clients and others, reminding them that they have just 30 days to challenge their latest assessment.

The firm charges a $150 fee, plus a "success fee" of between 50 cents and 75 cents per $100 of market-price reduction on a home. Tim Spoonemore of Protest says that while most people "can do this on your own, it's time-consuming when you have a hectic schedule."

Indeed, tax experts generally say there is little reason to hire help when appealing an assessment, particularly given that the fee can wipe out much of any first-year savings.

Posted by Marcia Oddi on Sunday, April 29, 2007
Posted to Indiana Government

Law - Courts in three other states have found traffic restrictions bearing similarities to Louisville's Broadway cruising plan to be unconstitutional

From a story today Jim Adams in the Louisville Courier Journal:

Courts in three other states have found traffic restrictions bearing similarities to Louisville's Broadway cruising plan to be unconstitutional, the attorney for the west Louisville businesses challenging the plan has argued in a new brief in U.S. District Court.

What is the plan?

The city plans to restrict traffic between Ninth and 28th streets to those bearing passes, and to close Broadway from 28th to 34th streets to essentially all but residents. Louisville Metro Police intend to station 410 officers, roughly a third of the department, along Broadway on Friday and Saturday nights. Louisville police and attorneys have argued that violence during cruising, including one murder in 2005, justifies the restrictions.

The plaintiffs, however, argue that the plan is discriminatory and will cost them up to $150,000 in sales.

Ind. Law - Status of fireworks, serial meeting, and CAFO bills

Fireworks. Angela Mapes of the Fort Wayne Journal Gazette writes today in a story that begins:

Local governments can regulate the use of fireworks 352 days a year under a bill that passed Saturday after weeks of tweaking by state lawmakers.

While giving municipalities authority the majority of the year, Senate Bill 9 creates 13 “holy days” centered on major holidays with protected hours. * * *

But some lawmakers worried that the bill would just create confusion if the fireworks regulations varied greatly from one municipality to another. * * *

Under the new bill, local governments can’t limit the use of fireworks between 5 p.m. and two hours after sunset from June 29 through July 9, except on July 4. On July 4, fireworks usage is protected from 10 a.m. to midnight.

From 10 a.m. Dec. 31 to 1 a.m. Jan. 1, fireworks use also is protected, according to the approved bill.

If local governments don’t place their own regulations on fireworks displays, they will remain under the broader state law.

See also the ILB entry from April 26th headed "An improvement to the current fireworks law?"

Serial meetings. From the Evansville C&P:

Lawmakers have passed the so-called "Bob Knight rule" to close the serial-meetings loophole in the Indiana Open Door law and prohibit elected officials from breaking into small groups, behind closed doors, to conduct official business in private that should be conducted in public.

The House on Friday voted 89-6 for the legislation, Senate Bill 103, before the Senate approved it 43-2, sending it to Gov. Mitch Daniels for his consideration. * * *

Although the Knight case was the best-known example, bill author Sen. Beverly Gard said other serial meetings have occurred on elected councils, commissions and boards elsewhere in the state. She recalled one example in her district where council members held a series of impromptu nonpublic gatherings to correct an oversight in a budget they had previously passed.

"That's not the way you do things," Gard said. "I don't think it was a deliberate attempt to circumvent the public process; I think it was expeditious on their part, because they were down to the wire. I think they just didn't think it through."

Rep. Russ Stilwell, D-Boonville, said the Senate bill now incorporates provisions from a similar serial-meetings bill he got passed in the House.

Under the bill, Indiana's Open Door Law would be violated if the following criteria were met:

- One of the gatherings is attended by at least three members of a governing body but less than a quorum, and the other gatherings include at least two members.

- The total number of members attending the gatherings equals a quorum.

- All the gatherings concern the same subject matter and are held within seven days.

- The gatherings are for the purpose of taking official action, which includes receiving information, deliberating, making decisions or taking final action.

Serial meetings would include in-person gatherings or telephone conversations but not e-mail. They would not include such things as social gatherings, a political caucus to discuss strategy, or gatherings to discuss an industrial or commercial prospect that did not result in recommendations or decisions.

Senate Bill 103 would allow anyone who alleges that serial meetings had occurred to file a lawsuit in court seeking to invalidate any policy or decision that was made based in whole or in part on such behind-closed-door gatherings.

Confined Feeding. Angela Mapes writes in the Fort Wayne Journal Gazette:

A bill that would increase inspections required for confined animal feeding operations has come under threat because lawmakers can’t agree on a key point.

A House version of a bill brought by Rep. Phil Pflum, D-Milton, included a prohibition against new confined operations locating within 1 mile of a city or school.

Pflum wants that provision included in Senate Bill 431, the one confined feeding bill still alive before the legislature, but Senate leadership is balking at the idea.

Confined and concentrated feeding operations raise hundreds to thousands of cows, pigs and chickens in a small area and store treated waste in lagoons or apply it to acreage.

Sen. Beverly Gard, R-Greenfield, chairwoman of the Senate Energy and Environmental Affairs Committee, believes applying a 1-mile setback to all confined feeding operations would be a mistake.

Local governments should regulate where confined feeding operations locate, Gard said Friday.

A one-size-fits-all approach would be impractical at best and dangerous to the environment at worst, said Gard, a former biochemist. Geography specific to application locations, such as aquifers, can affect whether an application site is suitable for a confined feeding operation.

City and counties can pass zoning regulations on confined feeding operations, including where the operations can locate, although many communities have not done so.

If Pflum won’t sign off on the bill because of the setback issue, he will keep the other beneficial parts of the bill from passing, Gard said.

By increasing fees, the proposal gives the Indiana Department of Environmental Management resources to inspect confined feeding operations more often.

The approximately 2,300 operations in Indiana now are inspected about once every seven years, or in response to specific complaints.

The bill also would require applicants to disclose past environmental violations. Pending applications would be included in the requirement, Gard said. * * *

But to Pflum, the entire point is the setback and what he believes it would do to protect homeowners – protection many local governments don’t currently offer.

“Our home is our sanctuary,” he said. “It’s all about location.”

Rep. Thomas Saunders, R-Lewisville, agreed, saying the state already regulates how close sex offenders can locate near schools – and regulates setbacks related to landfills and liquor stores –and that a setback for confined feeding operations is no different.

Posted by Marcia Oddi on Sunday, April 29, 2007
Posted to Indiana Government | Indiana Law

Saturday, April 28, 2007

Law - Federal law says creditors can't take Social Security and Veteran's benefits to pay debts, but the practice is widespread

The Wall Street Journal has a troubling front-page story today ($$$) that begins:

Heart surgery halted Viola Sue Kell's work sewing carpets in a rug mill in 2001. It was the end of 40 years of cleaning motel rooms, restaurant jobs, "just hard stuff," says Mrs. Kell, a 64-year-old widow. She applied for Social Security disability, and her monthly $827 benefit now is her only income.

But when Mrs. Kell tried to pay her mortgage and electric bills in 2004, her checks bounced. Every cent of the Social Security check, which went straight to her bank each month, had been taken by a debt collector that had garnished her bank account.

[More] Here is the pull-quote from the printed version of the story:

Direct deposit of Social Security checks, meant to make them secure, can leave benefits vulnerable.

Posted by Marcia Oddi on Saturday, April 28, 2007
Posted to General Law Related

Ind. Law More on "Gary Curfew law on solid ground, council says"; ICLU approval

Andy Grimm of the Gary Post-Tribune had a story today on northwest Indiana towns "taking a second look at curfews." This follows on a story from the Tribune earlier this week - see ILB entry here - on the curfew ordinance passed Tuesday by the Gary City Council. Some quotes:

In Gary, police and city attorneys are working out kinks in a plan for strict summertime enforcement. Police could detain curfew violators and require their parents to pick them up at the station, write the teens a $50 ticket and give them a date for a juvenile court hearing.

"I cannot wait to start enforcing it," said juvenile officer Darlene Breitenstein. "A lot of people get hurt and a lot of people get in trouble during those forbidden curfew hours."

In Porter, police commission members have asked the Town Council to draft a curfew ordinance in part to help them deal with petty crimes committed by idle youths, Police Chief James Spanier said. * * *

Teens roaming around Northwest Indiana said they didn't know anything about their town curfews, but most said their parents took care of the curfew rules.

Adam Kabella, 16, of Hebron, Dylan Newhouser, 15, of Lowell, and Jake DeWees, 16, of Lowell, said their parents gave them no curfew and would protest a town ordinance.

"We probably would have a bunch of kids sign something, and bring it to the government," Newhouser said. "We'd protest."

Joshua Cervantez, 14, of Merrillville, said a town-established curfew wouldn't hamper his lifestyle, as his parents have already done their damage.

"My parents want me to be home at 10:30," Cervantez said. "By the latest."

Chesterton police haven't enforced the curfew law since the constitutional challenges began in 2000, and they seldom need to.

Teens, and anyone else, can be thrown out of most public parks at 10 p.m. -- and sooner, if a patrolman hears too much noise or witnesses vandalism.

Still, in his small town, they also have noticed teens out before the 5 a.m. curfew hours.

"You'll see a couple kids walking down the road at 3 a.m.," he said. "Nine times out of 10, they were going fishing. And they'd have their poles to prove it."

Curfew laws had gone on and off the state books three times since 2000, passed by legislators and swiftly struck down by court challenges. Local curfew ordinances, usually just stricter versions of the state statute, likewise were unenforceable.

The most recent, constitutionally sound version of the state law the city ordinance is modeled on protects the First Amendment rights of those under 18 to attend protests, and to be out with parents' permission or in an emergency, said Ken Falk of the Indiana Civil Liberties Union.

Falk questions whether the curfew hours established by the state, or even earlier hours settled by a municipality, will reduce youth crime but says the new law won't face a challenge from the ICLU.

Posted by Marcia Oddi on Saturday, April 28, 2007
Posted to Indiana Law

Ind.Decisions - Yet more on "Gay-rights article stirs debate over student freedoms" [Updated]

The Fort Wayne Journal Gazette has both a story and an editorial today on the settlement reached Thursday between Amy Sorrell, "a teacher at Woodlan-Junior Senior High School in Allen County who was suspended in March after a column appeared in the school newspaper calling for tolerance toward gays" (description from the Ind. Star) and the East Allen County Schools (EACS). Both today's story and editorial should best be read in full. The editorial begins:

Administrators at East Allen County Schools had an opportunity to demonstrate compassion and tolerance in reaching an agreement with teacher Amy Sorrell. Instead, they used the occasion to continue their attacks on her character and professional judgment and to leave little doubt that defense of their own reputations takes precedence over creating a supportive environment for teaching and learning.

The bitter remarks contained in statements presented by Superintendent Kay Novotny and Assistant Superintendent Andy Melin suggest they did not support the settlement agreement that allowed Sorrell to continue teaching, albeit at a different high school. What looked initially like a compromise in which both the district and Sorrell gave up something and prepared to move on appears to be the first salvo in an effort to create a hostile environment for the teacher.

Melin lauds the district’s willingness to settle as demonstrating “an exceptional level of compassion and fairness.” On the contrary, their statements and the entire episode have demonstrated a rigid and undiscerning allegiance to administrative prerogative.

Here, from the news story, are some of the comments to which the editorial refers:

As part of the settlement, Sorrell had to issue an apology stating that she did not intend her actions or comments over the last three months to suggest that administrators were intolerant toward homosexuality. The settlement also dictated Sorrell and East Allen issue a joint statement in which Sorrell acknowledged that EACS has the right to regulate school-sponsored publications and EACS acknowledged students have certain rights under the First Amendment.

[Superintendent Kay Novotny] said administrators accepted Sorrell’s apology.

“(We) assume that her statement of apology was sincere and heartfelt and not some shallow, insincere statement made, with her fingers crossed behind her back, in order to save her job,” Novotny said.

Regarding Sorrell’s acknowledgement of the district’s authority over student publications, Novotny said, “Had Mrs. Sorrell displayed this newfound wisdom earlier, there would have been no personnel matter to precipitate this recent controversy.”

The editorial today concludes:

At the district’s request, the settlement was made public and allowed either party to comment on its terms – seemingly to ensure that administrators would have the last word. Their last words should make it clear to East Allen students, parents, faculty and staff that administrators have learned nothing from the case. Their attempts to blame the media for the controversy ignore the district’s own bungled handling of the situation that included the board refusing to allow discussion about the First Amendment at a public meeting.

Their caustic response to the settlement clearly shows that those who attempt to exercise their rights risk a personal and professional ordeal.

Friday’s statements were an unfortunate ending to what should have been a constructive discussion of student press issues and an unfortunate beginning to a talented teacher’s reasonable attempt to move on.

(For background, start with this ILB entry from April 26th.)

[Updated Saturday evening] The afternoon Fort Wayne News-Sentinel contains a story by Ese Isiorho that begins:

At least one apology has been issued in the matter of Amy Sorrell vs. East Allen County Schools, and district officials hope it’s not the last.

“Although Mrs. Sorrell’s apology is the first one received, it should not be the last apology East Allen County Schools and its administrators should receive on this matter,” said Superintendent Kay Novotny at a news conference Friday morning.

The story includes a detailed timeline.

Posted by Marcia Oddi on Saturday, April 28, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "Daniels vetoes film industry bill" - Concerns about maintaining a permanent historical record

"Daniels vetoes film industry bill" is the headline to a brief story by Bill Ruthhart on the Indianapolis Star website:

Gov. Mitch Daniels vetoed his first bill in more than two years Friday, rejecting a measure that would provide tax incentives to the film industry.

House Enrolled Act 1388 allowed for tax and other financial incentives to encourage film and media productions in the state.

In a letter to House Speaker B. Patrick Bauer, D-South Bend, Daniels said he disagreed with the legislation's provision to allow unlimited refundable tax credits for all media productions under $6 million and a 15 percent credit to other production-related expenses.

I have expressed concerns in the past about the lack of preservation of Indiana governors' signing statements, veto messages, and related materials.

See "Executive Orders, Signing Statements, and Veto Messages, Part One," 49 Res Gestae 8 (Apr. 2006), pp. 35-37". The article is accessible here. See particularly the section titled "State signing statements," beginning on p. 4. and the section on "Veto messages" on p. 6.

So where is the Governor's veto message? And where is the "letter to House Speaker B. Patrick Bauer, D-South Bend" expressing the Governor's concerns? NOT where they would have been found during the terms of past governors, on the monthly calendar of press releases.

And how have the signing statements and veto messages of our more recent governors, which had been at one time available online, been preserved?

Posted by Marcia Oddi on Saturday, April 28, 2007
Posted to Indiana Law

Friday, April 27, 2007

Ind. Decisions - Supreme Court rules on application of the Wage Payment Statute to school corporations

In Naugle v. Beech Grove Schools, a 13-page, 5-0 opinion, Justice Boehm writes:

We hold that the term “days” as used in the Wage Payment Statute refers to business days and not calendar days. We also hold that (1) our reasoning in Brownsburg Community School Corp. v. Natare Corp., 824 N.E.2d 336 (Ind. 2005) does not prevent the application of the Wage Payment Statute to school corporations; (2) there is no school powers statute that precludes application of the Wage Payment Statute to school corporations; (3) there is no generic good faith defense to the Wage Payment Statute; and (4) there is no requirement within the Ten-Day Rule of the Wage Payment Statute that the employee request or demand wages. * * *

The Wage Payment Statute provides that “[p]ayment shall be made for all wages earned to a date not more than ten (10) days prior to the date of payment.” Ind. Code § 22-2-5-1(b). * * *

Beech Grove contends that this case is controlled by the reasoning of this Court in Brownsburg Community School Corp. v. Natare Corp., 824 N.E.2d 336 (Ind. 2005), reh’g denied. Beech Grove contends that it is a public school and therefore it is not subject to the Wage Payment Statute because the General Assembly did not intend for public school corporations to be subject to statutory liquidated damages. The trial court agreed with that argument, and the Court of Appeals affirmed. Naugle, 840 N.E.2d at 858-59. We do not agree that Brownsburg applies to this case. * * *

We conclude that the Wage Payment Statute applies to school corporations. This holding is consistent with a number of pre-Brownsburg opinions from the Court of Appeals that assumed without specific discussion that the Wage Payment Statute applied to governmental employers. [citations omitted] The failure of the legislature to change the statute to exclude governmental employers in light of these decisions also supports this interpretation of the statute. * * *

Finally, Naugle and Cain argue that this interpretation of “days” under the Ten-Day Rule will produce adverse consequences under other Indiana statutes that refer to “days.” Our interpretation of “days” in the Ten-Day Rule of the Wage Payment Statute is based on the language and purpose of this statute. It has no particular force in other contexts.

Conclusion. For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of Beech Grove.

Posted by Marcia Oddi on Friday, April 27, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - 7th Circuit Bar Association meeting May 6-8 in Milwaukee

The 7th Circuit Bar Association is meeting May 6-8 in Milwaukee. Take a look at the agenda for Monday morning, May 7, 2007, on "The Evolution of Media Coverage of the Supreme Court," featuring two panels, one of "traditional media," and one of "bloggers." I'd love to be there to hear the panelists:

9:00 AM Welcome and Introductions
Honorable Frank H. Easterbrook, Chief Judge, United States Court of Appeals for the Seventh Circuit, and Dan Conley (Quarles & Brady), President, Seventh Circuit Bar Association

9:15 AM – 9:45 AM Opening Address: The Evolution of Media Coverage of the Supreme Court
Joan Biskupic, USA Today, Supreme Court reporter and author

9:45 AM – 10:45 AM Traditional Media’s Coverage of the Supreme Court
Moderator: Mike Gousha, Distinguished Fellow in Law & Public Policy, Marquette University Law School
Panelists: Joan Biskupic (USA Today); David Savage (LA Times); Stephen Henderson (Washington Bureau of McClatchy Newspapers); Professor Jonathan Turley (George Washington Law School); Dean Joseph D. Kearney (Marquette University Law School)

10:45 AM – 11:00 AM Morning Break

11:00 AM – 12:15 PM The “New” Media: Bloggers and the Courts
Moderator: Honorable Diane S. Sykes, Circuit Judge, United States Court of Appeals for the Seventh Circuit
Panelists: Professor Ann Althouse, University of Wisconsin Law School (“Althouse”); Howard Bashman, Law Offices of Howard J. Bashman (“How Appealing”); Professor Jason Czarnezki, Marquette University Law School (“Empirical Legal Studies”); Professor Richard Garnett, University of Notre Dame Law School (“Prawfsblog”); Professor Christine Hurt, University of Illinois College of Law (“Conglomerate”); and Professor Eugene Volokh, UCLA Law (“The Volokh Conspiracy”)

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

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

Virginia Meister v. State of Indiana and the City of Union City, Indiana - "Virginia Meister appeals the trial court’s judgment forfeiting her truck, which was seized after her son, John Wymer, drove her truck, was arrested for driving while suspended, and had methamphetamine in the truck." Affirmed.

John L. Brimhall and Courtney Brimhall v. Jeffrey A. Brewster and Autumn Brewster - "John and Courtney Brimhall appeal the trial court’s grant of Jeffrey and Autumn Brewster’s Motion for Relief from Entry of Judgment, filed pursuant to Ind. Trial Rule 60(B)(8). The Brimhalls present the following consolidated and restated issue for review: Did the trial court properly grant the Brewsters’ T.R. 60(B)(8) motion, which reinstated the Brewsters’ cause of action against the Brimhalls? We affirm."

James H. Higgason, Jr. v. Indiana Department of Correction - "Under I.C. § 34-58-1-2, a trial court may dismiss an offender’s claim if it determines the claim is frivolous, not a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from liability. Here, the trial court dismissed Higgason’s Complaint pursuant to I.C. § 34-58-2-1, which provides that if an offender has filed at least three civil actions in which a state court has dismissed the action or claim under I.C. § 34-58-1-2, the offender may not file a new complaint or petition unless a court determines that he is in immediate danger of serious bodily injury. * * * Higgason has filed more than a hundred complaints in his thirty-plus years of incarceration, and has occupied valuable time and resources of the trial court, this court, as well as our supreme court. Furthermore, we find nothing in the record to substantiate Higgason’s claim that he is immediate danger of serious bodily injury. * * * Based on the foregoing, we conclude that the trial court properly dismissed Higgason’s Complaint pursuant to I.C. § 34-58-2-1. Affirmed.

NFP civil opinions today (2):

In the Matter of the Involuntary Termination of Parent-Child Relationship of J.L.: Erica Lockett v. Marion County Office of Family and Children (NFP) - termination, affirmed.

Indiana Patient's Compensation Fund v. Ruth Hoeflin-Oakley, Robert Oakley, and Faith Oakley (NFP) - "Here, neither Ruth nor Robert was the actual victim of the malpractice, and they may not recover under their own statutory caps. As Faith has already been awarded the statutory maximum recovery for her injury, her parents cannot recover additional excess damages from the Fund. The trial court’s separate awards to Ruth and Robert are, therefore, reversed."

NFP criminal opinions today (4):

State of Indiana v. Kelly Fowler (NFP)

Tameka Cathey v. State of Indiana (NFP)

Jody Lee Sinclair v. State of Indiana (NFP)

Todd Eugene Trumann v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, April 27, 2007
Posted to Ind. App.Ct. Decisions

Thursday, April 26, 2007

Courts - "The Lottery Giveth and The Lottery Taketh Away"

Decision of the Day had a summary yesterday of a very interesting 8th Circuit decision involving an Iowa law, in Hawkeye Commodity Productions, Inc. v. Vilsack, 06-2406 (8th Cir., Apr. 24, 2007)>. From the summary:

Here’s an interesting constitutional challenge from the Eighth Circuit involving Iowa’s decision to cancel a popular new lottery game. To reverse a pattern of budget shortfalls in 2000 and 2001, Iowa turned to “TouchPlay,” a machine that dispensed lottery tickets with all the bells and whistles of a slot machine. After TouchPlay’s successful 2003 launch, plaintiff Hawkeye Commodity Promotions responded to the lure of flashing dollar signs by investing almost $7 million to put TouchPlay machines in stores all over Iowa.

But Hawkeye’s gamble failed in a big way. Just as Hawkeye was ramping up its operations, the Iowa legislature was debating the evils of gambling. In 2006, Iowa decided to cancel the all-too-successful TouchPlay program. Hawkeye sued, arguing that the decision violated its rights under the Contracts, Equal Protection, Takings, and Due Process clauses of the Constitution, but the district court rejected its claims. On appeal, the Eighth Circuit affirms, explaining that lottery programs are always subject to revocation, so investors should beware.

Posted by Marcia Oddi on Thursday, April 26, 2007
Posted to Courts in general

Ind.Decisions - Even more on "Gay-rights article stirs debate over student freedoms" [Updated]

More today on Amy Sorrell, the faculty sponsor of a high school paper that published an opinion piece by a student urging tolenance for gay students. (For background, start with this ILB entry from April 6th.)

This afternoon Rob Schneider of the Indianapolis Star writes in a brief story:

A teacher at Woodlan-Junior Senior High School in Allen County who was suspended in March after a column appeared in the school newspaper calling for tolerance toward gays, has accepted a settlement with the school district.

Amy Sorrell, 30, said the agreement was to be finalized this afternoon. It calls for her to be transferred to another high school where she will teach English. The agreement bars her from teaching journalism for three years.

Officials of the East Allen County Schools could not be immediately reached for comment.

Sorrell was placed on paid leave on March 19, two months after the school newspaper ran a column by a student about a friend who was gay.

School officials said the column’s content wasn’t suitable for the school paper.

Ese Isiorho of the Fort Wayne Journal Gazette has a somewhat longer story, headed "Settlement allows Sorrell to continue teaching."

Amy Sorrell will continue teaching, but not journalism and not at Woodlan Junior-Senior High School.

East Allen County Schools Superintendent Kay Novotny put her on paid leave March 19, two weeks after her journalism class refused to print a new district policy in the paper making principals publishers and all material subject to review. The policy was implemented after a column from sophomore Megan Chase published in the school newspaper Jan. 19 urged tolerance of homosexuals.

Sorrell was scheduled to have a public hearing Saturday to explain why she should be allowed to keep her job.

Instead, her lawyer, Pat Proctor, and EACS attorney, Tim McCaulay, agreed this week to settle the matter. Sorrell would only say she’s glad it’s over, and that part of the settlement allows her to teach English at Heritage Junior-Senior High School. She taught journalism and English at Woodlan.

Sorrell has yet to sign the settlement, but said she expected to sometime today.

The school board was supposed to decide Tuesday whether Sorrell would be allowed to keep her job at Woodlan.

[Updated 4/27/07] Krista J. Stockman has an informative story today in the Journal Gazette that reads in part:

Embattled Woodlan Junior-Senior High School journalism teacher Amy Sorrell will continue teaching under an agreement reached Thursday with East Allen County Schools.

The agreement places Sorrell on paid administrative leave for the rest of the school year and requires her to serve a five-day unpaid suspension, said her attorney, Patrick Proctor of Eilbacher Fletcher Attorneys.

The settlement also relocates her to Heritage Junior-Senior High School in the fall. Sorrell’s exact position hasn’t been determined, but it will not be teaching journalism, he said.

“I do not agree with the reprimands that have been issued against me. However, due to my personal financial circumstances, I am not in a position to contest the disciplinary action contained in the written settlement agreement between myself and the school administration,” Sorrell said in a written statement.

Sorrell has been on paid leave since March 19 from her position at Woodlan, where she taught newspaper, yearbook and English, including Advanced Placement English.

She was a popular teacher but lost favor with administrators after a student opinion column suggesting tolerance for homosexuality ran in the student newspaper in January. Shortly after the column ran, Woodlan Principal Ed Yoder notified Sorrell that all newspaper content had to be approved by him prior to publication, and she was given a written warning alleging she ignored her job responsibilities by exposing students to material that may be inappropriate for their age level.

Two months later, on March 19, Sorrell was placed on paid leave and a week later notified that her contract might be terminated for not following directives from Yoder regarding publishing the newspaper, altering the curriculum, placing the district in a false light by issuing false or misleading statements to the media and other allegations.

The board was to decide her fate Tuesday after hearing from both sides during a public hearing scheduled for Saturday. With the settlement, the hearing has been canceled. * * *

The move to Heritage places Sorrell at the high school where she graduated in 1995 and was once the editor of the newspaper.

“I look forward to working with the administration, teachers and the students at Heritage Junior-Senior High School,” Sorrell said. “Heritage is an exceptional school, and I am certain that teaching there will be a rewarding experience.”

The settlement was a matter of choosing between what is best for her own family and the students at Woodlan, said Jack Groch, the Indiana State Teachers Association representative for East Allen County Schools. Sorrell and her husband have two children.

“Amy made the right decision,” he said. “Any good that’s come out of this situation is that Heritage High School is gaining a great teacher. Unfortunately, Woodlan High School and its students are losing a great teacher. I share their sorrow and their pain.”

The ordeal also placed tolerance and freedom-of-speech issues in the forefront in East Allen, and the organizations that supported Sorrell won’t forget that, Groch said.

EACS attorney Tim McCaulay declined to comment on the settlement Thursday, but the district has a news conference scheduled for this morning to talk about the issue.

The AP has this story today. Some quotes:

The agreement calls for school officials to try to find a high school-level English teaching position for Sorrell at Heritage and for her to teach there for at least three years, he said.

Although the settlement does not specifically bar Sorrell from teaching journalism at Heritage, Proctor said the agreement essentially means she will not be teaching such courses for the next three years if she remains at the school.

"The school administration has said in no uncertain terms that she's not going to be given a journalism position. There's also no vacant journalism position at Heritage and the agreement does state that she can't bid out of the position that they give her for three years," he said. * * *

Part of the four-page agreement Sorrell signed with school officials is a written reprimand that states Sorrell neglected her duties as a teacher and was insubordinate in refusing to obey school officials' orders.

In a statement released yesterday, Sorrell said she does not agree with the reprimands but is not financially able to fight the matter.

"Due to my personal financial circumstance, I am not in a position to contest the disciplinary action contained in the written agreement between myself and the school administration," she said in the statement.

Sorrell said she is "very proud" of the student who wrote the editorial, and the paper's other writers and editors.

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

Ind. Decisions - More on Judge Young allows 2 to join federal lawsuit challenging Indiana's lethal-injection procedures [Updated]

Jon Murrary of the Indianapolis Star has an update this afternoon on the hearing today in federal court challenging Indiana's lethal injection procedure. See the earlier ILB entry here.

[Updated 4/27/07] Jon Murray reports today on yesterday's hearing. Some quotes:

A doctor testifying Thursday in a lawsuit challenging Indiana's use of lethal injections in death penalty cases called state practices "catastrophically flawed." * * *

With Woods' execution looming, U.S. District Judge Richard L. Young is expected to rule soon on Woods' request for a preliminary injunction. Young heard testimony during Thursday's daylong hearing. * * *

Doctors don't take active roles in executions because of ethical concerns voiced by national medical associations. But during Indiana's executions, [Prison Superintendent Ed Buss] said, a physician watches 7 feet away from the gurney, behind a window, and can intervene if there is a problem.

The inmates' attorneys countered with testimony from Dr. Mark Heath, an anesthesiologist at Columbia University in New York, who has testified in about 10 death penalty cases.

He said the three-drug combination used by nearly every state with lethal injection -- including Indiana -- is poorly calibrated, increasing the risk that the anesthetic won't take hold or other problems will crop up.

Heath also questioned whether Buss and others viewing the execution are trained to judge whether a prisoner is adequately sedated.

Officials have recently changed execution plans. For Woods, they plan to double the dose of anesthetic and will place an ammonia tablet under his nose to verify that he's sedated.

"We looked at experts' testimony in other states," Buss said, and decided the new amount, 5 grams of sodium pentothal, was certain to be effective.

"It's an increased safety margin," Heath said of the higher dose. "But in the absence of verifying the anesthetic depth in a meaningful way, it doesn't matter."

Heath said the second paralyzing drug -- used to keep the inmate from convulsing -- could prevent one who isn't adequately sedated from grimacing or showing other signs of consciousness.

Concerns about lethal injection have prompted 11 states to suspend executions, by court order or on their own. But Buss and other officials defend Indiana's procedures.

Posted by Marcia Oddi on Thursday, April 26, 2007
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - More on: Supreme Court issues 43-page opinion affirming post-conviction court’s denial of relief

More on the Indiana Supreme Court's decision earlier today in John Stephenson v. State of Indiana (see ILB entry here). Bryan Corbin of the Evansville Courier & Press writes this afternoon in a story titled "Indiana Supreme Court upholds Warrick death sentence":

The appeal of death-row inmate John Matthew Stephenson of Warrick County was rejected today by the Indiana Supreme Court.

In a 43-page decision, the state's highest court today denied Stephenson's petition for post-conviction relief. The unanimous decision affirmed an earlier decision by Warrick Superior Court Judge Robert Aylsworth.

A decade ago, Stephenson was convicted in the March, 28, 1996, slayings of Brandy Southard, 21, John "Jay" Tyler, 29, and Kathy Tyler, 29. The jury found Stephenson guilty of three murders and he was sentenced to death.

Stephenson's trial lasted eight months and is believed to be the longest and most expensive trial in Indiana up to that time.

Among the nine issues Stephenson's appellate attorneys raised was the fact that some jurors knew that Stephenson was made to wear a stun-belt restraint device during his trial. The supreme court found that was not grounds to reverse Stephenson's conviction or death sentence.

Posted by Marcia Oddi on Thursday, April 26, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP)

For publication opinions today (2):

In Joseph Rich v. State of Indiana , a 5-page opinion, Judge May writes:

Joseph Rich appeals his conviction of public intoxication as a Class B misdemeanor. He claims the court should have suppressed the testimony of the arresting officer. We reverse. * * *

Based on the evidence the State presented in response to Rich’s motion to suppress, we have no choice but to suppress the remainder of Deputy Gray’s testimony. Evidently, the State did not request the presence of Detective Daniel at Rich’s trial, and Detective Daniel was the only person who could explain the facts and circumstances that led to his stop of Rich. Without his testimony, we have no basis for holding an ordinarily prudent person would have believed criminal activity was afoot. Therefore, we must reverse.

CONCLUSION The trial court erred when it determined Rich’s challenge to Deputy Gray’s testimony was untimely. Because the State failed to demonstrate Detective Daniel had reasonable suspicion to justify his stop of Rich, we must suppress Deputy Gray’s testimony regarding Rich’s condition. Therefore, we reverse.

In Timothy Jones v. Indiana Bell Telephone Company , an 8-page opinion, Judge Vaidik writes:

In this negligence case, Plaintiff Timothy Jones appeals the trial court’s grant of Defendant Indiana Bell Telephone Company’s d/b/a Ameritech (“Indiana Bell”) Motion for Judgment on the Evidence following Jones’s presentation of the evidence. Concluding that Indiana Bell owed Jones a duty of reasonable care but that Jones’s evidence in this case is not sufficient to establish a breach of that duty, we affirm the trial court’s grant of Indiana Bell’s motion for judgment on the evidence. * * *

Applying the policy considerations behind Sowers to this case, we conclude that Indiana Bell owed a duty of reasonable care to its invitees, which included Jones, and that this duty did not include the duty to inspect and warn. However, to the extent that Indiana Bell learned of dangerous conditions on its poles, it had a duty to warn its invitees. The evidence in this case is that as Jones, an experienced cable installer, climbed the telephone pole on December 18, 1997, he did not detect any problems with either the telephone line or the clamp, nut, and bolt. In addition, there is no evidence that Indiana Bell knew that there was anything wrong with the pole, telephone line, or clamp, nut, and bolt prior to Jones’s fall. As such, the evidence is not sufficient to prove the element of breach. Because the evidence does not allow reasonable people to come to differing conclusions on the issue of whether Indiana Bell breached its duty of reasonable care to Jones by not inspecting the pole, telephone line, and hardware in the absence of information that there was anything wrong, the trial court properly entered judgment on the evidence in favor of Indiana Bell.

NFP civil opinions today (6):

Francis W. Splittorff v. Jerry Aigner, Pam Aigner, Beverly Childs and Warrick County (NFP) - "Because Splittorff’s challenge to the issuance of a tax deed was not timely, the trial court properly granted the County’s and the Aigners’ motions for summary judgment. We affirm."

In the Termination of the Parent-Child Relationship of A.C.; Steven Conley v. Floyd County Department of Child Services (NFP) - termination, affirmed.

In Re the Marriage of Jeffrey W. Morrow v. April B. Morrow (NFP) - "Here, both Husband and Wife received hundreds of thousands of dollars in assets in the dissolution. That said, the trial court found that from 2003 to 2005, Husband’s self-reported average gross income was nearly two and one-half times that of Wife’s well-documented average gross income. We also note that the trial court ordered Husband to pay less than one-third of Wife’s attorney’s fees. Under these circumstances, we find no abuse of discretion."

In the Matter of the Involuntary Termination of Parent-Child Relationship of M.C. and S.C.; Betty Parker and Steven Christener v. Adams County Department of Child Services (NFP) - termination, affirmed.

Rocky L. Smith v. Beverly Smith (NFP) - "Respondent-Appellant Rocky L. Smith appeals from the trial court’s issuance of a writ of assistance in favor of Petitioner-Appellee Beverly Smith. We reverse and remand with instructions. * * * The following issue is dispositive: whether the trial court erred in issuing a writ of assistance when possession was relinquished to the purchaser of property."

In the Matter of the Termination of the Parent-Child Relationship of C.V.; April Vessels and Michael Vessels v. Tippecanoe County Department of Child Services (NFP) - "The evidence demonstrates Mother and Father, although capable of complying with services, were unwilling to do so. They continue to live in unsafe housing, they continue to use illegal drugs, they continue to put their needs above C.V.’s needs, they still have sexual boundary issues, and Father still has difficulty managing his anger appropriately. In light of that evidence, termination was not based solely on mental disabilities and termination was in C.V.’s best interests. Therefore, we affirm."

NFP criminal opinions today (7):

Spencer Nunn, Jr. v. State of Indiana (NFP)

Rex A. Aschliman v. State of Indiana (NFP)

Savanah Brown v. State of Indiana (NFP)

Kaylene D. Almy v. State of Indiana (NFP)

Anthony D. Hogan v. State of Indiana (NFP)

Lee Gilliam v. State of Indiana (NFP)

Jason Michael Mall v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 26, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues 43-page opinion affirming post-conviction court’s denial of relief

In John Stephenson v. State of Indiana, a 43-apge opinion, including a one-page separate concurring opinion by CJ Shepard that is joined by J. Dickson, Justice Boehm concludes:

The post-conviction court’s denial of relief is affirmed.

Posted by Marcia Oddi on Thursday, April 26, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit tosses Midway crash to Illinois state courts

In Bennett et al v. Southwest Airlines, et al, a 10-age opinion today, Chief Judge Easterbrook writes:

Southwest Airlines flight 1248 landed in a snowstorm at Chicago Midway International Airport on December 8, 2005. Conditions were near the federal minimum for safe landings on Midway’s Runway 31C, which at 6,522 feet is among the shortest main runways at a commercial airport. A successful landing of the Boeing 737-700 depended on the pilot’s ability to come in at a moderate speed, touch down near the start of the runway, and apply the thrust reversers promptly. As things turned out, however, the wheels touched down 2,000 feet into the runway and thrust reversers did not deploy until 18 seconds later, when the plane was only 1,000 feet from the runway’s end. The plane smashed through a barrier and a fence; it came to rest in a street, where it crushed a car and killed one of the occupants. Twelve other people on the ground were injured, though the plane’s 98 passengers and five crewmembers were safe.
Tort suits filed in state court have been removed by the defendants (Southwest, Boeing, and Chicago) on the theory that plaintiffs’ claims arise under federal law. See 28 U.S.C. §1331, §1441(a). The district court denied a motion to remand but certified the decision for interlocutory appeal, which we accepted. 28 U.S.C. §1292(b). Defendants’ early theory that federal law occupies the field of aviation safety and thus “completely preempts” all state law has been abandoned. We must decide whether plaintiffs’ claims arise under federal law because federal aviation standards play a major role in a claim that Southwest (as operator of the flight), Boeing (as manufacturer of the airframe), or Chicago (as operator of the airport) acted negligently. * * * The defendants do not contend, nor did the district court find, that resolution of this suit revolves around any particular disputed issue of federal law. For all we can see, everything will depend on a factbound question such as whether the pilots should have executed a missed approach or, having elected to land, exercised adequate diligence in activating the thrust reversers; whether Boeing should have told air carriers not to count on thrust reversers when calculating how much runway they need; or whether Chicago should have closed the airport because of bad weather. The meaning of federal statutes and regulations may play little or no role. As defendants (and the district court) saw things, however, this does not matter: all suits about commercial air travel belong in federal court because the national government is the principal source of rules about safe air transportation, and uniform application of these norms is desirable. So put, the argument would extend Grable and the arising-under jurisdiction well beyond the scope the Justices are willing to tolerate. * * *
This circuit has held many times that claims related to air transport may be litigated in state court. [cites omitted] Grable does not change this conclusion. That some standards of care used in tort litigation come from federal law does not make the tort claim one “arising under” federal law. [cites omitted] No court of appeals has held either before or after Grable that the national regulation of many aspects of air travel means that a tort claim in the wake of a crash “arises under” federal law. Abdullah v. American Airlines, Inc., 181 F.3d 363, 375-76 (3d Cir. 1999), strongly implies that the “arising under” jurisdiction is unavailable; we now hold that this is the right conclusion.
The judgment is reversed, and the case is remanded to the district court with instructions to remand the litigation to state court.

Note that the decision on page 2 includes an apparently completely gratuitous color photo of the downed plane after it had come to rest on a city street. The opinion does not reference the photo. The bottom of the photo notes on the left side "copyright NTSB" and on the right side "aviation-safety.net." A check of that site indicates: "The Aviation Safety Network is a private, independent initiative founded in 1996. On line since January 1996, the Aviation Safety Network covers accidents and safety issues with regards to airliners, military transport planes and corporate jets." The presence of this photo raises a number of questions in my mind, which I may pursue in a later entry.

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

Law - Dueling surveys rank various states' "legal climates"

"The State of Liability, State By State" is the heading to a Wall Street Journal Blog entry listing rankings of the U.S. Chamber of Commerce's Institute for Legal Reform, and The American Association for Justice (the group formerly known as the American Trial Lawyers Association).

Indiana ranks 8 with the Chamber; and makes the AAJ's list of "The 10 Worst States to get Sick or Injured in."

Posted by Marcia Oddi on Thursday, April 26, 2007
Posted to General Law Related

Ind. Law - An improvement to the current fireworks law?

Last year's lenient fireworks law, which set off complaints all over the state, but particularly in urban areas, and caused many to ask "What were they thinking?", looks to be replaced this year by changes that may confuse everyone, everywhere.

Lesley Stedman Weidenbener of the Louisville Courier Journal writes today:

Key lawmakers have reached an agreement on a bill that lets local governments curtail the use of fireworks, but the measure still needs final approval by the House and Senate.

A conference committee seeking the resolution finalized language yesterday that would let cities or counties ban fireworks except for 12 days each year, many of them on and around Independence Day.

The legislation comes a year after lawmakers voted to legalize fireworks use every day.

The new restrictions don't go as far as some had hoped. Earlier in the session, lawmakers debated bills that would have all but eliminated fireworks. * * *

The bill provides communities with significant latitude to determine what days and times fireworks will be permitted. Communities could decide, for example, to continue allowing their use daily but ban them only after 9 p.m.

Another city might decide to eliminate their use on all but the 12 days specified in the legislation. Those are June 29-30, July 1-9, and Dec. 31.

Here is a list of earlier ILB entries mentioning "fireworks."

Posted by Marcia Oddi on Thursday, April 26, 2007
Posted to Indiana Law

Ind. Courts - David Leon Woods appeals to U.S. Supreme Court

From a story late yesterday by Tom Coyne of the AP:

SOUTH BEND, Ind. - Attorneys for an Indiana inmate sentenced to die by lethal injection next week asked the U.S. Supreme Court on Wednesday to block the execution, challenging the state Supreme Court's method of determining whether he is mentally retarded.

David Leon Woods, 42, is scheduled to die early May 4 for the 1984 slaying of his neighbor, Juan Placencia, in the northeastern Indiana town of Garrett. The state Parole Board voted Monday against recommending clemency for Woods.

"Indiana's refusal to articulate its own uniform definition of mental retardation makes it impossible for persons to know what standard they must meet in order to establish that they belong to the classification of people who are exempt from executions," said the petition filed with the high court Wednesday.

William Van Der Pol Jr., one of Woods' attorneys, said in a telephone interview Wednesday that the problem is the Indiana Supreme Court keeps changing the definition of how to measure mental retardation.

Woods attorneys contend that in finding Tommy Pruitt of Martinsville competent to be executed, the state court said in 2005 that standardized test scores were not enough. It said the IQ tests should be considered in conjunction with "other evidence of intellectual functioning."

But Woods attorneys said the Indiana Supreme Court refused to consider other evidence in Woods' case, claiming "nearly every examiner found evidence of serious brain damage, brain dysfunction, or at a minimum, a learning disability."

Woods has tested both above and below the generally accepted level of mental retardation, just as Pruitt had, said Van Der Pol, who represents both men.

"I don't think there's any question the Indiana Supreme Court is making some sort of distinction between Pruitt and Woods under identical circumstances. I just can't figure out what in the world the differences are," Van Der Pol said.

Courts: More on: "States urged to get abused kids' lawyers," Indiana receives "F"

Updating this ILB entry from Tuesday, which included this quote from an AP story by David Clary:

NEW YORK — Fifteen states get failing grades on a first-of-its-kind report card assessing the legal representation provided to abused and neglected children as courts make potentially fateful decisions about whether to separate them from their families. * * * The 15 states receiving an F were Alaska, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Maine, Missouri, Nevada, New Hampshire, North Dakota, Rhode Island, South Dakota and Washington.

David Clary of the AP has a new story today, this time carried in the Fort Wayne Journal Gazette, which goes into more detail about Indiana. Some quotes:

Although Indiana law used to give courts the option of whether to appoint a guardian ad-litem or a volunteer from a national program called Court Appointed Special Advocates, that law changed in July 2005. Now, courts must appoint one or the other. Part of Indiana’s failing grade was based on the previous law, which didn’t require an appointment of an attorney or CASA volunteer.

The report assigned grades based on several criteria, most importantly whether legal counsel for children is mandatory and whether that attorney is required to advocate for the child’s expressed wishes. Other criteria included requiring specialized training in child-advocacy law, the attorneys’ ethical responsibilities and the child’s right to attend key court hearings.

Adding to the AP story is a side-bar by Indiana reporter Dionne Waugh, who writes:

Allen Superior Family Relations Court Judge Charles Pratt said the report follows a dangerous trend he’s seen recently – making family court more adversarial by pitting the child against the parents and the very agencies there to protect the child.

“It starts to erode the protective powers that the juvenile court process was designed to provide to children,” Pratt said.

The children are also not often old enough, mature enough and objective enough to understand their protection, he said.

In Allen County, children have been represented by a CASA volunteer or guardian ad-litem for the past 22 years without the requirement, said Rex McFarren, director of the Allen County CASA program.

McFarren said they receive 30 hours of court-approved training and, even without the law degree, can do things attorneys can’t.

“I would rather have an energetic, caring individual with time to spend to go out and get to know the people than (one with) a legal background in the majority of my cases,” he said, “because they’ll get to know the people.

“So it takes time, … and the only way you really get that is firsthand knowledge. I’m not saying attorneys aren’t very useful and necessary, but on lot of our cases, it’s more important to have a human interest.”

Posted by Marcia Oddi on Thursday, April 26, 2007
Posted to Indiana Courts

Wednesday, April 25, 2007

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Frank L. Gray v. Patryk Kosow, George Kosow, and K. Tronix (NFP) - "Gray was not denied procedural due process. The award of damages was within the evidence presented to the trial court. Finally, the trial court did not err in finding for Kosow upon Gray’s negligence claim against him."

NFP criminal opinions today (4):

State of Indiana v. Paola Demucha (NFP)

Robert Lee v. State of Indiana (NFP)

James D. Woody v. State of Indiana (NFP)

Jimmie Campbell v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 25, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - Nominating commission selects six semi-finalists for Judge Sullivan's Court of Appeals seat

Here is the release:

The Indiana Judicial Nominating Commission announced Tuesday that it selected six of the twenty applicants for the upcoming vacancy on the Indiana Court of Appeals to return on May 11, 2007 for second interviews. The decision was made after two days of public interviews. The six semi-finalists are:

1. Hon. Cynthia J. Ayers, Marion Superior Court (Civil Div. 4)
2. Hon. Cale J. Bradford, Marion Superior Court (Civil Div. 1)
3. Mr. Randall C. Head, Cass County Deputy Prosecutor
4. Hon. William J. Hughes, Hamilton Superior Court 3
5. Hon. Kenneth H. Johnson, Marion Superior Court (Civil Div. 2)
6. Hon. Robyn L. Moberly, Marion Superior Court (Civil Div. 12)

The 30-minute interviews on May 11, 2007 will be open to the public, after which the Commission will nominate to the Governor the three most highly qualified candidates. Within sixty days after the formal nomination, the Governor will appoint one of the nominees to succeed Judge Patrick Sullivan, who is retiring August 1, 2007 after nearly 38 years on the Court of Appeals.

Here is an April 5th ILB entry listing the 20 applicants for the position.

Posted by Marcia Oddi on Wednesday, April 25, 2007
Posted to Indiana Courts

Law - What is the law when a passenger jumps or falls from a vehicle and dies?

In Indiana, the case of Michael Armstrong v. State of Indiana went all the way to the U.S. Supreme Court, which denied cert. Here are quotes (Evansville C&P) from initial press coverage of the Indiana Court of Appeals ruling in 2004:

In May 2003, when Michael C. Armstrong failed to stop his car after his teenage passenger, Craig Mobley, fell from the moving vehicle and died, the 23-year-old Armstrong was charged with leaving the scene of a fatal accident.

But Armstrong's attorney, Ivan Arnaez, argued that while his client may have had a "moral duty" to stop at the scene, he didn't have a legal duty to do so, because what happened that day didn't constitute an "accident" under strict interpretation of Indiana law. He moved for the felony charge to be dismissed. On Tuesday, the Indiana Court of Appeals agreed with Arnaez, ruling that the charge against Armstrong should be dropped, but also ruling that anyone caught in a similar situation in the future could be charged with a crime.

The Indiana Supreme Court granted transfer (see this March 2, 2005 ILB entry).

On June 15, 2006, the Supreme Court ruled (see ILB entry here):

We hold today that a driver of a vehicle who leaves the scene of an accident resulting in injury or death may be held criminally responsible even if the driver’s vehicle did not strike the injured or deceased party. * * *

Considering the wording of the statute along with this Court’s assessment of the statute’s predecessor, Armstrong had fair warning that his conduct—failing to stop after an accident resulting in death—was criminal. Therefore the Due Process Clause of the Fifth Amendment does not bar Armstrong’s prosecution for this offense. We affirm the judgment of the trial court.

This ILB entry from June 19, 2006 is headed "Evansville attorney disturbed by Supreme Court decision." Quotes from a story in the Princeton Daily Clarion included:

The Court of Appeals agreed with [trial judge] Penrod's view that being involved in an accident doesn't require that a vehicle hit another person or object, but just that a vehicle be involved in the accident. But the appellate court stopped short of applying the new interpretation to Armstrong's case retroactively, and ordered the case dismissed.

Gibson County Prosecutor Rob Krieg asked the Indiana Attorney General's office to take the case to the Indiana Supreme Court, and the court agreed to vacate the appellate court's decision in April 2005.

In the Thursday ruling, the high court held that a driver of a vehicle who leaves the scene of an accident resulting in injury or death may be held criminally responsible even if the driver's vehicle didn't strike the injured or deceased party. * * *

Following the Indiana Supreme Court's decision, Armstrong's case is set to return to Gibson Superior Court for a July 25 hearing, but [Evansville defense attorney Ivan] Arnaez said at that time he will inform the court that he intends to file a petition for the U.S. Supreme Court to hear questions in the case.

“We will file a federal question asking whether a law can be applied retroactively to convict someone,” he said. “If they grant the petition that means the court merely agrees to hear arguments. But if they say they want to hear (arguments) it may be a good sign it could reverse the decision of the Indiana Supreme Court.

On Nov. 2, 2006, according to this ILB entry, again quoting the Daily Clarion, "The United States Supreme Court on Monday declined to hear an appeal from attorneys representing a Gibson County man facing charges related to a 2003 incident that resulted in a man's death, according to the court's on-line docket sheet."

What happened next? The Daily Clarion charges $5.00 to see a back story, so here is the "teaser" from the archives:

Armstrong to plead guilty, his attorney says
Staff writer PRINCETON-In November, the U.S. Supreme Court declined to hear his appeal. And so the case against Michael C. Armstrong continues in Gibson County. But now after almost four years of legal wrangling, his attorney is indicating that ...
5.0K - Mar. 8, 2007; scored 1000.0

And all this is relevant how? It came to mind this morning when I read this entry in Mitch Harper's Fort Wayne Observed:

Fort Wayne man now only facing misdemeanor charges in Kentucky

Early in February, it was noted in a post that Kerry Swygart of Fort Wayne had been arrested in the death of a fellow worker who fell off a truck Mr. Swygart was driving in Louisville, Kentucky. Authorities in Louisville charged him with murder at the time.

It was an unusual charge.

Last week, a Kentucky Grand Jury declined to indict Mr. Swygart on the more serious offenses. He now faces two misdemeanor charges.

Posted by Marcia Oddi on Wednesday, April 25, 2007
Posted to General Law Related

Ind. Law - Even more on: Remonstrances decision leads to legislation

What is happening with the bill to revise the remonstrance process? Recall that: "The General Assembly is now weighing in on the Court of Appeals ruling in Bruce Jones v. Martha Womacks that 'The petitioning process used to determine local support for schools to borrow money through bonds is unconstitutional because it only includes property owners.'" (See Jan. 23, 2007 ILB entry)

According to an editorial today in the Fort Wayne Journal Gazette:

The Indiana General Assembly is expected to improve the remonstrance process with legislation that would rightly allow registered voters – not just property owners – to sign petitions in support of or opposition to property tax-backed projects.

The change comes at the direction of the Indiana Court of Appeals. It ruled last year that the 10-year-old remonstrance procedure was unconstitutional because it amounts to a de facto election and, as such, could not be limited to property owners. The American Civil Liberties Union of Indiana challenged the law on behalf of a parent who lived in an apartment but wanted to participate in the petition drive over Indianapolis Public Schools’ building project.

The court delayed the effective date of the ruling to give legislators the chance to fix the law. Senate Bill 132 was approved in the Senate and the House Ways and Means Committee but didn’t make it to a House floor vote. The bill’s language is expected to be revived in either S.B. 287 or S.B. 500 – both of which deal with property tax measures.

Emphasis added by ILB.

Posted by Marcia Oddi on Wednesday, April 25, 2007
Posted to Indiana Government

Tuesday, April 24, 2007

Ind. Gov't. - Governor announces he will sign legislative pay raise

No surprises here. Mary Beth Schneider of the Indianapolis Star is reporting this afternoon:

Gov. Mitch Daniels said today he will sign a bill that gives lawmakers -- as well as the governor and other state officials -- a pay raise.

"All things considered, I think it’s acceptable," Daniels told reporters. "One raise in 20 or 21 years is probably not excessive. It wasn’t a priority of mine, but this is a legislature in which we have to be flexible and accommodate the interests of everyone.”

As the story clarifies later, it is NOT their first pay raise in 20 years, the legislators have been raising their pay right along, but not the officially designated "salary" amount set out in the statutes. The story continues:

Legislators currently get a base pay of $11,600 -- although the average pay in 2006 was $40,359, as legislators also receive in-session and out-of-session expense pay and leadership bonuses.

The new law would tie legislators' base pay to 18 percent of trial judges' salaries starting in 2009. That would mean a jump in base pay to more than $20,700 initially. Judges' pay in turn goes up every time state employees receive a raise.

That means that legislators' pay, and that of statewide officeholders including the governor, will continue to go up without lawmakers having to cast politically sensitive votes on the issue.

In addition to the pay increase, the new law eliminates some controversial perks, including a gene

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Focus is on Indiana law, and on interesting developments in law, government, and more (not just in Indiana).