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Thursday, May 31, 2007

Ind. Courts - Special prosecutor named in attorney's fatal DUI case

Jon Murrary reports this afternoon in the Indianapolis Star:

A Marion Superior Court judge this afternoon appointed a special prosecutor to handle the case of an attorney accused of getting drunk at a strip club before a car crash that killed the other driver.

Former Monroe County Prosecutor Barry Brown will take over the case against Terry Record once he formally accepts the appointment.

Record, 27, is charged with two felony counts of operating a vehicle while intoxicated, causing death, and one count of reckless homicide in the May 6 death of Jimmy R. Cash. Record is on home detention at his family's house while he awaits trial and did not attend this afternoon's brief hearing before Judge Grant Hawkins.

Marion County Prosecutor Carl Brizzi, a Republican, frequently relies on Brown, a Democrat, in cases with the appearance of a conflict of interest.

Record worked for Brizzi as a deputy prosecutor-in-training for one week in October, but he was fired for lying about his involvement in another crash. After the latest crash, Record was fired from his job as a staff attorney for the Indiana State Department of Health.

See May 11th story here.

Posted by Marcia Oddi on Thursday, May 31, 2007
Posted to Indiana Courts

Ind. Decisions - Acceptable fee arrangements in medical malpractice actions

In Re Daniel B. Stephens is an opinion on the motion to intervene by the Indiana Trial Lawyers Association in this attorney disciplinary action. It is a 13 -page per curiam ruling, including a 1-page concurring option by Chief Justice Shepard. I can't begin to explain it, but instead will quote the following:

Shepard, Chief Justice, concurring in result.
It is far from clear that today’s per curiam represents the best policy for determining reasonable fees at the intersection of Rule 1.5 and the medical malpractice statute. This process has morphed from an agreed-sanction disciplinary case into something that looks much like rule-making, except that it has lacked many of the steps thought useful for good rule-making. Partly for this reason, it does not answer a good many questions important to the topic. I join in the outcome largely because the submissions of the Indiana Trial Lawyers Association, especially the brief and the several affidavits, have been so persuasive and the per curiam tracks their re-quest. And because the defendants against whom they file claims (and their associations and re-lated institutions with apparent stake in the outcome) have elected to stand silent, and our Disci-plinary Commission has found itself in the awkward position of noting the interests of a client it does not represent, the General Assembly.

Posted by Marcia Oddi on Thursday, May 31, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 6 today (and 17 NFP)

For publication opinions today (6):

In Keith B. Von Hor v. Jane Doe and State Farm Insurance Companies, a 7-page opinion, Judge Crone writes:

In advocating for coverage under his vehicle’s insurance policy, motorcyclist Von Hor raises three issues, which we consolidate into one. We address whether the “strike,” or physical contact, requirement within an uninsured motorist clause may be disregarded when independent evidence exists that an unidentified miss-and-run driver was the proximate cause of an accident. * * *

Von Hor’s case is remarkably similar to that presented in Rice v. Meridian Insurance Company, wherein we affirmed summary judgment in favor of an insurance company. Rice, 751 N.E.2d 685 (Ind. Ct. App. 2001), trans. denied. More specifically, we concluded, “The hit-and-run vehicle did not directly or indirectly physically contact [Dianna Rice’s] car and, therefore, the accident that occurred does not fall within the scope of the [uninsured motorist] policy provision.” Like Von Hor, the Rices raised public policy and corroborative evidence issues issues, which we addressed as follows: [ILB - lengthy quotations omitted] * * *

In addressing Von Hor’s argument, we would add that the same justices that denied transfer of the Rice case remain on our supreme court today. Furthermore, six years have passed since our decision in Rice. During that time, our legislature has had ample opportunity to amend the Act to mandate miss-and-run motorist coverage. Yet, our lawmakers have chosen not to make such a change. See Allis, 628 N.E.2d at 1255-56. We are not authorized to redraft legislation. See id.; St. Vincent Hosp. & Health Care Ctr., Inc. v. Steele, 766 N.E.2d 699, 703-04 (Ind. 2002) (“Clear and unambiguous statutory meaning leaves no room for judicial construction.”). Accordingly, however compelling we may find the facts and logic presented, we, as an intermediate appellate court, must reject Von Hor’s invitation to adopt the corroborative evidence test. Therefore, we will not overturn the summary judgment granted in State Farm’s favor.

Bobbie J. Rowe v. State of Indiana - "We cannot say that Rowe’s sentence is inappropriate in light of the nature of the offenses and the character of the offender."

Indiana Surgical Specialists v. Helen Griffin and MDS Courier Service, Inc. - "Indiana Surgical Services (“Indiana Surgical”) appeals the small claims court’s decision that the earnings Helen Griffin received as an independent contractor for MDS Courier Services (“MDS”) could not be garnished. Although Griffin was an independent contractor, she received periodic payments for her personal services, which payments were earnings that could be garnished. We reverse and remand."

In Re the Involuntary Termination of the Parent-Child Relationship of K.L., K.L., and S.G.; Pamela Eden v. Johnson County Department of Child Services - termination, affirmed.

In Re the Matter of The Adoption of J.D.B.; Gregory Lucas v. C.F.K. and Marion County Department of Child Services - affirmed.

In the Matter of M.K. and K.K.: Paula Sokol v. Porter County Office of Family & Children, Mark Sokol and Jean Sokol, and Court Appointed Special Advocate - "Paula Sokol (“Sokol”) appeals the trial court’s denial of her motion to terminate the guardianship of her two children, fifteen-year-old K.K. and twelve-year-old M.K. Sokol raises one issue, which we restate as: Whether the trial court erred in denying her petition. We reverse and remand."

NFP civil opinions today (4):

Rita Beatty, et al. v. James T. Martin, et al. (NFP) - "Specifically, the Beattys claim that the trial court erred in granting summary judgment for Wood because the designated evidence created a genuine issue of material fact as to whether Martin was Wood’s employee. Alternatively, the Beattys argue that summary judgment was improper because Wood should be held liable for Martin’s acts under an exception to the general rule of non-liability of a general contractor for the torts of an independent contractor. Also, the Beattys claim that this court should adopt a new exception to the general rule regarding non-liability when the potential independent contractor lacks sufficient financial resources to perform the contract “in a way that would not be detrimental to other persons lawfully upon the highway.” Concluding that summary judgment was properly entered for Wood, we affirm the judgment of the trial court."

In the Marriage of James L. Blaising and Nikki J. Blaising v. Bonnie L. Blaising and William R. Blaising (NFP) - "Mother raises one issues on appeal which we restate as follows: Whether the trial court properly granted joint legal custody of A.B. to Mother and the Grandparents, with primary physical custody retained by the Grandparents. * * *

Based on the evidence presented, we agree with the trial court’s decision to gradually increase Mother’s involvement in A.B.’s life by instituting joint legal custody. At the moment, A.B. is only familiar with his Grandparents’ environment: he was effectively raised by them since three months of age and has established a close emotional bond with them resulting in a deep mutual affection and feeling of safety. Immediately and without any warning uprooting A.B. from what he considers to be his home would not be in his best interests. Mindful of this, the trial court formulated a beneficial custodial arrangement for A.B. by allowing him to continue to build on the stable foundation of his relationship with his Grandparents, while at the same time expanding his relationship with his Mother. Consequently, we find that the evidence supports the trial court’s findings and the findings support its judgment. See Staresnick, 830 N.E.2d at 131. As such, we decline to set aside the trial court’s Order."

In Re The Matter of the Involuntary Termination of the Parent Child Relationship of S.B., A.B. and A.B.; Lori Bracken v. Marion County Department of Child Services and Child Advocates, Inc. (NFP) - "The trial court did not err in concluding there is a reasonable probability that the conditions resulting in the children’s removal from Bracken’s care still exist and will not be remedied, and that Bracken did not have sufficient income and adequate housing to support her children. Judgment affirmed."

Mike Whittman and Linda Whittman v. Carolyn Duning, Mark Brown and Heavenly Scents Candly Company, LLC (NFP) - "Mike Wittman and Linda Wittman appeal an order enforcing a settlement agreement in favor of Carolyn Duning, Mark Brown, and Heavenly Scents Candle Company, LLC. Because there was no “meeting of the minds” regarding the terms of a settlement agreement, no agreement was formed. We accordingly reverse and remand."

NFP criminal opinions today (12, now 13):

State of Indiana v. Billy Wayne Julian (NFP) - "The State of Indiana appeals the grant of post-conviction relief to Billy Wayne Julian. We affirm. * * *

There is a reasonable probability the result of the trial would have been different if Julian had been made aware Brooks was on home detention the night of the fire. The evidence most favorable to the post-conviction court’s ruling indicates Brooks was in his home several miles from the school and did not violate his home detention during the relevant time. Consequently, Brooks could not have sold marijuana to Julian at the school shortly before the fire. Although other evidence and testimony placed Julian at the scene,7 this evidence is sufficient to undermine our confidence in the outcome of the trial. We conclude Julian’s claim under Brady prevails and, accordingly, affirm the court’s grant of post-conviction relief. Affirmed."

Shane Craig v. State of Indiana (NFP)

S.J. v. State of Indiana (NFP)

Jason Tye Myers v. State of Indiana (NFP)

Robert Evan Wright v. State of Indiana (NFP)

Edward Dancy v. State of Indiana (NFP)

Vincent Antoine Irving v. State of Indiana (NFP)

Lonzell Mobley v. State of Indiana (NFP)

Darius V. Bowles v. State of Indiana

Tamera Richards v. State of Indiana (NFP)

Pedro A. Cordoba v. State of Indiana (NFP)

James E. Doss v. State of Indiana (NFP)

Will E. Dunlap v. State of Indiana (NFP) [NEW]

Posted by Marcia Oddi on Thursday, May 31, 2007
Posted to Ind. App.Ct. Decisions

Courts - Job opportunities at the Supreme Court

Check here for a list of employement opportunties, ranging from Supreme Court clerkships to web developer.

Posted by Marcia Oddi on Thursday, May 31, 2007
Posted to Indiana Courts

Courts - Litigants blogging

On May 21st, Diana L. Skaggs of the Kentucky Divorce Law blog had an entry titled "Litigant Blogs Facts Of Case." You can read her entry, and my response, citing some ILB entries, here.

Today the Boston Globe has a story by Jonathan Saltzman headed "Blogger unmasked, court case upended." Some quotes:

It was a Perry Mason moment updated for the Internet age.

As Ivy League-educated pediatrician Robert P. Lindeman sat on the stand in Suffolk Superior Court this month, defending himself in a malpractice suit involving the death of a 12-year-old patient, the opposing counsel startled him with a question.

Was Lindeman Flea?

Flea, jurors in the case didn't know, was the screen name for a blogger who had written often and at length about a trial remarkably similar to the one that was going on in the courtroom that day.

In his blog, Flea had ridiculed the plaintiff's case and the plaintiff's lawyer. He had revealed the defense strategy. He had accused members of the jury of dozing.

With the jury looking on in puzzlement, Lindeman admitted that he was, in fact, Flea.

The next morning, on May 15, he agreed to pay what members of Boston's tight-knit legal community describe as a substantial settlement -- case closed.

The case is a startling illustration of how blogging, already implicated in destroying friendships and ruining job prospects, could interfere in other important arenas. Lawyers in Massachusetts and elsewhere, some of whom downloaded Flea's observations and posted them on their websites, said the case has also prompted them to warn clients that blogs can come back to haunt them.

[More] I see the WSJ Blog also has an entry on this Globe story. Access it here.

Posted by Marcia Oddi on Thursday, May 31, 2007
Posted to Courts in general

Ind. Law - Do the changes to the sex offender law mean longtime homeowners must move?

That is the question addressed in two stories by Sophia Voravong of the Lafayette Journal & Courier.

Some quotes from her story of May 17, 2007:

A local man will have to leave his home of more than 20 years. Another will have to figure out how he can continue at-home care for his mother.

They are among the 28 registered sex offenders convicted of crimes against children who soon must move -- most likely into rural Tippecanoe County.

"I've been met with disgust. Some of the offenders are angry about it," said sheriff's Detective Greg Haltom, who runs the sex offender registry for Tippecanoe County. "But it's our job to enforce the law, and that's how the law is written."

A state law that took effect in July 2006 prohibits child offenders from living within 1,000 feet of a school, public park or youth program center. But only now are the sheriff's department and prosecutor's office able to enforce it.

Haltom since April has been hand-delivering letters from prosecutor Pat Harrington, letting the offenders know they have 45 days -- from the day they get the letter -- to find new housing. Twelve people had been notified as of Tuesday.

Those who refuse to move will be charged with a Class D felony.

"There are no exceptions," Harrington said. "The law is clear."

Like Haltom, Harrington said he already has received some concerned e-mails from those who must move. He expects that the issue could go before the Indiana appellate or supreme courts.

Lafayette attorney Bruce Graham, who has represented some child sex offenders, agrees. He sees it as an additional punishment for those who already served jail time.

"The basic issue is a constitutional one. I'm sure there is going to be a due process argument," he said. "They're imposing an additional condition after the fact.

"In effect, people are being forced to do something that they had no prior knowledge of having to do. ... They had no chance to give input."

From today's story:
State Rep. Joe Micon, D-West Lafayette, voted last year on legislation requiring that certain sex offenders living near children relocate.

He did so believing that it applied to those previously convicted and listed in Indiana's Sex Offender Registry who meet the established terms.

"Absolutely, they have to move," Micon said. "I believe that was the legislative intent."

The Tippecanoe County prosecutor's office was still waiting Wednesday to hear from the state's prosecuting attorneys council to see if it correctly interpreted the law, which took effect July 1, 2006.

Letters to offenders convicted of crimes against children went out in late April, stating that the offender could not live within 1,000 feet of a school, public park or youth program center. Twenty-eight offenders in Tippecanoe County must move.

Confusion comes from the statute's legislative history, which says it applies "only to crimes committed after June 30, 2006."

Deputy prosecutor Laura Zeman said the prosecutor's office is viewing the crime -- as defined in the statute -- not as the original offense but as the violation of the state's residency restrictions.

Posted by Marcia Oddi on Thursday, May 31, 2007
Posted to Indiana Law

Law - Update on: Louisville's "Jewish Hospital sues lawyers who unsuccessfully sued it"

This story continues. See update here from The Kentucky Law Blog. See earlier ILB entries here.

Posted by Marcia Oddi on Thursday, May 31, 2007
Posted to General Law Related

Ind. Courts - Fort Wayne attorney suspended after DWI conviction

Dionne Waugh of the Fort Wayne Journal Gazette reports today, in a story that begins:

The Indiana Supreme Court has temporarily suspended a local attorney’s law license after he was convicted of drunken driving and injuring a motorcyclist.

In April, an Allen Superior Court judge sentenced Douglas O. Beerbower, 56, of the 4200 block of Winding Way Drive, to four years in prison for operating a vehicle while intoxicated causing serious bodily injury, a felony.

Beerbower, who also has three prior misdemeanor convictions for drunken driving, had been one of the in-house attorneys for Lincoln National Life Insurance for nearly 20 years.

But Beerbower’s felony conviction and temporary suspension do not necessarily mean he’s automatically or permanently barred from practicing law.

The Indiana Disciplinary Commission asked the court to issue the emergency suspension until it is able to investigate further and give Beerbower a chance to respond before having a full hearing in front of the Indiana Supreme Court.

See earlier ILB entry, from April 24, 2007, here.

Posted by Marcia Oddi on Thursday, May 31, 2007
Posted to Indiana Courts

Ind. Courts - Hamilton County Superior Court Judge William Hughes featured

An Indianapolis Star story dated May 30th by Ryan Heath is headed "County judge is finalist for seat on state bench." Some quotes:

NOBLESVILLE -- Hamilton County Superior Court Judge William Hughes has witnessed a lot of change in his almost 19 years on the bench, and hopes to have an opportunity to take his skills and experience to the next level as an Indiana Court of Appeals judge.

Hughes said he applied in mid-March to succeed Judge Patrick Sullivan, who will retire Aug. 1 after nearly 38 years on the Court of Appeals.

Hughes was selected as a finalist for the seat May 11 after surviving a vigorous application and interview process with the seven-member Judicial Nominating Commission, which is made up of three lawyers elected by the legal community, three non-lawyers appointed by the governor, and chaired by Indiana Chief Justice Randall Shepard.

The other two finalists for the judgeship are Marion County Superior Court Judges Cale Bradford and Robyn Moberly. Governor Mitch Daniels has 60 days after the commission makes its nominations to select one for the job.

Shepard said Hughes' reputation among his legal peers made him a standout candidate. The chief justice said many judges from across the state have told him when they are in doubt over a legal matter, they seek Hughes' advice.

"He's a judge who's very much sought-after as a teacher of other judges," Shepard said, adding that Hughes has been very involved in continuing education seminars and chaired the Indiana Judicial Center's education committee for several years. * * *

Shepard said the governor and his staff will interview the three finalists in hopes of selecting the new judge by the end of July.

"The people of Indiana are going to win regardless of who is chosen," Shepard said. "These are three outstanding people."

Posted by Marcia Oddi on Thursday, May 31, 2007
Posted to Indiana Courts

Ind. Courts - Judge Hanley is reprimanded

The Supreme Court has issued a 2-page public reprimand of John F. Hanley, Judge of the Marion Superior Court, who was arrested for DUI on Dec. 4, 2006. From the document:

Pursuant to a plea agreement, the Respondent pled guilty to the class A misdemeanor charge and the State dismissed the remaining two charges. The court sentenced the Respondent to one year in the Marion County Jail, suspended but for one day served, and to one year of probation. The court accepted additional terms of the plea agreement that included the suspension of the Respondent’s driver’s license for ninety days and the payment of fines, costs, and fees totaling $509.50. * * *

John F. Hanley, Judge of the Marion Superior Court, is hereby reprimanded. This discipline terminates the disciplinary proceedings relating to the circumstances giving rise to this cause. The costs of this proceeding are assessed against the Respondent.

For background, begin with this March 7, 2007 ILB entry, headed "Judicial commission charges judge after OWI conviction." A Dec. 7, 2006 Indianapolis Star story cited includes this quote:
Meg Babcock, a lawyer for the Judicial Qualifications Commission, declined to comment on Hanley's case but said the Supreme Court has disciplined five judges for drunken driving since 1986. Typically, judges facing a first drunken-driving offense were given a reprimand and allowed to remain on the bench.

Posted by Marcia Oddi on Thursday, May 31, 2007
Posted to Ind. Sup.Ct. Decisions

Courts - It is best not to tell the judge she is "a few french fries short of a Happy Meal"

AbovetheLaw.com had the details, including excerpts from the transcript, in this entry last week.

Today Daniel Ostrovsky of the Daily Business Review has this lengthy story. Here are a few quotes:

Saying a bankruptcy judge was "a few french fries short of a Happy Meal" may cost an out-of-state lawyer the ability to practice in U.S. Bankruptcy Court for the Southern District of Florida.

The comment already has cost Chicago-based McDermott Will & Emery partner William P. Smith his client -- Miami Beach's Mount Sinai Medical Center & Miami Heart Institute.

Bankruptcy Judge Laurel Myerson Isicoff in Miami also slapped the hospital with a restraining order at the same hearing where Smith made his fast-food quip. She found Mount Sinai's anti-competitive actions in the bankruptcy case of South Beach Community Hospital violated bankruptcy law.

During a May 7 hearing, Smith told Isicoff, "I suggest with respect, your honor, that you're a few french fries short of a Happy Meal in terms of what's likely to take place."

Smith's comment and a show-cause order against him were first reported by the legal blog Above the Law. * * *

Isicoff issued the show-cause order May 21 summoning Smith to explain why he should not be suspended from practicing before the court and why his pro hac vice status as a visiting attorney should not be suspended. Isicoff also distributed her order to her colleagues on the district's bankruptcy bench.

Prominent South Florida bankruptcy lawyers say Smith's comment reflects a superior attitude that out-of-town lawyers sometimes display in South Florida courts.

Smith, who heads the national bankruptcy practice at McDermott, has retained the Miami bankruptcy boutique Genovese Joblove & Battista to represent him before Isicoff on the show-cause order set for hearing June 25.

Posted by Marcia Oddi on Thursday, May 31, 2007
Posted to Courts in general

Law - This week's Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co

Howard Bashman of How Appealing has collected the newspaper articles on the Supreme Court's ruling Tuesday in Ledbetter v. Goodyear Tire & Rubber Co . Earlier artcles are listed here.

I particular recommend the Linda Greenhouse NY Times article, that begins:

WASHINGTON, May 29 — The Supreme Court on Tuesday made it harder for many workers to sue their employers for discrimination in pay, insisting in a 5-to-4 decision on a tight time frame to file such cases. The dissenters said the ruling ignored workplace realities.
See also the Steven Greenhouse article, also in the Times, headed "Experts Say Decision on Pay Reorders Legal Landscape." A quote:
In yesterday’s 5-to-4 decision, the Supreme Court ruled that workers generally lose their right to sue for pay discrimination unless they file charges within 180 days of a specific event, like a boss giving a worker a smaller raise because of her sex. Establishing a pattern of discrimination over several years will no longer be possible.

Some legal experts said the ruling would put pressure on workers to file discrimination claims within 180 days even when they are still seeking more conclusive evidence that they were discriminated against.

“Unless they notice it on the first paycheck or a recent paycheck, they’re going to be in trouble,” said James Brudney, a professor of labor and employment law at Ohio State University.

Finally, see the Workplace Law Prof Blog and this entry, headed "Some Reflections on the Ledbetter Decision."

Posted by Marcia Oddi on Thursday, May 31, 2007
Posted to General Law Related

Wednesday, May 30, 2007

Ind. Law - Judicial Center surveys court-relevant 2007 statutes

This final legislative update, prepared by the Indiana Judicial Center, contains summaries of select bills of interest or portions of bills that were signed into law this session.

Posted by Marcia Oddi on Wednesday, May 30, 2007
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 6 today (and 16 NFP)

For publication opinions today (6):

In Anthony N. Stewart v. Signe L. (Stewart) Vulliet, an 18-page opinion, Judge Sharpnack writes:

Anthony N. Stewart (“Father”) appeals the trial court’s grant of a motion to dismiss filed by Signe L. (Stewart) Vulliet (“Mother”). Father raises three issues, which we consolidate and restate as whether the trial court abused its discretion by dismissing child custody and visitation issues based upon inconvenient forum. On cross appeal, Mother argues that the trial court abused its discretion by finding that Mother waived any argument regarding their child’s home state under the Uniform Child Custody Jurisdiction Act (“UCCJA”), Ind. Code §§ 31-17-3-1 to -25. We affirm in part, reverse in part, and remand.

The relevant facts follow. Mother and Father married in August 1992 in the State of Washington. They lived in Washington until May 2003, when they relocated to Indiana. Mother’s family lives in Washington, while Father’s family lives in Indiana. * * *

The Washington court clearly gave Mother a more favorable custody arrangement and visitation schedule than the Indiana court had ordered or than Douglass had recommended. The timing and sequence of events in this case give the appearance that Mother was attempting to manipulate the UCCJA to gain a favorable result. As in Bowles, “[w]e cannot allow such manipulation to be rewarded.” Bowles, 721 N.E.2d at 1250. We conclude that, as in Bowles, the trial court erred by granting Mother’s motion to dismiss the custody and visitation issues based upon inconvenient forum. See, e.g., id.

For the foregoing reasons, we affirm the trial court’s determination that Mother waived any argument regarding A.S.’s home state, we reverse the trial court’s grant of Mother’s motion to dismiss the custody and visitation issues, and we remand for proceedings consistent with this opinion.

Terri A. Troyer v. Ronald J. Troyer - "The marriage of Appellant-Respondent Terri A. Troyer (“Terri”) and Appellee-Petitioner Ronald J. Troyer (“Ronald”) was dissolved. On the following day, the trial court found Terri in contempt of court for presenting six post-trial motions. Terri now appeals, challenging the allocation of a tax refund and the trial court’s determination that she was in direct contempt of court. We affirm in part and reverse in part."

"Issues. Terri presents three issues for review: I. Whether the trial court abused its discretion by allocating the parties’ federal income tax refund to the payment of charge account debt rather than allocating it to Terri for the payment of attorney’s fees [ILB - the CA said no]; II. Whether the trial court abused its discretion by denying Terri’s motion for a continuance to permit her fourth attorney to adequately prepare for a hearing [CA - no]; and III. Whether the trial court erred by finding Terri in direct contempt of court and ordering her to pay $500.00 as a sanction. [CA - yes]"

In Richard Wolfe, D.O. v. Estate of Donald Custer , a 21-page opinion, Judge Vaidik writes:

Richard Wolfe, D.O. appeals the judgment in favor of Rosetta Custer (“Rosetta”), for herself and as personal representative of the estate of her late husband, Donald Custer (“Donald”) (collectively, “the Custers”). Wolfe essentially challenges the sufficiency of the evidence, arguing that the trial court erred by entering judgment against him because the Custers failed to present expert medical testimony demonstrating that any increased risk of harm caused by Wolfe was a substantial factor in causing Donald’s harm and showing that Donald’s medical expenses were necessary or causally related to any act or omission by Wolfe. Concluding that the evidence was sufficient to support the jury’s verdict, we affirm the trial court’s entry of judgment in favor of the Custers and against Wolfe. * * *

In summary, the evidence was sufficient to support a finding of medical malpractice against Wolfe, and the trial court did not err by entering judgment for $432,000.00 in favor of the Custers and against Wolfe.

In Trustcorp Mortgage Company v. Metro Mortgage Company, Inc. , a 22-page opinion with Chief Judge Baker's dissent beginning on p. 20, Judge Friedlander writes:

Trustcorp Mortgage Company (Trustcorp) appeals the trial court’s order denying its motion for summary judgment and granting summary judgment in favor of Metro Mortgage Co., Inc. (Metro). We affirm. * * *

[W]e conclude that the designated evidence establishes that Metro did not contract to provide a perfect appraisal, but that it agreed to produce origination documents, including an appraisal, in accordance with the requirements drafted by Trustcorp and set forth in the Buy/Sell Agreement. Furthermore, in obtaining a licensed appraiser, and in satisfying all other requirements set forth in Sections 106 and 106.1, Metro fulfilled its contractual obligations and was therefore not in breach of its contract with Trustcorp when it refused to repurchase the Schulke loan. The fact that both Trustcorp and Fannie Mae subsequently purchased the Schulke loan further substantiates our conclusion that Metro’s origination documents did in fact “qualify for” Fannie Mae. Judgment affirmed.

CRONE, J., concurs. BAKER, C.J., dissents with separate opinion [which begins:] I respectfully dissent from the majority’s interpretation of the Buy/Sell Agreement and from the ultimate disposition of this matter. Initially, I quarrel with the application of the rule by which we construe an ambiguity in contract language against the drafting party. Here, the contracting parties were two large, sophisticated businesses that regularly entered into agreements that are similar to the one at issue herein. Under these circumstances, I believe that there should not be an automatic presumption against the drafting party, inasmuch as both parties are on equal footing with respect to the content, negotiation, and application of the agreement.

Moreover, I find a well-established, long-standing rule to be instructive: “Public policy holds that he who is best able to avoid a loss should bear it.”

Brett Gibson v. Thomas A. Neu and Elizabeth A. Neu , a 25-opinion, concludes: "In summary, we conclude that the trial court erred by granting summary judgment to the Neus and Washington Mutual regarding the release of Gibson’s mortgage. However, we conclude that the trial court properly granted the Neus and Washington Mutual equitable subrogation over Gibson’s mortgage."

In Safe Auto Insurance Company v. Farm Bureau Insurance Company, et al. , a 9-page opinion on rehearing, the Court reverses its earlier opinion (Nov. 8, 2006 - see ILB entry here - 2nd case) affirming the trial court. Judge Robb concludes:

We stand by our original determination regarding Safe Auto’s obligation under its policy language to cover Duran’s vicarious liability. The policy agrees to indemnify Duran for vicarious liability and pursuant to a Michigan statute, she was vicariously liable for this claim.3 For that reason, her omissions with regard to Badillo – the omissions primarily focused on by the parties – are not material, because Duran would have been vicariously liable regardless of who was driving her vehicle. But also for that reason, her omission with regard to her move to Michigan is material. As Safe Auto has noted, the Michigan statute imposes vicarious liability that Indiana law, which would apply had the accident occurred here, would not. As the move preceded the policy renewal, Duran is not covered because her move to Michigan directly affected the risk accepted as well as the loss incurred. The trial court erred in granting summary judgment to Farm Bureau and in denying it to Safe Auto. Reversed.
NFP civil opinions today (5):

Brian D. Hodges v. Eli Lily Federal Credit Union (NFP) - "Regardless of whether or not Hodges was properly served, the issue is now moot as the judgment has been fully satisfied."

Granger Family Dentistry v. Preferred Health Care (NFP) - "The small claims court did not err as a matter of law by determining that Granger was contractually obligated to pay Preferred Health $1,800.00 annually and owed the unpaid balance for the contract year of mid-2006 to mid-2007."

Gary F. Otto v. Peggy S. Fox (NFP) - "Gary F. Otto appeals the trial court’s ex parte order for protection. We reverse and remand with instructions. * * * Otto filed his request with the trial court nine days after the order was issued, and yet the trial court denied his motion without explanation. At the very least, Otto has established prima facie error. “On the face of it,” the trial court violated Otto’s due process rights by denying him the opportunity to defend himself in this matter. Therefore, we reverse the trial court’s order denying Otto’s motion for hearing, and we remand for the trial court to schedule a hearing to occur within thirty days of the date of this opinion."

Adoption of C.M.M.; Julie P. Parker v. Annamaria Miller (NFP) - "Appellant-respondent Julie Pastorious, formerly Julie Parker, appeals from the trial court’s order granting appellee-petitioner Annamaria Miller’s petition to adopt Julie’s biological child, C.M.M., and terminating Julie’s parental rights. Specifically, Julie contends that there is insufficient evidence in the record supporting the trial court’s conclusion that Julie’s consent to the adoption was not statutorily required. Finding no error, we affirm the judgment of the trial court."

Ted A. Czanderna v. Noreen F. Fear (NFP) - "Appellant-Respondent, Ted A. Czanderna (Czanderna), appeals the trial court’s protective order enjoining him from contact with Appellee-Petitioner, Noreen Faye Fear (Fear), and members of Fear’s family, for a period of two years. We affirm."

NFP criminal opinions today (11):

Mark A. Darnell v. State of Indiana (NFP)

Adam Ross v. State of Indiana (NFP)

Christopher Mershon v. State of Indiana (NFP)

Brian K. Barrick v. State of Indiana (NFP)

Anquan Walters v. State of Indiana (NFP)

David Parado v. State of Indiana (NFP)

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

Harold W. Craigo, Jr. v. State of Indiana (NFP)

A.S. v. State of Indiana (NFP)

Brandon Gregg v. State of Indiana (NFP)

Michael Nunez v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 30, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on yesterday's CA decision on murder charge filed 12 years later

Yesterday's Court of Appeals decision In Ralph Barnett v. State of Indiana (see ILB entry here - 2nd case) is the subject of a lengthy story today by Shawn McGrath in the Anderson Herald Bulletin. Some quotes:

In an opinion issued Tuesday, the Indiana Court of Appeals reversed a Pendleton Correctional Facility inmate’s voluntary manslaughter conviction because the state waited too long to bring the case to trial.

Madison Superior Court 3 Thomas Newman Jr. sentenced Ralph Barnett, 54, to 30 additional years in prison on Class A felony voluntary manslaughter in March 2006 for stabbing to death fellow inmate 29-year-old Ricky L. Combs in January 1993. Originally charged with murder, a jury found him guilty of the lesser crime.

In his opinion, Appellate Court Judge James S. Kirsch writes that the Madison County Prosecutor’s Office erred in waiting until July 2005 — 12 years after the slaying — to file a murder charge against Barnett, despite knowing he was a likely suspect.

“Repeatedly, throughout the record, the State concedes that the investigators and prosecutors on Barnett’s case made a mistake by waiting 12 years to prosecutor him,” Kirsch writes. “While there is no direct evidence that the delay was intentional, there is no evidence that the delay was justified.”

Because the prosecutor’s office waited so long to file the murder charge, several potential witnesses — including the prison’s chief internal investigator and an Indiana State Police detective on the case — had died when the case finally went to trial, endangering Barnett’s ability to get a fair trial.

“The State, without plausible explanation or justification, delayed for more than 12 years in bringing charges in this case,” Kirsch writes. “There is no explanation for why the prosecutor, now deceased, allowed a case to sit in his office for over a year and a half without looking at it or why he returned it to the investigator instead of leaving it for his successor.

“Here, Barnett was clearly prejudiced by the State’s unexplained and unjustified delay — whether intentional or negligent — in bringing the charges.” * * *

Further clouding the investigation, six knife-like weapons, all similar, were found on Barnett’s and Combs’ cell block, but guards didn’t document which weapon was discovered in which cell.

“Barnett was the only suspect questioned about Combs’ death at the time it happened in 1993,” Kirsch writes. “No additional evidence was sought or discovered to cause the state to bring charges at anytime after the initial investigation. It is undisputed that Barnett stabbed Combs. The issues are whether Barnett acted in self-defense and whether another inmate (or more than one) with a knife may have also stabbed Combs causing the fatal stab wound.”

Posted by Marcia Oddi on Wednesday, May 30, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Update on "Court tosses challenge to hunter harassment law"

The Supreme Court has denied transfer in the case of a Beverly Shores couple's challenge to the state's hunter harassment law. Bob Kasarda of the NWI Times has a report on the denial today.

A check of the records shows the actual denial occurred April 13th and is listed on p. 3 of this transfer list - both the ILB and the NW Indiana papers failed to pick up on it at the time. The Clerk's docket shows the denial vote was 4-1, with Justice Sullivan voting to reveiw the case.

Today's story:

The Indiana Supreme Court has opted not to consider a Beverly Shores couple's challenge to the state's hunter harassment law.

Frederick and Rosanne Shuger now are considering taking their case to the U.S. Supreme Court, according to the couple's Chicago attorney, James Morsch.

Morsch said to his knowledge, no state hunter harassment law has been argued before a state supreme court.

"I thought it would be a good case to take up," he said.

The Shugers were convicted in July 2005 of violating the state law by interfering with a town-sanctioned deer kill four years earlier in Beverly Shores.

Frederick Shuger, who also was found guilty by the jury of a more serious offense of intimidation, was sentenced to 15 days of community service and one year and four months of unsupervised probation.

Rosanne Shuger was sentenced to five days of community service and four months of probation.

The couple targeted a section of the law that prohibits behaviors "that will tend to disturb or otherwise affect the behavior of a game animal."

The wording is unconstitutional in that it is both over broad and vague, according to the couple's challenge to the Indiana Court of Appeals that was thrown out earlier this year.

"There is no objective description of what behavior would land you in trouble with the state," Morsch has said.

This clause places Indiana's law at the extreme when compared to most other hunter harassment statutes around the country, according to the appeal. If allowed to stand, the law will chill the expression of free speech.

The Indiana Court of Appeals upheld the hunter protection law as constitutional, ruling it regulates only the place and manner of speech.

The Shugers had compared the Hunter Harassment Act to a law against flag burning that was struck down by the federal courts. That comparison does not apply, the appeals court ruled, because the hunter harassment law does not restrict the content of speech.

The ILB has had a number of earlier entries on this case - here is the list. See particularly this ILB entry from January 23, 2007.

Posted by Marcia Oddi on Wednesday, May 30, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on: Supreme Court reinstates trial court's murder conviction

Updating yesterday's ILB report on the Supreme Court's decison in Ronnie Drane v. State, here is some press coverage.

The Gary Post-Tribune has a story headed "High court reinstates 85-year sentence," reported by Ruth Ann Krause. Some quotes:

Ronnie Dontell Drane is a convicted killer and rapist once again.

The Indiana Supreme Court reinstated Drane's convictions in the 2002 rape and murder of Tamarra "Precious" Taylor, which had been reversed by the Indiana Court of Appeals last year because of insufficiency of evidence.

The court's opinion reinstates the 85-year sentence Drane re-ceived in February 2005 from Lake Superior Court Judge pro tem Thomas Webber Sr., who presided at Drane's bench trial.

Taylor, 25, of Hammond, was found partially clothed at M.C. Bennett Park at 25th Avenue and Grant Street in Gary on May 27, 2002.

"To make a long story short, we think the Court of Appeals reweighed the evidence," Chief Justice Randall Shepard wrote. "It is the fact-finder's role, not that of the appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction."

Drane, who remains in custody at the Indiana State Prison in Michigan City, has two more murder cases pending.

From an AP story in the Indianapolis Star:
The state Supreme Court on Tuesday reinstated murder and rape convictions against a Gary man, overturning a state appeals court ruling that prosecutors did not present enough evidence to support the convictions.

The high court unanimously ruled that the conviction of Ronnie Drane should be reinstated, saying: "There is more than sufficient evidence to support both the murder and rape convictions."

Two years ago, Lake Criminal Court Judge Thomas Webber found Drane guilty of killing 25-year-old Tamarra Taylor of Hammond and sentenced him to 85 years in prison. Drane was accused of raping and strangling Taylor in a Gary park in May 2002.

Drane, 33, testified he had consensual sex with Taylor and that she left his house unharmed.
The Supreme Court said the appeals court improperly "reweighed the evidence" last year when it reversed the convictions.

In the ILB entry yesterday I mentioned that the Court of Appeals ruling was not readily available because it had been designated NFP and at the time, NFPs, although available in paper form from the Clerk's Office, were not posted online.

This morning in my email I found a scanned (and then OCRed) copy of the June 29, 2006 Court of Appeals opinion in Drane v. State. Thanks to Bloomington attorney Michael Ausbrook, editor of the excellent Indiana blog INCourts (dedicated to commentary on criminal appellate opinions).

Posted by Marcia Oddi on Wednesday, May 30, 2007
Posted to Ind. Sup.Ct. Decisions

Tuesday, May 29, 2007

Ind. Decisions - On the Supreme Court's calendar for tomorrow

Oral arguments before the Supreme Court tomorrow in two cases:

9:00 AM - Michael Robertson v. State

Following a jury trial, the Marion Superior Court entered a judgment of conviction for theft as a Class D felony and sentenced Robertson to an enhanced term of 2 years to be served consecutive to his sentence for a drug offense in another county. In an unpublished memorandum decision, the Court of Appeals determined there was sufficient evidence, and affirmed the conviction. As to the enhanced sentence and the interpretation of Indiana Code § 35-50-2-1.3, the Court of Appeals remanded with instructions for the trial court to impose the advisory sentence, but noted the conflict with White v. State, 849 N.E.2d 735 (Ind. Ct. App. 2006), trans. denied. See Michael Robertson v. State, No. 49A05-0512-CR-731, slip op. (Ind. Ct. App. Jan. 24, 2007), vacated. [ILB - see discussion of the CA split on the interpretation of § 35-50-2-1.3 beginning on p. 6 of Robertson.]

The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal. Attorney for Robertson: Kurt A. Young Nashville, IN Attorney for State: Justin F. Roebel Indianapolis, IN

9:45 AM - Idan Filip v. Carrie Block
On the Filip's claim against an insurance agent and insurance agency for negligent failure to procure insurance, the Starke Circuit Court entered summary judgment for the insurance defendants. The Court of Appeals reversed, indicating that the main designation of evidence pursuant to Trial Rule 56 should be in the summary judgment motion, finding issues of fact about whether the Filips reasonably relied on the agent's representations, and determining that the statute of limitation began to run on the day of the fire. Filip v. Block, 858 N.E.2d 143 (Ind. Ct. App. 2006), vacated.

The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal. Attorney for Filip; Robert W. Mysliwiec of South Bend, IN. Attorney for Block; Philip E. Kalamaros of St. Joseph, MI.

Posted by Marcia Oddi on Tuesday, May 29, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In the Matter of V.C., and Sarah Thomas v. Christopher Carlson, Marion County Department of Child Services and Child Advocates, Inc. is a 27-page opinion, with J. Riley's dissent beginning on p. 25. Judge Kirsch writes for the majority:

Sarah Thomas (“Mother”) appeals the trial court’s adjudication of her daughter, V.C., as a Child in Need of Services (“CHINS”) as well as the consolidation of the CHINS case with Christopher Carlson’s (“Father”) paternity action. * * * We affirm.

FRIEDLANDER, J., concurs. RILEY, J., dissents with separate opinion [which begins]: I respectively dissent from the majority because (1) I do not believe Father’s request to amend the CHINS petition effectively notified Mother that the threat she posed to V.C. would be an issue at trial, and (2) I believe it was improper to consolidate the CHINS action with Father’s paternity and custody action.

In Ralph Barnett v. State of Indiana , a 9-page opinion, Judge Kirsch writes:
Ralph Barnett appeals his conviction for voluntary manslaughter, a Class A felony. Barnett raises two issues on appeal, one of which is dispositive: whether the trial court erred in denying his Motion to Dismiss. We reverse. * * *

Here, the State, without plausible explanation or justification, delayed for more than twelve years in bringing charges in this case. There is no explanation for why the prosecutor, now deceased, allowed a case to sit in his office for over a year and a half without looking at it or why he returned it to the investigator instead of leaving it for his successor. During this time, a number of key witnesses have died; and several more no longer have any recollection of the events which gave rise to this case. There were apparently at least twenty inmates out of their cells and in the area when the incident occurred. Lack of key witnesses makes it more difficult for Barnett to support his claim of self-defense. Furthermore, in a shakedown of the areas after the incident, six knives were found. There is no evidence of who possessed those knives, no testimony from the person or persons who collected the knives, no DNA testing on the knives, and no medical testimony as to whether more than one knife was used in the stabbing or which knife caused the wound to the stomach which, according to the autopsy report, was the proximate cause of Combs’ death.

Here, Barnett was clearly prejudiced by the State’s unexplained and unjustified delay -- whether intentional or negligent -- in bringing charges. Reversed.

NFP civil opinions today (1):

In the Matter of the Parent-Child Relationship of M.H.; Wendy Hoskins and Charles Roberts v. Delaware County Division of Family & Children (NFP) - "Wendy Hoskins (“Mother”) and Charles Roberts (“Father”) appeal the trial court’s termination of their parental rights with respect to M.H., a minor child. They each raise a single issue for our review, which we restate as whether the Delaware County Division of Family and Children (“DFC”) presented sufficient evidence to support the termination of their respective parental rights. We affirm."

NFP criminal opinions today (6):

Randal R. Shepard v. State of Indiana (NFP) - Yes, I did a doubletake too!

David Bezy v. State of Indiana (NFP)

Aaron Reid v. State of Indiana (NFP)

Jeffrey A.R. Stephens v. Jessica Stephens (NFP)

Justin N. Shinabarger v. State of Indiana (NFP)

Jarrod A. Milner v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 29, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court reinstates trial court's murder conviction

In Ronnie Drane v. State, a 7-page, 5-0 opinion, Chief Justice Shepard writes:

At the conclusion of a bench trial, the court found appellant Ronnie Drane guilty for the rape and murder of Tomorra “Precious” Taylor and sentenced him to a combined total of eighty-five years. The Court of Appeals reversed for insufficient evidence. Having granted transfer, we affirm the trial court. * * *

Sufficiency of the Evidence. To make a long story short, we think the Court of Appeals reweighed the evidence. * * *

Conclusion. We affirm the trial court.

Although it would be interesting to read the June 29, 2006 Court of Appeals opinion, it was designated Not For Publication at the time, and this action came before the decision of the courts in the fall of 2006 to make NFP opinions available online.

A July 27, 2006 ILB entry quoted from a belated newspaper report of the ruling and noted:

Although this is a reversal, the panel determined it did not meet the criteria of Appellate Rule 65, and designated the 15-page opinion as Not for Publication (NFP). Thus it is not available on the court website. * * * Opinions designated by the Court of Appeals panel as "not-for-publication" currently are neither generally available nor citeable. But they are public documents. Why should they not be made available online, along with the other rulings of the Court of Appeals?
Interestingly, a petition for rehearing was filed in the Drane case, which the Court of Appeals granted in a Sept. 8, 2006 ruling. (This rehearing is not noted in today's opinion.) Although also designated NFP, this Sept, 8, 2006 ruling came after the decision to post NFPs online, and so may be accessed here. A quote from p. 2 of the opinion:
As noted in our memorandum decision, we are well aware that we must not reweigh the evidence or judge the credibility of witnesses. We reversed Drane’s convictions because our review of the evidence did not reveal substantial evidence of probative value to support them.

Posted by Marcia Oddi on Tuesday, May 29, 2007
Posted to Ind. Sup.Ct. Decisions

Monday, May 28, 2007

Ind. Courts - Court employee charged with changing computer records in his own case

Ruthann Robinson of the NWI Times reported Saturday:

CROWN POINT | Investigators said a former employee of the Lake County clerk's office made computer changes to his own criminal case.

Prosecutors charged Karl Gaisser, 55, of Schererville, the defendant in the case he's accused of changing, with felony computer tampering and misdemeanor computer trespass.

Gaisser had previously been charged with conversion, or stealing.

The chief bailiff of the Schererville Town Court discovered the discrepancies after the victim in the conversion case called about restitution Gaisser owed him, court records show. Details about the conversion case were not available Friday.

When the bailiff checked the entries on the computer system against the court file, he saw that six orders had been deleted and a notation that the case had been dismissed had been entered, court records allege. No such dismissal order existed.

A check of the electronic Courtview system Friday showed the discrepancies had not yet been corrected.

Gaisser worked in the juvenile division of the Lake County clerk's office until he resigned May 7, court records state.

Stve Walsh of the Gary Post Tribune had a similar report:
A Lake County deputy clerk was accused of trying to dismiss his own criminal case Friday.

Karl Gaisser, 55, of Schererville was charged with a felony count of computer tampering and a misdemeanor count of computer trespass.

Gaisser, a worker in the juvenile division of the Lake County Clerk's office, was scheduled to appear in Schererville Town Court on charges of conversion. A worker in the town court noticed the changes in the county's Court View electronic record system, after the victim in the case, Walter Alexander, called the town court asking about restitution, according to court documents.

Detectives with Schererville Police found most of the changes were made under Gaisser's password in the county clerk's office. Gaisser told police he resigned May 7 from the clerk's office for an unrelated matter, after working in the office since July 2006.

He suggested his co-workers may have changed his case, under his password, while he was away from his computer.

The ILB has quoted from these reports at length because the security and reliability of electronic court and other legal records are issues which this blog hopes to address in coming weeks: Are they "official"? Are they authentic? Are they permanent and secure?

Posted by Marcia Oddi on Monday, May 28, 2007
Posted to Indiana Courts

Law - "More than half the cases the court agrees to hear are not constitutional, but statutory"

Linda Greenhouse of the NY Times has a column today that discusses the importance of the statutory cases the Supreme Court decides to hear:

More than half the cases the court agrees to hear are not constitutional, but statutory, presenting questions much like the one posed by Hackworth v. Progressive Casualty Insurance Company, No. 06-1300. To whom does a statute apply? Precisely what behavior does it prohibit? How does it fit with another law on the books that seems to suggest something quite different? * * *

The 73 cases the court selected for argument during the current term included 41 statutory cases, 27 that raised chiefly constitutional issues and 5 other kinds that raised issues of retroactivity and jurisdiction. (These calculations are subject to interpretation; at the margins, the categories can easily overlap, as when the court is asked to interpret a statute in such a way as to avoid a potential constitutional problem.)

Statutory cases are not necessarily less challenging for the justices or less important to the country than constitutional cases; whether the Clean Air Act applies to global warming, to recall one statutory case from the current term, is a question with more impact than whether a certain type of appeal in patent cases meets the jurisdictional requirements of Article III of the Constitution, to recall another case, this time a constitutional one.

Read the column itself for more on the Hackworth case.

Posted by Marcia Oddi on Monday, May 28, 2007
Posted to General Law Related

Environment - "Cleaning Up the Clean Water Act"

Today's NY Times has an editorial endorsing pending proposals to strengthen the Clean Water Act:

A series of murky Supreme Court decisions have left the agencies responsible for enforcing the Clean Water Act in a state of confused paralysis, exposing millions of acres of wetlands and thousands of miles of streams to illegal and destructive development. Companion bills in the House and Senate would solve this problem by reaffirming the broad protections intended by Congress when it passed the law nearly 35 years ago. These bills deserve prompt passage.

Two factors have caused the confusion — ambiguity in the law itself, and a Supreme Court looking for any excuse to narrow the regulatory reach of the federal government.

There is little doubt that Congress originally intended to extend federal protection to all the waters of the United States, from small streams and wetlands to large rivers. But because the word “navigable” pops up in the act from time to time, developers and other opponents of the law have argued that it should apply only to large, clearly navigable waters or streams immediately adjacent to such waters — thus excluding most of the waters of the United States from federal jurisdiction.

A Supreme Court decision last June left the matter more tangled than ever. One result is that for nearly a year the agency responsible for carrying out the law — the Environmental Protection Agency — has not been able to issue guidance to its field staff, opening the way to the pollution of waters that should have been protected.

The bills before Congress would resolve the issue in favor of the broadest possible protection by removing the word “navigable” from the law and by specifying in detail the waters — large rivers, tiny streams, ponds, lakes and wetlands — to be protected. All of which, of course, makes perfect hydrological and ecological sense. The destruction or pollution of any part of an aquatic system affects the integrity of the whole system.

Posted by Marcia Oddi on Monday, May 28, 2007
Posted to Environment

Sunday, May 27, 2007

Law - "Is It OK for Lawyers to Copy Complaints?" And what about copyrighting briefs?

The Wall Street Journal Blog had a thought-provoking entry May 16th asking "Is It OK for Lawyers to Copy Complaints?" Peter Lattman of the WST Blog writes that of the two class-action lawsuits he had reviewed this month, the second "bears a striking resemblance to" the first, filed by another firm. Lattman contiues:

Last year we linked to a law review article on this topic. Law professor Davida Isaacs noted that “infringement suits against fellow members of the Bar may be on the horizon,” but said this would be a bad idea. Copying another firm’s litigation documents, she said, should qualify as “fair use” under the copyright laws because it doesn’t diminish those documents’ market value.
The 56-page article is titled "The Highest Form of Flattery? Application of the Fiar Use Defense against Copyright Claims for Unauthroized Appropriation of Litigation Documents," by Davida H. Issacs and appeared in the Missouri Law Review.

There are a number of interesting comments following the entry, including "Comment by IP lawyer - May 16, 2007 at 5:08 pm," "Comment by Frank Pasquale of ConcurringOpinions.com - May 16, 2007 at 5:24 pm ," and "Comment by Professor Davida Isaacs - May 17, 2007 at 12:42 am."

As for copyrighting briefs, apparently that was an issue several years ago but I haven't been able to find anything more recent than a brief discussion on the Law Librarians listserv from 4/17/02 referencing a "story on Marketplace (from Minnesota Public Radio and PRI) focused mainly on Milberg' disenchantment with other class-action litigators scanning, editing and filing briefs they had written." Using that, I was able to locate the Marketplace show from Tuesday, April 16, 2002. Here is the show description, including a link to the audio. The segment of interest:

Copyrighted Briefs
No, not those kind of briefs. Wouldn't you know it. Lawyers are in the habit of copying each other's legal briefs. And some lawyers -- those whose work is often duplicated -- are looking to copyright their documents, to prevent just this sort of thing from happening. But is this practical, in a branch of our social system that is so dependent on precedent? Amita Sharma has the story.
The segment (just over 3 minutes long) starts at 10:40 minutes into the program, and those interviewed pretty much put a damper on the idea, which may be why we haven't heard much about it in the past 5 years.

Posted by Marcia Oddi on Sunday, May 27, 2007
Posted to General Law Related

Ind. Courts - Update on one of the Evansville attorneys charged with meth violations; suspension recommended for Bloomington attorney

Updating this May 11th ILB entry titled "Two young attorneys in different parts of the state in court for drug/alcohol related charges," the Evansville Courier & Press reports, in a story by Kate Braser, that:

The pastor of a local attorney accused of having a meth lab in her home is convinced the woman is determined to overcome her addiction to the drug.

The Rev. Jeffrey Stratton, pastor of American Baptist East Church, expressed his belief during testimony at a bond hearing Friday morning for attorney Teresa Perry. She was arrested earlier this month and charged with eight counts related to possessing and distributing methamphetamine.

The day after Perry was arrested on charges of dealing methamphetamine after she allegedly sold drugs to a police informant, investigators reportedly discovered a meth lab inside her rental home in the 3300 block of Waggoner Avenue. The home is within 1,000 feet of McGary Middle School.

At Friday's hearing, her attorney, Douglas Walton, said arrangements had been made to admit Perry into Tara Treatment Center Inc. in Johnson County, Ind. * * *

"This is a unique case," Walton said as he tried to persuade Superior Court Judge Scott R. Bowers that Perry would not be a flight risk at the treatment facility.

"Here we have an individual who has maintained a practice as an officer of this court. She has a lot at stake, her recovery, her health and her future," he said.

After Bowers expressed concern about allowing Perry to seek treatment so far from Vanderburgh County, Stratton said his church would pay for a GPS ankle bracelet to track her while she is at the facility, to ensure she stays.

According to a report ($$$) in the Bloomington Herald-Times yesterday by James Boyd:
A hearing officer appointed by the Indiana Supreme Court has recommended a Bloomington attorney be suspended for no less than two years over accusations he violated professional conduct standards.

David Colman has 30 days to file an appeal with the Supreme Court, which will ultimately determine any punitive measures against him.

The hearing officer, Evansville attorney Leslie Shively, recommended Colman’s suspension after finding two violations of proper conduct. Three complaints had been lodged by clients, but Shively found Colman did not do anything wrong in the third allegation.

Seth Pruden, staff attorney for the Indiana Supreme Court Disciplinary Commission, said Shively found enough evidence to rule against Colman in the matters of George Archer and Michael Massey.

In 2002, Colman drafted the will for Archer — then 95 years old — and named himself as Archer’s primary beneficiary to the $250,000 estate.

Massey’s case revolved around payments made toward legal fees while he was facing federal drug charges.

According to Massey’s initial complaint, he told Colman to go to his condominium and get $20,000 he had hidden, and $30,000 from a safety deposit box for Colman’s legal services. Instead of depositing the money into a designated trust account, Massey says, Colman put the money in his own personal account and took over ownership of Massey’s condo.

After Massey discovered the move, he filed his complaint against the attorney.

Shively ruled in favor of the disciplinary commission in both of those complaints, Pruden said. * * *

Ultimately, though, it will depend on what the Supreme Court decides before Colman knows his fate. The court can recommend giving Colman a warning, a suspension, or even disbarment. If he does receive a two-year suspension, he will have to apply to be reinstated as an attorney.

Colman now has 30 days to file a petition to have Shively’s findings reviewed.

“Nothing will happen until those 30 days have run,” Pruden said. A Supreme Court decision could take a month or two.

Until that time, Colman remains in good standing to practice law.

Posted by Marcia Oddi on Sunday, May 27, 2007
Posted to Indiana Courts

Saturday, May 26, 2007

Ind. Decisions - "Appeals court upholds dismissal of U.S. Grand Prix lawsuit"

Here is an AP story on the 7th Circuits ruling yesterday upholding Judge Sarah Evans Barker's "dismissal of a class-action lawsuit against Formula One, French tiremaker Michelin and the Indianapolis Motor Speedway by fans upset with the boycott of the 2005 U.S. Grand Prix by seven race teams." From the story:

Angry fans sued after concerns about tire safety prompted 14 of 20 drivers to pull off the track just as the race was about to start. The fans argued that the defendants were obligated not only to put on a race, but to put out their best efforts to make it exciting.

But Chief Judge Frank Easterbrook dismissed such claims in the 14-page ruling. The reduced race was allowable under F1 rules, he wrote, "and once it is established that the plaintiffs received a regulation race, they admit that they had no additional right to a race that was exciting or drivers that competed well."

The discord led to months of uncertainty over the race's future at Indianapolis. The 2007 U.S. Grand Prix is scheduled for June 17 at the speedway.

The Associated Press left a phone message Friday seeking comment from Indianapolis attorney Henry J. Price, who represented the plaintiffs.

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

Ind. Decisions - More on Joel M. Schumm v. State

One of the Court of Appeals opinions issued last Monday, May 21st was Joel M. Schumm v. State of Indiana, a 27-page opinion in which attorney and IU Law prof Joel Schumm represented himself. See the ILB summary here - third case. This is the case where, as the CA ruled, the trial court "improperly denied Schumm’s Batson challenge."

Today Kevin Leininger of the Fort Wayne News-Sentinel has an opinion piece on the decision, headlined "Taxpayers lose most in retrial of taillight case: Richards wants to retry, but we should reserve jury trials for important cases." Some quotes from the lengthy article:

A lot of people thought it was just plain silly to spend Allen County taxpayers’ money on a jury trial about a broken taillight.

So what would you call doing it twice?

We may soon find out, now that the Indiana Court of Appeals has thrown out the $100 fine an Allen Superior Court judge imposed last July against Indianapolis attorney Joel Schumm.

“We will retry the case. Why not?” said Prosecutor Karen Richards.

Why not? More on that later. But first, a little background. As befits this incredibly goofy but expensive case, the verdict was thrown out on a bizarre legal technicality having absolutely nothing to do with what happened on Dec. 23, 2005.

Schumm, 36, an associate professor at the Indiana University School of Law in Indianapolis, was visiting a friend when Fort Wayne Police officer Martin Grooms ticketed him for an “improper taillight” while driving his blue 2002 Volkswagen Jetta near Peal and Webster streets.

Schumm argued police department guidelines recommend a warning in such cases, and challenged the ticket in court. Last July, the jury took less than 30 minutes to decide he had broken the law, after which Judge Marcia Lansky imposed the fine.

Schumm paid the fine, but appealed the verdict. Last week, the Appeals Court decided several errors had been made in the original trial – one of which was serious enough to throw out the jury’s original verdict.

It seems Schumm – a young, white, presumably affluent professor and attorney – was unconstitutionally victimized by racial discrimination when prosecutors rejected the only black member of the jury pool.

In 1986, the U.S. Supreme Court ruled in Batson vs. Kentucky that attorneys could not base one of their automatic or “peremptory” challenges to prospective jurors solely on the juror’s race. When the prosecutor in Schumm’s case excused the only black prospective juror without stating a reason for doing so, Schumm objected. But Lansky ruled the Batson case didn’t apply because Schumm is white.

“The state did not provide a race-neutral explanation (for excusing the prospective juror), as the trial court did not give it the opportunity,” the Appeals Court decision states. “Therefore, the trial court’s rejection of Schumm’s Batson claim was clearly erroneous.” * * *

“You can’t put a price on principle,” said Schumm, who has made the 200-mile round trip to Fort Wayne at least five times to defend himself. “I feel vindicated.”

“We’re all paid to try cases, and we have a budget for juries,” added Richards, arguing the additional cost of a second trial would be minimal.

All of which misses the obvious point: Prosecutors, judges, jurors and support personnel who could have been paid to decide important cases were instead squandered on a case that never would have been tried if not for an officer’s need to meet a quota – a case that may be retried on the flimsiest of technicalities. Settle this farce. Now.

Posted by Marcia Oddi on Saturday, May 26, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "New Albany man gets 20 years in prison, again"

Jennifer Rigg of the New Albany News-Tribune reports today:

NEW ALBANY — A New Albany man again was sentenced to 20 years in prison Thursday after his initial 20-year sentence for shooting and killing a Jeffersonville man was overturned by the Indiana Court of Appeals.

Floyd County Circuit Court Judge J. Terrence Cody gave 29-year-old Steven I. Paul the same sentence — 20 years with one year suspended to probation — as he did in 2004 after a jury convicted Paul of aggravated battery. Paul was originally charged with murder for shooting 35-year-old Donald Burnett, but a jury returned a guilty verdict for a lesser offense of aggravated battery.

Judge Cody then decided that five aggravating circumstances existed in the case — the main one being that the battery resulted in Burnett’s death — and sentenced Paul to the maximum sentence. Without the aggravators, Paul likely would have received the presumptive sentence of 10 years and could possibly have been released from jail as early as next month.

Judge Cody’s original sentence was overturned after rulings by the U.S. and Indiana supreme courts led to changes in sentencing rules. A jury is now required to find that aggravated circumstances exist before a judge can use them to lengthen a presumptive sentence.

But last month, a Floyd County jury partially agreed with Cody and decided two aggravating circumstances existed in the case: the battery resulted in Burnett’s death and the shooting occurred in a public place during the day. They rejected two others: that Burnett was unarmed and that he was shot in the back.

Only one aggravator is needed for a judge to enhance a sentence. * * *

During Thursday’s second sentencing hearing, [Paul’s attorney, John W. Mead of Salem] asked Cody to consider what he considered several mitigating circumstances — those that could lessen a sentence — including Paul’s completion of two college degrees while incarcerated at Branchville Correctional Facility in Tell City and that he had a minimal criminal history. Cody rejected Mead’s request, saying he found no mitigating factors in the case, and that the fact that Burnett died from his injuries “far outweighed any other circumstances.”

An earlier ILB entry on this case, from Sept. 6, 2006, quotes from a Louis Curier Journal story that begins:
Floyd Circuit Court Judge J. Terrence Cody will decide soon whether to remove himself from the re-sentencing trial of a New Albany man convicted last year in the shooting death of a Jeffersonville man.

An attorney for Steven Paul argued on Friday that Cody should step aside because his previous sentencing of Paul creates an appearance of bias.

Cody sentenced Paul, 27, last year to the maximum 20 years in prison after he was convicted of aggravated battery in the fatal shooting of 35-year-old Donald "Ducky" Barnett.

The Indiana Court of Appeals threw out the sentence because of new sentencing procedures called for in federal and state Supreme Court rulings made after Paul's trial.

Posted by Marcia Oddi on Saturday, May 26, 2007
Posted to Ind. App.Ct. Decisions | Ind. Trial Ct. Decisions

Law - Still more on: Louisville's "Jewish Hospital sues lawyers who unsuccessfully sued it"

Updating these two stories from the past few weeks, Andrew Wolfson of the Louisville Courier Journal reports today:

In an unusual move for a plaintiff in a lawsuit, Jewish Hospital has asked a Jefferson circuit court judge to bar lawyers on either side from discussing its suit against two lawyers who unsuccessfully sued the hospital over allegedly unsanitary conditions.

Responding in court papers, Gary Weiss, who represents one of the lawyers, called the motion hypocritical, noting that the hospital already has twice commented to the media on its suit, including for a story in The Courier-Journal.

"The dread of having press coverage at that time did not dawn on the hospital because one of its media people was all too happy to be freely quoted about the alleged horrors perpetrated on Jewish Hospital by Joe White and Mike O'Connell," Weiss said.

Weiss also claimed the proposed gag order is designed to spare the hospital from ridicule and bad publicity, not to prevent a jury from being tainted, which is why such orders are usually issued. * * *

"It is absurd on its face to believe that candid and honest answers ... could affect Jewish Hospital's right to a fair trial … in 2009 or 2010," Weiss said. * * *

Doug Morris, a veteran plaintiffs' lawyer who is secretary of the Kentucky Academy of Trial Attorneys and has no connection to the case, said he had never heard of a plaintiff requesting a gag order.

Plaintiffs usually want society "to find out what wrongful conduct has gone on," he said.

Gag orders typically are issued to protect the rights of criminal defendants to a fair trial.

In its motion, filed Thursday, the hospital said such an order is needed in part because of the media interest in the suit. The hospital also cited the "prominent role that the media played in the underlying litigation" and the number of press conferences White and O'Connell held while those cases were pending.

The two lawyers filed 96 lawsuits alleging unsanitary conditions caused infections that led to patient illnesses and deaths.

Of those lawsuits, 84 have been dismissed, most of them after the lawyers said they couldn't afford to continue. Two suits were dismissed by judges on their merits. * * *

In an interview last week, Polson and the hospital's lawyers said they were disappointed that White and O'Connell were trying to re-litigate the underlying cases, which they have already lost.

But the hospital has since been criticized by legal commentators for thinking it could sue the lawyers and not expect them to defend themselves by bringing up the claims they made in their original suits.

Former Carroll County Judge Stan Billingsley said in his Lawreader.com blog on Tuesday that the hospital's managers were "sadly mistaken" or "ill advised" if they expected that.

In an interview, Weiss said the public has a strong interest in following the hospital's suit because it could make it harder in the future to find lawyers willing to take on unpopular, expensive cases.

This is the commentary of former Carroll County Kentucky Judge Stan Billingsley referenced above. For a lot more, see this entry by Michael Stevens of the Kentucky Law Review.

[Updated 5/27/07] Here is another Stevens entry today.

Posted by Marcia Oddi on Saturday, May 26, 2007
Posted to General Law Related

Courts - "I was shocked it got overturned on such a technicality. That's something I would think a court in New York or California would do, but not Alabama."

Some quotes from this story today in The Decatur (Alabama) Daily, reported by Holly Hollman:

ATHENS — A woman serving life for capital murder in the alleged poisoning death of her husband may get a new trial.

The Alabama Court of Criminal Appeals unanimously overturned the 2003 conviction of Kathy Diane Birge, 53, of Madison in Limestone County.

The court said the prosecution failed to establish a sufficient chain of custody for samples extracted from the body of Cecil Birge, Kathy Birge's husband.

"I haven't read the opinion, but from what I've been told, it sounded like a trivial technicality," Sheriff Mike Blakely said Friday. "I was shocked it got overturned on such a technicality. That's something I would think a court in New York or California would do, but not Alabama."

The court ruled that the trial judge, former Circuit Court Judge George Craig, should not have let the prosecution enter the toxicology report as evidence. The court said Craig also should not have allowed Dr. John Pless, an Indiana pathologist, to testify about the toxicology report and give his opinion as to the cause of death. * * *

Kathy Birge tried to have her husband cremated, but Cecil Birge's daughter from another marriage filed an injunction and was able to bury her father in Indiana. That's where his daughter lives.

When Limestone authorities discovered Kathy Birge had forged her husband's will, they exhumed his body.

Pless performed the autopsy in Indiana and took samples to test for drugs. During the August 2003 trial, Pless testified that the amount of drugs in Cecil Birge's body equaled 25 to 30 pills.

Pless could not identify everyone who handled the toxicology samples after they were locked in a refrigerator. There also was an unsigned report from the lab where the samples were transferred.

The court ruled this showed several missing links in the chain of custody and overturned the conviction because the report was "the crux of the prosecution's case."

"We do not reverse a capital murder conviction lightly," the court's ruling stated.

The court also stated that, "Only the toxicology results established that Cecil died of a multiple-drug overdose, and that evidence allowed the jury to conclude that the (prosecution) presented sufficient proof that Birge had murdered her husband."

Here is more information about Dr. Pless. The newspaper includes a link to the text of the appeals court decision -- unfortunately it is to a damaged copy of the PDF document. I have sent them a note - perhaps it will be repaired and this link will work later.

Posted by Marcia Oddi on Saturday, May 26, 2007
Posted to Courts in general

Ind. Courts - More on: Confiscating a student's cellphone results in appointment of special prosecutor

Last Sunday, May 20th, the ILB posted this entry where a Purdue student whose phone was confiscated by his professor during class (because he continued to use it after due warning) called the campus police after the professor told him he could pick up the phone the next morning from the dean's office.

The professor was Tippecanoe County Superior Court Judge Les Meade. The campus police told Judge Meade to return the phone to the student immediately or be charged with theft. Last week's story reported: "Richard Cosier, dean of the Krannert School of Management, then arrived * * * took the cell phone and returned it to the student, and admonished the student about rules against cell phone use during class."

Purdue officials forwarded the police report to the prosecutor.

The prosecutor appointed a special prosecutor "to avoid the appearance of impropriety" since the party was a county judge. Yesterday the special prosecutor ruled no criminal charges were warranted.

Today Joe Gerrety of the Lafayette Cournal & Courier reports:

Six weeks ago, Meade was teaching a business law class at Purdue when a student's cell phone began ringing. Meade took away the student's phone when he said the student failed to turn it off promptly.

Meade said he intended to turn it in to the dean's office the next morning. But the student, in a hurry to get his phone back, called Purdue police. Police officers told Meade if he failed to return the phone to the student, that refusal would constitute theft.

While Meade was discussing the matter with officers, Richard Cosier, dean of the School of Management, arrived, took possession of the phone and returned it to its owner after lecturing the student about rules against using cell phones during class.

Purdue spokeswoman Jeanne Norberg said police reports on the incident were forwarded to the prosecutor's office as a matter of procedure without any expectation of further action. Prosecutor Pat Harrington said he sought the appointment of a special prosecutor to avoid the appearance of impropriety.

"Because the instructor involved (Meade) either was authorized to act as he did in the classroom, or reasonably believed he had such authority, no criminal charges are warranted," Ives wrote in a one-page report that he filed Friday.

Another phone incident punctuated the story yesterday, according to Gerrety's story today:
Special prosecutor Rob Ives had just delivered a report saying he would not be filing charges in connection with allegations of theft against Judge Les Meade when Ives' own cell phone began ringing in the middle of Meade's crowded courtroom.

"It was the perfect ending to this little annoyance," Meade said, laughing and noting that Ives' ringtone was the song "I Fought the Law (and the Law Won)." * * *

Ives had just dropped off a courtesy copy of the report to Meade in his courtroom Friday morning when he suffered his own cell phone faux pas. Ives quickly left the courtroom and turned off his phone while other attorneys nervously waited to see Meade's reaction.

A sign on the door of Meade's courtroom, Tippecanoe Superior Court 5, instructs those entering to turn off their cell phones.

Ives said another attorney at the Tippecanoe County Courthouse was trying to locate him for a scheduled hearing in another court, and Ives said he hadn't planned on being in a courtroom at the time.

As for being cleared of the theft allegation, Meade said it was what he expected.

"I always had complete confidence that the justice system would work properly," Meade said, "and it has."

Posted by Marcia Oddi on Saturday, May 26, 2007
Posted to Indiana Courts

Friday, May 25, 2007

Law - "The Un-Conservative Effects of Opposing Gay Marriage"

Dale Carpenter, a law prof at the U of Minnesota Law School, has an interesting post today at The Volokh Conspiracy. He begins:

[A]nti-gay marriage policy is pushing gay families to seek alternative protection in family law though untraditional means. These work-arounds, however, are also available to straight couples and may undermine marriage and traditional parental presumptions and family forms in ways that gay marriage would not.
Prof. Carpenter's post points to his recent article, "The Un-Conservative Effects of Opposing Gay Marriage."

Posted by Marcia Oddi on Friday, May 25, 2007
Posted to General Law Related

Ind. Decisions - Transfer list for week ending May 25, 2007

Here is the Indiana Supreme Court's transfer list for the week ending May 25, 2007.

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

Over three years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on Friday, May 25, 2007
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

Jovan Stewart v. State of Indiana - "There is sufficient evidence to support Stewart’s convictions for attempted battery, criminal recklessness, and possession of a handgun without a license, but there is insufficient evidence to support his conviction for dangerous possession of a firearm by a child. Additionally, his conviction for criminal recklessness must be vacated because of double jeopardy concerns. His six-year sentence for attempted battery is appropriate. We affirm in part, reverse in part, and remand for the trial court to vacate Stewart’s convictions for criminal recklessness and dangerous possession of a firearm by a child."

Michael Rutherford v. State of Indiana - "There is sufficient evidence to support Rutherford’s convictions. However, his conviction for criminal recklessness must be vacated because of double jeopardy concerns. His six-year sentence for attempted battery is appropriate. We affirm in part, reverse in part, and remand for the trial court to vacate the criminal recklessness conviction and to correct the abstract of judgment to reflect Rutherford’s conviction for attempted battery, not attempted murder."

In Albert Boyd v. State of Indiana , a 6-page opinion, Judge Barnes writes:

Case Summary. Albert Boyd appeals his conviction for Class A misdemeanor battery. We affirm.

Issue. Boyd raises one issue, which we restate as whether the trial court properly admitted a statement made by the victim, Ruth Boyd, Boyd’s deceased wife.

Facts. On April 20, 2005, Boyd and Ruth were involved in a physical alteration. Boyd hit Ruth on her arms, back, and face. On April 23, 2005, Ruth reported the incident to police and gave them a statement describing the incident. On May 5, 2005, the State charged Boyd with Class A misdemeanor battery resulting in bodily injury. A trial was scheduled for March 17, 2006. However, on January 31, 2006, Boyd murdered Ruth, and the battery trial was postponed. On August 9, 2006, a jury convicted Boyd of murder.

On December 12, 2006, a bench trial was held on the battery charge. Prior to the trial, a hearing was held regarding the admissibility of Ruth’s April 23, 2005 statement to the police concerning the battery. The trial court concluded that, by murdering Ruth, Boyd forfeited his right to confront Ruth as a witness against him and waived his right to object to the admission of her statement on hearsay grounds. The trial court then found Boyd guilty of Class A misdemeanor battery. Boyd now appeals. * * *

As the Crawford court recognized, however, the right to confront witnesses is not unlimited. * * *

Conclusion. Boyd’s wrongdoing forfeited his right to confront Ruth at trial as provided by the Sixth Amendment and the Indiana Rules of Evidence. The trial court did not abuse its discretion in admitting Ruth’s statement in addition to other evidence of the battery. We affirm.

NFP civil opinions today (3):

Involuntary Term. of Parent-Child Rel. of T.W. and Tr.W., and Larry Wiseman v. Marion Co. Dept. of Child Services and Child Advocates (NFP) - "Larry Wiseman appeals the involuntary termination of his parental rights to T.W. and Tr.W. Specifically, Wiseman claims he received ineffective assistance of trial counsel because his attorney (1) failed to object to the incorrect notice of the final termination hearing, and (2) failed to consult with Wiseman prior to the hearing. We affirm."

David S. Moreland v. Joseph C. Krutzsch, T & L Marketing and U.S. Financial Life Ins. Co. (NFP) - "David S. Moreland appeals the trial court’s entry of summary judgment in favor of Joseph C. Krutzsch, T&L Marketing Corporation (T&L), and U.S. Financial Life Insurance Company (USFL) (collectively, the defendants) on his claims of breach of contract, fraud, and conversion. Of the several issues presented by Moreland, we find the following dispositive: 1. Are Moreland’s claims barred by their respective statutes of limitations? 2. Are the defendants entitled to summary judgment with respect to the merits of Moreland’s claim for breach of contract? We affirm."

In Dean E. Blanck v. Indiana Dept. of Correction (NFP), a 10-page opinion, Judge Crone writes:

Case Summary. Dean E. Blanck appeals judgments in two small claim court cases he brought against the Indiana Department of Correction (“the DOC”). He challenges the trial court’s judgment in his favor for $15.36 in Miami Superior Court Cause Number 52D01-0504-SC-360 (“Case SC-360”), and the trial court’s judgment in favor of the DOC in LaPorte Superior Court Cause Number 46D03-0603-SC-345 (“Case SC-345”). We reverse and remand.

Issues. Blanck presents three issues for our review, which we restate as follows: I. Whether the trial courts in Case SC-360 and Case SC-345 erred by admitting the DOC’s unsworn affidavits and supporting exhibits; II. Whether the trial court in Case SC-360 erred by entering judgment in Blanck’s favor for only $15.36; and III. Whether the trial court in Case SC-345 erred by entering judgment in favor of the DOC. * * *

We hereby reverse the trial courts’ judgments in Case SC-360 and Case SC-345 and remand. We order the Miami Superior Court to enter judgment in Blanck’s favor regarding all the property shown in Blanck’s verified list of lost property. We order the LaPorte Superior Court to enter judgment in Blanck’s favor in Case SC-345. We order both courts to determine damages in light of these revised judgments.

NFP criminal opinions today (5):

Roy W. Winstead v. State of Indiana (NFP)

Barbara Holt v. State of Indiana (NFP)

Gordon Hancock v. State of Indiana (NFP)

D.W. v. State of Indiana (NFP)

Eddie Mooney v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 25, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit affrims SD Ind.'s 2005 United States Grand Prix race ruling

In IN RE: 2005 United States Grand Prix (SD Ind., Sarah Evans Barker, Judge), a 14-page opinion, Judge Cudahy writes:

The defendants organized a car race. Although twenty cars were originally scheduled to race, fourteen of the twenty did not participate after it was discovered that a flaw in their tires rendered them dangerous for use at full speed on one part of the track. Disappointed fans sued, seeking their expenses in attending and viewing the race. The district court dismissed the complaint for failure to state a claim on which relief can be granted. The plaintiffs appeal; we affirm.
[More] The blog Decision of the Day features this opinion today.

Posted by Marcia Oddi on Friday, May 25, 2007
Posted to Ind. (7th Cir.) Decisions

Courts - "Negative Ad Trend in Judicial Campaigns Draws Objections"

From a report today by Greg Giroux at CQPolitics.com:

The increasing nastiness and the upscaled campaign spending for judicial campaigns — no more the sleepy, under-the-radar-screen races they once were — were major themes of a conference Wednesday in Washington, D.C., that was sponsored by the Annenberg Public Policy Center at the University of Pennsylvania and Factcheck.org, which monitors the accuracy of campaign advertisements and other political communications.

A report from the Justice at Stake Campaign, a nonpartisan group that advocates judicial impartiality and which participated in Wednesday’s event, found that television ads ran in 10 of 11 states with contested state Supreme Court elections last year, compared with 4 of 18 states in 2000. That amount of television advertising set a new record for judicial races — and most of the negative ads that appeared were aired by the judicial candidates’ campaigns.

The Justice at Stake Campaign cited this data in calling 2006 “the most threatening year yet to the fairness of America’s state courts,” with the group describing the increased role of interest groups as endangering the long-enshrined role of the judicial branch as an impartial arbiter of the law.

Here is a link to the Justice at Stake website.

Posted by Marcia Oddi on Friday, May 25, 2007
Posted to Courts in general

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

Updating this ILB entry from April 6th, the Evansville Courier & Press reports today:

An Evansville attorney accused of having a methamphetamine lab in his office and adjoining apartment rejected a plea agreement Thursday, and his attorney withdrew from the case.

Brad Happe, 30, faces two preliminary Class A felony charges of possession of precursors and conspiracy to deal methamphetamine. He also faces a Class D felony charge of precursors.

Happe was arrested March 29 by officers with the Evansville-Vanderburgh Joint Drug Force after police confiscated anhydrous ammonia, pseudoephedrine tablets, lithium batteries, sulfuric acid and other items commonly associated with manufacturing meth from his office and apartment at 4619 Harmony Way.

Happe was not present at the hearing, because he is enrolled at a drug treatment facility.

See also this ILB entry from May 5th headed "Second Evansville attorney accused of possession, dealing meth."

Posted by Marcia Oddi on Friday, May 25, 2007
Posted to Indiana Courts

Environment - Wabash Environmental trial in federal court concludes

Howard Greninger of the Terre Haute Trib-Star reports:

INDIANAPOLIS — Derrik Hagerman made false statements in monitoring documents required to be filed and maintained under the federal Clean Water Act, a jury found Thursday.

Judge David F. Hamilton ordered a pre-sentencing report to help determine criminal penalties and fines in the case. The judge will then schedule a sentencing hearing for Hagerman.

The jury in U.S. District Court found Hagerman and his company, Wabash Environmental Technologies LLC, guilty of 10 counts of knowingly failing to report results of pollutant discharges into the Wabash River and creating false reports showing lower concentrations of phenol, zinc, copper, ammonia and biological oxygen demand that had gone into the river.

Hagerman, 53, president and owner of Wabash Environmental Technologies, could face up to two years for each count.

Hagerman said he will appeal.

In closing remarks, Assistant U.S. Attorney Steve DeBrota said Hagerman was notified of the high amounts of discharge of metals into the river, yet used a “Derrick Hagerman fudge factor” when reports were submitted to government agencies.

“If nothing else, Hagerman should have stopped discharging until [reporting numbers] were right,” DeBrota said.

Hagerman contended he was a victim of a scheme by some former employees to deceive him. * * *

The jury began deliberations at 10:26 a.m. Thursday and reached its verdict at 2:35 p.m.

Posted by Marcia Oddi on Friday, May 25, 2007
Posted to Environment | Ind Fed D.Ct. Decisions

Ind. Courts - More on: Court of Appeals Holds Oral Argument at Plainfield High School in Hendricks County

As noted here on May 15th, on May 22nd, the Indiana Court of Appeals was scheduled to hear oral argument in David Schlotman v. Taza Café D/B/A Gyro Joint at the Plainfield High School.

Today Bruce C. Smith of the Indianapolis Star reports on the event. Some quotes:

For a group of Plainfield High School students, a little of the mystery has been lifted about the rarely seen men and women in the black robes in the state's legal hierarchy.

The civics lesson comes because of a rowdy group of drunks picking a street fight outside a Broad Ripple sandwich shop.

At the invitation of history and government teacher Chris Cavanaugh, the Indiana Court of Appeals held a court session in the Plainfield High School auditorium this week.

It is the latest in a series of appearances that takes the state's second-highest court on the road to high schools and other venues throughout the state to educate and demonstrate the legal system.
At Plainfield -- the 188th session outside the state capital -- a three-member panel from the 15-member appeals court heard nearly an hour of oral arguments from attorneys in a negligence lawsuit filed by a restaurant customer.

The chance to see and hear the judges up close and to ask them questions made the biggest impression on the teenagers.

"Some people might think they are distant, or maybe not real," said Josh Little, 18-year-old senior who graduates next month and will attend Milligan College. "I thought it was interesting that they came to us so that we could learn more about the court. I found (the judges and attorneys) to be honest, and seeing them face-to-face, in person, helped to make them real people."

Tony Dennis, a senior planning to attend Rose-Hulman Institute of Technology, agreed the court session "was interesting because it isn't something you see every day, with the lawyers and judges face-to-face."

After an hour of court hearing, the judges -- Edward W. Najam Jr., who presided, plus Paul D. Mathias and Melissa S. May -- took questions from students and others * * *

The suit stems from a Sept. 2, 2004, incident in which customer David Schlotman bought a sandwich in the Gyro Joint. Because there is no inside seating, he stepped out on the sidewalk along Broad Ripple Avenue to eat it next to some tables provided by owner Rageh Hefni.

A white SUV filled with apparently intoxicated people drove up and demanded Schlotman's food. He complained to Hefni, who declined to intervene. Schlotman claimed he was assaulted and hit with a whisky bottle.

He later found a history of police calls to the area reported on an Indianapolis city Web site. He tried to use that as evidence that the Gyro Joint owner should have foreseen such an attack and done something to protect the customers.

A Marion County judge said no. The appeals court typically decides its cases within a few months.

Posted by Marcia Oddi on Friday, May 25, 2007
Posted to Indiana Courts

Thursday, May 24, 2007

Ind. Courts - Supreme Court issues lists of attorneys behind in CLEs and fees [Updated]

Two Orders issued by the Supreme Court on May 22, 2007:

Order - In the Matter of Failure to Comply with Continuing Legal Education Requirements

Order - In the Matter of the NonPayment of Attorney Registration Fees.

[Updated] Thanks to the reader sent the note that I had the links reversed -- fixed now.

Posted by Marcia Oddi on Thursday, May 24, 2007
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Susan Krause v. Indiana University-Purdue University at Indianapolis , a 15-page opinion, Judge Darden writes:

Susan Krause appeals the order of the Worker’s Compensation Board (“the Board”) as to its holding that Indiana University – Purdue University at Indianapolis (IUPUI) was not required to pay for Krause’s medical treatment by and prescription drugs from unauthorized providers; and IUPUI cross-appeals the Board’s order that it provide further medical care and treatment to Krause. * * *

[I] Krause’s Issue: Whether IUPUI illegally discontinued its provision of medical services to Krause in mid-1998. [The Court reverses and remands on this issue.]

[II] IUPUI’s Issue: Whether the Board erred when it ordered IUPUI to provide further medical care and treatment to Krause. [The Court affirms on this issue.] * * *

[I] We further note after Krause’s treatment by Dr. Gregori terminated, she was treated by Dr. Dennis L. Wagner of the I.U. Pain Clinic for more than two years. We can appreciate the concern of employers that they not be required to pay for questionable or possibly inappropriate medical treatment. However, such a concern would not appear to be warranted or have any basis where, as here, the “unauthorized” treating physician is part of the employer’s corporate entity.

In addition, the required use of a prescribed statutory form further protects the employer from any allegation that the employee was not properly informed of the consequence of refusing medical treatment authorized by the employer.

IUPUI has failed to take advantage of such statutory protection. IUPUI failed to provide the required prescribed statutory notice to Krause. Therefore, the Board erred when it failed to find that IUPUI was required to provide medical services to Krause after July of 1998, when she stopped being treated by Dr. Gregori. Accordingly, we reverse and remand to the Board for further consideration consistent with this opinion. * * *

[II] IUPUI argues that the Board erred when it found IUPUI was “obligated” to provide ongoing medical care to Krause because the Board “did not find that such care would limit or reduce the amount or extent of Krause’s impairment, as required by statute.” * * * Because the evidence supports the finding that future medical treatment is necessary, the Board did not err when it ordered that IUPUI provide such treatment. * * *

IUPUI claims, because Krause’s last compensation under the original award was paid on August 5, 2002, the Board’s jurisdiction ended two years later. Krause responds that the statutory provisions, together, simply require that she file her claim within two years of August 5, 2002, and that she did so by filing her motion to reinstate application for review on April 14, 2003. We agree with Krause. * * *

Finally, IUPUI argues that the Board lacks authority to order an employer to provide future medical services to an employee for a work-related injury for “the employee’s entire lifetime.” It asserts that the cases which have affirmed such awards of future benefits, [cites omitted] are either factually distinguishable or “should be overruled.” We are not persuaded and find them to clearly support the Board’s authority to act as it did here. * * * Given the decades of authority indicating that the Board does have the authority to award future medical benefits to an injured employee, with no responding legislative changes to the statutory provision providing for such benefits, we decline to hold that the Board’s award is contrary to law. Therefore, we affirm the Board’s decision in this regard.

NFP civil opinions today (1):

In Re the Marriage of Hugo M. Galicia v. Sherry Ann Babbs (NFP) - "Concluding the trial court applied the proper standard for determining custody when there is a de facto custodian, and properly treated this as an initial determination of custody, we affirm."

NFP criminal opinions today (6):

Michael Kopp v. State of Indiana (NFP)

Jason Kelly v. State of Indiana (NFP)

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

Jeffrey S. Hamaker v. State of Indiana (NFP)

Gordon Northrup, Jr. v. State of Indiana (NFP)

Jason Bohlinger v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 24, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Oral argument yesterday in "son of" Frank Nagy v. Evansville-Vanderburgh School Corp.

Yesterday the Court of Appeals heard oral arguments again in Frank Nagy v. Evansville-Vanderburgh School Corp. (See this August 10, 2006 ILB entry for background.) This was the case about whether the $20 fee imposed on some Evansville students was really "tuition" and thus in violation of the Indiana Constitution. In yesterday's appeal, according to the summary on the Indiana Courts site:

The issue presented is whether the Plaintiffs, who successfully challenged the Defendant School Corporation's twenty-dollar activity fee as violating Article 8, Section 1 of the Indiana Constitution, are the prevailing party for purposes of 42 U.S.C. 1988, which provides for awarding attorney fees to parties who prevailed in actions brought to enforce federal constitutional rights, where the Plaintiffs were granted summary judgment upon their federal due process claim before the trial court but where neither this court nor our Supreme Court found it necessary to address the merits of the federal claim upon appeal.

The Scheduled Panel Members are:Judges Sullivan, Bailey and Robb.

Posted by Marcia Oddi on Thursday, May 24, 2007
Posted to Ind. App.Ct. Decisions

Law - More on: Law schools look at reinventing their first (or third) years

Yesterday afternoon the ILB posted a long entry on law school education. Today the WSJ Blog continues to look at changing the third year of law school, in an entry titled "Third Year of Law School: Hot or Not?"

Posted by Marcia Oddi on Thursday, May 24, 2007
Posted to General Law Related

Environment - Wabash Environmental trial continues in federal court in Indianapolis

Updating this ILB entry from yesterday, May 23rd, Howard Greninger of the Terre Haute Tribune-Star reports, in another long story from the Trib-Star on the trial:

INDIANAPOLIS — A 14-member jury will hear closing arguments today before deciding if Wabash Environmental Technologies president and owner Derrik Hagerman violated the federal Clean Water Act and submitted false monitoring reports.

Hagerman, 53, took the stand in his defense Wednesday, saying he believed improper calculations resulted in high numbers of phenol, copper, zinc and ammonia greater than allowed under WET’s National Pollution Discharge Elimination System or NPDES permit.

Hagerman contends Barry Morrison, a lab technician at WET, did not use proper calibration or dilution rates during tests. “I saw that his numbers were greater than the permitted level. Just because he gave us a number, that doesn’t mean that goes on a permit” report, Hagerman said.

“He was not using the proper dilution to test for metals. He ran tests at 1 to 10 or 1 to 100, when it should be 1 to 1,000,” Hagerman said.

Posted by Marcia Oddi on Thursday, May 24, 2007
Posted to Environment | Ind Fed D.Ct. Decisions

Ind. Courts - "Three finalists for Lake Superior Court judicial vacancy"

Updating this ILB entry from Tuesday, the NWI Times reports today:

CROWN POINT | The Lake County Judicial Nominating Committee on Wednesday sent to Gov. Mitch Daniels the names of three finalists for the Lake Superior Court vacancy left by the death of Judge Robert Pete. * * *

Out of 23 attorneys vying for the vacancy, the committee chose Lake Superior Court Magistrate Kathleen M. Belzeski; Calvin D. Hawkins, a U.S. bankruptcy trustee with a private practice in Gary; and Christina J. Miller, until recently a Lake Circuit Court magistrate, now a private attorney.

Posted by Marcia Oddi on Thursday, May 24, 2007
Posted to Indiana Courts

Ind. Courts - More on "Courtroom camera plan fizzles"

A March 22, 2007 Indianapolis Star story was headlined "Courtroom camera plan fizzles." Judges, the prosecution and defense all have veto power over whether cameras will be permitted in any case. As a result, the Star reported: "Halfway through the pilot project, Indianapolis media requests have met rejection all but three times; in other cities, only two requests have succeeded."

Today, Emily Udell of the AP reports:

The Indiana Supreme Court has rejected a request to loosen the rules of a pilot program allowing cameras in local [trial] courtrooms, a move that supporters of media access said will require redoubled efforts to generate test cases before the project's end.

The Indiana Broadcasters Association sent a letter to the court in January, asking the justices to amend the program's rules to give trial court judges sole discretion on whether to permit cameras in their courtrooms. Only five test cases had been recorded since the project was launched last July. * * *

Kevin Finch, news director at WISH-TV in Indianapolis and media coordinator for a Marion County court, said 20 requests to cover proceedings in that court were denied during March.

More than 350 requests have been denied since the start of the project. In most cases, defense attorneys said their clients did not want to be photographed or filmed.

"We just want a few attorneys to see that justice can be done, that it could be compatible with a small camera at the back of the room," Finch said.

Posted by Marcia Oddi on Thursday, May 24, 2007
Posted to Indiana Courts

Wednesday, May 23, 2007

Law - Law schools look at reinventing their first (or third) years

A reader this afternoon pointed me to this entry in the Empirical Legal Studies Blog about plans at the IU-Bloomington School of Law. Some quotes:

A 4-Credit 1L Course on the Legal Profession

Yes, that is right. After a year of committee work and a few weeks of intense deliberations, the faculty at Indiana Law recently voted to revise our 1L curriculum to make room for a new 4-credit Legal Professions course.

Our strategic plan makes a commitment to “offer our students a continuously updated curriculum that meets the changing needs of the profession and professionalism." This new course attempts to actually deliver on those words. It also represents a large bet on the pedagogical value of socio-legal research on the profession.

The entry references the recent Carnegie Report, "Educating Lawyers: Preparation for the Profession of Law (2007)."

As reported in this Jan. 26th ILB entry, the Carnegie Report was also referenced in a Wall Street Journal opinion piece - "Law schools rarely teach students how to be lawyers." A quote:

This month the Carnegie Foundation for the Advancement of Teaching issued a report criticizing the Socratic case method that dominates law-school teaching. According to the report, it does little to prepare lawyers to work with real clients or to resolve morally complex issues. Several months ago Harvard Law School announced a reform of its first-year curriculum to require classes in "problem solving," among other things. There appears to be an emerging consensus that although law schools may teach students how to "think like a lawyer," they don't really teach them how to be a lawyer.
As for Harvard Law, an Oct. 7, 2006 story in the Boston Globe by Sacha Pfeiffer reported:
The Harvard Law School faculty has voted unanimously to overhaul its first-year curriculum by focusing more on complex problem-solving, international law, and modern law-making by government bodies and administrative agencies, marking a significant departure from more than a century of traditional legal education.

The shift is a marked change from the so-called case method , which was developed at Harvard Law in the 1870s, became the basis of legal education nationwide, and remains the way most law students are taught . It relies on appellate court decisions to teach core legal principles, and does not address the huge body of contemporary law created by statutes and regulations rather than judicial opinions. * * *

The new curriculum, which will be phased in beginning with next year's entering class, will devote fewer hours to traditional courses like torts, property, and contracts, and place more emphasis on international and comparative law, since most aspects of modern legal practice have a global dimension. It also will introduce two first-year classes, one designed to teach students about the universe of laws created by entities other than courts, and one that will focus on complex problem-solving.

``We're very good at teaching first-year students how to read and analyze cases, make analogies and distinctions, and argue other sides of an issue," Kagan said. ``But we're less good at teaching people how to be creative, flexible, innovative problem-solvers, and this is an attempt to remedy that weakness." * * *

``Many people's picture of a lawyer is someone in a courtroom, but the fact of the matter is very few lawyers practice inside courtrooms," said professor Martha L. Minow, who chaired the curriculum committee. ``So we are making a strong statement that legal education ought to reflect the problem-solving, prospective, constructive, legislative, comparative, and international work that is central to law today."

An Oct. 24th, 2006 article in The National Law Journal about the Harvard changes concludes:
Although Northwestern University School of Law recently altered its first-year legal research and writing course to include a broader communications and legal-reasoning component, it does not plan to change markedly its 1L curriculum, said the school's dean, David Van Zandt.

"I'm not a big fan of what Harvard's done," he said.

Harvard's new course on legislation and regulation will focus on the separation of powers, the legislative process, statutory interpretation, administrative agency practice and more. For the global legal systems course, students will choose one of three classes: public international law, international economic law and comparative law.

Students will take the problems and theories course after they complete their first term. It will include solving problems from simulated case studies. Harvard will accommodate the changes by reducing the number of class hours in torts, contracts, civil procedure, criminal law and property, and by adding a new January term for first-year students for the problem-solving course. It will implement the changes over the next three years.

As often happens, as I was completing this entry, I ran across something that put it all in a different perspective. Today's WSJ has an article on p. B1 ($$$)by Amir Efrati about how the dean of a really obscure 4th tier law school, the University of Detroit Mercy School of Law, has some of the country's biggest law firms making offers to his students. A few quotes:
A first-time dean and Harvard Law grad, Mr. Gordon got his school on the radar of the top-tier firms by enlisting a stable of big-time private-practice lawyers to join an advisory board that's now some 60 members strong. His pitch: Help Detroit Mercy improve its third-year curriculum by creating a required set of courses that simulate real-life practice. * * *

The idea of focusing the curriculum on practice resonated with the lawyers. In fact, many have long complained that law school devotes too much attention to theory and leaves students unprepared to practice, even as the market demands that firms pay new hires high salaries from day one. Many students are also no fans of the third year of school, feeling it's a repeat of the same kind of work analyzing cases that they did in the first two years.

Students "arrive and they don't know where they fit in, how to draft an escrow, a merger agreement," says Jonathan J. Lerner, a corporate partner at Skadden Arps who is on the Detroit Mercy board.

The WSJ Blog picks up the story here.

Posted by Marcia Oddi on Wednesday, May 23, 2007
Posted to General Law Related

Ind. Decisions - Supreme Court decides one today

In Porter Development, LLC v. First National Bank of Valparaiso, a 7-page, 5-0 opinion, Justice Dickson writes:

When a financial institution interpleads and pays into court deposited funds that are sub-ject to an adverse claim, how does Indiana Code § 28-9-5-3 govern its entitlement to receive its costs and expenses thereby incurred? To address this question, we granted transfer. * * *

From our review of other jurisdictions, it appears that the prevailing approach is to allow the interpleading stakeholder to recover its attorney fees directly from the deposited fund before it is distributed to the prevailing claimant and, as between competing claimants, to require those claimants whose claims to the fund are rejected to replenish the fund or reimburse the prevailing claimant. We agree and adopt this general rule. But we observe that this approach may be inappropriate for application in unusual circumstances, such as when the interpleading stakeholder incurs additional attorney fees and costs beyond the reasonable and ordinary expenses associated with the prosecution of an interpleader proceeding.

We conclude that Indiana's Adverse Claim Interpleader statute is mandatory and estab-lishes the right of a depository financial institution that pays funds subject to an adverse claim into a court to "recover and collect the costs and expenses, including attorney's fees, incurred by the depository financial institution in the interpleader action." Ind. Code § 28-9-5-3. Applying the plain language of this enactment, such recovery extends to all reasonable costs and expenses incurred by a depository financial institution with respect to the interpleader action or proceeding. We hold, however, that such right to recovery includes only those costs and expenses that are expended in bringing a proper interpleader, or successfully defending its use of interpleader. In the event the deposited funds are insufficient, the trial court may impose such costs and ex-penses upon unsuccessful claimants whose claims led to the interpleader and deposit of funds with the court.

We reverse the trial court's partial summary judgment denying the Bank attorney fees and remand the case to the trial court for the following purposes: (a) to determine the reasonable costs and expenses, including attorney fees, incurred by the Bank in this interpleader action; (b) to order the payment of such costs and expenses to the Bank from the deposited fund; (c) to de-termine whether and to what extent Eagle Services, by its conduct in asserting an interest in the fund, should in fairness be required to replenish all or any portion of said costs and expenses to the fund or to Porter Development, and to enter appropriate orders thereon; and (d) for all other proceedings consistent with this opinion and that of the Court of Appeals to the extent summarily affirmed by this Court.

Posted by Marcia Oddi on Wednesday, May 23, 2007
Posted to Indiana Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)

For publication opinions today (4):

In Victor Herron v. Anthony A. Anigbo, M.D. , an 8-page opinion, Judge Kirsch writes:

Victor Herron appeals the trial court’s order granting summary judgment in favor of Anthony A. Anigbo, M.D. The issue before us is whether Herron filed his medical malpractice complaint within the applicable statute of limitations. We reverse and remand. * * *

Perhaps, the foregoing information would have been sufficient for a neurosurgeon to be put on notice that he had been the victim of medical malpractice. Maybe, it would have been sufficient for general medical personnel to make such a determination. It is not sufficient to put the reasonable, non-medical lay person on such notice. * * * We conclude that the trial court erred when it concluded that Herron’s discovery date was June of 2003 and that it was not until November 2003 when Dr. Carter informed Herron of Dr. Angibo’s possible malpractice that sufficient knowledge that a reasonably diligent person would discover the malpractice. * * *

It is unconstitutional to apply the “occurrence-based” nature of Indiana’s medical malpractice statute of limitation to Herron. We therefore remand to the trial court to proceed with Herron’s action. Reversed and remanded.

Clinton M. and Leanna Christian v. Dawn Durm - custody, affirmed.

Derek Scott Geiger v. State of Indiana - "Concluding that Geiger can only be convicted of one count of impersonating a public servant pursuant to Indiana Code section 35-44-2-3 but finding no other error, we direct the trial court to vacate Geiger’s conviction for Count II and affirm the judgment of the trial court in all other respects."

Bryson Matthews v. State of Indiana - "Matthews has demonstrated no manifest abuse in the admission of evidence, nor has he demonstrated fundamental error in the jury instructions. Affirmed."

NFP civil opinions today (2):

John Tinsman v. Timothy & Melody Crehan, and Ed & Janet Guerra (NFP) - Land contract with balloon payment. "Tinsman failed to make the balloon payment or to pay the real estate taxes on the farmland. However, he made improvements to the land by cleaning out a fence row and removing certain willow trees surrounding a pond located in the middle of the forty-three acre plot. Tinsman rented the farmland to a local farmer and collected rent in the amount of $3,440.00 in 2005. * * * The trial court did not abuse its discretion in determining that cancellation and rescission was a proper remedy. Furthermore, the trial court did not abuse its discretion in determining the value of the improvements to the farmland."

Involuntary Term. of Parent-Child Rel. of J.P. and Tiffany Price v. Marion Co. Dept. of Child Services and Child Advocates (NFP) - termination, affirmed.

NFP criminal opinions today (5):

Joseph N. Hancock v. State of Indiana (NFP)

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

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

Stephen Gaskey, Jr. v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Wednesday, May 23, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Appeal denied in '91 slaying"

Bryan Corbin of the Evansville Courier & Press has a story today filling in the blanks on one of the NFP criminal rulings issued yesterday, Charles Cleary, Jr. v. State of Indiana (NFP), listed near the end of this May 21st ILB entry. A quote from the story:

At issue for the Indiana Court of Appeals was whether, during Cleary's 1992 sentencing, the trial court judge improperly used so-called "aggravating factors" to give Cleary a longer sentence, while disregarding a "mitigating factor" that could have shortened his prison time.

The appeals court found that two of the aggravating factors were improperly considered in the sentencing; but the trial judge was within his discretion to decide that Cleary's age at the time was not a mitigating factor.

"Under the facts and circumstances of Cleary's offense, we can confidently say that the trial court would have imposed an enhanced sentence, even without considering the two improper aggravators. Accordingly, we affirm Cleary's sentence," appeals court Judge Paul Mathias wrote in a eight-page decision Monday. Appellate judges Edward Najam and Melissa May concurred.

Posted by Marcia Oddi on Wednesday, May 23, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court sets date for Lambert execution

An AP report begins:

The Indiana Supreme Court has again set an execution date for Michael Allen Lambert, who was convicted in the shooting death of a Muncie police officer more than 16 years ago.

The state’s high court also issued two rulings today denying death penalty appeals of Frederick Michael Baer, condemned for the murders of a woman and her 4-year-old daughter at their home near Lapel; and of Wayne Kubsch, who had been tried twice in St. Joseph County and sentenced to die for a triple murder.

In a ruling dated Monday, the state Supreme Court denied Lambert’s latest appeal and ordered a new execution date of June 15.

Here is a link to the Supreme Court's May 21st order in Lambert v. State. Shepard, C.J., and Dickson and Sullivan, J., concur. Boehm, J., concurs in result with separate opinion that concludes:
In sum, I regretfully conclude that this Court’s 1996 exercise of its power to review and revise and its 2005 rejection of Lambert’s claim based on Saylor, foreclosed all issues now presented to us. Although I disagreed with those decisions, they remain the decisions of this Court, and I therefore concur in the denial of permission to file a successive petition for post-conviction relief.
Rucker, J., dissents with separate opinion that reads in full:
Lambert seeks to challenge his sentence of death by requesting permission from this Court to file a second successive petition for post-conviction relief. I would have granted his request to file the first successive petition. See Lambert v. State, 825 N.E.2d 1261, 1265 (Ind. 2005) (Rucker, J., dissenting). Because I continue to believe that Lambert’s sentence of death is constitutionally infirm under both State and Federal constitutions, I would grant the request in this case. Therefore I respectfully dissent.
The Baer and Kubsch rulings mentioned in the AP story may be found summarized in this May 22nd ILB entry.

Posted by Marcia Oddi on Wednesday, May 23, 2007
Posted to Ind. Sup.Ct. Decisions

Environment - Update on Wabash Environmental trial begins in federal court in Indianapolis

Updating this ILB entry from Monday, May 21st, it looks like Deb McKee of the Terre Haute Tribune-Star is providing continuing coverage of the case.

This story, from May 21st, is headlined "Jury selected for Hagerman trial; opening arguments begin today."

This very long and detailed, and interesting, story, dated May 22nd and headlined "Witness: Hagerman destroyed records: Ex-WET employee testifies she knew ‘things aren’t right,’" reports:

INDIANAPOLIS — During the first day of witness testimony Tuesday in the federal trial of Derrik Hagerman and Wabash Environmental Technologies LLC, a former WET employee said Hagerman destroyed lab records that documented high levels of pollutants being discharged into the Wabash River in 2004.

Lahn Neill, a chemist who worked as a lab technician with WET for almost two years, said she gave the documents and notebooks to her boss, but she kept copies because, “I was always thinking in the back of my mind things aren’t right.” * * *

The prosecution, led by Assistant U.S. Attorney Steve DeBrota, sought to show a consistent pattern of false reporting of waste water discharged by WET into the Wabash River.

David P. Mucha, special assistant to the U.S. Attorney, stated during opening arguments that Hagerman “knew exactly what he was doing – he didn’t want to face the [United States Environmental Protection Agency] to account for what he was discharging.”

The defense team of James McKinley and William Marsh cast Hagerman as the victim of a scheme by his former employees to deceive him.

“This is anything but a slam dunk case,” McKinley said during opening arguments.

Posted by Marcia Oddi on Wednesday, May 23, 2007
Posted to Environment | Ind Fed D.Ct. Decisions

Law - 7th Circuit rules that lawyer can't appeal judge's critique

The May 3, 2007 7th Circuit decision is Leslie v. Matlaw (ND Ill, ED). Judge Kanne writes:

Attorney Leslie V. Matlaw represented plaintiff Donna Seymour in this case. Ms. Matlaw, acting on her own behalf, seeks to set aside the settlement agreement reached in this case and related orders entered by the district court. Ms. Matlaw lacks standing to bring this appeal and therefore the appeal is dismissed. * * *

Ms. Matlaw seeks to overturn the April 2006 settlement agreement and Judge Cole’s November 2005 and July 2006 opinions that were critical of her conduct in this case. She argues that she is able to bring this appeal on her own behalf because: (1) Judge Cole’s opinions have negatively affected her reputation, and (2) the April 2006 settlement agreement has effectively reduced the amount of attorney’s fees and costs she would have otherwise recovered in this case. * * *

Ms. Matlaw notes that our position of limiting an appeal to monetary sanctions conflicts with the positions taken by other circuits. We recognize that other circuits allow appeals involving critical comments but those circuits have split among themselves over whether the district court must formally sanction the attorney to allow the appeal or whether critical comments by themselves, without a formal sanction, are sufficient for an appeal.

Pamela A. MacLean of The National Law Journal writes about the decision today. Some quotes:
The 7th Circuit held recently that verbal bashing of a lawyer in a published order cannot be appealed unless it comes with monetary sanctions, breaking with four circuits that allow such appeals and one that permits it only if the critique is specifically labeled a "reprimand."

The 7th Circuit ruling came in the case of Leslie V. Matlaw, a Chicago attorney accused of "being less than honest" during a settlement proceeding before U.S. Magistrate Judge Jeffrey Cole in a 2005 race discrimination case. She's currently considering her next step in the fight over a $40,000 settlement.

The 7th Circuit is the only circuit court that considers an order only damaging to a lawyer's professional reputation as never appealable, although it does leave open the possibility of relief through a writ of mandamus. The 5th and D.C. circuits allow lawyers to appeal orders finding misconduct, without the need for additional monetary sanction. In addition, the 9th Circuit allows appeals of orders that go beyond "routine judicial commentary" to find willful ethical violation.

Only the 1st Circuit limits attorney appeals to those cases in which the challenged order is expressly identified as a reprimand. Earlier this year, the 3d Circuit ruled that whenever a district court imposes sanctions on an attorney, the lawyer must be given an opportunity to be heard. It joined the 5th, D.C. and 9th circuits.

Posted by Marcia Oddi on Wednesday, May 23, 2007
Posted to Ind. (7th Cir.) Decisions

Courts - "Door opened for judicial candidates to speak out"

Torsten Ove of the Pittsburgh Post-Gazette has a long article yesterday on the impact of the recent federal district court decision in Pennsylvania enjoining that State's rules that forbid judicial candidates from making “pledges or promises” of conduct in office or statements that “commit or appear to commit” candidates on issues likely to come before them.

The article is too long to quote in full but deserves close reading, particularly because a similar federal court decision was issued here in Indiana last November. See this earlier ILB entry from May 14th on the Pennsylvania ruling, and this Nov. 14, 2006 entry on the Indiana ruling.

A few quotes from yesterday's Post-Gazette article:

As early as 1924, the American Bar Association developed a code of conduct providing that a candidate for judge "should not announce in advance his conclusions of law on disputed issues of fact to secure class support."

The ABA wanted state judges to be selected on merit, not politics.

For generations since, candidates have cited various incarnations of that rule, or similar "canons" in their states, in declining to talk about issues that matter to the public.

Although the rules have generally kept judicial election campaigns from degenerating into mud-slinging contests, they often mean the electorate chooses judges without knowing where the candidates stand.

Now Pennsylvania's rule appears to be history. * * *

Although the injunction by U.S. District Judge David Katz is temporary, it said that the plaintiffs are likely to succeed on the merits of the case. The judge cited federal decisions in Indiana, Kansas, Alaska, North Dakota and Kentucky that threw out judicial speech rules identical to Pennsylvania's.

Pennsylvania Family Institute and another reform group, Democracy Rising Pennsylvania, which filed its own federal lawsuit in Harrisburg against the conduct board, are already preparing questionnaires in anticipation that the same will happen here. * * *

Most sitting judges and candidates won't comment on the Philadelphia decision, nor will state officials, because the litigation is pending.

But one Pennsylvania judge who did speak out said he fears judicial elections will now "go negative," which has happened in other states since a landmark 2002 U.S. Supreme Court case involving the Minnesota courts.

"That Minnesota case was a disaster as far as I'm concerned," said state Supreme Court Justice Ronald D. Castille. "Once that came down, you could kind of see the handwriting on the wall."

In the 2002 case, Republican Party of Minnesota v. White, the high court overturned a Minnesota rule prohibiting judicial candidates from announcing their "views on disputed legal or political issues." * * *

"We're going to see things like what has happened in Alabama -- taking the low road [during campaigns]," he said.

It could also lead to more recusal motions to remove judges from cases and open the door for lawyers to challenge court decisions based on what a candidate for judge said on some issue before an election.

Justice Castille said he favors the current practice, in which a candidate cites his experience but not his views. That often was enough to give voters an idea of how he might rule.

For example, when he was a candidate and was asked about his position on the death penalty, he said he couldn't declare himself for or against it. But he could cite his experience as a district attorney who had pursued the death penalty in various cases.

Advocates for reform, however, say candidates should have the right to free speech like anyone else. In addition, they say many judicial candidates appear to use the canon as a default position to essentially say "no comment."

"If you don't say anything, it's easier on you," said Mr. Ledewitz, a frequent critic of the Supreme Court. "Once you start talking, it's a mess."

In the recent state Supreme Court race, Superior Court Judges Debra Todd and Maureen Lally-Green cited the rule in declining to state their views on such issues as abortion or gun control.

Posted by Marcia Oddi on Wednesday, May 23, 2007
Posted to Courts in general

Ind. Gov't. - More on: "No guns in Statehouse" policy starts June 7th; judges and legislators excepted

Updating yesterday's ILB entry, a later Indianapolis Star story added this information:

While state employees and others, including some members of the media who regularly work in the Statehouse, have swipe cards which allow access to any door, visitors will be limited to the east door, which faces Monument Circle, and the lower-level west door, which is accessible to the handicapped. The building's south door will be used as a backup entrance at peak visiting times.

Similar restrictions will be in place at the two Indiana Government Center buildings adjacent to the Statehouse beginning Jan. 8.

In addition, the tunnels which connect the Statehouse to the government centers on the west side, and with office buildings and, eventually, the Circle Centre Mall on the east side, will be locked, with only those employees with swipe cards able to use them to travel between buildings.

Niki Kelly reports today in the Fort Wayne Journal Gazette:
The Statehouse and the accompanying buildings are largely seen as office space for state employees doing governmental service work, but the public has many reasons to enter and exit the complex.

Among the reasons are obtaining background checks for employment, filing to run for election, obtaining permits to serve alcohol, paying state taxes, picking up unemployment checks and participating in Statehouse tours that are a part of a class trip.

The new rules reduce Statehouse access to two entrances – the first-floor disability-accessible door along Senate Avenue and the second-floor door along Capitol Avenue.

A third, second-floor entrance along Washington Street would be used for large crowds such as during the legislative session when rallies occur.

Each entrance will be staffed with a metal detector that visitors must walk through, as well as an X-ray machine to search bags and other items for weapons or explosives.

Those carrying weapons will be refused entry, although lawmakers and judges are exempt and can still carry firearms into the building.

A second phase of the security project will close down the two adjacent office complexes starting Jan. 1.

Thousands of employees, members of the media and various contractors will still be able to go in and out other doors via special ID access cards, and state officials concede the new regulations don’t mean the building will be 100 percent secure.

In other words, the only people who will be restricted are citizens having business with the government.

In addition to the reasons the public may need access to their state government offcies listed by Kelly in her story, other reasons include to attend public meetings such as those of any of the state boards and commissions, dealings with the business regulatory offices of the secretary of state, dealings with the attorney general's office, dealings with the clerk of the courts. One could go on and on.

One wonders if counts were done of the number of individuals who enter the statehouse complex each day to conduct business with their government.

My thoughts: These changes will work a serious inconvenience on such governmental access. I have no objection to the "no guns" policy or the metal detectors. But closing public access to the north entrance to the Statehouse, and (as has been done already) to the north entrance to the State Office Building complex, plus closing the tunnels, plus the ever-present public parking issues, means that anyone having business with their government who is familar with the new restrictions is in for a long hike, in whatever weather, to get where they are going. And, for citizens who only access their state government occasionally, the changes will simply compound their nightmare. Nearly every time I'm on a street near the Statehouse, I'm stopped by someone waving a piece of paper and wanting to know how to get to one governmental office or another. Now knowing the building won't be enough, one also has to know where the public's door is. If one is standing on Ohio Street near the canal, for instance, the entrance to the Government Center North is not the door you see, but the door on the other side of the building, a several blocks' walk away.

Posted by Marcia Oddi on Wednesday, May 23, 2007
Posted to Indiana Government

Tuesday, May 22, 2007

Ind. Decisions - Yet another Supreme Court decision today

In State Farm Mutual Auto Insurance Company and Michael Cancel v. Francisco Gutierrez, a 7page, 5-0 opinion, Justice Sullivan writes:

A passenger in a truck insured by State Farm Insurance was injured in an accident. The passenger sued both the driver for negligence and State Farm for bad faith. We affirm the trial court’s decision denying the driver’s request that the claims against him be tried separately from those against State Farm. Neither prejudice to his case nor general policy considerations overcome the fact that the driver did not file his request within the deadline set by the trial court. * * *

We think that as a policy matter, it will often be appropriate for bad faith claims to be tried separately from liability claims. But it is not too much to ask a party that seeks bifurcation to do so on a schedule designed to permit the case to proceed to trial in an orderly fashion. Given the failure of Cancel to comply with the case management order as well as the absence of any significant amount of prejudice, we are unwilling to impose a new trial upon the trial court and the parties simply to establish this new principle.

Conclusion. We affirm the judgment of the trial court with respect to its denial of Cancel’s motion to bifurcate Gutierrez’s negligence action against him from Gutierrez’s breach of contract, breach of a duty of good faith and fair dealing, and punitive damages claim against State Farm. We summarily affirm the Court of Appeals on the remaining issues.

Posted by Marcia Oddi on Tuesday, May 22, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 11 NFP)

For publication opinions today (3):

Darryl Eugene Jones v. Carolyn Louise Jones - "Darryl Eugene Jones (“Husband”) appeals the trial court’s grant of Carolyn Louise Jones’ (“Wife”) motion to correct error. We affirm. * * * As the appellant, Husband has the burden of proving that the trial court abused its discretion, and we look at the record to determine if (a) the trial court abused its judicial discretion; (b) a flagrant injustice has been done to the appellant; or (c) a very strong case for relief has been made by the appellant. * * * Husband has failed to carry his appellate burden."

Santiago Perez v. State of Indiana - "We find that a defendant may in a plea agreement waive his right to a direct appeal of his sentence. We conclude Perez’ waiver of his right to direct appeal of his sentence was valid. We, therefore, further conclude the court did not err in denying his petition without a hearing. Affirmed."

Garland E. Walton, III v. State of Indiana - "On appeal Walton contends his plea was not voluntary because the state breached the plea agreement. He asks that the guilty plea be set aside. He has chosen the wrong vehicle by bringing a belated direct appeal. * * * Since Walton’s sole contention is that his plea was involuntary, it follows that no potential relief may be afforded by a direct appeal. The appeal is therefore dismissed."

NFP civil opinions today (3):

Jesse Briones, Jr. v. Theresa Briones (NFP) - "Jesse Briones appeals the trial court’s denial of his motion for relief from judgment. Briones raises one issue, which we revise and restate as whether the trial court abused its discretion by denying his motion for relief from judgment. We affirm. * * * Because the trial court entered the order denying Briones’s petition at the hearing in Briones’s presence, Briones had notice of the trial court’s ruling, and we see no reason to justify allowing Briones to delay filing a notice of appeal within thirty days of the date of the March 3, 2006 hearing. Thus, even assuming, without deciding, that Briones filed his notice of appeal on April 7, 2006, his notice of appeal was after the thirty-day deadline. Therefore, Briones forfeited his appeal."

Annette Roby v. U.S. Steel (NFP) - "Annette Roby appeals the Worker’s Compensation Board’s (the “Board”) decision to affirm the single hearing member’s determination of permanent partial impairment for an injury she sustained while working for her former employer, U.S. Steel. Roby’s restated issue on appeal is whether the Board erred when it did not find a permanent total disability. We affirm."

In the Matter of the Termination of the Parent-Child Relationship of C.F.; Nakkai Furkin v. Bartholomew County Department of Child Services (NFP) - involuntary termination, affirmed.

NFP criminal opinions today (8):

Randy Spangler v. State of Indiana (NFP)

Patrina Hall and Brian K. Hall v. State of Indiana (NFP)

Nick C. Bigsby v. State of Indiana (NFP)

Donte Gaskins v. State of Indiana (NFP)

Stanislaw Gil v. State of Indiana (NFP)

Jose Humberto Arevalo v. State of Indiana (NFP)

Eric Smith v. State of Indiana (NFP)

Kenneth Jay Rickerd v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 22, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two more today from the Supreme Court

In Adrian Reed v. State of Indiana, a 4-page, 5-0 opinion (J. Rucker concurs in result witout separate opinion), Chief Justice Shepard writes:

Appellant Adrian Reed sought post-conviction relief, claiming as freestanding issues two contentions about his sentence. The Court of Appeals addressed both claims on the merits. Reed’s lawyers and the court thus converted the post-conviction process into a “super appeal.” We grant transfer. * * * We thus affirm the denial of Reed’s PCR petition.

In Eddie Cannon v. State of Indiana, a 6-page, 5-0 opinion, Chief Justice Shepard writes:

Eddie Cannon was convicted of operating a vehicle after his license was forfeited for life and was sentenced to five years in prison. The Court of Appeals affirmed the conviction and sentence. Cannon v. State, 839 N.E.2d 185 (Ind. Ct. App. 2005). We grant transfer solely to address a claim about ex parte communication. * * *

[Here the trial judge read the file of a prior conviction of defendant and the trial judge stated at sentencing:]

I am noting the Court’s own hand notes from the Court 6 case that indicates on 7/25/03 and this is a direct quote from the judge, Judge Barker, “If he messes up off to DOC. Can’t use his wife’s hardship again.” The prior judge gave me notice that you would likely bring your wife in here to make the same plea in an effort to get leniency.
[The opinion continues with a thorough discussion of ex parte judicial cotacts and concludes:] Cannon cannot be heard to complain that, when he asked for yet another alternative sentence based on his wife’s hardship, Judge Marchal did not turn a blind eye to the fact that Cannon successfully made the same plea during a prior hearing on a case in which Judge Marchal was ruling at that moment.

Posted by Marcia Oddi on Tuesday, May 22, 2007
Posted to Ind. Sup.Ct. Decisions

Law - "U.S. Supreme Court to Address State Tax Breaks for Bonds"

Linda Greenhouse of the NY Times reports today in a story that begins:

In a case with the potential to rattle, if not reshape, the market for state and municipal bonds, the Supreme Court agreed on Monday to decide whether states can continue to exempt interest on their own bonds from their residents’ taxable income, while taxing the interest on bonds issued by other states.

The preferential tax treatment for in-state bonds is longstanding and very common, offered by nearly all the states that have an income tax. State and local governments issued more than $350 billion worth of bonds a year from 2002 to 2006.

The practice was, in fact, largely taken for granted until it was declared “facially unconstitutional” in January 2006 by the Kentucky Court of Appeals. That state court, ruling in a case brought by a Kentucky couple, George and Catherine Davis, who own bonds issued by other states, said the preferential tax treatment erected a barrier against interstate commerce in violation of the Constitution’s commerce clause.

The Wall Street Journal has a report ($$$) by Tom Herman that includes the following:
"This is an issue of great national importance that involves many investors in state and local bonds," said Peter Faber, a New York City lawyer at McDermott Will & Emery in New York. Nearly 4.5 million investors reported tax-exempt interest income for 2005, according to the latest Internal Revenue Service data.

State and local government leaders also are monitoring the case closely because of its potential impact on the $2.4 trillion municipal-bond market, a vast fund-raising tool not only for states but for local governments, school districts and many other jurisdictions. John Farris, Kentucky's Finance and Administration Cabinet secretary, said yesterday that "we are thrilled" the Supreme Court has agreed to hear the case and that the outcome "has broad implications for the municipal-bond market at large, far beyond Kentucky's borders."

Posted by Marcia Oddi on Tuesday, May 22, 2007
Posted to General Law Related

Ind. Decisions - Supreme Court decides three today

In Fredrick Michael Baer v. State of Indiana, an 18-page opinion, Justice Dickson writes:

Fredrick Michael Baer was sentenced to death following his convictions for two murders and the jury's unanimous recommendation that he receive the death sentence. His direct appeal asserts the following claims of error: (1) prosecutorial misconduct; (2) erroneous admission of recorded telephone calls from jail; (3) trial court failure to comply with proper procedures in handling prospective jurors; and (4) inappropriateness of the death sentence. We affirm the judgment of the trial court. * * *

Sullivan, Boehm, and Rucker, JJ., concur. Shepard, C.J., concurs with separate opinion:

For the last several decades at least, Indiana law has assigned to judges the duty to decide sentences in criminal cases. Appellate court review of such trial court decisions has been highly deferential, but we have undertaken to review and revise sentences when persuaded that the trial court’s sentence is “inappropriate.”

As for death penalty and life without parole cases, the legislature has now largely shifted the sentencing decision from judges and assigned it instead to juries. I am inclined to think that we should be even less ready to set aside the sentencing judgment of jurors, and that the standard we adopted during the era of judicial sentencing should probably not apply to second-guess Indiana juries.

The parties here have not joined this question, however, and there appears no reason to reverse the jury’s decision. Accordingly, I join in the Court’s opinion.

In Alberici Constructors, Inc. v. Ohio Farmers Insurance Company, an 11-page, 4-1 Certified Question from the ND Ind., William C. Lee, Judge, Chief Justice Shepard writes:
The U.S. District Court for the Northern District of Indiana has certified to us a question of Indiana law, pursuant to Indiana Appellate Rule 64:
Does a performance bond required by and issued in accordance with Ind. Code § 8-23-9-9 afford coverage to a third-tier claimant?
We now answer that Ind. Code § 8-23-9-9 does not afford coverage to claimants who do not have privity of contract with the general contractor or a subcontractor. * * *

We hold that for purposes of Ind. Code § 8-23-9-9, “subcontractor” is any person or organization entering into a contract with a contractor to furnish labor and materials used in the actual construction of a state highway project. Accordingly, a claimant who does not share privity of contract with the contractor or a subcontractor is not entitled to the coverage of a performance bond issued under § 8-23-9-9.

Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J., dissents without separate opinion.

In Wayne Kubsch v. State of Indiana, an 18-page, 5-0 opinion, Chief Justice Shepard writes:
Appellant Wayne Kubsch has been tried twice for triple murder. Two juries found him guilty and both juries recommended the death penalty. This appeal arises from his second trial. Among other claims, he contends that the trial court erred in failing to appoint a special prosecutor to the case because St. Joseph County Prosecutor Michael Dvorak had a previous professional relationship with a witness who testified against Kubsch. We conclude that a special prosecutor was not necessary because no actual conflict existed between Dvorak and his duties to his former client, to Kubsch, or to the citizens of St. Joseph County.

Posted by Marcia Oddi on Tuesday, May 22, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - New judges in Lake and Clark Counties

Today in the NWI Times Bill Dolan reports:

CROWN POINT | The newest member of the Lake County Judicial Nominating Commission is coming on board just in time to help select the county's newest judge.

Bishop Tavis Lane Grant, of the Greater First International Church of East Chicago, takes the place of former commission member Roosevelt Powell. Powell resigned earlier this month in the wake of his indictment on federal public corruption charges.

Grant joins the commission as it meets Monday and today to select a new Lake Superior Court Civil Division judge.

The nine-member body led by Indiana Supreme Court Justice Robert Rucker and made up of four lawyers and four lay people began interviewing 23 attorneys Monday. Those attorneys have applied to fill the judicial vacancy left by the March 6 death of Judge Robert A. Pete. * * *

The commission is likely to name three finalists today and forward their names to Gov. Mitch Daniels. The governor could make the final selection as early as next month.

Today in the Louisville Courier Journal Ben Zion Hershberg reports:
Clark County's judges have chosen Bill Dawkins as the county's second magistrate, a position approved this year by the General Assembly to relieve caseloads.

A recent analysis by the state court system estimated that eight judges are needed in Clark County, which currently has four state court judges and one magistrate.

"I always wanted to be a judge," Dawkins said yesterday, "but I am not a big fan of politics and didn't want to run for office."

So Dawkins, 36, applied for the new magistrate's position, which pays $90,000 a year from the state plus a $5,000 county government supplement.

The magistrate is chosen by the local judges, serves at their pleasure with no term limit, and handles cases and hearings they delegate to him.

Judge Vicki Carmichael of Clark Superior Court 1 said Dawkins was chosen unanimously Thursday from among 13 candidates. He takes office July 1.

"One of the things that really stood out is that he is conversant in Spanish," Carmichael said. She said knowledge of Spanish has become important in the county's courts.

Posted by Marcia Oddi on Tuesday, May 22, 2007
Posted to Indiana Courts

Ind. Law - More on: Uzelac's name ordered removed from May 8 primary ballot

Deboraah Laverty of the NWI Times reports:

MERRILLVILLE | Town Councilman David Uzelac said Tuesday he is appealing a mid-April decision by Lake Circuit Court Judge Lorenzo Arredondo that declared him ineligible to run for public office because of a past criminal record.

"I'm going to give it a shot for justice," Uzelac said.

If he wins his appeal, Uzelac said he hopes to run in the fall election as an independent for his council seat because he already was barred from running as a Democrat in the May 8 primary.

Uzelac's lawyer, Michael Bosch, confirmed he mailed an appeal Thursday to the Indiana Court of Appeals. He said the entire process could take from a few weeks to a year.

Bosch said given the tight time line, Uzelac might not have sufficient time to file for the fall election -- even if he wins his appeal.

The deadline to file as an independent is noon July 2, Lake County election officials said.

"Everything would have to work out perfectly. ... It was important for David. This is about the rest of his life," Bosch said.

From Steve Walsh's story in the Gary Post Tribune:
David Uzelac has appealed the court decision that left him off the Democratic primary ballot earlier in the month.

A member of the Merrillville Town Council, Uzelac was caught by a 2005 state law that did not allow candidates to seek office if they were convicted of a felony that was reduced to a misdemeanor. Uzelac was convicted of a 1984 robbery of a Merrillville restaurant, which the judge reduced to a misdemeanor at sentencing.

The law caught not only Uzelac but East Chicago City Council member Jesse Gomez. Both were removed from the ballot prior to the May primary.

"The problem for David Uzelac is this impacts the rest of his political life," said attorney Michael Bosch.

Bosch said his client isn't necessarily seeking to overturn the results of the primary. Instead, he is challenging the law to regain his ability to run in the future.

Circuit Court Judge Lorenzo Arredondo ordered Uzelac stricken from the ballot. The court of appeals is required to take the case.

The appeal, filed last week with the Indiana Court of Appeals, argues the law violates Article 2 Section 8 of the Indiana Constitution. The General Assembly has the right to bar members convicted of "infamous crimes," which Uzelac's lawyers believe include felonies, not misdemeanors, Bosch said.

"We thought that was a more effective argument than that they changed the rules in the middle of the game," Bosch said.

Based on the law, Uzelac's primary opponent, Tom Goralczyk, successfully filed to have him removed from the ballot. He went on to win the Democratic nomination for Uzelac's seat.

See a number of earlier ILB entries here.

Posted by Marcia Oddi on Tuesday, May 22, 2007
Posted to Indiana Law

Law - Update on efforts to receive compensation for land taken to build Kentucky Camp Breckenridge

The ILB has had four earlier entries about Kentucky families' "long legal fight to get compensation for land taken from their families by the federal government to make way for a World War II training camp." The most recent, from Jan. 30, 2007, reported that former Justice Sandra Day O'Connor had agreed to mediate the dispute.

Today, Brett Barrouquere of the AP reports in a story that begins:

Negotiations have collapsed between a group of former Western Kentucky landowners and the U.S. government in a dispute over land taken for what became a military camp during World War II.

Attorney Nancie Marzulla, who represents more than 1,000 heirs of the former landowners, said there are issues with the government that are "hopelessly irreconcilable."

"We didn't want to waste any more time or the mediator's time," Marzulla said.

The government took some 36,000 acres of property in 1942 for use as a World War II training facility called Camp Breckinridge. The former landowners and their heirs claim the government promised them a chance to buy back the land -- an opportunity they were never granted.

Former U.S. Supreme Court Justice Sandra Day O'Connor was named as a mediator in the dispute in February.

Posted by Marcia Oddi on Tuesday, May 22, 2007
Posted to General Law Related

Ind. Courts - Toaster fire interrupts day at Porter County courthouse; wedding slightly delayed

Ken Kosky of the NWI Times reports:

When a fire broke out in a Porter County Courthouse kitchenette Monday afternoon, Porter County Clerk Dale Brewer had one of her employees call 911 and another bring her a fire extinguisher.

Brewer then used the extinguisher to put out the fire, which began in the clerk's office toaster oven and spread to the cabinet.

"I wasn't going to leave until (the fire) was out," Brewer said, adding the files and records her office keeps are irreplaceable.

Valparaiso firefighters arrived to ventilate the smoke and make sure the fire had not spread. The building was evacuated from 12:40 p.m. to 1:20 p.m., at which time some of the workers who enjoyed 40 minutes in the sunshine lamented the fact they had to go back inside. * * *

The evacuation not only delayed some courthouse business, it also caused a 40-minute delay in the courthouse wedding of Portage residents Jay and Kerry Buscemi.

The grateful couple finally said "I do" and lingered in Porter Superior Court Judge David Chidester's courtroom for pictures and to consider the start of their life together.

"We survived a burning building already," Jay Buscemi said.

Chidester -- who came in on Valentine's Day a few months ago to fulfill wedding wishes even though the courthouse was closed due to a winter storm -- said nothing was going to stop the Buscemis' wedding. "I'd have done it on the lawn if I had to," Chidester said.

(See the Feb. 15th ILB entry headed "Winter snow, cold doesn't keep Cupid from Porter County Courthouse" here.)

Posted by Marcia Oddi on Tuesday, May 22, 2007
Posted to Indiana Courts

Ind. Gov't. - "No guns in Statehouse" policy starts June 7th; judges and legislators excepted

Mary Beth Schneider of the Indianapolis Star writes today:

Pistol-packing tourists at the Statehouse soon will have to leave their guns at home.

Lawmakers and judges, however, will be exempt from new Statehouse security restrictions that go into effect June 7.

The Statehouse -- which includes the governor's and lieutenant governor's offices, the legislature and the Indiana Supreme Court -- has been wide open, with no metal detectors and numerous entrances.

Under the new policy, guns will be banned, and visitors will have to pass through metal detectors. Bags will be scanned by X-ray machines. In addition, visitors will be limited to two doors -- the east door, which faces Monument Circle, and the lower-level west door, which is the handicap-accessible entrance. [emphasis added]

The ILB has had a number of earlier entries on the proposed ban - here is a list.

This Sept. 9, 2006 entry includes the Washington Post report on an incident involving Delaware legislator, Jack Reid:

But something went wrong Thursday. Reid's pistol, which he said he carries for protection, fired as he popped the clip from the handle, sending a single bullet into the cushion of a bulletproof vest that was hanging from the back of his closed office door.
[More] I 've tried to search for the new rule using the terms "gun" "handgun" "statehouse", at the Online Indiana Register search site, without success.

Posted by Marcia Oddi on Tuesday, May 22, 2007
Posted to Indiana Government

Ind. Decisions - Update on: Spencer County adult business ordered to close

As reported in this ILB entry from May 19th, a contempt of court hearing was scheduled for yesterday, Monday, in Spencer Circuit Court. Today Kate Braser of the Evansville Courier & Press reports:

A judge is deciding whether owners of an adult business in Spencer County will be forced to pay thousands of dollars in fines for allegedly remaining open, despite a court order to shut down. * * *

On Monday, attorneys representing the business and the county met for a hearing in Roell's courtroom.

In a previously filed motion, the attorneys allege the business is in contempt of court because it has remained open and continues to sell pornographic items and showcase an adult cabaret featuring seminude dancers.

Santa Claus, Ind., police officer Matt Conen testified during the hearing about infractions of the court order he observed during two visits to the business in April.

Conen said based on his observations, more than 90 percent of the displayed merchandise included sexually explicit items, and he saw female exotic dancers exposing themselves and performing lap dances. * * *

Scott Bergthold is one of three attorneys representing Spencer County in the case.

He said during Monday's hearing, an administrator for the county's plan commission also testified that the business is not licensed to operate an adult motel on the property.

"The defense put on a witness and investigator who had taken pictures of things that were not adult merchandise," Bergthold said.

In cross-examination, Bergthold asked the defense team's investigator how many pictures he took in the store.

"He said he'd taken 72 pictures, but he only turned in 11," Bergthold said. "So I guess those other 61 pictures not submitted in court were all the porn. I don't think his testimony was really persuasive."

Roell took the details of the hearing under advisement, but said it shouldn't take long to issue a ruling.

An AP story today in the Louisville Courier Journal includes this:
ROCKPORT, Ind. -- A judge made no ruling yesterday after a contempt of court hearing over a possible fine for the owners of a Southern Indiana adult bookstore ordered to stop operating as a sexually oriented business.

Spencer Circuit Judge Wayne Roell took the matter under advisement, and an attorney representing Spencer County said he expects a ruling in two or three weeks.

Posted by Marcia Oddi on Tuesday, May 22, 2007
Posted to Ind. Trial Ct. Decisions

Law - More on: Louisville's "Jewish Hospital sues lawyers who unsuccessfully sued it"

Updating the Louisville Courier Journal story from May 16th, Andrew Wolfson reports today:

Two lawyers say their unsuccessful lawsuits against Jewish Hospital were justified by hundreds of reports of unsanitary conditions from patients, employees, government regulators and the hospital itself.

Attorneys Joseph White and Michael O'Connell had alleged that unclean conditions caused infections resulting in illnesses and death.

Jewish Hospital & St. Mary's Healthcare Inc. sued the lawyers May 1, alleging that they had tarnished its reputation in comments to news organizations and abused the legal process by trying to force settlements through adverse publicity. * * *

White and O'Connell filed 96 lawsuits, of which 84 have been dismissed, most of them after the lawyers said they couldn't afford to continue. Two suits were dismissed by judges on their merits.

The hospital's suit also claims the lawyers "intentionally misrepresented and concealed material facts" and that none of the lawyers' expert witnesses could prove the hospital caused the infections." In an unusually elaborate answer filed in Jefferson Circuit Court, White pointed to internal hospital reports, which mention problems with "improper disposal of hazardous waste" and "work surfaces left contaminated with visible blood and body fluids."

He also cited the deposition testimony of a hospital cleaning supervisor who said rooms often weren't cleaned properly because new patients had to be rushed into them. * * *

O'Connell, a former circuit judge who joined the cases after most of the suits were filed, moved on Friday to dismiss the hospital's suit in part based on his limited role. * * *

O'Connell's motion likened Jewish Hospital's suit to retaliatory claims used by polluters to punish lawyers fighting for justice for neighbors afflicted by toxic waste.

"Our system of jurisprudence has evolved to where it protects lawyers who seek to make a difference," the motion says. "Kentucky's court system favors judicial access and disfavors maneuvers aimed at stifling potentially meritorious claims."

Weiss said in an interview that White and O'Connell don't have to prove that the allegations in their suit were true -- that the unsanitary conditions caused their clients' injuries -- but instead only that they had a good-faith belief that the connection could be proved.

"The purpose of a lawsuit is to find out what happened," [White's lawyer, Gary] Weiss said. "If a lawyer had to prove a suit before it was filed, there would be no reason to file it."

Posted by Marcia Oddi on Tuesday, May 22, 2007
Posted to General Law Related

Monday, May 21, 2007

Ind. Law - Ind. Dept. of Revenue issues new Power of Attorney form

The Ind. Dept. of Revenue has issued this communication to the ISBA:

Good afternoon.

The Indiana Department of Revenue has issued a revised Power of Attorney (POA-1) form and adopted new procedures for accepting POA authorizations.

We want to make particularly sure that tax practitioners and legal consultants are aware of the revised form and procedures, as they are the most likely to use the form on behalf of their clients.

The Indiana Department of Revenue would greatly appreciate it if you could share this information with your association members. Below is ready-to-publish information about the form and procedures, if you so choose to share with your membership.

Thank you, in advance, for your help in communicating this important information. Please let me know if you have any questions or concerns.

Stephanie McFarland, APR
Director, Public Relations
Indiana Department of Revenue
(317) 234-3793

Here is the descriptive information:
New Power of Attorney Form and Procedures

Effective May 21, 2007, the Indiana Department of Revenue issued a revised Power of Attorney (POA-1) form and adopted new procedures for accepting POA authorizations. The new form and procedures are intended to balance the need to ensure taxpayer information is secure with the need representatives have in assisting their clients.

Taxpayers wishing to authorize a representative to have Power of Attorney on their behalf for state tax matters need to know the following:
  • A properly completed POA-1 form must be submitted in one of the following formats to the Department of Revenue:
    • Hardcopy original.
    • A faxed copy.
    • A signed, electronic image (PDF, JPEG, GIF, etc.) of the form.
  • Only when the Department has received the properly completed POA-1 can a Department employee speak with the representative about the specific tax type and period indicated in the POA-1 form.
  • The POA-1 form does not need to be notarized.
Please note the new fax number, as well as e-mail and mailing addresses of where to submit the new POA-1 form.

Mailing Address:
Indiana Department of Revenue
P.O. Box 7230
Indianapolis, IN 46207-7230
Fax Number: (317) 615-2736
E-mail: webmaster@dor.in.gov

Posted by Marcia Oddi on Monday, May 21, 2007
Posted to Indiana Law

Ind. Decisions - No transfer list for week of May 18th

No transfer list was produced last week. Look for one later this week.

Posted by Marcia Oddi on Monday, May 21, 2007
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

For publication opinions today (3):

James E. Cox v. Kandice A. Cantrell - a 22-page opinion: "We conclude that the trial court’s order transferring jurisdiction of the custody proceedings to the Michigan court was not contrary to either Indiana or Michigan law, that its telephonic conference with the Michigan court did not violate Father’s due process rights, and finally that the trial court did not commit prima facie error in transferring jurisdiction of the case to Michigan. Affirmed."

E. Mitchell Roob, Jr., et al. v. Jannis Fisher, et al. - "In our original published opinion, we concluded that neither Medicaid Providers nor Recipients have a private right of action pursuant to Section 1983. Roob v. Fisher, 856 N.E.2d 723 (Ind. Ct. App. 2006). The Appellees have filed a petition for rehearing in which they point out that the State conceded the issue of Recipient standing at the trial court level. Moreover, the State did not explicitly challenge the Recipients’ standing in its opening appellate brief. We concluded in our original opinion that the State’s limited mention of the Recipients in its opening brief was sufficient to keep the issue alive. Id. at 732-33. In light of the State’s concession below, however, we now find that it has waived the issue of the Recipients’ standing. Thus, we grant rehearing for the limited purpose of vacating that portion of our original opinion that holds that the Recipients do not have standing in this matter. In all other respects, we deny the petition for rehearing."

In Joel M. Schumm v. State of Indiana, a 27-page opinion in which attorney and IU Law prof Joel Schumm represented himself, Judge Robb writes:

Following a jury trial, Joel M. Schumm appeals the determination that he operated a vehicle with improper taillights, a Class C infraction. On appeal, Schumm raises six issues, which we expand and restate as:
1. whether the trial court properly denied Schumm’s motion for summary judgment;
2. whether the trial court properly denied Schumm’s Batson challenge;
3. whether the trial court abused its discretion in excluding evidence relating to the United States Department of Transportation (the “DOT”) regulations, and refusing to instruct the jury on these regulations;
4. whether the trial court abused its discretion in refusing Schumm’s tendered instructions relating to the civil nature of the case;
5. whether the trial court abused its discretion in excluding evidence relating to the Fort Wayne Police Department’s (the “FWPD”) Standard Operating Procedures (“SOPs”);
6. whether the trial court properly refused to allow Schumm to proceed pro se and with co-counsel; and
7. whether the trial court abused its discretion in allowing a deputy prosecutor to testify regarding discussions with Schumm.

We conclude that the trial court properly denied Schumm’s motion for summary judgment, but that it improperly overruled his Batson challenge. Therefore, we must remand for a new trial. Because the remaining issues are likely to recur on remand, we will discuss them as well, although they are not necessary to our decision to reverse. * * *

After the trial court refused to grant the State’s attempt to strike juror number 6 for cause, the State used one of its peremptory challenges to strike the juror. Then, the following exchange took place:

Schumm: I would make a Batson challenge. She’s the only African American on the jury.
Court: Are you an African American?
Schumm: No, but I have the right to assert that regardless of - -
Court: How?
Schumm: The U.S. Supreme Court has said so, Your Honor. A number of causes can raise a Batson challenge. Third party standing, even if on behalf of the juror.
State: I’ll have to re-read Batson. That’s not my understanding * * *
Conclusion We conclude that the trial court properly denied Schumm’s motion for summary judgment, but that it improperly denied Schumm’s Batson challenge. Therefore, we reverse and remand for proceedings consistent with this opinion.
NFP civil opinions today (5):

Richard Brown v. Kristi Brown (NFP) - custody, affirmed.

Mark and Marcia LaForest v. Rosemark Homes of South Bend (NFP) - real estate contract.

Adoption of T.S.N., Patrick Vestal v. Mathew Scott Nordhoff (NFP) - "[W]e conclude that Nordhoff established Vestal failed to communicate significantly with T.S.N. for a period of at least one year, and therefore, Vestal’s consent to adoption was not required pursuant to Indiana Code section 31-19-9-8(a)(2)."

Robert and Barbara Williams v. Keystone RV (NFP) - breach of warranty claim.

Charles W. Koehler v. William H. Culpepper, Jr. (NFP) - this is a 2-1 NFP decision. Chief Judge Baker's opinion begins:

Appellant-third-party-plaintiff Charles W. Koehler appeals from the trial court’s dismissal of his third-party complaint against appellee-third-party-defendant William H. Culpepper, Jr. Koehler raises a number of arguments, one of which we find dispositive—that Koehler’s claims against Culpepper arise under the employment agreement between Koehler and his employer, SePRO Corporation (SePRO) such that Culpepper is required to submit to binding arbitration. Finding that Koehler’s third-party claims do not fall under the scope of the employment agreement, we affirm the judgment of the trial court.* * *

Judge Friedlander's 4-page dissent begins:] I believe Koehler’s claims arise under the written Agreement and therefore should be submitted to arbitration per that agreement. I respectfully dissent from the Majority’s ruling to the contrary.

NFP criminal opinions today (8):

State of Indiana v. Wilburn R. Adams (NFP) - "The State of Indiana appeals from the Jay Superior Court’s grant of a suppression motion filed by Wilburn R. Adams (“Adams”). The State raises one issue, which we restate as: whether the trial court erred when it suppressed evidence of a warrantless blood draw. Concluding that the investigating police officer did not have probable cause to believe that Adams was driving while intoxicated when he offered Adams a chemical test, we affirm."

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

Christopher Kinds v. State of Indiana (NFP)

Darrell Warren v. State of Indiana (NFP)

Ronald R. Klemmeck v. State of Indiana (NFP)

Charles Cleary, Jr. v. State of Indiana (NFP)

William L. White, Jr. v. State of Indiana (NFP)

Adrian D. Riggs v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, May 21, 2007
Posted to Ind. App.Ct. Decisions

Courts - Parents of a disabled child do not need an attorney to represent child [Updated]

From the AP coverage of the oral argument before the U.S. Supreme Court last February: "Parents should not be forced to hire a lawyer to sue public school districts over their children's special education needs, the lawyer for parents of an autistic child told the Supreme Court Tuesday." (The ILB had several entires on this case - start here.)

Today the Supreme Court ruled, as reported in SCOTUSblog:

In the second ruling of the day, the Court decided that parents of a disabled child have an independent right to enforce the federal law on public education of children with disabilities. Thus, they do not have to have an attorney. The rights of the parents, the Court found, are independent of those of their child. Seven Justices joined fully in the ruling, and two partially dissented, in Winkelman v. Parma School District (05-983).
Here is initial AP coverage of today's ruling.

[Updated 5/22/07] "High Court Rules Parents Can Litigate on Behalf of Child's Educational Needs" is the heading to a story today by Tony Mauro of Legal Times.

Posted by Marcia Oddi on Monday, May 21, 2007
Posted to Courts in general

Ind. Decisions - 7th Circuit rules in Indiana police chase case

In Steen v. Myers (ND Ind., Theresa L. Springmann, Judge), a 14-page opinion, Judge Kanne writes:

The plaintiffs in this combined appeal represent the interests of a young man who was killed and a young woman who was rendered disabled in a motorcycle accident that occurred during a police chase. They brought suit in the state courts of Indiana, combining both federal and state law claims. The defendants removed the cases to the federal court. The district court entered summary judgment in favor of the defendants on the federal claims and remanded the state law claims to the state courts. The plaintiffs appeal. We affirm.
The U.S. Supreme Court's recent 4th amendment decision in a police chase case, Scott v. Harris, is cited once in this opinion, on p. 7. The 7th Circuit concludes: "In the end, we agree with the district court that no reasonable jury could find that Myers violated the appellants’ Fourth Amendment rights." Per the 14th amendment issues, the opinion states:
The parties agree that our consideration of § 1983 claims in the context of a police chase of a motorcycle is largely controlled by the Supreme Court’s holding in County of Sacramento v. Lewis, 523 U.S. 833 (1998). * * *

The parties’ arguments on the Fourteenth Amendment claim are more robust, and we turn now to that question. Lewis establishes a heavy burden for a plaintiff to bear when making a § 1983 claim based on the Fourteenth Amendment. “To this end, for half a century now we have spoken of the cognizable level of executive abuse of power as that which shocks the conscience.” Lewis, 523 U.S. at 846. The district court found that the conduct in question did not rise to the level of shocking the conscience and entered summary judgment for the defendants. * * *

III. CONCLUSION. The Supreme Court has set the bar awfully high in pursuing a Fourteenth Amendment claim that arises out of a police chase. There might be questions on this record as to whether Myers was negligent, reckless, or even deliberately indifferent to the safety of Hilbert and Philebaum, but under the standard set forth in Lewis those questions are reserved to the state courts and the law of tort. Under a standard that requires conscience shocking behavior and an intent to cause harm unrelated to a legitimate government interest, the district court was correct that the defendants were entitled to judgment as a matter of law on the claims under 42 U.S.C. § 1983. Accordingly, the decision of the district court is AFFIRMED.

For background on police case cases in Indiana, start with this May 1st ILB entry.

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

Ind. Decisions - "As it stands today, we are bound by these authorities as Supreme Court precedent"

Here is a quote from our Supreme Court's May 17th decision in Ahmad Edwards v. State:

Here we have a determination by an experienced trial judge that Edwards was incapable of presenting a defense. That determination is necessarily based on factors better evaluated by, as Justice Breyer put it, “judges closer to the firing line.” Martinez, 528 U.S. at 164. We have sympathy for the view that a trial court should be afforded some discretion to make that call. The record in this case presents a substantial basis to agree with the trial court and thus presents an opportunity to revisit the holdings of Faretta and Godinez, if the Supreme Court of the United States decides that is to be done. However, as it stands today, we are bound by these authorities as Supreme Court precedent. Accordingly, we hold that because Edwards was found competent to stand trial he had a constitutional right to proceed pro se and it was reversible error to deny him that right on the ground that he was incapable of presenting his defense.
Today Jon Murray of the Indianapolis Star writes:
The state's efforts to keep a schizophrenic Indianapolis man from representing himself at his trial could end up under review by the U.S. Supreme Court.

Lawyers for Indiana's attorney general are studying a state Supreme Court ruling last week that overturned Ahmad Edwards' convictions for attempted murder and battery. He had tried repeatedly to spurn his public defenders and represent himself in a case that stemmed from a lunch-hour shooting outside Circle Centre mall.

But a Marion Superior Court judge denied those requests. Judge Grant Hawkins found Edwards competent to be tried but not to represent himself, ruling that his mental health problems would make an adequate defense too difficult.

The Indiana Supreme Court ordered a new trial, echoing a similar Indiana Court of Appeals ruling issued in September.

Both cited U.S. Supreme Court decisions that make it clear defendants can represent themselves as long as they are found competent to stand trial and understand the consequences they face.

No other restrictions apply -- though the Indiana justices signaled the case might be ripe to challenge the previous rulings that forced them to side with Edwards.

A sidebar to the Star story notes:
The Indiana Supreme Court relied primarily on two U.S. Supreme Court rulings.

In Faretta v. California (1975), it ruled defendants can "knowingly and intelligently" give up their right to an attorney.

In Godinez v. Moran (1993), it established that defendants must be competent to waive their right to an attorney, but not competent enough to represent themselves.

Here are the earlier ILB entries, from May 17th and May 18th.

Posted by Marcia Oddi on Monday, May 21, 2007
Posted to Ind. Sup.Ct. Decisions

Environment - Wabash Environmental trial begins in federal court in Indianapolis

The Terre Haute Tribune-Star reports today:

The trial of Wabash Environmental Technologies LLC begins today with jury selection in federal court in Indianapolis.

Derrik Hagerman, president and owner of WET, was indicted last September on 36 felony violations of the federal Clean Water Act for allegedly creating false reports of analytical results of wastewater discharged into the Wabash River.

Hagerman faces a maximum of 72 years in prison and up to $900,000 in fines.

U.S. District Judge David F. Hamilton will preside over the trial, which will take place in U.S. District Court for the Southern District of Indiana. The trial originally was scheduled to begin in November. It was continued to January, then continued a second time at the request of the defense, which cited the need for additional time.

Hagerman, who initially was represented by William Dazey, an attorney with the Office of the Indiana Federal Community Defender, has retained William E. Marsh and James McKinley in his defense. Marsh and McKinley also are members of the Indiana Federal Community Defenders’ office.

U.S. Attorney Steven DeBrota is prosecuting the case.

Posted by Marcia Oddi on Monday, May 21, 2007
Posted to Environment

Not law but - Farmers scramble to feed pigs and chickens when corn prices go through the roof

Ed Feigenbaum has this quote today in his Indiana Daily Insight blog, from Kimberley Strassel's Friday, May 18th Wall Street Journal "Potomac Watch" column: ($$$)

It's taken politicians a while to catch on to these anti-ethanol vibes, but they've now got the picture. At an agriculture conference in Indianapolis last fall, Indiana Gov. Mitch Daniels, Agriculture Secretary Mike Johanns and EPA Administrator Stephen Johnson spoke, delivering their usual fare about how ethanol was the greatest thing since sliced corn bread. They expected warm applause; in the past the entire ag community united around helping their brother corn farmers make a buck. But now that ethanol is literally taking food from their beasts' mouths, much of that community has grown less friendly. According to one attendee, Messrs. Daniels, Johanns and Johnson were later slammed with snippy ethanol questions from angry livestock owners, much to their dazed surprise. Word is that even the presidential candidates -- who usually can say no wrong about ethanol while touring the Midwest -- are having to be more selective about where they make their remarks.
Today the WSJ has a front-page story ($$$), titled "With Corn Prices Rising, Pigs Switch To Fatty Snacks - On the Menus: Trail Mix, Cheese Curls, Tater Tots; Farmer Jones's Ethanol Fix." . It begins:
GARLAND, N.C. -- When Alfred Smith's hogs eat trail mix, they usually shun the Brazil nuts.

"Pigs can be picky eaters," Mr. Smith says, scooping a handful of banana chips, yogurt-covered raisins, dried papaya and cashews from one of the 12 one-ton boxes in his shed. Generally, he says, "they like the sweet stuff."

Mr. Smith is just happy his pigs aren't eating him out of house and home. Growing demand for corn-based ethanol, a biofuel that has surged in popularity over the past year, has pushed up the price of corn, Mr. Smith's main feed, to near-record levels. Because feed represents farms' biggest single cost in raising animals, farmers are serving them a lot of people food, since it can be cheaper.

And moreover, Indiana chickens are eating "tainted"dog and cat food, according to this story from Friday's Louisville Courier Journal. A quote:
WASHINGTON (AP) -- About 80,000 chickens in Indiana that were fed contaminated pet food scraps can be released for processing because testing showed meat from the birds is safe to eat, the Agriculture Department said Friday.

The chickens, bred to lay eggs hatched for chicks, had been held on Indiana farms after eating feed that included an industrial chemical blamed in the deaths of cats and dogs.

Their feed was supplemented with pet food scraps containing melamine and related compounds. Testing showed that melamine does not accumulate in birds and is eliminated by their bodies quickly, the USDA said.

Previously, the department cleared thousands of pigs given feed also made using pet food scraps.

Posted by Marcia Oddi on Monday, May 21, 2007
Posted to General News

Ind. Courts - Another in a series of infrequent updates on the Indiana Court's case management system

This ILB entry from May 9th on the status of the Indiana Court's long-in-getting-off-the-ground case management system pointed out that "since the announcement of a vendor Nov. 6, 2006, there has in fact been no news - the official site has not been updated." There have been, however, two different stories in the Bloomington Herald-Times this spring indicating that something was about in Monroe County.

Now, however, there is some news, in the form of an e-mail sent Friday May 18 to all Indiana Courts and Clerks, sent on behalf of Chief Justice Randall Shepard & Justice Frank Sullivan, Jr. It reads:

We are pleased to report a small but very positive step in JTAC's quest to provide all Indiana courts and clerks with a statewide 21st Century case management system (CMS): We have successfully tested a small portion of the new system live in an Indiana court house!

We last wrote to update you when, after an intensive competitive procurement process, we selected Tyler Technologies, Inc. as the new vendor to provide us with a statewide 21st Century CMS. Part of the reason for choosing Tyler was that the company had developed and installed a statewide 21st Century CMS for Minnesota called "Odyssey Case Manager."

Our task now is to see what changes need to be made to Odyssey so that it meets the needs and requirements of Indiana law and practice. The best way to do this, JTAC and Tyler have concluded, is to use several Indiana courts as "proof-of-concept" (POC) laboratories where Indiana court and clerk staff can test Odyssey - and the changes Tyler makes to it at our request - as we go along. Using POC Labs has at least two benefits: JTAC will immediately learn how well the changes being made to Odyssey are meeting our needs and Tyler will immediately learn how well Odyssey is accommodating local court and clerk business processes.

The clerk, judges, and staff in Monroe County and the Washington Township (Marion County) Small Claims Court have generously volunteered to be POC Labs.

Tyler has now conducted interviews with many future users on local courts' and clerks' business processes and has programmed Odyssey with many Indiana-specific codes. On Tuesday, May 15, the civil case functionality of Odyssey as so modified was tested in real-time in the POC Lab in Bloomington. Tyler and JTAC officials joined Monroe County clerk and court staff to test the application and analyze the results. Although much work remains, everyone was quite pleased that the system worked as expected at this stage of development. Additional tests in the POC Labs will be conducted in the coming months in both Monroe County and Marion County.

Our current contract with Tyler requires a detailed assessment of the functions of Odyssey and the functions required by the Indiana Supreme Court. We are continuing contract negotiations for subsequent phases of the contract and specific statement of work requirements.

We'd be pleased to have you visit a POC lab, or provide any observations or suggestions you may have. Please contact Mary L. DePrez, Director and Counsel for Trial Court Technology, at mdeprez@jtac.in.gov. [emphasis added]

Readers may recall the initial ILB entry on the case management project, from March 8, 2005. It quoted from a front-page Indianapolis Star story by Staci Hupp headlined "Plan to link 400 courts hits a wall: Costly software glitch halts effort to computerize records statewide." A quote from that Star story:
The problem: Software designed by contractor Computer Associates International Inc. -- already paid more than $6 million by the state -- doesn't work. No one knew it would fail until 21/2 years into the project, said members of the Indiana Supreme Court's Judicial Technology and Automation Committee, which is in charge of the project.

"We very much hoped that by this point in time we would have at least an initial version of the case management system up and running," said Indiana Supreme Court Justice Frank Sullivan, who heads the committee. "It is disappointing that we do not. We're working very hard to try to get there."

The breakdown surfaced in December, as Marion County officials tested a piece of software designed for Indiana civil courts. They found it lacked a critical element -- the ability to keep tabs on court fines and costs. * * *

For its Indiana contract, Computer Associates used a software package the company had developed for five criminal courts in Florida. Programmers tried to adapt it to Indiana's web of courts, many of which follow different business practices. "It was difficult for them to get their arms around the way business is done in Indiana," said Court of Appeals Judge Paul Mathias, a member of the Supreme Court automation committee, which also oversees other technology projects.

A more cautious approach appears to be course selected for this second go-around.

Posted by Marcia Oddi on Monday, May 21, 2007
Posted to Indiana Courts

Sunday, May 20, 2007

Law - Justice Alito counsels St. Mary's grads

Margaret Fosmoe of the South Bend Tribune writes today on U.S. Supreme Court Justice Samuel A. Alito Jr.'s words to Saint Mary's College graduates yesterday:

"To all you graduates as you go out in the world, my advice to you is: Don't go. It's rough out there. Move back with your parents. Let them worry about it."
Actually those are words that Justice Alito rejected:
Alito said some of his young law clerks irreverently suggested that he use the speech of Dangerfield in the film "Back to School." * * *

Alito said he decided not to endorse the comic's suggestion. Instead, in advising graduates of the women's college, the justice referred to the Constitution.

The U.S. Constitution is relatively short -- about 4,500 words, Alito noted. That compares to a recently proposed European constitution that runs more than 160,000 words.

The U.S. Constitution is brief because it separates matters that are essential and fundamental from matters that are simply important, Alito said. If the framers of the Constitution had taken a different approach, the document might not still be in effect today, he said.

That approach serves as a good example of what we should do in our lives, Alito told the graduates. It involves keeping constantly in mind what is essential and most permanent, he said.

"Particularly as you go out in the world, you will find that the things that call most insistently upon you for attention on a daily basis are not necessarily the things that are most important in the long run," he said.

Posted by Marcia Oddi on Sunday, May 20, 2007
Posted to General Law Related

Ind. Courts - Confiscating a student's cellphone results in appointment of special prosecutor

Yesterday the ILB posted on the continuing story in Spencer County where an adult entertainment business is ignoring a judge's order to close.

I thought of that this morning when I read this story in the Lafayette Journal & Courier where a student in a Purdue business class ignored his professor's request to discontinue using his phone in class, and continued reading messages.

The professor confiscated the phone and said he would turn it into the dean's office. The student called police (apparently by using another phone), who upon arrival ordered the professor to return the phone immediately or be charged with theft.

The professor, it turns out, is also a Superior Court Judge in Tippecanoe County. A special prosecutor has been appointed, for heaven's sake, to look into "the matter". The ILB wonders - What matter? Here is the AP story:

LAFAYETTE, Ind. (AP) -- A special prosecutor will determine if a judge did anything illegal when he confiscated a Purdue University student's cell phone after it rang during a class he was teaching, and afterward refused to return it.

Tippecanoe County prosecutor Pat Harrington said he sought the special prosecutor to look into Judge Les Meade's actions to avoid the appearance of impropriety.

Senior prosecutor Rob Ives of Carroll County will review Purdue police reports related to the April 16 incident in a classroom at Purdue's Krannert Building.

Meade, who is the elected judge of Tippecanoe Superior Court 5, has taught business law and business ethics classes in Purdue's Krannert School of Management for 28 years.

He said he was teaching a business law class when a student's cell phone began ringing with a musical ringtone. The male student, seated in the front row of the class, took out the phone, opened it and began reading messages as the phone continued to ring, Meade said.

When he asked the student to turn off the phone, Meade said the student ignored him and continued to read messages while the phone continued to ring. The judge said he took the phone away from the student, closed it and put it in his pocket.

"It was still playing music when I put it in my pocket," Meade said.

At the end of the class, the student asked Meade to return the phone, but Meade said he refused, saying he intended to turn it over to the Krannert dean's office the next morning.

Meade said his decision was warranted because he's never encountered a situation - in class or the courtroom - in which a person refused to turn off a cell phone when told to do so.

He said the student left but a few minutes later, two Purdue police officers arrived and asked him if he had taken away the student's phone.

"You have to give it back now. If you don't, it's theft," Meade said, quoting the police officers.

Meade said he identified himself as a judge and said, "This is not theft."

The officers called Lt. Sarah Sheppard to the scene, and she told Meade that failure to return the cell phone would constitute theft. Richard Cosier, dean of the Krannert School of Management, then arrived.

Purdue spokeswoman Jeanne Norberg said Cosier took the cell phone and returned it to the student, and admonished the student about rules against cell phone use during class.

Meade said he soon received an e-mailed apology from the student stating that "emergency conditions back home" compelled him to call police to recover his cell phone immediately.

Neither Meade nor the student was disciplined, Norberg said.

Since the incident, instructors in Krannert have been advised to dismiss from class any student who causes a similar disruption, Norberg said. [emphasis added]

If a student ignores a professor who asks him to turn off his cellphone, why do these administrators think the student will not similarly iqnore a request to leave class?

[More] I've found another story, this one by Joe Gerrety of the C&P. It includes this:

Since the incident, instructors in Krannert have been advised to dismiss from class any student who causes a similar disruption. If a student refuses to leave after being dismissed, police should be called, Norberg said.

"Judge Meade certainly has a right to keep his classroom in order," Norberg said. "It's just a question of the best way to deal with disruptions."

Is involving the police the best way, or is sending the offending phone to the dean's office overnight the best way? Is the Purdue administration standing behind its professors in minor disciplinary matters the best way, or is sending these matters to a special prosecutor the better route?

Gerrety's story also includes this quote:

"This will be an embarrassing and humiliating situation for me for a couple of days," Meade said Friday. "But the long-term damage is going to be to the university's reputation."
The C&P story includes several comments from readers, including this one from a student in the class:
I really appreciated the way Meade demanded (yes, I said "demanded") respect for the subject, the school, other students and the classroom environment. Rules of Meade’s classroom could easily be summed up as:

Be on time
Be prepared for class
Be respectful of each other and each other’s tuition "investment"

Please don't confuse those expectations with the Honorable Judge Meade going on a “power trip.” He even had a "no hat" policy. These things aren't absurd requests, they used to be common courtesy (ask your parents and if they aren't old enough to remember what it means to take off your cap or listen when someone else speaks, ask your grandparents).

Though I tried to always be respectful of fellow students and my professors, I knew Judge Meade was serious. His class was the only one I would run to because I knew I was being held to a higher level. Meade isn't a bully. Meade just expects more from his students.

Posted by Marcia Oddi on Sunday, May 20, 2007
Posted to Indiana Courts

Saturday, May 19, 2007

Ind. Decisions - "Posey vote stands - Court upholds Butler as clerk"

Tuesday, May 15th's Court of Appeals decision in Donna M. Curtis v. Donna K. Butler (see (ILB entry here - 2nd case) is the subject of a story today by Bryan Corbin in the Evansville Courier & Press. Some quotes:

INDIANAPOLIS The election for Posey County clerk was held more than six months ago, but the disputed outcome was decided only this week, when the Indiana Court of Appeals ruled against Republican candidate Donna M. Curtis and in favor of Democrat Donna K. Butler. In effect, the appeals court decision means Butler, who took office in January, will remain county clerk.

At issue in the appeal were eight absentee ballots that ultimately decided the November election. Curtis appealed a lower court ruling that had allowed those ballots to be counted. In a six-page decision, the appeals court upheld the lower court, so the election results stand. * * *

Originally, about 200 Posey County voters were sent absentee ballots, the decision said. Incorrect information for school board candidates not the clerk's race was later discovered on the ballot forms less than a month before the election. Absentee ballots already cast were considered null and void, and absentee voters were asked to vote again, using new forms. All but 10 people did; and their original ballots remained in the safe.

Deciding that eight of the original 10 absentee ballots cast were still legal and valid, the Posey County Election Board counted them. Butler picked up six additional votes and Curtis two giving Butler a two-vote winning margin.

Curtis then filed a recount petition in Posey Circuit Court. At the instruction of Circuit Judge James Redwine, the court-appointed recount commission also counted the eight absentee ballots from the safe. With the recount commission finding Butler had won by three votes, Butler was certified the victor and sworn into office, the decision said.

Next, Curtis appealed to get the recount commission's ruling overturned. But Redwine denied that, and Curtis appealed the judge's denial to the Indiana Court of Appeals.

In its decision, the appeals court found that if the voter's intent can be determined, then the vote will be counted. The law does not provide for "the withdrawal of a vote once it is cast," appeals court Judge Mark Bailey wrote, "even if the voter subjectively intended by his or her subsequent omission to do so," referring to those absentee voters who did not recast corrected ballots. Appeals court judges John Sharpnack and Carr Darden concurred in the ruling.

Posted by Marcia Oddi on Saturday, May 19, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still more on: Spencer County adult business ordered to close

This ILB entry from May 5th began by quoting the Evansville Courier & Press:

After more than a year of a court battle between Spencer County and an adult entertainment business the county wanted to shut down, Spencer County Circuit Court Judge Wayne Roell ruled in the county's favor.
But the entry continued:
Almost two months after a judge issued a ruling ordering an adult entertainment business in Spencer County to shut down, attorneys representing the county say the business remains open.
An AP story today reports that the adult business is still in operation:
ROCKPORT, Ind. -- Spencer County officials want a judge to fine the owners of an adult bookstore that's remained open for two months after the court ordered it to close.

A contempt of court hearing is scheduled for Monday in Spencer Circuit Court.

In a brief filed Thursday, county attorneys asked Judge Wayne Roell to fine the owners of the Love Boutique and Adult Plaza at least $75,000 if he finds them in contempt of his March decision ordering the business to close.

Roell previously has fined the business owners $10,000 in a January 2006 decision.

In the March order, Roell sided with the county in its attempt to enforce a local ordinance that bars adult businesses from operating within 1,000 feet of churches, schools and homes. He ordered the business to shut down.

Spencer County passed the ordinance the week before the business opened in November 2005 at the site of a former truck stop at the U.S. 231/Interstate 64 interchange about 35 miles northeast of Evansville.

Posted by Marcia Oddi on Saturday, May 19, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Porter Courthouse upgrades security with new keyless entry system

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

New key "fobs" will allow the county to track which of its employees are in the courthouse.

It's an improved step that follows national incidents of violence and local stories of people who should not be in the courthouse during off hours.

The new security allows the county to track whose fobs are being used because each fob is attached to an individual employee.

"There are people in here at strange hours that should not be in here," Porter County Auditor Jim Kopp said. "You don't know anymore what's going through people's minds, and this place is wide open. A little security will help."

The keyless entry system augments the electronic parking garage pass system started in February.

"It's linked to people's names," Melissa Hartig, the County Commission's administrative assistant, said. "We'll know who's in the building, who's in the garage" at all times.

The building's front doors will open from 7:30 a.m. to 7:30 p.m., and doors off the garage will remain open 6:30 a.m. to 5:30 p.m. because not all employees will have the fob that opens doors.

The county wanted the systems because employees who quit gave keys to others, and people using the building at odd hours left entrances unlocked, sometimes all weekend, Hartig said. * * *

The $23,290 for the keyless system was paid through CEDIT funds.

The new garage system cost $15,757, mostly paid for from garage fund but with $2,300 from CEDIT funds designated to County Commissioner Carole Knoblock, Hartig said.

Posted by Marcia Oddi on Saturday, May 19, 2007
Posted to Indiana Courts

Law - "Ohio House members warned to tone down prayers by guest ministers"

An AP story today picked up by the Fort Wayne Journal Gazette reports:

Guest ministers leading prayers in the Ohio House are violating guidelines by evangelizing and speaking on political topics, the House clerk warned.

The issue reached a tipping point Wednesday when the Rev. Keith Hamblen, pastor of Calvary Bible Church in Lima, referred to Jesus more than once, spoke favorably of church schools and mentioned bills up for debate that day.

Two lawmakers walked out in protest, and House Clerk Laura Clemens sent a memo reminding lawmakers of the rules.

House guidelines require guest ministers’ prayers to be nonsectarian and nonproselytizing. They are also supposed to be submitted three days in advance for review.

“I would hate to have to eliminate this program but may find it necessary to do so if this trend continues,” Clemens wrote.

Rep. Chris Redfern, one of two Democrats who walked off the floor in protest, said prayers were intended to give legislators “a chance to reflect” but have become increasingly evangelical.

Republican Rep. Matt Huffman, who invited Hamblen to give the prayer, agreed it was inappropriate for him to mention issues on that day’s agenda.

Still pending of course is the 7th Circuit's decision in the Indiana legislative prayer case of Hindrichs v. Bosma. Oral arguments were held Sept. 7, 2006. See this ILB entry from Sept. 8, 2006.

Check here for a long list of ILB legislative prayer entries on Indiana and other states.

Posted by Marcia Oddi on Saturday, May 19, 2007
Posted to General Law Related

Ind. Decisions - More on yesterday's Court of Appeals Porter County Plan Commission decision

Ken Kosky of the NWI Times reports today on Thursday's NFP Court of Appeals decision in John Kadish, Anita Kadish, and 2 Dreams, LLC v. Plan Commission of Porter Co. (NFP) - see ILB entry here, 8th case. Some quotes from the story:

VALPARAISO | The Porter County Plan Commission was within its rights when it rejected a proposed residential subdivision in Jackson Township in 2005, according to a court decision.

The Indiana Court of Appeals on Thursday upheld Porter Circuit Court Judge Mary Harper's earlier decision in favor of the Plan Commission.

Those seeking to develop the land -- John and Anita Kadish and Ronald and Susan Stangebye -- argued the Plan Commission's decision to deny their application was in error "because the evidence demonstrated that the requirements under the county's Open Space Ordinance and the regulations regarding septic system placement had been met."

In its ruling, the Court of Appeals found no error on the Plan Commission's part and therefore affirmed Harper's decision at the trial court level.

Specifically, the Court of Appeals ruled those seeking to develop the land erroneously thought that Health Department approval of the lots meant they also would receive Plan Commission approval -- even though the property has significant soil and water table complications. In short, the Court of Appeals decided those seeking the development "failed to offer specific evidence to support a determination that each lot could support a septic system."

Posted by Marcia Oddi on Saturday, May 19, 2007
Posted to Ind. App.Ct. Decisions

Courts - C-Span's America and the Courts features the Federal Appeals Court System

Tonight, May 19th at 7 p.m. on C-Span:

Federal Judicial Center Deputy Director John Cooke takes a look at the last 30 years in the federal appeals court system and talks about changes in the caseload, types of appeals & differences between the military and federal courts. The U.S. Court of Appeals for the Armed Forces held a judicial conference this week at Catholic University in Washington, DC.

Posted by Marcia Oddi on Saturday, May 19, 2007
Posted to Courts in general

Friday, May 18, 2007

Ind. Courts - "Indiana moves toward electronic traffic ticketing"

Mike Smith of the AP writes today:

Indiana is making a move to bring the digital age to the tedious and time-consuming task of writing and processing traffic tickets.

A law enacted by the General Assembly in the recently concluded session officially authorizes police officers to issue tickets electronically, and a branch of the State Court Administration and law enforcement agencies already have worked to develop software applications to produce "e-citations."

Electronic citations are designed to save time and money, eliminate errors and free courts from having to retype information into computers. Indiana will be among 29 states that have implemented the systems or have pilot programs to do so, according to the National Conference of State Legislatures.

In the process, an officer scans a driver's license and vehicle registration and the information is instantly transferred to a form on an in-vehicle computer screen. There are pull-down boxes to indicate what the violation was, the court to be involved and so on. Motorists would still receive paper citations, but they would be printouts produced on the spot.

Then the officer simply pushes a button, and the information is sent electronically to the appropriate court.

"We won't have everyone doing double data entry and we'll have more accurate information for the courts to deal with," said Mary DePrez, director of the Judicial Technology and Automation Committee of the State Court Administration.

DePrez's division has used federal grants and worked with state and local law enforcement agencies to develop uniform electronic ticketing. Some of the grant money will be used to buy scanners for police departments. DePrez said many departments already have printers for their vehicle laptop computers compatible with the new ticket forms.

She said one or two local agencies might already be using electronic ticketing in Indiana. But the new law specifically authorizes it, and designated the State Court Administration as the agency to set uniform e-citations.

DePrez said application of the technology will be tested by about four officers beginning in a couple of weeks. If everything goes well, the goal is to then have some state troopers and one or two local police agencies begin using it by July 1. They will work with it for at least a month before it is offered statewide.

What bill is this? SEA 247.

Posted by Marcia Oddi on Friday, May 18, 2007
Posted to Indiana Courts

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

Court of Appeals holds "Allen County Local Criminal Rule 9, requiring requests for instructions to be submitted prior to trial, is incompatible with the Indiana Trial Rule 51(C) allowing such requests at the close of evidence" and reverse the convictions and remands for a new trial.

For publication opinions today (1):

In Phyllis Snell v. State of Indiana , a 15-page opinion, Judge Robb writes:

Phyllis Snell appeals from her conviction, after a jury trial, of count I, resisting law enforcement, a Class A misdemeanor, and count II, disorderly conduct, a Class B misdemeanor. Snell challenges the trial court’s refusal of her tendered jury instructions related to constitutionally protected speech. We reverse, holding that the evidence supports giving the tendered instructions, and that Allen County Local Criminal Rule 9, requiring requests for instructions to be submitted prior to trial, is incompatible with the Indiana Trial Rule 51(C) allowing such requests at the close of evidence. * * *

The trial court abused its discretion in refusing to give Snell’s tendered instructions on protected speech inasmuch as the evidence supported the instructions and local rule 9 is not compatible with Trial Rule 51. Thus, the jury was not properly instructed. Accordingly, we reverse the convictions and remand for a new trial.

NFP civil opinions today (3):

Robert P. Spruit, Raymond Ton, Jr., Jim Van Laere, et al. v. Marshall County, Indiana Plan Commission, et al. (NFP) - "The Neighbors have not established that the Plan Commission improperly authorized Peterson to subdivide the parcel. We affirm."

This 7-page opinion, In the Matter of the Guardianship of T.W. and C.W.; Danny and Joyce Wireman v. Deena Kopka (NFP) , concerns grandparents's visitation rights and who pays attorneys' fees. Judges Bailey writes:

Appellants-Petitioners Danny and Joyce Wireman (“Grandparents”) appeal the trial court’s order denying their petition for visitation with their grandchildren and ordering them to pay the attorney’s fees for Appellant-Respondent Deena Kopka (“Mother”). We reverse and remand. * * *

The failure of a trial court to enter required findings is “a defect in form, or procedural irregularity, which is capable of being cured.” Paternity of P.E.M., 818 N.E.2d at 37. As a result, the order is voidable, and the remedy on appeal is to remand to the trial court with instructions to enter an order containing the required findings. Id. We therefore remand for the trial court to enter the corresponding order specifically addressing the four required topics.

II. Attorney’s Fees. The Grandparents also contend that the trial court did not have authority under Indiana Code Section 31-17-7-1 to order them to pay Mother’s attorney’s fees. * * *

[IC 31-17-7-1 addresses costs and attorney’s fees in custody and visitation disputes.] The Grandparent Visitation Act, IC 31-17-5, is not included in the list, and therefore IC 31-17-7-1 does not provide authority to order a party to pay for the opposing party’s attorney’s fees in a petition for grandparent visitation.

The trial court’s order for the payment of Mother’s attorney’s fees does not identify under what statute the costs were being ordered or that there was an agreement between the parties. Nor do we find that there is a statute applicable under these circumstances. We conclude that the trial court abused its discretion in ordering the Grandparents’ to pay Mother’s attorney’s fees. Reversed and remanded.

[Comment by ILB: This appears to be a case of first impression and therefore may be an interesting selection for a NFP designation.]

Kevin D. Prophet v. Snow & Sauerteig, LLP (NFP) - "The trial court erred in finding Kevin liable for Susan’s medical and dental bills. We reverse the small claims court’s judgment of liability as to Susan’s bills. However, as V.P.’s parent, Kevin is liable for V.P.’s medical bill. We affirm the judgment as to Kevin’s liability for V.P.’s bill, and we remand for a calculation of interest upon that bill." [This opinion includes at p. 4 an interesting discussion of the "the common law doctrine of necessaries."]

NFP criminal opinions today (3):

Myron Hamilton v. State of Indiana (NFP)

Keith Allen Ball v. State of Indiana (NFP)

Inahunie M. Hunter v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 18, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Supreme Court reverses attempted murder conviction

Re yesterday's Supreme Court decision in Ahmad Edwards v. State (see ILB entry here), here are quotes from an AP story which the Indianapolis Star has headlined "Schizophrenic can represent himself."

Anyone who is competent to stand trial has the right to represent himself in court -- even if a judge doesn't think he's capable, the Indiana Supreme Court ruled.

In a 10-page ruling Thursday, the high court set aside Ahmad Edwards' convictions on charges of attempted murder and battery and ordered Marion Superior Court to hold a new trial.

While a judge's determination that Edwards' schizophrenia made him incapable of defending himself seemed "at a minimum, reasonable," Justice Theodore Boehm wrote that the U.S. Supreme Court has held that "competency to represent oneself at trial is measured by competency to stand trial."

Since Edwards was ruled competent to stand trial, his request for self-representation must be respected, the court held. * * *

Twice, Edwards was ruled not competent to stand trial after doctors who examined him determined he was mentally ill. But those decisions both were later reversed.

Eventually, in 2005, he was convicted and received a 30-year sentence on charges of attempted murder, battery with a deadly weapon, criminal recklessness and theft.

Posted by Marcia Oddi on Friday, May 18, 2007
Posted to Ind. Sup.Ct. Decisions

Courts - Brennan Center announces new report on impact of special interest pressure on state courts

The Brennan Center for Justice at NYU School of Law has announced a new report, "The New Politics of Judicial Elections 2006." Here are some quotes from the press release:

WASHINGTON, DC – Special interest pressure is metastasizing into a permanent national threat to the fairness and impartiality of America’s courts, according to a major new report from the Justice at Stake Campaign and its partners, the Brennan Center for Justice at NYU School of Law and the National Institute for Money in State Politics. At the same time, a new survey conducted by Zogby International for the Committee for Economic Development shows that four out of five business leaders worry that campaign contributions have a major influence on decisions rendered by judges.

“Justice at Stake’s report shows how in too many states, judicial elections are becoming political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law and the constitution,” said former U.S. Supreme Court Justice Sandra Day O’Connor. “I hope that every state that elects judges in partisan elections will consider reforms.”

“The 2006 election cycle was the most threatening year yet to the fairness and impartiality of America’s courts,” said Bert Brandenburg, executive director of the Justice at Stake Campaign. “The good news is that a broad cross-section of American civic, legal and business leaders appear ready to say enough is enough, and to work for reforms that will protect our courts.”

Here is a link to the 68-page report. For those curious, Indiana is mentioned three times in the report: in the graph on p. 35 of the pdf document; in the footnote on p. 39; and at the end of the 2nd paragraph on p, 51.

Also available is a 2007 report by Justice at Stake titled: "Crusading Against the Courts: The New Mission to Weaken the Role of the Courts in Protecting Our Religious Liberties." Access it here.

Posted by Marcia Oddi on Friday, May 18, 2007
Posted to Courts in general

Thursday, May 17, 2007

Ind. Decisions - Supreme Court reverses attempted murder conviction [Updated]

Ahmad Edwards v. State - in a 10-page, 5-0 opinion Justice Boehm writes: "Edward's conviction for attempted murder and battery with a deadly weapon are reversed and this case is remanded for further proceedings. We summarily affirm the Court of Appeals as to issues not addressed in this opinion." [This opinion has not yet been posted to the Court's website.]

See this Sept. 19, 2006 ILB entry titled "Court of Appeals orders new trial for man forced to accept lawyer."

[Updated] The opinion in Ahmad Edwards v. State is now available. Some further quotes:

After a three-day trial, Edwards was convicted of attempted murder and battery with a deadly weapon. He was sentenced to presumptive terms on those two counts and the two convictions from the first trial, with all four sentences to be served concurrently. This resulted in a sentence of thirty years, the presumptive sentence for attempted murder. Edwards appealed, claiming that he was denied his Sixth Amendment right to self-representation at his second trial. The Court of Appeals agreed and reversed and remanded this case for retrial of the attempted murder and battery counts. Edwards v. State, 854 N.E.2d 42, 45 (Ind. Ct. App. 2006). The State seeks transfer, which is granted by order concurrent with this opinion. * * *

We agree with the State that the trial court’s conclusion that Edwards was incapable of adequate self-representation was, at a minimum, reasonable. We understand the trial court’s purpose to ensure that Edwards received a fair trial, which is a fundamental requirement of due process. Ward v. State, 810 N.E.2d 1042, 1048 (Ind. 2004) (citing In re Murchison, 349 U.S. 133, 136 (1955)). However, we agree with the conclusion of the Court of Appeals that the Supreme Court of the United States has held that competency to represent oneself at trial is measured by competency to stand trial. Edwards, 854 N.E.2d at 48. Edwards was found competent to stand trial on July 29, 2004, and no party contends he was not competent to stand trial in December 2005. Similarly, as the Court of Appeals pointed out, there has been no claim by the State that Edwards’s waiver of counsel was not knowing and voluntary. Here we have a determination by an experienced trial judge that Edwards was incapable of presenting a defense. That determination is necessarily based on factors better evaluated by, as Justice Breyer put it, “judges closer to the firing line.” Martinez, 528 U.S. at 164. We have sympathy for the view that a trial court should be afforded some discretion to make that call. The record in this case presents a substantial basis to agree with the trial court and thus presents an opportunity to revisit the holdings of Faretta and Godinez, if the Supreme Court of the United States decides that is to be done. However, as it stands today, we are bound by these authorities as Supreme Court precedent. Accordingly, we hold that because Edwards was found competent to stand trial he had a constitutional right to proceed pro se and it was reversible error to deny him that right on the ground that he was incapable of presenting his defense.

Posted by Marcia Oddi on Thursday, May 17, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 6 today (and 15 NFP)

For publication opinions today (6):

In Emma McPeek, et al. v. Charles McCardle , an 8-page opinion, Chief Judge Baker writes:

Appellants-plaintiffs Emma McPeek, Carroll VanTyle, and Brenda Allen (collectively, the Children) appeal from the trial court’s dismissal of their complaint seeking a declaratory judgment that the marriage of their mother, Edwina VanTyle McCardle, to appellee-defendant Charles McCardle was void. Additionally, Charles cross-appeals the trial court’s denial of his request for attorney fees. Finding that a marriage that complies with all Indiana requirements but fails to comply with the laws of the state in which it is solemnized is valid in this State, and finding no other error, we affirm the judgment of the trial court. * * *

It is generally true that the validity of a marriage is determined by the law of the place of its celebration. Gunter v. Dealer’s Transp. Co., 120 Ind. App. 409, 414, 91 N.E.2d 377, 379 (1950). Nearly always, however, this rule is applied to uphold an out-of-state marriage that would otherwise be invalid pursuant to Indiana law or public policy. See, e.g., Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct. App. 2002) (recognizing a Tennessee marriage between first cousins that could not have been entered into validly between Indiana residents). It is illogical to reverse that rule such that a marriage that would otherwise be valid in Indiana is void because it is invalid pursuant to a sister state’s law or public policy.3 There is simply no reason, whether based on Indiana statute or public policy, to invalidate a marriage that complies with both. We hold, therefore, that where, as here, a couple has complied with Indiana’s requirements regarding marriage licenses, certificates, and solemnizations, their marriage is not void even if the ceremony took place in another state and did not comply with that state’s law or public policy. Thus, we conclude that the trial court properly dismissed the Children’s complaint.

Charles cross-appeals, arguing that he is entitled to attorney fees because the Children’s action was frivolous and because they relied upon Emma’s affidavit in bad faith. Inasmuch as this is an issue of first impression in Indiana, we cannot conclude that the action was frivolous.
________________
3We acknowledge that the Indiana Attorney General reached the opposite conclusion. See 2004 Ind. OAG No. 4, 2004 WL 1876176 (Ind. Atty. Gen. 2004). It is well established, however, that Attorney General Opinions are without precedential effect and are not binding on this court. Common Council of the City of Peru v. Peru Daily Tribune, Inc., 440 N.E.2d 726, 728 n.4 (Ind. Ct. App. 1982). Thus, we need not, and choose not to, adopt the Attorney General’s analysis of this issue.

Lisa A. Tompa v. Edward S. Tompa - "Here, we are faced with the unusual situation that the parents convened a panel to investigate, evaluate and determine, in loco parentis, a parenting plan tailored to the specific needs of H.T. and S.T.. The unambiguous language of the Summary Disposition Order notified the parties that, even though parenting time would be slowly increased, an ultimate recommendation would still be forthcoming. Faced with the Panel’s ultimate suggestion of equal-time parenting time and the flexible nature of the Parenting Time Guidelines, we cannot conclude that the trial court clearly erred in enlarging Edward’s parenting time by adopting the equal-time parenting time arrangement."

Kevin Hightower v. State of Indiana - "Kevin Hightower appeals his convictions and sentences for corrupt business influence, three counts of theft, conspiracy to commit bribery, and conspiracy to commit forgery. We affirm but remand with instructions."

Paul Kien v. State of Indiana - "Following his three convictions for molesting his former girlfriend’s five-year-old daughter, Paul Kien appeals the post-conviction court’s denial of his petition for post-conviction relief. Specifically, Kien contends that his trial counsel was ineffective for failing to investigate and present evidence that he was not the one who molested the victim and for failing to challenge the victim’s competency. Because the evidence that Kien claims shows that he did not molest the victim is inadmissible, trial counsel cannot be deemed ineffective for failing to investigate and present it. In addition, because there is no evidence that the victim was incompetent, trial counsel was not ineffective for failing to challenge her competency. We therefore affirm the post-conviction court."

Sophia Willis v. State of Indiana - "We sympathize with Willis’s argument that she is a single parent who is doing the best that she can, but we cannot condone her choice to whip her child with an extension cord to the point of causing him bruises and extended pain. The trial court is in the best position to determine what is reasonable under any given circumstances, and we must give substantial deference to the trial court’s decision herein. Willis’s argument that her behavior was justified under the circumstances is a request that we reweigh the evidence—a practice in which we do not engage when considering the sufficiency of the evidence. See Mitchell, 813 N.E.2d at 428 (finding that father’s argument that his actions were justified, not excessive, and merely parental discipline was an invitation to reweigh the evidence). We acknowledge that this was a closer case than some of the examples cited above, but ultimately, we cannot say that the trial court erred in finding sufficient evidence to convict Willis of class A misdemeanor battery on a child. The judgment of the trial court is affirmed."

James C. Absher v. State of Indiana - "James C. Absher appeals his convictions for three counts of Child Molesting, two as class A felonies and one as a class C felony, arguing that the trial court erroneously allowed the State to amend its charging information after the omnibus date. * * * Based on the foregoing, we conclude that while the trial court’s decision to allow the State to amend its charging information was in contravention of I.C. § 35-34-1-5(b), Absher failed to preserve this issue for appeal. Additionally, in failing to provide a single cogent argument with citation to authority supporting his legal conclusions that his trial was fundamentally unfair and that he received ineffective assistance of trial counsel, Absher also failed to successfully invoke the doctrine of fundamental error. Judgment affirmed. "

NFP civil opinions today (3):

In JP Morgan Chase Bank, N.A. v. Everhome Mortgage Company (NFP) , a 6-page opinion, Judge Bailey writes:

Appellant-Plaintiff/Cross-Defendant JPMorgan Chase Bank, N.A., successor to Bank One, N.A. (“Chase Bank”) appeals a partial summary judgment ruling in a consolidated action involving complaints by Chase Bank and Appellee-Plaintiff/Cross-Defendant EverHome Mortgage Company, successor to Nexstar Financial Corporation (“EverHome”), seeking to foreclose upon real estate purchased by Appellee-Defendant Rita Nicholson f/k/a Rita Campbell (“Nicholson”). We dismiss.

Issues. Chase Bank raises the sole issue of whether the trial court properly granted EverHome partial summary judgment assigning priority to its mortgage lien. We raise a single issue sua sponte: whether this Court has jurisdiction over this purported appeal. * * *

Because Chase Bank attempts to appeal an interlocutory order as a final judgment, without certification, the Court of Appeals is without jurisdiction to address the appeal. See Anonymous Doctor A v. Sherrard, 783 N.E.2d 296, 298 (Ind. Ct. App. 2003), reh’g denied. Accordingly, we dismiss the purported appeal.

John Kadish, Anita Kadish, and 2 Dreams, LLC v. Plan Commission of Porter Co. (NFP) - "The Plan Commission did not ban the subdivision because of the use of septic systems in general, it merely determined that the Kadishes failed to offer sufficient evidence to show that their proposed drainage plan on the lots would comply with the relevant ordinance provisions as well as other applicable state laws and regulations. In short, the Kadishes failed to offer specific evidence to support a determination that each lot could support a septic system. As a result, we conclude that the trial court properly denied the Kadishes’ writ of certiorari, and the Plan Commission’s decision stands."

Christine Davies v. Linda Land (NFP) - "Christine Davies appeals the judgment in her personal injury claim against Linda Land, personal representative of the Unsupervised Estate of George Land. Davies raises two issues, which we revise and restate as: I. Whether the trial court erred when it instructed the jury regarding Ind. Code § 9-21-8-24; and II. Whether the evidence is sufficient to support the jury’s verdict. We affirm."

NFP criminal opinions today (12):

Dennis Burgher v. State of Indiana (NFP)

Christine Patrick v. State of Indiana (NFP)

Timothy Newby v. State of Indiana (NFP)

Ronald Thrash v. State of Indiana (NFP)

Marlon M. Banks v. State of Indiana (NFP)

Bennie Lee Riley, Jr. v. State of Indiana (NFP)

Jason R. Bohlinger v. State of Indiana (NFP)

Lamont Perkins v. State of Indiana (NFP)

Steven Barlow v. State of Indiana (NFP)

Ryan Baker v. State of Indiana (NFP)

Terry A. Merriweather v. State of Indiana (NFP)

Samuel Cooper v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 17, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - Greene County residents may receive advice re child support payments from ILS

The Green County Daily World reports today:

Low-income parents struggling to keep up with child support payments will soon be able to get legal advice at the Greene County Courthouse.

Tom Frohman, a lawyer with Indiana Legal Services (ILS), will talk to parents about child support issues on the second Wednesday morning of each month, beginning June 13.

Frohman noted that when support becomes impossible to pay, many parents stop paying altogether. The Indiana Supreme Court recently recognized that “the existence of unsustainable support orders actually leads to greater failure of non-custodial parents to pay their support obligations.”

Frohman said, “Many people are not aware that, in order to change support, a petition must be filed in court. For example, if a parent becomes disabled, the child may get benefits on the parent's Social Security account. Even though the parent is entitled to a credit against the support obligation, it won't happen unless something is filed with the court.”

Frohman noted another common situation occurs when a child comes to live with the parent who is ordered to pay support. The support obligation continues to build unless the parent files a petition.

There are other reasons a person might have a support order that is more than he or she should be paying, such as loss of a job or emancipation of the child.

“Parents who have trouble collecting child support can get help from the child support prosecutor's office. Parents who have trouble paying child support, can talk to me,” said Frohman. * * * Frohman can only meet with people who are financially eligible for free legal services. * * *

Frohman said that helping parents get reasonable child support orders will help them pay the support as ordered.

“I'm not trying to keep parents from paying child support. I just want the orders to fairly reflect what the parents should pay.”

The Supreme Court decision referenced is the Feb. 22, 2007 opinion in Lambert v. Lambert. The ILB had an entry about it, titled "Establishing amount of post-incarceration child support," quoting from a Dan Carpenter column in the Indianapolis Star, on 4/1/07.

Posted by Marcia Oddi on Thursday, May 17, 2007
Posted to Indiana Courts

Ind. Decisions - Fort Wayne teacher in gay rights tolerance case honored in D.C.

The ILB last wrote on the Amy Sorrell situation on May 3rd. Today the Fort Wayne Journal Gazette reports, in a story by Kelly Soderlund:

As her suspension winds down and she awaits a transfer to a different school, an embattled local teacher jetted to Washington to receive an award for her fight for student rights.

Former Woodlan High School teacher and journalism adviser Amy Sorrell received the Mary Beth Tinker Award from American University’s law school and the Marshall-Brennan Constitutional Literacy Project on Wednesday. * * *

Sorrell detailed her experiences to American University law students and the high school students they mentor at a luncheon Wednesday.

“I challenge all of you here today to take a step toward protecting student rights,” an excerpt from Sorrell’s speech said. “This is something we need to do now – not wait until you are a victim of censorship.

“We need to challenge schools to be advocates for students and to truly make schools a place for learning. Schools need to be places that harbor student rights, that encourage students’ thoughts and ideas even when they are unpopular.”

Sorrell was notified Monday that she was receiving the award and was recommended by law students who read about her case on the Internet.

Stephen Wermiel, associate director of the Marshall-Brennan Constitutional Literacy Project, feels Sorrell made the right decision by publishing the student’s column and standing up for herself and her class. “Amy’s position that this didn’t seem like something controversial … it seemed like a very logical position, and for her to have to pay this kind of consequence for engaging in a not particularly outer-limits example of freedom of the press seems unfortunate,” he said.

Posted by Marcia Oddi on Thursday, May 17, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "More discretion allowed in charging sex crimes"

The NWI Times' BoB Kasarda has an interesting story today about HEA 1386. He reports:

VALPARAISO | Porter County Deputy Prosecutor Cheryl Polarek said she has occasionally upset police officers by deciding against pursuing criminal charges against a young person caught having a sexual relationship with someone under the legal age of 16.

In the absence of a sexually transmitted disease or pregnancy, Polarek said she has practiced a lot of discretion in these cases.

State lawmakers are taking some of the pressure off her.

Beginning July 1, it will be tougher for prosecutors to pursue the charge of sexual misconduct with a minor if the accused is under the age of 21, not more than four years older than the victim and in a dating relationship with the victim, Polarek said.

The crime also cannot have been committed using or threatening deadly force, a deadly weapon, intoxicants without the victim's knowledge, from a position of authority and cannot have resulted in serious bodily injury or by someone who committed a previous sex offense.

Polarek discussed upcoming changes in state law during the seventh annual Sexual Assault Law Enforcement Training at Valparaiso University.

Later in the story:
Polarek also told the police officers Wednesday they will no longer be able to require alleged victims of sex crimes to submit to a polygraph or other truth telling devices.

"I believe wholeheartedly in this," she said. "Please do not give our victims polygraphs."

Among the proposed legislation that did not make it into law, but is worth keeping an eye on, is a proposal to eliminate the statute of limitations for civil and criminal actions involving sex crimes against children, Polarek said.

Here is an ILB entry from August 21, 2006 about a situation where the statute of limitations had expired.

Posted by Marcia Oddi on Thursday, May 17, 2007
Posted to Indiana Law

Ind. Courts - Lake County man sues in federal court over pothole

Joe Carlson of the NWI Times reports today:

HAMMOND | Luigi Storino hit a legal pothole Wednesday, almost three years after a bumpy car ride on Indianapolis Boulevard late one August night in 2004.

Storino says his car smashed into a gaping pothole while he was driving southeast in the left lane of the boulevard -- an "area of the road in disrepair" not far from the entrance to the Hammond Marina.

The pothole sent his car careening to the left and into a steel pole, wrecking the vehicle and severely injuring him. Storino filed a civil lawsuit in federal court against the state, alleging the Department of Transportation was negligent in not repairing the road. He sought more than $75,000 in damages.

On Wednesday, U.S. District Chief Judge Robert Miller Jr. tossed the year-old lawsuit out of court, saying Storino had missed a procedural deadline to file paperwork responding to a request from the state to dismiss the case.

The state Department of Transportation, which is responsible for maintaining that section of the boulevard as part of Ind. 41, had argued that Storino had no right to sue the state in federal court because of an 11th Amendment protection that states have from such suits.

Rather than respond to the argument, Storino's Chicago attorney let the filing deadline pass.

In his opinion dismissing the case, Miller said the attorney could be liable for the state's costs in defending the lawsuit because the attorney didn't bother to request the case be dismissed once it became clear Storino's claims had no legal basis.

Posted by Marcia Oddi on Thursday, May 17, 2007
Posted to Indiana Courts

Ind. Law - Results available early in ISBA salary survey of Indiana attorneys [Updated]

The findings of a recently conducted lawyer salary survey are going to be officially released at the Solo & Small Firm Conference (May 31-June 2), but much information is available already, here, via a blog called Empirical Legal Studies. Some quotes from a very interesting analysis:

I recently conducted a survey of billing and financial information for the Indiana State Bar Association (ISBA). The results are going to be presented at an upcoming conference of solo and small firm lawyers.

One of the most surprising findings was the lower incomes of small firm lawyers (i.e., five or fewer lawyers per firm) in large metropolitan areas versus mid-sized and small and rural markets. For example, in my sample of approximately 1,200 Indiana lawyers in private practices, lawyers working full-time in 1 to 5 lawyer firms in large metropolitan areas [see map below, click to enlarge] made an average of $112,712 (n=318), versus $117,284 in mid-sized markets (75,000 to 200,000 residents) (n=104) and $117,741 in small and rural locales (n = 84).

Note that these results are not driven by leverage of a few high outliers; the entire distribution tends to be lower in the larger metro areas. Since household incomes are generally higher in these same locales, I would have predicted the exact opposite pattern. * * *

So why are personal service lawyers making less money in larger markets? My working hypothesis is that graduates of urban law schools tend to stay in the area (indeed, many lived in the metro area before law school), thus oversupplying the region with personal service lawyers, heightening competition, and decreasing income. If this is true, it has important implications for so-called "local" law schools.

[Updated] Also of interest today is this article, "Second-Career Lawyers Opt to Go Solo," from the National Law Journal.

Posted by Marcia Oddi on Thursday, May 17, 2007
Posted to Indiana Law

Ind. Decisions - Big arguments tomorrow before Supreme Court

The Supreme Court is hearing two sets of oral argments tomorrow, May 18th:

9:00 AM - Bridgestone Corp. v. Mayberry

The Madison Superior Court entered an order compelling discovery of Bridgestone/Firestone's skim stock formula, but restricting dissemination of the information. The Court of Appeals affirmed. Bridgestone Americas Holding, Inc. v. Mayberry, 854 N.E.2d 355 (Ind. Ct. App. 2006), reh'g denied, vacated.

The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction of this appeal.

Attorneys for Bridgestone; Mark J.R. Merkle, and Marc T. Quigley both of Indianapolis, Indiana.

Attorneys for Mayberry; Peter Campbell King, and Donna L. Marsh both of Columbus, Indiana.

Attorneys for Amicus Curiae Rubber Mfrs. Assoc.; Kevin W. Betz of Indianapolis, Indiana.

Attorneys for Amicus Curiae Indiana Legal Found.; Jon Laramore and April E. Sellers both of Indianapolis, Indiana.

Here are ILB entries from Aug. 31, 2006 and March 13, 2007.

9:45 AM - Elliott v. Allstate Ins. Co. / State Farm Mut. Auto. Ins. Co. v. Jakupko

This combined oral argument involves passengers in automobile accidents who claimed that as a result of witnessing severe injury to a family member, they suffered negligent infliction of emotional distress accompanied by, or unaccompanied by, physical manifestations. The passengers sought coverage under uninsured and underinsured provisions of insurance policies.

The Hamilton Superior Court entered summary judgment for Patricia, Nicholas and Matthew Jakupko on their complaint against State Farm seeking underinsured coverage for their claims of negligent infliction of emotional distress. The Court of Appeals affirmed. State Farm Mut. Auto. Ins. Co. v. Jakupko, 856 N.E.2d 778 (Ind. Ct. App. 2006), vacated.

The Marion Circuit Court granted Allstate Insurance Company summary judgment on the claims of Austin and Amber Elliott, b/n/f William Elliott seeking uninsured coverage for their claims of negligent infliction of emotional distress. The Court of Appeals reversed and remanded. Elliott v. Allstate Ins. Co., 859 N.E.2d 696 (Ind. Ct. App. 2007), vacated.

The Supreme Court has granted petitions to transfer these cases, thus vacating the opinions of the Court of Appeals, and has assumed jurisdiction over the appeals.

Attorneys for State Farm Mut. Auto. Ins. Co.: Karl L. Mulvaney, Nana Quay Smith, Candace L. Sage, Indianapolis, IN. Attorneys for Allstate Ins. Co.: Richard P. Samek and Larry Barnard, Ft. Wayne, IN.

Attorneys for Amici Curiae, Ins. Institute of IN, Inc., Nat'l Assoc. of Mut. Ins. Cos. and Property Casualty Insurers Assoc. of America: Robert Clemens, George T. Patton, Jr. and Bryan Babb, Indianapolis, IN.

Attorneys for Jakupko: John F. Townsend, III, and Scott Montross, Indianapolis, IN. Attorney for Elliott: Michael L. Hanley, Indianapolis, IN.

Attorneys for Amicus Curiae, Indiana Trial Lawyers Assoc.: Jeffrey Wrage and Thomas Macke, Valparaiso, IN.

Here is a list of earlier relevant ILB entries.

Don't forget that if you can't make it to the Statehouse, you can watch the live feeds or archived oral arguments here.

Posted by Marcia Oddi on Thursday, May 17, 2007
Posted to Ind. Sup.Ct. Decisions

Law - Reminder: Jan Crawford Greenburg to appear at Federalist Society event here, tomorrow

As noted in the ILB on May 4th:

Jan Crawford Greenburg, ABC News Correspondent and author of: Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court, will appear here on Friday, May 18, 2007, at Noon, Conrad Indianapolis, 50 West Washington, at a CLE (pending) event sponsored by the Indianapolis Lawyers Division Chapter of The Federalist Society. The first 50 arrivals receive a free copy of the book.

(Details: $20 for members, students and government employees, $25 for non-members , Payment accepted at the door, RSVP to Janice Simmons at (317) 713-3488 or jsimmons@sommerbarnard.com.)

Ms. Greenburg has a blog, "Legalities: Life and the Law From ABC News Legal Correspondent Jan Crawford Greenburg." Access it here.

Posted by Marcia Oddi on Thursday, May 17, 2007
Posted to General Law Related

Wednesday, May 16, 2007

Law - Cert petitions to be filed re 7th Circuit voter ID decision [Updated]

The ILB has just learned that the ACLU-represented plaintiffs and the Indiana Democratic Party have each made final decisions to file separate but complementary cert petitions in Crawford v. Marion County Election Board. The petitions are currently due July 5.

For background, start with this ILB entry from May 2, 2007 and this one from May 14th.

[Updated] Rick Hasen of Election Law Blog now has a lengthy post on the decision to petition for cert.

Posted by Marcia Oddi on Wednesday, May 16, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 13 NFP)

For publication opinions today (1):

Louis A. Mata, Jr. v. State of Indiana - sentencing, affirmed (including restitution), except that the "trial court erred by failing to order that the sentence for this matter be served consecutively to the sentence for the prior conviction."

NFP civil opinions today (2):

In the Matter of Termination of the Parent-Child Relationship of D.M., C.C., Z.C.; Melissa Collett v. Marion County Department of Child Services and Child Advocates, Inc. (NFP) - termination, affirmed.

Bob Anderson Pontiac v. The Indiana Department of Workforce Development (NFP) - "Bob Anderson Pontiac, Inc. d/b/a Mike Anderson Chevrolet of Merrillville, Inc. (“Anderson Pontiac”) appeals a decision of a Liability Administrative Law Judge (“LALJ”) concluding that Anderson Pontiac became a “successor employer” for purposes of calculating its contribution to the Unemployment Insurance Benefit Fund (“Fund”),1 by purchasing certain assets of Shaver Motors, Inc. (“Shaver Motors”). * * * We conclude that the LALJ did not err in deciding the case without the predecessor employer as a party or in concluding that Anderson Pontiac acquired substantially all of the assets of Shaver Motors. Affirmed."

NFP criminal opinions today 11):

Donald Finch v. State of Indiana (NFP)

Aurelio Castillo v. State of Indiana (NFP)

Donald Herman v. State of Indiana (NFP)

Undrae Moseby v. State of Indiana (NFP)

Michael Jeffrey v. State of Indiana (NFP)

Ronald Frances v. State of Indiana (NFP)

Roger Coy, Jr. v. State of Indiana (NFP)

Jimmy Paris v. State of Indiana (NFP)

Nancy Prewitt and Michael Prewitt v. State of Indiana (NFP)

Eric Sarver v. State of Indiana (NFP)

Jason Jenkins v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 16, 2007
Posted to Ind. App.Ct. Decisions

Law - Louisville's "Jewish Hospital sues lawyers who unsuccessfully sued it"

Jason Riley of the Louisville Courier Journal reports today in a story that begins:

Nearly 100 people from across Kentucky and Indiana filed lawsuits against Jewish Hospital during the past three years, claiming they or a relative suffered illness or death because of an infection caused by unsanitary conditions.

But 84 of the 96 lawsuits have been dismissed, most after the two main lawyers who filed the cases withdrew late last year, telling clients they couldn't afford to continue. The remaining suits will be dismissed if new lawyers are not found.

Now Jewish Hospital is suing the two lawyers, Joseph White and Michael O'Connell, and their law firms, alleging they tarnished the hospital's reputation with statements to the media that they knew were false and misleading.

The hospital claims the lawyers never attempted to take the cases to trial, instead trying to force a settlement "in the face of false and adverse publicity."

The lawsuit alleges White and O'Connell withdrew because their suits had no merit. At least five of the cases were dismissed by judges before making it to trial, according to the hospital's suit. The suit, filed May 1 in Jefferson Circuit Court, claims the lawyers "intentionally misrepresented and concealed material facts" about the cases.

Posted by Marcia Oddi on Wednesday, May 16, 2007
Posted to General Law Related

Ind. Gov't. - "Residents speak out on guns in state parks"

First, I want to say that the available information on the state rulemaking process continually confuses me, so I don't know how people who are not professionals in the area keep track of rulemakings, much less appear at the proper times and places to testify on them.

Today Patrick Guinane of the NWI Times reports:

MIAMI COUNTY | Rita DeBard is licensed to carry a Colt .45 revolver and doesn't want to give up that right while visiting the state park adjacent to her home.

"I carry one for personal protection," DeBard said Tuesday night at the first of two public hearings on a proposal to allow handguns in state parks and wildlife areas.

"Basically, what you're doing is denying me the ability to carry my gun from my house to that state property," DeBard said.

The state allows licensed Hoosiers to carry concealed handguns in most public places, but Indiana's 24 state parks had been off limits to deter game poachers.

A preliminary rule approved in November lifted the long-standing ban. State bureaucrats are now taking public testimony before deciding whether to permanently allow handguns in state parks.

"These ought to be safe zones," said Robert Riester, an Indianapolis minister who drove 70 miles to speak at Tuesday's hearing at the Miami County Fairgrounds. "I think the state parks are sufficiently an Indiana treasure that we ought to let them be safe places for families and children."

Riester said a group of church leaders has asked Gov. Mitch Daniels to quash the proposed rules. The temporary handgun policy expires this fall, and the governor must sign off on any permanent rule. Riester said he and other church leaders worry about the safety of youth group outings they chaperone at state parks.

Ed Crago, an avid outdoorsman from Marion, is concerned with his own protection.

"I've been out bowhunting several times, and I've had to climb trees to get away from dogs," Crago said. "You ain't gonna shoot a deer with a .38 anyway."

DeBard, who lives near Salmonie River State Forest, said she's constantly bothered by hunters and gun enthusiasts illegally shooting near her home. She says it's not fair to make her keep her handgun at home when she walks over to ask the scofflaws to disperse.

Most of the dozen or so residents who spoke at Tuesday's meeting said the rule allowing handguns at state parks should be made permanent. After Riester, David Heflin, of Galveston, was the only other dissenter.

"I have a handgun," Heflin said after the meeting. "But I've never felt the need to carry it."

The state will have another hearing on the handgun rule tonight at Spring Mill State Park in southwestern Indiana. The Natural Resource Commission, an administrative panel, is expected to take a final vote in July.

On Nov. 15, 2006 the ILB had an entry titled "Guns in state parks rule gets first public hearing." Again, Patrick Guinane was the only reporter apparently following the story.

I briefly tried this morning to find the pending guns in state parks rule using the Online Indiana Register search, without success.

Posted by Marcia Oddi on Wednesday, May 16, 2007
Posted to Indiana Government

Ind. Decisions - More on: Supreme Court reverses Jennings County murder conviction

Both the AP and the Indianapolis Star have stories today on the Supreme Court's decision yesterday in Rohr v. State of Indiana (see ILB entry here).

From the Star story by Mary Beth Schneider:

The Indiana Supreme Court has ordered a new trial after overturning the murder conviction of a North Vernon man accused in the beating death of his girlfriend's son.

Aaron Michael Rohr is serving a life sentence without parole for the 2005 murder of 5-year-old Samuel Moore. While the court, in a decision released Tuesday, found there was enough evidence to convict Rohr, it also said the jury should have been allowed to hear from two witnesses whose testimony could have shown Samuel's mother, Donna, was chiefly responsible for the boy's death. * * *

Jennings County Prosecutor Gary Smith said he "certainly" will retry Rohr.

"All I can say is I'm disappointed and shocked by the ruling," Smith said. "However, we will retry him."

Smith also said he has asked the Indiana attorney general's office, which argued the case before the Supreme Court, to consider asking for a rehearing. The attorney general's office declined to comment. * * *

At the trial, Rohr's attorney had wanted to call to the stand two women who apparently had witnessed Moore's abuse of her son since he was 6 months old -- testimony that might have convinced the jury that she, and not Rohr, had killed the boy.

The judge, though, barred their testimony when prosecutors argued that they had not been told early enough about the defense's plans to call the women as witnesses.

But the Supreme Court noted that the defense hadn't even known of the women until they learned of their existence from the prosecution itself, only one day before a court-imposed deadline for disclosing the names of witnesses.

The defense, the court ruled in the 5-0 decision, had not intentionally delayed placing the women on their witness list, and the prosecution had more than a month to interview them.

"The potential importance of the witnesses' testimony to the defense may be inferred from the state's efforts to exclude their testimony," Justice Brent E. Dickson wrote in the court's opinion.

"While the evidence without the excluded witnesses was sufficient for a conviction, the erroneous exclusion of witnesses requires a new trial," he noted later in the opinion.

From the AP story:
The state argued that the two potential witnesses were not listed by the defense until 30 days past a discovery deadline and only four days before the scheduled trial. The judge granted the state’s request to exclude them.

But the high court said the extreme sanction of witness exclusion “should not be deployed unless the defendant’s breach has been purposeful or unless substantial or irreparable prejudice would result to the state.”

It also said that there is a strong presumption to allow the testimony of even late-disclosed witnesses, and their exclusion in this case resulted in substantial prejudice to the defense.

Jennings County Prosecutor Gary Smith said Tuesday he has asked the state attorney general’s office to seek a rehearing of the appeal by the Supreme Court. If that fails, he will retry Rohr on all the original charges.

Posted by Marcia Oddi on Wednesday, May 16, 2007
Posted to Ind. Sup.Ct. Decisions

Tuesday, May 15, 2007

Ind. Decisions - Supreme Court grants transfer to one case today

The Indiana Supreme Court has today granted transfer in the case of Porter County Development Corporation v. Citibank (South Dakota), N.A. Here is a link to the 10/18/06 CA opinion by Judge Friedlander. The opinion concluded:

A plaintiff alleging the existence of constructive fraud has the burden of proving the existence of a duty owing to it by the party to be charged due to their relationship, and the gaining of an advantage by the party to be charged with fraud. This duty may arise in one of two ways: (1) by virtue of the existence of a fiduciary relationship; or (2) in the case where there is a buyer and a seller, where one party may possess knowledge not possessed by the other and may thereby enjoy a position of superiority over the other. Id. In the instant case, none of the conditions giving rise to a constructive trust are present. PCDC concedes Citibank obtained the funds from Vincent in good faith and without knowledge of Vincent’s misappropriation. Further, nothing in the record indicates the existence of a relationship between PCDC and Citibank, much less that of a fiduciary. We decline, therefore, to impose upon Citibank a constructive trust in favor of PCDC. Judgment affirmed.

Posted by Marcia Oddi on Tuesday, May 15, 2007
Posted to Indiana Transfer Lists

Ind. Courts - Court of Appeals Holds Oral Argument at Plainfield High School in Hendricks County

Next Tuesday, May 22nd, the Indiana Court of Appeals will hear oral argument in David Schlotman v. Taza Café D/B/A Gyro Joint at 1:00 p.m. at Plainfield High School. A panel of Judge Edward W. Najam, Jr., Judge Melissa S. May, and Judge Paul D. Mathias will hear the case on appeal from Marion Superior Court.

Among other questions regarding negligence and evidence, the Court is asked to decide whether the proprietor of a carry-out restaurant has a duty to protect a patron who is attacked while eating his food at a table the proprietor has placed outside the restaurant.

Arguing for the appellant, Mr. Schlotman, is Timothy Devereux of the Hensley Legal Group; John Mervilde of Meils, Thompson, Dietz & Berish will argue for the Gyro Joint.

Regular readers of the ILB may recall the Taco Bell case (Sonya Winchell v. Remco Guy, et al.), where, according to story by the Fort Wayne Journal Gazette's Niki Kelly on Dec. 6, 2006:
The Court of Appeals found there is long-standing precedent that “proprietors owe a duty to their business invitees to use reasonable care to protect them from injury caused by other patrons and guests on their premises, including providing adequate staff to police and control disorderly conduct.”

Winchell contends in her suit that Taco Bell was aware of the potential for violence, as evidenced by its closing the interior of the restaurant at midnight. Also, the restaurant had installed a closed-circuit video monitoring system equipped with a panic button and hired off-duty police officers for security.

But on that Wednesday night there was no security guard and the video monitoring system was in a closet not readily accessible to employees.

See the Dec. 6th ILB entry here.

Posted by Marcia Oddi on Tuesday, May 15, 2007
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 5 today (and 7 NFP)

For publication opinions today (5):

In Cincinnati Insurance Company v. American Alternative Insurance Corporation, David F. Milligan, Sharon Milligan, Clinton County, Indiana, et al. , a 13-page opinion, Judge Barnes writes:

The issue before us is whether the “other insurance” clause in Cincinnati’s policy is irreconcilable with the “other insurance” clause in AAIC’s policy, requiring pro ration of coverage between both policies for an accident involving an insured of both companies. * * *

This result is consistent with the majority rule in similar cases, which has been described as follows:

If one policy has been issued to the owner of the vehicle causing damage, and another covers the same loss by virtue of the relationship to the accident of one who is not the vehicle owner, the latter’s insurer, at least where its coverage is of the “excess insurance” variety, is in the favorable position and need not assume any of the loss, although the vehicle owner’s policy contains a “prorata” clause.
Maryland Cas. Co. v. American Family Ins. Group of Madison, Wis., 429 P.2d 931, 940 (Kan. 1967) (quoting 76 A.L.R.2d 502, 505 (1961)). Indeed, it is precisely this majority rule that the legislature adopted as the public policy of this state when it enacted Indiana Code Section 27-8-9-7. Although as noted the facts of this case do not fall within the letter of the statute, and Milligan technically was not the “owner” of the Expedition but instead was a long-term lessor, we believe it would contravene both principles of contract interpretation and the intent of the legislature to require AAIC to provide primary, prorated coverage for this accident and ignore the clear language of its excess clause. Cincinnati’s coverage for Milligan’s accident is primary, and AAIC’s is excess only after exhaustion of Cincinnati’s policy limits.

Conclusion The trial court did not err in granting summary judgment in favor of AAIC and concluding that its coverage for Milligan’s accident strictly is excess only after exhaustion of the limits of Milligan’s personal automobile policy with Cincinnati. We affirm.

Donna M. Curtis v. Donna K. Butler - "The statute here at issue directs the Commission to determine a voter’s choice by examining the ballot. If the intent can be determined from the ballot, the vote shall be counted. If it is impossible to determine the voter’s choice, the vote may not be counted. There is no provision for the consideration of evidence that is extrinsic to the ballot to determine individual voter intent. Here, the Commission was able to determine each voter choice from the ballot presented and examined. There is no statutory authorization for a challenge to a completed ballot based upon a showing of a contrary intent. Moreover, there is no statutory provision for the withdrawal of a vote once it is cast, even if the voter subjectively intended by his or her subsequent omission to do so. As such, Curtis did not show that the Commission procedurally failed to comply with its statutory duty so as to invalidate the recount. Affirmed.

Valerie Raich Baxendale v. Samuel Raich - "Valerie Baxendale appeals the denial of her request to relocate to Minneapolis that resulted in the modification of the custody of her eleven-year-old son, A.R., to her ex-husband, Samuel Raich, III. We reverse."

Michael J. Duso v. State of Indiana - "Duso raises one issue, which we restate as whether the trial court abused its discretion by denying Duso the opportunity to make an offer of proof by questioning a witness after that witness invoked her Fifth Amendment right not to incriminate herself. We affirm."

Morrell N. Jones v. State of Indiana - "Morrell Jones appeals the denial of his motion to suppress statements he made to a polygraph examiner, his probation officer, and a police detective. We affirm."

NFP civil opinions today (3):

Michael E. Wetzel v. Wolfes Auto Auction (NFP) - "Wetzel raises two issues on appeal, which we revise and restate as: I. Whether the small claims court erred by entering judgment for Auto Auction; and II. Whether the small claims court judge showed bias when it entered judgment for Auto Auction. We affirm."

Marietta Hinkel v. Home Depot USA, Inc. (NFP) - Marietta Hinkel appeals the judgment in her personal injury claim against Home Depot USA, Inc. Affirmed.

Michelle Hartwell v. United Consulting Engineers, Inc.; United Consulting Engineers, Inc. v. Hunt Paving Co. Inc. (NFP) - Petition for rehearing, denied.

NFP criminal opinions today (4):

Percy Bronson v. State of Indiana (NFP)

Ulises Ledo v. State of Indiana (NFP)

Ricky D. Smith v. State of Indiana (NFP)

Shaun Matthews v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 15, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court reverses Jennings County murder conviction

In Rohr v. State of Indiana, a 10-page, 5-0 opinion, Justice Dickson writes:

The defendant, Aaron Michael Rohr, was convicted for the murder of five-year-old Samuel Moore and sentenced to life in prison without the possibility for parole. In this direct appeal, the defendant seeks appellate relief as to the following issues: (1) sufficiency of evidence; (2) entitlement to change of venue due to pretrial publicity; (3) exclusion of witnesses; (4) exclusion of documentary evidence; (5) comments by the judge during trial; and (6) sentencing proce-dure. Finding substantial error in the exclusion of testimony of two defense witnesses, we reverse and remand for a new trial. * * *

Because we find the issue determinative, we first address the defendant's contention that his right to a fair trial was denied when the trial court prohibited him from calling and presenting the testimony of two witnesses, Roseanne Palmer and Melissa Scott. The State responds that the exclusion, as a ruling on discovery matters, should be affirmed because of the wide discretionary latitude given to trial judges, or alternatively, if the exclusion was error, it was harmless and thus not grounds for reversal. * * *

Upon reviewing the record and in light of all the evidence, we are unable to conclude that the trial court's exclusion of Roseanne Palmer and Melissa Scott as defense witnesses "is sufficiently minor so as not to affect the defendant's substantial rights." * * * We decline the State's urging that we affirm on grounds of harmless error. We reverse the defendant's conviction. * * *

Having determined that a new trial is required due to trial error, we also address the issue of sufficiency of the evidence raised by the appellant. This involves determining whether, based on the evidence presented at trial, sufficient evidence exists to support the conviction. * * * If the proof of the defendant's guilt was insufficient in light of the evidence actually presented at his trial, he is not subject to retrial but is entitled to an acquittal. * * *

Mere presence at the crime scene is insufficient proof to support a conviction, but pres-ence at the scene coupled with other circumstances tending to show participation in the crime may be sufficient to sustain a guilty verdict. * * * Such circumstantial evidence is sufficient if it allows for reasonable inferences enabling the jury to determine guilt beyond a reasonable doubt. * * *

[I]n this case, we find that the evidence favorable to the verdict, together with its reasonable inferences, is sufficient for a reasonable jury to find each element of the crime proven beyond a reasonable doubt. While the evidence without the excluded witnesses was sufficient for a conviction, the erroneous exclusion of witnesses requires a new trial.

Posted by Marcia Oddi on Tuesday, May 15, 2007
Posted to Ind. Sup.Ct. Decisions

Law - Changing role of grandparents?

The ILB has posted a number of entries about cases concerning grandparents' visitation. Here is a list of some of them.

Here is an interesting entry in the blog, Concurring Opinions, titled "Should the Law Recognize Grandparents’ Changing Roles?" The entry is written by Law Prof Solangel Maldonado of Seton Hall Law School. It includes a link to this NY Times story from May 10th headlined "The Incredible Flying Granny Nanny."

Posted by Marcia Oddi on Tuesday, May 15, 2007
Posted to General Law Related

Environment - Great Lakes Commission here in Indy yesterday and today

Patrick Guinane of the NWI Times reports:

Officials from eight states and two Canadian provinces are meeting in Indianapolis to discuss challenges confronting the Great Lakes.

Leaders hope to protect the world's largest source of freshwater from Asian carp, zebra mussels and other invasive species while promoting responsible water consumption by municipalities and industry. Both topics are driving debate at the Great Lakes Commission's semiannual meeting in Indianapolis, a two-day event that opened Monday.

Commission members are keeping an eye on the U.S Environmental Protection Agency and Environment Canada. The agencies are reviewing a Great Lakes water quality agreement last updated in 1987. They are expected to issue recommendations later this year. * * *

On the water-use side, the Great Lakes Commission is pushing Congress and state legislatures to adopt the Great Lakes Water Resources Compact signed in late 2005 by the governors of Illinois, Indiana, six other states and the premiers of Quebec and Ontario. The agreement would prevent Great Lakes water from being shipped or piped outside the region.

"We have a game plan to get it passed in Indiana -- 2008 is our goal," said Lee Botts, a Gary environmentalist who helped found the Great Lakes Commission in 1970. "We had hoped we might be the first state to do it, but Minnesota beat us to it."

The compact would update an earlier agreement preventing communities outside the watershed area, including Lowell, from tapping Great Lakes water.

For background, see this ILB entry from Feb. 13th.

Posted by Marcia Oddi on Tuesday, May 15, 2007
Posted to Environment

Ind. Law - What if your solo practitioner attorney leaves with no forwarding address? [Updated]

That is the situation TV 14 NEWS' Stefanie Silvey investigated:

When Bruce Smith Junior recently received word he had a tumor on his lung, he immediately called the office of his attorney Emil Becker to get copies of his will and living will.

Smith says, "I've called his answering service and they keep telling me that he just stepped out of the office."

For six months, Smith says he has called with no results, "Now sometimes when I call and let them know that I'm aggravated that he hasn't returned my phone calls, they hang up their phone on me. "

14 News decided to call the number in the phone book listed as Emil Becker's law office. When we called it we got an answering service that told us his office was located at 611 Walnut Street, but when we got there we found what everyone else has found, a vacant building.

Smith says, "It's unreal when you are told to go to that address and there is nothing there."

It turns out attorney Emil Becker has an illness of his own to worry about. He's currently out of state recovering from a liver transplant. Becker's son-in-law, Brian Downs, says, "Anyone who has walked into the office after August of last year, I've advised that they need to seek the advice of a new attorney simply for health reasons."

14 News: "So, if they have anything that is not finished, you can't help them with that obviously?"

Downs: "I didn't get my law degree, so I can't help them out."

But Judge Wayne Trockman says there is a group who can, "If you've made two or more calls and you haven't received an appropriate response and you don't feel like you are making progress, call the Evansville Bar Association."

He says when attorneys are solo practitioners and don't have partners to fall back on for help, this committee can help their clients reach resolution.

[Updated - almost immediately] Ted A. Waggoner, Peterson & Waggoner, LLP, Rochester IN, writes:
Marcia, I assume you are aware of the proposed Surrogate Attorney Rule now before the Indiana Supreme Court Rules Committee. This posting follows the close of comments on the proposed Rule, the last day for comments was May 11.

The Solo and Small Firm Conference will host an educational discussion on the proposed Rule at the conference, which will be May 31 to June 2 in Indianapolis. The discussion will be at the closing luncheon on Saturday. I will be moderating the conversation, with Bill Freihofer and Timothy Dodd sharing thoughts and views on the Surrogate Attorney Rule.
Here is a link to info about the Conference. Here is a registration form.

And here is the proposed rule Ted mentioned about attorney surrogates.

Posted by Marcia Oddi on Tuesday, May 15, 2007
Posted to Indiana Law

Environment - Former meth lab leaves unfit home

Indiana passed a methamphetamine cleanup law in 2005 and cleanup rules were just finalized recently. Here are ILB entries from 12/27/04, 1/1/06, 8/6/06, and 3/23/07.

Today the Cincinnati Enquirer has a troubling story about a family that unknowingly moved into a home that had been contaminated by a former tenant. The caption to one of the photos tells the story: "Cindy Wilson and her fiance, Daniel Levline, wait to see if items can be salvaged from their Whitewater Township home, contaminated by a former meth lab. All three children are sick, and Wilson is seven months pregnant."

Posted by Marcia Oddi on Tuesday, May 15, 2007
Posted to Environment

Law - Seven states' attorneys general review hiring of outside counsel

The National Law Journal today has a lengthy story by Amanda Bronstad that reports:

Attorneys general in seven states -- some of whom have retained plaintiffs law firms to bring high-profile lawsuits involving lead paint and the painkiller OxyContin -- are instituting new policies or facing legislative pressure to make the hiring of outside legal counsel more transparent.

The changes come as several tort reform groups, particularly the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce, have been appealing to attorneys general for more transparency and accountability in how they retain outside law firms.

Plaintiffs lawyers said the moves toward transparency are assaults by business groups on attorneys general who bring damaging cases against them.

What about Indiana? A list of Attorney General Carter's active contracts may be found here. The contracts themselves may be reviewed by following the links. This goes a long way towards transparency.

However, there is no information the ILB can locate on the site about how these contracts originate - i.e. is there a public bid process or RFP? If so, is it widely advertised?

A quick review of a number of the contracts shows that many of them have been renewed several times beyond their original expiration dates, meaning perhaps that once an acceptable contractor is found, the termination date and payment provisions are simply amended when the contract runs out. The "contract totals" amount in the spread sheet appears to account for this by reflecting the total amount of the contract over time.

Posted by Marcia Oddi on Tuesday, May 15, 2007
Posted to General Law Related | Indiana Government

Monday, May 14, 2007

Courts - Pennsylvania Rule Prohibiting Judicial Candidates’ Speech Enjoined

From a press release of attorney James Bopp, Jr., lead counsel for the plaintiffs:

Federal District Court Judge Marvin Katz has granted a preliminary injunction against provisions of the Pennsylvania Code of Judicial Conduct that prohibited state court judicial candidates from responding to a questionnaire asking their views on legal and political issues. The Court held that provisions of Pennsylvania’s Code that forbid judicial candidates from making “pledges or promises” of conduct in office or statements that “commit or appear to commit” candidates on issues likely to come before them violated the First Amendment to the U.S. Constitution because these provisions prohibited candidates from simply announcing their views on issues.
Bopp obtained a similar remedy in Indiana last November; see this Nov. 14, 2006 ILB entry. Here is the Pennsylvania memorandum and order, via the James Madison Center for Free Speech.

Posted by Marcia Oddi on Monday, May 14, 2007
Posted to Courts in general

Law - More on "Life is short. Get a divorce" billboard is short-lived

Updating this May 9th entry about the windy city to the north, which began with a quote from the Sun Times:

The salacious "Life is short. Get a divorce" billboard with barely clothed models was ripped from its Rush Street perch one week after it went up and one day after the Sun-Times reported it.
Take a look at this column yesterday in the NY Times.

Posted by Marcia Oddi on Monday, May 14, 2007
Posted to General Law Related

Law - Is Chicago next for the $160,000 beginning associate salaries?

Above the Law fuels the speculation today with this post. Pay attention to the comments.

Here is a salary chart on autoadmit.com, last updated in early April.

Posted by Marcia Oddi on Monday, May 14, 2007
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 3 today (and 7NFP)

For publication opinions today (3):

In In the Matter of N.H., A.V., and E.M., and Gregory Hardister v. Marion Co. Dept. of Child Services and Child Advocates, Inc. , a 7-page opinion, Judge Robb writes:

In 2000, Greg Hardister was appointed guardian of his step-daughter, A.V. In 2002, A.V. became the subject of a child in need of services (“CHINS”) petition. In 2006, Hardister sought discovery in the CHINS proceeding of certain information regarding A.V. and the guardian ad litem (“GAL”) objected. Hardister now appeals the trial court’s judgment that he is not entitled to discovery because he is no longer a party to the CHINS action. Concluding that the trial court erred in dismissing Hardister as a party to the CHINS because he had not been removed as A.V.’s guardian, we reverse and remand.
In Speedway SuperAmerica LLC v. Gerald Holmes and Madeline Holmes, an 18-page opinion (including a 3-page dissent), Judge Riley writes:
Even though, at first glance Indiana Trial Rule 59 and 60 appear to be a perfect continuation of one another—if evidence cannot be discovered within the initial thirty-day period of T.R. 59, a motion pursuant to T.R. 60 can be initiated—our case law has decided otherwise. It is firmly established that a motion for relief from judgment under T.R. 60(B) may not be used as a substitute for a direct appeal based upon a timely motion to correct errors under T.R. 59. * * * Neither can a T.R. 60(B) motion be employed to revive an expired attempt to appeal. * * * The proper function of a T.R. 60(B) motion is to afford relief from circumstances which could not have been discovered during the thirty day period in which a T.R. 59 motion to correct errors could have been filed with the trial court. Snider, * * *

Because we conclude that the newly discovered evidence was capable of being discovered within thirty days after entry of judgment, a motion to correct error pursuant to T.R. 59 is a jurisdictional prerequisite. As Speedway’s T.R. 59 motion filed January 19, 2005, merely contained a preview of things to come but did not include the actual newly discovered evidence, the trial court properly denied Speedway’s motion. As we also find that this newly discovered evidence could have been discovered, if pursued diligently, within thirty days of entry of judgment, Speedway cannot avail itself of a T.R. 60(B)(2) motion to revive its expired remedy of appeal. Accordingly, the trial court properly denied Speedway’s Motion for New Trial, filed April 27, 2005. * * *

The basis of Speedway’s T.R. 60(B)(3) motion is the Holmeses’ alleged misrepresentation concerning the manufacturing date and wear and tear of the jeans. However, as we stated above, the jeans’ manufacturing date was discoverable almost immediately upon offering the jeans into evidence. With respect to the stain on the jeans, we determined that, upon due diligence, expert evidence was available within thirty days after entry of the judgment to establish that no diesel fuel had ever come in contact with the trousers. Speedway failed to present any evidence to this court that it could not have discovered this evidence in time to file a motion to correct error as required by T.R. 60(B)(2).

Accordingly, as we discourage parties to file successive T.R. 60(B) motions, here, Speedway did not convince this court that exceptional circumstances existed to warrant elevation of substance over form. * * * In essence, we do not allow parties to make strategic decisions only to attempt to relitigate issues after those strategic decisions go awry without a showing that the matter raised in the successive motions was unknown and unknowable at the time of the first motion for relief from judgment. Thus, we find that the trial court properly denied Speedway’s T.R. 60(B)(3) motion.

CONCLUSION Based on the foregoing, we conclude that the trial court properly denied Speedway’s successive motions for relief from judgment. Affirmed.

MAY, J., concurs.
BAILEY, J., dissents with separate opinion. [Which begins] I respectfully dissent because I believe this is a clear case for relief under Indiana Trial Rule 60(B)(3), but that the majority has elevated form over substance, and imposed an onerous burden upon Speedway to anticipate and respond to specious conduct by the Holmeses. The majority essentially decides that, because Speedway failed to ferret out the exact nature of the alleged fraud and so advise the trial court within thirty days under the newly discovered evidence provision of Trial Rule 60(B)(2), its right to claim fundamental unfairness of the proceedings is forfeited. The practical import is: if the wrongdoer is adept at concealment, and thirty days pass silently after trial, he is rewarded for his conduct. However, our Supreme Court has specifically rejected a “gaming view of the legal system,” Smith v. Johnston, 711 N.E.2d 1259, 1264 (Ind. 1999), and the Holmeses should not be rewarded for such. * * *

The practical effect of the majority decision is that the Holmeses are rewarded, at worst for fraud, and at best for a lack of diligence in making crucial evidence available. Meanwhile, Speedway’s perceived lack of diligence has resulted in the denial of all post-trial relief and the affirmation of an order that it pay more than half a million dollars. For these reasons, I would reverse the denial of equitable relief and remand for a new trial.

American Arbitration Association, et al v. North Miami Community Schools, and Donald G. Davis , an 11-page opinion, Judge Robb writes:
The North Miami Education Association (“Education Association”) filed a grievance and a demand for arbitration against the North Miami School Corporation (“School Corporation”) alleging that the terms of a severance agreement between the School Corporation and Donald G. Davis violated the terms of a collective bargaining agreement (the “Master Contract”). The School Corporation filed a lawsuit seeking injunctive and declaratory relief to prevent arbitration. The Education Association now appeals the trial court’s entry of the preliminary injunction, contending that the School Corporation failed to establish its entitlement to such relief. Concluding that the trial court erred in granting the motion for a preliminary injunction because the Master Contract requires the arbitrator, and not the trial court, to first determine whether the grievance is arbitrable, we reverse. * * *

The trial court erred in preliminarily enjoining the arbitration proceedings. The Master Contract, with its enforceable arbitration agreement, provides in clear terms that grievances are to be submitted to binding arbitration. Whether the grievance filed by the Education Association is an arbitrable grievance is an issue for the arbitrator, not the trial court, to decide. The Master Contract unequivocally provides that the arbitrator resolves questions regarding the arbitrability of a grievance. Accordingly, we reverse the trial court and remand with instructions to dissolve the preliminary injunction, and to order the parties to participate in the arbitration proceedings before the American Arbitration Association pursuant to the terms of the contract.NFP civil opinions today (0):

NFP criminal opinions today (7):

Herbert Stephenson, Jr. v. State of Indiana (NFP)

Edward J. Niksich v. State of Indiana (NFP)

Ernest D. Johnston v. State of Indiana (NFP)

James Edward Leach v. State of Indiana (NFP)

Antoine Wilson v. State of Indiana (NFP)

Paul Nunn v. State of Indiana (NFP)

Joshua Stansel v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, May 14, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One Indiana case decided today by 7th Circuit

In USA v. Eddie Lee Strong (SD Ind., John Daniel Tinder, Judge), a 12-page opinion, Judge Ripple writes:

A jury found Eddie Strong, a felon, guilty of possessing ammunition but acquitted him of possessing a firearm. See 18 U.S.C. § 922(g)(1). He was sentenced to 62 months’ imprisonment. Evidence was admitted at trial demonstrating that drugs were sold at the house where the firearm and ammunition were discovered. Mr. Strong challenges the admission of this evidence as irrelevant and prejudicial. Because this evidence tended to prove Mr. Strong’s knowing possession of the drugs and the firearm and because it was not unduly prejudicial, we affirm his conviction. * * *

We recognize that a sizeable amount of uncharged conduct was admitted in this case. However, considering the significant linkage of drug trafficking and firearms, we cannot say that the district court abused its discretion by determining that it was proper for the jury to be made aware of the substantial likelihood that drugs were being dealt at 612 East 5th Street. See generally United States v. Thompson, 359 F.3d 470, 479 (7th Cir. 2004) (explaining that “all probative evidence is prejudicial to the party against whom it is offered . . . the relevant inquiry is whether there was unfair prejudice”) (emphasis in original).

Posted by Marcia Oddi on Monday, May 14, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on: Potential appeal of Indiana voter ID case to Supreme Court anticipated

As the ILB wrote on May 2nd, "The papers have been full of stories about pressure being put on U.S. attorneys nation-wide to dig out and prosecute examples of voter fraud."

Today the Washington Post has a story reporting:

The behind-the-scenes maneuvering to replace U.S. attorneys viewed as weak on voter fraud, from state Republican parties to the White House, is one element of a nationwide partisan brawl over voting rights in recent years. Ever since the contested 2000 presidential election, which ended in a Florida recount and intervention by the U.S. Supreme Court, both political parties have attempted to use election law to tip close contests to their advantage.

Through legislation and litigation, Republicans have pressed for voter-identification requirements and other rules to clamp down on what they assert is widespread fraud by ineligible voters. Starting early in the Bush administration, the Justice Department has emphasized increasing prosecutions of fraudulent voting.

Democrats counter that such fraud is rare and that GOP efforts are designed to suppress legitimate votes by minorities, the elderly and recent immigrants, who are likely to support Democratic candidates. A draft report last year by the Election Assistance Commission, a bipartisan government panel that conducts election research, said that "there is widespread but not unanimous agreement that there is little polling place fraud."

That conclusion was played down in the panel's final report, which said only that the seriousness of the problem was debatable. * * *

Rick Hasen, a professor at Loyola Law School who runs an election law blog, said that "there's no question that Karl Rove and other political operatives" urged Justice officials to apply pressure on U.S. attorneys to pursue voter-fraud allegations in parts of the country that were critical to the GOP.

Hasen said it remains unclear, however, "whether they believed there was a lot of fraud and U.S. attorneys would ferret it out, or whether they believed there wasn't a lot of fraud but the allegations would serve political purposes."

Posted by Marcia Oddi on Monday, May 14, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Gay law in Indiana

The May 2007 issue of Res Gestae, the journal of the Indiana State Bar Association, includes an article, "Family law issues concerning gays, lesbians and their children under Indiana law," that presents an excellent overview of the Indiana law in this area. The authors are Bingham McHale attorneys James A. Reed and Michael R. Kohlhaas.

The ILB has received permission to post this 10-page cover article - access it here.

Posted by Marcia Oddi on Monday, May 14, 2007
Posted to Indiana Law

Ind. Decisions - "'Honk for peace' case tests limits on free speech"

Bob Egelko of the San Francisco Chronicle writes today about the Jan. 24th 7th Circuit decision in the Indiana case of Mayer v. Monroe County. (See ILB summary here.) Some quotes from the story:

When one of Deborah Mayer's elementary school students asked her on the eve of the Iraq war whether she would ever take part in a peace march, the veteran teacher recalls answering, "I honk for peace."

Soon afterward, Mayer lost her job and her home in Indiana. She was out of work for nearly three years. And when she complained to federal courts that her free-speech rights had been violated, the courts replied, essentially, that as a public school teacher she didn't have any.

As a federal appeals court in Chicago put it in January, a teacher's speech is "the commodity she sells to an employer in exchange for her salary." The Bloomington, Ind., school district had just as much right to fire Mayer, the court said, as it would have if she were a creationist who refused to teach evolution.

The ruling was legally significant. Eight months earlier, the U.S. Supreme Court had decided in a case involving the Los Angeles district attorney's office that government employees were not protected by the First Amendment when they faced discipline for speaking at work about controversies related to their jobs. The Chicago appeals court was the first to apply the same rationale to the classroom, an issue that the Supreme Court expressly left unresolved.

But legal analysts said the Mayer ruling was probably less important as a precedent than as a stark reminder that the law provides little protection for schoolteachers who express their beliefs. * * *

The Mayer ruling was disappointing but not surprising, said Michael Simpson, assistant general counsel of the National Education Association, the nation's largest teachers' union. For the last decade, he said, federal courts "have not been receptive to arguments that teachers, both K-12 and higher education, have free-speech rights in the classroom."

That's unacceptable, said Mayer, 57, who now teaches seventh-graders in Haines City, Fla. She said she's scraped up enough money, by selling her car, to appeal her case to the Supreme Court, though she doubts the justices will review it.

"If a teacher can be fired for saying those four little words -- 'I honk for peace' -- who's going to want to teach?" she asked. "They're taking away free speech at school. ... You might just as well get a big television and set it in front of the children and have them watch, (using) the curriculum the school board has." * * *

The Supreme Court has never ruled on teachers' free speech. In lower courts, teachers have won cases by showing they were punished for violating policies that school officials never explained to them beforehand or invented after the fact. A federal appeals court in 2001 ruled in favor of a fifth-grade teacher in Kentucky who was fired for bringing actor Woody Harrelson to her class to discuss the benefits of industrial hemp, an appearance that school officials had approved. * * *

Unless the Supreme Court takes up Mayer's case, its legal effect is limited to federal courts in Illinois, Indiana and Wisconsin, the three states in the Seventh Circuit. But Amar, the Hastings law professor, and others said the ruling could be influential elsewhere because there are few appellate decisions on the issue, and because the author, Chief Judge Frank Easterbrook, is a prominent conservative jurist.

"Very few schools are going to be that harsh in muzzling or silencing their teachers," but the ruling indicates they would be free to do so, Amar said.

Posted by Marcia Oddi on Monday, May 14, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Attorney to outline legal opinion on police panel"

Melanie Csepiga of the NWI Times reports today:

LOWELL | Town Attorney John Kopack is scheduled to provide his legal opinion tonight on whether the political makeup of the Lowell Police Commission meets state requirements.

But last week's primary election might make Kopack's presentation to the Town Council moot, because one way to determine a person's political party is to examine how he or she voted.

The issue, raised two months ago by Lowell Republican Chairman Ruben Santos, who had sought an appointment to the Police Commission, is whether the commission is operating legally.

Santos said it isn't.

Citing a section of Indiana code, Santos said the law says no more than three members on a five-member board may be from the same political party.

Santos said he checked Lake County voting records and found that in the May 2006 primary election all of the Lowell police commissioners voted for the same political party.

On Thursday, when the commissioners met to conduct business, they said they all voted Tuesday.

This issue may be of wider interest. For instance, the law regarding the members of the Indiana air pollution control board requires:
IC 13-17-2-3 Members; political party affiliation

Sec. 3. Not more than four (4) of the appointed members of the board may be members of the same political party.
As added by P.L.1-1996, SEC.7.

Similar requirements apply to the other state enviromental boards.

These boards pass rules, with the force and effect of law, that govern, for instance, the practices of most industrial facilities in Indiana.

But finding out whether the air board's membership is properly constituted insofar as IC 13-17-2-3 is concerned is difficult if not impossible.

Here is the only readily available information on the air board's membership. Notice that no information is provided on political affiliation.

Is a rule adopted by a board that is not properly constituted valid?

Posted by Marcia Oddi on Monday, May 14, 2007
Posted to Indiana Government

Ind. Decisions - "Appeals court upholds sex offender's sentence"

The Muncie Star-Press reports today on the NFP Court of Appeals decision May 10th in the case of Ronald S. Hobbs v. State of Indiana. Some quotes:

MUNCIE -- A state appeals court has rejected a convicted sex offender's contention that his nine-year prison term was too harsh.

Ronald S. Hobbs, 44, received the sentence last summer from Delaware Circuit Court 3 Judge Robert Barnet Jr. after the Muncie man had pleaded guilty to three counts of child seduction, all class D felonies carrying maximum three-year sentences.

Authorities said Hobbs had repeatedly engaged in sex acts with his victims beginning when they were elementary school students.

Under the terms of a plea agreement, the Delaware County prosecutor's office dismissed a count of child molesting, a class A felony carrying a maximum 50-year sentence, pending against Hobbs.

In an appeal, Hobbs said Barnet should have considered his alcoholism, and the fact he was intoxicated when some of his crimes took place, as mitigating factors.

The Indiana Court of Appeals last week rejected that argument, along with another contending Hobbs should have received a lesser sentence because the crimes he pleaded guilty to "were all very similar incidents which occurred within a short period of time."

"It is not apparent why a court would find mitigation in the fact Hobbs' three crimes ... were committed in a similar manner within the same month," the appellate judges wrote.

Posted by Marcia Oddi on Monday, May 14, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - More about drug courts

Following up on other recent ILB entries about drug courts, here is an editorial today from the Evansville Courier & Press subtitled "Treatment works." Some quotes:

Vanderburgh County's highly successful drug court reinforced again last week the idea that if we are going to fix the drug problem in this country, we must help those users who are unable to help themselves.

We're talking treatment here, not punishment.

It's called the Vanderburgh County Day Reporting Drug Court and Forensic Diversion Program, and last Monday seven more former drug users graduated from what has been described as the hardest drug court in the state.

As reported by Courier & Press staff writer Kate Braser, for 18 months participants must check in every day with the program's staff.

It is for hard-core addicts who are not violent and are not dealers.

Under the leadership of the program's founder, Superior Court Judge Wayne Trockman, more than 150 people have graduated from the program.

These are people who did not go to prison, where often those of their type come out months and years later, still, or soon to be again, addicted to drugs.

Trockman makes the point that while 150 have graduated, probably more than 1,000 other people have been touched by their accomplishment of getting clean. Indeed, close family members and friends benefit in their own ways each time a user in their life comes clean.

Other recent drug court entries are available here and here.

Posted by Marcia Oddi on Monday, May 14, 2007
Posted to Indiana Courts

Sunday, May 13, 2007

Ind. Law - "Political mentor taught valuable life's lessons"

In the Indianapolis Star "My Big Break" column today, the very accomplished Susan Williams, now serving as president of the Indiana Sports Corp., gives an eloquent tribute to her mentor, Virginia Dill McCarty. Some quotes:

My first and biggest break, when I was a teacher stepping out of the classroom into the real world, was meeting Virginia Dill McCarty, and her deciding that I was worthy of her mentorship. It was a chance encounter while I was working on a political campaign in which she also was involved.

At that time, she was the leader of the efforts to adopt an equal rights amendment in Indiana. Congress had just passed Title IX and the women's movement was in full swing.

Somehow, I caught her eye and, until she died last year, she was the person on whom I relied for advice, counsel and inspiration.

Virginia was a remarkable woman. She was an attorney who graduated first in her class at Indiana University, and her only job offer was clerical work in a law firm. That sent her on the path of public service and politics.

She went on to become the first woman to hold the post of U.S. attorney.

She taught me many things, including the roadblocks that would lie ahead of me as a woman -- the institutional roadblocks and, especially, the self-imposed ones. She taught me that I could take on most any challenge with a combination of hard work and self-confidence. She instilled confidence and taught me to hone my peripheral vision.

She opened up opportunities that led me to a position at a major law firm. I held an administrative position with the fourth-largest law firm in the state after a fast-paced stint at the Marion County prosecutor's office.

It was a time when women were just achieving partnerships, when law firms first needed to deal with recruiting women attorneys. Law firms were moving from an era where the legal profession was a genteel, old boys club into a serious, competitive business environment. I got to help lead that transition, which gave me multiple skill sets and many exciting challenges. * * *

What I've learned over the years is that leadership is about knowing what you know and, more importantly, knowing what you don't know and being smart enough to find the right people to strengthen those weaknesses.

Virginia always told me that we make our own breaks -- that in order to be in the right place at the right time, you need to be in the right place.

Posted by Marcia Oddi on Sunday, May 13, 2007
Posted to Indiana Law

Ind. Courts - Monroe County looking at "problem-solving courts"

A story today by Becky Robbins of the Bloomington Herald-Tribune ($$$) reports:

Increased caseloads and crowded jails are causing trial courts across the country to examine how criminal justice can be administered better using alternative court forms, particularly where repeat offenders are involved.

A popular trend is the creation of “problem-solving courts,” which attempt to address recidivism using both accountability and collaboration in targeted areas of criminal behavior.

The Monroe County Board of Judges already has experimented with problem-solving courts. Monroe County Drug Court, whose administration has been transferred from Judge Kenneth Todd to Judge Mary Ellen Diekhoff, is one example. * * *

Todd is presiding judge of the Monroe County unified court system, made up of eight circuit courts in the Justice Building. Five are civil courts, and three are criminal courts. The Indiana General Assembly has approved the addition of a ninth court beginning in January 2008.

Since the local judges will be deciding in the upcoming months what sort of cases will be allocated to the new court, discussions about adding one or more problem-solving courts are timely.

The story discusses the possible creation of a domestic violence court, a family court, a truancy court, a mental health court, and a re-entry court.

This June 18, 2006 ILB entry quoted from a story in the Lafayette C & J about the various "problem solving alternative courts" underway in Tippecanoe County.

And this April 27, 2006 ILB entry quoted from a NY Times article headlined "In Problem-Solving Court, Judges Turn Therapist."

Posted by Marcia Oddi on Sunday, May 13, 2007
Posted to Indiana Courts

Ind. Law - Indiana Dram Shop act penalties for serving intoxicated patrons

The ILB had intended to post today about the Indiana Dram Shop provisions of IC 7.1.5-10 after reading stories earlier this week of a patron of a local bar consuming "at least 14 beers and six shots". But today's Indianapolis Star is already on it.

Here are the applicable provisions (emphasis added):

IC 7.1-5-10-15 - Sale to intoxicated person prohibited
Sec. 15. (a) It is unlawful for a person to sell, barter, deliver, or give away an alcoholic beverage to another person who is in a state of intoxication if the person knows that the other person is intoxicated.
(b) In any civil proceeding in which damages are sought from a permittee or a permittee's agent for the refusal to serve a person an alcoholic beverage, it is a complete defense if the permittee or agent reasonably believed that the person was intoxicated or was otherwise not entitled to be served an alcoholic beverage.
(c) After charges have been filed against a person for a violation of subsection (a), the prosecuting attorney shall notify the commission of the charges filed.
(Formerly: Acts 1973, P.L.55, SEC.1.) As amended by Acts 1978, P.L.2, SEC.721; P.L.86-1985, SEC.1; P.L.125-2000, SEC.4.

IC 7.1-5-10-15.5 - Person furnishing alcoholic beverage; civil liability for damages; "furnish" defined
Sec. 15.5. (a) As used in this section, "furnish" includes barter, deliver, sell, exchange, provide, or give away.
(b) A person who furnishes an alcoholic beverage to a person is not liable in a civil action for damages caused by the impairment or intoxication of the person who was furnished the alcoholic beverage unless:
(1) the person furnishing the alcoholic beverage had actual knowledge that the person to whom the alcoholic beverage was furnished was visibly intoxicated at the time the alcoholic beverage was furnished; and
(2) the intoxication of the person to whom the alcoholic beverage was furnished was a proximate cause of the death, injury, or damage alleged in the complaint.
(c) If a person who is at least twenty-one (21) years of age suffers injury or death proximately caused by the person's voluntary intoxication, the:
(1) person;
(2) person's dependents;
(3) person's personal representative; or
(4) person's heirs;
may not assert a claim for damages for personal injury or death against a person who furnished an alcoholic beverage that contributed to the person's intoxication, unless subsections (b)(1) and (b)(2) apply.
As added by P.L.80-1986, SEC.1. Amended by P.L.76-1996, SEC.1.

Jon Murray and Vic Ryckaert's story today is headlined "Club could be liable in fatal crash: Under law, bars can face penalties for serving intoxicated patrons." Some quotes:
Under Indiana law, the strip club that allegedly served Terry J. Record 14 beers and six shots also could be liable, although damage awards are rare.

Plaintiffs must prove the server had "actual knowledge" that the customer was visibly intoxicated but continued to provide more liquor. They also must prove the intoxication was a large factor in the injury or death.

"That's a high burden," said John Livengood, president of the state's Restaurant and Hospitality Association. "Indiana has a law that places most of the responsibility back on the individual." * * *

Several lawsuits against bars have been filed in Central Indiana in the past decade, but few have resulted in large verdicts.

In one case, Indianapolis Public Schools teacher James Gorski won a $500,000 judgment in 2002 after a jury found the owners of the Hots Show Club responsible for the death of his wife, Jennifer, 23.
The couple were driving in their own cars when Ronald Onkst, 52, drove the wrong way on I-65 in 1997, causing both the Gorskis to crash. Onkst also died. Earlier, when he arrived at the strip club, he was already drunk but went on to spend $50 on booze.

A Marion Superior Court judge later reduced the award by $100,000, subtracting a payment Gorski had received from Onkst's insurance company. * * *

In another case, state Rep. William Roland Stine's widow and children sued a Shelbyville bar in 2004 for serving the equivalent of 18 shots of liquor to the man who crashed into him. That case was settled out of court, said J. Lee McNeely, the family's attorney, but he couldn't disclose the terms.

"It's hard to prove (in court)," said Lafayette attorney Jeff Cooke, former president of the Indiana Trial Lawyers Association. "You have to get a toxicologist to say (servers) knew or should have known they were serving an intoxicated person. By the time a lawyer gets involved, all the employees keep their mouths shut." * * *

The Brass Flamingo and its employees have cooperated with police, said David Wyser, the Marion County prosecutor's chief trial deputy.

The stripper and a waitress gave statements, and the bar provided surveillance video showing Record in the club with the stripper, Wyser said.

Investigators estimated the number of drinks Record consumed based on his orders of three pitchers of beer, minus two glasses shared with the stripper from each pitcher, the probable cause affidavit says. He also ordered half a dozen shots, including cherry vodka.

His blood-alcohol content was 0.15 to 0.17, about twice the level at which Indiana drivers are considered drunk, according to results released by police.

In addition to the cases cited in the Star article, a more recent, March 30, 2007 Indiana Court of Appeals opinion, Rebecca Shaw, Estate of Kayla N. Hughes and Stephen Hughes v. LDS Enterprises, Inc. d/b/a I&I Steakhouse (ILB entry here) contains discussion of the availability of relief under the Illinois and Indiana dram shop acts.

An earlier ILB entry, "Ind. Courts - Two young attorneys in different parts of the state in court for drug/alcohol related charges," from 5/11/07, is available here.

Posted by Marcia Oddi on Sunday, May 13, 2007
Posted to Indiana Law

Saturday, May 12, 2007

Ind. Law - Crown Point attorney earns specialist designation [Updated]

Marisa Kwiatkowski of the NWI Times writes today:

Crown Point attorney and city Judge Kent Jeffirs has earned his specialization in estate planning and administration, becoming one of only four in Lake County to achieve that distinction.

Jeffirs received his certification in wills, trusts, powers of attorney and health-care directives.

This was the first time in state history that the specialization has been offered. Fifty-nine Indiana attorneys took the test, Jeffirs said.

"It allows the lawyers who qualify to hold themselves out as specialists," he said. "Nothing changes. It just lets the public know who has that level of expertise."

To receive the specialization, attorneys were required to go through an intensive application and examination process, he said. The application required 45 hours of continuing legal education on estate planning subjects in the two years before applying. Applicants also needed to provide seven references from judges or lawyers.

In November, Jeffirs went to Indianapolis for a two-day session on wills, trusts and estates. Two weeks later, he took the exam.

The Indiana Commission for Continuing Legal Education lists Independent Certifying Organizations for four specialty areas:
  • Business and Consumer Bankruptcy
  • Civil Trial Advocacy and Criminal Trial Advocacy
  • Elder Law
  • Family Law
The Rules for Admission to the Bar and the Discipline of Attorneys, Rule 30 - Indiana Certification Review Plan provides the details.

Apparently the specialization of estate planning and administration should be added to the list.

[Update 5/13/07] The May 2007 issue of Res Gestae includes separate articles by two Indianapolis attorneys who successfully took the certification exam, MaryEllen K. Bishop of Bose McKinney & Evans, and Rodney S. Retzner of Krieg DeVault.

As far as the ILB can determine, there is no official list available of those who qualified for certification.

Posted by Marcia Oddi on Saturday, May 12, 2007
Posted to Indiana Law

Ind. Courts - "Bad idea: Calling judge nasty name"

Ken Kosky reports today in the NWI Times:

A jailed woman -- apparently upset that Porter Superior Court Judge Julia Jent decided to keep her behind bars until her next court hearing in three weeks -- called the judge a disparaging name while being led away Friday morning.

Amanda Grove, 25, of Crown Point, was called back up front and given a chance to repeat what she said to the judge and apologize, but she offered up only a look of contempt, said Deputy Prosecutor Adam Burroughs, who witnessed the exchange.

"She had not one single ounce of remorse. ... It was very interesting to watch," Burroughs said.

After failing to receive an apology, Jent ordered Grove to spend 30 days in jail for contempt of court. Grove, who was in court for violating the terms of her probation in connection with a 2005 charge of battery, also faces up to a year in jail if found guilty of violating her probation.

Jent was in her Portage courtroom and was communicating with Grove via a video conference from Porter County Jail when the word was uttered. Jent and Grove will meet face-to-face when Jent makes her regularly scheduled visit to the courtroom inside Porter County Jail on June 6.

Posted by Marcia Oddi on Saturday, May 12, 2007
Posted to Indiana Courts

Law - An update on the cervical cancer vaccine issue [Updated]

In February and March of this year, the ILB posted a number of entries on the new cervical cancer vaccine and a bill that, as introduced, would have made vaccinations of school age girls mandatory in Indiana.

SEA 327 did ultimately pass the General Assembly and was signed into law by Governor Daniels. As enacted, the bill no longer requires vaccination, but only the collection and promulgation of information about it.

Today's NY Times has a long front-page story by Pam Belluck on how New Hampshire (and some other states) have addressed the issues. Some quotes:

A vaccine for a sexually transmitted virus that causes cervical cancer may be creating controversy across the country, but in New Hampshire physicians say so many people want it that they cannot satisfy the demand.

The New Hampshire experience contrasts sharply with that in many other states, where opponents have cited factors like the drug manufacturer’s profit motive and the fear that inoculating young girls will encourage them to be sexually active.

New Hampshire has critics of the vaccine, too. But its health officials, wanting to encourage use of the vaccine, called Gardasil, say they have hit on an optimal method: making it voluntary and giving it free to girls ages 11 to 18.

In many of the more than 20 states that are considering bills to require girls to be vaccinated, a backlash has developed. In Texas, a lawmakers’ revolt overwhelmingly overturned Gov. Rick Perry’s effort to mandate vaccinations.

More about how New Hampshire provides the vaccine at no cost:
New Hampshire is spending $4.9 million on Gardasil this year, said Dr. Jose Montero, the state epidemiologist. That is 28 percent of the state immunization budget, which obtains half its financing from federal money and half from private insurers, Dr. Montero said.

The legislature does not have to vote on the program or appropriate money, he added. Money for other immunization programs was not reduced, he said.

Since January, the state has distributed more than 14,000 doses and is trying to obtain more doses for physicians with waiting lists. Dr. Montero said he would evaluate whether to ask for more money to buy more vaccine.

At least two other states, South Dakota and Washington, are echoing the program here. South Dakota began providing Gardasil free to the same age group in late January with $1.7 million approved by the Legislature and $7.5 million in federal money, Health Secretary Doneen Hollingsworth said.

South Dakota is a relatively conservative state that tried last year to ban most abortions only to have the ban repealed in a referendum. Even so, when it came to the HPV vaccine, Ms. Hollingsworth said, “the naysayers, there weren’t a lot of them, and they weren’t terribly loud.” Ms. Hollingsworth said the state had provided almost 20,000 doses. * * *

In Washington, the Llegislature just approved $10 million for voluntary vaccination for 94,000 girls over the next two years.

“We basically want to see as many people get this as possible,” said Tim Church, a spokesman for the Health Department who said Washington would primarily focus on 11- and 12-year-olds on the theory that it is best to be vaccinated before being sexually active.

The cost of Gardasil, which is administered in three doses over six months, is normally $360. The federal Centers for Disease Control and Prevention recommend it for ages 9 to 26.

In New Hampshire, girls outside the 11-to-18 range of the free pool have to pay out of pocket or through insurance. Some families of 11- to 18-year-olds have been doing that, rather than wait for the free vaccine.

Virginia recently became the sole state with a law requiring the vaccine for girls entering the sixth grade but allowing parents to refuse shots for their children.

All this brought to mind a story I'd read earlier this year, which I have been able to relocate. This NWI Times story by Bob Kasarda, dated Feb. 17, 2007, began:
While state lawmakers have been busy hashing out the tricky issue of how best to promote a vaccine designed to protect girls from the most common sexually transmitted disease, the Porter County Health Department has been buying doses to sell to the public.

The department has 10 doses of Gardasil on hand and was prepared to administer the first last week, but was prevented from doing so when a fierce winter storm forced the county building to close early, said Connie Rudd, director of nursing.

"We feel like it's something we should carry," she said.

The Health Department in neighboring Lake County does not have the funds to purchase the vaccine, but is waiting, like Porter County, for the state to send out free doses as part of the Vaccines for Children program, said Pat Warner, director of nurses.

Those doses will be available free of charge to qualified individuals who lack health insurance and those on Medicaid, she said.

[Updated 5/15/07] In her weekly Personal Health column, this week headlined "HPV Vaccine: Few Risks, Many Benefits", the NYT's Jane Brody asks: "What is it that some parents don’t understand about the HPV vaccine, licensed last summer in hopes of preventing most cases of genital warts and cervical cancer?"

Posted by Marcia Oddi on Saturday, May 12, 2007
Posted to General Law Related

Friday, May 11, 2007

Ind. Decisions - Transfer list for week ending May 11, 2007

Here is the Indiana Supreme Court's transfer list for the week ending May 11, 2007.

One case was granted transfer this week. See this entry from earlier today for more details.

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

Over three years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on Friday, May 11, 2007
Posted to Indiana Transfer Lists

Ind. Courts - Three names that will be submitted to Governor Daniels [Updated again]

Sometime this afternoon we should hear the names of the three remaining contenders for Judge Sullivan's seat. These six candidates were interviewed for the final time this morning by the Judicial Nominating Commission:

Hon. Cynthia J. Ayers; Hon. Cale J. Bradford; Mr. Randall C. Head; Hon. Robyn L. Moberly; Hon. William J. Hughes; Hon. Kenneth H. Johnson.

At 1:15 p.m. the published schedule called for deliberations in Executive Session followed by a public session and vote to name three nominees for the vacancy.

Update: Here are the three nominees: Hon. Cale J. Bradford and Hon. Robyn L. Moberly, Marion County; and Hon. William J. Hughes, Hamilton County.

What does the Constitution say about the Governor's role in the process? Art. 7, Sec. 10:

Section 10. Selection of Justices of the Supreme Court and Judges of the Court of Appeals.

A vacancy in a judicial office in the Supreme Court or Court of Appeals shall be filled by the Governor, without regard to political affiliation, from a list of three nominees presented to him by the judicial nominating commission. If the Governor shall fail to make an appointment from the list within sixty days from the day it is presented to him, the appointment shall be made by the Chief Justice or the acting Chief Justice from the same list.

To be eligible for nomination as a justice of the Supreme Court or Judge of the Court of Appeals, a person must be domiciled within the geographic district, a citizen of the United States, admitted to the practice of law in the courts of the State for a period of not less than ten (10) years or must have served as a judge of a circuit, superior or criminal court of the State of Indiana for a period of not less than five (5) years.

(History: As Amended November 3, 1970).

[2nd Update - late Friday afternoon] The Indiana Courts has now issued a press release naming the three selections. Access it here.

Posted by Marcia Oddi on Friday, May 11, 2007
Posted to Indiana Courts

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

For publication opinions today (2):

Tamko Roofing Products, Inc. v. Dennis Dilloway - Dillowat ordered shingles based on the color in the brochure:

On the following Saturday, after Baker had completed the installation, Dilloway observed that the shingles were a completely different color than the “Mountain Slate” he had selected from Tamko’s brochure. Rather than the primary color being a shade of brown, the shingles reflected an overall blue hue. Dilloway contacted Baker about the discoloration, and confirmed that Baker had ordered Tamko’s “Mountain Slate” colored shingles, per Dilloway’s request. Consequently, Dilloway telephoned Tamko to notify them of his complaint, and a Tamko representative told Dilloway that he should have viewed, in person, the different shingle color choices before ordering, as variances in color can occur. The Tamko representative also informed Dilloway of a disclaimer on its brochure regarding possible color variations in the shingles, which states: “Reproduction of these colors is as accurate as modern printing will permit. [Tamko] recommends viewing an actual roof installation or several full-sized shingles prior to final color selection for the full impact of color blending and patterns.”

Due to his dissatisfaction with the color, Dilloway had Baker re-shingle the roof with brown shingles, not from Tamko, at a cost of $2,900.00.

On March 16, 2006, Dilloway filed a Complaint for Damages in LaPorte County Superior Court No. 3, Small Claims Division. The complaint was based on an alleged discrepancy in the color of the Tamko shingles. On June 23, 2006, a bench trial was held. After the direct examination of Dilloway, Tamko orally moved for dismissal based a mandatory binding arbitration clause contained in its Limited Warranty, which is printed on all packages of its shingles. The trial court took the motion under advisement, and Tamko proceeded to cross-examine Dilloway. Dilloway then rested its case. In light of its defense that the case was subject to mandatory arbitration, Tamko presented no evidence.

The trial court ruled that Dilloway was entitled to recover $2,900. The Court of Appeals affirmed:
Based on the foregoing, we conclude that the trial court: (1) did in fact admit into evidence Tamko’s Exhibit A and Dilloway’s Exhibit 3; (2) did not err in determining that Tamko waived its right to arbitration; and (3) properly awarded damages to Dilloway.
In Re the Matter of C.B.; Amanda Bateman v. Adams County Department of Child Services - CHINS, affirmed.

NFP civil opinions today (5):

In the Matter of the Involuntary Term. of A.M. & J.M., and Jeremiah Maxey v. Marion Co. Office of Family & Children, and Child Advocates, Inc. (NFP) - termination, affirmed.

Maria G. Schelm v. William O. Schelm (NFP) - "Appellant-petitioner Maria G. Schelm (Maria) appeals from the Allen Circuit Court’s (trial court) sua sponte order (Order) terminating a protective order that it had previously issued against appellant-respondent William O. Schelm (William). We rephrase Maria’s argument to be whether the trial court erred by sua sponte terminating relief it had previously granted her, thereby denying her due process. Finding no error, we affirm the judgment of the trial court. * * *

While the situation here is admittedly rare, in light of our conclusion that the trial court’s Order did not prejudice Maria, we cannot find that she was denied due process simply because the trial court did not hold a hearing until after it issued the Order. Indeed, Maria had an opportunity to voice her concerns about the Order to the trial court and the trial court denied her motion to correct error. Therefore, we cannot find that the trial court abused its discretion or that Maria was denied her due process."

Michelle M. Sheperd v. Jaime M. Sheperd (NFP) - "Michelle Sheperd (“Wife”) appeals the trial court’s grant of Jamie Sheperd’s (“Husband”) petition to modify child support. She contends that the trial court abused its discretion in determining that Husband is no longer voluntarily underemployed. Finding no abuse of discretion, we affirm the judgment of the trial court."

Kelley Saylor v. State Employees Appeal Commission (NFP) - "Appellant-petitioner Kelley Saylor appeals from the trial court’s denial of her petition seeking judicial review of a decision made by appellee-respondent State Employees’ Appeals Commission (SEAC). Specifically, Saylor argues that the trial court erroneously affirmed the SEAC’s determination that it did not have jurisdiction over her complaint against appellee-defendant Bureau of Motor Vehicles (BMV). Finding that the SEAC did not have jurisdiction over Saylor’s complaint, inasmuch as Saylor was an employee of the Bureau of Motor Vehicles Commission (the Commission) rather than the BMV, we affirm the judgment of the trial court."

Subhen Ghosh v. Review Board of the Indiana Department of Workforce Development and Indiana Department of Environmental Management (NFP) - "Of course, Ghosh is correct that his discharge would have been without just cause had it been based solely on the finding of an Ethics Code violation. See LTV Steel Co. v. Griffin, 730 N.E.2d 1251 (Ind. 2000) (holding the State Ethics Commission has exclusive jurisdiction to adjudicate alleged violations of the Ethics Code). Rather, it is apparent IDEM did not discharge Ghosh for an Ethics Code violation. First, IDEM makes no reference to any specific statutory provision of the Ethics Code. Second, and perhaps more importantly, Ghosh was terminated for using his company Voyager credit card at the Beech Grove business for which he is a registered agent. IDEM’s Deputy Commissioner used improper terminology to express its true and proper reasoning for discharging Ghosh. And while IDEM should choose its words more carefully, the facts of this case remain the same. CONCLUSION Based on the foregoing, we find the Review Board correctly found that Ghosh was terminated for just cause."

NFP criminal opinions today (8):

Ryan J. Haynes v. State of Indiana (NFP)

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

Kenneth Vangoey v. State of Indiana (NFP)

Tiffany Hendrickson v. State of Indiana (NFP)

Duane Baber v. State of Indiana (NFP)

Clarence Crowther v. State of Indiana (NFP)

Dwayne Porter v. State of Indiana (NFP)

S.G. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 11, 2007
Posted to Indiana Decisions

Ind. Decisions - 7th Circuit decides two companion ADA cases out of Illinois today

The decisions are Board of Education of Township High School District 211 v. Ross, No. 05-3700 (“Ross I”), and Ross v. Board of Education of Township High School District 211 (“Ross II”), available here and here. The decision in Ross I begins:

WOOD, Circuit Judge. This case is about the responsibility of a public school district to provide an education to a student afflicted with Rett syndrome, which is a “neurodevelopmental disorder characterized by normal early development followed by loss of purposeful use of the hands, distinctive hand movements, slowed brain and head growth, gait abnormalities, seizures, and mental retardation.” See National Institute of Neurological Disorders and Stroke, Rett Syndrome Fact Sheet, http:// www.ninds.nih.gov/disorders/rett/detail_rett.htm?css= print (visited April 9, 2007) (“Rett Syndrome Fact Sheet”). The student’s parents, Michael and Diane Ross, believed that High School District No. 211 failed to provide their daughter, Lindsey, who suffers from Rett syndrome, with the free appropriate public education in the least restrictive environment to which she is entitled under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1414. An independent hearing officer held a lengthy hearing and upheld the District’s placement of Lindsey. Both the District and Lindsey’s parents then turned to the district court, which granted summary judgment to the District on all counts.

Shortly after the district court issued its opinion in this case, Lindsey and her parents filed a second lawsuit against the District and its Director for Special Education. As we explain in the companion opinion issued today in Ross II, the district court dismissed most of the claims in the second case on the basis of claim preclusion; it dismissed some supplemental state claims without prejudice. While we appreciate that Lindsey’s parents sincerely believe that her best interests would have been served better under a different plan, we conclude that the district court in both cases correctly held in favor of the school authorities and we therefore affirm.

Posted by Marcia Oddi on Friday, May 11, 2007
Posted to Ind. (7th Cir.) Decisions

Law - FTC and Justice issue joint report on “Competition in the Real Estate Brokerage Industry" [Updated]

Recalling the ILB's series of entries in the late spring of 2006 (including this one from July 26, 2006), occasioned by the 2006 General Assembly's action in passing an anti- discount real estate brokers ("minimum services") law:

The Federal Trade Commission and U.S. Department of Justice (DOJ) today issued a joint report, “Competition in the Real Estate Brokerage Industry.” The purpose of the report is to inform consumers and others involved in the industry about important competition issues involving residential real estate, including the impact of the Internet, the competitive structure of the real estate brokerage industry, and obstacles to a more competitive environment. * * *

As discussed in the report, the review by the FTC and the DOJ suggests that, although the real estate industry has undergone a number of substantial changes in recent years – particularly as a result of technological advances such as the Internet – competition in the industry has been hindered as a result of actions taken by some real estate brokers acting through multiple listing services and the National Association of Realtors, state legislatures, and state real estate commissions. In addition, consumers likely would benefit significantly from additional knowledge about the range of options available in brokerage services and fees.

Read the entire press release here.

Access the 78-page report here.

[Updated] This afternoon I came across this Findlaw.com article, published May 9th: "Must Zillow, the Online Home Price Estimator, Be Licensed as a Real Estate Appraiser in Arizona? Why The State Bill Making Clear that the Answer is No Should Become Law," by Anita Ramasastry, an Associate Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. The article begins:

In July and November 2006, the Arizona Board of Appraisal issued two cease-and-desist letters to the company that operates the popular real estate website Zillow, saying that Zillow needs an appraiser license to offer its "Zestimates" in Arizona. This matter recently was turned over to the Arizona Attorney General's Office. In the worst-case scenario, the state could file criminal charges against the company for defying its cease-and-desist order.

Currently, the Arizona Senate is considering a bill - already approved by the House - that would make it clear that the outputs of Zillow's automated valuation models (AVM) are not, in fact, real estate appraisals, and as such are not subject to regulation in Arizona.

Posted by Marcia Oddi on Friday, May 11, 2007
Posted to General Law Related

Ind. Decisions - Supreme Court grants one transfer this week

The transfer list will follow later today, but here is the one case granted transfer by the Supreme Court this week, Steven Hollin v. State of Indiana.

This is a March 29, 2007 not-for-publication Court of Appeals opinion. Because it is NFP, the ILB did not summarize it at the time.

In the 9-page opinion, Judge Riley writes:

Hollin raises two issues on appeal, which we restate as follows: (1) Whether it was fundamental error for the trial court to admit evidence of Hollin’s criminal history; and (2) Whether the trial court properly sentenced Hollin. * * *

Based on the foregoing, we find the trial court did not fundamentally error by admitting Hollin’s criminal history into evidence and that the forty year sentence imposed by the trial court is appropriate.

Posted by Marcia Oddi on Friday, May 11, 2007
Posted to Indiana Transfer Lists

Ind. Courts - "Mooresville Town Judge Susan Leib defeated two challengers Tuesday in the Republican primary"

"Incumbent town judge fends off challenges" is the headline to the brief report by Richard D. Walton in the Indianapolis Star. Some quotes:

With all precincts reporting, Leib captured roughly 200 more votes than former town Judge Paul Sterrett and Kele Bosaw, who works as a legal assistant for an Indianapolis law firm.

Leib replaced Sterrett as judge when he retired in 2001 after 10 years on the bench. This primary, she was the only lawyer in the three-person field. Bosaw attends law school but has not graduated.

Leib, who had served as an administrative law judge, deputy attorney general and deputy prosecutor in Morgan County, cited the establishment of a diversion program as one of her accomplishments as judge.

Posted by Marcia Oddi on Friday, May 11, 2007
Posted to Indiana Courts

Ind. Courts - Two young attorneys in different parts of the state in court for drug/alcohol related charges [Updated]

"Attorney appears in court on two meth-related charges" is the headline to a story today by Katherine Braser of the Evansville Courier & Press about the Evansville attorney who allegedly operated a meth lab out of her house. See this May 5th ILB entry for background. Today's story begins:

An Evansville attorney facing eight counts related to possessing and distributing methamphetamine had an emotional appearance in court Thursday.

Teresa Perry was arrested last week on charges of dealing methamphetamine after she allegedly sold drugs to a police informant.

More charges came the next day, when investigators reportedly discovered a meth lab inside Perry's rental home in the 3300 block of Waggoner Avenue. The home is within 1,000 feet of McGary Middle School. * * *

An automatic plea of not guilty was entered on Perry's behalf. Walton chose not to address the issue of bond during the short hearing. Perry remains lodged at the Vanderburgh County Jail.

Her next court appearance is scheduled for June 13. A trial in the case is scheduled to begin July 18.

Perry is the second Evansville attorney who has been arrested on meth-related charges recently. In March, police arrested Brad Happe after investigators said they found a meth lab in his law office and apartment.

His attorney has requested his trial be moved outside of Vanderburgh County due to extensive media coverage of his arrest. A hearing on that matter is scheduled for next week.

"Police: Man had 20 drinks before crash - Lawyer charged in wreck that killed 46-year-old," is the headline to a story today in the Indianapolis Star by Jon Murray. Some quotes:
A State Department of Health attorney drank at least 14 beers and six shots at a strip club before getting behind the wheel of his car and causing a fatal wreck, police said Thursday. * * *

Blood test results released Thursday put Record's blood-alcohol level between 0.15 and 0.17, about twice the level at which an Indiana driver is considered drunk, police said.

A probable cause affidavit prepared by police said Record's car was traveling at 60 mph in a 35-mph zone on Southeastern Avenue at Pleasant Run Parkway.

Record, who turns 27 today, will appear in Marion Superior Court this morning for an initial hearing. A judge will enter not-guilty pleas on his behalf and consider a motion by his defense lawyer to reduce his $100,000 bond.

Prosecutors on Thursday charged him with two felony counts of operating a vehicle while intoxicated, causing death. One count is a Class B felony, a more serious charge allowed when blood-alcohol content tests at more than 0.15.

If convicted of that charge, Record could face six to 20 years in prison. A conviction on the lesser charge would mean two to eight years in prison.

[Updated] In an update late this morning the Star reports that Record's bail has been reduced from $100,000 to $10,000. More:
The defendant, Terry J. Record, will be required to await trial on home detention.

His bond had been $100,000, but Marion Superior Court Judge Grant Hawkins said that was much higher than court guidelines for the charges against him. The advisory bond for Record is $5,000; Hawkins doubled that during today's hearing. * * *

But even if bond is posted today, Record probably wouldn't be released from jail until early next week because of the lag in setting up home detention, [Record's attorney, David E.] Lewis said.

Posted by Marcia Oddi on Friday, May 11, 2007
Posted to Indiana Courts

Ind. Decisions - More on yesterday's Supreme Court ruling on death sentence

Patrick Guinane of the NWI Tmes reports today on yesterday's Supreme Court ruling in the case of State of Indiana v. Zolo Agona Azania. (See earlier ILB entry here.) From today's story:

Prosecutors can try a third time to secure a death sentence against a man convicted of killing Gary police Lt. George Yaros during a 1981 bank robbery, a divided Indiana Supreme Court ruled Thursday.

The 3-2 decision reverses a ruling by a lower court, which concluded that prolonged sentencing delays violated Zolo Agona Azania's constitutional rights.

Formerly known as Rufus Averhart, Azania, 52, was convicted and sentenced to die in 1982. The state Supreme Court threw out the initial death sentence in 1993, ruling Azania had ineffective counsel at sentencing.

Azania was sentenced to die a second time, but the state Supreme Court found blacks were inadvertently but improperly excluded from the jury pool and vacated the sentence in 2002.

When sentencing began for a third time, an Allen County judge ruled that new death penalty proceedings would violate Azania's right to a speedy trial and due process because evidence supporting his case is no longer available. Azania's lawyers told the court that multiple witnesses are now dead and several pieces of forensic evidence have gone missing.

"While the unavailability of these witnesses and this evidence may make it more difficult for Azania to defend against the state's case, we find that it creates far greater difficulty for the state to meet its burden of proof," Justice Frank Sullivan Jr. wrote in the Supreme Court's majority opinion.

But not all justices were in agreement.

"In simple terms, if the state seeks to kill a human being, it has to get it right. That means it provides a fair trial, albeit not a perfect one, free of reversible error by the trial court," Justice Theodore Boehm wrote in one of two dissenting opinions. "The net result of this exercise is that Azania has spent at least 15 years on death row due to flaws in the criminal justice system for which he bears no responsibility."

Posted by Marcia Oddi on Friday, May 11, 2007
Posted to Ind. Sup.Ct. Decisions

Thursday, May 10, 2007

Ind. Courts - Linking judicial and legislative pay has led to a 25% decline in federal judges' salaries

This year the General Assembly passed a bill linking legislative salaries to those of Indiana judges.

Chief Justice Shepard and Justice Boehm wrote an opinion piece published in several Indiana papers last month in favor of the pay bill. The piece concluded:

The current effort to alter legislator compensation has much to be said for it. For one thing, those who are carrying the proposal have done so in a completely open and straightforward way. There have been no midnight maneuvers conducted outside the public view.

Moreover, there is much merit in a simpler system of compensation than Indiana now uses for legislative pay. The proponents have advanced a bill that trades in sometimes controversial perks for simple salary. It’s a fresh look at a difficult subject.

The ILB has posted a number of entries, including this one from April 10, 2007, calling the legislative effort "a non-transparent and convoluted pay raise bill."

Today Tony Mauro writes about federal judicial salaries in the Blog of Legal Times:

If low judicial salaries are in fact a constitutional crisis, as Chief Justice John Roberts Jr. has warned, then the proximate cause of the crisis, in the view of many, is "linkage." That is, the 20-year-old practice of linking the salaries of federal district judges to the salaries of members of Congress and deputy cabinet secretaries. Because election-conscious members of Congress find it near-impossible to raise their own salaries, judges haven't gotten raises either.

As we reported last month on a House hearing on the subject, "de-linking" is a hard sell with some members of Congress. But a bipartisan ad hoc group of former members of Congress this week sought to up the pressure. Former Missouri Senator John Danforth and former California Congressman Leon Panetta wrote officials of both houses urging the change, and noting that in real dollars, the pay of judges has declined 25 percent since 1969. If linkage continues, they warn, the judiciary will eventually be composed of "the independently wealthy or those for whom a federal judicial appointment represents a salary enhancement." A recent joint report by the American Enterprise Institute and the Brookings Institution titled "Paying the Piper: It's Time to Call Different Tunes for Congressional and Judicial Salaries" bolsters the point.

Here is the link to the report, "Paying the Piper." The executive summary begins:
The 2003 National Commission on the Public Service, chaired by Paul Volcker, called judicial salaries the “most egregious example” of failed federal compensation policies, referenced a “similar crisis” as to executives, and stated flatly that “[f]ew democracies in the world expect so much from their national legislators for so little compensation.”

For 20 years, legislators have matched their salaries to those of United States district judges and deputy cabinet secretaries. They hoped that coupling their own compensation with that of officials less in the public eye would salvage legislative salary increases despite voter hostility. However, Congress has still been reluctant to increase its salaries (compared to, say, average worker wage gains). Thus, linkage has not produced the benefits legislators anticipated for their own salaries, and at the same time, it has held back less controversial salary increases for judges and executives.

Note: The ILB has had a number of entries over the past few months on legislative pay, and recognizes that there is no simple search that will pull them all together. The ILB is preparing a list to remedy this.

Posted by Marcia Oddi on Thursday, May 10, 2007
Posted to Indiana Courts

Environment - More on: IDEM revokes approvals for confined feeding operation in Huntington County; writ sought

This ILB entry from May 4th quotes from a Fort Wayne Journal Gazette story that:

Officials at the Indiana Department of Environmental Management have revoked the permit for a rural Huntington County dairy accused of fouling local waterways.

The 1,400-cow DeGroot Dairy, 8278 W. County Road 200 South near Andrews, is also currently the subject of a court case in which the state is seeking an injunction prohibiting the dairy owner, Johannes DeGroot, from spreading manure from the cows on nearby fields. * * *

In its letter mailed to DeGroot on Tuesday, IDEM outlines 13 permit violations by the dairy, dating to September 2005 and continuing until the April 11 spill, and IDEM Commissioner Thomas Easterly revoked the approvals for the confined feeding operation. * * *

DeGroot has 15 days to appeal the decision to the Office of Environmental Adjudication, according to Amy Hartsock, IDEM spokeswoman.

Peter Racher, DeGroot’s attorney, said he anticipates DeGroot will file a petition for review by the Office of Environmental Adjudication. * * *

The permit revocation is also a separate action from the pending court case, both sides said.

On Wednesday, Huntington Circuit Judge Thomas Hakes heard arguments about the April contamination, with the state arguing the manure in the water was the latest in a long line of violations at the dairy and DeGroot’s attorneys arguing the contamination in the water had not been linked to DeGroot’s herd.

The following are the Supreme Court docket entries in the case of STATE OF INDIANA, ex rel DEGROOT v. HUNTINGTON SUPERIOR CT (35-S-00-0705-OR-00185). All items are dated 5/9/07:
Relators' verified petition for emergency writ

Relators' verified petition for writ of mandamus and prohibition

Received: emergency writ of mandamus and prohibition

Received: permanent writ of mandamus and prohibition

Received: notice of hearing

Brief in support of petition for permanent writ of mandamus and prohibition
Issued the enclosed order:

The court grants in part and denies in part the request for an emergency writ.

In particular, the Huntington Superior Court and the honorable Thomas M. Hakes, as special judge thereof, are ordered to refrain from entering a decision on the request for preliminary injunction until such time as this court rules upon relators' request for a permanent writ of mandamus and prohibition.

However, any orders previously issued by Judge Hakes remain in effect, and Judge Hakes may otherwise continue to exercise jurisdiction generally over the proceedings below.

This court determines this original action warrants additional briefing. Accordingly, the Honorable Thomas M. Hakes (by himself or by counsel), the Honorable Jeffrey R. Heffelfinger (by himself or by counsel), as well as any party opposing the relators in the case below who opposes issuance of the permanent writ, may each file a brief opposing issuance of the permanent writ and, if appropriate, a supplemental record of proceedings.

Any supplemental record should be submitted in the same format required for the record under original action rule 3(c). Such briefs or supplemental records should be filed directly with the Clerk of the Supreme Court in indianapolis and must be physically on file by noon on Wednesday, May 16, 2007, and not simply in the mail by that time.

Once briefing is completed, the court will take the matter under advisement.

Posted by Marcia Oddi on Thursday, May 10, 2007
Posted to Environment | Ind. Sup.Ct. Decisions | Ind. Trial Ct. Decisions

Ind. Decisions - Supreme Court issues one ruling today

State of Indiana v. Zolo Agona Azania is on interlocutory appeal from the Allen Superior Court. Justice Sullivan writes the 22-page majority opinion, in which Shepard, C.J., and Dickson, J., concur. Boehm, J., dissents with a separate opinion. Rucker, J., dissents with a separate opinion.

Justice Sullivan writes:

In prior proceedings, this Court affirmed Zolo Agona Azania’s conviction for the 1981 murder of a Gary police officer but set aside the recommendations of two juries that he should receive the death penalty. The trial court has now ruled that, given circumstances caused by the long delay in this case, Azania’s constitutional rights to a speedy trial and due process would be violated if the State continues to seek a death sentence. We find that neither the delay nor any prejudice that Azania may suffer from it violates his constitutional rights. The State may continue to seek the death penalty. * * *

We hold that the delay and any resulting prejudice in this case will not violate Azania’s due process rights if the State seeks the death penalty at a new penalty phase trial. We reverse the judgment of the trial court and remand for a new penalty phase trial.

Justice Boehm's 5-page dissent begins:
I respectfully dissent. I agree with Justice Rucker that due process concerns can arise if the passage of time substantially impairs the opportunity of a capital defendant to present mitiga-tion evidence. However, in my view, it is not solely the passage of a substantial amount of time that can raise these concerns, but whether that time was attributable to failures of the State’s criminal justice system. Ultimately, as I see it, this case presents an issue of cruel and unusual punishment.

Twenty-five years have passed since Azania was convicted of this crime in 1982. As ex-plained below and as the trial court found, the bulk of that time is attributable to flaws in the criminal justice system, not to anything Azania did. In the meantime Azania has remained a death row inmate. That amount of time on death row at the hands of others is not unusual; it is extraordinary. I conclude that further pursuit of the death penalty at this date violates the Indi-ana Constitution by imposing punishment that is both cruel and unusual. Accordingly, I would affirm Judge David’s order dismissing further pursuit of the death penalty in this case.

Justice Rucker's 4-page dissent begins:
I agree with the trial court that given the circumstances caused by the long delay in this case, Azania’s constitutional rights to a speedy trial and due process would be violated if the State continues to seek a death sentence. A part of the due process violation includes Azania’s Eighth Amendment right to present meaningful evidence in mitigation. His inability to do so is of itself sufficient to preclude the State from seeking the death penalty. Therefore I dissent.

Posted by Marcia Oddi on Thursday, May 10, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Reminder: Interview Schedule for the 2nd District Court of Appeals Vacancy

Tomorrow is the day the six remaining candidates for Judge Sullivan's Court of Appeals seat are narrowed down to the three names that will be submitted to Governor Daniels.

The interviews are open to the public.

See more information here.

Posted by Marcia Oddi on Thursday, May 10, 2007
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 28 NFP)

For publication opinions today (3):

In Micronet, Inc. v. IURC, a 31-page opinion, Judge Sharpnack writes:

Micronet, Inc. (“Micronet”) appeals the order of the Indiana Utility Regulatory Commission (“Commission”). Micronet raises two issues, which we revise and restate as: I. Whether the Commission had subject matter jurisdiction over Micronet’s directory assistance service; and II. Whether the Commission erred by imposing penalties against Micronet for billing for telecommunications services without customers’ authorization. We affirm. * * *

The Commission has jurisdiction over PICs and had granted Micronet authority to operate as a PIC. Micronet failed to comply with the IOUCC’s requests for discovery to determine exactly what services Micronet provided. As previously discussed, the Commission has jurisdiction over Micronet as a telecommunications provider. Further, the Commission has jurisdiction over cramming, which is at issue in this case. Thus, we conclude that the Commission had authority to impose penalties on Micronet for cramming. See, e.g., Knox County Rural Elec. Membership Corp., 663 N.E.2d at 190-191 (holding that the Commission did not act beyond its statutory authority). For the foregoing reasons, we affirm the Commission’s order.

Regunal R. Dowell v. State of Indiana - "After a jury trial, Regunal R. Dowell was convicted of criminal confinement as a Class D felony, criminal deviate conduct as a Class B felony, and three counts of rape, each as a Class B felony. Dowell raises four issues on appeal * * *." Affirmed.

Frank Rawson v. State of Indiana - "We conclude that there was sufficient evidence to support Rawson’s conviction for criminal recklessness, that Rawson’s convictions did not put him in double jeopardy, and that Rawson’s aggregate sentence of twenty-two years is not inappropriate in light of the nature of the offense and character of the offender."

NFP civil opinions today (4):

Kellie J. Meng v. James W. Meng (NFP) - "The trial court did not abuse its discretion when it qualified Joyce Lowry as an expert. The trial court is required to consider certain factors when modifying a custody order but is not required to specify which factors have changed. The trial court did not err in modifying custody. Affirmed."

John C. Miller v. Heather R. Jones (NFP) - "At the hearing, Miller admitted that he and Jones had agreed that he would pay the property taxes and further admitted that he failed to pay the taxes due in the spring of 2006. In other words, Miller admitted to breaching the contract. Miller does not argue that this breach is immaterial, and he makes no further cognizable claims of error supported by citations to authority as required by Indiana Appellate Rule 46(A)(8)(a). As such, we must conclude that he has failed to establish prima facie error and hereby affirm the trial court’s judgment. Affirmed."

Theatre on the Square v. Nick Taylor (NFP) - "Nick Taylor (“Taylor”) filed a complaint in Marion Superior Court against Theatre on the Square (“the Theatre”). After the Theatre failed to file an answer, Taylor filed a motion for judgment on the pleadings, which the trial court granted. The Theatre then filed a motion to set aside judgment pursuant to Trial Rule 60(B). The trial court denied the motion and the Theatre appeals arguing that Taylor’s counsel’s actions constitute misconduct warranting relief under Trial Rule 60(B). Concluding that the Theatre is not entitled to relief under Trial Rule 60(B), we affirm."

In the Matter of K.P.; Michael Bennett v. Marion County Department of Child Services & Child Advocates, Inc. (NFP) - CHINS, affirmed.

NFP criminal opinions today (24):

State of Indiana v. Marilee Stevenson (NFP) - "In this appeal, the State contends, and Marilee Stevenson (“Stevenson”) agrees, that the trial court improperly granted Stevenson’s motion for discharge for the State’s failure to prosecute her within one year under Criminal Rule 4(C). Concluding that the State and Stevenson are correct, we reverse and remand for trial."

Joshua Smith v. State of Indiana (NFP)

Timothy A. Williams v. State of Indiana (NFP)

William Jeffrey Toth v. State of Indiana (NFP)

Robert Keith Sullivan v. State of Indiana (NFP)

Gabriel Daniels v. State of Indiana (NFP)

Rodney D. Kling v. State of Indiana (NFP)

Calvin Lyons, Jr. v. State of Indiana (NFP)

Kenneth Greenlee, Jr. v. State of Indiana (NFP)

David I. Franklin v. State of Indiana (NFP)

Michael William Stark v. State of Indiana (NFP)

Charles L. Dawson v. State of Indiana (NFP)

Ashanti Clemons v. State of Indiana (NFP)

Damon Mansfield v. State of Indiana (NFP)

Larry C. Walden v. State of Indiana (NFP)

Robert W. Weatherford v. State of Indiana (NFP)

Anthony Johnson v. State of Indiana (NFP)

Edward Schnucknecht v. State of Indiana (NFP)

Amanda McNeil v. State of Indiana (NFP)

Verle A. Kersey v. State of Indiana (NFP)

Antoine L. Jenkins v. State of Indiana (NFP)

Harry Tanner v. State of Indiana (NFP)

Ahmad Foster v. State of Indiana (NFP)

Ronald S. Hobbs v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 10, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - Floyd County Court benefits from past legislative session

Lesley Stedman Weidenbener of the Louisville Courier Journal writes today of the session's impact on southeast Indiana, including:

The budget also funds a new Superior Court in Floyd County in 2009 and elevates the current County Court to a Superior Court then as well.

That will expand the kinds of cases that Floyd County Court Judge Glenn Hancock can hear and bring to three the total number of Superior Courts in Floyd County. Hancock said that will help alleviate a backlog in all of the county's courts.

According to the 2005 Indiana Trial Court Weighted Caseload study, the Floyd County Circuit and Floyd Superior courts each have enough work for more than two full-time judges, while the county court has enough work for nearly two judges. The study shows the county's court system is the 13th most overloaded in the state.

"We'll be adding 33 percent capacity to the court so you're obviously going to help speed things along," Hancock said. "This is good timing."

The budget also provides a new magistrate position in Clark Superior Court.

Posted by Marcia Oddi on Thursday, May 10, 2007
Posted to Indiana Courts

Ind. Decisions - More on yesterday's decision in Arrontin Plastic Materials v. Wilmington Paper

The ILB has received a note from an attorney-acquaintance in New Mexico about the Court of Appeals decision yesterday in the case of Arrontin Plastic Materials of Indiana v. Wilmington Paper Corporation. (See ILB entry here.) The reader writes:

I do not read many contract or UCC cases, but I cannot believe that the instant contract was anything but an ouput contract.

The court miscontrues the term "ALL" and states that it refers to the purchaser only wishing to purchase a load of only (not neccessarily ALL) a type of material. In fact the contract made a specific provision for the purchase of commingled and contaminated materials.

The contract had a term of one year and mechanisms for price renegotiation based upon market changes. It had an evergreen provision unless terminated 60 days prior to termination.

It would be interesting to hear what some Indiana commercial litigators think about this case.

Posted by Marcia Oddi on Thursday, May 10, 2007
Posted to Ind. App.Ct. Decisions

Courts - Delaware attorney reprimanded for statements in legal brief

Supplementing the ILB entry earlier this week titled "A Bit of Thin Skin Peeks Out of the Robes," the Wilmington, Delaware News Journal had this report yesterday:

The Delaware Supreme Court unanimously reprimanded an attorney on charges he engaged in undignified or discourteous conduct, the Office of Disciplinary Counsel announced.

Attorney Richard L. Abbott was publicly reprimanded last week for legal briefs he filed on behalf of his client, 395 Associates LLC.

The briefs were part of an appeal to Superior Court disputing a decision by New Castle County Board of License, Inspection & Review, in which he made several statements including that the county could appoint "monkeys" to the board and "simply allow the attorney to interpret the grunts and groans of the ape members and reach whatever conclusion the attorney wished from the documents of record."

Abbott, in a one-page statement, consisting of five lines, said there was no basis in law or fact for the decision. He added the court's decision was based on feelings of "political correctness" and that the court ignored the First Amendment, which gives "free-speech rights to criticize government."

"You can read the recommendation from the Board on Professional Responsibility which unanimously found that there was no violation," Abbott said.

In its report, the Board on Professional Responsibility said Abbott came "close to crossing the line with respect to unprofessional litigation conduct," because his words and tone were "unnecessarily sarcastic and strident in tone," but that it was unable to find a violation of professional conduct rules.

"While courts do rely on the parties' submissions, there is no clear and convincing evidence here that respondent's briefs, while obnoxious, were prejudicial to the administration of justice," the board's report said.

On Tuesday, Abbott said he was filing a motion asking for reargument so the court could reconsider its decision. "Its purpose is to provide the court with an opportunity to correct any alleged legal or factual errors," he said in a copy of the motion provided to The News Journal.

"Like umpires, judges must decide which hits by an advocate are fair and which hard hits by an advocate are foul," the court wrote in its May 2 decision. "In this case the hits in the briefs filed by the respondent were not only foul but were so far beyond the boundaries of propriety that they were unethical."

Posted by Marcia Oddi on Thursday, May 10, 2007
Posted to Courts in general

Courts - Connections between Kentucky fen-phen and priest abuse cases

Another story today in the Louisville Courier Journal about Cincinnati attorney Stan Chesley (see earlier ILB entrries mentioning Chesley here). Here are a few quotes from Andrew Wolfson's story:

BURLINGTON, Ky. — Prominent Cincinnati attorney Stan Chesley said he wanted to file the Diocese of Covington priest-abuse case in Boone County because "we have a real friendly judge there," a lawyer testified this week.

"He winked at me" and said "we need to file this in Boone County," testified Covington lawyer Barbara Bonar, who is suing Chesley in a dispute over attorneys fees in the $84.5 million case.

"He said we already have hired a trial consultant, and he is real friendly with the judge," Bonar said, describing a conversation she claimed to have had with Chesley in January 2003. "And he winked at me again."

In an interview, Chesley, the lead counsel in the Diocese of Covington case, denied Bonar's allegations, as did several other witnesses called yesterday in the second day of a two-day trial in Boone Circuit Court. * * *

The testimony casts additional light on assertions initially made by the diocese in 2003 that then-Boone Circuit Judge Joseph Bamberger declared the case a class action because of his close friendship with Modlin, whom Chesley's firm had hired.

Bamberger's ruling, the first ever in the United States in a priest-abuse case, was vehemently opposed by the diocese and supported by plaintiffs' counsel because it allowed hundreds of people to bring their claims anonymously and to settle the cases at the same time.

The principal players in the case — Chesley, Modlin and Bamberger — also figured in the $200 million settlement of Kentucky's fen-phen diet-drug case. A judge has found that three other lawyers — but not Chesley — defrauded their clients. Bamberger resigned rather than face possible removal for his conduct in the case.

Posted by Marcia Oddi on Thursday, May 10, 2007
Posted to Courts in general

Wednesday, May 09, 2007

Ind. Courts - An update on the Indiana Court's case management system

As the ILB reported on April 8, 2007:

News has been sparse on the progress in implementing the Indiana Court's case management system. Since the announcement of a vendor Nov. 6, 2006, there has in fact been no news - the official site has not been updated.

There was this item in the March 3rd Bloomington Herald Times:

Indiana’s plan to launch a statewide case management court system will start with help from Monroe County.

The Indiana Supreme Court hopes to link all courts and clerk offices across the state, and it approached Monroe County to serve as the initial test site.

Now, several months later, we have another item in the Herald Times
Monroe Circuit Court Judge Kenneth G. Todd has been appointed to the Indiana Supreme Court’s Judicial Technology and Automation Committee, and Court Administrator Bonnie Austin has been appointed to the committee’s Case Management System Project Governing Board.

Both were appointed by Indiana Supreme Court Justice Frank Sullivan Jr., who chairs JTAC on behalf of the Supreme Court. The court formed JTAC in 1999 to provide leadership, governance and implementation of technology in Indiana courts.

Judge Todd is one of seven Indiana judges appointed to the committee. [ILB - see note below]

JTAC is overseeing a large technology project as the Supreme Court recently [ILB - on Nov. 6, 2006] contracted with Tyler Technologies Inc. to implement a statewide case management system. The system will link proceedings and records for all Indiana courts and county clerks.

The Monroe Circuit Court was recently selected as an initial test site for the system. Plans are for the pilot phase of the program to be implemented before the end of this year. [ILB - emphasis added]

Austin’s work with the System Project Governing Board will include guidance and assistance to JTAC during the implementation of the system as well as other technological projects.

Todd has served on the Monroe County bench since January 1979 and is presiding judge of the Monroe Circuit Board of Judges.

Austin has been the Monroe County Circuit Court administrator since November 2000.

Here are the current JTAC members (in addition to Justice Sullivan), according to the listing on the JTAC website:
Hon. Paul Mathias, Vice Chair
Indiana Court of Appeals
Indianapolis

Hon. Cynthia Ayers
Marion Superior Court (Civil Division #4)
Indianapolis

Hon. Sherry Biddinger-Gregg
Knox Circuit Court
Vincennes

Hon. Christopher Burnham
Morgan Superior Court #2
Martinsville

Hon. Jeffery Dywan
Lake Superior Court (Civil Division #7)
Crown Point

Hon. Michael G. Gotsch
St. Joseph Circuit Court
South Bend

Hon. Frances C. Gull
Allen Superior Court
Fort Wayne

Posted by Marcia Oddi on Wednesday, May 09, 2007
Posted to Indiana Courts

Ind. Law - More on: Fighting foreclosures and mortgage fraud

Rep. Michael Murphy of Indianapolis has a featured letter to the editor today in the Indianapolis Star, headed "Mortgage lenders can't hide much longer." He discusses the failure of HB 1525, a bill which would "required builders to disclose estimated property taxes for a new home’s full value." His letter concludes:

HB 1525 passed the Indiana House, 96-2. Then the lobbyists for the mortgage lenders went to work. They had a long list of objections to providing basic information to their customers. Chief among them were cost and liability. We answered their concerns, to no avail.

The legislation was amended to protect lenders from being sued in case of inaccurate property tax estimates. The Indiana Housing and Community Development Authority and the Department of Local Government Finance were willing to provide online consumer information and a calculator for estimating property taxes, at no cost to the lenders. Each time an issue was mitigated with the help of the Daniels administration and legislative leaders such as Reps. Jeb Bardon and Vanessa Summers, new obstructions were created. Finally, the lenders claimed "federal pre-emption," a catch-all term that allows them to hide behind federal regulators. In the end, the bill died, 49-48.

The mortgage lenders and their lobbyists were able to parse their way around their moral obligation this year. They will not escape accountability indefinitely. The U.S. Justice Department and the FBI are investigating a builder/lender active in the Indianapolis area for foreclosure rates of 13 percent. I will continue to work with men and women of good will to ensure potential homebuyers enter a deal with their eyes wide open.

Meanwhile, young homeowners continue to struggle. They do not have lobbyists. All they have is a dream. And those dreams are being broken by the thousands as mortgage lenders continue to put profit before principle.

For background, see this March 7, 2007 ILB entry.

Posted by Marcia Oddi on Wednesday, May 09, 2007
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)

For publication opinions today (2):

William Slater v. Marion County Department of Child Services and Child Advocates, Inc. - CHINS, affirmed.

Arrontin Plastic Materials of Indiana v. Wilmington Paper Corporation - "Arrotin raises one issue, which we restate as whether the trial court properly concluded that Wilmington did not breach the agreement with Arrotin." Contract interpretation. Affirmed.

NFP civil opinions today (1):

In Robert Woodruff v. Joan Lucas (NFP), an 11-page opinion, Judge Najam writes:

Robert Woodruff appeals from the trial court’s judgment in favor of Joan Lucas on Woodruff’s small claims complaint for ejectment and rent. The court originally entered judgment in favor of Woodruff but, after Lucas filed a motion to correct error, entered a Final Judgment Order granting Lucas’ motion.

Woodruff presents two issues for review, namely: 1. Whether Lucas proved the common law elements of adverse possession. 2. Whether Lucas proved substantial compliance with the adverse possession tax statute. We reverse and remand with instructions. * * *

We conclude that, without any evidence that Lucas actually paid the taxes, there is no evidence to support the conclusion that she had a reasonable good faith belief she had paid all taxes due on the disputed parcel of real estate during the statutory period. Lucas bore the burden of proof by clear and convincing evidence on all the elements of her adverse possession claim, including compliance with the adverse possession tax statute. Because the record does not support the trial court’s conclusion that Lucas satisfied the statute, as determined in the trial court’s original judgment against Lucas, the court erred when it granted her motion to correct error and entered final judgment in favor of Lucas. Thus, we reverse and remand with instructions that the trial court reinstate its original judgment entered February 6, 2006, in favor of Woodruff .

NFP criminal opinions today (8):

Gary L. Garrett v. State of Indiana (NFP)

Jerry Young v. State of Indiana (NFP)

Kevin Regan v. State of Indiana (NFP)

Richard Dodd v. State of Indiana (NFP)

Corey Preston v. State of Indiana (NFP)

Marvin Graves v. State of Indiana (NFP)

Clinton Hawkins v. State of Indiana (NFP)

Mark Estanislau v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 09, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer denied last week in "Flying J" case and a John Doe case

Among the Court of Appeals decisions denied transfer last week was the 10/31/06 ruling in Flying J., Inc. v. City of New Haven, Board of Zoning Appeals. This ILB entry from Nov. 6, 2006 gives a lot of background on this case. A story today in the Fort Wayne News-Sentinel by Ryan Lengerich begins:

A 17-acre Flying J travel plaza planned for New Haven has cleared another legal hurdle.

The Indiana Supreme Court decided Thursday not to hear the city of New Haven’s challenge to keep Ogden, Utah-based Flying J Inc. from building at Minnich Road and Indiana 930, just west of Interstate 469.

The travel plaza would include a convenience store, country market, 24-hour restaurant, fast-food court, service stations with gasoline and diesel fuel, rest facility with showers and a laundry, computers with Internet access, recreational vehicle services including waste-tank disposal and parking for 11 RVs and 187 trucks.

Another case followed in the ILB and denied transfer last week was John Doe v. Town of Plainfield, Indiana . In this Feb. 13, 2007 entry titled "Sealed documents in otherwise 'unsealed' cases", the ILB wrote about the fact that the entire docket in the John Doe case was unavailable online, although only an exhibit had been sealed, and wondered in how many other instances that was the case also.

Posted by Marcia Oddi on Wednesday, May 09, 2007
Posted to Ind. App.Ct. Decisions | Indiana Transfer Lists

Courts - An update on Pennsylvania Supreme Court judicial selection and retention

Pensylvania's judicial selection process differs from Indiana's. In Pennsylvania, all judges initially are elected on a partisan ballot, and thereafter are up for retention every 10 years on a non-partisan retention ballot. In Indiana our appellate judges and justices are appointed by the Governor from a slate proposed by a judicial nominating commission. After two years, they are subject to a "yes/no" vote from the voters, and again every 10 years thereafter.

The ILB has had a number of entries on Pennsylvania Supreme Court selections and retentions, including this one from Nov. 5, 2005 is headed "Retention vote for Pennsylvania justices becomes a battleground.", and this one from Nov. 19, 2005 titled "Another fascinating episode in Pennsylvania court's failed retention vote." This one from May 17, 2006, is titled: "Voter backlash continues in Pennsylvania."

Yesterday Dennis B. Roddy of the Pittsburgh Post-Gazette wrote:

Two years after voter rebellion over a midnight pay raise spilled over onto the ballot for Pennsylvania's high court -- resulting in the ouster of one incumbent and the narrow retention of a second -- the contests for two open seats have stayed low-key.

Yet echoes of that pay raise, and the current Supreme Court's ruling that the portion of it going to judges could not be rescinded the way the increases to legislative salaries were, remain a looming shadow. One of the two openings on the Supreme Court, after all, was created in November 2005 when voters rejected incumbent Justice Russell Nigro for retention.

Four Democrats and three Republicans are seeking two open seats on the Pennsylvania Supreme Court.

Faced with a raft of questions about law, procedure and background, the seven Supreme Court hopefuls found themselves juggling questions such as one posed by the Legal Intelligencer, Philadelphia's law newspaper, asking which side got it right: the Supreme Court majority that held the judicial raises as constitutional, or the minority who didn't.

As in years past, party endorsements and rankings by the Pennsylvania Bar Association's Judicial Evaluation Commission have played key roles in positioning candidates in contests that draw little attention and often turn on a candidate's geographical base.

The story continues with some quotes from responses of candidates to questionaires of the state bar association and the Legal Intelligencer.

The Legal Intelligencer cite led me to this May 2, 2007 story from "the oldest law journal in the United States" about their questionaire:

Editor’s Note: The Legal Intelligencer sent a 32-question questionnaire to all seven state Supreme Court candidates and asked them to fill it out so that we could publish the responses.

Beyond that, we put no limits on how the candidates could answer. The special section that follows represents their responses.

Only one candidate declined to answer the questionnaire. Because we wanted to let the candidates speak for themselves, we have performed minimal editing and all the responses represent the entire text of the material the candidates submitted.

It is our hope that the candidates’ answers to the questionnaire will provide the legal community and the general public enough information to make informed decisions in their votes in the May primary and the general election in November. The Legal Intelligencer would like to thank all the candidates who took the time to fill out the questionnaire. Special thanks also to Pennsylvanians for Modern Courts for some of their suggested questions and news editor Michael Riccardi, whose input was instrumental in crafting the final questionnaire.

You can go to the story to see the often interesting answers of the candidates. What interested the ILB even more was the list of questions:
Questions about you and the role of a judge:

1. What makes a good judge?

2. What is the biggest trap or mistake a judge can make?

3. How would you describe your judicial philosophy?

4. Which opinion do you think represents your best work?

5. If you could, which opinion would you take back or revise? Why?

6. What in your background has prepared you best for being a judge?

7. How would your personal views and experiences influence you as a justice?

8. What separates you from the other candidates and why would you be a better addition to the Supreme Court?

9. If elected, what would be your biggest priority on the court?

Questions about the law and legal practice:

10. Is there any area of the law that you think needs a closer look or guidance from the Supreme Court?

11. When deciding a case, how do you frame the issue and conduct your analysis to reach a conclusion?

12. Do you think there is a dilemma in how Rule 1925(b) is applied? And if so, what needs to be done to fix it?

13. Is the court threatening to make the practice of law too burdensome for solo and small-firm practitioners by increasing requirements for CLE, maintaining certain types of bank accounts, moving toward effective requirements for malpractice insurance, etc.?

14. Conversely, are clients adequately protected by the aforementioned requirements?

15. What is the greatest threat to the practice of law or problem the profession faces?

16. How important is consensus - particularly unanimous consensus - in high court opinions and are there limits when a justice should only concur, or should they do it any time they feel like it?

17. How important is stare decisis and when should a court depart from it?

Openness of the courts:

18. Does the court need to improve efforts to make the courts and what they do more open and accessible to the press and public?

19. Do you favor cameras in the courtroom, particularly for oral arguments before the Supreme Court?

20. Once litigants have chosen to enter the arena of the public courts, should confidential settlements be discouraged? Or should they be encouraged as a way for the system to reach swifter resolutions?

21. Under what circumstances should judges seal the records in a case? In general, should the practice of sealing records be encouraged for discouraged?

22. Should the court make more of its dealings - including meetings with other elected officials and reasons for recusal - open to the public?

Politics and public perceptions:

23. What should be the nature of the relationship between the court and the members of the other branches of government and how should the justices, particularly the chief justice, interact with them?

24. The pay raise decision: who do you think got it right, Justice Castille or Justice Saylor? Explain your answer.

25. Since judges are elected and you are running as a member of a political party, what does your party membership say about you and how big a role does it play in your outlook on legal matters?

26. Should party membership/loyalty play any role in getting a party's nomination?

27. Would you recuse yourself if a campaign contributor were involved in litigation as a party or attorney before you?

28. In general, under what circumstances would you recuse yourself from a case?

29. To whom or what are judges accountable?

30. What does "independence of the judiciary" mean to you?

31. How would you define a "threat to judicial independence?" And where are these threats coming from?

32. What is the biggest misunderstanding between judges and the general public?

Posted by Marcia Oddi on Wednesday, May 09, 2007
Posted to Courts in general

Law - "Life is short. Get a divorce" billboard is short-lived

The Chicago Sun-Times reports today:

The salacious "Life is short. Get a divorce" billboard with barely clothed models was ripped from its Rush Street perch one week after it went up and one day after the Sun-Times reported it.

The story was picked up internationally, running on CNN, MSNBC, ABC's "Good Morning America" -- even on "The View."

That's not the kind of publicity Chicago officials wanted as they seek to host the 2016 Olympics, say supporters of attorney Corri Fetman.

"They ripped our billboard down without due process," Fetman said. "We own that art. I feel violated."

But it wasn't a moral crusade that brought down the billboard -- it was the lack of a proper permit, claimed Ald. Burton Natarus (42nd), who leaves the City Council this month after 36 years.

Always a stickler for rules, Natarus got a call about the sign and determined the sign company did not have a proper permit.

"I called the building inspector and told him to do his job and he did," Natarus said. "It has nothing to do with content or anything else. They did not have a permit and they were ordered to take it down." * * *

"I looked out my window at 3 o'clock and it was gone," said neighbor Lisa Price, a critic of the billboard. "The neighborhood has been cleaned up. My peaceful view is restored and I'm very happy about it.

But Fetman and her law partner, Kelly Garland, say even people who disliked the billboard should worry about the threat to free speech.

"This isn't just about us --it's about everybody's First Amendment rights to say what they believe in," Garland said.

Here is an earlier story from ABC7Chicago, complete with video, that begins:
May 7, 2007 - A large billboard in Chicago is getting all the attention it was hoping to attract, but some say it's in bad taste.The ad shows the well-toned torsos of a man and a woman with the caption: 'Life is short. Get a divorce.'

A divorce attorney paid for the ad.

The sign on Rush Street is three times the size of a regular billboard, and features a scantily clad woman and man. It's causing a great deal of attention on the busy restaurant street.

"I think what she's promoting is, 'If you want to have a babe or a hunk like this, come to us, we can make this happen for you," said Geraldine Kimborugh.

"I think it's ludicrous," said Peter Citera. "I think it's saying that marriage is no longer a commitment in this country."

Posted by Marcia Oddi on Wednesday, May 09, 2007
Posted to General Law Related

Tuesday, May 08, 2007

Law - Legal Theory Lexicon: Strict Construction & Judicial Activism

Each weekend Law Prof. Lawrence B. Solum of Legal Theory Blog adds a new definition or two to his "Legal Theory Lexicon." Last weekend's (May 6th) entry began:

Introduction. This entry in the Legal Theory Lexicon is a bit unusual. Rather than explicating concepts that are important to legal theory, the point of this post is to debunk two concepts that (arguably) are unimportant (or even meaningless), strict construction and judicial activism.

Posted by Marcia Oddi on Tuesday, May 08, 2007
Posted to General Law Related

Courts - Judge's libel victory against the Boston Herald upheld by Mass. high court

I remember the stories about the judge at time, although it was before the start of the ILB, so I can't pull them up. You may remember them too, once you read this story from today's Boston Globe:

The state's highest court upheld a $2.01 million libel verdict against the Boston Herald yesterday in a sharply worded decision calling the newspaper's 2002 articles about Superior Court Judge Ernest B. Murphy "defamatory and false."

The stories portrayed Murphy as soft on crime and generated widespread outrage by quoting anonymous sources as saying that the New Bedford jurist had declared of a 14-year-old rape victim, "Tell her to get over it." Hate mail deluged Murphy's office, causing him considerable emotional and physical distress, his lawyers said.

In 2005, a Suffolk Superior Court jury found that the Herald and its lead reporter on the Murphy stories, David Wedge, had maliciously published false and defamatory material about the judge, meeting the high standard for libel. The Supreme Judicial Court upheld that decision yesterday.

"The press . . . is not free to publish false information about anyone (even a judge whose sentencing decisions have incurred the wrath of the local district attorney), intending that it will cause a public furor, while knowing, or in reckless disregard of, its falsity," Justice John M. Greaney wrote in the unanimous opinion for the court.

Murphy, in brief comments after the decision, said the record of his treatment of the rape victim had now been definitively corrected. "I am very, very happy that it is now established beyond possible contraversion that my remark about the rape victim and my attitude about her in truth were very compassionate," he said.

His legal team said that with interest the amount the newspaper owed Murphy was $3.4 million and counting. The newspaper has 90 days to appeal the case to the US Supreme Court.

Murphy's lawyer, Howard Cooper, called on the Herald to end the case and "issue a public apology to Judge Murphy and his family." * * *

"Neither Wedge, nor any other Herald employee who testified at trial, could name one person at the Herald who either edited, or checked for accuracy of, the content of Wedge's article," the court's opinion said.

Stephen Burgard, director of Northeastern University's journalism school, said the case underscored the need for journalists to be careful and thorough.

"This is a wake-up call to report ers everywhere that you better have your reporting down solid," he said. "You better have heard it yourself, or you better have people on the record." * * *

A considerable portion of the SJC decision discussed the comment about the rape victim attributed to Murphy by the Herald.

During the 2005 trial, Wedge told jurors that he was told about the comment by a prosecutor who heard it first-hand. But in depositions, Wedge revealed that he was only able to confirm the comment from first-hand sources after the story had been published and that the sources had given him a less inflammatory version of the judge's alleged comment than the one Wedge used in his report.

"It is fair to say that, by the end of Wedge's testimony, his credibility on any material factual point at issue was in tatters," the opinion said.

Posted by Marcia Oddi on Tuesday, May 08, 2007
Posted to Courts in general

Ind. Courts - Allen County judge achieves longtime dream with cloud-9 freefall

Dionne Waugh of the Fort Wayne Journal Gazette reports today on the first jump of Fran Gull, chief judge of the Allen Superior Court. Here is a quote from her son, Cody Gull, a paratrooper:

“It’s something I never thought she’d get the opportunity to do or want to do,” he said. “I was pleasantly surprised when she readily agreed. It’s becoming something of a family tradition to have Gulls and Cutinos leaping out of planes.”

Posted by Marcia Oddi on Tuesday, May 08, 2007
Posted to Indiana Courts

Ind. Courts - "Statistics support Drug Court"

The Evansville Courier & Press reports:

Last year, the Indiana Judicial Center hired a research group to evaluate five adult drug courts in the state. Among those, the group studied participants who entered Vanderburgh County's Day Reporting Drug Court from April 2002 to June 2005. That group was compared to a group charged with crimes eligible for drug court but that never participated.

The results of those research efforts were made available this month. In summary, the study found the local program was successful in decreasing participant drug abuse, reducing recidivism and producing cost savings for taxpayers.

Significant findings included:

  • Participants in the local program were less likely to reoffend than offenders who were eligible for the program but did not participate. Regardless of graduation status, drug court participants were 33 percent less likely to have had any arrests in the 24-month follow-up period compared to their peers.
  • Measured by percentage of positive urine drug screens, participants consistently showed less drug use than the comparison group.
  • Over a two-year period, the local program saved taxpayers $281,764.
Here is the Indiana Courts Drug Courts website. The ILB is checking for the location of the statistics cited.

Posted by Marcia Oddi on Tuesday, May 08, 2007
Posted to Indiana Courts

Ind. Decisions - "A sex offender, who was apprehended after Oprah Winfrey offered a reward for his capture, has lost his appeal"

Reporting on the Court of Appeals not-for-publication ruling May 2nd in the case of William C. Davis v. State of Indiana (ILB entry - near the end), Bryan Corbin of the Evansville Courier & Press writes:

William C. Davis had appealed his Posey County convictions on three counts of child molestation last year, but the Indiana Court of Appeals denied his appeal and affirmed the lower court.

Davis, now 34, had fled Southwestern Indiana and was a fugitive for more than a year until October 2005 when he was apprehended in North Dakota, two days after an "Oprah" segment about him aired. Two tipsters in Fargo, N.D., split the $100,000 reward money the talk-show host offered for information leading to Davis' arrest.

Last year, a jury in Posey Superior Court convicted Davis of three child-molesting counts: one Class A felony and two Class C felonies involving sexual acts performed on boys ages 12 and 13 at the time of the crimes. Davis was found not guilty of molestation of a third boy who was 5.

Sentenced by Judge Brent Almon to 52 years in prison, Davis appealed his Posey County convictions. Among other things, Davis' appeal contended the trial court wrongly allowed testimony about Davis' statements to FBI agents in Fargo.

The Court of Appeals rejected Davis' appeal.

Here is a list of earlier ILB entries about Oprah's involvement in Davis' apprehension.

Posted by Marcia Oddi on Tuesday, May 08, 2007
Posted to Ind. App.Ct. Decisions

Courts - "Jury Practices Vary Widely Across the Nation"

Vesna Jaksic of The National Law Journal reports today:

In South Carolina, voir dire in a civil trial typically lasts 30 minutes, a breeze compared with 16 hours in Connecticut. If you're trying a case in Rhode Island, there's a good chance you will question jurors individually, a rare occurrence in North Carolina. And count on Arizona's jurors to submit questions to witnesses -- but don't waste your time worrying about this if your trial is in Mississippi.

Such differences are among the findings of a new report, the first of its kind to examine jury practices from state to state. Released last week, the report was produced by the National Center for State Courts in Williamsburg, Va., and the State Justice Institute in Alexandria, Va.

The report included responses to surveys from more than 11,000 attorneys and judges, and court officials in more than 1,500 counties.

The length of the jury-selection process is one of many factors that lawyers may need to be aware of, said Paula Hannaford-Agor, director of the Center for Jury Studies in Williamsburg and one of the report's three co-authors.

"A huge host of practices vary greatly and if you take someone out of one culture and drop them in another, they really would be quite taken and astounded," she said.

The complete The State-of-the-States Survey of Jury Improvement Efforts, which "provides the most comprehensive snapshot of contemporary jury operations and practices in state courts ever conducted. This Compendium Report describes state and local jury improvement efforts, the terms and conditions of local jury operations for 1,396 state court jurisdictions, and in-court jury trial practices in 11,752 jury trials conducted in state and federal courts between 2002 and 2006,' is available here.

Also available are tables showing state rankings in survey results. Oddly, they are available only in Excel format. The ILB has converted one of the tables - the one on length of voir dire for civil trials, to PDF so that it may be easily viewed (access it here). For the table, one can readily see that Connecticut, with its 16 hour voir dires, is really an outlier. If you throw out Connecicut, Indiana, with 2 hour voir dires, is right in the middle.

Here is the press release for the NCSC study. Another of its findings is this:

State courts conduct approximately 149,000 jury trials each year. This number is substantially larger than previous estimates and suggests that the “vanishing trial” phenomenon may not be as widespread in state courts as recent reports suggest.
Recall this ILB entry from April 30, 2007 on federal trials, headed "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."

Posted by Marcia Oddi on Tuesday, May 08, 2007
Posted to Courts in general

Monday, May 07, 2007

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

For publication opinions today (1):

Brad Long v. State of Indiana is a 13-page page by Judge Vaidik, whose case summary reads:

Brad Long appeals the twenty-year sentence imposed by the trial court after Long pled guilty to voluntary manslaughter, a Class B felony. Specifically, he argues that the trial court abused its discretion in identifying aggravating and mitigating circumstances and that his sentence is inappropriate in light of the nature of his offense and his character. Following McMahon v. State, 856 N.E.2d 743 (Ind. Ct. App. 2006), we review otherwise legal sentences under a single standard: inappropriateness. Finding that the trial court abused its discretion in identifying four of seven aggravating circumstances and that the nature of Long’s offense and his character do not otherwise justify his significantly aggravated sentence, we conclude that his sentence is inappropriate and revise it to a term of fifteen years. * * *

We agree with Long that the sentence imposed by the trial court is inappropriate, and we revise Long’s sentence to a term of fifteen years. Reversed.

BARNES, J., concurs.
BAILEY, J., concurs in result

NFP civil opinions today (0):

NFP criminal opinions today (5):

John Jesse Swaynie, Jr. v. State of Indiana (NFP)

B.R.M. v. State of Indiana (NFP)

Augustus Comello v. State of Indiana (NFP)

David Leroy Hale v. State of Indiana (NFP)

Stephen Wettschurack v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, May 07, 2007
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Update to: Still no reliable and permanent record of Governor's actions available

On Sunday I had a long ILB entry that surveyed access to official actions of the governor on legislation, and concluded:

Where does this leave us in this era of digitized information?
  • With this month's actions by Gov. Daniels available right now, but nothing else from his past months and years of service.
  • For Governors O'Bannon and Kernan, some information still available online, but only by happenstance.
A Suggestion. How about some concerted state effort at preserving this history in a consistent manner and making it readily accessible?
Last year I cited the federal government as a model in my article, "Executive Orders, Signing Statements, and Veto Messages, Part One," which pointed out:
Presidential signing statements are available in the Weekly Compilation of Presidential Documents published by the Office of the Federal Register, and available online going back to 1993. This publication also includes executive orders, communications to Congress and Federal agencies, and statements regarding bill signings and vetoes.
Thanks to Jon Laramore, now of Baker & Daniels, who has sent some additional background to Sunday's entry:
During the 2 1/2 years I was counsel to Governors O'Bannon and Kernan, we only did one signing statement. That was in a situation where two bills amended the same statute, and it made a difference which of those two bills became law first. We did a signing statement that memorialized the times at which the bills were signed and our understanding of which would take precedence over the other. I believe we sent that signing statement to the secretary of state with the bill, and I believe we posted it on the web as we would post any veto message. I cannot remember whether we submitted it to the Indiana Register. you are probably correct that there is no readily accessible record of the signing statement.

Another kind of record that is similarly lost are the governors' statements in connection with clemency in capital cases. Governors Bayh, O'Bannon and Kernan each issued statements comprising several pages explaining, at least to some degree, the standards they were applying and the facts they were considering in denying or granting clemency. These also are not preserved anywhere, as far as I know, except in the governors' papers in the state archives. I have not found them to be accessible on the Internet. I don't claim that these statements are precedential in any way, but they do give some insight into the thought processes the governors went through and they therefore give some assistance to lawyers who are seeking clemency.

I always felt that the handling of veto messages was adequate because past years' messages were in the journals and the current year's messages were on the governor's website. Perhaps you're right that those arrangements are not adequate.

I responded:
I'll see if I can't still pull up and save the "signing statement" you mention on which of the two bills became law first. Although not technically a signing statement, the item I cited gave insight into Kernan's intentions re the pensions, and should be preserved. [Kernan wrote: "I strongly believe that Indiana law should make more pension information public, so strongly in fact that I am releasing my own pension information. I am committed to pushing for legislation in the 2005 session to exempt pension payment amounts from confidentiality restrictions."]

The clemency statements are something I had not thought of, but certainly should be available.

Re veto messages, yes, they are ultimately in the journals, but the journals have fallen on hard times too. I really think a copy of the vetoes belongs with the other actions of this sort of each governor, compiled and maintained similarly to the way the Federal Register does it.

I have not yet been able to locate the document Jon cites as the only true "signing statement" during his service to the Governors.

The difference between a "signing statement " and a press release sometimes blurs, however. For example, in this statement released by Gov. O'Bannon on May 9, 2003, he outlines to the President and Members of the Senate his decision to sign SEA 169 and details his concerns about portions of it.

This document, however, is among the many legislation-related records made by our governors that is now practically inaccessible in a time when all these documents could so easily be put into order.

Posted by Marcia Oddi on Monday, May 07, 2007
Posted to Indiana Government

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

In Scruggs v. Jordan (ND Ind., Allen Sharp, Judge), a 10-page opinion, KANNE, Circuit Judge, writes"

Aaron Scruggs, an inmate in Indiana state prison, was sanctioned by the prison’s Conduct Adjustment Board (“CAB”) after he struck another inmate with his cane in order to stop that inmate from stabbing a third inmate. Scruggs filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 in the Northern District of Indiana alleging due process and equal protection violations arising from his disciplinary hearing. The district court denied the petition on the merits and we affirm.

Posted by Marcia Oddi on Monday, May 07, 2007
Posted to Ind. (7th Cir.) Decisions

Courts - "A Bit of Thin Skin Peeks Out of the Robes"

"A Bit of Thin Skin Peeks Out of the Robes" is the headline to Adam Liptak's "Sidebar" column today in the NY Times. Access is limited to TimesSelect customers, but Howard Bashman provides this "TimesSelect temporary pass-through link." The thrust of Liptak's column this week is that, more and more, judges "have been lashing out at lawyers and even other judges who say harsh things about their decisions." Some quotes:

A particular peeve in other courts is the accusation of intellectual dishonesty.

In 2005, Michael G. Brautigam, an Ohio lawyer, said a decision he was appealing to the Kentucky Supreme Court contained “extreme intellectual dishonesty.” For that, Mr. Brautigam was charged with violating a Kentucky ethics rule prohibiting false statements about “the qualifications or integrity of a judge.”

He said fighting the charge was burdensome and frustrating. “Whomever made the formal bar complaint against me — likely a Kentucky appellate judge — is protected from being identified by the bar complaint process,” he said.

The complaint was eventually dismissed, and Mr. Brautigam is unrepentant. “The 2-1 decision of the Court of Appeals was intellectually dishonest,” he said. “I said it. I meant it. I stand behind it.”

Michael A. Wilkins, an Indiana lawyer, had less luck. He was formally reprimanded a few years ago by the Indiana Supreme Court for saying in a footnote that an appeals court decision was so riddled with errors that “one is left to wonder whether” the court “said whatever was necessary” to reach the desired result.

A dissenting justice was left scratching his head. “It seems to me no different from the attacks many lawyers and nonprofessionals have launched on many court decisions, including such notable ones as Bush v. Gore and Brown v. Board of Education,” the justice, Theodore R. Boehm, wrote.

For more on the Wilkins decision, see this ILB entry from July 27, 2003. Although most of the links no longer work, those to the Indiana Supreme Court documents are still good.

Posted by Marcia Oddi on Monday, May 07, 2007
Posted to Courts in general

Ind. Courts - "Marion Superior Court judges plan to start cracking down on prospective jurors who don't show up on the days they're assigned"

Jon Murray of the Indianapolis Star writes today of failures to show for jury duty in Marion County. Some quotes:

In Marion County, failing to show up for jury duty is common. Fewer than half of those called actually come in the day they're told to report.

Starting this summer, Marion Superior Court judges hope to break residents of that habit by giving them a second chance to show up if they've already ignored one summons this year. If they fail to appear again, the judges will start bringing down the hammer. * * *

Last year, 22,932 -- or 52 percent -- of potential jurors failed to come in on their group's assigned day.
Stoner said the judges share some of the blame.

"The courts have bent over backwards in not holding people responsible," he said. "We should have been sanctioning jurors all along." * * *

Other metro-area counties don't share the problem. Marion County has a few hundred trials each year, more than the eight other counties combined.

But large cities share the same challenge -- largely, experts say, because people in places such as Detroit and Los Angeles think there are plenty of jurors to take their place, and no consequences.

Each year, Marion County's jury pool coordinators send about 120,000 summonses. Some people reschedule or make other arrangements, and some are never called in. About 30 percent end up with an assigned day to come to the City-County Building in Downtown Indianapolis. Not everyone called in gets on a jury. * * *

This isn't the first time Marion County's judges have tried to boost the turnout. They appealed to the public in late 2005 when the rate of no-shows regularly began exceeding 60 percent, despite a rate closer to 54 percent for the entire year.

The judges hoped one reform, which took effect last year, might help. Lists of potential jurors provided by the state began including names from more than voter registration records, which were full of outdated addresses. Now the state checks with the Bureau of Motor Vehicles and the Indiana Department of Revenue.

In Marion County, undeliverable summonses dropped by one-third last year, to 16 percent. But the jury pool saw only a slight improvement in the number of potential jurors who showed up.

A sidebar notes: "Court officials lobbied the General Assembly to allow counties to reimburse potential jurors for parking instead of mileage. Gov. Mitch Daniels has signed the bill, and the judges now will ask the City-County Council to make the change."

Posted by Marcia Oddi on Monday, May 07, 2007
Posted to Indiana Courts

Ind. Decisions - More on "Don't bother us by arguing over what some federal district judge may have said in another case, Seventh Circuit tells lawyers"

Re Chief Judge Frank H. Easterbrook's statement last week in RLJCs Enterprises v. Professional Benefit Trust, Howard Bashman of How Appealing writes in his weekly column for Law.com this week:

Unsurprisingly, Easterbrook's logic is impeccable. A proposition of law is not made correct (or incorrect) merely because of how some federal district judge has ruled in another case. Similarly, neither a non-precedential ruling nor the view of the author of a learned treatise authoritatively determines whether a given proposition of law is correct.

Nevertheless, the reality is that even the most accomplished appellate attorney imaginable, when faced with a choice between filing a brief full of persuasive argument but bereft of any authority, or the same brief containing the same arguments but also non-binding authorities, will choose the latter course.

Where there exists either binding U.S. Supreme Court precedent or binding precedent from the court in which the current appeal is pending, it is unnecessary to cite to district court rulings, learned treatises or relevant law review articles. But in a case where no binding precedent exists to govern the outcome, attorneys understandably believe that having some authority to cite -- albeit non-precedential authority -- is better than nothing.

Posted by Marcia Oddi on Monday, May 07, 2007
Posted to Ind. (7th Cir.) Decisions

Sunday, May 06, 2007

Courts - "Camera-shy justices hyperlink a video to their car-crash opinion"

Last week the ILB reported on the U.S. Supreme Court's police chase opinion, commenting on both the ruling itself, and on the Court's inclusion of a video of the car chase.

The ABA Journal E-Report has an interesting article by Martha Neil on the Court's action.

Posted by Marcia Oddi on Sunday, May 06, 2007
Posted to Courts in general

Law - "Judge blocks execution of Tennessee man"

A story in the LA Times today, by Henry Weinstein, reports:

A federal judge in Nashville on Friday blocked the execution of a man who has been on Tennessee's death row for more than 20 years, based on a challenge to the state's new lethal injection procedure.

Attorneys for Philip Ray Workman demonstrated a likelihood of success on their claim that the protocol exposes their client "to a foreseeable and likely unnecessary risk of unconstitutional pain and suffering in violation of the Eight Amendment," U.S. District Judge Todd J. Campbell wrote.

Campbell said he would hold a hearing May 14 on whether to issue a preliminary injunction barring all executions under the new protocol. * * *

The new protocol contains more detail than the old one. But [attorney Kelley J. Henry] said it "provides for the procurement, mixing and administration of highly sensitive and unstable chemicals by poorly trained and unqualified personnel."

In support of her position, which she submitted to the district court Thursday, Henry offered a lengthy declaration by Dr. Mark J.S. Heath — a Columbia University anesthesiologist who has testified on behalf of condemned inmates around the country. The new protocol "does little to nothing to assure [the state] will reliably achieve humane executions," Heath wrote.

Testimony from Dr. Heath was also presented in the federal lawsuit challenging Indiana's lethal-injection procedure - that action was not successful. See these ILB entries from April 26th and May 1, 2007.

Posted by Marcia Oddi on Sunday, May 06, 2007
Posted to General Law Related

Ind. Courts - Indiana concrete customer lawsuits could net millions

Kevin Corcoran writes today in the Indianapolis Star:

Justice Department attorneys say secret deals in the ready-mix industry inflated the price of nearly all concrete that flowed into Indianapolis-area projects.

Now it's up to customers to prove it. Tens of millions of dollars for customers, and the concrete companies' futures, are at stake.

Homebuilders, contractors and other customers are suing in U.S. District Court. They stand to collect a tidy sum: A Purdue University economist working for the wronged customers has pegged the median overcharge at 21 percent in U.S. price-fixing conspiracies since 1991.

That's money that was spent unnecessarily on basements and driveways, parking garages, highways and major capital projects.

"We are highly confident the impact of this illegal conspiracy was significant and affected all consumers," said Irwin B. Levin, a partner with Cohen & Malad and an interim lead attorney in the consolidated federal case. * * *

Antitrust law doesn't require federal prosecutors to show the extent of overcharges to win convictions. Any agreement to fix prices, whether it's carried out or not, is a crime.

But to recover their money, ready-mix customers must prove they paid too much. However, they can cite convictions of nine concrete executives and managers as evidence of price fixing.

Individual homeowners could win reimbursement if their names show up in concrete company records.

Pressure to resolve the litigation, which is likely to be certified later this year as a class action, will be intense.

If the case is decided by trial, ready-mix suppliers must pay three times the overcharges, a penalty that could top $200 million if Purdue's survey results are an indication. Pretrial settlements could total much less -- $17.5 million to more than $50 million, according to bank analysts' reports.

For that reason, nearly all antitrust suits are settled or dismissed before experts weigh in with published estimates of inflated pricing, according to one of the plaintiffs' consultants, John M. Connor, a Purdue professor of industrial economics.

Verdicts by judges and juries are rare. Connor declined to comment, citing his role in the case.

Companies that settle early to drop out of class actions can dramatically limit their financial risk and exposure.

Read the lead story, "The big fix: How 5 Indiana concrete companies cheated Hoosiers out of as much as $70 million and sparked the biggest domestic price-fixing investigation in U.S. history," here.

Posted by Marcia Oddi on Sunday, May 06, 2007
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't - More on the $1,000 bonuses the Senate President Pro Tem put in the budget to reward each of his committee chairs

"Long raises bonuses; critics raise fuss" is the headline to an item in the Political Notebook, the weekly column by Niki Kelly and Benjamin Lanka in the Fort Wayne Journal Gazette:

INDIANAPOLIS – Fort Wayne Republican Sen. David Long had a smooth run during his first session as president pro tem – until the last day.

That’s when word hit that he had increased leadership bonuses in the Senate budget.

It wasn’t much money – about $18,000 in new money over the last biennial budget – but the news riled up House members nonetheless.

Some even wondered why the Senate’s overall budget is the same as the House’s even though the Senate has half as many members.

And it was especially noted that Long increased his own leadership pay by $500 to $7,000.

The House speaker continues to receive a $6,500 bonus though – and he’s ahead of the Senate president pro tem in the line of succession to the governor’s office.

The situation is exacerbated by the fact that the bonus increases come during the same session in which Long was intricately involved in passing a bill to double all lawmakers’ salary.

When asked about the bonuses, he said he would donate his extra $500 to charity

“It’s important that the speaker and I stay on the same level,” Long said. “I did this for the future.”

Long also gave his committee chairman $1,000 bonuses where in the past only those chairmen in charge of fiscal committees have received the extra cash.

This created another inequity with the House members, and Rep. Mike Murphy, R-Indianapolis, even brought it up during debate on the two-year, $26 billion budget.

He referred to the Senate as the “House of Lords” and wondered why senators should get more money to ignore House bills.

The remark sent House Republican Leader Brian Bosma scurrying to the Senate to apologize to Long.

And it’s not even clear whether lawmakers are legally allowed to take the new money. A post on the Indiana Law Blog pointed out that the Indiana Constitution says “no increase of compensation shall take effect during the session at which such increase may be made.”

And lawmakers just changed the definition of compensation to include any “amount paid to an individual; or benefit provided an individual to compensate the individual for services provided as a public officer.”

That’s why, for instance, the base salary pay hike doesn’t go into effect until 2009.

“People are making more out of it than it is,” Long said on the last day of session. “The hard work is done in the committees, and I wanted to reward them. This is a small thank you for what they do.”

So what does Democrat House Speaker Pat Bauer think of the bonus brouhaha?

“I’m glad we didn’t do it is all I can say.”

For more, see the last part of this ILB entry from April 30th, and this entry from April 29th.

Posted by Marcia Oddi on Sunday, May 06, 2007
Posted to Indiana Government

Saturday, May 05, 2007

Ind. Courts - Legislature broadens eligibility for forensic diversion program

A Fort Wayne Journal Gazette editorial Friday began:

Most mental health and criminal justice professionals agree it’s important to keep people with mental illness out of the criminal justice system whenever possible. They argue that helping them get into treatment programs offers the best chance of getting their lives back on track.

That’s what the state’s “forensic diversion” program is designed to do, and legislators last week knocked a significant kink out of the law that created it. They approved a bill that broadens eligibility for the program and should help focus more resources on people with mental illness.

The original law required participants to have either a substance-abuse problem or a diagnosed mental illness. The change broadens eligibility to include people who have both substance-abuse problems and mental illness. Sen. David Long, R-Fort Wayne, who authored the original law, said the change should clear up a glitch in how the law has been interpreted in some courts and make it clear that people with both mental illness and substance addiction problems are eligible.

Created in 2004, the diversion program now allows an adult diagnosed with a mental illness, substance addiction or both and charged with a non-violent offense to request admission by the court. A participant can’t be released from the program without a court order.

The bill is HEA 1437 - access it here.

Posted by Marcia Oddi on Saturday, May 05, 2007
Posted to Indiana Courts

Ind. Courts - Fort Wayne Journal Gazette editorial on the Court of Appeals

An important editorial today in the Fort Wayne Journal Gazette:

The 15 judges of the Indiana Court of Appeals got part of what they wanted in last week’s final budget bill. State lawmakers provided money to hire clerks to help handle the increasing number of cases filed with the court.

But the judges couldn’t persuade the legislature to add a new sixth district to the court, and it’s not unreasonable to suspect partisan politics played a role in the decision. Democrats were reluctant to approve a new court district and allow Republican Gov. Mitch Daniels to appoint three judges.

This issue is sure to surface again in the legislature. When it does, political partisanship should have no role in deciding whether the appeals court’s workload has increased to the point that a new district is needed.

Appeals judges, who decide appeals of criminal and civil cases from lower state courts, base their case for a new district on the numbers.

In 1972, 398 civil and criminal cases were appealed to the court, which then had just three districts, but over the years that number has ballooned, increasing to 2,709 in 2006. Former Allen Superior Judge Paul Mathias, who joined the appeals court’s third district bench in 2000, said the large volume of cases required each judge to decide and write majority opinions for 150 to 175 cases last year and vote on 300 to 400 others.

Mathias attributed part of the increase in appeals to a 2004 U.S. Supreme Court ruling that declared unconstitutional the criminal sentencing guidelines of several states, including Indiana, and led hundreds of inmates to appeal their sentences. And unlike the state Supreme Court or the federal court system, the state appeals court must hear and rule on every case filed.

Without some permanent relief, Mathias fears that judges will have to begin issuing one-word opinions that either affirm or reverse the lower court decision without explanation.

More from the editorial:
Sen. David Long, R-Fort Wayne, president pro tem of the Senate, agreed that partisanship may have played a role in the decision but also believes that resentment toward the judicial branch among legislators may also have colored their attitude.

“I’m a lawyer, and having watched this process for a while, I think some legislators just don’t like the judiciary,” he said. “As an attorney, I would argue they definitely need some help.”

Generations of lawmakers have tried to insulate the judiciary from the political process with varying degrees of success. Whatever decision legislators make on expanding the appeals court, it should be made with the goal of swift and fair justice – not politics – in mind.

Posted by Marcia Oddi on Saturday, May 05, 2007
Posted to Indiana Courts

Ind. Gov't. - Still no reliable and permanent record of Governor's actions available

In this ILB entry from April 28th, titled "Ind. Law - 'Daniels vetoes film industry bill' - Concerns about maintaining a permanent historical record," the ILB again expressed concern about the lack of preservation of Indiana governors' signing statements, veto messages, and related materials.

I have to say now that it appears the Daniels' administration has a worse record than earlier administrations.

Here is a page, still available online (but who knows for how long, as it is no longer directly accessible), of Governor Kernan's calendar from March 2004 - a short session.

From this page one can access Kernan's signing statements (e.g. - " Kernan signs HEA 1285, says it is needed to protect law enforcement officers personal information") and could access his veto messages, had there been any that month.

From this page (again, apparently still available only by fluke), one can access Governor O'Bannon's calendar from May 2003. Here are veto messages for HEA 1660 and SEA 440, for example, from a list of a number of signng statements and veto messages.

But, as I've written in the past, the only other source I can locate for this material would be the House and Senate Journals, in the case of the veto messages, at the time the year's journals are complete and accessible. In the case of the signing statements, there appears to be no source, other than these links that may disappear at any time.

This AP story today reports that:

Gov. Mitch Daniels signed several bills Friday, including one that would make Indiana’s minimum wage consistent with the federal rate and another that would make it a crime to commit sex acts with animals.

Daniels vetoed a bill that would increase attorney fees in some cases where Medicaid liens are recovered.

Indiana’s current minimum wage of $5.15 an hour is the same as the federal rate. Rep. John Day, D-Indianapolis, filed legislation that would increase the state rate to $7.50 an hour but settled for a compromise that passed that would tie future increases to the federal rate. * * *

Daniels said he vetoed one House bill because it would mandate a threefold increase in the lawyers’ share of recoveries in certain personal injury cases where a Medicaid lien exists against any compensation a plaintiff might obtain. Those would include cases in which there was no demonstrable prospect that total recoveries to reimburse Medicaid would increase as a result.

“The more likely outcome of higher attorney fees would be less money flowing back to taxpayers and the Indiana Patients Compensation Fund,” Daniels wrote in his veto message.

So what do we see when we visit Gov. Daniels' press calendar for May 2007? As of this writing, a blank calendar.

However, there is a very small spark of hope. Since I last visited this "Latest press releases" page two days ago, new information has been added. There are now links to the three veto messages, HEA 1429 (Medicaid attorneys' fees), SEA 490 (interior designers' licensing), and HEA 1388 (movie tax incentives). There is also a "sort of" press release/signing statement.

However, where are the Daniels' documents from prior years? The link on the page to "News Release Archives" leads to the blank monthly calandars.

Where does this leave us in this era of digitized information?

  • With this month's actions by Gov. Daniels available right now, but nothing else from his past months and years of service.
  • For Governors O'Bannon and Kernan, some information still available online, but only by happenstance.
A Suggestion. How about some concerted state effort at preserving this history in a consistent manner and making it readily accessible?

[See also this April 30, 2006 ILB entry.]

Posted by Marcia Oddi on Saturday, May 05, 2007
Posted to Indiana Government

Ind. Decisions - More on: Spencer County adult business ordered to close

On March 13, 2007, Kate Braser of the Evansville Courier & Press reported: "After more than a year of a court battle between Spencer County and an adult entertainment business the county wanted to shut down, Spencer County Circuit Court Judge Wayne Roell ruled in the county's favor." (See ILB entry here.)

Today Braser reports:

Almost two months after a judge issued a ruling ordering an adult entertainment business in Spencer County to shut down, attorneys representing the county say the business remains open.

The dispute began in the fall of 2005 when the Adult Plaza opened at the site of a former truck stop at the U.S. 231/Interstate 64 interchange.

After more than a yearlong court battle, county officials thought the case was over in March, when Circuit Court Judge Wayne Roell ruled in the county's favor. He ruled the business was in violation of county ordinances and opened without filing proper permits.

The ruling ordered owners of the Adult Plaza to permanently cease operations.

On Friday, attorneys for the county filed a motion in Spencer County Circuit Court requesting a hearing on the matter.

In their motion, the attorneys say the business has remained open and continues to sell pornographic items and showcase an adult cabaret featuring semi-nude dancers.

Posted by Marcia Oddi on Saturday, May 05, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Second Evansville attorney accused of possession, dealing meth [Updated]

Gavin Lesnick of the Evansville Courier & Press reports today:

An Evansville lawyer was arrested Friday evening for allegedly dealing methamphetamine, the second time in just over a month that a local attorney has been jailed on drug charges.

Teresa Perry, 33, was arrested at 4:30 p.m. at her law office, 999 N. Congress Ave., after she allegedly sold drugs and delivered methamphetamine to a police informant.

Brad Happe, who police say is a "friend and associate" of Perry, was arrested March 29 after authorities said they uncovered a meth lab in his Evansville law office and apartment.

Sgt. Kurt Althoff of the Vanderburgh County Sheriff's Department said police were aware then Perry was involved but that the case against her was strengthened after Happe's arrest. Althoff said a confidential informant also told police he had seen Perry and Happe using meth together.

The most recent ILB entry on Brad Happe was April 6th.

[Updated 5/7/07] Today's C& P contain another story, this one reporting:

Police on Saturday went to Perry's rental home in the 3300 block of Waggoner Avenue and found various drug-related materials, including what appeared to be a meth lab, according to a probable cause affidavit.

Posted by Marcia Oddi on Saturday, May 05, 2007
Posted to Indiana Courts

Ind. Decisions - "Court refuses request to open adoption records"

Tim Evans of the Indianapolis Star reports today on the Court of Appeals order yesterday In the Matter of the Adoption of Infants H., Marion County Division of Children's Services v. Stephen Melinger. (Access the ILB entry on yesterday's order here, 4th item.) From the Star:

The Indiana Court of Appeals has denied a request from The Indianapolis Star to open confidential records in the adoption case involving a 60-year-old New Jersey man who hired a surrogate mother to deliver twin girls for him.

In a decision issued Friday, the court said The Star failed to show "that extraordinary circumstances exist that require deviation" from the confidentiality requirements of adoption records.

Under the Indiana Supreme Court's administrative rules, petitions for access to such records must show extraordinary circumstances that justify making them public.

"Public interest in, and legislative action on, surrogacy and adoptions do not provide extraordinary circumstances for opening a particular adoption case file to the public," Chief Judge John G. Baker wrote in the ruling. "The Indianapolis Star is not entitled to access this Court's records on this case." * * *

Steve Litz, the Monrovia attorney who represented the adoptive father, Stephen Melinger, said he was pleased but added that the decision addresses just one of several issues swirling around the adoptions. "I am happy that the Court of Appeals decided that the children's privacy rights come ahead of a reporter's desire to invade those rights," Litz said. He said he also was pleased that the opinion called a Marion County court's initial decision to open case files on the adoption "erroneous."

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

The Star filed a petition March 22 to open records in the case, which pits Indiana's adoption secrecy law against the public's right to know how the courts do business.

In the ruling Friday, the appeals court found "the children in this case have already erroneously had their names and the details of their lives made public, and continued publication of the details of their lives based on information in this Court's file further infringes upon the privacy to which the family is entitled."

Charles Wilson of the AP also reports on the decision, in a story including these quotes:
"Public interest in, and legislative action on, surrogacy and adoptions do not provide extraordinary circumstances for opening a particular adoption case file to the public," Baker wrote.

Baker also said the original decision to open the case file was an error that should not be compounded.

The judges, however, denied a request from Melinger to seal further court proceedings since they already are confidential. * * *

"I am happy that the Court of Appeals decided that the children's privacy rights come ahead of a reporter's desire to invade those rights," attorney Litz told The Indianapolis Star.

Posted by Marcia Oddi on Saturday, May 05, 2007
Posted to Ind. App.Ct. Decisions

Law - "Court Rules for Heirs of a Man Who Took Pictures of Monroe"

"Court Rules for Heirs of a Man Who Took Pictures of Monroe" is the headline to this AP story in the NY Times today. Other papers head the same story as "Marilyn Monroe heirs lose NY court fight over famous photos." From the story:

U.S. District Judge Colleen McMahon said in a decision dated Wednesday and made public Friday that the [photographer Sam] Shaw heirs' company did not violate the rights of Monroe's estate by using pictures of her on T-shirts marketed and sold in Indiana. Millions of dollars were believed to be at stake in the litigation.

The Shaw Family Archives Ltd. had asked the court to rule that a 1994 Indiana law did not create post-mortem publicity rights for Marilyn Monroe LLC. The latter company is headed by Anna Strasberg, the wife of Monroe's producer, Lee Strasberg, who received the bulk of the starlet's estate. He died in 1982.

The Shaw Family Archives' case hinged in part on the Indiana Right of Publicity Act, passed in 1994. It established a right to publicity extending for 100 years after the subject's death. The case was first litigated in Indiana before being transferred to Manhattan.

Monroe died on Aug. 5, 1962. Her will did not bequeath a right of publicity.

"Ms. Monroe could not devise by will a property right she did not own at the time of her death in 1962," the judge wrote in siding with Shaw's heirs.

McMahon said Monroe did not have any post-mortem right of publicity under the law of any relevant state at the time of her death.

"As a result, any publicity rights she enjoyed during her lifetime were extinguished at her death," the judge wrote. * * *

At issue in the case was the sale of a T-shirt at a Target retail store in Indianapolis last Sept. 6 bearing a picture of Monroe and the inscription "Shaw Family Archives" on the inside label and tag.

The dispute also centered around the Shaw Family Archives' maintenance of a Web site through which customers could buy licenses for the use of Monroe's picture, image and likeness for various commercial products.

Reuters has a story by Leslie Simmons. Some quotes:
LOS ANGELES (Hollywood Reporter, ESQ.) - A New York federal judge has ruled that Marilyn Monroe's right of publicity died when she did in 1962, paving the way for family members of the late photographer Sam Shaw to continue selling and licensing images of the icon, including the photo of her standing above a subway gate.

Monroe's estate sued Shaw Family Archives and Bradford Licensing Inc. in 2005 in Indiana alleging violations of the superstar's right of publicity by using her name, image and likeness for commercial purposes without consent. The suit was brought under Indiana's broad 1994 Right of Publicity Act, which recognizes a descendible postmortem right of publicity.

Shaw's family and several others then filed a declaratory relief action over the dispute in New York federal court.

The dispute arises out of the sale of T-shirts by Target featuring an image of Monroe that was taken by Shaw. The archive also owns a Web site that allows customers to license Monroe's image and likeness for various products.

Monroe's estate claimed its right of publicity was devised through the residuary clause in her will that included all property "to which (she) shall be in any way entitled."

The estate's Indiana case was eventually transferred to New York and consolidated with the Shaw case.

In her ruling Wednesday, U.S. District Court Judge Colleen McMahon found that at the time of her death in 1962, Monroe did not have any postmortem rights of publicity under the law of any relevant state, including California, where she died, and New York, which was purportedly her legal residence, though that is under dispute.

California began recognizing descendible publicity rights in 1984; New York limits its statutory publicity rights to living persons.

"As a result, any publicity rights she enjoyed during her lifetime were extinguished at her death by operation of law," McMahon wrote. "Nevertheless, (Marilyn Monroe Llc.) argues that her will should be construed as devising postmortem publicity rights that were later conferred on Ms. Monroe by statute. Such a construction is untenable."

And while there are disputes as to whether Monroe's home was in California or New York at the time of her death, "there is absolutely no doubt that she was not domiciled in Indiana," McMahon wrote.

Here is the Indiana Rights of Publicity law, IC 32-36-1.

Posted by Marcia Oddi on Saturday, May 05, 2007
Posted to General Law Related

Not law but interesting - Barnes & Noble enters into 10-year contract to run all I.U. bookstores

From a report today in the South Bend Tribune:

Barnes & Noble College Booksellers Inc. will take over management of the campus bookstores at Indiana University South Bend and all other IU campuses July 1.

Indiana University President Adam W. Herbert announced Friday that he has accepted a staff recommendation to have the chain manage all campus bookstores. The 10-year outsourcing agreement covers 16 bookstores on seven IU campuses.

"I do not take this decision lightly," Herbert said Friday at an IU board of trustees meeting in Bloomington. "I understand the emotional aspects of it."

Posted by Marcia Oddi on Saturday, May 05, 2007
Posted to General Law Related

Friday, May 04, 2007

Ind. Decisions - Transfer list for week ending May 4, 2007

Here is the Indiana Supreme Court's transfer list for the week ending May 4, 2007.

One case was granted transfer this week. See this entry from earlier today for more details.

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

Over three years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on Friday, May 04, 2007
Posted to Indiana Transfer Lists

Law - Jan Crawford Greenburg to appear at Federalist Society event here

Jan Crawford Greenburg, ABC News Correspondent and author of: Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (which I reviewed in the April issue of Res Gestae), will appear here on Friday, May 18, 2007, at Noon, Conrad Indianapolis, 50 West Washington, at a CLE (pending) event sponsored by the Indianapolis Lawyers Division Chapter of The Federalist Society.

(Details: $20 for members, students and government employees, $25 for non-members , Payment accepted at the door, RSVP to Janice Simmons at (317) 713-3488 or jsimmons@sommerbarnard.com.)

Posted by Marcia Oddi on Friday, May 04, 2007
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP), and 1 ORDER

For publication opinions today (1):

William Dixson v. State of Indiana - "The eyewitness testimony was sufficient to support Dixson’s convictions, and the trial court did not commit reversible error in admitting into evidence Dixson’s statement to the police and his recorded telephone conversation with his wife. Moreover, the trial court did not err in ordering Dixson’s enhanced sentences to be served consecutively. The judgment of the trial court is affirmed."

NFP civil opinions today (2):

City of Fort Wayne v. Utility Center, Inc. (NFP) - "The City of Fort Wayne (the “City”) appeals an order from the Indiana Utility Regulatory Commission (the “IURC”) terminating an investigation of Utility Center, Inc. (“Utility Center”). The City argues that the IURC erred when it issued the order because it was not supported by findings and substantial evidence and was contrary to law. Utility Center has filed a motion to dismiss this appeal contending that the City did not file a timely notice of appeal under the appellate rules. We dismiss. * * * [T]he City has forfeited its right to appeal."

Richard "Buzz" Anderson v. Ronald Herrod, Deborah Herrod & Constance Boards (NFP) - This case involves a real estate purchase contract. "We affirm the trial court’s order as it pertains to rescission of the contract between Anderson and the Herrods and to the award of attorney fees to the Herrods. However, we reverse and remand with instructions that the trial court vacate its damage award to the Herrods and enter an order that complies with the requirements set forth in Issue I above. We further reverse and remand with instructions that the trial court vacate its award of attorney fees to Boards."

ORDERS today (1):

In the Matter of the Adoption of Infants H., Marion County Division of Children's Services v. Stephen Melinger (ORDER) - This order involves the Indianapolis Star's request for an evidentiary hearing under Administrative Rule 9 in support of its verified petition for access to judicial records. The Order, signed by Chief Judge Baker, concludes: (1) The Star's request for a hearing is denied, (2) Appellee's motion that further records be filed under seal is denied, (3) The records in this case shall continue to be excluded from public access under Rule 9(G), and (4) The Clerk is directed to post this order on the website.

[ILB comments: (a) the order is scanned, making it difficult to pull quotes from. (b) I don't at the moment understand the difference between conclusions 2 and 3.]

For background, see these ILB entries from March 22 ("The Indianapolis Star today challenged a decision by the clerk of Indiana's courts to withhold records in the appeal of an umarried New Jersey man's controversial adoption in 2005 of twins born to a paid surrogate mother."), March 23, and April 2, 2007.

NFP criminal opinions today (2):

State of Indiana v. John Franklin Bryant (NFP)

Nathaniel Deloney v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 04, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - February 2007 Bar Exam Results

The two-page list is available here. Congratuations to those listed!

Posted by Marcia Oddi on Friday, May 04, 2007
Posted to Indiana Courts

Ind. Decisions - 7th Circuit issues three decisions in Indiana cases today

In Decatur Ventures v. Stapleton Ventures (SD Ind., John Daniel Tinder, Judge), an opinion by Chief Judge Easterbrook, the question of vicarious liability of a supervisor of a “licensed trainee appraiser” under Indiana law:

The district court granted summary judgment in her [supervisor Daniel's] favor after concluding that appraisers in Indiana owe duties to lenders but not borrowers such as Decatur. Appraisers are liable to third parties only for fraud. But because Indiana treats an appraisal as an opinion rather than a fact, the representation could be fraudulent only if the appraisal’s author did not believe her own numbers. And of that, the district judge concluded, there is no evidence. This ruling wrapped up the claim against Daniel, and the district court entered a judgment under Fed. R. Civ. P. 54(b).

“Indiana follows Ultramares Corp. v. Touche, Niven & Co., 255 N.Y. 170, 174 N.E. 441 (1931) (Cardozo, J.), in limiting the liability of accountants, lawyers, and other professionals when persons receive their reports and opinions second-hand. * * * In a jurisdiction that follows Ultramares, a professional owes a duty of care only to his client plus any third party who the professional knows will see and rely on any opinion he renders. Indiana has applied this approach to appraisers. * * * Daniel’s client was either NovaStar or Stapleton (the record is not clear which), and she knew that the lender would review and rely on her reports. Lenders require appraisals to protect themselves from the people who are tempted to misrepresent the value of security in order to get their hands on more money. Nothing in the record suggests that Daniel anticipated that Decatur would rely on her work to protect himself from his own folly in believing Stapleton. Decatur does not cite (and we could not find) any case in Indiana holding an appraiser liable to a buyer for careless preparation of an opinion furnished to a lender. * * *

If Phillips and Daniel were lawyers, Rule 5.1(c)(1) would limit Daniel’s liability to specific conduct of which she has “knowledge”. The knowledge requirement shows that the supervisor is not vicariously liable for a supervised person’s fraud.

In Isaacs, Carol v. Hill's Pet Nutrition and Colgate-Palmolive (SD Ind., Larry J. McKinney, Chief Judge), EASTERBROOK, Chief Judge, writes:
Carol Isaacs worked for Hill’s Pet Nutrition, packaging pet food and preparing the bags for shipment, for more than five years. In 2002 and 2003 she filed charges of sex discrimination with the EEOC, contending that her employer violated Title VII of the Civil Rights Act of 1964. The district court granted summary judgment against Isaacs, who had sued not only Hill’s but also Colgate-Palmolive, its corporate parent. As the district court remarked, Colgate was not Isaacs’ employer, and she offers no reason why an investor should be liable for Hill’s acts. We need not mention Colgate again. * * *

A jury could infer that working conditions for female laborers at Hill’s Pet Nutrition were materially worse than the conditions for male laborers, that managers of the firm knew this, and that they did nothing because the firm deemed the men’s morale more important than the women’s welfare. That conclusion would be enough to support an award of damages under Title VII. The judgment is affirmed, except with respect to the hostile-working-conditions claim. On that subject the judgment is reversed and the case remanded for trial.

In re: Globe Building Materials (ND Ind., Rudy Lozano, Judge) is a bankruptcy case. Judge Wood writes:
This case arose as an adversary proceeding brought by Globe’s bankruptcy trustee against RDI, in which the trustee sought to recover Globe’s last payment to RDI on the ground that it was made during the preferential period before Globe’s bankruptcy filing. RDI resisted, claiming that it was entitled to the “new value” affirmative defense under 11 U.S.C. § 547(c)(4). * * *

In the end, RDI is in the same position as any creditor that receives a payment from a debtor on a pre-existing obligation during the preference period. Perhaps RDI wishes that it had not delivered those goods in November, but it had been under a duty to deliver them since the contract was signed in early 2000. The district court correctly decided that the trustee was entitled to recover the payment Globe made to RDI during the preference period, and RDI must now await compensation along with the rest of Globe’s creditors. We AFFIRM the judgment of the district court.

Posted by Marcia Oddi on Friday, May 04, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court grants one transfer this week

The transfer list will follow later today, but here is the case granted transfer by the Supreme Court this week. Recall that there was no conference last week.

Thabit Gault v. State of Indiana 27A02-0603-CR-224 - This is the Feb. 23, 2007 Court of Appeals opinion where Judge Vaidik's "concur in result in issue II" included the following:

This leads me to my greatest concern with the lead opinion. The majority uses this case as a springboard to comment, in dicta, on the work product privilege as it pertains to police reports. I do not share the conviction of my colleagues on this issue. First, I do not see this as a pervasive problem that needs fixing. Second, to the extent that it is a problem, we should deal with it in cases where the issue is squarely presented to us. For these reasons, I concur in result as to issue II.

Posted by Marcia Oddi on Friday, May 04, 2007
Posted to Indiana Transfer Lists

Environment - IDEM revokes approvals for confined feeding operation in Huntington County

Rebecca S. Green of the Fort Wayne Journal Gazette writes today:

Officials at the Indiana Department of Environmental Management have revoked the permit for a rural Huntington County dairy accused of fouling local waterways.

The 1,400-cow DeGroot Dairy, 8278 W. County Road 200 South near Andrews, is also currently the subject of a court case in which the state is seeking an injunction prohibiting the dairy owner, Johannes DeGroot, from spreading manure from the cows on nearby fields.

On April 9 and 11, IDEM officials responded to reports of manure contamination from the dairy in a tributary of the Salamonie Reservoir. Field tests revealed elevated levels of ammonia nitrogen and E. coli bacteria.

In its letter mailed to DeGroot on Tuesday, IDEM outlines 13 permit violations by the dairy, dating to September 2005 and continuing until the April 11 spill, and IDEM Commissioner Thomas Easterly revoked the approvals for the confined feeding operation.

The violations include constructing a new silage pad and dry cow barn without a permit, not managing an Oct. 11 manure spill and an unpermitted discharge on April 9 and 11, according to the documents.

DeGroot has 15 days to appeal the decision to the Office of Environmental Adjudication, according to Amy Hartsock, IDEM spokeswoman.

Peter Racher, DeGroot’s attorney, said he anticipates DeGroot will file a petition for review by the Office of Environmental Adjudication.

But neither he nor Hartsock knows what this means for the 1,400 cows munching on feed within the dairy’s barns.

Racher said there is still a question as to how the dairy could be decommissioned in a way that is not harmful to the animals or the environment.

And he said he needs to research whether any agency can allow a significant investment into a private business and then have that agency say it has rescinded the business’ right to exist based on a permit violation.

The permit revocation is also a separate action from the pending court case, both sides said.

On Wednesday, Huntington Circuit Judge Thomas Hakes heard arguments about the April contamination, with the state arguing the manure in the water was the latest in a long line of violations at the dairy and DeGroot’s attorneys arguing the contamination in the water had not been linked to DeGroot’s herd.

See a list of ILB entries mentioning "Huntington dairy" here.

Posted by Marcia Oddi on Friday, May 04, 2007
Posted to Environment

Ind. Decisions - Supreme Court orders the Warrick County court reporter to finish typing the transcript of the David Camm murder retrial

Ben Zion Hershberg of the Louisville Courier Journal reports today:

he Indiana Supreme Court has ordered the Warrick County court reporter to finish typing the transcript of the David Camm murder retrial by June 1 or face possible contempt-of-court charges.

The stern warning by the court, issued Wednesday, followed court reporter Mary C. Kennedy's request for a delay until Aug. 1 to finish the transcript of the eight-week trial, which was held early last year in Warrick County Superior Court.

It was Kennedy's second request for an extension, and the Supreme Court had ordered her to complete the transcript by May 1 after her first request for more time in late January.

Katharine Liell, one of Camm's lawyers, said her client "is frustrated with the delay." It's likely that if the Supreme Court orders a third trial for her client, it couldn't begin until next year, she said.

Liell asked the Supreme Court to order a partial transcript to be provided so work can proceed on the appeal, and the Supreme Court ordered Kennedy on Wednesday to send Camm's lawyers what has been typed so far. * * *

Camm's lawyers filed a notice of intent to appeal in November, following Camm's unsuccessful request for Warrick Superior Court Judge Robert Aylsworth to reconsider the verdict. Typing the transcript began soon after the filing.

Kennedy wasn't available for comment yesterday on how long the transcript might be and when she thinks it can be completed. But a court clerk said four people are working on the transcript.

The transcript of Camm's first trial, a nine-week proceeding in Floyd County Superior Court at which he was found guilty in March 2002, included more than 7,200 pages of testimony and arguments. A new trial was ordered on appeal.

The transcript of the nearly three-week murder trial of Charles Boney, Camm's co-defendant who was tried in Floyd County Circuit Court early last year, was about 3,500 pages.

The ILB had an entry April 22nd titled "Law - More on unfinished or lost transcripts, and court transcripts in general."

Posted by Marcia Oddi on Friday, May 04, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Still more on the Mullins v. Parkview decision

The Indiana Supreme Court decision May 2nd in Ruth Mullins and Johnce Mullins, Jr. v. Parkview Hospital, Inc., et al. is reported today by the Fort Wayne Journal Gazette via a story by Niki Kelly. Kelly (as always) does a good job of laying out the facts:

A student in the University of Saint Francis emergency medical technician program cannot be sued for her participation in a botched procedure at Parkview Hospital, the Indiana Supreme Court ruled Wednesday.

But the case can go forward against two doctors involved and their individual practices.

W. Ruth Mullins sued after LaRea VanHoey tore Mullins’ esophagus during a 2000 surgery.

VanHoey tried to intubate Mullins – a common medical procedure where a tube is inserted into a patient’s throat to ensure that airways remain open during surgery.

But the damage required a second surgery, and Mullins had to spend more than a month in the hospital recovering.

Several weeks before the procedure, her surgeon, Dr. Marvin E. Eastlund, provided her with an informed consent document on which she indicated she did not want health care students in the operating room.

Mullins also signed a document from anesthesiologist Dr. Kathryn Carboneau that said only Carboneau or “a physician privileged to practice” anesthesia care would perform specified duties.

The judge at the trial court level granted summary judgment for all the defendants in the case, essentially ending the suit without a trial. But the Indiana Court of Appeals ruled in 2005 the case could go forward against the student, doctors and their employers.

Wednesday’s Supreme Court decision granted summary judgment to the student, saying there was no evidence that the student intended to harm Mullins – a requirement to prove battery.

“When Dr. Carboneau granted VanHoey permission to attempt intubation, VanHoey had no reason to suspect that Ruth had insisted on modifying the standard consent form,” the ruling said. “We hold that, given VanHoey’s status, she was under no obligation to obtain consent herself.

“The fact that VanHoey did not personally secure Ruth’s consent to her performing the intubation cannot be faulted.”

The story concludes:
Fort Wayne attorney Sherrill Colvin, who represents Mullins, said he is satisfied with the court’s ruling and is ready to move forward with the case, including a possible trial.

“What the Supreme Court and Court of Appeals has done is narrow the appropriate defendants,” he said.

Eastlund, Carboneau and their private practices still must defend the suit. The state cap on medical malpractice cases is $1.25 million.

Working in the doctor’s favor is a unanimous finding by a state Medical Review Panel that Eastlund and Carboneau did not fail to meet the required standard of care.

See a list of earlier ILB entries on this case here.

Posted by Marcia Oddi on Friday, May 04, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "High school senior Mackenzie Riggs now knows firsthand the panic of having a witness not show up for trial"

Kate Braser of the Evansville Courier & Press writes today about mock trials Thursday at the Vanderburgh County Courthouse. Some quotes:

The decades-old tradition takes place every year in recognition of Law Week, meant to honor and recognize the impact of the American judicial system.

Students played the roles of jurors, plaintiffs, defendants, defense attorneys and plaintiff attorneys in the case of Kelsey Swanson v. St. Jude High School.

The facts of the case involved a hazing incident that resulted in Swanson's injury. Adding to Riggs' nerves going into the mock trial, a key witness called in sick hours before Riggs was scheduled to begin opening arguments before Superior Court Judge Wayne Trockman.

Posted by Marcia Oddi on Friday, May 04, 2007
Posted to Indiana Courts

Ind. Decisions - "Schools can ban part-time students"

John Tuohy of the Indianapolis Star writes today about the Court of Appeals ruling April 30th in the case of Indiana State Board of Education v. Brownsburg School Corp., Board of School Trustees. The ILB entry is here (5th case), but the significance didn't really hit me (there were 20 decisions that day from the C of A). Tuohy writes:

In a case that could have statewide impact, the Indiana Court of Appeals has ruled that Indiana public school districts can refuse to enroll students on a part-time basis.

The case involved Brownsburg schools, which had refused to accept two home-school students in three high school classes in the 2004-05 school year.

"There were a lot of parents who wanted to pick and choose how to use public schools who will now have to reconsider," said Steven D. Groth, an attorney for Brownsburg schools.

Appeals court Chief Judge John G. Baker wrote in the ruling issued this week that "home rule" statutes adopted in 1999 give Brownsburg "the authority to regulate and control the enrollment of students in its course offerings under its policy.''

Brownsburg parent Catherine Johnson wanted to enroll her sons in advanced calculus, choir and band classes at Brownsburg High School. Superintendent Kathleen Corbin refused, saying school policy required students to take at least six classes, with rare exceptions for disabled children.

The State Board of Education intervened and ordered Corbin to admit the part-time students, setting off a legal tussle.

The dispute centered on whether turning away part-time students violated equal access provisions in the Indiana Constitution and who had the authority -- the State Board of Education or the local school district -- to make those decisions.

The state education board said state law requires schools to let in every student who wants to attend, regardless of the circumstances. To deny anyone for any reason, could be deemed discriminatory, the state said.

The school district asserted that part-time enrollment would place an added teaching and security burden on the school. Besides, district officials said, it had the authority to make and enforce its own rules.

Posted by Marcia Oddi on Friday, May 04, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on the Vigo County Schools superintendent defamation decision; changes law on defamation

On May 3rd (yesterday) the ILB reported on the May 2nd Indiana Supreme Court decision in Paul Joseph "Jay" Kelley, III v. Daniel T. Tanoos (see ILB entry here). The Terre Haute Trib-Star has two stories on the decision. The first is an AP story - some quotes:

Vigo County School Superintendent Daniel Tanoos did not defame a man he believed had been an unidentified gunman who fired a shotgun at him, the Indiana Supreme Court has ruled.

In a decision dated Wednesday, the high court dismissed a defamation suit that Paul “Jay” Kelley filed after learning that Tanoos had made accusatory remarks about him to Kelley’s boss after police gave Tanoos questions to ask and had him wear a wire to record the conversation.

The case stems from an incident in January 2001 when someone fired a shotgun at Tanoos from outside his home, the ammunition grazing his head. Although police identified Kelley as a suspect because of his known animosity toward Tanoos, he was never charged. * * *

The trial court granted summary judgment for Tanoos, but the Court of Appeals reversed it.

The Indiana Supreme Court said Tanoos’ statements were privileged because there was substantial evidence that his principal interest in making them was to have his attempted killer apprehended. The court also said that police had an interest to encourage private individuals to assist law enforcement with investigations.

From a very good story by Trib-Star reporter Sue Loughlin:
A 4 1/2-year legal battle involving a defamation lawsuit against Dan Tanoos appears to be over.

On Wednesday, the Indiana Supreme Court unanimously ruled in favor of the superintendent of Vigo County schools and reversed a Court of Appeals decision in the suit filed by Jay Kelley in 2002.

With its 5-0 decision, the Supreme Court unanimously affirmed a Vigo County trial court’s granting of summary judgment in favor of Tanoos.

“The case is finally over, subject to a petition for rehearing, which will almost surely fail if it is filed,” particularly since the decision was unanimous, said Bryan Babb, of the Indianapolis law firm Bose, McKinney and Evans, which has represented Tanoos in the case. * * *

Wednesday’s Supreme Court decision changed the law in Indiana by recognizing something called “public interest privilege,” Babb said.

Previously, to encourage citizens to report criminal activity, the law recognized “conditional privilege” for those who made defamatory statements to law enforcement officials, Babb said.

Those statements could not be subject to a defamation lawsuit, as long as that privilege was not abused, Babb said.

The Supreme Court’s recent decision now extends the same conditional privilege to statements made to non-law enforcement personnel for purposes of preventing crime, Babb said.

Kelley’s attorney, John Price, had argued that Tanoos’ statements to Sinclair were not privileged because Sinclair is not a police officer.

The Supreme Court decision has statewide implications, Babb said. “It will now be easier for school and law enforcement officials to work together to deter and fight crime in the future” without fear of defamation lawsuits, he said. * * *

Price agreed that the state Supreme Court decision has changed the law in Indiana.

Before Wednesday’s ruling, “the Indiana Court of Appeals had reiterated what had been the prevailing law … You couldn’t defame someone to a private citizen and then say you were privileged to do so because you were working with police … That has now changed,” Price said.

Eleven local and state law enforcement and education organizations submitted legal briefs, called amicus briefs, in support of Tanoos in the case.

Babb said that without a doubt, the legal briefs had an impact in the state Supreme Court’s decision.

A brief filed by law enforcement argued that Indiana should recognize a privilege that protects communications made to private citizens in a good-faith effort to prevent crime or apprehend criminals.

Posted by Marcia Oddi on Friday, May 04, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Wabash Valley attorney appointed federal magistrate judge in Terre Haute

The Terre Haute Trib-Star reports:

Craig M. McKee, 49, of Terre Haute said he learned of his appointment through a phone call from Larry J. McKinney, chief judge of the U.S. District Court of the Southern District of Indiana.

McKee, who has practiced law in Terre Haute since 1985, will continue his private law practice. * * *

The magistrate position becomes available by the retirement of Magistrate Judge Jordan Lewis, effective July 1, 2007.

McKee’s magistrate duties will focus on the court’s pre-trial criminal proceedings in the Terre Haute division. The position oversees arraignments and initial appearances by criminal defendants facing charges through the U.S. Attorney’s office in U.S. District Court.


Posted by Marcia Oddi on Friday, May 04, 2007
Posted to Indiana Courts

Ind. Courts - David Leon Woods executed

Tom Coyne of the AP reports this morning:

MICHIGAN CITY, Ind. -- David Leon Woods was executed by lethal injection early Friday for killing a 77-year-old man during a 1984 burglary.

Woods, 42, was pronounced dead at 12:35 a.m. Central Daylight Time, officials at the Indiana State Prison said.

The U.S. Supreme Court rejected requests that Woods' execution be stayed Thursday, as did the 7th Circuit Court of Appeals. Indiana Gov. Mitch Daniels also denied clemency for Woods on Thursday. The state Parole Board had earlier unanimously recommended against granting clemency.

Woods' attorneys had tried to stop the execution on the grounds that Indiana's lethal injection protocol constitutes cruel and unusual punishment. He also disputed the state court's method of determining whether he was mentally retarded, which could have rendered him ineligible for the death penalty.

The Fort Wayne Journal Gazette has a longer story here by Angela Mapes.

Here is a list of ILB entries on Woods.

[More] Niki Kelly of the Fort Wayne Journal Gazette has a story today headlined "Executions set record pace under Daniels." It reads:

INDIANAPOLIS – David Leon Woods’ death would be the seventh execution since Mitch Daniels became governor in January 2005 – a historic pace after three years in office.

His term so far includes five executions in 2005 and one in 2006.

Former Gov. Frank O’Bannon – who died in 2003 – oversaw seven executions during his roughly seven years in office.

Former Govs. Evan Bayh and Robert Orr each supervised two executions each during their eight-year terms.

Joe Kernan did not go through an execution during his year in office, although he commuted two death sentences.

Daniels has also commuted one sentence – Arthur Baird II in 2005.

With the recent decision by a federal court to throw out Joseph Corcoran’s death sentence, Woods is the last northeast Indiana man on death row. Corcoran’s case is being appealed by the state, though.

It’s unclear who the next man who might be executed is, but Norman Timberlake had his 2007 date stayed by a federal judge pending a U.S. Supreme Court decision on executing the mentally ill. Michael Allen Lambert has also joined Timberlake’s suit and is near the end of his appeals.

Posted by Marcia Oddi on Friday, May 04, 2007
Posted to Indiana Courts

Thursday, May 03, 2007

Courts - Chickens come home to roost in the case of the $67 million pair of pants

Like the case of the lawsuit for damages from a steaming hot cup of coffee, you've probaby already heard about the lawsuit being brought against the drycleaners who lost a pair of pants - the plaintiff is asking $67,000,000.

If not, here is the story via ABC News. According to the report, the Plaintiff, Roy Pearson:

says in court papers that he has endured "mental suffering, inconvenience and discomfort." He says he was unable to wear that favorite suit on his first day of work. He's suing for 10 years of weekend car rentals so he can transport his dry cleaning to another store.

The lawsuit is based in large part on Pearson's seemingly pained admission that he was taken in by the oldest and most insidious marketing tool in the dry cleaning industry arsenal: "Satisfaction Guaranteed."

Pearson did not return numerous calls from ABC News for comment.

It's the kind of lawsuit that makes liability reform advocates' temples throb. "People in America are now scared of each other," legal expert Philip Howard told ABC News' Law & Justice Unit. "That's why teachers won't put an arm around a crying child, and doctors order unnecessary tests, and ministers won't meet with parishioners. It's a distrust of justice and it's changing our culture."

The civil trial, set for June, has the scope of a John Grisham courtroom thriller and the societal importance of a traffic ticket.

Pearson plans to call 63 witnesses.

Defending themselves against the suit -- for two years running -- are Korean immigrants Jin and Soo Chung and their son, who own Custom Cleaners and two other dry cleaning shops in the Fort Lincoln section of Washington, D.C. * * *

Fort Lincoln neighbors are enjoying what they consider the comedy of it all. "The whole city is aware of this lawsuit," said Bob King, who represents Fort Lincoln on the Advisory Neighborhood Commissions. "Everybody's laughing about it."

Everybody except the Chungs, who have spent thousands of dollars defending themselves against Pearson's lawsuit. "It's not humorous, not funny and nobody would have thought that something like this would have happened," Soo Chung told ABC News through an interpreter.

Her husband agreed. "It's affecting us first of all financially, because of all the lawyers' fees," Jin Chung said. "For two years, we've been paying lawyer fees. & We've gotten bad credit as well, and secondly, it's been difficult mentally and physically because of the level of stress."

Later, Soo Chung broke down in tears. "I would have never thought it would have dragged on this long," she told ABC News. "I don't want to live here anymore. It's been so difficult. I just want to go home, go back to Korea."

"I've been in the dry cleaning business for 14 years, but this has never ever happened before. If anything happened to our customers' clothing, we would always compensate them accordingly and fairly," Jin Chung said through a translator.

And what about the chickens coming home to roost? The plaintiff is a judge in Washington DC. The Washington Post had a column on this suit last Thursday by Metro Columnist Marc Fisher.

Today the Post has an editorial, labeled "Kick in the Pants." Some quotes:

IS THERE anything more absurd than someone pursuing a $65 million lawsuit over a lost pair of pants? Well, how about this same person being in a position to adjudicate the cases of other people? Or that there's a chance of his getting a new 10-year term as judge?

A panel of four D.C. officials is considering the reappointment of administrative law judge Roy L. Pearson Jr. in light of devastating publicity about a court case he brought. * * *

That Mr. Pearson was able to persist in such a case raises questions about D.C. consumer protection laws. * * *

Equally serious is whether Mr. Pearson should continue in his $100,512 job adjudicating alleged civil infractions of D.C. rules. The case raises serious questions about his judgment and temperament.

Moreover, this is not the first case involving Mr. Pearson that has raised such questions. The Virginia Court of Appeals, in a 2005 review of Mr. Pearson's divorce proceedings, upheld findings that he created "unnecessary litigation" in a relatively simple case and was responsible for "excessive driving up" of legal costs.

As the four-member judicial tenure commission considers another term for Mr. Pearson, it should think back to why the Office of Administrative Hearings was created in the first place: to increase public confidence in the system of administrative justice.

Posted by Marcia Oddi on Thursday, May 03, 2007
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Gary Lee Meredith, III v. Laura Meghan Meredith (NFP) - "Gary Lee Meredith, III (“Father”), appeals the trial court’s denial of his petition for custody modification and verified petition for contempt citation. We affirm."

NFP criminal opinions today (2):

Walter Baker v. State of Indiana (NFP)

Heather Hale v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 03, 2007
Posted to Ind. App.Ct. Decisions

Ind. Law - Tobias withdraws as IU Law speaker, replaced by Chief Justice Shepard

From a report just posted on the Indianapolis Star website:

Former U.S. State Department deputy Randall Tobias withdrew this morning as the commencement speaker for the Indiana University School of Law at Indianapolis.

Tobias on Friday resigned his post at the State Department after he was linked to an alleged prostitution ring in Washington, D.C. Tobias told ABC News he used the service for massages, but did not engage in sexual activities with the women.

Indiana Supreme Court Chief Justice Randall T. Shepard instead will speak to the graduating students on May 13, according to IUPUI spokesman Richard C. Schneider. * * *

Tobias is a former head of Eli Lilly and Co. Before he was appointed by Bush last year to a newly created job at the State Department to oversee most U.S. foreign assistance, Tobias served as Bush's first AIDS czar. In that post, he promoted abstinence and faithfulness to help prevent the global spread of AIDS.

A check of past ILB entries shows only one previous entry on Mr. Tobias, under the heading "Law - For Sartorial Style, D.C.'s Power Brokers Find Tailored Suits Befit Their Needs," dated Nov. 1, 2004. Access it here - the final paragraphs feature Mr. Tobias. The original Washington Post story is still available; the photo features Mr. Tobias, with this heading: "Simon Cundey of Henry Poole & Co. fits U.S. Ambassador Randall L. Tobias for a custom suit at the Jefferson Hotel."

Posted by Marcia Oddi on Thursday, May 03, 2007
Posted to Indiana Law

Ind. Decisions - Still more on Mullins v. Parkview

Yesterday the ILB posted a reader's reaction to the Supreme Court's ruling yesterday in the case of Mullins v. Parkview. Here are several other responses - all comments are from members of the Indiana legal community.


(1) I think the bottom line in this case is that the surgeon and/or the anesthesiologist will end up with a non-delegable duty to make sure that the intubation was properly performed. I think you are right that every patient contemplating surgery should pay attention to this case and should probably refuse any consent to have students operate on them. But in the Mullins case I think that the matter will ultimately and properly be resolved in favor of the patient based on the liability of others.


(2) Thank you for pointing out the issues with Mullins today. I must say I'm shocked, and think it nigh-on impossible for any battery claim against a doctor to ever survive summary judgment.

I found this article helpful and think it on point: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=920602


(3) I'm a long-time reader, first time e-mailer. Today you posted a reader's reaction to the Indiana Supreme Court's opinion in Mullins v. Parkview. I disagree with the reader's assessment. The reader focused too narrowly on a couple words and missed the preceding point that there was not "even a suggestion of intent to harm." That's an efficient way for the Court to say that the "substantial certainty" version of intent was inapplicable.

If the facts showed the student disregarded risks (such as by acting without direction or supervision-both negated by the Court's discussion of the facts), then the Court would have been obliged to discuss it. As the Court explained, the plaintiffs made no attempt to proceed down either path. The plaintiffs relied solely upon the patient's consent form.

A careful reading of the opinion will not cause confusion.

Thank you for the blog; it's become my lunchtime treat!


(4) [Followup from the same reader who wrote the initial comments yesterday]

I cannot stop thinking about this unanimous (unanimous!!!) Indiana Supreme Court decision today. It is wrong not only because it misstates the intent with which tort law is concerned, but also because it makes surgical consents in Indiana absolutely meaningless. In doin so, it ignores the fundamental definition of the tort of battery.

First, when the Supreme Court in this case describes tortious intent with the words "intent to harm" and "intent to cause a harmful contact," they are not just changing the law of the tort of battery in Indiana, they are changing the law as to all intentional torts. Assault, defamation, invasion of privacy, false imprisonment, intentional infliction of emotional distress, trespass, intentional interferences with economic relations. For centuries, the law of intentional torts has been, among other things, our protection against the prankster who causes real harm. "But it was just a joke. I didn't intend to do any harm," was not a defense. Nor was it a defense for the slanderer and libelist to respond with, "I didn't intend to harm you by publishing those lies about you." By the standard set by our state Supreme Court today, any attempt to protect your right of privacy by suing for damages with be successfully defended by just answering, "but I didn't intend to cause you any harm. I was just curious." Today, all of those legal protections that we have enjoyed for centuries are placed in jeopardy by the sloppy logic and language. It will take decades to set the law back on track if this case is allowed to stand.

The second, and perhaps even more serious aspect of this decision, is the failure of the court to address the basic definition of the tort of battery. Battery is an intentional touching without justification. It requires no intent to do harm. Battery does not require violence or injury. To kiss a woman who does not want to be kissed is a battery. (citations omitted) The gist of battery is the lack of consent to the touching. Justice Sullivan gives passing acknowledgment to the fact that "failure to obtain informed consent in the medical context may result in a battery."

So exactly what did the patient consent to in this case? The patient "received assurance from the attending anesthesiologist, Dr. Kathryn Carboneau, that she would personally be handling Ruth’s anesthesia. Dr. Carboneau’s consent form, which [Mrs. Mullins, the patient] signed, read in part: "I understand that my anesthesia care will be given to me by the undersigned or a physician privileged to practice anesthesia." (emphasis added) She did not consent to a person studying to be an EMT to put a tube down her throat. She had been promised that it would be Dr. Carboneau or some other physician privileged to practice anesthesia.

Where is the Court's respect for the rights of the patient? Once the patient is under anesthesia is she just a slab of meat on the table to be poked and prodded by whomever the Hospital and the doctors present allow? Did this patient have no right to expect that the instructions and consents that she had given, would be honored? Did she have no right to expect that the promises made to her by these doctors would be kept? Will the law not protect her from injury doen to her when she is completely helpless and vulnerable in that operating room? Well, according to our Supreme Court, apparently not. By consenting to have Dr. Carboneau perform the intubation had Mrs. Mullins consented to have just anyone do it? Of course not. My wife may consent to being kissed by me (on occasion), but that doesn't mean that she has consented to anyone else doing it.

It is no issue whatever that EMTs in training need to learn and practice the skills necessary for their career and service. What has been thrown overboard in this decision is Mrs. Mullin's right to decide for herself that those skills are not going to be learned on her. She has the right to choose her doctor. She has the right to choose her hospital. She has a right to choose what is going to be done to her in surgery and by whom. When the hospital "preceptor" entered the operating room and asked whether Mrs. Mullins "was a patient upon whom VanHoey might practice intubation," Dr. Carboneau owed a duty to professionally, ethically, and under her legal duties to say "no." She did not. Instead, she knowingly and intentionally allowed someone other than a "physician privileged to practice anesthesia" to stick a tube down Mrs. Mullins' throat, and do it badly. As to VonHoey's liability for battery, if you are going to stick a tube down someone's throat, isn't it reasonable to ask that person's permission before doing so? And if that person is unconscious, shouldn't you check the consent forms required by the hospital before surgery? Shouldn't the hospital "preceptor" have checked the consent forms? Should VanHoey, and the hospital, be able to escape liability by simply saying "the doctors gave us permission." It wasn't theirs to give.


[More] I should have thought to post this earlier. Here is the Sept. 27, 2006 ILB entry on the oral argument, incuding links to the Court of Appeals ruling and the audio of the argument, as well as excellent Niki Kelly coverage.

Posted by Marcia Oddi on Thursday, May 03, 2007
Posted to Ind. Sup.Ct. Decisions

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

The ILB last wrote on the Amy Sorrell situation on April 28th. Here are some press items since then:

"School paper tiff teaches sad lesson in basic civics" was the heading to an editorial yesterday in the Indianapolis Star, stating its position that "School officials escaped accountability in the Woodlan case." The editorial concludes:

We believe Sorrell when she says she was astonished to find an anti-discrimination commentary to be deemed problematic in 2007. Even though the school board formally condemned homosexuality in a 1995 resolution rebutting a call for tolerance from the National Education Association, we will agree with the board that homosexuality is not the issue here. The First Amendment is.

While student press freedom is not and cannot be absolute, court precedent holds that educators may not arbitrarily suppress school journalism and must show academic reason for intervening. Avoidance of trouble does not strike us as an academic criterion, much less a guide for budding opinion writers.

Far more seriously, the authoritarian posture taken by school officials remains in place and free of a court test as the "toxic" teacher is banished from Woodlan and, temporarily, from the company of young journalists. The best hope now is that the case remains isolated and doesn't cast too long a shadow over the First Amendment.

That 1995 anti-gay resolution passed by the school board is the subject of a story today by Krista J. Stockman in the Fort Wayne Journal Gazette. Some quotes:
East Allen County Schools officials say a resolution passed 12 years ago by the school board denouncing homosexuality reflected the feelings of the board at that time and doesn’t need to be rescinded or otherwise altered.

EACS officials have been under fire and accused of being homophobic in recent months since the controversy sparked by a student opinion column suggesting tolerance for homosexuals. * * *

In announcing the settlement, EACS officials said they had received many e-mails and phone calls from people accusing them of being intolerant.

Superintendent Kay Novotny said the district is tolerant and officials didn’t deserve to be falsely accused otherwise.

But that doesn’t mean the district should make amends for a resolution passed on Dec. 19, 1995, supporting family values and denouncing anything that undermines the family structure, including gay and lesbian behavior, Novotny and school board members said.

“It’s not a policy,” school board President Stephen Terry said. “It predates this board.”

At the time, the statement was adopted, the National Education Association had recently adopted a resolution calling for tolerance of gays and lesbians among staff, students and parents as well as the concept of a gay and lesbian history month.

The resolution reflects what the board believed in 1995, Terry said.

None of the members of the board today was on the board in 1995, and there is no reason to return to the resolution or change it because it is in the past, he said.

“The mind-set and mentality of digging up the past, I believe, is what kills people,” Terry said.

A side-bar sets out the resolution:
Resolution from Dec. 19, 1995

We resolve as the Board of School Trustees of East Allen County Schools to strongly support and value those things which contribute to and improve the stability of families. Likewise, we denounce anything which undermines such family structure and encourage others both inside and outside of our school system to join us in these efforts. This is a denunciation of activities such as drug use, premarital sex, violence or gay and lesbian behavior or the support of such activities.

The Bluffton News-Banner had an opinion piece by Mark Miller on April 30th that included these quotes:
Friday’s news that Amy Sorrell, the Woodlan High School journalism teacher, had struck a deal to keep her teaching contract in place, was greeted with mixed emotions in these parts.

That would be our conclusion based on responses received after we printed the student editorial in our recent Saturday space that caused Mrs. Sorrell to be placed on paid leave and in danger of losing her job. She was quoted by The Associated Press that her family could not afford to fight her suspension and accepted the offer to continue teaching at another high school in the East Allen corporation.

The editorial was written by Megan Chase after a friend had confided in her that they were homosexual. Chase made a case for tolerance of people who are different. Sorrell had not cleared the editorial with the school principal, something she had done with other articles in the same edition that she felt might be controversial.

“Thank you for publishing the article that has created such a stir in Allen County,” one reader wrote us. “our world would be a better place if there were more people with the insight and character of Megan Chase. Unfortunately, apparently the adults have not the compassion or the capacity to see beyond their own prejudices.”

“The student and teacher show more open mindness and maturity than the principal who has his head in the sand,” another wrote.

“I have to admire Megan’s stand on an issue where admittedly, I have not been so tolerant at times,” wrote another reader. “She displays wisdom beyond her years which we should all try to emulate.”

And yet another: “There is absolutely nothing inappropriate about the student opinion column. It is timely and powerful. Truthfully, the column speaks to a universally accepted standard in our society - live the Golden Rule. Megan’s parents should be proud!”

There were others, but not a single negative word pertaining to the column itself or the teacher’s decision to publish it. “If I were the teacher, it wouldn’t have occurred to me to seek approval,” wrote one.

We had phrased the question as to whether this was appropriate for a student newspaper in rural Indiana. The thought here was that such a column in a Boston or New York City high school newspaper wouldn’t have raised an eyebrow, but that we people in the Heartland might be a bit more conservative or, might we say, less inclusive.

Editor & Publisher reported on the outcome of the dispute yesterday.

Posted by Marcia Oddi on Thursday, May 03, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Don't bother us by arguing over what some federal district judge may have said in another case, Seventh Circuit tells lawyers"

That is what a panel headed by Chief Judge Frank H. Easterbrook may have implied in an opinion yesterday on an Illinois dispute that concluded:

[D]ecisions of district judges have no authoritative effect. District judges' opinions often contain persuasive observations, but these can be incorporated into the parties' briefs. It is never helpful to have an [sic] lengthy exchange on what a particular district court's opinion "really means" and whether that case was correctly decided. The parties should learn what the opinion has to teach and weave its wisdom into their own presentations.
Thanks to Howard Bashman of How Appealing for his entry about this ruling - read his comments here.

Posted by Marcia Oddi on Thursday, May 03, 2007
Posted to Ind. (7th Cir.) Decisions

Law - "Indiana changed its law last year giving relatives of murder victims the right to watch executions"

Tom Coyne of the AP has a story today reporting that:

Barring court intervention, [Gene] Placencia and four of his 12 siblings will be at the Indiana State Prison in Michigan City early Friday for the execution of David Leon Woods, who was convicted of fatally stabbing Juan Placencia in April 1984. They will be the first to view an execution since Indiana changed its law last year giving relatives of murder victims the right to watch executions.

Sen. Tom Wyss, R-Fort Wayne, said he proposed the change after meeting with the prison warden and discovering victims' families had to get permission from the person being put to death if they wanted to watch the execution.

"The person being executed already has caused these people harm. Obviously, they've lost a loved one in some way, and they have to ask his permission if they feel they want to watch?" Wyss said. "It just seemed like the state was giving them another slam."

Posted by Marcia Oddi on Thursday, May 03, 2007
Posted to Indiana Law

Law - "Police need to be able to chase fleeing suspects, but care and common sense are needed"

Some quotes from an editorial by Leo Morris in the Fort Wayne News-Sentinel:

The U.S. Supreme Court, in an 8-1 decision, has given police a far greater sense of empowerment when it comes to high-speed chases of fleeing suspects. But just because something can be done doesn’t mean it always should be done. Chases can be accidents waiting to happen, and great care needs to be taken by police not to hurt or kill themselves, the suspects or innocent bystanders. Happily for us, police in this corner of the state understand that and have policies in place to govern chases. * * *

The ruling adds to a 1998 decision, in which the court ruled unanimously that pursuing officers are liable only if their actions “shock the conscience.” In a ruling that applied to suspects and innocent bystanders alike, Justice David Souter wrote that “high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability” under the Constitution or federal civil rights law.

But plenty of innocent civilians do get harmed, and whether police are held “liable” or not, their interests have to be protected. (The standard of liability is a little less in favor of police in Indiana. The Indiana Supreme Court ruled that bystanders wanting to sue police for damages have to show only negligence on the part of police.) * * *

So each chase must be judged on its own merits, the benefits of catching a particular suspect weighed against the danger to police and the public. The same decision might not be made for a panicky teen running a red light as for a known felon or a stolen car. And the officer making the chase – engaged in split-second decisions in the heat of the moment – might not always be the best person to make the call.

Police agencies are starting to see it that way, too. Fort Wayne’s chase policy, for example, covers everything from speed to weather to what the fleeing suspect might have done and what kind of areas the chase goes through. The pursuing officer is linked to a supervisor during the pursuit, and either the officer or the supervisor can call off the chase at any time. County and state police also have formal policies.

Police have to be able to pursue fleeing suspects; otherwise they aren’t doing their jobs, and public safety will not be served. But they are obligated to do it with care and use common sense, lest they needlessly endanger those they are sworn to protect.

That 2001 FBI bulletin said a chase policy “should include, at minimum, statements that officers will not continue pursuit once the risk of danger to the officer and public created by the pursuit exceeds the potential danger to the public should the suspect remain at large.”

It might not always be easy to make such a judgment, but it’s the standard to shoot for.

For background, see this May 1 entry from the ILB.

Posted by Marcia Oddi on Thursday, May 03, 2007
Posted to General Law Related

Ind. Decisions - "Indiana Supreme Court upholds sentence in truck fire case"

The AP has this report today on yesterday's Indiana Supreme Court decision in the case of Tommy McElroy v. State of Indiana (see ILB entry here). Some quotes:

The Indiana Supreme Court upheld the eight-year sentence of a man convicted of setting a fire in a moving paint truck, trapping himself and a dozen other workers, fatally burning two of the men.

The 5-0 Supreme Court decision on Wednesday overturned an Indiana Court of Appeals order that said a Marion Superior Court judge had relied on improper factors in determining a sentence for 30-year-old Tommy C. McElroy.

McElroy pleaded guilty to two counts of reckless homicide and one count of criminal recklessness in the 2003 fire, which claimed the lives of Otis Turner, 46, of Indianapolis, and John "Jay" Webster III, 30, of Greenwood.

Judge Tanya Walton Pratt sentenced McElroy to eight years in prison, the maximum possible under the plea deal, citing the effects of the incident on victims and their families.

The appeals court rejected Pratt's ruling in December 2005, saying she had inappropriately boosted the sentence based on those factors.

But Supreme Court Justice Robert D. Rucker wrote in Wednesday's opinion that Pratt considered the effects as part of the "horrific" and "heinous" nature of the crime, not separately.

Posted by Marcia Oddi on Thursday, May 03, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Tippecanoe judge rules homeless man must register as sex offender

Joe Gerrety reports in the Lafayette Journal & Courier today:

A Tippecanoe County judge has rejected a convicted child molester's claim that he should not be required to register as a sex offender.

Judge Don Daniel of Tippecanoe Circuit Court has issued an order finding Jesse S. McCown, 48, who is homeless, guilty of two Class D felony counts of failure to register as a convicted sex offender and one misdemeanor count of failure to possess identification.

McCown's attorney, deputy public defender Robert Kentner, argued during a bench trial Tuesday that McCown should not be subject to the registry requirement for two reasons:

- He was released from prison for his sex offense more than 10 years ago.

- He is homeless and therefore cannot report an address.

Kentner, who could not be reached for comment late Wednesday, said on Tuesday that any adverse ruling by Daniel would be appealed to the Indiana Court of Appeals. The appellate court has yet to rule on the issues raised in McCown's defense, according to Kentner. * * *

In addition to the homelessness argument, Kentner argued McCown should no longer be required to register because he was released from incarceration for his child molesting offense in April 1991. The 10-year registry requirement expired in April 2001, Kentner argued.

But according to the Indiana Department of Correction, if a sex offender subject to the registry law is incarcerated again for any crime before the 10-year registry requirement expires, the 10-year period begins anew when he is released from incarceration, regardless of whether the more recent offense was a sex crime.

McCown has been in and out of jail and prison several times since his 1987 conviction for child molesting, none of which involved sex crimes.

Posted by Marcia Oddi on Thursday, May 03, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Yet another ruling from the Supreme Court yesterday

This opinion may have been posted sometime in the late afternoon or early evening yesterday.

In Paul Joseph "Jay" Kelley, III v. Daniel T. Tanoos, a 13-page, 5-0 opinion, Justice Sullivan writes:

Daniel Tanoos believed that Paul Kelley had been the unidentified gunman who had fired a shotgun at him, though Kelley was never charged. While the police were investigating the incident, and with their knowledge and cooperation, Tanoos made accusatory statements about Kelley in a private conversation with the head of the school where Kelley worked. When Kelley learned of the statements, he sued Tanoos for defamation. We hold that Tanoos is protected from liability for defamation in these circumstances because the statements were made to assist law enforcement investigate criminal activity. * * *

[W]e conclude that Tanoos’s statements to Sinclair are not protected by a common interest privilege as a matter of law. We believe that to hold otherwise would bring within the common interest privilege in future cases communications not entitled to protection given the purpose of the privilege. * * *

We agree with the amici and the Restatement and think the public interest privilege, under a limited number of circumstances, protects communications to private citizens. Statements reporting criminal activity to law enforcement, as stated supra, are privileged to enhance public safety by facilitating the investigation of suspected criminal activity. We think certain statements to private citizens may further the same end. * * *

Just as statements to law enforcement further a public interest, similar statements made to a private citizen may further the same interest. That interest is grounded in a public policy intended to encourage private citizens and victims not only to report crime, but also to assist law enforcement with investigating and apprehending individuals who engage in criminal activity.

Here is the report today in the Indianapolis Star:
The Indiana Supreme Court on Wednesday ruled in favor of the Vigo County Schools superintendent, throwing out a defamation lawsuit brought in connection with a shooting at his home.

Superintendent Daniel T. Tanoos was grazed on the head by a bullet fired by someone outside his house in 2001. He believed Paul Joseph "Jay" Kelley III, an employee at a private school, was the culprit.

Tanoos told Kelley's supervisor of his suspicion after consulting with police investigators, who urged him to try to obtain information about Kelley. Kelley, who has never been charged, sued Tanoos for defamation.

The Supreme Court upheld a ruling by a Vigo County judge. It reversed a ruling by the Indiana Court of Appeals, which had ruled there was enough evidence to warrant a trial. In its 5-0 opinion, the Supreme Court said Tanoos' statements were covered under "public interest privilege" because he was working with police.

[More] A reader writes:
Maybe there is no such thing as an intentional tort in Indiana after yesterday's rulings. Now a "public interest privilege" extends to publication of accusatory statements made other than to the police. And this one was also unanimous.

Posted by Marcia Oddi on Thursday, May 03, 2007
Posted to Ind. Sup.Ct. Decisions

Wednesday, May 02, 2007

Ind. Decisions - More on Mullins v. Parkview

The ILB has heard from several readers on today's Supreme Court decision in Ruth Mullins and Johnce Mullins, Jr. v. Parkview Hospital, Inc., et al.

One reader writes
:

Incredible! [and then quotes from the opinion, with emphasis]
. . . These factors do not combine to create even a suggestion of intent to harm on VanHoey’s part. Rather, they depict a student following a curriculum and the instructions of her superiors. Because there is no genuine issue of material fact as to VanHoey’s intent to cause a harmful contact with Ruth, VanHoey was entitled to summary judgment on the Mullinses’ battery claim.
In one stroke, they have changed the definition of intent in tort cases to one that requires a malicious intent (an intent to do harm). And they did it unanimously!

This is language that will create confusion for years to come!

The reader also sent this section from the Restatement of Torts, 2d, § 8A Intent:
The word "intent" is used throughout the Restatement of this Subject to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.

COMMENTS & ILLUSTRATIONS: Comment:

a. "Intent," as it is used throughout the Restatement of Torts, has reference to the consequences of an act rather than the act itself. When an actor fires a gun in the midst of the Mojave Desert, he intends to pull the trigger; but when the bullet hits a person who is present in the desert without the actor's knowledge, he does not intend that result. "Intent" is limited, wherever it is used, to the consequences of the act.

b. All consequences which the actor desires to bring about are intended, as the word is used in this Restatement. Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. As the probability that the consequences will follow decreases, and becomes less than substantial certainty, the actor's conduct loses the character of intent, and becomes mere recklessness, as defined in § 500. As the probability decreases further, and amounts only to a risk that the result will follow, it becomes ordinary negligence, as defined in § 282. All three have their important place in the law of torts, but the liability attached to them will differ. [emphasis added]

The reader concludes:
"Intent" in tort law does not mean the same thing as intent to do harm (malice) does in criminal law. Well, at least it didn't until today.

Posted by Marcia Oddi on Wednesday, May 02, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Potential appeal of Indiana voter ID case to Supreme Court anticipated

Judge Sara Evans Barker upheld the Indiana voter ID law a year ago -- see this April 15, 2006 ILB entry. Here are some quotes from the Indianapolis Star story at the time:

On Friday, U.S. District Judge Sarah Evans Barker upheld Indiana's stringent voter-identification law. Barker said plaintiffs, including the Indiana Democratic Party, failed to back up their contention that the ID law is unduly burdensome and would keep many people from casting ballots.

Barker wrote in her 126-page opinion that the opponents' arguments would require "the invalidation" not only of the photo ID statute, "but of significant portions of Indiana's election code which have previously passed Constitutional muster."

A number of states require photo identification for voters, but Indiana's law is considered among the most stringent because it offers few exceptions to the requirement.

The Democratic Party and the American Civil Liberties Union of Indiana, a co-plaintiff, had argued that the law -- passed by the Republican-led legislature in 2005 to prevent voter fraud -- would particularly affect the elderly, minorities and people with disabilities.

They would bear the cost of obtaining the documentation needed to get state-issued ID cards, plaintiffs said, arguing that having to spend money to vote was the modern-day equivalent of the "poll tax" -- the Jim Crow-era method of keeping black people from voting.

But Barker wrote: "Despite apocalyptic assertions of wholesale voter disenfranchisement, plaintiffs have produced not a single piece of evidence of any identifiable registered voter who would be prevented from voting" because of the statute.

The judge had particular scorn for a report prepared by an expert hired by the Democrats that said 989,000 registered voters in Indiana do not possess a BMV-issued driver's license or photo ID.

Barker said she did not consider the report in her determination because she viewed the analysis and conclusions as "utterly incredible and unreliable." Among the report's numerous flaws, she said, was that it failed to account for Indiana's bloated voter rolls, called by a defense expert the most inflated in the nation.

So, according to the opinion, the law was passed to prevent voter fraud in Indiana. And the ID requirement would not result in voter disenfranchisement.

The decision was appealed to the 7th Circuit. The ruling upholding the law came out Jan. 4, 2007 - see ILB entry here. Judge Posner wrote: "It is beyond question ‘that States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election - and campaign-related disorder.’ ” Judge Evans' dissent began: "Let’s not beat around the bush: The Indiana voter photo ID law is a not-toothinly- veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic. We should * * * strike it down as an undue burden on the fundamental right to vote."

I'm told the decision on whether to appeal will be made in the next few days. In the meantime, a lot has happened -- for one, the papers have been full of stories about pressure being put on U.S. attorneys nation-wide to dig out and prosecute examples of voter fraud. See this ILB entry from April 12, 2007 for background.

All this is a preamble to this post today by Professor Rick Hasen of the Election Law blog, which concludes:

Upon closer examination, I'm shocked that the district court granted summary judgment on this "evidence" of voter fraud, and that it passed muster before Judge Posner, someone usually interested in what the empirical evidence actually shows.

We'll see if this case goes up to the Supreme Court.

Posted by Marcia Oddi on Wednesday, May 02, 2007
Posted to Indiana Decisions

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

For publication opinions today (1):

In Inland Steel Company v. Ronald Pavlinac, Sr. , a 23-page opinion, Judge Sullivan writes:

Inland Steel Company (“Inland”), appeals following a decision by the Worker’s Compensation Board of Indiana (“the Board”) in favor of Appellee-Claimant, Ronald Pavlinac, Sr. Upon appeal, Inland presents three issues for our review: I. Whether the Board erred by disregarding the stipulation of issues submitted by the parties. II. Whether the Board erred in concluding that Pavlinac’s Application for Adjustment of Claim was timely filed. III. Whether the Board’s findings are sufficient to support its conclusion that Pavlinac is permanently and totally disabled. Pavlinac cross-appeals, requesting damages and appellate attorney fees upon the basis that Inland’s appeal is frivolous and was brought in bad faith. We affirm. * * *

In the present case, Inland presented issues which sought to have this court go against our standard of review or ultimately proved to be disingenuous or trivial. We further note the extended period of time that Pavlinac has been prevented from obtaining worker’s compensation benefits. Therefore, under the facts of this case, we find it appropriate to increase Pavlinac’s award by ten percent. * * *

In his brief and by separate motion, Pavlinac also requests an award of damages, including an award of attorney fees, pursuant to Indiana Appellate Rule 66.6 Appellate Rule 66 provides that a court “may assess damages if an appeal . . . is frivolous or in bad faith. Damages shall be in the Court’s discretion and may include attorneys’ fees.” * * *

Although many of Inland’s arguments were disingenuous or trivial in nature thereby supporting our order to increase the Board’s award by ten percent, there is no allegation that Inland deliberately presented such issues so as to delay Pavlinac’s receipt of worker’s compensation benefits. Nor does it appear to us that Inland’s brief upon appeal was written in a manner calculated to require the maximum expenditure of time by both Pavlinac and this court. In short, while we have found it appropriate to order the Board’s award to be increased by ten percent, we do not think Inland’s actions upon appeal were so egregious or deliberate so as to warrant an additional award of damages, including attorney fees, pursuant to Appellate Rule 66.

The award of the Worker’s Compensation Board is affirmed, and it is ordered that the Board’s award be increased by ten percent.

NFP civil opinions today (3):

Kerry T. Smith v. Dearborn County Hospital and Carol M. Lovins, M.D. (NFP) - Re "II. Whether the trial court erred in failing to remove Juror Number 2," the opinion concludes: "To qualify as fundamental error, an error must be so prejudicial to the rights of a party as to make a fair trial impossible. Here, at the time she was questioned, Juror Number 2 told the trial court that she had not yet made up her mind about the verdict. She also agreed not to make any more faces and not to make a decision about the case until she had heard all of the evidence. There is nothing in the transcript that suggests the Estate had any further complaints about the juror. Under these circumstances, we find no fundamental error."

RXSD Enterprises, Inc. v. Gasoline Equipment Service Company (NFP) - "RXSD Enterprises, Inc. (“RXSD”) appeals the trial court’s judgment awarding damages to Gasoline Equipment Service Company (“GESC”). RXSD raises a several issues on appeal of which the following is dispositive: was the general judgment awarding damages to GESC clearly erroneous. We reverse."

In re the Marriage of Johnny W. Ulmer and Christel J. Gezels (NFP) - "Appellant Johnny W. Ulmer (“Ulmer”) appeals a post-dissolution award of attorney’s fees in favor of his ex-wife Christel J. Gezels (“Gezels”). We affirm an award of attorney’s fees to Gezels but revise the amount to $10,520.80."

NFP criminal opinions today (3):

William C. Davis v. State of Indiana (NFP)

Marcus T. Govan v. State of Indiana (NFP)

Michael Baldwin v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 02, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Another ruling from the Supreme Court today

The case is W. Ruth Mullins and Johnce Mullins, Jr. v. Parkview Hospital, Inc., et al. It is a 7-page, 5-0 opinion, written by Justice Sullivan. Some quotes:

With appropriate permission and supervision, an emergency medical technician student performed a procedure on a patient at the outset of surgery. The procedure was not performed correctly and the patient sued the student for battery. We hold that the trial court properly granted the student summary judgment because there was no evidence that the student intended the harmful contact with the patient, a requirement of the tort of battery. * * *

For the reasons discussed supra, we affirm the trial court’s grant of summary judgment to VanHoey. In all other respects, we summarily affirm the opinion of the Court of Appeals.

If you are planning to have surgery, I would suggest you read this decision.

Posted by Marcia Oddi on Wednesday, May 02, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Hendricks County courts moving?"

So asks the headline to this story this afternoon by John Tuohy of the Indianapolis Star. Some quotes:

Hendricks County officials are considering moving county courts to the old fairgrounds site on Danville's eastside.

The historic county courthouse on Danville's town square has become crowded, officials say, especially with the addition this year of two new courts. County Commissioner David Whicker said it is was too early to say for sure what all the county's options are.

"The logical place to put a courthouse would be at the old fairgrounds," Whicker said. "That possibility is already included in the fairground's site plan, but anything beyond that is speculation."

One option is for the town of Danville to find more office space for the county near the square. A move to the old fairgrounds on East Main Street would centralize criminal justice operations because the jail already is there, and a work release center will be built there this summer.

Danville town officials are taking the county's plans into consideration as it forms a long-term plan for redeveloping its downtown.

"What happens to downtown business when all those court workers and lawyers leave?" said Town Council President Myron Anderson. "We have to make a decision of what we do if the courthouse goes to the fairgrounds."

The Hendricks County Courthouse, located at One Courthouse Square, Danville, IN 46122, is featured here on the Indiana Courts website, including a virual tour of the building.

Posted by Marcia Oddi on Wednesday, May 02, 2007
Posted to Indiana Courts

Ind. Courts - Interview Schedule for the 2nd District Court of Appeals Vacancy

Here is the interview schedule for the remaining contenders for Judge Sullivan's seat. The interveiws are open to the public and will take place Friday, May 11 in Room 319 of the Statehouse.

9:00 a.m. – 9:30 a.m. – Hon. Cynthia J. Ayers
9:30 a.m. – 10:00 a.m. – Hon. Cale J. Bradford
10:00 a.m. – 10:30 a.m. – Mr. Randall C. Head

(Break)

10:45a.m. – 11:15a.m. – Hon. Robyn L. Moberly
11:15 a.m. – 11:45 a.m. – Hon. William J. Hughes
11:45 a.m. – 12:15 p.m. – Hon. Kenneth H. Johnson

(Break – Lunch)

1:15 p.m. – Deliberations in Executive Session followed by public session and vote to name three nominees for vacancy.

The names of the three nominees of the Judicial Nominating Commission are then submitted to the Governor.

Posted by Marcia Oddi on Wednesday, May 02, 2007
Posted to Indiana Courts

Ind. Law - Debriefing on why confined feeding changes failed

In this ILB entry from April 29th, we quoted from a story by Angela Mapes of the Fort Wayne Journal Gazette that SB 431 looked to be in trouble because of a dispute about inclusion of a prohibition against new confined operations locating within 1 mile of a city or school.

Yesterday Pam Tharp of the Richmond Palladium-Item reported:

Attempts to impose more regulations for confined animal feeding operations died when the Indiana General Assembly adjourned Sunday, with setbacks for the location of the mega livestock farms the primary sticking point.

Rep. Phil Pflum, D-Milton, and Rep. Tom Saunders, R-Lewisville, who authored the original House bill with setbacks, refused to compromise on that issue and couldn't convince the other House-Senate conferees setbacks were needed.

Their bill originally asked for a two-mile setback, which they reduced to a one-mile setback for CAFOs from towns, schools and child care centers.

Both representatives said citizens supporting the legislation were firm on the issue.

"We represent the epicenter of the CAFO issue," said Saunders, whose district includes Randolph County, which led the state last year in the number of new CAFO permits. "We told them we can get everything but the setbacks and they said they wanted the setbacks. We stood on principle."

Pflum said the bill, which also called for training on applying livestock waste on farmland and more frequent inspection of the regulated farms, would have otherwise have passed.

"We had commited citizens that we couldn't let down. We're awfully disappointed," Pflum said. "We want the pork industry to grow, but responsibly. It's all about location. They do devalue property near them. There are studies from Iowa to show that."

Lawmakers offered to adopt the one-mile setback for only two years, to give local zoning and planning boards time to adapt to the explosion of large livestock farms. That compromise also was rejected, Saunders said.

The Indiana Farm Bureau also expressed regret that the legislation was lost, but defended defeating the setbacks because it said those should be local decisions. * * *

Some of the bill's provisions will occur administratively without legislation, Pflum said. The new biennial budget includes money for more inspections of the farms by the Indiana Department of Environmental Management, Saunders said.

A key provision of the bill would have directed the Office of the State Chemist to oversee a training and certification program for applying manure on farmland.

Indiana livestock producer organizations have pledged to support such a program, as well as a voluntary certified livestock producer program.

Today Rick Callahan of the AP reports:
A state senator who sponsored a bill targeting Indiana's big livestock farms blames the Indiana House for dooming the legislation in the session's waning hours by refusing to compromise on some of its provisions.

State Sen. Beverly Gard, R-Greenfield, said the bill died in the General Assembly's session that ended Sunday in part because state Rep. Phil Pflum, D-Milton, refused to drop a provision calling for a one-mile setback between the largest of the farms and schools.

Gard said Rep. William Friend, R-Macy, also was steadfastly opposed to the bill's fee hike provisions for livestock farm permits - money that would have funded more inspections of the state's 2,200 farms where thousands of hogs, poultry or dairy or beef cattle are raised.

"The public's the big loser in this and the blame clearly falls on the House," Gard said Tuesday.

One provision of the bill would have required prospective operators of so-called confined feeding operations to declare whether they have been convicted of an environmental crime, faced administrative penalties or had a permit revoked.

Gard said that would have allowed the Indiana Department of Environmental Management to place about 45 pending permits for new livestock farms on hold until the applicants submitted that information.

"By not being willing to work with us the House gave up a lot," Gard said.

An environmentalist who followed the issue throughout the session, however, said she's happy the legislation failed.

Rae Schnapp, the Hoosier Environmental Council's water policy specialist, said the bill contained none of steps she believes the state needs to make control the large amounts of manure produced by factory-style farms.

Schnapp said she mainly opposed the bill because a provision limited the authority of local governments to land use and zoning issues - not health-related issues the large farms often raise.

"That means rural residents would be left to call the state when they have a health problem, which is very scary," Schnapp said. "So I'm very glad it didn't pass."

Posted by Marcia Oddi on Wednesday, May 02, 2007
Posted to Environment | Indiana Law

Ind. Decisions - Several interesting decisions from the Supreme Court today

In Charter One Mortgage Corp. v. Kyle Condra, a 7-page, 5-0 opinion, with a long list of amicus attorneys on the heading from the Office of the Comptroller of the Currency, Justice Boehm writes:

We hold that the preparation of mortgage documents by non-attorneys does not necessarily constitute the practice of law and that a lender’s charging a fee for the preparation does not convert it into the unauthorized practice of law.
The facts here are:
In 2003, Condra filed a class action against Charter One. His complaint for money had and received and unjust enrichment alleged that Charter One’s document preparation fee was prohibited under Indiana law because charging a fee for documents prepared by non-lawyers constituted the unauthorized practice of law. Pursuant to Indiana Trial Rule 12(B)(6), Charter One filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted.
Underlaying this action is a 1984 decsion, Miller v. Vance, where, as the Court writes:
[W]e considered whether the preparation of a mortgage instrument by a bank employee who was not an attorney constituted the unauthorized practice of law. We concluded that filling in blanks on a form mortgage instrument did not constitute the practice of law because it “require[d] only the use of common knowledge regarding the in-formation to be inserted.” This activity did not involve any fiduciary relationship, confidences, or the giving of legal advice. As explained in Miller, it would be an “unreasonable burden” on the public to conclude that the completion of such routine documents was the practice of law reserved to attorneys. That decision was consistent with the majority of other jurisdictions that had considered the issue.We did, however, caution that the “lay bank employee may not give advice or opinions as to the legal effects of the instruments he prepares or the legal rights of the parties” and state that “[t]he bank may not make any separate charge for the preparation of the mortgage instrument.” Relying on this language from Miller, Condra contended that the $175 fee he was charged for the preparation of mortgage documents by non-attorneys constituted the unauthorized practice of law.
In response:
Charter One asserted that it was an operating subsidiary of a national bank, Charter One Bank, N.A.1 It therefore was governed by federal regulations promulgated under the National Bank Act by the Office of the Comptroller of the Currency (“OCC”). Among those regulations is a provision that allows national banks and their operating subsidiaries to charge incidental fees for legal services provided by non-lawyers in the preparation of real estate loan documents. Charter One contended that the OCC regulations expressly preempt any conflicting state law. The trial court denied the motion but certified its order for interlocutory appeal.

The Court of Appeals affirmed, holding this Court’s jurisdiction over the unauthorized practice of law is not preempted by the federal regulations at issue.

Today's opinion continues: "We find it unnecessary to decide this case on federal preemption grounds." The Court looks at some other states:
We agree, however, with the Supreme Courts of Michigan, Washington, and Illinois that there is no unauthorized practice of law when form mortgage documents are prepared by non-attorneys. We also agree that the mere charging of a fee does not transform per-missible conduct into the unauthorized practice of law. * * *

We therefore reaffirm the holding of Miller that filling in the blanks of standard mortgage documents is not the practice of law. The purpose of restricting the practice of law to licensed and trained attorneys is to protect the public from serious harm from unknowledgeable legal advice. We do not believe that purpose is effectuated by prohibiting charging fees for mortgage document preparation by non-attorneys. If charging a fee subjected this act to regulation as the practice of law, either the fees would be eliminated or attorneys would be required to perform the activity. Requiring an attorney for such a routine task would produce only inconvenience and added cost to the public. Eliminating the charge would presumably result in additional charges buried in loan fees not tied to the completion of loan documents. Resolution of the economics of that are best left to the legislature or the competitive forces in the marketplace for loans.

In short, if the completion of legal documents is ordinarily incident to a lender’s financing activities, it is generally not the practice of law, whether or not a fee is charged. To the extent that Miller suggests otherwise, it is disapproved.

Conclusion This case is remanded to the trial court with instruction to grant Charter One’s motion to dismiss for failure to state a claim.

In City of Carmel, Indiana v. Carl Michael Steele, et al. , an 11-page, 5-0 opinion, Justice Rucker writes:
When a municipality proceeds to annex territory as a result of a petition requesting it to do so, the legal description of the territory as set forth in the annexation ordinance determines whether the territory is contiguous to a municipality’s corporate boundaries. Here, the trial court looked beyond the ordinance to the legal description in the petition that inspired the ordinance. We conclude that to do so in this case was beyond the scope of trial court review. * * *

The legal description in annexation Ordinance C-265 describing territory the City of Carmel sought to annex demonstrates that the territory is contiguous to the City’s corporate boundaries. The trial court thus erred in failing to deny the Steeles’ appeal and dismiss the proceeding. We therefore reverse the judgment of the trial court.

In Tommy McElroy v. State of Indiana, a 10-page, 5-0 opinion, Justice Rucker writes:
The issue presented is whether the trial court abused its discretion when it imposed enhanced concurrent sentences for two counts of reckless homicide and one count of criminal recklessness. Finding that the valid aggravating factor is substantiated by the trial court’s sentencing statements and that it supports an enhanced sentence, we conclude there was no abuse of discretion. * * *

The sentence imposed by the trial court is supported by the sentencing orders, and the defendant’s eight-year sentence is not inappropriate under Indiana Appellate Rule 7(B). Affirmed.

Posted by Marcia Oddi on Wednesday, May 02, 2007
Posted to Ind. Sup.Ct. Decisions

Courts - Portraits of Justice Sandra Day O'Connor

Tony Mauro of Legal Times has a story today headed "Portrait of a Lady Justice." It begins:

What to make of retired Supreme Court Justice Sandra Day O'Connor?

Pioneer, cowgirl, schoolmarm, swing voter. A judge who is bold, fretful, a waffler, moderate, conservative, liberal, tough, caring, a gentlelady in a man's world -- all these descriptions have been used to paint a verbal portrait of the nation's first female justice.

A fascinating exhibit at the National Portrait Gallery in Washington, D.C., demonstrates that the same rainbow of interpretations confronts real portrait painters as well.

Twenty-five artists, members of an artists' collective called the Painting Group in New York City, painted portraits of O'Connor during two three-hour sittings last October, and the results -- in charcoal, pastels, watercolor, and oil -- are on display at the recently reopened gallery. Founders of the group, which has met regularly since the late 1950s, are portraitist Aaron Shikler and David Levine, the noted caricaturist for the New York Review of Books.

Usually the group's subjects pose in the nude, but O'Connor is not that much of a pioneer. She sat instead in her traditional Supreme Court robe, complete with a ruffle at the neck. The robe and the ruffle are just about the only characteristics shared by all the works on display.

After reading the Mauro article, you might want to check out the CBS News' "Sunday Morning" site, which has both a story on the exhibit, plus a number of the portraits.

Posted by Marcia Oddi on Wednesday, May 02, 2007
Posted to Courts in general

Ind. Gov't. - New serial meetings law is good, but just a start

That is the opinion of an editorial today about SEA 103 in the Evansville Courier & Press that concludes:

Credit goes to Sen. Beverley Gard, R-Greenwood, and Rep. Russ Stilwell, D-Boonville, for taking the leadership to get this legislation passed.

That said, the legislation that was approved this session is filled with exceptions that merit discussion later.

Regardless, the new law will ban local government boards from meeting in groups of less than a quorum. Violations by those boards make their actions vulnerable to court challenge.

This is a needed step forward in the effort to make Indiana government open and accessible to the public, but it is far from the only concern for Indiana residents and taxpayers concerned about open government.

Indeed, what may be a steeper challenge is that of dealing with elected officials who convene in executive session for one purpose, only to allow the conversation in the closed-door meeting to drift into another topic.

The board members decide on that issue and then go through the charade of voting on it in the public meeting, just as they do after serial meetings.

The abuse of executive session is unlikely to change until the Legislature adds real teeth to the Indiana Open Door law, by imposing fines and civil damages against violators, and by giving the public access counselor some prosecutorial powers.

Posted by Marcia Oddi on Wednesday, May 02, 2007
Posted to Indiana Government

Ind. Courts - Chief Justice of Indiana Randall Shepard speaks at packed circuit courtroom in Mount Vernon

The Evansville Courier & Press has a report today by Kate Braser. Some quotes:

Before Chief Justice Randall Shepard became the highest ranking official of the state supreme court, he made a humble first step much like the hundreds of teenagers who gathered at the Posey County Courthouse this week.

Shepard spoke Tuesday inside the packed circuit courtroom in Mount Vernon at the kickoff of Law Week.

After Shepard's speech in front of students from New Harmony Senior High, Mount Vernon Senior High and North Posey Senior High, the students did their own mock trials, playing the roles of jury, defendants and plaintiffs.

"Literally thousands of junior and senior government students have been through this very program we are doing today," said Posey Superior Court Judge S. Brent Almon. He said recognition of Law Day has taken place locally for decades. * * *

Ending his speech, Shepard told the students when he was in high school, he participated in a mock trial during Law Week in Vanderburgh County.

"I lost," he said, generating a stir of laughter from all corners of the courtroom. "So, you see, there is life after losing."

Posted by Marcia Oddi on Wednesday, May 02, 2007
Posted to Indiana Courts

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

Following up on this April 29th ILB entry quoting from a story in the Louisville Courier Journal, today the Journal's Jim Adams today reports on the federal judge's ruling. Some quotes:

Testimony and other evidence in the Broadway cruising case "tend to confirm the fundamental allegations made by both sides," the federal judge in the case said in a written opinion filed yesterday.

Specifically, evidence supports the arguments that the city's Derby Day traffic plan both harms West Broadway-area business and stands to prevent injury to others, U.S. District Judge Jennifer Coffman wrote in her 15-page order.

While acknowledging strengths in both sides' arguments, Coffman said the potential of harm and the public interest in safety was overriding.

Her order elaborates, beyond what she said in open court Monday, on the dilemmas presented by the case before her.

"Broadway's closing in 2006 (during Derby weekend) imposed financial and intangible injuries to local residents and business owners while reducing the violence and inconvenience of past years," Coffman wrote.

"The court is impressed with the credibility and the significance of the alleged and potential injuries to the plaintiffs, but when these injuries are considered along with the demonstrated public interest in preventing the problems with noise, traffic, and violence that might recur on Broadway if the city's plan is enjoined, the court finds that the public interest will be served if the city is allowed to proceed with its traffic plan for the 2007 Derby weekend."

Monday afternoon, Coffman denied the request of the plaintiffs -- businesses along West Broadway -- to order the city not to enforce its traffic plan.

That plan calls for restrictions on traffic Friday, Saturday and Sunday between Ninth and 34th streets.

In the suit, filed April 13, the businesses alleged the traffic plan would cost them up to $150,000 this weekend and infringe on their constitutional rights of due process, equal protection of the laws and free association.

The city said the plan is an attempt to stem disorder that has occurred during past Derby weekends on West Broadway, including a murder, two other shootings, fights and a rape in 2005.

A sidebar to the story includes links to the judge's opinion and various filings.

Posted by Marcia Oddi on Wednesday, May 02, 2007
Posted to General Law Related

Tuesday, May 01, 2007

Law - "Lawmaker's Tirade Shows Up on YouTube"

The AP report begins:

A state lawmaker's profanity-laced tirade against the governor made the rounds on YouTube on Friday, two days after his remarks derailed spending negotiations near the end of the legislative session. * * *

The tirade attracted more than 17,000 views on YouTube and stalled talks to draft a state budget. On Friday, lawmakers had yet to approve a spending plan with only one day left in the 90-day regular session.

But it is Montana, NOT Indiana.

Here is a link to the video, which is certainly not for those with tender ears.

Posted by Marcia Oddi on Tuesday, May 01, 2007
Posted to General Law Related

Ind. Courts - Cows running at large case ends in mistrial in Franklin County Circuit Court

Jill Winchester of the Brookville American-Democrat reports on a mistrial in a cows wandering at large case. Some quotes:

On Monday, April 23, one of three cases pending against Lawrence Wollyung, 78, of West College Corner, commenced at 8:30 a.m.

A six-person jury, numerous witnesses, and the officers of the court assembled to hear the case of Wollyung, wherein he faced two counts of Animals at Large, as a Class B Misdemeanor, and one count of Neglect of a Vertebrate Animal, as a Class B Misdemeanor.

By 3:30 p.m., however, the trial came to an untimely end.

It was at that time that Judge J. Steven Cox granted attorney Terry O'Maley's renewed motion for a mistrial. * * *

As it pertains to this case, witnesses were not allowed to discuss additional incidents wherein Wollyung's cows were running freely -- only testimony pertinent to the dates filed in the charging information was permissible.

However, the State had hoped to use that evidence to establish knowledge of the condition of Wollyung's fence as well as knowledge of the possibility of his cows running at large. * * *

Cox ruled that any mention of past instances of Wollyung's cattle running free was inadmissible and that the State's witnesses were to be admonished not to speak of that topic.

“I admonished the witnesses that they could not comment on cattle being out in the past, but we had to show that the defendant knew that the cattle were out. It was a tough thing to prove that [Wollyung] had knowledge of that without talking about the cows being out,” Franklin County Prosecuting Attorney Melvin Wilhelm said.

“We had officers testify about how many times they'd been called out there because of problems with the fence, and it kind of came out with one witness. The Judge informed me to make sure that the witnesses knew [about the admonishment]. It came out, again, in the afternoon with one witness,” he continued.

After opening arguments, Officer Adam Henson, a deputy with the Franklin County Sheriff's Department, was called to testify concerning his knowledge of the condition of Wollyung's fence.

While describing the condition of the fence, he mentioned that he had experienced cattle, in fact, escaping through a given hole in the fence.

That testimony fell within the scope of the admonishment, and O'Maley immediately moved for a mistrial.

Cox noted the objection and preserved the motion for the record. The jury was advised that the information was not to be used in considering a verdict and that it would be stricken from the record.

Later in the afternoon, Dr. Mike Johnston, a veterinarian, was called as an expert witness concerning the condition of the cattle that were found dead on Wollyung's farm, resulting in the neglect charge.

As that was charged as part of the crime, that testimony was permissible.

However, when Wilhelm asked Johnston about the condition of the fence as he had perceived it, Johnston indicated that he had seen cows running at large around the Wollyung property in the past.

It was at that time that O'Maley renewed his objection. Cox concurred that to proceed would be unfair to the defendant and that the matter must be reheard.

“At that point, the Judge has to determine whether the jurors are beyond an admonishment; it was his determination,” Wilhelm said.

Unless a pre-trial agreement is reached, the case will be retried before a new jury on July 9, 2007.

A motion for mistrial has not been granted in a case in the Franklin County Circuit Court for at least thirty years.

“I've never had one happen in all the years I've been prosecutor. That's the first mistrial I've ever been involved in,” Wilhelm said.

Posted by Marcia Oddi on Tuesday, May 01, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Judge Young denies challenge to Indiana's lethal-injection procedures [Updated]

Jon Murray reports in the Indianapolis Star this evening:

A U.S. District Court judge late this afternoon ruled against a Death Row inmate's request for an injunction delaying his execution as he sues to challenge Indiana's lethal injection procedures.

Judge Richard L. Young rejected inmate David Leon Woods' request on the grounds the lawsuit by three Death Row inmates has little chance of success.

Woods, 42, faces execution early Friday morning for the 1984 stabbing death of his 77-year-old neighbor, Juan Placencia, in Garrett, a town north of Fort Wayne.

"Woods has not shown the existence of irreparable harm through the mere possibility that some unforseen complication will result in a lingering death causing Woods to suffer unnecessary pain," Young wrote in a 12-page ruling.

Also, Young wrote, Woods waited too long to challenge the lethal injection process. Attorneys for the three inmates argue the three-drug cocktail used by Indiana, the lack of medically trained personnel and and inadequate monitoring create the risk of unnecessary pain, amounting to cruel and unusual punishment.

The ILB has obtained a copy of Judge Young's denial of the request for a preliminary injunction, which would be, as the Judge concludes, "the functional equivalent in the present circumstances of a stay of execution." Access it here.

[Update 5/2/07] Here is the AP's Tom Coyne's coverage of the decision by Judge Young. From the story:

Woods' attorney, Linda Wagoner, said she would appeal Young's ruling to the 7th U.S. Circuit Court of Appeals in Chicago. * * *

Woods contends that the state Department of Correction's execution protocol constitutes cruel and unusual punishment and "creates a substantial and unnecessary risk that Woods will be fully conscious and in agonizing pain for the duration of the execution process."

The state filed a motion on April 24 seeking a summary judgment, asking Young to find that Woods had failed to exhaust his administrative remedies with the state, that his statute of limitation to challenge the lethal injection protocol had passed and that "there is no genuine issue of material fact in this cause."

Woods won a partial victory yesterday when Young rejected the state's argument that Woods had failed to exhaust his available administrative remedies in challenging the method the state uses to administer lethal injections. Hours later, though, Young denied Woods' preliminary injunction request.

Woods also is waiting to hear from Gov. Mitch Daniels on his request for clemency. The Indiana Parole Board recommend unanimously not to recommend clemency for Woods.

His attorneys also have asked the U.S. Supreme Court to block the execution, challenging the state Supreme Court's method of determining whether he is mentally retarded.

Posted by Marcia Oddi on Tuesday, May 01, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Law - Even more on: "University of Saint Francis has begun exploring the possibility of opening a law school"

Last February the ILB noted:

Mitch Harper's post on his blog, Fort Wayne Observed, headed "The Domino's Theory: Could the Ave Maria School of Law form the core of a St. Francis Law School?" -- Alas, it is not to be. Harper's report this afternoon is headed "Ann Arbor Law School headed to Florida, not Fort Wayne."
Well, alas again. Apparently all is not well at Ave Maria Law School. This post from The Volokh Conspiracy points to Mirror of Justice - "A blog dedicated to the development of Catholic legal theory" and an entry titled "Crisis at Ave Maria Law."

Posted by Marcia Oddi on Tuesday, May 01, 2007
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Ace Foster Care, et al v. Indiana Family & Social Services Admin. , a 14-page opinion, the panel decides that the FSSA does not need to grant a contract to every qualified applicant that applies. Judge Darden concludes:

Ace cites to White v. Roughton, 530 F.2d 750, 753-54 (7th Cir. 1976), as requiring “written standards and regulation” in order “to ensure the fair and consistent application of eligibility requirements” in the administration of government programs. However, White concerned a general assistance program that provided food orders and rent for those in need. There is no evidence in the record to show that an application for a contract to provide foster care placement services is analogous to one for general assistance. Hence, White is inapposite.

Further, as FSSA observes, there is no dispute that when properly licensed, Ace was qualified – i.e., eligible for consideration as a provider. However, as the trial court observed, Ace has failed to show that “Due Process” requires that a contract must be awarded to every qualified applicant that submits a proposal to provide placement services. Moreover, given the undisputed facts that Ace’s proposal was unsolicited, and that for the year 2004, LCOFC simply extended its contractual relationship with qualified existing providers, we cannot conclude that the trial court erred when it found that Ace had not shown a material issue of fact and that FSSA was entitled to judgment as a matter of law on Ace’s violation of due process claim.

Marty J. Allen v. State of Indiana - "Given our resolution of the procedural issue in this case, we find no need to review the merits of Allen’s sentencing claim. The issue of whether Allen’s sentence was erroneous should be pursued by filing a petition for post-conviction relief. Allen has availed himself of the post-conviction procedure by filing two petitions for post-conviction relief, the first of which was withdrawn by Allen, and the second of which was denied by the post-conviction court. In addition, Allen filed a request to file a successive post-conviction petition in June 2002, and, in September 2002, this Court declined to authorize the filing of Allen’s successive post-conviction petition. Accordingly, based upon the foregoing discussion and authorities, we conclude the trial court properly denied Allen’s “Motion to File Belated Notice of Appeal and/or Belated Motion to Correct Errors.”"

NFP civil opinions today (2):

Todd Avery & Kelly Elliott-Avery v. Dentasafe, Inc. (NFP) - "The Averys raise one issue for our review, which we restate as: whether the trial court abused its discretion in admitting certain expert opinion testimony." Affirmed.

In the Matter of D.W., R.W., & R.W., Dorian Wilson v. Marion Co. Office of Family & Children, and Child Advocates (NFP) - Termination, affirmed.

NFP criminal opinions today (2):

Micah Tipton v. State of Indiana (NFP)

Jermaine Drake v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 01, 2007
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides environmental insurance case

In Cinergy Corp., Duke Energy Indiana, Inc. v. Associated Electric & Gas Insurance Services, LTD, St. Paul Surplus Lines Ins. Co., et al, a 17-page, 5-0 opinion, the Court finds that the power companies' insurance companies are not responsible for paying the costs of defending the companies against a federal lawsuit "to require the power companies to incur the costs of installing government-mandated equipment intended to reduce future emissions of pollutants and prevent future environmental harm." Justice Dickson writes:

Incurring enormous defense costs in the course of a federal environmental lawsuit, several power companies desire payment of these defense costs, as they are incurred, under the terms of certain liability insurance policies. The insurance companies, denying liability for such defense costs, initiated this action for declaratory judgment. The power companies sought partial summary judgment to compel payment of all past and future defense costs incurred in respond-ing to the federal lawsuit. We affirm the trial court's denial of the motion because it seeks relief more extensive than that to which the power companies are entitled. * * *

On interlocutory appeal, the power companies contend there are no determinative issues of material fact and that, as a matter of law, the policy provisions require AEGIS to pay the power companies' costs for defense of the federal lawsuit, and to pay such defense costs as they are incurred by the power companies. AEGIS contends that its policies provide no coverage for the claims made against the power companies in the federal suit, and thus it has no duty to pay defense costs. It also contends, in the alternative, that any such defense costs are not payable as incurred but rather only when "the loss occurs and is determined to be covered." * * *

The nature of the underlying federal lawsuit, as reflected by the record before us, is "a civil action" brought against the power companies "for injunctive relief and the assessment of civil penalties for violations" of various provisions of the Clean Air Act, federally-enforceable State Implementation Plans developed by Indiana and Ohio, and a 1998 administrative consent order. * * *

There is essential agreement among the parties, however, that the primary thrust of the federal lawsuit is to require the power companies to incur the costs of installing government-mandated equipment intended to reduce future emissions of pollutants and prevent future environmental harm. Their principal disagreement is thus whether the costs of installing such equipment fall within the policies' coverage for damages because of or resulting in bodily injury or property damage with respect to any accident, event, or continuous or repeated exposure to conditions. * * *

AEGIS disputes the applicability of Indiana precedent, asserting that none of the cases concern whether liability coverage for "'bodily injury' . . . or 'property damage' provides coverage for a claim seeking injunctive relief ordering a defendant to make modifications to its own facil-ity and cease operating in violation of a statute." AEGIS also asserts that "none of the cases cited concern air pollution or violations of the PSD [Prevention of Significant Deterioration] or NSR [New Source Review] provisions of the CAA [Clean Air Act]." Id. It argues that the cases dealing with emission of industrial waste all involved damage when the wastes settled on persons and properties, as opposed to emission in the air as alleged here. AE-GIS distinguishes the federal claims in this case with cases where "damages" have included gov-ernment-mandated cleanup costs, explaining that "[t]he claims here . . . do not allege cleanup costs or preventive measures ordered as part of the clean up of a spill," but rather "the underlying claims here seek to force [the power companies] to comply with statutory requirements that it apply for certain permits before constructing projects at its facilities, and where necessary, install modern pollution control technology as part of the construction."

AEGIS urges that "damages" under its policies should not apply to "prophylactic meas-ures taken to limit the release of emissions." * * *

The responsibilities of AEGIS under its policies for "ultimate net loss," including the power companies' defense costs, is conditioned by the requirement that such loss be for damages because of bodily injury or property damage "caused by an OCCURRENCE." (emphasis added). Under all three policies the term "occurrence" means "an accident, event, or continuous or repeated exposure to conditions." Due to this occurrence requirement, the policy thus applies only if damages claimed by the power companies, the costs associated with the installation of equipment to contain further excess emis-sions, constitute damages because of bodily injury or property damage caused by an accident, event, or exposure to conditions. The clear and unmistakable import of the phrase "caused by" is that the accident, event, or exposure to conditions must have preceded the damages claimed—here, the costs of installing emission control equipment.

But what the power companies here claim to be covered, the installation costs for equip-ment to prevent future emissions, is not caused by the happening of an accident, event, or expo-sure to conditions but rather result from the prevention of such an occurrence. We cannot read the policy requirement that covered damages result from the happening of an occurrence to mean that coverage extends to damages that result from the prevention of an occurrence. * * *

In this interlocutory appeal, the power companies are challenging the denial of their mo-tion for partial summary judgment, which sought an order directing AEGIS to pay as incurred the power companies' expenses in the defense of a federal lawsuit seeking primarily to compel the companies to install equipment to reduce future emissions of pollutants and to prevent result-ing future environmental harm. Because the AEGIS insurance policies do not provide coverage for the costs of installing such equipment, the trial court did not err in denying partial summary judgment seeking to compel payment of all costs incurred by the power companies in defending all claims in the federal lawsuit. We affirm the trial court.

Posted by Marcia Oddi on Tuesday, May 01, 2007
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case

In United States v. Jeremy S. Craft, (ND Ind., a 13-page opinion, Robert L. Miller, Jr., Chief Judge) Judge Flaum writes:

A jury convicted Jeremy Craft of six counts of damaging, by means of fire, a building used in interstate commerce in violation of 18 U.S.C. § 844(i) and two counts of knowingly using a fire to commit a felony in violation of 18 U.S.C. § 844(h). Craft filed a motion for acquittal on five of the counts. The district court denied the motion, and Craft appeals. For the following reasons, we affirm in part and reverse in part.
This was a case involving "over twenty arson fires set in the southeast side of South Bend, Indiana." The Court here confirmed on all counts except Count 5:
Craft further argues that the government did not produce sufficient evidence to prove that the property located at 807 W. Indiana, which was used as a clubhouse for local members of the Hell’s Angels motorcycle club, was used in an activity affecting interstate commerce. * * *

After reviewing the record, we conclude that the government offered insufficient evidence that the Hells Angels clubhouse was used in an activity that affects interstate commerce. Jack Kendall, a former president of the Indiana chapter of the Hells Angels, stated that the property was used as a clubhouse for Hells Angels members “for [once-a-month] meetings and basically just parties of our own.” Kendall testified that the members paid dues at the monthly meetings. When asked “where are those dues sent to,” Kendall replied “the dues aren’t sent nowhere. They stay right in the charter to help pay for the expense of the building, the property, and stuff like that.” Kendall also testified, however, that the dues are used to reimburse club members for trips across state lines. * * *

Although some of the members’ dues were used to reimburse them for trips taken across state lines, any affect that those dues had on interstate commerce was too passive, too minimal, and too indirect to place the clubhouse property in § 844(i)’s reach. Indeed, reimbursing members for travel is comparable to the out-of-state purchases made by the churches in Odom and Rea. Without further evidence that the Hells Angels members actively employed the clubhouse for commercial purposes, no jury reasonably could conclude that the clubhouse was used in a manner that affected interstate commerce.

III. CONCLUSION. For the above reasons, we AFFIRM Craft’s conviction on counts two, four, seven, and nine, REVERSE Craft’s conviction on count five, and REMAND to the district court for re-sentencing.

Posted by Marcia Oddi on Tuesday, May 01, 2007
Posted to Ind. (7th Cir.) Decisions

Law - " KSR v. Teleflex: The Supreme Court’s Big Patent Ruling"

Yesterday's other big decision by the U.S. Supreme Court was a very important one on patent "obviousness." Tony Mauro begins his article in the Legal Times thusly:

In a major patent law development, the Supreme Court on Monday adopted a new, flexible standard that will make it easier for patents to be denied or challenged on the grounds that the invention at issue is too obvious to deserve patent protection.

The unanimous ruling in KSR International Co. v. Teleflex Inc. could also subject existing patent-holders to fresh litigation over obviousness -- a threshold issue that is part of every patent determination.

For a good collection of links and commentary on the ruling, I recommend this entry in Peter Lattman's WSJ Law Blog.

Posted by Marcia Oddi on Tuesday, May 01, 2007
Posted to General Law Related

Courts - Is the "Missouri plan" in danger in Missouri?

"Conservatives rev up effort to revamp Missouri's judicial-selection system" is the headline to this story by Jo Mannies in the St. Louis Post Dispatch. Some quotes:

If critics in the Legislature have their way, Missouri voters will be asked to do away with the state's 67-year-old system for appointing and retaining judges on its highest courts, and in Kansas City and St. Louis.

A state House panel is expected to vote later this week on a proposed constitutional amendment, known as House Joint Resolution 31, that would do just that. If voters approve, the governor and the state Senate would wield more power over who gets on the bench. Voters would lose it.

Supporters of the proposal, including the Federalist Society, say their aim is to rein in an out-of-control judiciary that has issued some unpopular rulings. Opponents, which include the Missouri Bar Association, say the result would put politicians in control of the courts.

Both sides accuse the other of playing politics, in hopes of using the judicial issue to whip up like-minded voters for next year's statewide elections. Supporters would like to see the proposal on the November 2008 ballot.

The proposal targets the state's "Missouri Plan," which affects the judges sitting on the state Supreme Court, its appeals court and the circuit judges in the St. Louis and Kansas City metropolitan areas. The plan now requires a sitting governor to select judges from panels assembled by special nonpartisan commissions. Those commissions are made up of gubernatorial appointees and lawyers from the Missouri Bar. Judges face retention votes from the public every six or 12 years, depending on the post.

Almost two dozen other states have set up systems modeled, at least in part, after the Missouri Plan.

Under the proposal in the state House, Missouri would instead adopt a selection system that mirrors the federal setup. A governor would nominate a judge, and the Missouri Senate would either approve or reject the nominee. The public would no longer vote on whether to retain judges. Instead, the Legislature would vote on whether to keep them.

The proposal's chief sponsor — state Rep. Jim Lembke, R-Mehlville — says the change is needed to exert more legislative control over the state's judiciary and eliminate what critics assert is undue influence by the Missouri Bar. The association, whose members include 28,000 lawyers, is accused by critics of packing the panels of prospective judges with Democratic-leaning lawyers.

Lawyer Bill Placke, president of the St. Louis chapter of the conservative Federalist Society, said the weakness in the Missouri Plan is exemplified by the failure of Missouri voters to oust any judge during the plan's existence.

Voters lack the information and knowledge that legislators are elected to wield, Placke said during a local debate last week on the issue.

Posted by Marcia Oddi on Tuesday, May 01, 2007
Posted to Courts in general

Ind. Courts - 86 underage drinkers arrested during Purdue Grand Prix festivities accept court consequences

Joe Gerrety of the Lafayette Journal & Courier writes today:

Dozens of people arrested during Purdue Grand Prix festivities earlier this month made initial court appearances Monday in Tippecanoe Superior Court 6.

Chief deputy prosecutor Kristen McVey said 86 people arrested for underage drinking were offered and accepted diversion agreements.

Under the agreements offered to first-time offenders, prosecutors agreed not to seek a criminal conviction if the defendant agreed to pay $255 in fees, undergo an alcohol evaluation and any recommended alcohol education or treatment recommended by Court Services, abstain from alcohol and otherwise stay out of trouble for a year.

People with previous alcohol-related arrests were offered a plea agreement that would require them to plead guilty to a crime or ask for a jury trial.

Last week in Superior Court 4, McVey said, 27 people arrested on suspicion of public intoxication were offered similar diversion agreements or plea agreements.

In addition, nine people were issued infractions, accused of inducing minors to possess or consume alcohol. An infraction is a non-criminal violation that carries a fine.

McVey said a few students who were scheduled to make court appearances called in advance and asked that their hearings be delayed because of school conflicts.

This is final exam week at Purdue. Those students were given the opportunity to come to court this morning.

"Judge (Les) Meade was kind enough to give us a secondary date," McVey said.

Altogether, police agencies reported 142 arrests related to Grand Prix revelry between April 19 and April 22. The annual partying is loosely associated with a 50-mile, student-organized go-kart race on campus.

Posted by Marcia Oddi on Tuesday, May 01, 2007
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Two Democrats vie for right to be Terre Haute’s next city judge"

Deb McKee of the Terre Haute Trib-Star writes:

In the Democratic Party primary race for City Court judge, Mike Rader and John T. Roach seek the bench currently occupied by Chris Dailey.

No Republicans filed to run for the city judge position.

Dailey was appointed by Gov. Mitch Daniels to finish the term of former City Court Judge Michael Lewis, who at the end of last year resigned to become judge of Vigo County Superior Court Division 6.

Posted by Marcia Oddi on Tuesday, May 01, 2007
Posted to Indiana Courts

Law - High speed chases - rulings from U.S. and Indiana Supreme Courts

Linda Greenhouse of the NY Times writes today:

The police did not violate a speeding driver’s rights by ramming his car and causing an accident that left him permanently paralyzed, the Supreme Court ruled on Monday by a vote of 8 to 1.

Writing for the majority, Justice Antonin Scalia said that despite the fact that the 19-year-old driver was suspected of nothing more than speeding, the decision to force him off the road was reasonable in light of the need to protect pedestrians and other drivers from “a Hollywood-style car chase of the most frightening sort.”

The justices took the unusual step — a first for the court — of posting on the court’s Web site the 15-minute video of the chase, recorded by a camera mounted on the squad car’s dashboard. * * *

The lone dissenter, Justice John Paul Stevens, said that to the contrary, jurors could well have concluded that the late-night chase endangered no pedestrians, since there were none, and no other motorists, since the police sirens warned other cars to pull off the road. “The Court has usurped the jury’s fact-finding function,” Justice Stevens said, [ILB emphasis] adding that “whether a person’s actions have risen to a level warranting deadly force is a question of fact best reserved for a jury.” * * *

The question, as in any Fourth Amendment case, was whether the seizure was “reasonable” under the circumstances. Mr. Harris sued the deputy for damages, and the United States Court of Appeals for the 11th Circuit, in Atlanta, held that he was entitled to have his case heard by a jury. The appeals court said that a jury could find that the case was governed by a 1985 Supreme Court precedent on the use of deadly force by the police against a fleeing suspect and that the jury could reasonably find that the police behavior in this case was unreasonable. * * *

Justice Scalia said the rule of the case was that “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.”

This is, of course, the case of Scott v. Harris, about which the ILB posted yesterday here and here.

This ILB entry from June 15, 2006 is headed "Bystanders can sue police over chases."

The decisions involved were City of Indianapolis and Indianapolis Police Department v. Richard Garman and the case Jeffrey Patrick, City of Gary & City of Gary Police Department v. Richard Miresso. See June 14, 2006 ILB entry summarizing the rulings here.

These Indiana Supreme Court decisions did not address the Fourth Amendment issue, but rather the question of a governmental unit's immunity from liability from a suit by an innocent bystander. In yesterday's case, the fleeing driver was the person injured.

[More] See also " More Thoughts On Supreme Court Placing Video Online" from the New York Personal Injury Law Blog. Also, this good review by Alyson M. Palmer of the Fulton County Daily Report.

Posted by Marcia Oddi on Tuesday, May 01, 2007
Posted to General Law Related