Saturday, June 30, 2007
Ind. Courts - New federal Judge Van Bokkelen to avoid criminal cases
Joe Carlson writes today in the NWI Times:
If indicted public figures like Robert Cantrell, Jewell Harris Sr. or Will Smith Jr. go on trial someday, they won't go to the courtroom of U.S. District Judge Joseph Van Bokkelen.
The soon-to-be judge will be prohibited from hearing any of those ongoing criminal cases, because they originated during Van Bokkelen's tenure as the top prosecutor in the Office of the U.S. Attorney of the Northern District of Indiana.
The recusals won't be limited to those three cases, which involve the alleged East Chicago political fixer, the Gary powerbroker, and the Lake County councilman, respectively.
Any case that came through the U.S. attorney's office between his appointment in October 2001 and when Van Bokkelen formally takes the bench next month will be off limits in his court.
"It's a very broad recusal," Van Bokkelen said. "If I was going to err, I'd err on the side of recusal."
In order to avoid the appearance of bias, Van Bokkelen said he intends to stay away from any case in which an FBI agent has even held preliminary discussions with a federal prosecutor in his office.
That means the new judge will probably hear very few criminal cases in his first year on the bench, he said, adding that the recusal policy will also extend to civil cases involving U.S. attorney staff, like bankruptcies and environmental actions.
Ind. Law - Many new laws take effect July 1
Here are some of the stories reporting on new laws taking effect July 1:
From WISHTV 8: "New Laws Taking Effect July 1 in Indiana"
From CBS News: "Hundreds Of New Laws Take Effect July 1" (focus on weather radios in mobile homes)
From Terre Haute Trib-Star: "New Indiana seat-belt laws will affect nearly all passengers on Hoosier roads"
From the Muncie Star-Press: "New law: Everybody must wear seat belt starting Sunday"
From the Gary Post Tribune: "Seat belt law applies to all Hoosiers on Sunday"
From the Muncie Star-Press: "New state gambling laws doom poker clubs, Cherry Masters"
From the AP: "New state laws take effect July 1"
Ind. Decisions - More on "Ruling supports Carmel annexation"
Updating this ILB entry from June 27th, John Tuohy of the Indianapolis Star writes today under the headline "Town officials ready to go after Geist: But annexation foes say Fishers' case unlike Carmel one." His report begins:
Town officials said Thursday they would waste little time trying to annex property in unincorporated Geist now that the Indiana Supreme Court has ruled in a Carmel annexation dispute.Opponents, however, have other ideas, according to the Tuohy story.
"My hope was that the court's decision would provide a roadmap, and that appears exactly what they have done," said Fishers town attorney Doug Church.
In a ruling many legal observers considered landmark, the court said Wednesday that Carmel could annex 8.3 square miles in southwest Clay Township. Several Indiana municipalities with annexation plans put them on hold until the Carmel case was decided.
Those towns and cities, including Fishers, see the finding as a green light.
"To me, this ruling just reinforces that annexation is permitted in the state of Indiana," Fishers Town Council President Scott Faultless said. "So long as we follow the law, we can successfully annex areas . . . involuntarily."
Faultless said he would move ahead as soon as possible to annex 2,000 homes and aims to finish by year's end.
Law - More on: "5-4 ruling limits use of race by district"
The Supreme Court's 5-4 decision Thursday to strike down school integration plans in Louisville, Ky., and Seattle could affect the ethnic makeup of Fort Wayne Community Schools.
As Allen County's most diverse school district, with almost 32,000 students who speak 71 different languages, FWCS uses several methods to ensure diversity in its individual schools.
“Through a combination of choice and magnet schools and racial balance, we try to get a diverse mix of students at every school,” said FWCS spokeswoman Susan Imler. Racial balance means schools must have no less than 10 percent to 15 percent black students and no more than 45 percent to 50 percent. * * *
While FWCS has been following the Supreme Court decision, Imler said “it's going to take us a while to really digest it.” FWCS lawyer Bill Sweet, who is studying the ruling, was unavailable for comment.
Ind. Decisions - Still more on: Appeal of Indiana voter ID case to Supreme Court anticipated
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, see this May 2nd ILB entry titled "Potential appeal of Indiana voter ID case to Supreme Court anticipated."
Today the Fort Wayne Journal Gazette's Washington reporter, Sylvia A. Smith, reports in a lengthy story:
The Supreme Court will decide whether Indiana’s voter ID law is too much of a burden for some people, as the state’s Democratic Party argues, or is a prudent way to prevent voter fraud, as Republican lawmakers contend.
The Democratic Party and the American Civil Liberties Union of Indiana will file a request Monday asking the court to review the legal fight over the law. Voter ID has operated in two primaries and a fall election since the state legislature adopted a requirement that voters must produce photo identification at polling places.
The court will either agree to hear the case – ultimately choosing between the Indiana Democratic Party’s view and the state law – or refuse to consider it, which would be a victory for backers of the law.
No one can predict which cases the Supreme Court will decide to hear. Thousands are submitted for review; only a handful are chosen each year. * * *
Two dozen states have similar laws, and the federal appeals courts have disagreed on whether they are constitutional.
Although about six states have had voter identification requirements for years, most laws were passed in the past decade, prompted by fears that people who weren’t eligible to vote would try to cast ballots, said Jennifer Bowser of the National Conference of State Legislatures.
“There’s a lot of controversy over whether that’s true,” she said of the concerns about widespread voter fraud.
Nevertheless, that was the rationale Indiana’s Republican-controlled legislature used when it approved the law in 2005.
“We have come to a time … where voters need more confidence in the election process,” Secretary of State Todd Rokita said as the Indiana General Assembly was considering the legislation.
Opponents argue that a voter ID requirement addresses a non-existent problem and deters some people from voting. They say poor, elderly or minority voters are more likely to sit out Election Day if they have to produce some kind of identification. Poor and minority voters tend to vote Democratic.
A federal court didn’t buy that contention, in part because when the state Democratic Party and the American Civil Liberties Union sued to overturn the law, they did not name anyone who was rejected at the ballot box for lack of an ID.
“By not even having found one of these people, that does not convey substantial disenfranchisement,” Judge Richard Posner said when the case was argued in Chicago.
In the 2-1 ruling he wrote for the 7th U.S. Circuit Court, Posner said, “No doubt there are at least a few such people in Indiana, but the inability of the sponsors of this litigation to find any such person to join as a plaintiff suggests that the motivation for the suit is simply that the law may require the Democratic Party and the other organizational plaintiffs to work harder to get every last one of their supporters to the polls.” * * *
William Groth, an Indianapolis attorney for the state Democratic Party, said the appeals court should have made the state prove that impostors have voted in Indiana and that the law would fix that. Instead, he said, Posner put the burden of proof on the opponents of the law.
“There is no evidence that this type of impostor voting has occurred in the state of Indiana,” Groth said, “yet there’s lots of evidence it occurs in absentee balloting. But the legislature chose to exempt absentee voting.”
Friday, June 29, 2007
Ind. Decisions - Supreme Court issues opinion in air bag warning case
In Ford Motor Company and Eby Ford Lincoln Mercury a/k/a Eby Ford Sales, Inc. v. Marilyn Rushford, an 8-page, 5-0 opinion in a case where oral arguments were heard Dec. 14, 2006, Justice Rucker writes:
A retail merchant has a duty to warn a buyer of the danger posed by a product it sells. However, absent special circumstances not present in this case, if the manufacturer provides adequate warnings of the danger of the product and the seller passes these warnings along to the buyer or consumer, then the seller has discharged its duty to warn.
In May 2002, along with her husband, then seventy-year-old Marilyn Rushford purchased a new 2002 Ford Focus Wagon from Eby Ford Lincoln Mercury a/k/a Eby Ford Sales, Inc. (“Eby”). When the couple bought the car, Rushford informed the Eby salesperson that she had never driven an automobile. * * *
Concerning Eby, the Court of Appeals determined there was a genuine issue of material fact as to whether it was reasonable for Eby not to warn Rushford to read the air bag warning in the owner’s manual. Accordingly, the Court of Appeals affirmed the trial court’s denial of Eby’s motion for summary judgment. Having previously granted transfer we now reverse the judgment of the trial court on this issue. Except as otherwise provided we summarily affirm the Court of Appeals’ opinion. See Ind. Appellate Rule 58(A)(2). * * *
In this case there is no dispute about the adequacy of the air bag warnings contained in the owner’s manual provided by the manufacturer. Nor is there any dispute that the owner’s manual was provided with the 2002 Ford Focus Wagon when Eby sold it to Rushford. Further, there is no claim that the automobile was modified or altered such that the manufacturer’s warnings would be insufficient to place Rushford on notice concerning air bag danger. Thus, we conclude that having provided Rushford with the manufacturer’s warning, Eby was under no duty to give Rushford additional warnings, including advising Rushford to read the manufacturer’s warnings based on Eby’s knowledge of “Rushford’s peculiar characteristic.” Rushford, 845 N.E.2d at 203. To conclude otherwise would place retail sellers like Eby in the position of attempting to determine which particular manufacturer warnings may be of unique importance to an individual consumer and then direct the consumer’s attention to those warnings. In our view this is an untenable position and an unnecessary burden.
Conclusion. We reverse that portion of the trial court’s order denying Eby’s motion for summary judgment. This cause is remanded with instructions to enter summary judgment in Eby’s favor.
Ind. Gov't. - Governor announces new Public Access Counselor, effective immediately
From a press release this afternoon:
Governor Mitch Daniels announced today the appointment of Terre Haute native Heather Willis Neal as public access counselor for the state of Indiana. She succeeds Karen T. Davis whose term will expire on June 30.
Neal, who earned her law degree from the Indiana School of Law-Indianapolis, worked for nearly six years in the Office of the Indiana Secretary of State. She first served as director of business services and general counsel for former Secretary of State Sue Anne Gilroy and then, from 2003 to 2005, as chief of staff for Secretary of State Todd Rokita. Most recently, she was the executive director of School Choice Indiana, Inc.
Neal earned her undergraduate degree from Franklin College. Her appointment will be effective on July 1 and will expire on June 30, 2011.
Ind. Decisions - Transfer list for week ending June 29, 2007
Here is the Indiana Supreme Court's transfer list for the week ending June 29, 2007.
Note the "transfers with opinion"; these cases were posted earlier this week.
One grant today does not include an opinion, Central Indiana Podiatry, P.C. v. Kenneth Krueger & Meridian Health Group, P.C. The ILB posted the Court of Appeals decision Jan. 31, 2007, under the heading "Non-compete clause likely valid, court says".
Also of interest, the Court has denied transfer in the case of Denison Parking v.Barbara L. Davis & Jack Davis, where the Court of Appeals ruled that the business owner had no duty to clear the adjacent sidewalk. Oral arguments were heard in this case Tuesday - see ILB entry here.
Finally, this marks the end of the Court's fiscal year. Statistics on opinions issued, etc., cover the fiscal year period. This will probably be the last transfer list until July 20th. The Court's next conference is currently scheduled for the 3rd week of July.
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.
Courts - The Supreme Court - birth of a new jurisprudential era?
The American Constitution Society for Law and Policy hosted a 90-minute review yesterday of the 2006-07 Supreme Court term. It was going on even as the opinions on the last case (the school cases) were being delivered at the Court. You can watch it online here.
One of the participants, Thomas C. Goldstein, Akin Gump Straus Hauer & Feld LLP's Supreme Court Practice Chief; Lecturer, Stanford Law School and Harvard Law School; and founder of SCOTUSblog, had these concluding remarks, which you can find at about 1:24 of the video:
What we're probably going to look back on this term as, as if it were June 15, 1961 in reverse.Read it and weep, or read it and cheer, depending on your proclivities, but the prediction itself looks pretty sound.
June 15, 1961 was the day that Mapp v. Ohio was decided, and it was, in effect, sort of the birth of the Warren Court era. It was decided by a 5-vote majority, they overruled Wolf v. Colorado and applied the 4th Amendment to the states, and it started a whole trend, a series of cases, from Reynolds v. Sims to Frontiero v. Richardson, all of the major doctrines that law students today think of as if they were written into the Constitution, had their birth at the end of the term in 1961.
The Court can really only go the right from here in terms of what you would expect in terms of retirements. So it is very unlikely that we will start heading back to the left in any significant way. And so it may be the birth of an entirely new jurisprudential era.
Ind. Decisions - Court of Appeals issues 1 today (and 20 NFP)
For publication opinions today (1):
In Ronald Hensley v. Melissa Hensley , a 10-page opinion, Judge May writes:
Ronald Hensley appeals the modification of his support obligation for two daughters born during his marriage to Melissa Bales. He alleges the court placed an excessive obligation on him. We reverse and remand. * * *NFP civil opinions today (2):
When dividing college expenses, the trial court must take into account “the ability of each parent to meet” the educational expenses required for college. Ind. Code § 31-16-6-2(C). Our calculations indicate Hensley will be unable to provide for himself or his family under this educational support order, while Bales will be permitted to remain unemployed and have money returned to her. Consequently, it is not clear the trial court, when fashioning this order, properly considered the parents’ abilities to meet college expenses. We conclude the result reached is inequitable and unjust.
As a final matter, we stress that this case is not about a father who is unemployed or underemployed. Nor is it about a parent who amassed a huge support arrearage by failing to pay support for a number of years. Before Bales sought to modify support to include college expenses, Hensley was current in his child support payments. He works nights to make more money per hour, and he already works more than 60 hours per week to support himself and his four children. He cannot be expected to do any more. The current order effectively penalizes Hensley for working overtime, while rewarding Bales for remaining unemployed.
Because our examination of the record leaves us with the firm conviction a mistake has been made, we reverse and remand for the court to enter a new order based on the evidence already before it.
Gregory L. Brown v. Medical Licensing Board of Indiana (NFP) - "Appellant-petitioner Gregory L. Brown appeals from the trial court’s dismissal of his petition for judicial review of appellee-respondent Medical Licensing Board of Indiana’s (Board) request for relief from a default order terminating his license to practice medicine in Indiana. Brown argues, among other things, that the trial court erroneously ruled on the Board’s motion to dismiss before his time to respond thereto had passed and that he should have been entitled to seek relief analogous to that provided by Indiana Trial Rule 60(B) even though he was litigating in an administrative setting. Finding that even if the trial court ruled on the motion precipitously such error was harmless, and finding that even if Brown was entitled to seek something akin to Rule 60(B) relief he has failed to establish that such relief was warranted, we affirm the judgment of the trial court."
Rochelle Fichter v. Larry A. Fichter (NFP) - "We reverse the trial court’s interpretation of Father’s child support obligation pursuant to the Dissolution Order. The contract unambiguously conditioned Father’s seventy-five dollar per week payment on the existence of marital debt. Thus, we remand that issue with instructions that the trial court recalculate Father’s child support arrearage from the date Father had completely paid off the marital debt to the present at the rate of $160 per week. In all other respects, we affirm the trial court. Reversed in part and remanded with instructions."
NFP criminal opinions today (18):
Ind. Courts - More on: Federal trial involving what constitutes illegal speech on the Internet goes to jury today
HAMMOND -- After an afternoon of deliberations, a federal jury Thursday convicted Vikram Buddhi of 11 counts of using the Internet to threaten American leaders and the nation's infrastructure.
Buddhi, an Indian national who has spent a decade studying at Purdue University in West Lafayette, never disputed writing online messages such as, "Call for the assassination of GW Bush."
Rather, the jury in U.S. District Court in Hammond was asked to decide whether Buddhi's comments were true threats or part of a crude online protest of the Iraq War that should be protected by free speech rights.
The jury ruled that a reasonable person reading Buddhi's messages online could conclude that he intended to harm the president, the vice president, their wives and the secretary of defense, and to blow up various power plants and methods of mass transit. * * *
Buddhi never took the stand in his three-day trial, and the defense offered only one witness, an attorney who had located other threatening messages on the same financial news message board Buddhi used.
Secret Service Special Agent Wade Gault testified the case would have set a new standard for speech if Buddhi had not been punished for exhorting assassination. * * *
Defense attorney John Martin argued crude political banter is common on Internet message boards, and Buddhi had no actual intention of harming anyone.
"Where does it say Mr. Buddhi is going to kill the president, the vice president? It doesn't. These comments are posted in the context of the debate about the Iraq War," Martin said.
"You have to look at what was going on in the world at that time."
Martin compared Buddhi's remarks to a comment that commentator Ann Coulter made this week, wishing that presidential candidate John Edwards would be killed by terrorists.
Assistant U.S. Attorney Philip Benson said Buddhi must be held accountable for the words he chose to write on his computer and publicly post for anyone in the world to read.
"What is this? Is the Internet the wild, wild West, where you can say anything? That's not the way it's worked out," Benson said. "It's the same as sending a letter."
Law - "5-4 ruling limits use of race by district" [Updated]
The Louisville Courier Journal has much coverage today of yesterday's SCOTUS ruling directly impacting the Louisville school system. The lead story begins:
A divided U.S. Supreme Court struck down Jefferson County Public Schools' desegregation policy yesterday -- saying the district's use of race in assigning students was unconstitutional.[Updated] The Indianapolis Star has posted the LA Times story by David Savage, accompanied by this sidebar by Andy Gammill on Indianapolis Public Schools' reaction:
The landmark decision placed new limits on the ability of districts nationwide to pursue racial diversity.
In a 5-4 decision, Chief Justice John Roberts said that by classifying students by race, the Louisville and Seattle school districts perpetuated unequal treatment and had failed to justify the use of race.
Indianapolis Public Schools uses race as a factor in assigning students to schools, but officials believe the policy is acceptable within the court's ruling.
The district bases its policy on the desire to ensure diversity in schools and to avoid isolating students, which are the reasons Justice Anthony M. Kennedy advocated in his opinion, said Maree Sneed, IPS' Washington-based lawyer.
"Indianapolis has said that it's important to have diverse schools," said Sneed, who also represented Seattle in its case before the Supreme Court.
She said IPS will review the ruling to ensure the district doesn't need to refine its policies, but it appears IPS need not make changes.
Other districts in the area said they don't use race as a factor. Lawrence Township Schools changed its policies recently to assign students based on other factors, such as socioeconomic status.
Warren, Washington and Wayne townships confirmed they don't consider race.
Officials with the Indiana School Boards Association said they knew of no other Indiana districts that took race into account, and association lawyers could not recall any districts that had made inquiries about the topic.
Ind. Decisions - More on U.S. Supreme Court opinion in Panetti issued
In this ILB entry on the U.S. Supreme Court's ruling yesterday in Panetti v. Quarterman (née Drake), the ILB quoted the Jan. 17th order of our Supreme Court staying the pending execution of Norman Timberlake based on the SCOTUS grant of cert in the Texas Panetti case and the likelihood that the high court "may soon revisit and address the application of the Eighth Amendment to claims that mental illness bars execution."
Today in a lengthy story in the Louisville Courier Journal, Lesley Stedman Weidenbener looks at the implications of the Panetti ruling for Norman Timberlake. Some quotes:
[Gary Secrest, the Indiana Attorney General's section chief for appeals and capital cases] and Timberlake's lawyer yesterday had different views on the Panetti ruling's impact.
"It's our belief that Norman is as sick if not sicker" than the defendant in the Texas case, said Timberlake's attorney, Brent Westerfeld.
And Paula Sites, assistant director of the Indiana Public Defender Council, said the U.S. Supreme Court's decision is a good one for Timberlake because it means he'll likely be entitled to a hearing to determine whether he is too delusional to understand why he's being executed.
But Secrest said the high court's decision simply makes clear that Indiana already applies the correct standard for determining whether a defendant is so mentally ill that the death penalty would be unconstitutional. * * *
Yesterday's ruling did not establish new guidelines for courts to use in determining whether a defendant's mental illness makes the death penalty unconstitutional.
"They don't give a short, catchy new standard," said Andrea Keilen, executive director of the Texas Defender Service. But the court said "you have to consider someone's severe mental illness as a factor in whether the person has a rational understanding and appreciates the connection between the crime and punishment."
According to a court-appointed psychiatrist, Timberlake "believes that he is the subject of torture by a computer-driven machine operated by prison officials 24 hours a day, seven days a week." However, Timberlake also retains the "capacity to understand that he is about to be executed and why," the psychiatrist said.
The latter is why the attorney general's office believes "it's pretty clear" that the Texas decision will allow Timberlake's death sentence to stand, Secrest said.
But Westerfeld said, "Norman believes he's being executed because he's trying to prove the government" is using the computer-driven machine to torture him. "He's been thoroughly convinced that machine exists and he's being killed because he's been trying to prove that for a number of years now."
Ind. Courts - More on: Allen County Judge recuses herself in case where son has role
The U.S. Army says a Fort Wayne attorney was not correct when he told a judge that a recruiter – possibly the judge’s son – misled a woman about the status of her criminal charges.
Defense attorney Al Anzini told Allen Superior Court Judge Fran Gull that his client had enlisted in the Army and left the state for training because her recruiter convinced her the charges had been dropped.
Gull recused herself from the case Wednesday after Anzini filed paperwork that appeared to show Gull’s son – Sgt. Cody Gull – was the recruiter. She had previously refused to do so because she believed the case only involved her son’s recruiting station, not her son.
On Thursday, Mary Auer, public affairs officer for the U.S. Army’s Indiana Recruiting District, said Sgt. Gull was not the woman’s recruiter. She also said numerous background checks, including one by the FBI, showed that the woman had no pending charges.
Ind. Courts - "Attorney, defendant fail to show up for trial"
Nick Werner reports today in the Muncie Star-Press:
MUNCIE -- An Indianapolis defense attorney who failed to appear in court for a Thursday trial could face contempt charges and will be fined for the cost of trial preparations, a judge said.
Delaware Circuit Court 5 Judge Wayne Lennington sent home 28 prospective jurors after waiting unsuccessfully for an hour Thursday morning for attorney Kimberly Powell and her client, Kyle Ivy, 23, to show up.
The judge apologized on behalf of the attorney for wasting their time and taxes.
"We spent $831.16 of your money to get this far and now there's nothing we can do because we don't have a defendant and we don't have an attorney," Lennington said.
The calculated loss included labor for court employees, copy costs for juror questionnaires and other papers, postage, and the $15 stipend that jurors receive for going through jury selection before trial.
It did not include overtime for Delaware County Sheriff's Deputy Scott Brand, a witness in the trial, which will be calculated in later, the judge said.
Lennington said he would recover the money from Powell.
The judge also set a hearing for July 10 in which Powell must show cause why the judge should not hold her in contempt of court. Lennington did not rule out jail time should he find her guilty.
Lennington said he would notify the Indiana Supreme Court Disciplinary Commission of the problem.
The judge held a 10-minute hearing Thursday morning in the presence of the jurors in which assistant court reporter Chris Doerner testified that he mailed a notice of the trial to Powell's office and tried reaching her by phone to remind her.
Efforts to reach her by phone failed, Doerner said, because her phone had been disconnected.
By Thursday afternoon, the court had yet to reach Powell.
Thursday, June 28, 2007
Ind. Courts - U.S. Senate unanimously confirms Joseph S. Van Bokkelen to serve as U.S. District Judge for the Northern District of Indiana [Updated]
A press release this afternoon begins:
U.S. Sen. Dick Lugar announced today that the U.S. Senate unanimously confirmed Joseph S. Van Bokkelen to serve as U.S. District Judge for the Northern District of Indiana:[Hat tip to Fort Wayne Observed]
“I congratulate Joe Van Bokkelen on his Senate confirmation. His performance as U.S. Attorney for the Northern District of Indiana has been nothing short of remarkable and I am confident that he will approach his judgeship with the same enthusiasm and proficiency.
“Judge Rudy Lozano has been a remarkable leader on the Federal bench and we look forward to his continued leadership as he assumes senior status."
[Updated 6/29/07] "Van Bokkelen wins confirmation" is the headline to a story today in the Gary Post-Tribune by Andy Grimm that begins:
U.S. Attorney Joseph Van Bokkelen, whose prosecutions of crooked politicians made him one of Northwest Indiana's most popular and prominent public officials, has been confirmed as federal judge for Northern Indiana District of Indiana.Dan Hinkel writes in the NWI Times:
The U.S. Senate on Thursday afternoon approved the Highland resident to replace Judge Rudy Lozano, who will take senior status -- essentially taking on a partial caseload -- in July.
"I'm going to go home and try to pull my head out of the clouds," Van Bokkelen said Thursday as he stood outside the ceremonial courtroom at the Hammond Federal Building, the room that will become his office.
"I always thought it would be neat to be a federal judge."
The veteran trial lawyer said he was "honored" to be suggested by Republican Sen. Dick Lugar, nominated by President Bush and confirmed by the Senate.
Van Bokkelen said he is proud of a U.S. attorney's office staff that has done its job with "dignity" since President Bush appointed him a U.S. attorney in 2001. In six years, Van Bokkelen's office has tallied dozens of public corruption indictments and convictions while also attacking gun and drug cases.
"What I'm most proud of is the professionalism of the office," he said.
Lugar called Van Bokkelen this afternoon to tell the attorney he was unanimously confirmed by the full Senate, Van Bokkelen said. Lugar praised Van Bokkelen for his aggressive pursuit of corrupt officials and his prosecutions of gun and drug crimes.
Ind. Courts - New court in Monroe County to cost $1.38 million
The Blooomington Herald Times has a story today ($$$) by James Boyd that begins:
The new Monroe County court, slated to come online on Jan. 1, 2008, will require 18 employees, supplies and equipment at a cost of about $1.38 million.
Judicial officials presented their plan Wednesday night to the county council on how much it’s going to cost and how they think it should be paid for.
The $1.38 million will be paid for through an excess levy.
But if history is any indication, Monroe County can expect to have that figure trimmed down by the state.
The county proposed a $1.5 million increase in property taxes to pay for the court that began in 2006, but saw that figure dwindle to about $1 million after the state Department of Local Government Finance got its hands on it.
There hasn’t been a determination yet as to what kind of court the new one will be. It could be civil, criminal or a combination of the two.
Either way, it will require a new judge, three court reporters, two bailiffs, seven probation officers, three clerks, a court administrator and a justice information specialist.
Law - Register today for Sept. 14 conference featuring Justice Alito
Register today for the Sept. 14 conference featuring Justice Alito at the IU Indianapolis law school. Only 125 seats.
Ind. Decisions - Court of Appeals issues 4 today (and 10NFP)
For publication opinions today (4):
In Robert M. O'Brien d/b/a Links Mortgage v. 1st Source Bank , a 12-page opinion, Judge Najam writes:
Robert M. O’Brien appeals from the trial court’s grant of summary judgment on the breach of contract claims of 1st Source Bank (“Bank”). O’Brien presents a single issue for our review, namely, whether the Bank acquired an enforceable lease against O’Brien from the bankruptcy of the Bank’s borrower. We affirm and remand with instructions.Pinnacle Media is a familiar case, it went to the Supreme Court, including a rehearing denial, last year. See this ILB entry from May 3, 2006. Today, in Pinnacle Media, LLC v. Metropolitan Development Commission of Marion County and the Department of Metropolitan Development of the City of Indianapolis , a 10page opinion, Judge Najam writes:
Pinnacle Media, L.L.C. (“Pinnacle”) appeals from the trial court’s order denying its motion to amend its complaint in Pinnacle’s declaratory judgment action against the Metropolitan Development Commission of Marion County and the Department of Metropolitan Development of the City of Indianapolis (collectively “the City”).Henry D. Hull v. State of Indiana "Henry Hull appeals the order that his suspended sentence be executed, arguing the trial court should have offered him the opportunity to speak at his hearing. We affirm. * * * Because Hull neither asked to speak nor objected to the lack of opportunity to speak, he waived his right of allocution."
Pinnacle raises two issues on appeal, which we restate as: 1. Whether res judicata bars Pinnacle’s proposed amended complaint. 2. Whether the trial court erred when it refused to apply Indiana Code Section 36-7-4-1109 to the claims raised in Pinnacle’s amended complaint. * * *
[The Court rules that res judicata applies, and as to issue 2] The law-of-the-case doctrine provides that an appellate court’s determination of a legal issue binds both the trial court and the court on appeal in any subsequent appeal involving the same case and substantially the same facts. The purpose of the doctrine is to minimize unnecessary relitigation of legal issues once they have been resolved by an appellate court. Accordingly, under the law-of-the-case doctrine, relitigation is barred for all issues decided “directly or by implication in a prior decision.” However, where new facts are elicited upon remand that materially affect the questions at issue, the court upon remand may apply the law to the new facts as subsequently found.
Because Pinnacle has already asked our Supreme Court to apply Indiana Code Section 36-7-4-1109 in this case, and the court has declined to do so, the issue has been resolved. Pinnacle does not direct us to “new facts” found since remand to warrant revisiting the issue. The trial court did not err when it did not apply the statute in this case. Affirmed.
In Jeff Doerr v. Lancer Transport Services , an 8-page opinion, Judge May writes:
Jeff Doerr appeals the decision of the Full Worker’s Compensation Board, which held that to reinstate his worker’s compensation claim against his employer, Lancer Transport Services, Doerr was required to pay Lancer the sums he obtained in a settlement reached with the third-party tortfeasor without Lancer’s knowledge or consent. Lancer cross-appeals alleging the Full Board erred when it reversed the Single Hearing Member’s decision to dismiss Doerr’s worker’s compensation claim. Finding the Single Hearing Member correctly dismissed Doerr’s claim, we reverse. * * *NFP civil opinions today (2):
Paragraph Two of Ind. Code § 22-3-2-13 requires us to hold Doerr’s settlement with the third-party tortfeasor without the written consent of Lancer or Legion, relieved Lancer of liability for Doerr’s worker’s compensation claim. If the legislature intended a different result under these facts, then we must leave it to the legislature to modify Ind. Code § 22-3-2-13. The decision of the Full Worker’s Compensation Board is reversed, and Doerr’s application for adjustment is dismissed.
Oscar Guillen, Sr. v. Kerusso Properties (NFP) - "Guillen argues he is entitled to prejudgment interest under Ind. Code § 34-51-4-7, which provides: “The court may award prejudgment interest as part of a judgment.” However, this statute applies only to a “civil action arising out of tortious conduct.” Ind. Code § 34-51-4-1. Guillen’s claim sounds in contract and not in tort. Guillen has failed to establish prima facie error and we accordingly affirm."
Roy Alan Veatch v. Karen Veatch (NFP) - "Concluding that the trial court did not abuse its discretion with regard to parenting time, but that the court erred by dividing the marital assets without giving clear consideration to all the relevant statutory elements, we affirm in part and remand for a redetermination of the division and distribution of the parties’ marital assets."
NFP criminal opinions today (8):
Ind. Decisions - 7th Circuit issues one today
In Carolyn Kochert v. Adagen Medical (ND Ind., Allen Sharp, Judge), a 10-page opinion, Judge Sykes writes:
This appeal presents the question whether a claim for fraudulent inducement of a contract is subject to the contract’s forum-selection clause, and if so, whether the district court correctly dismissed this suit for improper venue. Carolyn Kochert, a medical doctor based in Lafayette, Indiana, filed a single-count complaint in federal court in the Northern District of Indiana seeking damages against Adagen Medical International, Inc., and North American Medical Corporation (collectively “Adagen”), each with principal places of business in Georgia. Kochert alleged Adagen made fraudulent written and verbal representations to induce her to enter into a contract to purchase a piece of medical equipment. The district court dismissed Kochert’s complaint for improper venue, citing the contract’s “Governing Law/Venue/Forum” clause, which provides (among other things) that Kochert consents to “jurisdiction, venue and forum in the State Court of Fulton County, Georgia.” The court took the view that any misrepresentation forming the basis of Kochert’s fraudulent inducement claim “necessarily” became “part of” the contract, making the claim subject to the forum-selection clause.
We affirm, but on different reasoning. A misrepresentation made in the inducement of a contract is not “necessarily” incorporated into the contract. A fraudulent inducement claim generally requires an election of remedies: either affirm the contract, retain the benefits, and seek damages, or rescind the contract, return the benefits, and seek restitution (reimbursement for expenses incurred as a result of the fraud). Here, Kochert elected to affirm the contract and sue for damages; that election, however, does not necessarily make the alleged misrepresentation “part of” the contract, as the district court apparently thought was required for the forum-selection clause to apply.
But dismissal for improper venue was correct in any event. The forum-selection clause contains no language limiting its application to certain categories of claims or remedies. The parties agreed to the State Court of Fulton County, Georgia, as the place of “jurisdiction, venue and forum” for disputes about their respective rights and obligations without regard to the nature of the claim; that choice is valid, enforceable, and broad enough to apply to Kochert’s fraudulent inducement claim.
Law - "U.S. Supreme Court strikes down school integration plans"
Concluding its current Term with a historic ruling on race in public policy, the Supreme Court divided 5-4 on Thursday in striking down voluntary integration plans in the public schools of Seattle and Louisville. Chief Justice John G. Roberts, Jr., wrote the majority opinion in the combined cases. Justice Anthony M. Kennedy did not join all of the majority opinion, but joined in the result.Access the 185-page rulings, via SCOTUS blog, here. Denniston outlines the features of the Seattle and Louisville school plans here.
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Roberts wrote. On the two school plans, the majority found that the districts have "failed to provide the necessary support for the proposition that there is no other way than individual racial classifications to avoid racial isolation in their school districts."
The Chief Justice, in his oral announcement of the ruling, insisted that the Court was remaining faithful to Brown v. Board of Education in barring public school districts from assigning students on the basis of race. Answering that, Justice John Paul Stevens said in dissent that there was a "cruel irony" in making that claim, because it involved a rewriting of the history "of one of this Court's most important decisions." Stevens noted that he joined the Court in 1975, and asserted that "no member of the Court" at that time "would have agreed with today's decision."
Ind. Decisions - U.S. Supreme Court opinion in Panetti issued
A recent development suggests that the Supreme Court of the United States may soon revisit and address the application of the Eighth Amendment to claims that mental illness bars execution. On January 5, 2007, the Supreme Court granted certiorari to the Court of Appeals for the Fifth Circuit in Panetti v. Drake. * * *See the Jan. 17 and Jan. 18 ILB entries.
Timberlake's situation is sufficiently similar to Panetti's that a stay of Timberlake's impending execution is appropriate.
See Prof. Orin Kerr's entry on the decision here. He quotes the "key passage" from today's ruling:
Gross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose. It is therefore error to derive from Ford, and the substantive standard for incompetency its opinions broadly identify, a strict test for competency that treats delusional beliefs as irrelevant once the prisoner is aware the State has identified the link between his crime and the punishment to be inflicted.
Ind. Courts - Federal trial involving what constitutes illegal speech on the Internet goes to jury today
Joe Carlson of the NWI Times has been covering an interesting trial in federal court this week - here is a complete list of stories. The trial, in U.S. District Court in Hammond, involves "Vikram Buddhi, an Indian national who has lived in the United States for more than a decade while attending engineering classes at Purdue University," according to this story from June 20th:
Prosecutors say that on three occasions in December 2005 and January 2006, Buddhi posted messages in Yahoo! Finance message boards urging Iraqi militants to kill the president and other government figures and to attack Americans.From the June 26th story on jury selection:
"Kill GW Bush ... Rape And Kill Laura Bush ... Kill Donald Rumsfeld The Old Geezer Crook ... Rape And Kill The Anglosaxon Republicans," Buddhi wrote Dec. 15, 2005, in a message board devoted to chatter about the technology company JDS Uniphase.
Martin has said that although the speech was admittedly crude and offensive, it was protected by the First Amendment because the messages were intended as a protest of the Iraq War, not "true threats" that Buddhi intended someone to carry out.
Martin already has tried to convince Moody to dismiss the case on First Amendment grounds, but the judge ruled that only a jury could decide what Buddhi's true intentions were in posting the messages.
Assistant U.S. Attorney Philip Benson disclosed in court files that he intends to argue at trial that Buddhi's attempts to use other Purdue students' Internet Protocol addresses to conceal his online identity is evidence of his guilt.
Although the advanced engineering student used other people's IP addresses, Purdue eventually connected Buddhi with the postings using a second type of digital identifier called a Media Access Control address.
"Buddhi's use of stolen IP addresses to conceal his computer's identity is no different from a defendant who uses a false ID to hide his identity while committing a crime," Benson wrote.
Asked about Internet use, only one of the initial 15 jurors said he had ever read an Internet blog. [U.S. District Judge James Moody] even said he did not know what a blog was.Reporter Carlson's June 27th story relates that Secret Service Special Agent Wade Gault, on April 13th, arrested Buddhi and:
had search warrants executed on his apartment. In recent e-mails to prosecution witnesses, Gault wrote, "This case is very important and it could lay a new foundation of what is free speech and what is not."Today's story reports:
Buddhi has argued his comments are political protest and protected by the First Amendment.
Gault said the law is clear that such threats against the president's life are illegal.
"Those are statements that as far as I know have always been prosecuted by the Secret Service," Gault said in court Tuesday. "If it was determined by this court that you could say those words and not be prosecuted, that would be something new."
At issue are five messages Buddhi posted to Yahoo! financial message boards in December 2005 and January 2006, three of which bore the headline, "Call for the assassination of GW Bush."
Gault said the long delay in arresting Buddhi came because Yahoo was slow in responding to subpoenas, and because Purdue computer experts had to take time to unravel Buddhi's method of disguising his identity.
HAMMOND | Vikram Buddhi, charged with using Internet forums to call for the killing of President Bush, put his fate in the hands of an obscure New York stock analyst Wednesday.
Buddhi's attorneys are hoping that a scalding series of insults hurled at Bank of America analyst Jonathan Jacoby in an online forum in 2005 can help them prove the point that nasty communication is common on the Internet. * * *
"It should be illegal speech," said Texan Hayward McMurray, a prosecution witness who first reported Buddhi's comments to the Secret Service. "I don't consider free speech as calling for the rape and murder of anyone."
Defense attorney John Martin has argued that the comments never were intended as true threats, but rather a part of a crude protest of the Iraq War.
McMurray said he had never seen anything so shocking in an online forum before.
But in a surprise move Wednesday, Martin said his legal team had just discovered other vicious messages on the same financial news forum, posted minutes after the Dec. 13, 2005, message that led McMurray to complain.
The messages called for Jacoby to be mugged and murdered because he downgraded his rating of a satellite radio stock. The message writers said Jacoby's family should be murdered in front of him and that he should be raped by a gang of men.
After trying unsuccessfully to convince U.S. District Judge James Moody not to admit the new evidence, Benson said the messages were irrelevant. And because of the late notice, the government had not had time to investigate whether the people who wrote the messages had been prosecuted.
Buddhi is an Indian national who has lived legally in Indiana for more than a decade while attending advanced math and physics classes at Purdue University in West Lafayette. He was charged with 11 crimes for posting the five messages.
Secret Service Special Agent Wade Gault has said the Buddhi case is significant because it could set a new legal precedent for what constitutes illegal speech on the Internet.
Closing arguments are scheduled this morning.
Ind. Courts - Allen County Judge recuses herself in case where son has role
From the Fort Wayne Journal Gazette, a story by Dionne Waugh:
Allen Superior Court Judge Fran Gull recused herself from a case Wednesday after learning her son, an Army recruiter, was involved in the case.
When Ericka M. Anderson did not appear in court June 18 for a pretrial hearing, her defense attorney, Al Anzini, told the judge her Army recruiter – later identified in documents as Army Sgt. Cody C. Gull – had convinced Anderson the charges against her had been dropped. * * *
Court officials were notified in May when Anderson did not appear for an appointment. Officials told the court they’d discovered Anderson had enlisted in the Army and was at Fort Leonard Wood, Miss. Without permission to leave the state, Anderson was in violation of her bond.
Last week, Fran Gull revoked Anderson’s bond for the violation but declined to recuse herself despite a request from Anzini. At the time, she said she had no reason to recuse herself even though the case involved her son’s recruiting station.
On Wednesday, when Anderson appeared in court, Judge Gull recused herself from the case upon learning her son was Anderson’s recruiter. She did not know her son was the recruiter last week, only that it was his recruiting station, she said.
Ind. Decisions - "McManus returns to death row: State reverses ruling"
An Evansville man convicted of killing his wife and two children is not mentally retarded and therefore is eligible for the death penalty, the Indiana Supreme Court ruled Tuesday.
The state's highest court overturned a lower-court ruling that had declared Paul M. McManus could not be executed because he met the legal standard for mental retardation. * * *
A jury in 2002 rejected his insanity defense and convicted him of three counts of murder. McManus was sentenced to death.
McManus' appellate attorneys filed an appeal called a post-conviction relief petition, which a Vanderburgh County judge, Senior Judge William Brune, partially granted last year. Based on mental health experts who testified at the appellate hearing but not at the original trial, Brune found that McManus fit the legal standard for mental retardation, and therefore under a state statute and a 2002 U.S. Supreme Court ruling, McManus could not face execution. Brune altered McManus' sentence to life without parole. * * *
Written by Chief Justice Randall Shepard, the 19-page majority decision [issued yesterday] analyzes the mental health experts' testimony from McManus' hearing last year. Of the five IQ tests McManus has taken since childhood, he scored above the retardation level of 70 to 75 on three of them, and was borderline on the other two, Shepard wrote. Although Brune's ruling "concluded McManus was significantly sub-average as to intellectual functioning," Shepard wrote, "this finding is not supported by the record and is clearly erroneous." Four other issues raised in the appeal were also decided in favor of the prosecution.
Ind. Decisions - "Court overturns death penalty in child's murder"
A federal appeals court has overturned the death penalty for a man who raped and murdered a 10-year-old boy while on parole for child molesting -- a crime that led to the creation of the Indiana Sex Offender Registry.
Jurors might have spared Christopher M. Stevens if his attorneys had presented adequate evidence of his mental illness, the 7th U.S. Circuit Court of Appeals in Chicago concluded. * * *
"In this case, we find a reasonable probability ... that the result would have been different if the jury had heard mainstream expert psychological testimony," Judge Diane P. Wood wrote in the 2-1 ruling that found Stevens' defense inadequate.
Other experts who testified at hearings on post-conviction relief said Stevens likely suffered from a dissociative disorder, in which parts of the mind can be closed to each other, triggered by a childhood history as a victim of abuse. * * *
The June 18 ruling stopped short of overturning Stevens' conviction, though Judge Kenneth F. Ripple wrote in a separate concurring opinion that he believed that Stevens might not have been found guilty if a proper mental-illness defense had been mounted.
Judge Daniel A. Manion dissented, saying he believed the sentence should stand.
Law - More on "High court ends ban on corporate-funded campaign ads"
Terre Haute attorney James Bopp Jr. got his fourth career victory in the U.S. Supreme Court on Monday when the high court ruled to allow “grass roots lobbying” that mentions a federal political candidate’s name just before an election.
The 5-4 decision came in the case of Federal Election Commission vs. Wisconsin Right to Life, whom Bopp was representing.
“It’s a huge victory,” Bopp said of the decision. “The court gave us more than we asked for.” * * *
“It was a huge victory,” Bopp repeated. “[The Supreme Court] has really seriously limited the application of that very broad [McCain-Feingold] law.”
Sen. John McCain (R-Ariz.), a co-author of the McCain-Feingold law, called the court’s ruling “regrettable,” but he characterized it as a “narrow exception” to the existing law.
Bopp disagrees, saying the court’s ruling makes it clear that the “blackout” period will only apply to advertisements that are clearly advocating for or against a specific federal candidate.
Bopp also believes that if McCain and others make enforcing the court’s Monday decision difficult, it’s possible a future decision would overturn the entire law.
“If there is defiance [to the court’s ruling] … I think they will strike down the whole law,” Bopp said.
This was the fifth case Bopp has argued before the Supreme Court – and his fourth victory in that setting.
Ind. Decisions - Tippecanoe Court upholds ordinance banning smoking
Joe Gerrety of the Lafayette Journal & Courier reports:
West Lafayette's workplace smoking ban will go into effect on Sunday.The ILB is pleased to note that the J&C story includes a link to Judge Bursch's 8-page opinion, which the J&C has posted online - access it here.
Judge Thomas Busch of Tippecanoe Superior Court 2 on Wednesday granted a motion for summary judgment in favor of the city and against two plaintiffs -- Harry's Chocolate Shop, a West Lafayette bar; and David Rollings, a bartender and manager at the Wabash Yacht Club.
The plaintiffs filed a lawsuit in March seeking a declaratory judgment and court order prohibiting the city from enforcing the ban.
"The desire of the plaintiffs to continue to operate as they have done in the past is understandable," Busch wrote in an eight-page order upholding the smoking ban.
"The city could have accommodated this interest by granting all bars the option of allowing or forbidding smoking. However, the City Council decided to draw the line in a different place. ... The plaintiffs' remedies are in the political process, not the courts." * * *
The plaintiffs alleged that the ordinance violates the equal privileges and immunities clause of the Indiana Constitution because it exempts certain businesses, giving those businesses and their employees privileges denied the plaintiffs.
The most controversial exemption built into the ordinance appears to affect only one business -- Hookah!, a restaurant in Chauncey Hill Mall a few doors down from the Wabash Yacht Club where the main attraction is flavored tobacco smoked through rented pipes.
Such "tobacco bars," defined as establishments that derive at least 25 percent of their revenue from the sale of tobacco products and the rental of smoking devices, are exempt from the ban.
Wednesday, June 27, 2007
Ind. Decisions - "Ruling supports Carmel annexation" [Updated]
Bill Ruthhart of the Indianapolis Star reports this afternoon on the Supreme Court decision earlier today in the case of City of Carmel, Indiana v. Certain Southwest Clay Township Annexation Territory Landowners (see ILB entry here - 3rd case). Some quotes:
In an opinion released this afternoon, the Indiana Supreme Court has ruled Carmel should be allowed to annex southwest Clay Township.For background, start with this March 8, 2007 ILB entry.
The 5-0 opinion from the state's highest court overrules a Hamilton County judge's 2006 ruling that Carmel could not annex some of the state's wealthiest neighborhoods.
In question was a 2005 agreement between the city and a group called No Ordinance for Annexation, or NOAX.
NOAX had collected petitions against Carmel's attempt to annex the 8.3-square-mile area, roughly located west of U.S. 31, north of 96th Street, east of the Boone County line and south of 116th Street.
As required by state law, NOAX collected petitions against annexation from more than 65 percent of homeowners in the area. NOAX then entered negotiations with the city and Mayor Jim Brainard. * * *
NOAX dropped its court challenge to the annexation after the deal, but a second group, the Southwest Clay Community Association, picked up the fight. That association argued NOAX didn't have the authority to strike a deal on behalf of all homeowners.
In the Hamilton County court, Judge William Hughes, agreed, throwing out the agreement.
Today, the Indiana Supreme Court overruled that opinion, granting Carmel the right to annex southwest Clay under the deal with NOAX.
[Updated 6/28/07] This morning Bil Ruthhart of the story has long and comprehensive coverage of yesterday's opinion, including these quotes:
The court's 5-0 ruling eventually will affect the pocketbooks of some of Indiana's wealthiest residents while increasing the tax revenues of one of the state's most affluent cities.More from the story:
But interest in the annexation case extended far beyond Carmel, as communities from South Bend to Jeffersonville looked to a Supreme Court ruling as guidance on how to conduct future annexations. The Carmel decision marked the first time the state's highest court has ruled on current annexation law.
"Everyone -- cities and towns all over Indiana -- have been waiting for the Supreme Court to interpret this annexation statute," Carmel Mayor Jim Brainard said. "For that reason, this is a landmark case."
Fishers Town Council President Scott Faultless said the decision will be key in whether his town moves forward with plans to annex more than 2,000 properties in the wealthy waterfront community of Geist. Wednesday's ruling also likely will affect Carmel's annexation of Home Place, a case pending before the Indiana Court of Appeals.Here is the heart of the decision:
But the most immediate effect will be felt in southwest Clay Township, where the nearly 10,000 residents who call some of Indiana's most exclusive neighborhoods home will soon become part of Carmel.
"The organization leading the remonstrance negotiated favorable terms with the city and decided to settle," Shepard wrote in the opinion. "In a referendum among landowners, a majority voted in favor of settling. We conclude they were entitled to do so, and reverse the trial court's judgment which effectively held otherwise."Rebecca Berfanger wrote late yesterday in the Indianapolis Business Journal:
Michael Shaver, an annexation consultant who has done work for Carmel and several other cities and towns across the state, said the Supreme Court's ruling effectively sets the NOAX deal as an example for other communities and property owners to follow.
"I really think this is not just a victory for Carmel, but a victory for democracy," Shaver said. "Carmel went to a lot of trouble to deal with the NOAX folks in an honest way, came up with an offer that was substantially better and then held a referendum to make sure people agreed with it.
"That was the center of the Supreme Court's decision: When you go to that kind of effort, a judge just can't ignore it."
The ruling makes Carmel's deal with NOAX effective this fall. Since that agreement calls for a three-year annexation delay, southwest Clay residents would not officially become part of Carmel until 2010.
Even then, they won't pay the full municipal tax rate because of the tax-break deal NOAX negotiated. Homeowners wouldn't pay the full municipal rate until 2013.
“The decision confirms that the Supreme Court is committed to the idea of reinforcing a legislative system that empowers municipalities to annex land if the conditions of the statute are met,” [Bryan Babb, an attorney who represents Carmel] said. “Hiring an expert to poke holes in a city’s fiscal plan isn’t enough to stop an annexation that is done properly.”
The opinion also will help parties in annexation cases around the state, including those who face similar issues and who filed amici briefs on this case, Babb said, because “this opinion—for the first time ever—interprets the difference between signing a remonstrance and opposing an annexation. In this case, the trial court equated the two.”
“This opinion reinforces what the court has been saying for years now, that judges shouldn’t micromanage annexations,” Babb added. “There are important public-policy benefits from allowing annexations to go forward when they are done under proper conditions. In almost every annexation, there will be a vocal minority which will not want to be annexed, but that shouldn’t be enough to stop the annexation when done properly.”
Ind. Decisions - Court of Appeals issues 4 today (and 6 NFP)
For publication opinions today (4):
Guardianship of Patrick Atkins; Brett Conrad v. Thomas Atkins and Jeanne Atkins - The question here is whether Brett, Patrick's life partner for 25 years, would be permitted visitation and contact with Patrick, who had had a stroke, over objections of Patrick's parents. The decision is 2-1, with a dissent beginning on p. 19. Chief Judge Baker writes:
We find, among other things, that although the trial court did not abuse its discretion by naming the Atkinses to be Patrick’s co-guardians, there is overwhelming evidence in the record establishing that it is in Patrick’s best interest to continue to have contact with Brett, his life partner of twenty-five years. We also find that the trial court erroneously refused Brett’s request to have a portion of his attorney fees and costs paid by the guardianship estate. Thus, we affirm in part, reverse in part, and remand with instructions to grant Brett the visitation and contact with Patrick that he requested and to calculate the amount of Brett’s attorney fees and costs to be paid by the guardianship estate. * * *In Beth Palmer Kopczynski v. David Bryan Barger and Peggy Lucas Barger , a 19-page, 2-1 opinion, Chief Judge Baker writes:
Conclusion. We are confronted here with the heartbreaking fracture of a family. Brett and Patrick have spent twenty-five years together as life partners—longer than Patrick lived at home with his parents—and their future life together has been destroyed by Patrick’s tragic medical condition and by the Atkinses’ unwillingness to accept their son’s lifestyle.
Although we are compelled to affirm the trial court’s order that the Atkinses be appointed Patrick’s co-guardians under our standard of review, we reverse the trial court with respect to Brett’s request for visitation, inasmuch as all credible evidence in the record establishes that it is in Patrick’s best interest to continue to have contact with his life partner. We also find that the trial court should have required Patrick’s presence at the hearing but that Patrick’s GAL waived that right by failing to enforce it. Additionally, we conclude that the trial court properly set off the entirety of the Charles Schwab account to the guardianship estate. Finally, we find that the trial court erroneously refused Brett’s request that the guardianship estate pay a portion of his attorney fees and costs and remand for a calculation of the amount to be paid therefrom. * * *
ROBB, J., concurs.
DARDEN, J., dissents with opinion: I would respectfully dissent from the majority’s conclusion that the trial court erred when it did not enter an order granting Brett’s request for his visitation and contact with Patrick. * * *
When the majority concludes that “the overwhelming wealth of evidence in the record, as well as common sense” supports the determination that visitation should be ordered, I believe that it has impermissibly substituted its judgment for that of the trial court. * * *
Here, the trial court did not find that Patrick’s welfare would be best served by limiting the scope of the Atkinses’ co-guardianship. The majority opinion necessarily implies such a finding by the trial court. To such a conclusion I would also respectfully dissent and suggest that the majority has impermissibly reweighed the evidence and assessed witness credibility in violation of our long accepted standard of review.
[T]the Palmers claim that summary judgment was improper because there was a genuine issue of material fact as to whether the Bargers were negligent in allowing Alisha to play on their trampoline without any supervision. Alternatively, the Palmers contend that the Bargers should be held liable for the injuries that Alisha sustained because the trampoline was an attractive nuisance. Concluding that summary judgment was properly entered for the Bargers, we affirm the judgment of the trial court. * * *In Pam Kuehne and Larry Kuehne v. United Parcel Service, Inc., a 13-page opinion, Chief Judge Baker writes:
In essence, the designated evidence established that Alisha knew of the trampoline’s dangers, and the record is devoid of any evidence that there was any hidden peril that Alisha could not have comprehended.
There is also no evidence that the Bargers knew that children might trespass on their property and be injured by the trampoline. As noted above, there was no communication or interaction between the Bargers and the Palmers before the accident occurred. In our view, this lack of interaction between the families supports the notion that the Bargers would not anticipate that Alisha would enter their property and use the trampoline. Moreover, Beth had specifically instructed her children not to wander on to the neighbors’ property. Finally, the designated evidence established that the Bargers permitted other children on the trampoline only if the adults had invited them onto the property.
In light of this evidence, it is apparent that the Bargers had no reason to know that Alisha might enter their property and jump on the trampoline without their express permission. Thus, the Palmers have failed to show that the Bargers may be held liable for Alisha’s injuries under an attractive nuisance theory. While we are sympathetic to Alisha’s plight, we conclude that summary judgment was properly entered for the Bargers. The judgment of the trial court is affirmed.
FRIEDLANDER, J., concurs.
CRONE, J., dissents with opinion. [that begins] I respectfully disagree with the majority’s conclusion that Alisha was a trespasser and that the trampoline was not an attractive nuisance as a matter of law. Therefore, I dissent.
In this case, we are asked to resolve an issue of first impression in Indiana. Appellants-plaintiffs Pam and Larry Kuehne (collectively, the Kuehnes) appeal the grant of summary judgment in favor of appellee-defendant United Parcel Service, Inc. (UPS), regarding their claim against UPS for negligence after Pam tripped over a package that a UPS driver left on the Kuehnes’ doorstep. Specifically, the Kuehnes argue that the trial court erred in determining that their claims against UPS were preempted by federal law. In response, UPS argues that the Kuehnes’ claims are preempted because “Congress has barred the application of state laws to determine how UPS provides its services.” Concluding that the Kuehnes’ claims against UPS are not preempted by federal law, we hold that summary judgment was improperly entered for UPS. Thus, we reverse the judgment of the trial court and remand this cause for trial.Alexander C. Thompson v. Carmen M. Thompson - "Our Supreme Court has ruled that the question of the proper treatment of the Social Security retirement benefits received by a child in calculating child support should be left to the sound discretion of the trial court. We hold that a trial court abuses that discretion in setting support at a level that varies to such an extent from the standard of living that the child would have enjoyed had the family remained intact and that devotes substantially higher percentages of total family income to such support for families receiving Social Security benefits than those that do not. Accordingly, we reverse the trial court’s support calculation and remand for a recalculation of the support obligation consistent with this opinion."
NFP civil opinions today (3):
Robyn Hayden v. The Guardianship of D.H., a minor child (NFP) - guardianship, affirmed.
Charles E. DeMorrow v. Eunice L. DeMorrow (NFP) - property settlement agreement, affirmed.
Mitzi Ruth Stephens n/k/a Mitzi Ruth Elliott v. Kevin Ray Stephens (NFP) - "We conclude that Elliott has not demonstrated that the trial court improperly ordered that she must reimburse Stephens for college expenses he advanced due to Elliott’s failure to meet her obligation. Affirmed."
NFP criminal opinions today (3):
Ind. Decisions - Supreme Court posts three
In Tina M. Grant v. Gregory J. Hager, an 8-page (including the dissent), 3-2 opinion, in a case argued Jan. 18, 2007, Justice Sullivan writes:
Under the circumstances of this case, the trial court ordered a custodial parent to make child support payments to the non-custodial parent based on the court’s reading of the Indiana Child Support Guidelines. We hold that there is a rebuttable presumption that a custodial parent is not required to make child support payments under these circumstances but that a trial court has authority to deviate from that presumption in accordance with the Indiana Child Support Rules and Guidelines. * * *In State of Indiana v. Paul M. McManus, a 20-page, 3-2 opinion, in a case where oral arguments were held April 12, 2007, Chief Justice Shepard writes:
The trial court recognized that Grant was the primary custodial parent but concluded that the Guidelines produced a “negative credit” and required modification of the support order. Accordingly, the trial court entered a judgment modifying child support and ordered Grant, the custodial parent, to pay child support to Hager, the non-custodial parent, in the amount of $92 per week. The parties were also to share certain other child-related expenses for extra-curricular activities in the same proportion as their incomes.
Grant appealed. Although she did not contest the trial court’s application of the Child Support Obligation Worksheet or calculation of Hager’s Parenting Time Credit, Grant argued that because the worksheet after credits produced a negative child support obligation for Hager, the Court of Appeals should terminate child support altogether. Basically, Grant contended that the Guidelines cannot result in a custodial parent paying support to the non-custodial parent. The Court of Appeals agreed and reversed the trial court’s award of child support payable to Hager and remanded with instructions to order that neither party owes the other support under their respective current incomes and their shared parenting time arrangement. * * *
[A] court could order a custodial parent to pay child support to a non-custodial parent based on their respective incomes and parenting time arrangements if the court had concluded that it would be unjust not to do so and the court had made the written finding mandated by Child. Supp. R. 3. The dissolution court’s conclusion here may very well be supportable on this basis but the court did not make the required findings here, apparently believing instead that the Guidelines themselves authorized it to order Grant to pay child support to Hager. We remand this matter to the dissolution court for reconsideration in accordance with the principles enunciated in this decision. * * *
Shepard, C.J., and Rucker, J., concur.
Boehm, J., dissents with a separate 3-page opinion in which Dickson, J., concurs. I believe the trial court properly applied the Guidelines and therefore respectfully dissent. An important purpose of the Indiana Child Support Guidelines is to ensure that children “receive the same proportion of parental income after a dissolution that they would have received if the family had remained intact.” * * *
Disparity of income between the custodial and noncustodial parent coupled with increased shared parenting time may produce a Parenting Time Credit that exceeds a noncustodial parent’s child support obligation. If so, it is appropriate for the trial court to order the financially advantaged custodial parent to make child support payments to the less advantaged noncustodial parent. If that is not done, either the noncustodial parent bears a dis-proportionate share of the cost of maintaining the child or the resources devoted to the child suf-fer. Neither is a desirable result. These considerations may be outweighed by others, but unless and until the Guidelines are adjusted to strike a different balance, a “negative credit” is called for under circumstances such as these. I would affirm the trial court’s order.
Having completed his direct appeal, Paul McManus sought post-conviction relief. The post-conviction court largely rejected his claims, except for his contention that he is mentally retarded. Persuaded by his retardation claim, the post-conviction court vacated the sentence of death and entered a sentence of life without parole. We direct judgment for the State. * * *In City of Carmel, Indiana v. Certain Southwest Clay Township Annexation Territory Landowners, an 11-page, 5-0 opinion, where oral arguments were held March 8, 2007, Chief Justice Shepard writes:
Conclusion. We reverse the post-conviction court’s holding on retardation, but otherwise affirm. Judgment for the State.
Dickson and Sullivan, JJ., concur.
Boehm, J., dissents [in a one-page opinion] with separate opinion, in which Rucker, J., concurs: I respectfully dissent. The majority has stated the applicable law correctly as I understand it. I believe, however, that the majority’s review of the evidence does not give sufficient deference to the trial court’s finding of mental retardation. * * * McManus’s IQ tested at 70 at age 22 and 72 at age 14. Both scores are in the range of intellectual functioning qualifying for mental retardation. The explanation offered that low IQ scores can be attributable to stress or inattention is for the trial court to accept or reject. * * *
We recently affirmed a finding by a trial court that a defendant was not mentally retarded despite significant evidence suggesting that he was. See Pruitt, 834 N.E.2d at 90. In my view the clearly erroneous standard of review dictates affirming this trial court’s determination as to mental retardation as well.
The City of Carmel annexed territory in the southwest corner of Hamilton County representing roughly 3,400 parcels, and remonstrators contested the annexation. The organization leading the remonstrance negotiated favorable terms with the city and decided to settle. In a referendum among landowners, a majority voted in favor of settling. We conclude they were entitled to do so, and reverse the trial court’s judgment which effectively held otherwise. * * *
A substantial number of amici curiae have filed briefs supporting the two sides. We granted transfer under Ind. Appellate Rule 56(A), permitting a direct appeal. * * *
As a threshold issue we must determine what happens if a fiscal plan is amended after a remonstrance is filed, as in this case. The trial court concluded that a fiscal plan is frozen as of the adoption of the annexation ordinance that it supports. In other words, the court held that the fiscal plan supporting the original ordinance could not be amended – even in light of the settlement reached between Carmel and NOAX, confirmed by a majority vote of property owners. * * *
The trial court should have considered the settlement and the fiscal plan supporting the amended ordinance. * * *
We now review the trial court’s findings and conclusions as they bear on Carmel’s amended annexation ordinance and revised fiscal plan. * * * We do not set aside findings or judgments unless they are clearly erroneous, but we review questions of law de novo. * * *
To defeat an otherwise valid ordinance, all conditions of section 13(e)(2) [IC 36-4-3-13(e)(2)] must be met. They were not. Conclusion. We reverse and direct judgment for the City.
Ind. Decisions - 7th Circuit decides Indy Parks equal pay case
In Kimberly M. Sims-Fingers v. City of Indianapolis (SD Ind., V. Sue Shields, Magistrate Judge), a 7-page opinion, Judge Posner writes:
The plaintiff, the manager of a sixacre park owned by the Indianapolis and Marion County park system, complains that she is paid less than some of the male managers in the park system and that the difference in pay violates the Equal Pay Act. (She also claims that it violates Title VII; we take up that claim at the end of our opinion.) The Equal Pay Act requires an employer to pay his male and female employees at the same rate “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” 29 U.S.C. § 206(d)(1). The district court granted summary judgment for the city on both the Equal Pay Act and Title VII claims. * * *
Managing a park with a pool is, as we said, a more responsible job than managing a park without one, other things being the same. How large a wage premium should that greater responsibility command? Who knows? Our society leaves such decisions to the market, to the forces of supply and demand, because there are no good answers to the normative question, or at least no good answers that are within the competence of judges to give.
The proper domain of the Equal Pay Act consists of standardized jobs in which a man is paid significantly more than a woman (or anything more, if the jobs are truly identical) and there are no skill differences. An example might be two sixth-grade music teachers, having the same credentials and experience, teaching classes of roughly the same size in roughly comparable public schools in the same school district. ... The jobs of the managers of the different parks in the sprawling Indianapolis park system are nonstandard, mainly because the parks are so different from one another.
We turn last and briefly to the Title VII claim. Title VII does not require equal work, but neither does it allow for recovery on the basis of the theory of comparable worth. So merely showing that a man and a woman who perform different jobs for the same employer are paid differently does not get a Title VII plaintiff to first base. As that is all the evidence of sex discrimination that the plaintiff has presented, her Title VII claim was properly dismissed as well. ... We therefore need not consider the bearing of the Supreme Court’s recent decision in Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162, 2165-69 (2007), on the timeliness of the plaintiff’s Title VII claim; the decision has no bearing on her claim under the Equal Pay Act.
Environment - VP Cheney's impact on the environment
By combining unwavering ideological positions -- such as the priority of economic interests over protected fish -- with a deep practical knowledge of the federal bureaucracy, Cheney has made an indelible mark on the administration's approach to everything from air and water quality to the preservation of national parks and forests.
Not law but interesting - "Neuter Scooter rolls into town"
Who could resist a headline like that? And the "neuter scooter" is a great idea, that I hadn't heard of before. Read the story by Susan O'Leary in the NWI Times that begins:
They came in crates, humane traps and plastic storage bins with holes poked in the top. Twelve hours later, all of them would be leaving without something.
Ind. Courts - "Gary attorney has been charged with trafficking with an inmate"
Ruth Ann Krause reports today in the Gary Post-Tribune, in a story that begins:
A Gary attorney has been charged with trafficking with an inmate, for allegedly delivering an envelope with contraband to a man who eventually was convicted of murder.
Carl C. Jones, 39, was charged in Lake Superior Court-County Division with the class A misdemeanor, which carries a maximum one-year sentence.
Jones is accused of sliding a manila envelope containing letters from family members, cigarettes and makeup to Jeffery Perez on Jan. 26 in the Lake County Jail's attorney-inmate room. Perez put his legal papers on top of the envelope and took it with him, the probable cause affidavit states.
Ind. Decisions - "Judges must justify felony sentences; case tests new Indiana law"
The Indiana Supreme Court ruled unanimously Tuesday that judges sending felons to prison have to issue a sentencing statement that includes a reasonably detailed list of reasons for the sentence.
The decision came in the case of Alexander Anglemyer, a 20-year-old Kosciusko County man convicted of robbing and beating a pizza deliveryman in May 2005. * * *
The case was the first time the Indiana Supreme Court had the chance to weigh in on Indiana’s new sentencing laws since they were changed by the legislature in 2005.
Previously in Indiana, judges sentenced criminals by a guideline that provided a presumptive sentence but allowed the judge to add or subtract time for mitigating or aggravating circumstances.
For instance, someone convicted of robbery faced a presumptive sentence of 10 years to which 10 years could be added and four years could be subtracted.
But the U.S. Supreme Court – followed by the Indiana Supreme Court – ruled that any factors used to enhance a sentence have to be proven to a jury. That means judges can’t use additional information to add to the presumptive sentence without a separate jury proceeding.
To meet the new rules, lawmakers in 2005 passed Senate Bill 96, which removed presumptive sentences from Indiana’s system – leaving just the range of years for judges to choose from.
According to the law, a judge can impose any sentence “regardless of the presence or absence of aggravating circumstances or mitigating circumstances.”
The law also established the old presumptive sentence as a non-binding advisory guideline but gave far more discretion to the judge than in the old system.
The question before the court was whether judges are bound to provide any sentencing statement explaining the reasons behind a sentence, as three decades of court precedent have required.
Tuesday’s ruling reinforced the former practice, noting that sentencing statements help guard against arbitrary and capricious sentencing and provide a basis for appellate review.
Ind. Decisions - "Court upholds woman's arrest for shouting"
Free speech does not protect a woman from being prosecuted for disorderly conduct after she continued to shout at police officers who warned her to stop, the Indiana Court of Appeals ruled.
Latoya Blackman of Indianapolis shouted "This is unconstitutional" and various obscenities at the officers as they arrested her brother on drug charges in front of their home in May 2005, according to court records. Officers told her to stop yelling and leave, but she instead yelled even louder and a crowd began to gather.
The officers warned her she would be arrested if she did not leave and handcuffed her when she failed to comply. She was later convicted of disorderly conduct.
Blackman's attorney argued that the noise she caused wasn't unreasonable given the circumstances and that her shouts were protected speech under Indiana's constitution.
The three-judge panel disagreed Tuesday. "The facts before us plainly indicate that Blackman made unreasonable noise and continued to do so after being repeatedly asked to stop," Judge Carl Darden wrote in the 3-0 decision. * * *
In a separate concurring opinion, Judge James Kirsch said the ruling appeared to overturn a 1993 Supreme Court order that set aside the disorderly conduct conviction of a woman who was arrested after she shouted obscenities at police officers who were arresting another person.
Tuesday, June 26, 2007
Ind. Decisions - Supreme Court issues three more today
In Carlos M. Jackson v. State of Indiana, a 15-page, 3-2 opinion, in a case that was argued Nov. 28, 2006, Justice Boehm writes for the majority:
We hold that a trial court may find a knowing and voluntary waiver of a defendant’s right to be present at his jury trial if (1) the defendant knew his trial date and (2) the defendant did not provide an adequate explanation for his absence from trial. We also hold that a trial court is not required to readvise a defendant of his right to counsel or the perils of self-representation when the trial court revokes a defendant’s attorney’s pro hac vice status if (1) the defendant was ad-vised of his right to have appointed counsel at his initial hearing and (2) the defendant had initially retained counsel and had made no indication to the trial court that he could not afford to hire another attorney or intended to proceed pro se. Finally, under these circumstances, a defendant’s intentional and inexcusable absence from trial can serve as a knowing, voluntary, and intelligent waiver of the right to counsel. * * *InMark Clarke v. State of Indiana, a 12-page, 4-1 opinion, in a case argued Jan. 25, 2007, Justice Boehm writes for the majority:
Shepard, C.J., and Dickson, J., concur.
Rucker, J., dissents with separate opinion in which Sullivan, J., concurs: Because the defendant in this case did not knowingly and intelligently waive his right to counsel, I respectfully dissent. * * *
I agree that a trial court cannot “hunt down a defendant to admonish him about the dangers and disadvantages of self-representation.” Such an inquiry is quite obviously impossible when a defendant fails to present himself before the court. But one’s fugitive status is a separate wrong with its own consequences, and returned fugitives should be punished, if appropriate, for violations of court orders or statutes which compel their presence in court. See Ind. Code §§ 35-44-3-6; 34-47-3. It is not grounds for forfeiting the right to representation by counsel. For the foregoing reasons, reasons, I respectfully dissent and would reverse the judgment of the trial court.
We hold that a police officer who neither explicitly nor implicitly communicates that a person is not free to go about his or her business may ask questions of the person to investigate allegations of criminal activity without implicating the Fourth Amendment or requiring the advisement of rights under the Indiana Constitution. * * *In Aaron Israel v. Indiana Department of Correction , an 8-page, 3-2 opinion, in which there was no oral argument, Justice Sullivan writes for the majority:
Conclusion We affirm the trial court’s denial of Clarke’s motion to suppress. We summarily affirm the Court of Appeals as to issues not addressed in this opinion. See Appellate Rule 58(A).
Shepard, C.J., and Dickson and Sullivan, JJ., concur.
Rucker, J., dissents with separate opinion. [which concludes:] In this case the majority distinguishes between “custody” and “seizure” concluding that “Pirtle advisements” are required for the former, but not the latter. I see no principled distinction between the two. By whatever nomenclature, the key question to be asked is whether the person is entitled to disregard police questioning and walk away. If not, then the person must be informed of the right to consult with counsel about the possibility of consenting to a search. Otherwise no valid consent can be given. Indeed the primary authority on which the majority relies makes this very point. Discussing Jones, 655 N.E.2d at 56, the Court in Cooley v. State, 682 N.E.2d 1277, 1279 (Ind. 1997), recognized, “Had Jones refused to give the police permission to search, he would have been given two citations and been free to leave.” In this case Clarke had no such option. And because he was not given a Pirtle advisement any alleged consent was invalid as a matter of state law. Accordingly, I agree with the result reached by the Court of Appeals and would reverse the trial court’s denial of Clarke’s motion to suppress.
[Inmate] Israel responded by filing a small claims action against the DOC in the Small Claims D-vision of the LaPorte Superior Court. His argument was that the DOC’s withdrawal of funds from his trust account violated the terms of a written agreement he had with a prison counselor that purported to limit the amount the DOC could withdraw from his account. The small claims court decided the case against him.
Israel appealed. The DOC sought dismissal of the appeal on grounds that the small claims court did not have jurisdiction to review a disciplinary decision against Israel, citing this Court’s recent pronouncement in Blanck v. Indiana Department of Correction that “[f]or a quarter-century, our Court has held that DOC inmates have no common law, statutory, or federal constitutional right to review in state court DOC disciplinary decisions.” 829 N.E.2d 505, 507 (Ind. 2005). The Court of Appeals rejected the DOC’s jurisdictional argument, but decided the merits in the DOC’s favor. ... We grant Israel’s petition for transfer and hold that the trial court should have dismissed Israel’s lawsuit. * * *
Shepard, C.J., concurs and Rucker, J., concurs with separate opinion.
Boehm, J., dissents with separate opinion in which Dickson, J., concurs.
Rucker, Justice, concurring. In my view Blanck v. Ind. Dep’t of Corr., 829 N.E.2d 505 (Ind. 2005), was wrongly decided. Indeed I joined Justice Boehm’s concurring in result opinion for that reason. But Blanck, and the authority on which it rests, is now settled law, namely: the enforcement of prison disciplinary sanctions are not subject to judicial review. I therefore concur in the majority opinion in this case.
Boehm, J., dissenting. [in a 4-page opinion, which concludes:] The majority’s holding today extends Blanck. Even if related to discipline, a breach of contract claim is subject to judicial review and within the subject matter jurisdiction of state courts. I do not suggest there is merit to Israel’s claims. They may be subject to dismissal for failure to state a claim. They are, however, within the jurisdiction of the courts.
Ind. Decisions - Court of Appeals issues 5 today (and 17 NFP)
For publication opinions today (5):
In Putnamville Correctional Facility v. Robin Church, a 6-page opinion, Judge Sharpnack writes:
Putnamville Correctional Facility (Putnamville) appeals the Putnam Circuit Court’s judgment enforcing an Award of the Indiana Worker’s Compensation Board (the Board) in favor of Robin Church, pursuant to Ind. Code Ann. § 22-3-4-9(a) (West 2005).Cathy Webb v. Terry Webb - "Appellant-Respondent, Cathy Webb (Mother), appeals the trial court’s Child Custody Modification Order awarding sole legal and physical custody over the minor children, T.W. and C.W, to Appellee-Petitioner, Terry Webb (Father). We affirm."
Putnamville presents the following restated issues for review: 1. Did the circuit court have jurisdiction under I.C. § 22-3-4-6(a) to render judgment on the Award when Church provided five days notice to Putnamville before filing a certified copy of the Award with the court but did not obtain an order from the Board to file said Award with the court? 2. Did the trial court improperly modify or interpret the Award? We reverse and remand. * * *
[The court concludes that although it need not decide the second issue] "Therefore, without deciding whether a court has authority to interpret (as opposed to modify) an ambiguous Award or whether such interpretation is the exclusive authority of the Board, we simply caution Putnamville to more fully consider its position, which is clearly contrary to established case law.
In Latoya Blackman v. State of Indiana , a 16-page, 3-0 opinion (including a separate concurring opinion), Judge Darden writes:
Issues. 1. Whether sufficient evidence existed to support Blackman’s conviction. 2. Whether Blackman’s conduct constituted political speech protected under the Indiana Constitution and, therefore, cannot be the basis for a charge of disorderly conduct. * * *Elliott D. Tyson v. State of Indiana - "Elliot Tyson appeals the post-conviction court’s denial of his petition for post-conviction relief. Tyson raises one issue, which we restate as whether the post-conviction court erred by summarily denying his petition for post-conviction relief. We affirm."
The right to speak is undeniably a right of paramount importance under our Constitution. That said however, individuals who have expressed opinions, even protected opinions, must quiet down thereafter to enable police officers to do their work. The fact that one is engaging in protected political speech does not obviate one’s responsibility to act in a civically responsible manner.
Police officers conducting a legitimate investigation must be able to perform their duties without unreasonable interruption. Johnson, 719 N.E.2d at 449. Under the facts of this case, we find that the State could have rationally concluded that where Blackman obstructed and interfered with the officers’ attempts to function as law enforcement officer, her conduct constituted an abuse of the right to speak and fell within the State’s police power. Accordingly, Blackman’s arrest for disorderly conduct did not violate Article 1, Section 9 of the Indiana Constitution.
Affirmed. MATHIAS, J., concurs. KIRSCH, J., concurs with separate opinion. [Here are the beginning and conclusion of Judge Kirsh's 3-page concurring opinion] I concur. I write separately only to note what I believe is a fundamental shift in Indiana’s constitutional jurisprudence. * * *
Without regard to whether J.D. is the death knell of Price and Indiana’s independent constitutional jurisprudence, Blackman’s speech here falls within that determined to be abusive by the Court in J.D. Accordingly, I concur in the majority’s decision.
James A. Washburn v. State of Indiana - "Based on the foregoing, we conclude that the trial court properly denied Washburn’s Motion to Suppress evidence seized during the execution of a search warrant based on information obtained from a warrantless trash pull."
NFP civil opinions today (4):
David W. Brankle v. Kimberly K. Brankle (NFP) - "For our review, David raises several issues relating to his motions for visitation and the division of property following the granting of his wife’s petition for dissolution of marriage. Concluding the trial court did not abuse its discretion by denying the motions, we affirm."
North American Capital Corp./MBNA America Bank v. Kelly Hickman (NFP) - "Here, Hickman merely presented her own personal circumstances, together with a plea to the trial court to lower her garnishment. The record is devoid of any evidence establishing an extraordinary circumstance, let alone, a meritorious claim or defense, as required by T.R.60(B)(8). Due to Hickman’s failure to carry her burden of proof, we conclude that the trial court abused its discretion by granting her relief from the garnishment order. Therefore, we reverse the trial court’s Findings and Recommendations and remand for further proceedings in line with today’s holding. Conclusion. In light of the foregoing, we find that the trial court abused its discretion by setting aside its previous Order to garnish Hickman’s wages pursuant to T.R. 60(B)(8). Reversed and remanded."
Tamera L. Tebbe v. Leonard J. Tebbe (NFP) - This is a 38-page opinion. The statement of the case is: "Tamera L. Tebbe (“Wife”) challenges the trial court’s order regarding the division of the marital estate. Leonard J. Tebbe (“Husband”) cross-appeals the trial court’s order for the payment of Wife’s attorney fees and litigation expenses. We reverse and remand with instructions."
NFP criminal opinions today (13):
Ind. Decisions - Three today so far from the Supreme Court
In Alexander J. Anglemyer v. State of Indiana, a 15-page, 5-0 opinion, in which oral arguments were held Sept. 7, 2006, Justice Rucker writes:
In this opinion we discuss the respective roles of Indiana trial and appellate courts under the 2005 amendments to Indiana’s criminal sentencing statutes. We hold that where a trial court imposes sentence for a felony offense it is required to issue a sentencing statement that includes a reasonably detailed recitation of the trial court’s reasons for the sentence imposed. The standard of review is abuse of discretion. * * *In Morris Windhorst v. State of Indiana, a 5-page, 5-0 opinion by Justice Rucker, in which there apparently was no oral argument, the Court affirmed the sentencing decision.
We now affirm the judgment of the trial court, but for reasons slightly different from those of our colleagues [on the Court of Appeals].
[The opinion continues with an extensive discussion of post-Blakely sentencing in Indiana.]
We affirm the judgment of the trial court.
In Aaron D. McDonald v. State of Indiana, a 6-page, 5-0 opinion by Justice Rucker, in which there was apparently no oral argument, the Court affirmed the sentencing decision.
Ind. Decisions - "Court allows asphalt plant near Danville"
The Court of Appeals ruling yesterday in Hendricks County Board of Commissioners v. Reith-Riley Construction Co., Inc. (ILB entry here), is the subject of a brief story today by Josh Duke of the Indianapolis Star:
The Indiana Court of Appeals today ordered Hendricks County officials to allow an asphalt plant just east of Danville.
In a 20-page decision, the appeals court upheld a Boone County judge’s decision that the Hendricks County Plan Commission exceeded its discretion in denying the project. The plan commission’s 2005 vote against the plant was “void and unenforceable,” the ruling stated. * * *
A large group of remonstrators made up of residents living in that area convinced county leaders to deny the plan because of air pollution and other possible harmful factors.
Rieth-Riley challenged that decision in court, and Boone Superior Court Judge Matthew Kincaid, acting as a special judge, sided with the company. He said county planners can’t reject a development proposal based on the general welfare of the community and ordered the plan commission reverse its decision.
Environment - IDEM to act against Randolph County and Huntington CAFOs
Seth Slabaugh of the Muncie StarPress reports:
WINCHESTER -- The Indiana Department of Environmental Management has issued a notice of violation and a proposed agreed order to Union-Go Dairy stemming from a manure release into Sparrow Creek on April 3.Union-Go is mentioned in these earlier ILB entries. The most recent ILB about DeGroot is from June 16th.
The notice accuses the concentrated animal feeding operation (CAFO) at 3518 S. Randolph County Road 300-W of violating environmental management laws, water pollution laws and its permit. * * *
[A] letter sent to the dairy farm from Dave Knox of IDEM's enforcement office stated the proposed order included a preliminary civil penalty figure for settlement discussion purposes only.
"A portion of the civil penalty may be offset by performing an approved Supplemental Environmental Project," Knox wrote. "Typical SEPs have included pollution prevention, pollution control and environmental restoration projects.
"The timely entry into an agreed order, which saves you and IDEM time and resources, may lead to a reduction in the civil penalty."
Union-Go, owned and operated by Dutch immigrants Tony and Yvonne Goltstein, also has been cited at least twice by IDEM for failing to maintain the required minimum freeboard of two feet in a lagoon holding 20 millions gallons of manure. * * *
Meanwhile, a judge has prohibited a rural Huntington County Dutch dairy CAFO owned by Johannes DeGroot from spreading manure onto fields in the area. DeGroot will be required to either pump and haul the manure to a waste treatment facility or hire a third-party "custom manure applicator" to manage the manure generated at the farm.
Besides suing, IDEM revoked DeGroot's operating permit after manure was found in a creek near the dairy on April 9 and 11. DeGroot has appealed the revocation of the permit.
Ind. Law - Many new laws go into effect Sunday, July 1; What of the minimum wage law changes?
The AP's Mike Smith writes today about new laws, including the cigarette tax increase and more stringent seat belt rules taking effect the first of July. The story lists a number of other new laws, including:
Renters tired of landlords letting themselves in unannounced also will get some relief. A new law will now require landlords to give tenants reasonable notice before entering a rental unit, except in emergencies.The minimum wage raise. The ILB has posted two earlier entries about the minimum wage changes. This entry, from April 11, 2007, begins:
Tie the state’s minimum wage to the federal level. They are both $5.15 per hour now, but under a law recently enacted by Congress, the rate will increase to $7.25 over three years.
I've always understood that the General Assembly cannot delegate its lawmaking authority to the federal government. For instance, look at IC 6-3-1-11. This section defines what the Indiana Code means when it references the federal "Internal Revenue Code." The federal law changes nearly every year.On April 18th the ILB wrote:
Does a reference in Indiana law to the "Internal Revenue Code" incorporate all the latest changes made by Congress? Yes, but only because the Indiana law is changed each year to reflect the most recent version of the IRS.
For instance, IC 6-3-1-11 currently begins: "(a) The term "Internal Revenue Code" means the Internal Revenue Code of 1986 of the United States as amended and in effect on January 1, 2006." The language in bold is the result of a change made last year. Looking at the history of the section, you will see that it has been amended nearly every year to keep it in sync with the federal version.
What is that? Because the General Assembly cannot delegate its lawmaking authority to the federal government.
Here is the relevant language in HB 1027, found on p. 3 of the bill:(h) Except as provided in subsections (c) and (j), every employer employing at least two (2) employees during a work week shall, in any work week in which the employer is subject to this chapter, pay each of the employees in any work week beginning on or after June 30, 2007, wages of not less than the minimum wage payable under the federal Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201 et seq.).According to today's C&P story, the "catch" is that Congress has not yet passed the minimum wage increase that the Indiana law will incorporate by reference.
In my opinion, for the reasons I set out in this April 11th ILB entry titled "Is this an unconstitutional delegation of Indiana legislative authority?" the "catch" is that this effort would constitute an unconstitutional delegation of Indiana legislative authority to the federal government.
Here is information from CCH: "The Fair Minimum Wage Act of 2007, raises the federal minimum wage rate to $5.85 per hour effective July 24, 2007, $6.55 per hour effective July 24, 2008, and $7.25 per hour effective July 24, 2009." (CCH)(CCH2)
The Fair Minimum Wage Act of 2007 (HR 2) is legislation that amends the Fair Labor Standards Act of 1938 and gradually raises the federal minimum wage from $5.15 per hour to $7.25 per hour. It was signed into law on May 25, 2007 as part of the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007. The act raises the federal minimum wage in 3 increments: to $5.85 per hour 60 days after enactment (2007-07-24), to $6.55 per hour 12 months after that (2008-07-24), and finally to $7.25 per hour 12 months after that (2009-07-24).Here is a link to the federal provisions, found in Title VIII of HR 2206, signed by the President on May 25, 2007. The applicable provisions:
SEC. 8101. SHORT TITLE.Again, the federal provision was enacted (signed) May 25, 2007 and, by its terms, takes effect July 24, 2007.
This subtitle may be cited as the `Fair Minimum Wage Act of 2007'.
SEC. 8102. MINIMUM WAGE.
(a) IN GENERAL- Section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)) is amended to read as follows:
`(1) except as otherwise provided in this section, not less than--
`(A) $5.85 an hour, beginning on the 60th day after the date of enactment of the Fair Minimum Wage Act of 2007;
`(B) $6.55 an hour, beginning 12 months after that 60th day; and
`(C) $7.25 an hour, beginning 24 months after that 60th day;'.
(b) EFFECTIVE DATE - The amendment made by subsection (a) shall take effect 60 days after the date of enactment of this Act.
The applicable provision, SECTION 1, of the final version of the Indiana minimum wage increase effort, House Enrolled Act 1027, was signed into law May 4, 2007 and is by its terms effective July 1, 2007. As quoted earlier, it amends IC 22-2-2-4 by, inter alia, adding a new subsection (h) [see p. 3] that reads:
(h) Except as provided in subsections (c) and (j), every employer employing at least two (2) employees during a work week shall, in any work week in which the employer is subject to this chapter, pay each of the employees in any work week beginning on or after June 30, 2007, wages of not less than the minimum wage payable under the federal Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201 et seq.).The federal FLSA "as amended and in effect" (to use the wording used to incorporate the most recent version of the IRC each year) on June 30, 2007 sets the federal minimum wage at $5.15 an hour. The federal amendment raising the minimum wage to $5.85 does not go into effect until July 24th, 2007, and thus is not incorporated into the Indiana statute which is effective July 1, 2007, in my opinion.
Monday, June 25, 2007
Law - "High court ends ban on corporate-funded campaign ads"
David G. Savage of the LA Times posted this story a few minutes ago. Some quotes:
The Supreme Court gave President Bush and Republican leaders two important victories today by clearing the way for corporate-funded broadcast ads before next year's election and by shielding the White House's "faith-based initiative" from challenge in the courts.The first case was FEC v. Wisconsin Right to Life. Terre Haute attorney James Bopp represented WRTL. SCOTUSblog has posted a number of entries today on this ruling.
Both came in 5-4 rulings led by new Chief Justice John G. Roberts Jr.
The ruling in the election case is likely to be seen and felt by voters starting early next year. It could mean a return to the 1990s when TV viewers were often urged to "send a message" to an unnamed candidate about his or her stand on a certain issue.
These ads were often paid for with corporate or union money, and they were banned by the McCain-Feingold Act five years ago. The Supreme Court upheld the ban in a 5-4 decision before the 2004 election.
But the high court essentially changed course today and said these issue-oriented ads are legal if they name a candidate running for office, so long as they stop short of urging the public to vote for or against the candidate.
The chief justice said these ads involve "core political speech", which is protected by the 1st Amendment to the Constitution.
"We give the benefit of the doubt to speech, not censorship," Roberts said. He was joined by Justices Samuel A. Alito Jr. and Anthony M. Kennedy. Justices Antonin Scalia and Clarence Thomas agreed, although they would have gone further and struck down entirely the broadcast ban set in the McCain-Feingold Act. * * *
In the second ruling, the court said taxpayers did not have legal standing to challenge Bush's "faith-based initiative." The decision throws out a lawsuit brought by a Wisconsin group that said Bush was promoting religion in violation of the 1st Amendment. * * *
In a third ruling, the court gave school principals the authority to discipline students who advocate the use of illegal drugs at schools. Roberts said the court was not rejecting the notion that high school students had free-speech rights, but rather making clear that these rights were limited, especially when students advocated in favor of illegal drugs.
The decision reversed a free-speech ruling in favor of a high school student from Juneau, Alaska, who had been suspended for holding up a banner that read "Bong hits for Jesus."
Ind. Decisions - Supreme Court decides one today
In Annette Donica Giles v. Brown County, Indiana, By and Through Its Board of Commissioners, a 6-page, 4-1 opinion, in which oral arguments were heard over a year ago, on June 9, 2006, Justice Sullivan writes:
Joey Giles, a Brown County resident, called 911 to request an ambulance when he ex-perienced chest pains and shortness of breath at his home. The enhanced emergency communi-cation system (“E-911”) forwarded his request to Columbus Regional Hospital’s ambulance ser-vice. No ambulance reserved for Brown County use was available at Columbus Regional Hospital, so Columbus Regional Hospital instead contacted Bloomington Hospital and asked it to dispatch an ambulance. In the meantime, Joey contacted his wife, Annette Donica Giles (“Giles”). Giles returned home to find Joey attended by two volunteer firemen. The ambulance from Bloomington Hospital arrived 45 minutes later. Joey died shortly thereafter.Here is the Dec. 30, 2005 Court of Appeals opinion.
As Joey’s surviving spouse and the representative of his estate, Giles sued Brown County, by and through its Board of Commissioners, Columbus Regional Hospital, and Joey’s former health care providers. Giles alleged that Brown County and Columbus Regional Hospital had negligently failed to provide requested medical services, thereby causing Joey’s death. Brown County sought summary judgment solely on the basis that it was immune under the Indi-ana Tort Claims Act (“ITCA”), because Joey’s death resulted from the “operation” or “use” of an enhanced emergency communications system. Ind. Code § 34-13-3-3(19) (Supp. 2001). The trial court granted summary judgment to Brown County on grounds of immunity. A panel of the Court of Appeals reversed and remanded over the dissent of Judge Sharpnack. Giles v. Brown County, 839 N.E.2d 1258 (Ind. Ct. App. 2005). Brown County sought, and we granted, transfer. Giles v. Brown County, 855 N.E.2d 1007 (Ind. 2006) (table). (No claim related to Columbus Regional Hospital or Joey’s former health care providers is before us in this appeal.) * * *
Brown County sought immunity under the ITCA on grounds that Joey’s death resulted from the “operation” or “use” of an enhanced emer-gency communications system. I.C. § 34-13-3-3(19). There is little we can do to improve upon the immunity analysis by Judge Sharpnack in the Court of Appeals in this case and so we adopt his dissent. * * *
Shepard, C.J., and Boehm and Rucker, JJ., concur.
Dickson, J., dissents with separate opinion:
This is an appeal from the grant of summary judgment based solely on the trial court's conclusion that Brown County is afforded immunity under Indiana Code § 34-13-3-3(19) from liability for losses from the operation of an enhanced 911 system. As to this issue, the majority summarily adopts the analysis in Judge Sharpnack's dissent in the Court of Appeals. I disagree.
The immunity as crafted by the statute applies to a loss that "results from" the operation or use of "an enhanced emergency communication system." Ind. Code § 34-13-3-3(19). As noted in the majority opinion, the parties agree that the enhanced emergency communication system "worked flawlessly." The plaintiff's claim is not for a loss that resulted from the failure of this communication system, but rather for a loss that separately resulted from the decision not to send an available ambulance due to the ambulance service's separate obligations favoring the Columbus Fire Department. The statutory immunity, in derogation of common law, must be strictly construed against limitations on the right to bring an action. Hinshaw v. Bd. of Comm'rs of Jay County, 611 N.E.2d 637, 639 (Ind. 1993). I favor the analysis of the Court of Appeals majority, which declined to expand the statutory emergency communication system immunity to include the subsequent dispatching decision that resulted in the alleged loss. This assertion is made in the plaintiff's tort claim notice, one of the documents included in the defendant's summary judgment submissions. [emphasis added by ILB]
Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP) [Updated]
For publication opinions today (2):
In Hendricks County Board of Commissioners v. Reith-Riley Construction Co., Inc. , a 20-page opinion, Judge Riley writes:
In its Order, the trial court granted declaratory judgment in favor of Rieth-Riley whereby it held that the Hendricks County Zoning Ordinance is invalid and illegal, and issued a writ of mandate at Rieth-Riley’s request, ordering the Area Plan Commission of Hendricks County to approve Rieth-Riley’s Development Plan and Minor Subdivision Plat. We affirm. * * *In Liberty Publishing, Inc. d/b/a Booster Club Productions v. Steve Carter, Attorney General & Nu-Sash of Indianapolis, Inc. d/b/a McKee Sunroom Designs, an 8-page opinion, Judge Kirsch writes:
Based on the foregoing, we conclude the trial court properly (1) declared the Hendricks County Zoning Ordinance (Ordinance) void and unenforceable because the Ordinance’s additional development requirements are not sufficiently definite; and (2) issued a writ of mandamus to the Area Plan Commission, which the County Commissioners lack standing to appeal.
This is a consolidated appeal of the challenges of Liberty Publishing, Inc. (“Liberty”) and Nu-Sash of Indianapolis, Inc. (“Nu-Sash”) to the trial courts’ orders to enforce the Civil Investigation Demand (the “CID”)1 issued by the Attorney General of Indiana (the “AG”) to investigate the companies under the Indiana Deceptive Consumer’s Sales Act (the “IDCSA”) and the Indiana Home Improvement Contract Act (the “IHICA”), respectively.NFP civil opinions today (4):
The appeal raises the following issues: I. Whether a showing of reasonable cause under the statute requires the AG to introduce evidence demonstrating the CID was proper. II. Whether Liberty’s alleged acts constituted “consumer transactions,” such that the AG may investigate for deceptive trade practices. We affirm.
Larry Carlin v. Review Board of the Department of Workforce Development and J&J Packaging Company (NFP) - "The Review Board of the Indiana Department of Workforce Development (“Review Board”) adopted the determination of an Administrative Law Judge (“ALJ”) that Larry Carlin voluntarily quit his job at J & J Packaging Company without good cause and was not entitled to unemployment benefits. Carlin appeals, contending that the Review Board’s decision that he voluntarily quit is contrary to law. We affirm."
Joseph J. LaRosa v. Denise L. LaRosa (NFP) - Affirmed.
John Lewis v. Washington County Health Department (NFP) - "John Lewis appeals the trial court’s order granting the Washington County Health Department’s (the “WCHD”) motion to correct error and finding probable cause to search the non-residential areas of Lewis’s property. Lewis raises two issues, which we restate as: I. Whether there was probable cause sufficient to permit the WCHD to search and inspect Lewis’s property pursuant to applicable statutory law. II. Whether Lewis was prejudiced and denied due process by the trial court’s decision to proceed with the July 1, 2005 hearing over Lewis’s objection. * * *
Based on this evidence, we find there was a substantial basis for the trial court to conclude there was probable cause to search the property to determine whether there was a condition that may promote disease."
Lisa Browning and Ronald Browning v. State of Indiana (NFP) - "Lisa and Ronald Browning (the “Brownings”) appeal the trial court’s restitution order to pay livestock boarding fees following their five Class B misdemeanor cruelty to animal convictions. The Brownings claim the Indiana’s restitution statute does not authorize restitution paid to Cass County. We affirm."
NFP criminal opinions today (7):
Michael Ruckle v. State of Indiana (NFP) [Note that this decision is dated June 22nd, but was just posted this afternoon and the ILB just happened to spot it. Hopefully this late posting of prior days' opinions was an aberration.]
Courts - More on: Chickens come home to roost in the case of the $67 million pair of pants
Updating this ILB entry from May 3rd, the decision is in, and the plaintiff ALJ not only lost his lawsuit, but has to pay court costs.
The WSJ Blog entry has links to the opinion and judgment.
Ind. Decisions - Supreme Court to hear case on duty of property owner to clear adjacent sidewalk
Denison Parking, Inc. v. Barbara Davis is set to be argued tomorrw morning at 9 a.m. before the Supreme Court. Here is the ILB entry from Feb. 28th, headed "Court of Appeals rules no duty to clear adjacent public sidewalks." Here is an entry on media reaction from March 3rd, headed "Property owners can't be sued over falls on snowy sidewalks."
Here is the summary of the case posted on the Indiana Court site:
After she slipped and fell on a public sidewalk adjacent to property maintained by Denison Parking, Davis filed suit against Denison Parking and the City of Indianapolis, among others. The trial court denied Denison Parking’s motion for summary judgment. The Court of Appeals reversed, holding that Denison Parking did not owe a duty of care to Davis. Denison Parking, Inc. v. Davis, 861 N.E.2d 1276 (Ind. Ct. App. 2007). Davis has petitioned for transfer. Additionally, the City of Indianapolis, which did not seek relief in the Court of Appeals but is a party on appeal pursuant to Appellate Rule 17(A), has filed a response brief in support of transfer.Watch the webcast live here at 9:00 a.m. tomorrow, June 26th, or in the archived version shortly thereafter.
Attorney for Davis, James Young, Indianapolis, IN
Attorney for Office Corp. Counsel, Ian Stewart, Indianapolis, IN
Attorneys for Denison Parking, Donald Centers, Christopher Stephen, Indianapolis, IN
Sunday, June 24, 2007
Ind. Gov't. - More on "New research fee upsets Indiana motorcyclists"; some thoughts
Updating this ILB entry from June 21st, Lesley Stedman Weidenbener of the Louisville Courier Journal has titled her column today "Motorcycle fee increase has more than one backpedaling." Some quotes about the increase in motorcyclist's registration fees, which increased from $17 to $27 in the budget bill, although opponents reportedly thought it had been removed :
"Nobody even knew this was buried in the budget," [Governor Daniels] told The Associated Press last week. "I didn't. They didn't."The "Political Notebook" column today by Benjamin Lanka and Niki Kelly in the Fort Wayne Journal Gazette also comments on the matter, concluding with:
Of course, Daniels has a legal staff that reviews bills before he signs them. He has a legislative team that spent many hours this session negotiating the finer points of the budget. They threw a fit late in the session when they discovered one section that would have required them to appoint both Republicans and Democrats to the Ivy Tech Community College board. They managed to get it removed.
That's why Rep. Carolene Mays, D-Indianapolis, said she finds it hard to believe the governor didn't know about the motorcycle provision. "Nothing," she said last week, "was hidden from public view."
"If I was the governor, I would be embarrassed to admit that I did not know what was in the single most important bill in the 2007 session of the Indiana General Assembly, the biennial state budget," she said in a statement. "If I wasn't embarrassed, I would be firing the attorneys and fiscal experts who are supposed to be thoroughly reviewing the bill before the governor signs it into law."
But Mays was doing a little backtracking on the issue as well last week and said she was concerned about the way the issue was "spinning."
Mays is the lawmaker who pushed for the spinal cord fund. Her original proposal would have increased fees on traffic violations to pay for it, but that plan was amended in a committee to also raise the motorcycle registration fee.
In the final budget plan, fiscal leaders stripped out the increased fees for traffic violations, leaving only the motorcycle language and the provisions creating the spinal cord fund.
Last week, Mays sent out a news release praising the bill. In it, she said she picked the motorcycle fee "because there is a proven link between motorcycle accidents and traumatic spinal cord and head injuries."
But later, after that quote appeared in the news, Mays said that's not what she really meant to say. And she said she never intended to single out motorcycle owners with the legislation, although she acknowledged that's the way the language ended up.
That's what makes the final sentence of her statement about Daniels a little funny.
"I do not believe that ignorance or incompetence should be an excuse, especially when it comes to a measure with the kind of wide-ranging impact of the state budget," Mays wrote. "I am shocked that this governor would choose such options."
Daniels told reporters Friday that the budget was 253 pages long and he had only a little while to review it.Some thoughts.The conference commitee reports to HB 1001, this year's budget bill, were submitted and adopted on April 29, 2007, the last day of the session. Here, for example, is the CCR filed and adopted in the House on 4/29/07. It is 228 pages long and strips out and replaces everything in the then-existing bill. The ILB doubts that anyone had a full picture of the bill as it passed. This is not a problem unique to Indiana, it exists in other states and in the federal government.
“I signed hundreds of bills, tens of thousands of total pages, and the law gives you seven days to do it. If any governor tells you that he read every line of every bill, he’s probably not being entirely straight,” he said. “I’m not embarrassed, but I’ll accept the criticism.”
He also noted that he would’ve signed the budget even if he had known about the fee because the total budget was “darn good.”
The "budget" itself is only a small part of the "budget bill." The budget part appropriates funds for the fiscal biennium beginning July 1, 2007. The title of the 2007 act reflects that -- "making an appropriation" is only an afterthought in the title, which reads: "AN ACT to amend the Indiana Code concerning state and local administration and to make an appropriation." Pages 1-118 (SECTION 1-36) of the 253-page law set out the operating and construction budgets. These provisions are generally considered to be temporary - in effect for two years.
The balance of the act, pp. 118-253, SECTION 37 through 306, are nearly all permanent amendments to the substantive law of the State on a variety of topics. This has not always been the case, but seems to become progressively more so with each budget.
If the Governor hopes to change anything in the budget bill, his staff has to have caught it and gotten it changed before the final legislative votes.
Once it does pass, and the Governor receives this gigantic bill, he has a week to review it, but his options are extremely limited. The session is generally over, the new budget year begins in a few months. If he finds something particularly egregious, his only choice is to sign the bill anyway, allow it to become a law without his signature, a veto the bill and throw the State into a special session. This quote from the Journal Gazette today sums it up:
He also noted that he would’ve signed the budget even if he had known about the fee because the total budget was “darn good.”What is the answer? Some say a line item budget. The ILB believes a better route would be to follow the Constitution, which limits bills to one subject. In the case of the budget, the subject is just that -- the budget. Ban amendments to the permanent law of the State from the budget bill. And ban the other route that is sometimes taken, provisions that state "In lieu of the provisions of IC x-x-x", thereby temporarily amending the permanent law of the State via the budget.*
If all of this is too much to contemplate, at least consider use of some of the technological tools now available to produce a more accessible budget bill. The ILB has made a small start , using the bookmarks feature of Adobe Acrobat. Download (right-click your mouse) my partially bookmarked budget bill here.** This after-the-fact bookmarking would be the time consuming way to do it. But LSA has the technology, using XML and tagging, to automate this, and produce self-indexed versions of all drafts of the budget.
*For more on this, see my article "Enforcing Indiana's Constitutional Requirement that Laws be Limited to One Subject," 44 Res Gestae 9 (2001), available here.
**BTW, the last bookmark I added was to the motorcycle registration fee hike.
Ind. Courts - Lake County researching cell phone ban, any plan appears limited to courtrooms; Hamilton County imposes strict measures
CROWN POINT | Before deciding to ban cell phones in courtrooms, Lake County officials are waiting for the results of a security study by a South Bend firm.Re Hamilton County, a reader writes:
As of Aug. 1, no one going to Porter County courtrooms can take in a cell phone. Judges there decided to ban the devices because of interruptions and because some weapons can be disguised as cell phones.
Brian Johns, a bailiff in Lowell Town Court, said he is aware of the hype about cell-phone-like guns that can shoot .22-caliber ammunition but doesn't believe any have been confiscated in the U. S., only in Europe.
"The chances of getting hold of one of those is virtually impossible," said Johns, who acknowledged cell-phone-like stun guns are available on the Internet.
DLZ is being paid $60,000 by Lake County commissioners to study security at the government center, including the cell phone issue.
Johns and Lowell Town Court Judge Thomas Vanes soon will discuss how to deal with the habit of courtgoers text-messaging while court is in session -- just the newest wrinkle in the debate.
"I think at this stage, people only thought of them (cell phones) as distraction issues," Vanes said. "There's nothing more annoying than being interrupted by a ringing cell phone, especially with some of the exotic, shall we say, ring tones available."
Vanes said judges have wide discretion in establishing proper courtroom behavior.
All four Lake County criminal court judges have signs outside their courtrooms encouraging people to turn off their cell phones.
Still, Judge Diane Ross Boswell found three people in contempt of court in August when ringing cell phones interrupted morning court call more than five times.
Chief Superior Court Judge John Pera said he has noticed many people put the cell phones on vibrate, but he has found that messes with court recording equipment.
"Cell phones are the bane of the judiciary," Pera said.
The Hamilton County Courthouse amended its security policy in the last month or so. Signs now ask all of those entering to remove their belts. One sign is posted outside the building's front door, and another in front of the metal detector and x-ray machine manned by two Sheriff's Police officers.
I assume that they are concerned about belt buckle knives that suddenly popped up in the local schools in the last year, among other places.
They seem to employ some discretion on the policy. They do not actually ask everyone to remove their belts, but they do seem to eyeball everyone's belts. If they have a small buckle that obviously cannot harbor a knife-like weapon, they apparently let those pass.
They do not have it on the signs, but they have previously asked me to remove my wallet and place it in the bins that are x-rayed, because they told me once that they are concerned about the real thin credit-card-sized knives.
Ind. Decisions - More on: Outback Steakhouse case settled
Following up on yesterday's story in the Muncie Star-Press, which included this sentence: "How much the restaurant agreed to pay David and Lisa Markley was unavailable Friday afternoon," and about which the ILB thought "Good luck!", the Star-Press reports today:
Details of an out-of-court settlement that ended a Muncie couple's lawsuit against Outback Steakhouse can't be disclosed under the terms of the agreement, an attorney for David and Lisa Markley said Saturday.
"The amount is confidential, but my clients are very satisfied," said lawyer Donald McClellan. * * *
McClellan -- who represented the Markleys along with local attorney Michael "Mick" Alexander -- declined to say whether the settlement involved several million dollars.
"It's fair to say I'm unaware of any settlement larger in the state of Indiana," he said.
Ind. Gov't. - Office of Inspector General may be a black hole - how to measure the office's performance?
Gary Welsh of Advance Indiana today has quickly picked up on a story the ILB overlooked as she reviewed the Fort Wayne Journal Gazette, which surely must be the best paper in the state, with a good editorial staff and many top reporters.
In today's story Niki Kelly writes: "Inspector General David Thomas says he isn’t at liberty to even confirm the existence of a specific complaint, though some are publicly known."
Courts - U.S. Supreme Court should wrap up business this week
And it saved some of the most difficult cases for last. Mark Sherman of the AP did a preview yesterday. The Indianapolis Star has it today, here. The story has a good sidebar with a brief summary of the eight remaining cases awaiting decision.
Unfortunately the Star has truncated the main AP story somewhat - those wishing to read the longer version may access it here.
The ILB recommends this two-part "conversation" between Dahlia Lithwick and Walter Dellinger in Slate.
Ind. Gov't. - "Legislature’s revolving door"
"Legislature’s revolving door" is the headline to this editorial today in the Fort Wayne Journal Gazette, accompanied by photos of 7 former legislators now pursuing the craft of lobbying the General Assembly.
From the editorial:
Indiana legislators like to complain about the sacrifices they make for public service. Seldom do they mention the career opportunities their jobs afford.The editorial quotes Gov. Daniels:
Here’s a good example of someone who spun the revolving door, left the General Assembly and came out with a great job: State Rep. Robert Kuzman, D-Crown Point. He resigned his District 19 seat to become a lobbyist for Ice Miller, one of the state’s largest law firms.
“I believe that every citizen should have an open door to government, and those with interests before the Statehouse should be heard,” he said in a statement. “I look forward to helping the firm’s clients manage their legislative issues at the local, state and federal levels.”
And who better to handle your legislative issues than someone who was vice chairman of the House Ways and Means committee just months earlier?
It’s a practice no longer tolerated in the executive branch of state government, and it’s past time to ban it in the legislative branch.
Kuzman joins a growing list of lawmakers who move directly from a seat on the House or Senate floor to the adjacent corridors of influence. The state’s list of registered lobbyists reads like a “Who Was Who” of former lawmakers from both sides of the aisle: Ralph Ayres, Lawrence Borst, John Gregg, Luke Messer, Marc Carmichael, Brian Hasler, Markt Lytle, Michael Smith, Michael Phillips. They directly represent special interests, like casino owners and licensed beverage dealers, or serve in law firms hired to represent those interests.
Gov. Mitch Daniels praised the Lake County Democrat for his service but also noted the executive branch ban on such moves.The Indianapolis Star today has a related story headlined "Gambling antes up for lobbyists: About $2M is spent bending ears of state lawmakers," reported by Mary Beth Schneider and Karen Eschbacher. A quote:
“We fixed it in the executive branch as we lifted many other ethics standards, tightened many rules, put an inspector general in place to police them,” he said. “I think my views on this are well known. I’ve not made it my business to tell the legislature how to do theirs.”
The governor didn’t, however, acknowledge the loophole created by the General Assembly for executive staff members who leave their Statehouse offices to lobby not the agencies they once served but the legislature, where they likely cultivated friends and favor. Michael O’Brien, Daniels’ original legislative director, took advantage of that loophole to leave the governor’s office straight for BoseTreacy Associates LLC, a prestigious Indianapolis law firm, where his skill in lobbying the same legislators on Daniels’ behalf no doubt benefits Bose Public Affairs Group and its clients. Its stable also includes former GOP House Speaker Paul Mannweiler.
Two of the biggest gambling companies, Hoosier Park and its parent company, Centaur Inc., together went through $537,000, nearly 19 percent of the total spent by those on the list of the top 10 organizations that lobbied this year's legislature.The story is accompanied by a database of "what lobbyists spend," but frankly, the ILB had difficulty using it.,
In all, lobbyists of all kinds spent more than $23 million, most of it on salaries, in the months leading up to and during this year's legislative session.
That money -- spent from May 1, 2006, through April 30, 2007, according to reports lobbyists filed with the Indiana Lobby Registration Commission -- reflects the growing number of lobbyists who patrol the third floor of the Indiana Statehouse outside the House and Senate, and the intensity of the issues those lawmakers are debating.
"Quite frankly, the hallways are so full of people, I don't know who is working for whom," said state Rep. Chet Dobis, D-Merrillville. "The joke in the Assembly is that half those people out there are gambling lobbyists."
Well, not half. But with several gambling issues on the table in the session that ended April 29, they were among the most active. * * *
It's a roster that gave them ties to three former speakers of the House: Democrat Mike Phillips, now a lobbyist with Phillips & Phillips; Republican Paul Mannweiler, now a lobbyist with Bose Public Affairs; and Democrat Phil Bainbridge, now general counsel for Centaur Inc.
Saturday, June 23, 2007
Environment - What happens when the landowner denies access?
The are a number of Indiana statutes which allows proper officials to enter upon private property for inspection. For instance, IC 13-14-2-2:
The department [of environmental management] may have a designated agent, upon presentation of proper credentials, enter upon private or public property to inspect for and investigate possible violations of any of the following:What happens where the official is denied access? See this brief story today from the NWI Times, reported by Bill Dolan, headlined "Sheriff seeks access to E.C. business for environmental investigation." Some quotes:
(1) Air pollution control laws.
(2) Water pollution control laws.
(3) Environmental management laws.
(4) IC 13-18-9.
(5) IC 13-18-10.
(6) IC 13-19-2.
(7) IC 13-19-3.
(8) Any rule adopted by one (1) of the boards.
EAST CHICAGO | Lake County Sheriff Rogelio "Roy" Dominguez said he has obtained a court order to investigate a city business regarding possible environmental hazards.
The sheriff told the County Solid Waste Management District Board on Thursday night his office is looking into whether a yard in the 1000 block of 139th Street has been contaminated by a petroleum spill.
"We are looking at tires, oil and everything else," the sheriff said of his department's Environmental Crimes Unit.
Scott Musgrove, a supervisor for the environmental unit, alleges in a Superior Court document that he needs the court order to enter the yard because the property owner * * * refused to give his consent.
The sheriff said [the property owner] isn't being accused of any wrongdoing and declined further comment.
Ind. Courts - Huntington bans phones in courtrooms, not courthouses
An editorial in the Fort Wayne Journal Gazette this week (Allen County was the first to banish cell phones from the courthouse) suggested:
Local judges ... should at least consider banning phones from courtrooms but not from the buildings. Large signs should be placed at each courtroom entrance; judges can remind everyone of the ban when proceedings begin; bailiffs and security personnel can seize phones when they are displayed – or ring.Yesterday Dave Schultz of the Huntington Herald-Press reported that the Huntington courts had done just that:
No one is allowed to have a cell phone in either the Huntington Circuit Court or the Huntington Superior Court.
Circuit Court Judge Thomas Hakes and Superior Court Judge Jeff Heffelfinger have both signed an order that is posted on the doors of their courtrooms.
The notice says that phones will be confiscated. Anyone who has a cell phone in a courtroom shall “be subject to being held in contempt for violation of this Court Order.”
“In today's society, cell phones are more than just phones - they also serve as devices capable of taking pictures and video,” Heffelfinger said in a statement. “In an effort to avoid disruption in court proceedings from cell phones ringing and to avoid individuals from taking pictures or recording during court sessions, the ban on cell phones in the courtroom was instituted.” * * *
[Carmen Oswalt, who works in the Circuit Court office,] said spectators can leave phones with court personnel prior to entering the courtroom.
Ind. Law - "Attorney sues old firm over use of name"
Gavin Lesnick of the Evansville Courier & Press reports today:
An Evansville attorney is taking legal action to have his name removed from his former law practice.
F. Wesley Bowers filed a complaint in Vanderburgh Circuit Court this week, asking that Bowers Harrison LLP, the Downtown-based firm he left in 2005, be forced to immediately cease use of his name.
"They didn't ask if they could use it," Bowers said. "Then they said they're permitted to use it. I dispute that entirely."
Bowers, who started the practice in 1968 and has been practicing law for 55 years, retired as a partner five years ago but continued working as counsel until leaving completely in 2005.
When he made the transition from partner, Bowers said, he signed an agreement that "superseded all previous agreements" he had with the firm.
That, he said, took the place of his partner agreement, which allowed the practice to use his name. Ethics rules permit firms to continue to use partners' names even after they retire, but Bowers said that shouldn't apply since he is still practicing law, just not with his old firm.
"I don't think that means they can use the name if I'm living and I say they can't use my name," he said. " They're saying they have a right because of the ethics rule and that ethics rule doesn't apply."
A message left with Bowers Harrison LLP equity partner Joseph H. Harrison was not returned Friday afternoon.
Bowers' complaint also seeks an injunction against the firm telling clients that Bowers is retired.
The complaint includes a copy of firm letterhead that lists him as such.
He said that conveys false information that leads clients to believe he stopped practicing entirely.
"Some of my clients called and they said 'He's retired,'" Bowers said. "Well, I'm not retired. I'm just not part of the law firm."
Ind. Decisions - Outback Steakhouse case settled
On Nov. 8, 2006, the Indiana Supreme Court ordered a retrial in the case of Outback Steakhouse of Florida, Inc., Toncredi, Inc., and John Broz, d/b/a Outback Steakhouse of Muncie v. David D. and Lisa K. Markley. See a list of ILB entries on the case here.
Today Nick Werner of the Muncie StarPress reports:
MUNCIE -- A couple hurt in 1997 by an allegedly drunken driver after he left Outback Steakhouse have settled their civil lawsuit against the restaurant out of court.
How much the restaurant agreed to pay David and Lisa Markley was unavailable Friday afternoon. * * *
The Markleys were on their motorcycle the night of July 21, 1997, when they were struck by William Whitaker, Albany, and suffered serious injuries.
The couple alleged Whitaker became intoxicated at the grand opening party at Outback's Muncie restaurant. Witnesses said alcoholic beverages were served free of charge or for as little as a dime each.
The civil case had already been to trial once.
A Delaware Circuit Court 1 jury in June 2003 found in favor of the Markleys and ordered the restaurant to pay them $39 million.
The Indiana Supreme Court in November, however, overturned the verdict and ordered a retrial. The supreme court decision was based on the fact that the Markleys' attorneys did not notify Outback's attorneys about the planned testimony of a critical witness before the trial, an omission that constituted misconduct.
That witness, former Outback server Patrice Roysdon, eventually testified Whitaker was visibly drunk at Outback, changing her account of the evening from an earlier deposition.
A second trial had been scheduled for Sept. 4-14.
Ind. Law - More confusion about the sex offender law requirements
The ILB has had a number of entries from various Indiana locales about whether the Indiana sex offender law that went into effect July 1, 2006 requires that sex offenders already living within 1,000 of a school, etc., must move. See this June 7th entry and this one from June 6th for background.
Today a story in the Fort Wayne Journal Gazette begins:
Some sex offenders living near parks or schools have to move under Indiana law – or do they?
In Huntington County, the sheriff and prosecutor are at odds over who should have to move.
In August, Sheriff Kent Farthing sent letters to 18 sex offenders declared sexually violent predators or offenders against children, telling them they couldn’t live within 1,000 feet of a school, child-care center or public park.
But after receiving advice from his legal counsel, he changed his mind.
The wording of the law does not make it clear as to whether it applies to offenders convicted before July 1, 2006, when the law took effect, Farthing said.
Other counties have also decided the law’s retroactivity isn’t clear and aren’t enforcing it until Indiana’s courts or legislature makes that determination, he said.
“I’m the only one in this chain of events that’s liable,” Farthing said. “I’ll be the first one to be sued over this.”
Eleven offenders had already moved by late October, when Farthing sent another letter to the remaining seven offenders.
The brief letter told the offenders that until the law has been defined more clearly, Farthing was giving them permission to remain at their address, the sheriff said.
Meanwhile, Huntington County Prosecutor Amy Richison received complaints from residents in the city of Huntington about apparent violations that weren’t being addressed.
She informed those offenders they would have to move within 30 days, and they told her the sheriff had given them permission to stay, she said.
Not law but interesting - "IU's Palmer stepping into new position"
IU Media Relations is reporting:
Indiana University President Adam W. Herbert announced today (June 22) that he has accepted with regret the resignation of Judith G. Palmer as Vice President and Chief Financial Officer, effective July 31.She was (is until the end of July) the highest ranking woman in the Indiana University administration. I had the good fortune of working for Judith Palmer when she was State Budget Director and certainly attest to all the fine things that have been said about her by the past and present Indiana University presidents.
Palmer, who has served as an IU vice president for 20 years, will take a six-month leave of absence and then return to IU in a newly created position of Director of the Office of Legislative and Policy Analysis, which is being created by President Elect Michael A. McRobbie.
The announcement was made during the Board of Trustees meeting at IU Northwest.
"Judy has done a tremendous job of managing Indiana University finances under four presidents," Herbert said. "Our credit rating is higher than it has ever been. Our financial management system is considered a model of efficiency for institutions of higher education, and our investments are providing us with maximum returns. These are truly exemplary accomplishments." * * *
In her new position, Palmer will be based in Indianapolis and will review state laws and all legislation that affects Indiana University with a view toward developing a prioritized agenda for legislative initiatives aimed at helping the university pursue its missions of education and research more effectively.
Palmer came to IU in 1985 from state government, where she had worked as state budget director and chief fiscal adviser to the late Gov. Bob Orr. Before that, she had been a senior budget analyst and executive assistant to Gov. Otis Bowen.
As IU's vice president and chief financial officer, Palmer was responsible for developing IU's $2.4 billion annual budget and aligning IU's legislative requests with its budgetary needs. Her efforts helped IU win a funding formula for research support, funding to establish the School of Informatics and initial funding for IU's Life Sciences Initiative.
Palmer served as former IU President Myles Brand's finance chief during his entire tenure which ran from 1994 to 2002.
"It was my pleasure and good fortune to serve with Judy Palmer," Brand said. "She is a person of enormous ability and significant personal commitment to Indiana University. Her financial expertise saved millions for the university and advanced the state, and her leadership enabled the university to develop a financial management system that is second to none in higher education."
IU Board of Trustees President Steve Ferguson said he is sorry to see Palmer step down as the university's top financial officer, but pleased that IU will still benefit from her expertise in legislative matters.
"Judy has kept the Board of Trustees well informed on every aspect of university finances," he said. "She is a person of great integrity. In my nine years as a trustee, I always felt that I had a good fix on fiscal matters, thanks to Judy's hard work."
Palmer earned a bachelor's degree from IU in 1970 and graduated cum laude from the IU School of Law-Indianapolis, in 1974.
She joined IU in 1985 as special assistant to the president and associate professor in the School of Public and Environmental Affairs. She was promoted to vice president for planning in 1986 and assumed responsibilities as vice president and chief financial officer in 1994.
Ind. Courts - "He was trying to put her over that railing"
Joe Gerrety reports in the Lafayette Courier & Press today, in a story that begins:
A Lafayette man, apparently angry about a judge's ruling in a civil lawsuit, is accused of attacking a Fort Wayne attorney at the Tippecanoe County Courthouse on Friday morning.
"He was trying to grab her and all I could do is start screaming," said Jan Ermel, a member of the staff of Tippecanoe Superior Court 2 who witnessed the attack. "He was trying to put her over that railing. Oh my god -- I thought she was going to go over!"
Other lawyers present on the fourth floor of the historic courthouse intervened and separated the victim, Linda Polley, from her alleged assailant, Russell A. Timmons, 48, of Lafayette. He was arrested on suspicion of battery and taken to the Tippecanoe County Jail.
Polley was visibly shaken and had redness around her neck but declined medical treatment. Timmons, 5-foot-11 and 270 pounds, ended the attack after he was confronted by his own lawyer.
"It's the scariest thing I've ever gone through," Ermel said of witnessing the attack.
The incident occurred around 10:50 a.m., during one of the busiest periods of the courthouse workweek. Screaming by the victim and Ermel quickly drew the attention of several bailiffs and brought employees out of their offices and attorneys out of other courtrooms.
The courthouse rotunda is open from the fourth floor to the second floor; the openings are protected by a waist-high railing. The round third-floor rotunda opening is smaller than the fourth floor's.
Ind. Decisions - "Court rules city may take utility"
The Fort Wayne Journal Gazette has a story today, reported by Niki Kelly and Benjamin Lanka, on yesterday's Supreme Court ruling in In Utility Center, Inc., d/b/a Aquasource v. City of Fort Wayne - see yesterday's ILB entry here. Their story begins:
The Indiana Supreme Court ruled Friday that the city of Fort Wayne has the right to take Aqua Indiana’s northern utility system by eminent domain.ILB - In his opinion, Justice Sullivan wrote:
The 3-2 decision came after 15 months of deliberation on the case.
Attorneys for Aqua Indiana argued that Fort Wayne lost the ability to condemn healthy utilities when the General Assembly passed a law written by Sen. David Long, R-Fort Wayne, in 1999.
In this case, a municipality seeks to acquire a portion of the operations of a privately-owned utility that serves a portion of the City recently annexed. We hold that it may do so pursuant to the requirements of Indiana’s general eminent domain statute.From the Journal Gazette story:
The city also said the utility – formerly known as Utility Center – refused to negotiate, so it became necessary to condemn the property. The city proceeded under a general state law regarding a city’s right to eminent domain, but the Indiana Court of Appeals ruled the city must follow the specific utility statute written by Long.This is an interesting statutory construction case, and the ILB was particularly pleased with Justice Sullivan's discussion of the structure of the Indiana Code. [see footnote]
Long signed an affidavit saying the intent of the law was to prevent a municipal utility from using its power of eminent domain to acquire a healthy utility.
Instead, the Indiana Utility Regulatory Commission would have to declare the utility “troubled” – something that was true at one time of Aqua Indiana but no longer.
The Supreme Court’s decision was based solely on statutory construction and said while the court respects Long’s work in the field, the justices were “unable to conclude that his intent in this regard was enacted into law.”
Most important, however, was the discussion of the impact, if any, of a legislator's affidavit of what he intended as author of a provision:
Finally, we make note of the fact that Senator David C. Long, the author of chapter 30 when it was enacted by the Legislature in 1999, filed an affidavit and supporting exhibits with the trial court in this matter, explaining his “intent as the author” of the statute. The trial court declined to consider the affidavit and the Court of Appeals affirmed, reflecting this Court’s policy that “[i]n interpreting statutes, we do not impute the opinions of one legislator, even a bill’s sponsor, to the entire legislature unless those views find statutory expression.” A Woman’s Choice-East Side Women’s Clinic v. Newman, 671 N.E.2d 104, 110 (Ind. 1996) (citing O’Laughlin v. Barton, 582 N.E.2d 817, 821 (Ind. 1991)). * * * We respect Senator Long’s work in this field but, for the reasons set forth above, are unable to conclude that his intent in this regard was enacted into law.The ILB has accessed these earlier cases. Here is the quote from O'Laughlin:
Finally, O'Laughlin argues that the trial court improperly considered Plaintiff's Exhibits 1 through 4, the affidavits of Young, Server, Becker, and Brown, respectively, as evidence that the legislature intended Senate Enrolled Act No. 15 to apply retroactively to the case at bar. When legislation is susceptible to several widely different constructions, a court may look to the journals of the two legislative bodies to infer legislative intent. County Dep't of Pub. Welfare v. Potthoff (1942), 220 Ind. 574, 44 N.E.2d 494. However, the motives of individual sponsors of legislation cannot be imputed to the legislature, absent statutory expression. Tinder v. Clarke Auto Co. (1958), 238 Ind. 302, 149 N.E.2d 808. [emphasis added]Note that this rule is sometimes confused with the "enrolled act rule." As stated in Taxpayers Lobby of Indiana v. Orr, 262 Ind. 92, 311 NE2nd 814 (1974):
Several issues are here grouped under the central theme of unconstitutionality by reason of improper legislative procedures. With respect to this theme, we are confronted at the threshold by the "Enrolled Act Rule." The act in question bears the signatures of the presiding officers of the General Assembly, and the courts of this state have consistently held for over one hundred years that those signatures conclusively establish the due passage of an act. Our courts do not go behind or receive evidence going behind an enrolled act in order to determine if the General Assembly did, in fact, comply with the constitutional procedural requirements * * * This is a rule of substantive law and not of evidence, and there is no pleading known to the law by which the existence of an act can be put in issue and tried as a question of fact."._____________
Plaintiffs have cited a number of cases from other jurisdictions in avoidance of the "Enrolled Act Rule." Such cases are not persuasive with us. They are from jurisdictions following the "Journal Entry Rule," which holds that the courts may properly look to legislative journals to determine if constitutional procedural requirements were met. In Evans, Auditor of State v. Browne, supra, we expressly rejected that rule as an "essentially mischievous doctrine." [emphasis added]
For details on the decisionmaking involving in creating the structure of the Indiana Code, see pp. 78-80 of my 1971 article, "The Indiana Code of 1971, Its Preparation, Passage, and Implications." [Warning - very large pdf]
Ind. Decisions - "Court overturns conviction in disc jockey charade"
The Indiana Supreme Court on Friday overturned an Indianapolis man's conviction for posing as a radio disc jockey and tricking men into disrobing.
In a two-part decision, the court ruled Richard C. Brown's actions didn't rise to criminal confinement or identity deception, both low-level felonies.
Brown, 43, was sentenced to five years in prison in June 2005 after a jury convicted him of three counts of each charge. He was accused of luring three men to his Eastside home; he offered $50,000 or a car if they would strip, then leave wearing only a small T-shirt. Two men did.
"From the beginning, there was a problem with the charges," said Joel Schumm, Brown's appellate attorney.
The court ruled 4-1 to strike the words "fraud" and "enticement" from Indiana's criminal confinement law because they are too vague, but it left the rest of the statute intact.
It also ruled unanimously that Brown didn't commit identity deception because he didn't impersonate a real employee of WNOU-FM (93.1).
Ind. Courts - Trial is recorded in its entirety by television camera, for the first time in Indiana
Indianapolis WTHR reports:
Indianapolis - "State vs. Paul Fox." Judge Patricia Gifford called the case shortly after 9:30 Friday morning. She would sit in judgment of Paul Fox, a 50-year-old Indianapolis man accused of five felony counts for a confrontation with police at his home the morning of November 12, 2006.The story includes a link to a news clip, the same one that was aired last evening. The ILB was disappointed that WTHR choose to show less than 30 seconds worth of the trial itself, in brief sound bites of less than 10 seconds each, in the course of its 1:53 video story.
Court trials are not unusual for Judge Gifford. But for the first time in Indiana, this trial would be recorded in its entirety by television camera.
Under the Indiana Supreme Court's pilot program, launched last summer, the defense and prosecution had to agree to let cameras capture the proceedings.
"I didn't care one way or the other," Fox said. "(The camera) didn't make any difference to me."
Fox has been the rare exception during this experiment that's lasted almost a year - a defendant who doesn't mind being accused of breaking laws in front of a judge and tens of of thousands of television viewers. * * *
After 70 minutes, Gifford found for the state, and Fox was instructed to see his probation officer and come back for sentencing on August 3. He and [his attorney, William Wurster] left the court together, then met the gathered television cameras the hallway, along with [Deputy Prosecutor Marie Castetter and legal intern Adam Berry].
All parties agreed the single camera in the back corner of the courtroom did not affect the trial.
"Maybe just knowing the cameras were back there was a little bit nervous," Castetter said, "but after awhile, you just kind of forget they're back there."
"Didn't distract me at all, let's put it that way," Wurster said.
Wurster added that citizens might benefit from seeing how a trial works, "A lot of people are afraid of the system and the process, and this might make them more relaxed."
The Supreme Court will evaluate the pilot project later this year.
For background, see this March 22nd ILB entry.
[More] The Indianapolis Star has posted this AP story.
Friday, June 22, 2007
Ind. Decisions - Transfer list for week ending June 22, 2007
Here is the Indiana Supreme Court's transfer list for the week ending June 22, 2007.
Note that several of these transfers with opinion were reported in this ILB entry June 20th. Note also that there are two pages to today's list, each page lists three cases.
Over three years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
Ind. Decisions - Here is the Supreme Court's fourth opinion today
In State Ex Rel Kurt M. Hoffman v. Allen Circuit Court, a 3-page, 5-0 opinion, Justice Dickson writes:
By a summary order indicating that an explanatory opinion would follow, this Court on May 15, 2007, denied the relator's petition for a writ of mandamus. The relator had challenged under Indiana Trial Rule 53.2(A) the failure of the Clerk of the Allen Circuit Court to withdraw a cause from the respondent judge for failure to rule within ninety days. * * *
But we take this opportunity to disapprove future use of devices such as the order pre-suming agreement absent objection to extend a court's time for ruling. To provide guidance to the bench and bar, we hold that a trial court may not avoid its obligation to make timely deci-sions by issuing such an order presuming agreement to extend the time absent objection from the parties. The exception provided in the rule means exactly what it says. It applies only where the parties "stipulate or agree on record that the time limitation for decision set forth in this rule shall not apply." T.R. 53.2(B)(1). The failure of parties to object to a judicial declaration presuming their agreement does not satisfy this requirement that they stipulate or agree on the record. Henceforth, a fact pattern analogous to that presented today will require withdrawal from the trial court and appointment of a special judge by this Court. The ninety-day requirement for ju-dicial action operates irrespective of whether proposed findings and conclusions are contem-plated. Receiving proposed findings of fact and conclusions of law from the respective parties may be a judicial convenience, but it is not a necessity to a court's decision-making function.
Ind. Decisions - Supreme Court issues at least three today
In Utility Center, Inc., d/b/a Aquasource v. City of Fort Wayne, Indiana, a 17-page, 3-2 opinion, in a case in which oral arguments were heard March 9, 2006, Justice Sullivan writes for the majority:
Water and sewer service is provided in Indiana cities by the municipalities themselves or by private, investor-owned utilities. In this case, a municipality seeks to acquire a portion of the operations of a privately-owned utility that serves a portion of the City recently annexed. We hold that it may do so pursuant to the requirements of Indiana’s general eminent domain statute. * * *In Juan J. Vasquez v. State of Indiana, a 6-page, 5-0 opinion, in a case in which oral arguments were heard March 1, 2007, Justice Dickson writes:
We make several concluding observations is support of this result.
First, it is clear to us that the 1982 changes that established article 1.5 – the municipal utilities article – in title 8 effected a substantive change in the referendum requirement. * * *
Second, reading the Legislature as subjecting utilities to the general eminent domain statute seems to us entirely consistent with the dictates of Ind. Code §§ 8-1-2-92 & 93 set out early on in this opinion. A utility like Utility Center holds an indeterminate permit subject to the authority of a municipality like the City to purchase its property. Such a utility does not have the authority to designate a particular condemnation procedure.
Third, and perhaps most important, both the utilities title and the eminent domain article mandate that Utility Center be paid the fair market value of its property that the City seeks to ac-quire as well as the damages, if any, to the residue of its property caused by taking out the part the City seeks to acquire. I.C. §§ 8-1-2-92 & 93; I.C. § 32-24-1-9.
Conclusion. We grant transfer and affirm the judgment of the trial court with respect to its decision to grant summary judgment in favor of the City.
Rucker, J., concurs. Shepard, C.J., concurs with separate opinion. Boehm, J., dissents with separate opinion in which Dickson, J., concurs.
Boehm, J., dissenting. I accept the majority’s conclusion that the placement of Section 8-1-30-6 in the Indiana Code as a part of a new Chapter 30 added in 1999 suggests that it may be limited to distressed utilities. But the language of the section is quite unequivocal:Sec. 6. A municipality or other governmental unit may not require a utility company that provides water or sewer service to sell property used in the provision of such service to the municipality or governmental unit under IC 8-1-2-92, IC 8-1-2-93, or otherwise, unless the procedures and requirements of this chapter have been complied with and satisfied.* * * Whatever the policy considerations may be, it seems to me that this section was carefully crafted to apply to all utilities. If that is not a proper reading of Section 6, the General Assembly could easily correct it, and the City could then initiate a new eminent domain proceeding. Be-cause I believe the Court of Appeals correctly resolved this issue, I would deny transfer. Given that transfer has been granted, I respectfully dissent.
The defendant, Juan J. Vasquez, appeals his conviction of burglary on the sole ground that the trial court improperly excluded the testimony of a late-disclosed witness. The Court of Appeals affirmed the trial court's conviction in a memorandum decision. We granted transfer, vacating the Court of Appeals opinion, Ind. Appellate Rule 58, and now reverse the trial court. * * *In Richard Brown v. State of Indiana, an 8-page, 5-0 (with one dissent to Part I) opinion, in a case in which oral arguments were heard Jan. 30, 2007, Justice Dickson writes:
An erroneous exclusion of evidence does not, however, require a reversal if "its probable impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect the defendant's substantial rights." Williams, 714 N.E.2d at 652; accord Fleener v. State, 656 N.E.2d 1140, 1142 (Ind. 1995); Ind. Trial Rule 61. The State does not argue harmless error but commendably acknowledges that Perez's probable testimony would have been important to the defendant's case. The exclusion of Perez as a defense witness in this case significantly impinged upon defendant's substantial rights. We reverse the judgment of the trial court and remand for a new trial.
The defendant, Richard Carlos Brown, appeals his convictions and resulting sentence on three counts of criminal confinement and three counts of identity deception, all class D felonies. The Court of Appeals reversed the criminal confinement convictions, finding the applicable statutory provisions unconstitutionally vague, but it affirmed the convictions for identity decep-tion and remanded for sentencing. Brown v. State, 848 N.E.2d 699, 713, 716 (Ind. Ct. App. 2006), aff'd on reh., 856 N.E.2d 739 (Ind. Ct. App. 2006). Both the defendant and the State sought transfer, which we granted. Brown v. State, 860 N.E.2d 599 (Ind. 2006) (table). Finding that the criminal confinement statute cannot serve as a basis for the convictions in this case and that the evidence is insufficient to establish all of the statutory elements of identity deception, we reverse. * * *
The defendant's convictions for criminal confinement and identity deception are each re-versed, and we remand for further proceedings in conformity with this opinion.
Sullivan, Boehm, and Rucker, JJ., concur.
Shepard, C.J., dissents as to part 1 and concurs as to part 2, without separate opinion.
Ind. Decisions - Court of Appeals issues 7 today (and 16 NFP)
For publication opinions today (7):
In Brockmann Enterprises, LLC v. City of New Haven, et al, a 13-page opinion on rehearing, Judge Bailey writes:
The City of New Haven (“City”), the City’s Department of Storm Water Management (“Department”), the Department’s Board of Directors (“Board”), and the City’s Storm Water Taxing District (collectively “Defendants”) filed a Petition for Rehearing of this Court’s Opinion of February 21, 2007, invalidating certain provisions of City Ordinance G-04-02 (“Ordinance”). For the reasons described below, we grant the Petition for Rehearing, vacate our Opinion of February 21, 2007, and affirm the trial court’s order of April 26, 2006. * * *For background, see this Feb. 24, 2007 ILB entry.
In their Petition for Rehearing, the Defendants argue that, to the degree the process of adopting the Ordinance varied from statute, it was de minimis. Generally, any question not argued on appeal cannot be raised for the first time in a petition for rehearing. * * *
The Defendants argued in their Appellees’ Brief that the process for adopting the User Fee complied with the Home Rule Act, the chapter regulating municipally owned utilities, and the chapter regulating departments of storm water management. In so arguing, the Defendants added in one sentence that “any departure from the . . . statutory procedure is of insufficient magnitude to render the Ordinance invalid.” * * * The argument was not further developed. Nonetheless, we conclude that the argument was sufficiently presented to permit our consideration on rehearing. * * *
[The Court relies mainly on the Supreme Court's reliance on the de minimus doctrine in D&M Healthcare where the Court upheld a governor's veto even though he did not comply with the precise requirements of the Constitution. The ILB wrote much about this case at the time. The entries are posted at the old ILB location - here is a list. Unfortunately, the links don't work directly, they need to be converted. I have converted the final one from Dec. 17, 2003 - access it here. Here is the 12/17/03 opinion in D & M Healthcare, Inc., et al. v. Joseph E. Kernan.]
We conclude that the variance between the procedure set forth in statute and the procedure by which the City set the initial User Fee was de minimis. Further, we conclude that the maximum monthly User Fee for non-residential property did not violate Article I, Section 23 of the Indiana Constitution. Therefore, we vacate this Court’s Opinion of February 21, 2007 and affirm the order of the trial court.
BARNES, J., concurs.
VAIDIK, J., dissents with separate opinion. [which begins:] I must respectfully dissent from the majority’s holding that: (1) the Defendants did not waive their argument that their failure to comply with the statutory procedure for setting the initial storm water user fees was excusable under the de minimis doctrine; and (2) the variance from the statutory procedure for setting the initial user fees was de minimis. * * *
Therefore, I respectfully dissent from the majority’s conclusion that any variance from the precise procedure was de minimis. Instead, I would deny the Defendants’ petition for rehearing and reaffirm the holding in our original opinion that “the City of New Haven lacked authority to establish the Storm Water Service Charge in a manner contrary to the process contained in [the] statute.”
In Terri A. Hanninen v. Eric Koch, Admin. of Estate of Carrie A. Gardner, an 8-page opinion, Judge Barnes writes:
Terri Hanninen appeals the trial court’s grant of attorney’s fees, costs, and expenses to the estate of Carrie A. Gardner Jackson. * * * Hanninen raises two issues, which we restate as: I. whether the statute authorizing the award of attorney’s fees in this case is unconstitutional; and II. whether the statute authorized the award of attorney’s fees to an attorney hired by an insurance company. * * * The trial court properly awarded Gardner Jackson $1000 in attorney’s fees, costs and expenses.Tracy Thomas-Collins v. State of Indiana - "Tracy Thomas-Collins (“Thomas-Collins”) appeals her cumulative ten-year sentence for Burglary as a Class B felony and Possession of a Schedule II Controlled Substance within 1000 feet of school property, a Class C felony. Concluding that the trial court did not abuse its discretion in finding, weighing, and balancing the aggravating and mitigating circumstances and that Thomas-Collins’ sentence is not otherwise inappropriate, we affirm the judgment of the trial court."
In T.B., George and Cathy Bruce v. Murl L. and Vicki L. Dobson, and State Farm Casualty Co., a 13-page opinion, Judge Crone writes:
We restate the issues as follows: I. Whether the homeowner’s insurance policy issued by State Farm to Murl L. Dobson and Vicki L. Dobson excludes coverage for Murl’s molestation of T.B.; and II. Whether State Farm impliedly waived the exclusion as an affirmative defense. * * * Affirmed.In James Peel v. State of Indiana , a 14-page opinion, Chief Judge Baker writes:
SHARPNACK, J., concurs.
SULLIVAN, J., dissents with separate opinion. [which begins:] It is my view that the policy taken as a whole, vis-à-vis the matter at issue, is ambiguous and is to be construed most favorably in favor of the insured. As noted in the majority opinion, any doubts as to coverage are construed against the insurer.
Appellant-defendant James E. Peel brings this interlocutory appeal challenging the trial court’s denial of his motion to suppress marijuana found in his motel room. Specifically, Peel argues that the motion should have been granted because the police officers’ search of his motel room was illegal, inasmuch as Peel and his roommate were in custody and were not informed of their right to counsel before police obtained consent to search. Hence, Peel argues that his roommate’s consent to the search was invalid and that his right to be free from unreasonable search and seizure under the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution was violated. Concluding that Peel and his roommate were in custody when the police officers allegedly obtained consent to search the room and that the men had not been advised of their Miranda1 rights before allowing the police to search, we reverse the judgment of the trial Court.Indiana State University v. Review Board, and William A. Lafief - "Appellant-respondent Indiana State University (ISU) appeals the decision of the Review Board of the Department of Workforce Development (Review Board), which determined that appellee-claimant William C. LaFief was entitled to unemployment benefits. Specifically, ISU claims that the Review Board erroneously concluded that LaFief had been discharged from his position at the university and was, therefore, eligible for benefits. Concluding that the Review Board erred in determining that LaFief was eligible for unemployment benefits because he had not been discharged from his employment at ISU, we reverse. * * * The judgment of the Review Board is reversed."
Samantha Laney v. State of Indiana - "The trial court did not err in permitting the State to amend the charging information and in refusing to dismiss the amended information. There was sufficient evidence to support Laney’s conviction. Finally, the trial court properly concluded that her sentence was partially non-suspendable. We affirm."
NFP civil opinions today (7):
Tram Development Group, Inc. v. Joseph & Florence Maginot (NFP) - "TRAM agreed to purchase fifty acres from the Maginots, not as much or as little property as was developable. We remand, however, for the reassessment of damages and the recalculation of simple prejudgment interest. We affirm in part, reverse in part, and remand. Affirmed in part, reversed in part, and remanded."
Jackie Weekly Habegger v. Division of Family & Children (NFP) - "Jackie Habagger (“Mother”) appeals the trial court’s involuntary termination of her parental rights with respect to A.H., a minor child. Mother raises one issue for our review, which we restate as whether the DeKalb County Office of the Indiana Department of Child Services (“DCS”) failed to provide her with proper notice of the termination hearing pursuant to Indiana Code Section 31-35-2-6.5. We reverse. * * * Again, based on the heightened protections afforded parents in termination proceedings, Mother was statutorily entitled to service of the notice of the continued hearing date as described by Indiana Code Section 31-35-2-6.5 and Trial Rule 5. Although it is undisputed that Mother had actual notice of both the original March 21-22, 2006, hearing dates and the continued May 18-19 dates, that notice expired when the hearing was moved to May 16-17. See In re C.C., 788 N.E.2d at 850-52. As the DCS did not send notice to Mother’s last known address following the most recent change in the hearing date, we must reverse the termination of her parental rights. Reversed."
Phyllis Wilson and Robert Tucker v. Dean Myers and Edward D. Jones & Co. (NFP) - "Appellants-plaintiffs Phyllis Wilson, as the personal representative of the Estate of Verlie L. Tucker (the Estate), and Robert Tucker (Robert) (collectively, the appellants) appeal from the trial court’s grant of summary judgment in favor of appellees-defendants Dean Meyers and Edward D. Jones & Company, L.P. (Edward Jones) (collectively, the appellees). Specifically, the appellants argue that the trial court erred by concluding that their claims were barred because they should have brought them in a previous suit between these parties. Finding that the trial court properly concluded that the appellants’ claims were precluded under the principle of res judicata, we affirm the judgment of the trial court. * * * In sum, the appellants do not convincingly explain why they could not have brought their current claims against the appellees during the original litigation, and we find that their current claims are inextricably woven to the claims from the original litigation. Because the appellants’ current claims could have been or, more appropriately, should have been determined by the trial court in the original litigation, we find that the doctrine of res judicata precludes the appellants from bringing these claims in a separate action. Therefore, the trial court properly granted summary judgment in favor of the appellees."
Keith Marchal v. Paula Craig (NFP) - child support, affirmed.
Rita and Robert Beck v. Carol Cramer, Christian Haskin and Jeffrey Peek (NFP) - "Rita Beck and Robert Beck appeal from the small claims court’s denial of their “Petition to Reverse Order Dismissing Cause” following the dismissal of their complaint with prejudice. However, because the Becks did not timely file their notice of appeal, we do not reach the merits of their contentions on appeal. We dismiss."
In Thomas Strittmatter v. The Spinnaker Cove Homeowner's Association (NFP), a 9-page opinion, Chief Judges Baker writes:
Appellant-defendant J. Thomas Strittmatter appeals from the trial court’s order directing him to permit appellee-plaintiff The Spinnaker Cove Homeowners Association, Inc. (the Association), to replace his unauthorized patio door at the Association’s expense, to remove his unauthorized window and return the building to its original condition at Strittmatter’s expense, and to pay the Association’s attorney fees and costs. In particular, Strittmatter contends that the trial court erroneously concluded that the contractor who performed the renovations did not have apparent authority to act as the Association’s agent and consent to the projects. Finding no error, we affirm the judgment of the trial court. * * *Troy S. Flick, Jr. v. Jamie R. Flick (NFP) - custody, affirmed.
Here, there is no evidence in the record that the Association, as the alleged principal, made any statements or took any actions that could have led Strittmatter to believe that the contractor was authorized to approve the projects. Indeed, there is no evidence in the record that the Association was even aware of Strittmatter’s renovations until they were already completed. Moreover, Strittmatter was well aware that he was obliged to seek approval from the Association for these projects, inasmuch as he served time on the Board of Directors and the Architectural Review Board, had been a party to previous litigation with the Association surrounding this precise issue, and had sought approval for previous renovation projects. There is no evidence that the Association has ever led Strittmatter to believe that a siding contractor had the authority to approve renovations on its behalf. Consequently, we find that the contractor did not have apparent authority to act as the Association’s agent in this matter.
Inherent authority, on the other hand, is grounded in neither the principal’s conduct toward the agent nor the principal’s representation to a third party, but, rather, in the very status of the agent. * * * Inherent authority does not apply to “lower-tiered employee[s] or a prototypical ‘general’ or ‘special’ agent, with respect to whom actual or apparent authority might be at issue.”
Here, the person with whom Strittmatter dealt was an employee of the contractor—someone who was onsite to renovate the community’s siding. It is evident that this is precisely the type of “lower-tiered employee” to whom the concept of inherent authority simply does not apply. Consequently, the trial court properly concluded that the contractor did not have authority to consent on the Association’s behalf to the renovation of Strittmatter’s patio door or the installation of the window.
NFP criminal opinions today (9):
Ind. Courts - More on Judge Bradford appointment
Here is the press release just issued by the Governor's office:
INDIANAPOLIS (June 22, 2007) – Governor Mitch Daniels announced today that he has selected the Honorable Cale J. Bradford, Marion Superior Court, to the Indiana Court of Appeals for the Second District. This is Daniels’ first appointment to the 15-member court.An ILB posting on the appointment from earlier today is available here.
The vacancy was created by the retirement of Judge Patrick D. Sullivan, who has served for nearly 38 years. Sullivan was first elected to the court in 1968 and is the only current member who was elected before the start of the retention selection system. Bradford’s appointment is effective August 1.
“The Nominating Commission made sure I’d get this right: the three candidates they sent were highly experienced and eminently qualified. The Court of Appeals reviews many criminal trials, and it’s here where Judge Bradford’s deep experience really stands out,” said Daniels.
The Indiana Judicial Nominated Committee provided three nominees to Daniels in May. The other nominees were the Honorable William J. Hughes, Hamilton Superior Court 3 and the Honorable Robyn L. Moberly, Marion Superior Court.
Bradford, 46, of Indianapolis, has served on the Marion Superior Court since January 1997, first in the criminal division, and since 2004, in the civil division. His colleagues elected him as presiding judge of court twice, serving from 2003 to January 2007. Among his significant achievements, Bradford played a lead role in a successful effort to end three decades of federal court oversight of Marion County’s chronically overcrowded jail. He also implemented more efficient management practices for the court and helped bring important changes to the Marion County Juvenile Detention Center, including installation of surveillance and security equipment that is being installed this year.
“The best way I can demonstrate my gratitude is to do an exemplary job, and I’m going to do that for many years in this state,” said Bradford. “People know that I have a lot of common sense, I’m fair, and I’m collegial. I’ve been doing that all of my life and I have no intention of changing those qualities.”
Before joining the Marion Superior court bench, Bradford was chief trial deputy in the Marion County Prosecutor’s Office in 1995 and 1996, serving as lead counsel in several high profile prosecutions and overseeing a staff of more than 100 attorneys. He also served 5 years as an Assistant United States Attorney (Southern District of Indiana), prosecuting major felony drug trafficking cases in federal court.
From 2004 to January 2007, Bradford served as the chair of the Marion County Criminal Justice Planning County, a group of elected and appointed local government leaders who participate in strategic planning of county criminal justice issues, including overcrowding, staffing, and funding. Apart from his judicial role, Bradford has been involved with the John P. Craine House, which is a residential alternative to incarceration for women with pre-school children, serving on the advisory board of directors for several years. He also is a current member of the Lawrence Youth Football League Advisory Board of Directors.
Bradford earned his undergraduate degree and his law degree from Indiana University.
A photo of Bradford may be found at this link.
Ind. Courts - More on "Rios trial costs ballooning: Court to request another $340,000 for murder case"
In this entry from June 16th, the ILB quoted from a Fort Wayne News Sentinel story that began: "Allen Superior Court officials are asking County Council for another $340,945 on top of the estimated $100,000 already spent on Simon Rios’ death-penalty case, and Rios’ lead attorney believes even more will be needed."
Today Amanda Iacone of the FW Journal Gazette reports that:
The Allen County Council agreed Thursday to put an extra $341,000 in the Superior Court budget to help pay for the upcoming death-penalty trial for Simon Rios and related pretrial hearings.The story goes on to detail the trial costs.
Courts - "FTC warns states on attorney ad limits"
The Long Island Business News contains a report today that begins:
States looking to beef up rules restricting how attorneys advertise can expect this warning from Washington: Proceed with caution.Here is the page on the Indiana Court site soliciting public comments on proposed rule changes, including one regarding attorney advertising that is 22-pages long and dated 4/20/07. The page indicates comments were due May 11th (which wouldn't give that much time). Comments received apparently are not available for public review.
In the last 18 months, the Federal Trade Commission has urged six states, including New York, to carefully consider the potential anti-competitive impact of proposed rules seeking to tighten restrictions on attorney advertising, warning that the changes could adversely impact consumers by making a good lawyer much harder to find.
“The commission and its staff have a longstanding interest in the effects on consumers and competition from the regulation of lawyer advertising,” FTC staff members wrote in a May letter to the executive director of the Indiana Supreme Court regarding a proposed rule change. This echoed sentiments in letters sent to court and bar association officials in New York, Florida, Louisiana, New Jersey and Texas since the beginning of 2006. * * *
The FTC, while acknowledging the “important policy concerns” states have in “preventing statements that would deceive or mislead lay people and thereby undermine public trust in lawyers and the legal system,” urged Indiana – like other states – to tread carefully.
“Imposing overly broad restrictions that prevent the communication of truthful and non-misleading information that some consumers may value is likely to inhibit competition and frustrate informed consumer choice,” read the FTC letter to Indiana officials. The Supreme Court’s most recent look at lawyer advertising “was not of the same spirit as the FTC warnings,” said Awad, a member of the Garden City-based firm Silberstein, Awad & Miklos. The court gave deference to local decision-making, he said. [emphasis added]
Here, however, is a copy of the May 11, 2007 FTC letter addressed to Ms. Lila G. Judson, re "Proposed Amendments to Indiana Rules of Court Concerning Attorney Advertising." Here is the FTC press release relating to the letter, dated May 15, 2007.
Ind. Courts - Governor names Cale Bradford to Court of Appeals
Marion Superior Court Judge Cale Bradford was named by Governor Daniels this morning.
For background, see this ILB entry from May 11th listing the three finalists for Judge Sullivan's seat on the Court of Appeals.
For more on Judge Bradford, see this ILB entry from Jan. 30th titled "Judge tosses lawsuit over school finances", this one from Dec. 9th, 2006 headed "More on workplace bullying decision", this one from Aug. 13, 2006 titled "It's good to be the king and it's good to be a judge" , this one from Aug. 18, 2005, titled "More on Court of Appeals Wicca Decision," and this one from Feb. 20, 2005, titled "Marion Superior Court presiding judge Cale Bradford." See the entire ILB list of entries containing "Bradford" here.
Courts - More on: Illinois chief justice doesn't just get mad, he sues
The ILB has had a number of entries about the Chief Justice of Illinois' successful libel suit against a small Illinois newspaper, the Kane County Chronicle.
Today Tony Mauro of Legal Times has a column headed "Press Frets as More Judges Sue for Libel," looking at judges' suits in general, and specifically at the Illinois suit.
Here are some details about the Illinois lawsuit f rom Mauro's lengthy story:
The 2006 trial of Thomas' lawsuit in Geneva, Ill., was, by all accounts, unusual. "It managed to push more unique buttons than any libel case I ever studied," says Sandra Baron, executive director of the Media Law Resource Center, which aids the media in defending against libel and privacy suits.
Six current and former state Supreme Court justices testified on his behalf, many addressing Thomas as "Your Honor," even though he was the plaintiff, not the judge in the case. But when lawyers for the newspapers sought to cross-examine the justices about the disciplinary case that was the subject of the newspaper's columns, they refused, invoking what was later upheld on appeal as a "judicial deliberation privilege."
The newspaper's brief alleges that "the Illinois judiciary barricaded itself behind a wall of privilege that made it impossible for the Chronicle defendants to defend themselves."
Another problem, in the newspaper's view: the same appellate judges who endorsed the privilege were assigned to hear the newspaper's appeal. And that assignment came from the Illinois Supreme Court, five of whose justices have recused themselves from hearing the final appeal. With no quorum, the state Supreme Court cannot hear the case. Having a fair and complete appeals process available is especially important in libel cases, says Sanford, because U.S. Supreme Court precedent calls for de novo review of the facts on appeal.
Ind. Gov't. - More on: Lake County legislator to resign to become Ice Miller lobbyist
This ILB entry yesterday quoted a Gary Post-Tribune report:
[State Rep. Robert] Kuzman is the third member of Northwest Indiana's delegation to announce his resignation since the end of the spring session.Today Joyce Russell of the NWI Tmes reports:
Sen. Victor Heinold, R-Kouts, stepped down to take a job in Louisiana. He was replaced by Methodist Hospitals CEO Ed Charbonneau.
Sen. Sam Smith, D-East Chicago, has said he plans to step down.
Several candidates are expected to vie for his seat, including his wife, Diane.
PORTAGE | Northwest Indiana could soon be losing its second longtime state legislator.
Tenth District State Rep. Duane Cheney, D-Portage, confirmed Thursday that he and his wife, Elaine, have put their Portage home up for sale and intend to retire to southern Indiana soon.
The impending move gives Cheney three options: resign from the Legislature before his term expires in 2008; continue to serve the 10th District while living in his new home, which is permissible under the state constitution; or, when his home sells, rent a property within his district.
Cheney, 58, who chairs the Labor and Employment Committee, said he will decide which option to take in about two weeks.
Cheney's impending move and possible resignation follows an announcement by state Rep. Robert Kuzman, D-Crown Point, on Wednesday that he intends to resign from the Legislature to take a job in the private sector.
Ind. Courts - More on: Attorney sees opportunity and seizes it
Dionne Waugh of the Fort Wayne Journal Gazette reported on March 6th:When Allen County court officials discussed banning cell phones in the courts, several people said someone would probably start standing outside the buildings and offer to hold people’s phones for a fee.
Well, two months after the county enacted its ban on electronic devices in court facilities, someone has.
Local attorney Sam Bolinger, 48, applied for and received a transient merchant’s permit about two weeks ago from the city. This will allow him to set up a storage cart and charge money for holding cell phones and electronic storage devices outside the Allen County Courthouse.But today Waugh reports:
But two months later, Bolinger said he was closing the cart because it was difficult to keep the service afloat.
“I couldn’t complete any sponsorships with either food services or cell services,” he said. “At one time, I was talking to various cell services to see if a sponsor would cover the cart overhead and (in return) get to advertise on the cart.”
Ind. Decisions - "Chokehold violated rights, court rules"
The AP has a story today about yesterday's Supreme Court ruling in John Grier v. State of Indiana. Some quotes:
Police officers violated a man's privacy rights when they grabbed him by the throat until he spit out a bag they suspected contained drugs, the Indiana Supreme Court ruled Thursday. * * *
Grier claimed that his privacy rights had been violated and moved to have the bag and its contents excluded as evidence. The trial court denied the request. The Court of Appeals upheld the trial judge's ruling, but the state's high court did not.
The ruling cited a previous court decision that found a police chokehold in a similar situation violated a person's bodily integrity, posed health and safety risks and was likely to incite violent resistance.
Thursday, June 21, 2007
Law - High Court Rules on School Athletics, Federal Sentencing
NPR's Nina Totenberg had an interesting report this afternoon on two of today's three U.S. Supreme Court rulings:
The Supreme Court ruled Thursday that high school athletic associations may limit the kind of recruiting of student athletes that their member schools can do. The court also ruled that a federal sentence that is within the official sentencing guidelines may be presumed to be reasonable by an appeals court. That tends to hurt defendants appealing for a lower sentence, and could hurt the attempt by former White House aide Lewis Libby to delay the start of his sentence.The audio should be available shortly, here.
Ind. Gov't. - Council has no authority to remove indicted Monticello mayor
From the Monticello Herald Journal, a long report by reporter Kathie Duffy includes these quotes:
On the surface it has been a seemingly quiet month of June for Monticello Mayor Robert Fox.
In the wake of a turbulent spring - in which Fox's April arrest on 39 counts of theft was followed by a Primary Election win on the Democratic ticket in May - the first month of summer has found the two-term incumbent fulfilling the customary mayoral obligations without any outwardly telling indicators of the situation. * * *
Questions regarding the mayor's status in office, and the power held by the sitting city council regarding that status, have been on the minds of many residents, and officials have been forced to consider the hand they have been dealt.
"We have heard a lot from the public wanting us to make Bob (Fox) leave office," said Monticello City Council President Bill Smith. "But what a lot of people don't understand is that we have done everything legal we can do. The only thing left is to let this thing run its course." * * *
Though there have been those in the community clamoring for the city council to act on the current situation, according to IACT (Indiana Association of Cities and Towns) Media Relations and Member Services Director Julia Bearce, unless the charges brought against Fox lead to a conviction, the hands of the council are tied.
According to Bearce, Indiana does not have a procedure for the recall of elected officials, but does have a statutory method for initiating impeachment proceedings for any misdemeanor in office. * * *
Though a variety of courses of action are provided by state regulations to remove an official from office, a common thread between the three methods remains the constitutionally relevant adage of "innocent until proven guilty."
"There's nothing that we as a council can do now about the situation," said Smith. "We're no different than regular people, and legally there are just things we cannot do."
With Fox currently charged with 39 felonies, his future as mayor hangs in the balancing act of the scales held by Lady Justice herself. * * *
Reaffirming the jury trial setting for Aug. 14, the new dates laid out during the pretrial conference run parallel with two red letter days on the Indiana Election Calendar. With the June 30 date for caucuses to fill any vacancies on the ballot, Fox's July 12 hearing falls just four days before the July 16 deadline for a candidate to remove their name from the ballot.
With a city full of voters watching the clock - or calendar, so to speak - to see if court proceedings in Fox's case are wrapped up before the General Election in the fall, White County Democrat Party Chair Kathy Altman said at a party meeting last month that the scandal itself has left an indelible mark on the ballot.
"Obviously it is hard campaigning with these legal charges out there, but right now that is all they are," said Altman, who noted that the party is operating under the presumption of Fox's innocence. "Bob Fox is a very popular man that has done a lot of good for Monticello, and the voters voiced their opinion in May on Election Day."
Ind. Decisions - A third Supreme Court opinion today
In John Grier v. State of Indiana, a 4-page, 5-0 opinion, in a case in which oral arguments were heard Feb. 22, 2007, Justice Dickson writes:
Charged with possession of three or more grams of cocaine, a class C felony, the defendant sought to suppress evidence obtained when police grabbed his throat to prevent him from swallowing a plastic bag suspected of containing cocaine. The trial court denied his motion but certified the ruling for interlocutory appeal. The Court of Appeals accepted jurisdiction and affirmed. Grier v. State, 855 N.E.2d 1043 (Ind. Ct. App. 2006). Noting that its opinion may be in conflict with Conwell v. State, 714 N.E.2d 764 (Ind. Ct. App. 1999), we granted transfer. * * *
The application of force to a detainee's throat to prevent swallowing of suspected contraband violates the constitutional prohibitions against unreasonable search and seizure. By grabbing the defendant's throat to prevent him from swallowing the suspected bag of drugs, the police violated this constitutional protection.
Evidence obtained as a result of an unconstitutional search must be suppressed. * * * We therefore hold that the trial court should have granted the defendant's motion to sup-press evidence obtained by the application of physical force to his throat to prevent him from swallowing it.
We reverse the denial of the defendant's motion to suppress and remand to the trial court for further proceedings consistent with this opinion.
Ind. Decisions - Two today from the Supreme Court [Updated]
In George Reyes v. State of Indiana, a 7-page, 5-0 opinion, in a case in which oral arguments were heard Jan. 25, 2007, Justice Sullivan writes:
Courts have adopted two principal methods for determining the admissibility of hearsay evidence in probation revocation hearings: a “balancing test” that weighs the probationer’s interest in confronting the declarant against the State’s interest in not producing same; and a “substantial trustworthiness test” that determines the reliability of the evidence. For the reasons set forth in this decision, we adopt the substantial trustworthiness test. * * *In Corey Mills v. State of Indiana, a 10-page, 5-0 opinion, in a case in which there was not oral argument, Justice Sullivan writes:
The United States Supreme Court has held that the Due Process Clause applies to probation revocation hearings. Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (citing Morrissey v. Brewer, 408 U.S. 471 (1972)). But there is no right to probation: the trial court has discretion whether to grant it, under what conditions, and whether to revoke it if conditions are violated. Isaac v. State, 605 N.E.2d 144, 146 (Ind. 1992) (citations omitted). It should not surprise, then, that probationers do not receive the same constitutional rights that defendants receive at trial. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999).
The due process right applicable in probation revocation hearings allows for procedures that are more flexible than in a criminal prosecution. * * * [C]ourts may admit evidence during probation revocation hearings that would not be permitted in a full-blown criminal trial. * * *
This does not mean that hearsay evidence may be admitted willy-nilly in a probation revocation hearing. Morrissey outlined the minimum requirements to satisfy due process in a parole revocation hearing. Though the Supreme Court listed the confrontation right as one of those minimum requirements—holding in a parenthetical that a hearing officer may only deny the right with good cause—the Court also issued a caveat: “We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.” * * *
We affirm the holding of the Court of Appeals that Retz’s affidavits were properly admitted, but hold that the trial court should have applied a test of “substantial trustworthiness” in so doing. We summarily affirm the Court of Appeals, pursuant to Ind. Appellate Rule 58(A), as to all other issues not addressed in this opinion.
Shepard, C.J., and Dickson and Boehm, JJ., concur. Rucker, J., concurs in result without separate opinion.
While Corey Mills argues correctly that a person convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the person was a “serious violent felon,” Mills is not entitled to the post-conviction relief he seeks here. Mills relinquished the right to challenge this aspect of his sentence when he pled guilty.
Ind. Decisions - Court of Appeals issues 4 today (and 28 NFP)
For publication opinions today (4):
In Crescensio Rodriguez, Jr. v. State of Indiana, an 11-page opinion, Judge Mathias concludes:
Sufficient evidence supports Rodriguez’s Class C felony child molesting convictions. The trial court did not abuse its discretion when it identified Rodriguez’s violation of his position of trust with C.S. as an aggravating circumstance, and Rodriguez’s aggregate eight-year sentence is not inappropriate. Affirmed.In Justin James v. State of Indiana , a 14-page opinion, Judge Kirsch writes:
NAJAM, J., concurs. MAY, J., dissents with separate opinion. [which begins]:
“[T]hat which cannot be used to enhance a sentence cannot be used to ‘balance’ circumstances that may properly serve to reduce the sentence as mitigators.” Laughner v. State, 769 N.E.2d 1147, 1162 (Ind. Ct. App. 2002), reh’g denied, trans. denied 783 N.E.2d 701 (Ind. 2002), cert. denied 538 U.S. 1013 (2003), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007). The trial court imposed the presumptive sentence but it did so only after finding and using the “position of trust” aggravator to balance the mitigating circumstances it found. I therefore cannot agree with the majority that Blakely can be disregarded and must respectfully dissent.
I. We agree with James that based on these offenses and his character prior to his sentence the trial court’s sentence was inappropriate. The trial court shall revise James’ sentences to the presumptive with all sentences concurrent to each other. * * *In Michael Swenson v. State of Indiana , a 6-page opinion, Judge Najam writes:
II. James argues that the trial court abused its discretion in ordering him to pay restitution for a burglary to which he did not plead guilty. Specifically, James claims the restitution ordered by the trial court, in the amount of $500.00 to the doctor and $2,225.52 to the doctor’s insurance company for the office damage, exceeded the damages incurred from the burglary for which he pled guilty. The State agrees. Here, the doctor paid a $250.00 deductible and the insurance company paid the doctor $621.68 for a second burglary that occurred in February of 1999, of which James was never accused. We remand and instruct the trial court to reduce the restitution order accordingly, reflecting a $250.00 balance due to the doctor and a $1,603.84 balance due to the insurance company.
Reversed and remanded with instructions.
SULLIVAN, J., concurs. ROBB, J., concurs in part and dissents in part with separate opinion. [which begins:] I concur in the majority’s resolution of the restitution issue; however, I respectfully dissent from the majority’s Appellate Rule 7(B) analysis.
Michael Swenson brings this interlocutory appeal from the trial court’s denial of his motion to dismiss pursuant to Indiana Code Section 35-41-4-5 (“double jeopardy statute”). Swenson raises a single issue for our review, namely, whether the trial court erred in determining that the State’s charge of Theft was not barred by a former prosecution in the Commonwealth of Kentucky for Receipt of Stolen Property. We reverse. * * *In Maribelle G. Harlow and Ernst & Young, LLP v. Gayle Parkevich , a 17-page opinion, Judge Sharpnack writes:
The entirety of the State’s argument to the trial court was not that Swenson’s claim that he was being twice punished for the same act was factually erroneous, but that the State, as a separate sovereign, was permitted to prosecute him independently of the Commonwealth. And in taking that position, the State acknowledged that the overt act at issue in both prosecutions was identical—namely, “that he stole the pads here and . . . he took them across [to] Kentucky.” Id. Thus, the State’s comments to the trial court demonstrate that the evidence is without conflict that the same “overt act,” the theft and possession of the prescription forms, was the basis of both the Kentucky conviction and the Indiana prosecution. As such, Swenson is entitled to dismissal under the double jeopardy statute and Gibson. See Townsend, 793 N.E.2d at 1093.
Maribelle G. Harlow (“Harlow”) and Ernst & Young, LLP (“Ernst & Young”) (collectively, “Appellants”) appeal the trial court’s denial of their motion to stay litigation with Gayle Parkevich, individually, as successor trustee and beneficiary of the Amendment and Restatement of Vernon Payne Inter Vivos Trust, and as beneficiary of the Vernon Payne and Elva Payne Irrevocable Trust for Beverly Draper (“Parkevich”). Appellants raise one issue, which we restate as whether the trial court abused its discretion by denying their motion to stay the litigation pending alternative dispute resolution. We affirm in part, reverse in part, and remand. The relevant facts as alleged in Parkevich’s complaint.
NFP civil opinions today (10): [details coming]
Cherokee Air Products, Inc. v. Pursuit Marketing, Inc. (NFP) - "Given the law of Virginia, it is clear that Cherokee’s claim for indemnification cannot in any way succeed under the facts and allegations set forth in the pleadings. Thus, judgment on the pleadings was proper. Affirmed."
Dale P. Fowler v. Bank of America, N.A. (NFP) - "Appellant-defendant Dale P. Fowler appeals from the trial court’s judgment in favor of appellee-plaintiff Bank of America, N.A. (the Bank), on the Bank’s complaint alleging that Fowler owed an unpaid balance on a credit card. In particular, Fowler argues that the Bank was not entitled to collect this debt, which Fowler owed to another entity. * * * We sympathize with Fowler, inasmuch as it is apparent that he made a sincere attempt to settle his debts—first, with the debt settlement service that went bankrupt, and second, by himself.1 We also acknowledge that the Bank presented an inartfully-drafted complaint, which alleged that Fowler was a Bank credit card holder and attached copies of Bank contracts, resulting in Fowler’s considerable confusion because he has never been a customer of the Bank. Ultimately, however, Fowler has acknowledged that he owes this debt. The Bank is authorized to collect the debt. Consequently, the trial court properly entered judgment in the Bank’s favor. The judgment of the trial court is affirmed."
Earl Lee Russelburg v. Ivan A. Arnaez and John D. Clouse (NFP) - "Earl Lee Russelburg appeals from the trial court’s grant of summary judgment in favor of Ivan Arnaez and John Clouse. Russelburg raises a single issue for our review, namely, whether the trial court erred when it concluded as a matter of law that he did not have standing to sue Arnaez and Clouse for legal malpractice. * * * We cannot say that Arnaez and Clouse might not be entitled to summary judgment on other grounds, but on the record before us, where Arnaez and Clouse made a single legal argument based on standing, we must reverse the trial court’s entry of summary judgment in their favor. The undisputed evidence shows both the existence of an attorney-client relationship and that Russelburg paid for Arnaez and Clouse’s legal services. Russelburg had standing to bring his legal malpractice suit as a matter of law. Reversed and remanded for further proceedings."
Stephen VanWagner v. Kay Nieves VanWagner (NFP) - "Stephen VanWagner (“Husband”) appeals from the Clark Circuit Court’s order which refused to enforce all provisions of a premarital agreement between him and Kay Nieves VanWagner (“Wife”). * * * The trial court did not err when it awarded temporary maintenance to Wife. The award of attorney fees and personal property to Wife contrary to the terms of the premarital agreement was clearly erroneous. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion."
Monroe Guaranty Insurance Company v. Bucko Construction Company, Inc. and Contract Carriers Corp. (NFP) - "Monroe Guaranty raises a single issue for our review, namely, whether the trial court abused its discretion when it concluded that Bucko was entitled to relief under Indiana Trial Rule 60(B)(1). * * * We hold that because Bucko did not present evidence of a meritorious defense, either to the trial court or to this court on appeal, the trial court abused its discretion when it granted Bucko’s motion to set aside. The trial court’s May 15, 2006, order of dismissal is hereby reinstated. Reversed."
NFP criminal opinions today (18):
Ind. Gov't. - "New research fee upsets Indiana motorcyclists"
An AP story this morning reports:
Some motorcycle owners are upset that they have been singled out to pay an extra $10 registration fee to fund new efforts to track and research spinal cord and brain injuries -- and Gov. Mitch Daniels says their anger is justified.The Fort Wayne Journal Gazette had a good story on the fee before it was removed from the budget bill (except for the fee on motorcycles) - see the ILB entry here from March 11th. The entry includes a sidebar from the story showing the then-current "breakdown of fees collected by county clerks for infractions, such as speeding tickets and other moving violations":
The General Assembly tucked the base fee increase -- from $17 to $27 -- into the 253-page budget bill and created a board to oversee the proceeds. The Legislative Services Agency estimates it will generate about $1.6 million annually.
"Indiana will be moving to the forefront in the effort to improve the lives of those who have suffered from spinal cord and head injuries," Rep. Carolene Mays, D-Indianapolis, who pushed the proposal, said in a statement. * * *
A bill Mays introduced would have increased court fees for traffic violations and directed that revenue to the Spinal Cord and Brain Injury Fund. The bill was later amended to increase the fee on motorcycles, and that language was put into the House version of the budget bill.
Opponents complained about the fee and it and the fund was removed from the budget in the Senate. But the motorcycle fee was restored during the session's final days and approved, Jackson said.
Daniels, a motorcyclist himself, signed the budget bill but said bikers had reasons to be upset about the fee increase.
"One is process," he said Wednesday. "Nobody even knew this was buried in the budget. I didn't. They didn't. They thought it had been removed and somebody slipped it in there in the late stages.
Courts - Senator Coates details contentious Senate confirmations
Thanks to Howard Bashman of How Appealing for catching this Indiana story that the ILB missed yesterday.
Sylvia A. Smith, Washington editor of the Fort Wayne papers, reports on former Indiana Senator Dan Coates' essay on his experiences shepherding the then-Judge Alito through the Supreme Court nomination process, following unsuccessful efforts for Harriet Miers. Some quotes:
Coats recounted his inside view of the Alito and abandoned Harriet Miers confirmation processes in Hamline University’s Journal of Public Law and Policy. Coats was a Hoosier senator until 1998 and later became President Bush’s ambassador to Germany. After he returned to a Washington lobbying firm, Coats was asked to shepherd the Miers nomination through the Senate in 2005. When she withdrew, he said the White House asked him to do the same task for Alito.
In his essay, Coats argues that a White House has to resist efforts by senators to overstep their “advise and consent” responsibilities. One way to do that, he said, is to nominate only top-notch candidates with strong judicial records.
In addition to outlining his philosophy, Coats describes personal moments during the months in 2005 when first Miers, then Alito were thrown into the highly charged atmosphere.
Law - California Supreme Court to interpret its good samaritan law
Mike McKee of The Recorder reports today, via Law.com:
Thinking a friend was trapped in a wrecked car that was about to explode, Lisa Torti leapt into action and pulled the woman to freedom.
But rather than being hailed as a hero, Torti was hit with a negligence suit by the victim, who claimed her rescuer's actions either caused or contributed to permanent paralysis.
Last week, the California Supreme Court unanimously agreed to review the case to decide whether Torti should be protected by the state's Good Samaritan Law, which grants immunity from liability to individuals who render emergency care in a crisis.
Los Angeles County Superior Court Judge Howard Schwab granted Torti summary judgment in 2005, finding she had rendered emergency care in good faith. But earlier this year, L.A.'s 2nd District Court of Appeal reversed, saying the Good Samaritan Law only applies to people who provide emergency "medical" care.
Ind. Courts - Judge excuses murder defendant from his own trial
A lengthy story by Deb McKee today in the Terre Haute Trib-Star begins:
TERRE HAUTE — Kevin Hampton has chosen to sit out during a trial that could result in 130 years tacked on to the 85-year sentence he already is serving for murder.
The 45-year-old asked a judge Tuesday if he could sit in jail during the evidentiary portion of his trial under way for the alleged 2004 murders of Tanette “Toni” Dickison, 18, and Cassie Harris, 48.
Judge David R. Bolk approved Hampton’s request, telling the defendant that a member of the defense team will check with the defendant each day, “to see if you change your mind.”
When the jury returned, Bolk explained to them that Hampton had the right to be absent at his own request. He then instructed jurors not to discuss or speculate on Hampton’s reason for wanting to sit out.
Law - "Some Firms May Be Rethinking Retirement Policies"
Brenda Sapino Jeffreys of the Texas Lawyer has a report today on law firm mandatory retirement policies. A quote:
Mandatory retirement policies are a hot topic because of the numbers of baby boom-generation lawyers who will hit retirement age over the next decade or so.
However, the legality of firm retirement policies is at issue in a federal suit the U.S. Equal Employment Opportunity Commission filed against Chicago-based Sidley Austin Brown & Wood in 2005. The EEOC alleges the firm violated the Age Discrimination in Employment Act by expelling 31 Sidley & Austin partners from the partnership due to their age in 1999 and by forcing other partners to retire, since 1978, due to a mandatory retirement policy. Sidley Austin Brown & Wood was created with the merger in 2001 of Sidley & Austin of Chicago and New York-based Brown & Wood.
The age discrimination suit, EEOC v. Sidley Austin Brown & Wood, is pending in U.S. District Judge James B. Zagel's court in the Northern District of Illinois. The firm denies the allegations.
Gayla Crain, a member of Epstein Becker Green Wickliff & Hall in Dallas, says labor and employment lawyers are closely watching EEOC v. Sidley, and firms organized as partnerships with a mandatory retirement policy need to do the same.
Meanwhile, says Crain, a labor and employment and litigation attorney, mandatory retirement policies can be problematic at firms organized as professional corporations.
"If they were a PC in particular, they could only have a policy that applies to their most highly paid partners. If they are a partnership, they need to be aware EEOC v. Sidley is contesting it. They just need to watch that case," says Crain, who notes that her firm doesn't have a mandatory retirement policy.
Ind. Courts - "No shoes, no shirt, no service" in Porter County court
Diane Krieger Spivak reports today in the Gary Post-Tribune in an entertaining story that begins:
VALPARAISO -- Porter Circuit Court Judge Mary Harper's policy is similar to that of many businesses: No shoes, no shirt, no service.
And Harper means business. That's why she posts a directive both at the entrance to her courtroom and in her office, putting litigants and visitors on notice to cover up and shut up during court proceedings.
Appearance and actions must reflect the dignity of the court, Harper says.
The notice calls on those who enter to:Turn off pagers and cell phones.Unfortunately, the rules aren't always followed.
Do not sleep
Remove your hat
Please be quiet
Wear clean clothes that cover your stomach, chest. back upper arms and legs above the knees.
Courts - Wrapping up: It is best not to tell the judge she is "a few french fries short of a Happy Meal"
U.S. Bankruptcy Judge Laurel Myerson Isicoff opted for leniency in the case of a prominent Chicago lawyer who told her she was "a few french fries short of a Happy Meal."
She decided not to bar McDermott Will & Emery partner William P. Smith from practicing in South Florida bankruptcy court. Instead, Isicoff ordered him Wednesday to take an online course in professionalism administered by the Florida Bar, even though he's not a Bar member in Florida and was practicing as a visiting lawyer.
"There is no jurisdiction in the U.S. -- including the district where Mr. Smith regularly practices — where the expression and tone Mr. Smith used on May 7 would fall in the bounds of acceptable behavior," a solemn Isicoff said from the bench in front of a packed courtroom.
Ind. Law - Schererville planners review sexually oriented ordinance
Vanessa Renderman of the NWI Times reports today that begins:
An ordinance under review in Schererville would give the town more authority in regulating sexually oriented businesses that want to open up shop.A search of earlier ILB entries produces this list of entires containing the phrase "sexually oriented" and this list containing the phrase "adult business".
Plan Commissioners this week received a draft of the ordinance, which goes into explicit detail about some of the defined restrictions.
Town Attorney David Austgen said the language needs to be as specific as possible to ensure everything is covered in the ordinance.
Ind. Decisions - More on ruling in: Spencer County adult business ordered to close
Apparently it was never ordered to close.
As the AP reported yesterday, Spencer Circuit Judge Wayne Roell has "fined the owners of a southern Indiana adult bookstore and lounge $30,000 for violating a county ordinance limiting the operation of a sexually oriented business."
The ILB wrote yesterday: "This seems odd, because a long list of earlier stories cited by the ILB reported that the judge had ordered the business to close immediately."
Today Kate Braser of the Evansville Courier & Press writes:
An adult business in Spencer County must pay a $30,000 fine for violating a court order limiting the amount of sexual material at the business.As noted in earlier posts, the ILB has been unsuccessful in its efforts to obtain copies of Judge Roell's two rulings, meaning all we have to go on is press reports. The ILB will make another effort this morning.
The order was issued this week by Spencer County Circuit Court Judge Wayne Roell. The judge ruled in March that the Adult Plaza was in violation of a county ordinance outlawing sexually oriented businesses from existing within 1,000 feet of a home, church or school. * * *
In this week's five-page court order, Roell seeks to clarify "widely reported misconceptions about (the court's) prior ruling. "In its order of March 9, 2007, this court did not order that the defendants cease all operations," Roell wrote.
"The court did grant a permanent injunction against the defendants from operating a sexually oriented business."
In this week's ruling, Roell also clarifies the phrase "at least 35 percent of its displayed merchandise."
Calling the phrase "at best vague," Roell said it refers to actual inventory count. An investigator for Adult Plaza argued during a May hearing that retail sales of sexual material comprised less than 10 percent of the interior space of the main building.
"Because no one has done an inventory count and because the defendants' interpretation of the ordinance is at least arguably reasonable, the court declines to hold the defendants in contempt with regard to the retail sales part of its business," Roell wrote.
Where Roell found the Adult Plaza in violation of the injunction was in regards to evidence that on four separate occasions, dancers exposed themselves.
[The ILB's initial entry on this dispute appears to have been this one from Jan. 16, 2006, headed "Adult business dispute draws top lawyers to fight in Spencer."]
Ind. Gov't. - Lake County legislator to resign to become Ice Miller lobbyist
Patrick Guinane reports today in a NWI Times story headed "Kuzman leaving Legislature for lobbying":
Northwest Indiana is losing one of its most prominent voices in the Indiana General Assembly.John Byrne of the Gary Post-Tribune writes:
Ending weeks of speculation, state Rep. Bob Kuzman, D-Crown Point, announced Wednesday he will resign his District 19 seat to take a lobbying position with Indianapolis-based Ice Miller, one of the state's largest law firms.
"I'm going to be a partner at Ice Miller starting immediately and will not be resigning my seat right away, but in the near future," Kuzman said. "The opportunity arose for me to take this new path in life, and I seized the moment."
State Rep. Robert Kuzman is the latest Northwest Indiana legislator to step down, accepting a position as a partner with one of Indiana's most powerful law firms.More on the Smith resignation plans in this ILB entry from June 5th, headed "But by resigning before July 31, Smith also qualifies for lifetime, state-subsidized health insurance."
Kuzman, D-Crown Point, will begin work with Ice Miller LLP in Indianapolis today. * * *
Kuzman's resignation will take effect "in the next couple weeks," opening a 30-day window for Democratic precinct committeemen to meet in caucus and name somebody to finish his term, which runs through 2008. * * *
Kuzman is the third member of Northwest Indiana's delegation to announce his resignation since the end of the spring session.
Sen. Victor Heinold, R-Kouts, stepped down to take a job in Louisiana. He was replaced by Methodist Hospitals CEO Ed Charbonneau.
Sen. Sam Smith, D-East Chicago, has said he plans to step down.
Several candidates are expected to vie for his seat, including his wife, Diane.
Wednesday, June 20, 2007
Law - More on: GAO releases report on signing statements
Law - Status of same sex marriage in Ohio and Michigan
During the legislative session earlier this year, there was much discussion about the constitutional bans on same sex marriage that have been approved in Ohio and Michigan and how they are being interpreted.
Under the heading "Impact of same sex marriage ban in Ohio and Michigan Constitutions may portend Indiana issues," the ILB has posted several entries over the years, including entries from March 24th and April 4th, 2005. See also this entry from Feb. 1st of this year, and this one from March 22nd. This entry from April 3rd tells the outcome in Indiana, at least for this year.
All this is but a preamble to introduce two stories today from USAToday. The same concerns about the impact of the Ohio and Michigan amendments continue in those states.
"Legal loophole could let abusers off the hook" is the title to this story by Marisol Bello that reports:
A constitutional ban on gay marriage in Ohio has led to a new defense for unmarried people who are charged with domestic violence for abusing their live-in partners."Michigan domestic partners face tough choices" is the headline to a second story today by Marisol Bello. Some quotes:
At least 80 defendants have challenged the state's domestic violence law, claiming it is unconstitutional because it is based on a status that no longer exists: domestic partnership.
A state constitutional amendment in 2004 prohibited legally recognizing any union other than a marriage between a man and a woman. Defense lawyers say the domestic violence law violates the amendment by creating a domestic status for unmarried partners.
Now, the Ohio Supreme Court is considering the question. * * *
Since Ohio passed its amendment in 2004, two of the state's 12 appeals courts have agreed that the domestic violence laws are unconstitutional. Ten found the domestic violence law legal.
When the Second Appeals Court ruled in May 2006 that the laws were unconstitutional, Montgomery County, the largest in the district and home to the city of Dayton, had 18 domestic violence cases affected. Of those, the prosecutor's office dismissed seven, substituted other felony charges in two cases and reduced nine to misdemeanors, says Greg Flannagan, a spokesman for the office. * * *
Other states, including Wisconsin and Virginia, are watching the Ohio case. Since Wisconsin's amendment took effect in January, at least one defendant unsuccessfully challenged a restraining order citing the amendment.
A Michigan court ruled in February that public employers may not offer benefits to same-sex partners of employees because the state's constitutional ban on gay marriage recognized only a marriage between a man and a woman. Michigan public employers offered domestic partnership benefits only to same-sex couples. * * *
[JoLinda] Jach is one of 21 public employees in Michigan with same-sex partners who have sued the state to keep their health benefits.
Their case, which they are appealing to the state Supreme Court, will set a standard for other states with similar amendments over whether public employers can offer benefits to their employees' domestic partners, advocates on both sides of the issue say.
For gay rights advocates, the pullback on benefits was an inevitable consequence after a flurry of states approved amendments banning gay marriage.
"These amendments are clearly intended to go way beyond the question of who can get married," says Matt Coles, director of the American Civil Liberties Union's lesbian and gay rights projects. "We expect these issues to come up in more states, particularly now that the Michigan Court of Appeals has given this extremely broad interpretation
Ind. Decisions - Is there a right to make a statement in allocution? Yes, but ...
In a decision today where the oral argument was held Nov. 14, 2006, Nicholas Biddinger v. State, Justice Rucker writes in a 9-page, 5-0 opinion:
We granted transfer in this case to address the question of whether a criminal defendant who pleads guilty to an offense has a right to make a statement in allocution prior to sentencing. The answer is yes. * * *
A defendant who pleads guilty has a right to make a statement in allocution upon request prior to sentencing. In this case the trial court erred by not allowing Biddinger to make a statement in allocution. But the error was harmless. Further, Biddinger has not demonstrated that his ten-year executed sentence to be served in the Department of Correction requires revision. We therefore affirm the judgment of the trial court.
Ind. Decisions - More today from the Supreme Court, including Blakely rulings
In Warren Gutermuth v. State of Indiana, a 10-page, 5-0 opinion, Justice Boehm writes:
Post-Conviction Rule 2 permits belated appeals of criminal convictions and sentences under some circumstances. We hold that this belated appeal of a sentence entered before a new constitutional rule of criminal procedure was announced is not governed by the new rule. Specifically, belated appeals of sentences entered before Blakely v. Washington, 542 U.S. 296 (2004) are not subject to the holding in that case.
In David L. Moshenek v. State of Indiana, an 8-page, 5-0 opinion, Justice Boehm writes:
We hold that a trial court’s ruling on a petition for permission to seek relief under Post-Conviction Rule 2 should be affirmed unless it was based on an error of law or a clearly errone-ous factual determination. Moreover, if the trial court did not advise a defendant of the right to appeal the sentence in an “open plea,” that may well suffice to meet the lack of fault requirement under Post-Conviction Rule 2 depending on other evidence, but the defendant must make some additional showing to establish diligence.
In David Boyle v. State of Indiana, a 4-page, 5-0 opinion, Justice Boehm concludes:
For the reasons explained in Gutermuth v. State, No. 10S01-0608-CR-306, ___ N.E.2d ___ (Ind. June 20, 2007), also decided today, Blakely does not apply to a Post-Conviction Rule 2 belated appeal challenging a pre-Blakely sentence. Accordingly, a Blakely claim was not available to Boyle in this appeal.In Bryant T. Rogers v. State of Indiana, a 2+ page, 5-0 opinion, Justice Boehm writes:
The Court of Appeals noted that Boyle asserted a claim that his sentence was inappropriate in light of his character and the nature of the offense under Indiana Appellate Rule 7(B). Boyle, 851 N.E.2d at 1008. Boyle’s brief cites the general rule that an appellate court has the constitutional authority to review and revise sentences if the sentence imposed is inappropriate in light of the character of the defendant and the nature of the offense. However, the brief does not set forth any reasons why we should conclude that Boyle’s character or the nature of his offense warrants the use of the power to review and revise his sentence. Accordingly, we affirm the trial court.
On March 27, 2002, Bryant T. Rogers pleaded guilty to one count of class A felony at-tempted robbery. The plea agreement set Rogers’s minimum sentence at twenty-five years, and the parties were permitted to argue the other terms of the sentence. The plea agreement stated, “the Defendant will be giving up . . . the right to appeal the conviction and sentence to the Indi-ana Court of Appeals and the Indiana Supreme Court.” Before accepting the plea, the trial court advised Rogers that he would give up the right to appeal his conviction, but Rogers was not told that he had a right to appeal his sentence. * * *Note: In keeping with the announcement at the end of this entry today: Three oral arguments in the first three cases were held March 22, 2007. Apparently there was no oral argument in the Rogers case.
For the reasons explained in Gutermuth v. State, No. 10S01-0608-CR-306, ___ N.E.2d ___ (Ind. June 20, 2007), also decided today, Blakely does not apply to a Post-Conviction Rule 2 belated appeal challenging a pre-Blakely sentence. Accordingly, Rogers’s Blakely claim presents no issue in this appeal. We summarily affirm the Court of Appeals as to the remaining issues. Ind. Appellate Rule 58(A).
Ind. Courts - Court of Appeals has new, expanded website
The Indiana Court of Appeals has a new website. Check it out here. The links to opinions are not affected by the changes. From the release:
There's now an extensive "About the Court" section which provides explanations of the appellate process in Indiana, the number of cases the Court decides, why the Court hears cases only in three-judge panels, narrative biographies of each judge, a detailed FAQ section, information on judicial retention in Indiana, and more.
Broadcasters and photographers will want to read the Supreme Court Order on electronic coverage of the Court of Appeals. It is found on a new "Information for the Media" page in the "About the Court" section:
Two interactive maps instruct readers about the Court's districts and about the Court's commitment to "traveling oral arguments," the practice of hearing oral argument in communities across the state to better enable Hoosiers to learn about the judicial system. Since 2000, the Court of Appeals has heard nearly 200 oral arguments at 99 different sites in 66 communities in 51 of Indiana's 92 counties.
A "Today's Court of Appeals" section provides information on upcoming traveling oral arguments, highlights when opinions of the Court are noted in national legal circles, and links to news articles about the Court.
Ind. Decisions - Transfers granted with opinions in three criminal cases
Preliminary information is available on transfers so far this week (but this does not replace Friday's transfer list).
The following cases have been granted transfer:
Rogers v. State, 71S03-0706-CR-242 6/20/07 -- Transfer granted with opinion. This is
Bryant T. Rogers v. State of Indiana. It was a NFP, 1/25/07 Court of Appeals opinion.
Boyle v. State, 49S04-0706-CR-243 6/20/07 -- Transfer granted with opinion. Here is the Court of Appeals opinion, dated 7/31/06. Here are the ILB entries. Note that Boyle was one of four Blakely-related cases argued together.
Moshenek v. State, 42S04-0706-PC-244 6/20/07 -- Transfer granted with opinion. Moshenek was another of the four cases argued together. See ILB entries here.
Ind. Decisions - Court of Appeals issues 0 today (and 14 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
In the Matter of B.D., Ray Dearth v. Marion Co. Dept. of Child Services (NFP) - "Appellant-Respondent Ray Dearth (“Father”) appeals the finding that his infant son, B.D., is a Child in Need of Services (“CHINS”). We affirm."
In Seasonal Heating & Air Conditioning Inc. v. Stanley F. Taylor, Brian C. Hendrix, and Portage Heating & Cooling (NFP), a 15-page opinion, Judge Sharpnack concludes:
Our review of the provision at issue reveals that we cannot make the provision reasonable without adding terms to limit its application to the HVAC installation portion of Seasonal’s business, which we cannot do under the blue-penciling doctrine. We conclude that the provision is not susceptible to blue-penciling and, thus, is unenforceable against Hendrix and Taylor. See, e.g., id. at 812 (holding that a covenant not to compete was unreasonably broad and could not be made reasonable without adding terms).NFP criminal opinions today (12):
Because we conclude that the scope of activities prohibited by the covenant not to compete is unreasonably broad and the covenant is, thus, unenforceable, we need not address Seasonal’s remaining arguments regarding the scope of the geographic limitations of the provision. Moreover, because the covenant is unenforceable, Seasonal failed to prove a reasonable likelihood of success at trial.
We also note that the trial court found that Seasonal failed to meet its burden of proving “that the threatened injury to the company outweighs any potential harm an injunction would inflict upon the Defendants.” Appellant’s Appendix at 288. Seasonal did not address this finding in its appellant’s brief. Consequently, the trial court’s denial of Seasonal’s request for a preliminary injunction is also sustainable on this basis. Seasonal failed to prove each element required to obtain a preliminary injunction, and the trial court did not err by denying Seasonal’s request for a preliminary injunction.2
For the foregoing reasons, we affirm the trial court’s denial of Seasonal’s request for a preliminary injunction. Affirmed.
CRONE, J. concurs SULLIVAN, J. concurs in result
Ind. Decisions - Supreme Court decides three today
In James Rose and Robert Underwood v. Mercantile National Bank of Hammond, et al., a 7-page, 5-0 opinion, Chief Justice Shepard writes:
Judgment creditor pursued the two shareholders of the judgment debtor through a proceeding supplemental contending fraudulent transfer, then amended the complaint to bring a new tort claim, as well. The trial court allowed the amendment and granted summary judgment to the creditor, awarding attorneys’ fees and treble damages far in excess of the original judgment. Proceedings supplemental are only for collecting existing judgments, not for seeking new ones, so we reverse the trial court’s grant of leave to amend the complaint. * * *In Anthony Stockelman v. State of Indiana, a 5-page, 5-0 opinion, Chief Justice Shepard writes:
The trial court improvidently granted Mercantile leave to amend the proceedings supplemental complaint to add a claim for new damages. We think it prudent policy that any action to assist in collection of an original judgment, i.e. a proceeding supplemental, must be filed under the same cause number as the original action. Conversely, any action that may result in imposition of a new judgment should be filed under a new cause number.
Appellant Anthony R. Stockelman pled guilty to charges of murder and child molesting that arose out of the death of ten-year-old Katlyn Maria Collman. Stockelman challenges the propriety of the sentence of life without parole imposed by the trial court for the murder. We affirm. [The Court reviews the proffered mitigators and accords them minimal weight at best.] * * *In Marvin Hochstetler v. Elkhart Co. Highway Dept., et al , a 4-page, 4-1 opinion, Chief Justice Shepard writes:
All in all, given the aggravating circumstance of killing a ten-year-old girl, we find ourselves unable to say that the trial court was wrong to weigh that aggravator more heavily than the proffered mitigators or that the sentence imposed was inappropriate. We therefore affirm.
Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J., concurs in result with separate opinion. [which concludes:] While I agree with the majority's decision to affirm, I quibble with its concluding finding that the sentence was appropriate, which suggests that the defendant sought and the court exercised the appellate review and revise authority pursuant to Appellate Rule 7(B).
Riding his motorcycle sometime before 5 a.m. on the night of a substantial storm in Elkhart County, appellant Marvin Hochstetler struck a tree that had fallen down across a county road. The trial court granted judgment for various county entities on his negligence suit, concluding that the county was immune for losses resulting from temporary conditions of a public thoroughfare that result from weather. We affirm. * * *In keeping with the ILB entry June 18th titled "The slow wheels of justice in Ohio" and quoting from a Cleveland Plain Dealer story on how long it takes the Ohio Supreme Court to issue a ruling after oral arguments, the ILB will try to note the date that the oral argument were held in these posts about the rulings. In Ohio, according to the story:
The provision at issue in this litigation creates immunity for losses resulting from “[t]he temporary condition of a public thoroughfare . . . that results from weather.” Ind. Code Ann. § 34-13-3-3(3). We last explored the application of this section in Catt v. Bd. of Comm’rs of Knox County, 779 N.E.2d 1 (Ind. 2002). In that case, a driver was injured when he struck a water-filled ditch in the middle of the road during the early morning hours. A torrential rain overnight had washed out a culvert. The trial court granted summary judgment for the county, but a divided Court of Appeals reversed.
We observed in Catt that immunity under this section contains two key concepts, one temporal and one causal. As for the latter, conditions caused “due to weather” distinguish themselves from those in which the road condition was the result of, say, poor inspection, design, or maintenance. The act does not bar suits based on this sort of claim.
As for whether the condition was “temporary,” we noted that the county had no notice of the wash-out until the driver’s accident, that the county highway department was busy on the morning after the storm repairing other washed-out culverts of which it was aware, and had repaired this particular culvert when it had been washed out on previous occasions. We said these facts sufficed to carry the county’s burden to show it was entitled to immunity.
As we noted in Mangold and Catt, 779 N.E.2d at 3, immunity under the act is a matter of law for the court. In the present case, the storm had produced scores of trees and limbs down on the roads, county highway crews were on the job, and they were still at work hours after the storm had passed in the middle of the night. There might well be a case in which weather-related conditions remained untended for so long a period that it no longer qualified as “temporary.” This is not that case. The trial court was right that these facts sufficed to demonstrate that the county was immune. We affirm the judgment of the trial court.
Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J., dissenting, believing that granting summary judgment to find immunity is improper because of genuine issues of fact as to whether the hazard was temporary and whether its efficient cause was weather or the government’s failure to monitor and maintain its roads with reasonable care.
A Plain Dealer analysis of court opinions from orally argued cases from 2004 to 2006 shows that the amount of time it took to turn out majority decisions increased from an average of five months per case in 2004 to seven months last year.Here, the oral arguments in James Rose and Robert Underwood v. Mercantile National Bank of Hammond, et al. were heard 11/8/06; in Marvin Hochstetler v. Elkhart Co. Highway Dept., et al , 5/10/07. There were no oral arguments in the Stockelman case.
Ind. Decisions - "Court lends few licks in neighbors’ Hendrix tiff"
A story today in the Fort Wayne Journal Gazette by Niki Kelly adds background to the Court of Appeals' NFP yesterday in the case of Mark Lesh v. Richard Chandler and Marilyn Chandler (see ILB entry here - 4th case). The story begins:
The Indiana Court of Appeals weighed in Tuesday on a neighborly dispute in LaGrange County about excessive noise, bright lights and Jimi Hendrix music.
The clash began when Richard and Marilyn Chandler received a protective order against neighbor Mark Lesh in April 2006 for allegedly shouting obscenities, calling names and making bizarre noises.
According to the ruling, the parties live near each other on a lake in LaGrange County.
The following month, the Chandlers filed a complaint alleging that Lesh’s use of his land constitutes a nuisance. This included playing loud music, yelling derogatory terms and aiming his security light toward the Chandler’s home.
“Apparently, it is not merely the volume of Lesh’s music, but also the selection that bothers the Chandlers,” the ruling said. “Particularly troubling to the Chandlers is Jimi Hendrix’s version of ‘The Star-Spangled Banner,’ which they believe is ‘sacrilegious to the American flag.’"
Ind. Decisions - Ruling in: Spencer County adult business ordered to close
This ILB entry from May 22nd quoted Kate Braser of the Evansville Courier & Press as reporting:
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.Today a brief AP story that appears in a number of paper reports begins:
ROCKPORT, Ind. - A judge has fined the owners of a southern Indiana adult bookstore and lounge $30,000 for violating a county ordinance limiting the operation of a sexually oriented business.This seems odd, because a long list of earlier stories cited by the ILB reported that the judge had ordered the business to close immediately. For instance, this report in the C&P from March 13th states:
The law defines a sexually oriented business as one in which sexual material makes up more than 35 percent of the merchandise or accounts for more than 35 percent of the store's revenue. An injunction against the Love Boutique in March did not order the business closed, but a lawyer representing the county argued that it was in contempt for violating the limits.
Spencer Circuit Judge Wayne Roell ruled Monday that because dancers appeared nude or seminude in the lounge, the business was in contempt for repeated failure to abide by the terms of the ordinance. The ruling allows the Love Boutique to remain open as long as it does not operate as a sexually oriented business. Roell also said the fines would increase with further violations.
Throughout the case, attorneys representing Adult Plaza argued the county's zoning ordinance barring adult businesses from operating within 1,000 feet of churches, schools and residences is unconstitutional.The ILB attempted to obtain a copy of Judge Roell's opinion at the time it was issued, but was unsuccessful. The ILB is attempting to clarify the closure issue.
In his ruling, Roell rejected that claim, writing, "Adult businesses have not been denied a reasonable opportunity to open and operate. The regulations restricting operations within 1,000 feet of a residence are valid." * * *
Wetherill said county officials are monitoring the business to make sure owners comply with the court order to shut down.
While the court decision forces the adult entertainment center's main building and convenience store building to close immediately, an adult motel on the same property likely will remain open until an upcoming hearing, Wetherill said.
Tuesday, June 19, 2007
Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)
For publication opinions today (1):
In Marvin M. Trietsch v. Circle Design Group, Inc., et al. , a 17-page opinion, Judge Kirsch writes:
Marvin M. Trietsch (“Trietsch”) appeals the trial court’s grant of summary judgment in favor of defendants Circle Design Group, Inc. (“CDG”) and its board of directors, Kerry Smith, Rita J. Smith, Jeffery L. Wylie, and William R. Stella (collectively the “Directors”). We restate Trietsch’s issue and its various subparts as: whether the trial court properly granted summary judgment in favor of CDG and the Directors on Trietsch’s claims, which allege violations of Indiana’s dissenter’s rights statutes, breaches of fiduciary duties, and conversion. We affirm.NFP civil opinions today (4):
In Richard U. Pflanz and Delores J. Pflanz v. Merrill Foster d/b/a Friendly Foster's Service and Sunoco (NFP) , a 7-page opinion dealing with the statute of limitations for bringing underground storage tank claims, Judge Kirsch writes:
The Pflanzes argue that the applicable ten-year statute of limitations4 did not begin to run until either the discovery of contamination or the payment of remediation, and according to the amended complaint they did not discover any environmental issues on the property until September 2001. Thus, they claim their action is timely. * * *Meridian Insurance v. Cha Cha, Inc. (NFP) - "In this interlocutory appeal, Meridian Insurance (”Meridian”) appeals the trial court’s partial final judgment in favor of Cha Cha, Inc. (“Cha Cha”) in the amount of $188,492.33 for business interruption losses. Meridian raises the following restated issue: I. Whether the trial court erred in ordering it to pay Cha Cha the $188,492.22, in addition to the sums previously paid. Cha Cha raises the following restated issue on cross-appeal: II. Whether it is entitled to damages, including attorney fees, pursuant to Indiana Appellate Rule 66(E). We affirm."
Under Indiana’s UST law IC 13-23-13-8, a plaintiff is entitled to receive contribution from a previous owner or operator of USTs if the release occurred during that individual’s ownership or operation. Our Supreme Court ruled that IC 13-23-13-8 is a statutory claim for indemnification and contribution that has a ten-year statute of limitations. Bourbon Mini-Mart, Inc. v. Gast Fuel and Services, Inc., 741 N.E.2d 361, 371-72 (Ind. Ct. App. 2000), aff’d in relevant part by 783 N.E.2d 253 (Ind. 2003). The Supreme Court has also held that the statute of limitations is “discovery-based” and begins to run once the claimant knew or, through the exercise of reasonable diligence, should have known of the damage. Wehling v. Citizens Nat’l Bank, 586 N.E.2d 840, 842-43 (Ind. 1992).
The question before us is, When does the running of the ten-year statute of limitations commence? The Pflanzes contend that the statute of limitations did not begin to run until the discovery of the contamination or until remediation costs are incurred. Foster argues that it began upon the purchase of the property. The trial court found in this case that, when the Indiana Legislature enacted the UST contribution statutes in 1987 and amended the statutes in 1991 that the Pflanzes knew or through the exercise of reasonable diligence should have known about onsite contamination, such that the statute of limitations began to run no later than 1991. We agree. * * *
We hold that the exercise of reasonable diligence would have led to the discovery of the leaking USTs no later than 1991. Accordingly, we affirm the trial court in all respect.
Mark Lesh v. Richard Chandler and Marilyn Chandler (NFP) - "We conclude that the trial court improperly issued a preliminary injunction, as it failed to issue the requisite findings, and we remand with instructions that the trial court issue an order with such findings. We further conclude that the trial court does have jurisdiction over this action, as the Chandlers were not required to exhaust administrative remedies before filing this suit. Finally, we conclude that neither party is entitled to attorney fees at this time."
Sharon Sandage v. Curtis Keaton, Sr. (NFP) - "Under Article I, Section 22 of the Indiana Constitution, a debtor may not be imprisoned merely for their debt, except in cases of fraud. The only other exception is in child support cases involving minor children. Foley v. Manor, 844 N.E.2d 494, 500 (Ind. Ct. App. 2005). Here, Sandage was detained solely for failing to comply with the trial court’s order to pay a debt. Sandage was not arrested for failing to show cause, failing to appear, or any other contempt sufficient to justify a body attachment. See IC 34-47-4-2. Thus, this detention was in violation of the Indiana Constitution. See State ex rel. Wilson v. Monroe Superior Court IV, 444 N.E.2d 1178, 1180 (Ind. 1983). We reverse the trial court’s order and remand with instructions to release the bond. Reversed and remanded."
NFP criminal opinions today (4):
Courts - "Supreme Court Clerks’ $250,000 Clerkship Bonuses" [Updated]
[More] The WSJ Blog has posted on the story --see their entry here, along with reader comments.
Ind. Gov't. - Two stories today on $12 police accident reports
Joshua Stone of the South Bend Tribune reports in a story headlined "Praise, criticism for Indiana records outsourcing: Arrangement means Hoosiers must pay $12 to get state police accident reports." The report begins:
SOUTH BEND -- An Indiana State Police records outsourcing arrangement will continue to force Hoosiers to pay more for some crash reports, while giving them a more convenient way to get others.The ILB agrees. And an individual might be similarly deterred by the cost from collecting data, perhaps to make a "mash-up" map of dangerous local intersections. Stowe's story concludes:
The convenience: Under the arrangement, Hoosiers since Jan. 1 have had two ways to buy crash reports from any local police agency in the state. For $12, they can buy a report from a private company by going online to www.BuyCrash.com. Or, for a lesser fee -- for instance, $5 in South Bend -- they can buy a report directly from their local police agency.
The catch: Under that same arrangement, consumers can now buy Indiana State Police reports only from the private company, for the higher cost of $12 per copy.
The privatization agreement behind the current arrangement is drawing both praise for the efficiency it's created and criticism for its impact on access to public records. * * *
Earlier this year, Gov. Mitch Daniels * * * vetoed a bill that would have reduced the price for accident reports to no more than $8 per copy.
In a statement, Daniels said the bill would "put at risk the substantial financial savings" that Indiana has gotten from the agreement, and would further "jeopardize Indiana's outstanding data and technical reporting performance."
Stephen Key, general counsel for the Hoosier State Press Association, says the privatization agreement "raises questions regarding state policy when it comes to records access."
Although a $12 fee for an Indiana State Police report might not present a large financial burden for a person involved in an accident, he says, it could impair the ability of a citizens' group to gather and present data on multiple accidents that occurred along a particularly dangerous stretch of road.
In such a case, he says, fees could multiply quickly and "become the barrier to preventing them from getting the records to allow them to make a convincing argument to state or local authorities to change the situation."
The dispute over Indiana's current records-keeping arrangement springs from differing visions of how to handle such records, representatives of both sides say.The Indianapolis Star has a report by Michael Malik headlined "Web firm puts crash reports a click away: Police agencies say privatization deal saves cash, but others decry $12 cost to consumers." Some quotes:
One school of thought, which Key supports, holds that the public has paid for the creation of records, and it benefits from easy access to them.
The other school, which Hutchens supports, says that it makes sense to charge people who want such records a user fee rather than to charge all taxpayers for them.
The new service springs from a three-year privatization deal between the state and an Indianapolis company that does information-technology work.Here is the bill the governor vetoed - HEA 1274. The ILB is unable to locate the governor's veto message - a problem which the ILB has written about a number of times.
In the six months since the site was launched Jan. 1, about 12,000 reports have been ordered. All reports now cost $12, including accident reports from Indiana State Police that used to cost $5.
Both houses of the state legislature voted almost unanimously this past session to cap the cost at $8, but Gov. Mitch Daniels vetoed the bill.
"This bill . . . would put at risk the substantial fiscal savings . . . which have been achieved by the state's new electronic accident reporting system, savings that have been used to put new state troopers on the road," the Republican governor said in his veto message. * * *
Vehicle accident reports generated about $100,000 each year for the State Police when it was in charge of the system. That was not enough to cover the cost, the agency said.
Now State Police reports are Holt, Sheets' largest moneymaker. The company receives 90 percent of the $12 charged for each State Police report. The share is so large because the company took over the entire crash-records system from State Police.
Before the privatization, all local agencies had to file their reports with the State Police, which maintained a database for the state. Now, all police agencies file their reports with Holt, Sheets.
Chris Sheets said he doesn't understand why more local agencies don't contract with Holt, Sheets and get a share of the money.
The money for the reports is split between the company now handling the work, Holt, Sheets & Associates, and law enforcement operations. Each deal is negotiated separately. So far, 33 of the 550 or so police agencies in the state have signed agreements with the company, said Chris Sheets, part-owner of Holt, Sheets.
Zionsville and Shelbyville are the only area police departments that have signed revenue-sharing contracts with the system, but reports from all police agencies statewide are available.
The state contract also gives Holt, Sheets the right to sell the information it collects to anyone who asks. Reports include such personal details as a driver's license number, home address, phone number and date of birth.
The public still can get accident reports in person at police stations; prices vary, with some costing more or less than the $12 online fee.
Agencies that use the system say it saves them money by freeing them from records maintenance, and it creates a centralized database that can help identify traffic problems faster.
Ind. Courts - "State hires high-powered lawyer to present Pastrick racketeering case"
Andy Grimm of the Gary Post-Tribune reports today:
Former East Chicago mayor Robert A. Pastrick will face the lawyer who led the prosecution of former Illinois Gov. George Ryan and Chicago patronage boss Robert Sorich when he heads to court next year to face racketeering charges.
Attorney General Steve Carter has hired former federal prosecutor Patrick Collins to lead the state's case against Pastrick and 28 others in a sweeping civil lawsuit that seeks to recover millions allegedly swindled during the latter years of Pastrick's three decades in office.
"We want to have the strongest team working on behalf of the public," Carter said. "(Collins) has some unique experience."
Collins, who joined the case shortly after leaving the U.S. Attorney's office in April, joins a team that already includes Notre Dame law professor Robert Blakey, who helped craft federal racketeering statutes while with the Justice Department four decades ago. * * *
Collins will be paid $395 per hour, considerably more than a staff attorney, but far less than private defense lawyers would earn, Carter said. Any judgment against the defendants could include attorney fees, he said.
Ind. Courts - "Randolph starts over on courthouse plans"
Joy Leiker of the Muncie Star-Press reports:
WINCHESTER -- The Randolph County Board of Commissioners on Monday got its first look at preliminary courthouse drawings, sketches that include an elevator tower next to the existing building and a two-story annex on the south side.Here is a long list of earlier ILB entries on the Randolph County Courthouse, which had been set for demolition.
Commissioners didn't vote to approve the drawings or design, and instead asked the representatives from Martin Riley, a Fort Wayne architectural and engineering firm, to continue their work in an effort to get a courthouse renovation plan on track.
Ind. Courts - Fort Wayne paper opines against courthouse-wide cell phone ban
The ban’s exemptions – for building employees and attorneys – create two classes of people. Why, for example, should attorneys get a pass but not the paralegals who file paperwork in government offices?
Nearly all the problems described by judges concern how phones were being misused in courtrooms. Rings disrupted proceedings, phones could be used as cameras, testimony could be relayed to people outside the courtroom. Yet many of the visitors to these buildings don’t set foot in a courtroom. Citizens go to the Courthouse to request marriage licenses and view government documents, for example. People go to the Justice Center to pay traffic fines.
Local judges and Fries should at least consider banning phones from courtrooms but not from the buildings. Large signs should be placed at each courtroom entrance; judges can remind everyone of the ban when proceedings begin; bailiffs and security personnel can seize phones when they are displayed – or ring.
Eventually, the cell phone ban may spread wider. Steuben County followed Allen’s lead, for example, and Porter County has announced a ban. Lake and Marion counties could also follow.
But until Hoosiers become accustomed to it, they are being inconvenienced, often through no fault of their own.
This page reluctantly supported the ban when it was announced early this year. But the experience after six months indicates the ban is not working well, and a review is in order.
Law - Some law firms paying to do pro bono work
"Trial-less Lawyers: As more cases settle, firms seek pro bono work to hone associates' courtroom skills" was the headline to a December 1, 2005 story in the Wall Street Journal, per this ILB entry of that date. The story itself is still available at the Post-Gazette link.
Today the WSJ has a story by Ashby Jones headed "Law Firms Willing to Pay to Work for Nothing." The story is available here today for free. Some quotes:
Lawyers have long contributed free legal work to those in need. But in recent years, law firms have grown so eager to take on cases "pro bono" that they have started to pay for the privilege.
Since 2005, Lawyers Without Borders Inc., a nonprofit organization that focuses on strengthening the legal process around the world, has required that law firms donate at least $7,500 a year to guarantee access to the cases it handles. Volunteer Lawyers for the Arts Inc., a nonprofit which delivers legal services to the arts community, gives first crack at desirable cases to firms that contribute to it. In other, less explicit arrangements, firms give money, office space or clerical help to organizations that funnel pro bono work to them.
"These cases don't just come," says Scott Harshbarger, a former attorney general of Massachusetts who was hired by Proskauer Rose LLP in 2005 in part to head up a new pro bono initiative at the firm. "You've got to pony up." * * *
The movement comes as pro bono work has evolved from an act of noblesse oblige into, at least in part, a business initiative for elite firms. Some firms want strong pro bono programs as a way to recruit and retain top law students and junior lawyers, who are often more eager than their predecessors to do pro bono work.
Monday, June 18, 2007
Law - GAO releases report on signing statements
The GAO has issued a report on Presidential Signing Statements Accompanying the Fiscal Year 2006 Appropriatons Acts. The cover letter, dated June 18, 2006, runs 12 pages. The remaining 32 pages are the enclosures.
The ILB has posted quite a number of entries on signing statements at both the federal and state level.
[More] The AP, via the Washington Post, has an article last this afternoon on the Government Accountability Office report. A quote:
The limited GAO study examined signing statements concerning 19 provisions in fiscal year 2006 spending bills. It found that in six of those cases the provisions were not executed as written.
In one case the Pentagon did not include separate budget justification documents explaining how the Iraq War funding was to be spent in its 2007 budget request. In another, the Federal Emergency Management Agency did not submit a proposal and spending plan for housing, as Congress directed.
The White House, in issuing the statements, has argued that the president has a right to control executive branch employees and officers, that he has authority to withhold from Congress information sometimes considered privileged or that Congress should not interfere with his constitutional role as commander in chief.
Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)
For publication opinions today (0):
NFP civil opinions today (0):
NFP criminal opinions today (4):
Ind. Decisions - 7th Circuit rules in Indiana capital case [Updated]
Divided three-judge Seventh Circuit panel vacates Indiana death sentence imposed on "an emotionally disturbed young man who had been abused and raped as a child" where "the only evidence presented by the defense concerning mental state at the time of the killing was the testimony of a psychologist who believes that mental illness is a myth" The vote in favor of setting aside the death sentence was 2-1. One of the judges in the majority on that issue would have also set aside the habeas petitioner's murder conviction due to ineffective assistance of counsel, but neither of the other two judges agreed on that issue. The ruling also includes consideration of the habeas petitioner's claim that his rights were infringed by the requirement that he wear a stun belt at trial.The "majority" opinion of Judge Wood is followed by Judge Ripple concurring in part and dissenting in part beginning on p. 27, and Judge Manion also concurring in part and dissenting in part from pp. 34-45.
[Updated] Read Decision of the Day's Robert Loblaw's review of the decision here.
Ind. Courts - Admissibility of electronic evidence -- is it "authentic"?
Discovery of electronic evidence has been in the news in recent months. But little has been written about the admissibility of electronic evidence.
This may be changing. Encouraging the change is the May 4, 2007 opinion issued by U.S. Magistrate Judge Paul W. Grimm in the case of Lorraine v. Markel (D Md).
The opinion, which is 101-page long, is, according to this excellent article posted by the firm of Lord Bissell Brook LLP:
not only a review of the requirements for admitting electronic evidence under the Federal Rules of Evidence, but a practical discussion of some of the technology and document management issues raised by those requirements, such as hash values and other indicia of authenticity, metadata and collection techniques.The ILB has reviewed the federal court ruling and, because of its length and the fact that it can serve as a valuable guidance, has added a linked table of contents (TOC) to the opinion and posted it here.
From the TOC it is easy to see the five evidence standards that electronically stored information must satisfy in order to be admissible under Judge Grimm's ruling. These are (1) relevance, (2) authenticity, (3) hearsay, (4) the original writing rule, and (5) balancing probative value against unfair prejudice.
The second standard, authenticity, is the focus of my latest article, "Assuring Authentic Legal Information in the Digital Age," which will appear in the June issue of Res Gestae. You may access it right now, digitally, here.
The subtitle of my article is "Part I - the Acts of Indiana and the Indiana Code." The article begins:
Last month I learned that Indiana is not the only state where concerns are being raised about the transition from printed volumes of a state's laws and rules to electronic-onlyThe AALL's State-by-State Report on Authentication of Online Legal Resources is available via this page. Here are two quotes from the Report that I also use in my article:
The American Association of Law Libraries (AALL) held a National Summit on Authentic Legal Information in the Digital Age on April 20-21, 2007. I was fortunate to be invited.
Experts at the meeting examined questions including:
- In today's dynamic digital environment, can an electronic version of a statute, rules or judicial opinion substitute for the print version?
- How trustworthy are state-level primary legal resources on the Web?
- Are they official?
- Are they authentic?
- Are they permanently accessible?
- Are they secure?
The emergence of online official legal resources is a positive development, providing that the publications are actually trustworthy.The AALL Report concludes that existing state online primary legal resources are not sufficiently trustworthy. Although a number of state online resources have been designated as "official," none are authenticated, or afford ready authentication by standard methods.
To be trustworthy, digital materials – vulnerable to lapses in management and control, corruption, and tampering – must be equivalent to print official legal resources.
To be equivalent, they must be authentic.
Some states cast online legal resources in a facilitative role, intending citizens and law researchers to use such materials as a means to identify law they must take steps to verify elsewhere. This is a misleading and self-defeating role for government information.
As fully demonstrated in the detailed findings, some online sources now replace print official legal resources. For the states to rely on an approximation of the law – even one “good enough” most of the time – completely fails in its role where the online source is the sole official statement of the law and is not authenticated.
The second quote from the AALL Report:
The fixed nature of the print medium, coupled with the paper publication’s multiple copies and wide distribution, ensures that the print official legal resource, as “governmentally mandated or approved by statute or rule,” is an authentic resource. An online official legal resource offers no such automatic assurance.My June article, as the subtitle indicates, examines the trustworthiness of the online versions of the Acts of Indiana and the Indiana Code. An upcoming article will examine the Indiana Register and the Indiana Administrative Code.
I have no current plans to look at the judicial branch, but in light of the content management system being put in place state-wide (see this ILB entry from June 11th titled "Supreme Court signs $11 million contract with Tyler Technologies"), these words from the Lord Bissell article may be as relevant to our judicial branch as they are to our legislative branch:
Judge Grimm's mini-treatise is a must read for those involved in designing and implementing effective e-contracting processes and systems, and processes for the creation and maintenance of ESI more generally. Vendors developing document management and content management systems need to incorporate a strategy for admissibility of ESI into the entire ESI value chain, from creation to maintenance, custody, security and access rules, to search, preservation, production and admission as evidence, to destruction. All along this chain the ESI faces risks of failing, for example failing to be admissible, to be enforceable, or to be persuasive. Judge Grimm raises many such risks of failure, and also implies - sometimes much less directly - processes for mitigating and managing those risks.
Courts - "The slow wheels of justice in Ohio"
The Cleveland Plain Dealer yesterday had a story by Reginald Fields on how long it takes the Ohio Supreme Court to issue a ruling after oral arguments. Some quotes:
A Plain Dealer analysis of court opinions from orally argued cases from 2004 to 2006 shows that the amount of time it took to turn out majority decisions increased from an average of five months per case in 2004 to seven months last year. * * *[Thanks to The Volokh Conspiracy for the link.]
Chief Justice Thomas Moyer, who is reluctant to talk about the inner workings of the court, acknowledges that the pace has been a rising concern for him and a source of finger-pointing among the justices. But he says it's an issue that he - despite his leadership position - is helpless to control.
"Any justice who has a pattern of taking a longer period of time than others knows the court's concern, they know the chief justice's concern, they know the concern of their colleagues," Moyer said.
"But one thing we have to remember is each of the justices is an independently statewide elected official."
The justices typically discuss and vote on a case the same day it is argued, though in rare cases, some later change their positions. Also that day, a justice in the majority is randomly selected to write the court's opinion. * * *
[Justice Evelyn Lundberg] Stratton, who is now among the most efficient justices at turning out opinions, said she puts a premium on speed.
"I just believe that it is very important that the public gets a timely opinion," she said.
The closest the justices have to a time standard is an unwritten rule for the majority author to have a rough draft of an opinion six weeks after the oral argument.
After that, when the justices meet every other week, Moyer asks for status reports.
The chief says he has discussed the court's efficiency with individual justices and as a group. And so far this year, the court is demonstrating a much quicker pace.
It's "peer pressure to keep the cases moving," Moyer explains, "but it's only that, peer pressure."
Environment - Post-Raponas wetlands guidelines issued, criticized
A year ago, on June 19, 2006, the U.S. Supreme Court issued its 5-4 ruling in Raponas v. U.S. - see ILB entry here, headed "U.S. Supreme Court wetlands decision today muddies waters." See also this Sept. 22, 2006 ILB entry, where the 7th Circuit gave its opinion of the ruling.
Today the NY Times has an editorial, titled "Muddly Waters." Some quotes:
The Environmental Protection Agency and the Army Corps of Engineers have finally issued guidelines about which streams and wetlands are subject to federal jurisdiction. Unfortunately, they are just as confusing as the Supreme Court decision they are supposed to carry out — guaranteeing endless litigation, while increasing the chances that valuable wetlands will be needlessly destroyed.Here is the U.S. EPA webpage containing the new wetlands guidance and other materials.
That is why Congress needs to move quickly to approve clarifying legislation that would reaffirm the broad federal protections lawmakers intended when they passed the Clean Water Act more than 30 years ago. The sponsors of a bill that would do just that — Russell Feingold in the Senate and John Dingell and James Oberstar in the House — should hold hearings and get Congress moving.
The nub of the problem is an ambiguous 2006 ruling involving a Michigan landowner who had been denied permission to develop wetlands that had no obvious connection to other bodies of water. Four conservative justices ruled that federal jurisdiction extended only to navigable waters and adjacent wetlands. Four ruled that the law covered all waters, the government’s traditional view. Justice Anthony Kennedy sought to split the difference, ruling that a wetland could be protected if the government could establish a “significant nexus” between it and a navigable body of water somewhere downstream.
The new E.P.A.-Corps of Engineers guidance follows Justice Kennedy’s tortured middle way.
Law - Big box concerns in Fishers
"No big box in project, Fishers official vows" is the headline to a story today in the Indianapolis Star, reported by John Tuohy. The story begins:
FISHERS, Ind. -- An Ohio firm chosen to develop a new $100 million downtown here is embroiled in a lawsuit in a Virginia town after officials there learned a Wal-Mart had unexpectedly been added to plans for a quaint downtown.The ILB has had a long list of stories about big box stores and big box ordinances over the years. And earlier this month the Supreme Court of California ruled that cities and counties can "decide what kind of commercial development they prefer, regardless of whether big-box stores are allowed and even if the effect is to restrict competition." That from a story dated June 8th in the San Francisco Chronicle. The Fresno Bee has this story. The 33-page California Supreme Court decision in Hernandex v. City of Hanford may be accessed here. [Thanks to How Appealing for the links.]
"They never said big box," said Chris Lawrence, an assistant to the Blacksburg, Va., town manager, a contention that developer Fairmount Properties disputes.
"The ideas being illustrated had nothing to do with big box."
Blacksburg, like Fishers, was anticipating a pedestrian-friendly mix of specialty shops, restaurants and homes. But when Fairmount submitted its site plan nearly a year after getting a zoning change to move the project forward, a 186,000-square-foot Wal-Mart was included.
Now, Blacksburg and Fairmount are suing each other, and the Town Council has passed an ordinance that could kill the proposed Wal-Mart and cripple the project.
Courts - Federal district court for western Michigan has had 3 of its 4 slots open for 18 months
A lengthy AP story by James Prichard in today's South Bend Tribune begins:
GRAND RAPIDS -- The case files keep stacking up on Robert Holmes Bell's desk.
For six years, Bell has been the chief judge of the Grand Rapids-based federal court that serves western Michigan, including all the Upper Peninsula.
The U.S. District Court for the Western District of Michigan is supposed to have four active judges who put in full-time hours, but three slots have been open for a year and a half. Because of delays in the political process used to replace them, Bell has been -- officially, anyway -- the court's only full-time judge during that time. * * *
Bell has had a lot of help from three senior judges who are supposed to be in semi-retirement and handling reduced caseloads. Instead, they're often putting in long hours on the bench and in their chambers because of the court's growing backlog of civil and criminal cases. * * *
The caseload of the court, which also has courtrooms in Kalamazoo, Lansing and Marquette, has been growing rapidly this year. It rose to 1,689 in June from 1,424 in February, an increase of about 66 cases per month on average.
As of Thursday, Bell alone was presiding over 495 cases, including 380 civil cases and 115 criminal cases. If the court had its entire allotment of active judges, he probably would be handling 200 to 220 cases, including 40 to 45 of the criminal type.
By comparison, the average judge in the Detroit-based federal court that serves the eastern Lower Peninsula is carrying about 150 total cases, he said.
Law - "Does Illinois need someone to deal with condo disputes?"
That is the question posed in this story today in the Chicago Tribune, reported by Pamela Dittmer McKuen. Some quotes:
In Illinois, condo owners in disputes with developers, boards and each other don't have an expedient, low-cost option for resolution. Is an ombudsman or other advocacy program, as several states have established, the answer?Other ideas also are offered in the story.
Evan McKenzie thinks so. He's an attorney, associate professor of political science at the University of Illinois at Chicago and author of "Privatopia: Homeowner Associations and the Rise of Residential Private Government" (Yale University Press, 1994).
"I know that most associations are run pretty well most of the time, but they are run by volunteers," he said. "Without institutional oversight of these boards, you are talking about billions of dollars being handled by untrained, unsupervised amateurs. The problems you hear about are just the tip of the iceberg."
"I get calls all the time from people who ask, 'Can't you help me?' " said Rep. Elaine Nekritz (D-Des Plaines), who supports ombudsman legislation. "I have to tell them the state has no regulatory oversight. This is a private contract and we really can't get involved."
Last month the Illinois General Assembly passed the Condominium Advisory Council Act, which creates a council to study owner and association issues and make recommendations for legislative changes by Jan. 31. But some organizations and owners believe legislators should stay out of the matter.
The Community Associations Institute, a trade group in Alexandria, Va., has helped defeat ombudsman legislation in California and Virginia. "We think it makes more sense to give residents and associations the tools to resolve their problems without placing this burden on state government," said spokesman Frank Rathbun. "Building communities and creating a sense of community requires educating and empowering homeowners to resolve disputes based on trust and commonality. That's not a function that can be readily outsourced to the statehouse."
Ind. Law - Updates to coroner laws going into effect July 1
The Evansville Courier & Press has a report today by Gavin Lesnick that begins:
A series of new laws that goes into effect next month sets more stringent rules on how Indiana coroners operate, but local officials say they will make little difference because most of the changes are already policy here.Three bills relating to coronors passed in the General Assembly this year: SEA 191, SEA 448, and HEA 1503.
Vanderburgh County Coroner Don Erk said the new laws, which go into effect July 1, are a positive step toward standardizing the position on a statewide level, but should cause no major shifts in his office.
Erk said some of the main components of the law, including mandatory annual training for coroners and their deputies and specific methods by which a coroner can identify a body, are normal practices that his staff has employed for some time.
But Erk said the position of coroner ranges greatly from county to county and the new laws are an important step toward standardization.
Ind. Law - In 1965 the statutes prohibiting interracial marriage were repealed in Indiana
A side-bar to this story today in the Indianapolis Star gives a quick "look at how the law has evolved" in Indiana. The main story, by Courtenay Edelhart, is headed "In loving color: Interracial couples find greater acceptance four decades after historic high court decision."
See also this ILB entry from March 11th, headed "Marking the 40th anniversary of the Loving vs. Virginia decision."
Ind. Courts - Evansville's Old Courthouse may be restored, over time
Thomas B. Langhorne reports today in a long story in the Evansville Courier & Press that:
A master plan for renovation of Evansville's Old Courthouse, produced in March, foresees a comprehensive overhaul that would cost millions and take years to complete.
So the guardians of the 117-year-old Downtown landmark are doing what they can do when they can do it. * * *
"We have to start somewhere," said Dennis Au, Evansville's historic preservation officer and president of the Old Courthouse Foundation, a private, nonprofit organization dedicated to preservation of the mammoth 15,500-square-foot structure.
Ind. Courts - "Treatment detours delay meth proceedings"
"Treatment detours delay meth proceedings" is the headline to this story by Kate Braser in today's Evansville Courier & Press. Some quotes:
Shortly after Evansville attorney Brad Happe was accused of having a meth lab in his law office and apartment, his path through the local criminal justice system detoured to an inpatient treatment center in an upscale Chicago neighborhood.Additional ILB entires about these defendants may be found using the search box in the right column.
Another local attorney, Teresa Perry, was also recently accused of having a meth lab in her home. Perry was released from jail on bond and driven by family hours away from the county to a treatment center with a setting described on its Web site as "serene," on 13 acres in Johnson County, Ind. * * *
[Vanderburgh County Deputy Prosecutor Dan Miller] explained sometimes defendants with private attorneys "can afford to wait out the prosecution" from reaching trial by keeping their case going with motions and treatment-related delays. * * *
The Rev. Jeffrey Stratton, pastor of American Baptist East Church, testified on behalf of Perry at her bond hearing last month. After his testimony, a judge permitted Perry to be released from jail and transported by her mother directly to Tara Treatment Center Inc. in Johnson County. Stratton said his former sister-in-law runs Tara and helped expedite Perry's entry.
He said Perry's opportunity to get expensive treatment hours away before the conclusion of her case is not unfair, but is rather the result of her own hard work to put herself through school for seven years and build a legal career.
Sunday, June 17, 2007
Not Law but Interesting - College students succeed in the new media world
But it was their own initiative that made it happen. Two stories, one from each coast:
From the LA Times, a front-page story by Jim Puzzanghera headed "The political guru wore tennis shoes: A recently graduated college student who made YouTube videos in his dorm room has captured the attention of some presidential hopefuls." The guru is "James Kotecki, a 21-year-old international politics major who has become the candidates' unlikely guide to the YouTube demographic." More:
In only a few months, Kotecki has managed to transform himself into a respected campaign commentator using only a 3-year-old Dell laptop and $60 Logitech Web camera. CNN, National Public Radio and the Washington Post, among others, have sought his views on presidential campaign videos.And then there is this story from the Nov. 20, 2006 NY Times - I remember reading it when it came out. The story by Julie Bosman is titled "The Kid With All the News About the TV News." A few quotes:
"He's not only using the medium effectively, he's showing the political establishment how to be better at understanding the dynamics of online communications," said Andrew Rasiej, founder of TechPresident.com, a site that tracks how candidates are using the Web. "They are responding to him because they feel like if they don't, they'll be viewed as having missed the boat."
TOWSON, Md. — When people in the television news business want to find out what’s going on in their industry, they turn to a blog called TVNewser. But while the executives obsessively checking TVNewser are mostly high powered and highly paid, the person who creates it is not: he is Brian Stelter, a baby-faced 21-year-old at Towson University here, a few miles north of Baltimore. * * *Cool, right? Well, it gets better.
Mr. Stelter’s blog (tvnewser.com), a seven-day-a-week, almost 24-hour-a-day newsfeed of gossip, anonymous tips, newspaper article links and program ratings, has become a virtual bulletin board for the industry.
It is read religiously by network presidents, media executives, producers and publicists, not for any stinging commentary from Mr. Stelter, whose style is usually described as earnest, but because it provides a quick snapshot of the industry on any given day. Habitués include Mr. Williams and Jonathan Klein, the president of CNN’s domestic operations, who long ago offered up his cellphone number to Mr. Stelter.
“The whole industry pays attention to his blog,” said Jeffrey W. Schneider, a senior vice president of ABC News. “It would not surprise me if I refreshed my browser 30 to 40 times a day.”
In April Mr. Stelter attended the White House Correspondents’ Dinner as a guest of MSNBC.
“He was quite a celebrity,” said Jeremy Gaines, a spokesman for MSNBC. “Literally two tables over was George Clooney, and at our table was TVNewser, and people were waiting in line to see him.”
Perhaps this is what the techno-geeks had in mind when they invented the Internet — a device to squash not only time and space, but also social class and professional hierarchies, putting an unprepossessing Maryland college student with several term papers due in a position to command the attention and grudging respect of some of society’s most famous and powerful personalities.
Here is a story from last Tuesday, June 12th, in Media Bistro's Daily FishbowlNY, headed "NY Times Steals Our TVNewser." It begins:
Well, score one for the Gray Lady. Brian Stelter, our TVNewser blog wunderkind, is leaving the friendly confines of the mediabistro.com server farm for the New York Times.The story then quotes from a Times internal memo making the announcement. The memo begins:
You read about him on the front page of The New York Times last November, in "The Kid With All the News About the TV News." Now you'll read him in The New York Times.
Brian Stelter, the TVNewser blogger, is joining the Times next month as an 8i reporter to cover the media world for NYTimes.com and for the paper. He will report to media editor Bruce Headlam, and will work closely with Business Day reporters and with our friends in Culture, including television editor Steve Reddicliffe and reporters Bill Carter, Jacques Steinberg and Ed Wyatt.
Ind. Decisions - "Feds end 35 years of county jail scrutiny"
Following up on federal Judge Sarah Evans Barker's order last Monday to end federal oversight of the Marion County Jail, the Indianapolis Star today has a feature headed "Five questions for Judge Sarah Evans Barker." Here is #4:
4. How important was the ACLU's role?
It was huge. They were courageous to take on the case. It's not a popular cause. They were not wide-eyed, irrational radicals. (Legal director) Ken Falk, I think, spent 11 years on this personally. One of the important means by which this case was able to be resolved is that there was highly effective lawyering on both sides.
Saturday, June 16, 2007
Law - Suggested response to Ledbetter v. Goodyear Tire & Rubber Co.
The ILB missed reading this June 4th opinion piece by Susan E. Reed (which may no longer be freely available) in the NY Times, but heard about it this morning when listening to this commentary on NPR's Marketplace Money. The NPR piece sums up the article pretty well.
In this ILB entry from May 31st from I quoted Steven Greenhouse of the NYT:
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.Reacting to Ledbetter, the Reed opinion piece suggests that Congress pass legislation mandating that companies post salaries. She continues:
It makes sense, especially in light of the court's decision last week requiring employees to file pay discrimination complaints under Title VII of the Civil Rights Act within 180 days of the last pay adjustment.Reed notes that "If we are really going to enforce the 180-day rule, then Congress needs to make it easier for workers to procure the necessary evidence."
It's only fair since the five justices who supported this decision must have thought that it was easy for employees to find out whether they are being discriminated against. They must never have had to sidle up to co-workers and whisper nosy questions about pay to find out how they ranked. They must never have been so desperate for proof that they considered hacking into the company database or ransacking the human resources office searching for pay rosters.
It's understandable that the Equal Employment Opportunity Commission, which is responsible for investigating pay discrimination complaints, requires evidence. But some employees have not discovered evidence that they are paid less until after the 180 days has expired.
Ind. Courts - "Rios trial costs ballooning: Court to request another $340,000 for murder case"
Jeff Wiehe reports in the Fort Wayne News Sentinel, in a long and detailed story:
Allen Superior Court officials are asking County Council for another $340,945 on top of the estimated $100,000 already spent on Simon Rios’ death-penalty case, and Rios’ lead attorney believes even more will be needed.The story also has discussion of the cost of a death penalty case v.s. the cost of incarceration for life.
Michelle Kraus said multiple trips to Mexico to investigate Rios’ past, the need for Spanish interpreters, bilingual experts, a sequestered jury from southern Indiana and assorted other costs will make the Rios case the most expensive among the capital cases she has studied.
“I do have information about a number of capital cases throughout the state, with the low-end figures at $300,000 and the high end up to about $750,000,” said Kraus, a public defender being paid by the county. “Based upon the prior costs we’re looking at and the additional costs, it means our trial is probably going to exceed the most expensive trial we have data on.” * * *
The request for the $340,945 appropriation is on County Council’s agenda for its June 21 meeting. Also in the appropriation request is the court’s projected 2007 budget. Originally set at $4.6 million, it’s expected to grow to $4.9 million by the end of the year.
Allen County Prosecutor Karen Richards said she could not comment specifically on the Rios case because it is still pending. Kraus said she could not disclose how much she had spent thus far because most of what has been paid for on her side has been sealed, but 50 percent of what she spends should be reimbursed to the county with funds from the state Public Defender Commission.
The appropriation request, though, estimates Kraus needs $20,000 for experts to evaluate Rios and $150,000 for attorney fees. It’s not clear if that includes evaluations already performed by two expert psychologists.
More than $40,000 will be needed for interpreters, though the court received a $30,000 grant from the chief justice of Indiana to defray that bill. About $7,100 is needed to pay for [Judge] Gull, attorneys and staff to travel to Clark County, where they’re expected to spend five days and nights picking a jury. That trip is tentatively scheduled for next month. A specialized court reporter to transcribe what is said in the courtroom should cost more than $47,000.
The ILB has had a number of earlier entries of the costs of death penalty cases, including "Death penalty sends a state's legal costs soaring" from 11/5/06, "Cost of death penalty trial factored into Pike County decision" from 10/17/06, "Three trials in the Camm murder case have cost Floyd County taxpayers about $1.8 million" from 4/3/06.
The Camm retrial costs led to legislation: see these entries from 1/27/07 and 2/5/07. As reported in this 4/30/07 ILB entry, the new state budget does include language providing for "state reimbursement on new trial costs when the Indiana Court of Appeals or Indiana Supreme Court calls for a new trial."
Courts - More on: It is best not to tell the judge she is "a few french fries short of a Happy Meal"
Chicago attorney William P. Smith says he's very, very, very sorry for telling U.S. Bankruptcy Judge Laurel Myerson Isicoff she was "a few French fries short of a Happy Meal" during a May 7 court hearing in Miami.
The chairman of McDermott Will & Emery, the Chicago-based firm whose bankruptcy practice Smith heads, is ready to prostrate himself before the judge as well.
According to a recent motion filed by the law firm, Harvey Freishtat, who heads the 1,000-lawyer firm, plans to fly to Miami for a hearing on Smith's comment. The motion states Freishtat will personally express "on behalf of the entire firm, to this court, to the other lawyers in this case, and to the other honorable judges of this District Court, [his firm's] sincere and deepest apology for the words used by Mr. Smith."
Law - Massachusetts legislature defeats efforts to put gay marrriage ban on the ballot [Updated again]
The Indianapolis Star carries an AP story today by Ken Maguire reporting:
[Massachusetts] lawmakers killed an effort to let voters decide on a constitutional amendment to ban gay marriage. The defeat for gay marriage opponents -- after more than three years of debate -- makes the successful mounting of a future challenge even more unlikely.The Star adds a side-bar titled "What About Indiana?"
Now attention turns to the state's 1913 law, which, if repealed, would mean gay couples from other states could legally marry in Massachusetts. * * *
So far, only Rhode Island allows its gay couples to wed in Massachusetts. More than 170 marriages of gay couples from New York who wed in Massachusetts before July 2006 have also been deemed valid, because New York had not banned same-sex marriages until then.
The courts might not be as helpful to those who want to strike down the 1913 law.
The Supreme Judicial Court, which legalized gay marriage, upheld the 1913 law last year, ruling that Massachusetts "has a significant interest in not meddling in matters in which another state, the one where a couple actually resides, has a paramount interest."
Gay marriage is prohibited by Indiana law, but there have been efforts to change Indiana's Constitution to ban same-sex marriage.The Berkshire Eagle had a strong editorial Friday supporting the legislative vote. Some quotes from the lengthy editorial:
On April 3, an Indiana House committee rejected a proposed constitutional ban on same-sex marriage, signaling a major victory for the gay-rights community and big employers that opposed the amendment.
Constitutional amendments must be passed by two separately elected legislatures. In 2005, the House and Senate overwhelmingly passed the amendment. This session, the Senate voted 39-10 to do so. It is possible the General Assembly could pass the amendment next spring, and voters could vote on it in 2008.
Gay marriage is safe in Massachusetts, and we hope the whole world was watching. By blocking a proposed constitutional amendment banning gay marriage from making the November 2008 ballot yesterday, the state's lawmakers stood up for civil rights, protected the integrity of our judiciary, and set an example for others states to follow, which in time, they assuredly will.[Updated] Thanks to How Appealing, here is a link to a column in the Boston Globe by Derrick Z. Jackson on the issue raised above by Raymond Flynn (and one raised here in Indiana after the House's failure to vote the proposed constitutional amendment out of committee earlier this year):
The question needed the approval of 50 of 200 lawmakers in consecutive sessions to advance to the ballot, but after getting 62 votes in January it received just 45 yesterday. The leadership of both the House and Senate were opposed to the question and Governor Deval Patrick's outspoken advocacy of gay marriage helped turn the tide, demonstrating the clout he has gained since taking office in January. Perhaps most significantly, however, the steam has gone out of the anti-gay marriage cause as the argument against it has slowly evaporated with time. * * *
The statement by Raymond Flynn, the former Boston mayor and U.S. ambassador to the Vatican who was the lead sponsor of the amendment, that residents "had their vote stolen from them" exposes his ignorance of state government. Lawmakers, who are the elected representatives of the state's residents, are required by law to give their approval to proposed referendum questions for them to make the ballot, and by voting against an amendment they felt was harmful or unconstitutional they were legally exercising their authority.
Former Massachusetts Governor Mitt Romney, a supporter of gay rights when elected but an opponent now that he is pandering to the far right in his bid for the Republican presidential nomination, said the vote yesterday was an argument for a national amendment banning gay marriage, but he would be advised to leave that plank out of his platform. Voters showed last November that they see through the GOP's transparent political gamesmanship on social issues, and are weary of having the nation torn apart when it needs to come together to solve real problems.
We hope that the Massachusetts Family Institute and other backers of the amendment will abandon their efforts against gay marriage. The state has many serious issues it needs to focus on. Gay marriage, which is here to stay, is no longer one of them.
OPPONENTS of gay marriage say democracy was stolen by the Massachusetts Legislature. Former governor and Republican presidential candidate Mitt Romney said, "Unfortunately, our elected representatives decided that the voice of the people did not need to be heard."And this story from the Boston Herald, headlined "Pols: Gay families’ ads swayed us," begins:
To the contrary, the Legislature, by voting to keep a gay marriage ban off the 2008 statewide ballot, acted in the best tradition of James Madison. * * *
No one can credibly argue that racial integration, women's voting and athletic rights, access for the physically disabled -- to name a few areas -- would be where they are today without the minority finding relief in court or legislative decisions that bypassed a popular vote. * * *
When the Massachusetts Legislature voted this week, it acted upon the knowledge that for too long, gay and lesbian people -- like people of color, women, and the physically challenged before them -- were penalized by the details of life, enslaved mentally and physically to the will of the majority. Gay marriage has been banned in nearly every state that put it up for a statewide vote, with not one iota of evidence how gay marriage so much as meddles with straight marriage, let alone injures it.
Opponents of gay marriage in Massachusetts say the voters were robbed. The Legislature stepped in to end the theft of dignity. Madison or Hamilton wrote, "If men were angels, no government would be necessary."
This was a moment the Legislature had to be the guardian angel. It acted in the spirit of Federalist No. 51: "A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."
In a pitched political battle, these gay couples got personal, telling their sagas in a series of TV commercials that blitzed the airwaves during the run-up to Thursday’s dramatic State House vote upholding same-sex marriage.[Updated 6/18/07] The Boston Globe has this story yesterday, headed "Waves of change swept away bid vs. gay nuptials," that begins:
And that was exactly the point of those very political ads, said Marc Solomon, director of MassEquality, the pro-gay group that sponsored the three commercials.
“This whole effort has been about people telling their personal stories,” Solomon said yesterday.
Susan Shepherd of Cambridge, who was featured in one of the commercials, said the ads opened a new avenue of understanding.
“A lot of people don’t know anybody gay or lesbian, and this helps put a public face on that,” said Shepherd, who along with her partner, Marcia Hams, was the first to receive a gay marriage license from Cambridge City Hall.
Until last week, gay marriage advocates never once believed they could defeat a constitutional amendment banning same-sex marriage on its merits.
Desperate to prevent Massachusetts legislators from putting the measure on the ballot, they resorted to parliamentary tricks -- adjournments, recesses, tactical maneuvers -- to avoid or delay the up-or-down roll calls they knew they would lose, especially in years when their opponents needed support from just a quarter of the state's 200 lawmakers to move the ballot question forward.
"We knew we couldn't stop 50 legislators from putting it on the ballot," said Arline Isaacson, who led lobbying efforts against the amendment during the many times it came up for votes over the past six years. "There was no other way to kill it."
But Thursday, for the first time, they defeated the amendment , holding their opponents to just 45 votes. What happened between 2001 and 2007 was nothing less than a transformation on Beacon Hill, and in the state beyond.
Change came suddenly in some quarters: A handful of Supreme Judicial Court judges got out ahead of the Legislature, allowing gays and lesbians to marry. And leaders who were determined to get the gay marriage ban before voters were replaced by a governor, a Senate president, and a House speaker far less friendly to that cause.
But mostly, Thursday's vote was the result of far more gradual, subtle changes: public opinion polls inching up year by year in favor of gay marriage; the rising visibility of same-sex couples in neighborhoods and in State House hallways; and legislators grappling with the issue, changing their minds, one by one.
Ind. Decisions - "Dairy forbidden to handle manure"
Some quotes from Rebecca S. Green's story today in the Fort Wayne Journal Gazette, headlined "Dairy forbidden to handle manure: Judge orders DeGroot to hire third party."
Owners of a Huntington County dairy will need to find someone else to deal with the manure generated by their 1,400 cows.Here is a list of earlier ILB entries referencing "DeGroot."
Huntington Circuit Judge Thomas Hakes ruled Friday the DeGroot Dairy, 8378 W. County Road 200 S. in rural Huntington County, and its owner Johannes DeGroot cannot apply any manure onto fields in the area.
DeGroot is required to either pump and haul the manure to an appropriate waste treatment facility or hire a third-party “custom manure applicator” to manage the gallons of manure generated at the farm.
The ruling, issued Friday, grants a request by the Indiana Department of Environmental Management for a preliminary injunction against the farm to prevent it from discharging manure or contaminants into the tributaries of the nearby Salamonie Reservoir. * * *
IDEM officials revoked the dairy’s operating permit in May. DeGroot appealed the decision.
In its five years of operation, the dairy has frequently come under fire about its handling of manure.
Attorneys with the Indiana Attorney General’s office said the only time the dairy was not the subject of complaints was when an independent contractor handled the manure as part of an earlier settlement with IDEM.
But Peter Racher, an attorney for DeGroot, has argued there was no evidence connecting the most recent contamination in the creek to the dairy, its operation or its cows.
Friday, June 15, 2007
Ind. Decisions - Transfer list for week ending June 15, 2007
Here is the Indiana Supreme Court's transfer list for the week ending June 15, 2007.
Note that transfer was granted in the case of Virginia Hartman and Suzanne Swinehart v. Dr. Gabe Keri, relating to absolute privilege, as the ILB reported Wednesday. There were two dismissals, plus the Bradley grant with opinion, which was also reported Wednesday.
Over three years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
Ind. Decisions - "Court gives test failing grade" - story is a puzzlement
Well, the ILB is confused. It read this article in the Greater Fort Wayne Business Journal today, dated June 15, 2007, that states:
In April, the U.S. Court of Appeals for the Seventh Circuit in Chicago issued a ruling that any personality test used to determine promotions qualifies as a medical exam because it asks questions that may reveal mental disabilities. The Americans with Disabilities Act, or ADA, prohibits medical exams. * * *The ILB looked for the opinion. It found this Wisconsin Law Journal article dated June 1, 2005, stating:
The company that the appeals court ruled against, Rent A Center, tested three brothers who were applying for a promotion. Based on the test results, all of the brothers were rejected for promotions. The brothers said the test violated provisions of the ADA. They lost their case in the district court, but won the appeal to the Seventh Circuit. * * *
But what does that mean for Indiana employers? Since Indiana is located in the Seventh Circuit, the new ruling effectively bars employers from using any personality test that contains questions regarding the mental health of an employee.
In Karraker v. Rent-A-Center, Inc., Case No. 04-2881 (Jun. 14, 2005), the Court held that the Minnesota Multi-Phasic Personality Inventory (MMPI) was a "medical examination" under the ADA. Its use was, therefore, illegal as a pre-employment test that screened out, or had the effect of screening out, job applicants with disabilities. This is the first case in which a federal circuit court addressed the permissible uses of MMPI as a pre-employment test. The case provides a useful analysis of many hiring issues that arise under the ADA. * * *
The Karraker brothers brought a class action against Rent-A-Center alleging violations of the ADA after the three brothers were denied promotions because they failed the APT Management Trainee-Executive Profile. The APT was a series of 9 tests designed to measure such things as math and language skills as well as personal interests and personality traits.
Environment - More about Supreme Court's recent CERCLA-related voluntary clean-ups opinion
Re the Supreme Court's June 11th opinion in United States v. Atlantic Research Corp. (see earlier ILB entry here), here are some quotes from a press release issued by the Attorney General of the State of Washington:
June 11, 2007 -- OLYMPIA - Washington Attorney General Rob McKenna today hailed the decision by the U.S. Supreme Court to allow individuals and corporations who voluntarily clean up hazardous waste sites to recover costs from other liable parties as a victory for the state and the environment.Here is an update on the Court's ruling prepared by the Environmental Department of Barnes & Thornburg LLP and posted with permission:
In a unanimous decision in U.S. v. Atlantic Research Corporation, the Court affirmed that the federal Superfund law authorizes individuals and companies who voluntarily incur costs to clean up hazardous waste contamination to recover costs from other persons who share liability. * * *
The ruling vindicates the position of Washington state. Washington led 37 other states, the District of Columbia and Commonwealth of Puerto Rico in submitting a “friend of the court” brief to the Court. The Court also granted Washington permission to present oral argument along with the private company.
At the April 23, 2007, argument, Deputy Solicitor General Jay Geck explained the importance of cost recovery under CERCLA to finance costly cleanups. “Private parties rely on cost recovery as a financial incentive to conduct a clean-up,” said Geck.
The amicus states emphasized that the federal government’s position would leave the bulk of voluntary cleanups without cost recovery or contribution rights. Both E.P.A. and state environmental agencies focus on the most serious sites, making voluntary cleanups the primary mechanisms by which lower-priority sites are cleaned up.
“The Court’s decision today preserves vital incentives for voluntary cleanups to continue in Washington,” said Ecology Director Jay Manning. Manning also noted that cost recovery is limited to voluntary parties who comply with the state and federal requirements, thus ensuring that voluntary cleanups provide full protection to people and the environment. * * *
Other states joining this brief were: Alabama; Alaska; Arkansas; Colorado; Connecticut; Florida; Georgia; Hawaii; Idaho; Illinois; Indiana; Iowa; Kentucky; Louisiana; Maine; Maryland; Massachusetts; Michigan; Minnesota; Mississippi; Missouri; Montana; Nevada; New Hampshire; New Jersey; New Mexico; New York; North Carolina; North Dakota; Ohio; Oregon; Rhode Island; Tennessee; Texas; Utah; Vermont; and Wisconsin.
On June 11, 2007, the United States Supreme Court rendered a decision in United States v. Atlantic Research Corp . holding that potentially responsible parties (PRPs) can bring cost-recovery actions against other PRPs under § 107(a) of CERCLA. PRPs have generally been allowed to recover response costs in CERCLA actions from other PRPs only under § 113(f). However, in 2004, the Supreme Court limited contribution actions under § 113(f) to those PRPs who had been sued under § 106 or § 107. Cooper Indus., Inc. v. Aviall Servs., Inc. , 543 U.S. 157 (2004). Until this decision, it was an open question in some Federal Circuits whether a PRP who voluntarily initiated clean up could maintain a cause of action against other PRPs to recover portions of their response costs unless the claimant PRP had been sued under § 106 or § 107.
Atlantic Research leased property from the Department of Defense where it retrofitted rocket motors for the United States. In the course of its business, Atlantic Research removed pieces of propellant from the motors using high-pressure water spray. As a result of these activities, some of the resultant wastewater and burned fuel contaminated soil and groundwater at the site. Atlantic Research remediated the site at its own expense and then sought to recover some of its costs by suing the United States.
Atlantic Research is the most recent clarification in a long-line of decisions regarding the relationship between cost-recovery (§ 107(a)) and contribution (§ 113(f)) mechanisms under CERCLA. In 1986, Congress passed the Superfund Amendments and Reauthorization Act (SARA), which created a contribution action under § 113(f) that codified a right of action that had been judicially recognized by Courts under § 107(a). Following SARA, many of the Circuit Courts eventually restricted PRPs from bringing § 107(a) actions for cost recovery and instead required PRPs to bring actions for contribution solely under § 113(f). However, in 2004, the Supreme Court held in Cooper v. Aviall that PRPs who had not been sued under § 106 or § 107 could not maintain a cause of action under § 113(f). In the aftermath of Cooper , several Circuit Courts recognized that the logic in Cooper undermined their previous decisions restricting PRPs to contribution under § 113(f), and allowed PRPs to bring actions under § 107(a). The Eighth Circuit in Atlantic Research reversed prior decisions by allowing a PRP who had not been sued under § 106 or § 107 to bring a cause of action against the United States under § 107(a). The United States petitioned for certiorari..
Relying on the plain language of § 107(a), the Court unanimously affirmed the decision of the Eighth Circuit. The Court began its analysis by identifying two liability provisions: § 107(a)(4)(A) and § 107(a)(4)(B). While § 107(a)(4)(A) granted the United States, any State, or any Indian tribe the right to seek recovery of costs incurred against any PRP, § 107(a)(4)(B) imposed liability for "any other necessary costs of response incurred by any other party." The Court found that word "other" contained in § 107(a)(4)(B) modifies and referenced those parties listed in § 107(a)(4)(A), namely the United States, any State or Indiana tribe. Therefore, the Court found that § 107(a)(4)(B) contains an express cause of action for any person other than the United States, any State or Indian tribe, regardless of PRP status, to sue any PRP for any necessary costs of response incurred consistent with the national contingency plan.
While the Court observed that § 107 and § 113 could provide remedies that were "somewhat overlapping," the Court found that section § 107(a) and § 113(f) were "clearly distinct" remedies for PRPs based upon their procedural circumstances. Where a PRP has been sued under § 106 or § 107, the PRP can only seek contribution under § 113(f). Where a PRP has incurred response costs, but has not been sued under § 106 or § 107, (including those PRPs who act voluntarily), a cause of action is available under § 107(a).
Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)
For publication opinions today (2):
Robert S. Beineke and Joan S. Beineke v. Chemical Waste Management of Indiana, LLC is a statute of limitations case - which one is applicable?
This case revolves entirely upon resolution of which statute of limitations applies in this case. “The applicable statute of limitations is determined by identifying the nature or substance of the cause of action.” * * * Chemical Waste argues that either one of two statutes applies in this case: Indiana Code Section 34-28-5-1(c)(2), which provides a two-year limitations period to bring an action based upon an alleged violation of an ordinance, or IC 34-11-1-2(a), which provides a “catch-all” ten-year limitations period for actions arising after September 1, 1982, that are not governed by any other statute of limitations. The Beinekes do not make any argument that they filed suit within either a two-year statute of limitations or ten-year statute of limitations. They focus exclusively on the twenty-year statute of limitations governing claims based on written contracts entered into before September 1, 1982, as provided by IC 34-11-2-11. * * *Donald Jensen, et al. v. The City of New Albany, et al. is an 18-page opinion, including a concurring opinion beginning on p. 14. Judge Vaidik writes:
Assuming the Beinekes had concurrent authority with the Zoning Administrator to bring an action to enforce the 1974 “covenants” or to seek damages under them, they had at most ten years from the accrual of a cause of action against Chemical Waste to file suit pursuant to the “catch-all” statute of limitations in Indiana Code Section 34-11-1-2.5 The Beinekes make no argument that they filed suit within such a time frame.
Appellants contend that the trial court erred in refusing to enforce the reversionary clause in a deed. Because the deed transferred the subject real estate to the State, an entity with the power of eminent domain, the reversionary clause is not enforceable. We therefore affirm the judgment of the trial court. * * *The ILB has had several entries on this case, under headings including "Heirs argue that deed required land to be used for a public purpose," and "Fate of subdivision turns on 1935 deed." See the list here.
Because we base our decision on Dible and the principle that a reversionary clause cannot be enforced against an entity with the power of eminent domain, we need not address any of Appellants’ arguments concerning deed interpretation. No matter how we interpret the 1960 Deed, the reversionary clause cannot be enforced against the State. * * * Affirmed.
BARNES, J., concurs BAILEY, J., concurs with separate opinion. [ which begins:] I concur with the majority’s conclusion that the reversionary clause in the 1960 Deed is unenforceable. I write separately, however, because I disagree with the majority’s analysis and conclusion in footnote five regarding the applicability of Indiana Code Section 32-24-1-15(a)(4) (2004).
NFP civil opinions today (2):
Bart Taylor v. Lauren Taylor (NFP) - "Bart has not established that the trial court abused its discretion when it equally divided the marital estate. We affirm."
Marie Pollard v. Luke Ogden (NFP) - "Once Ogden advised the trial court that the sums agreed upon in mediation had been tendered, it would then have been incumbent upon Pollard to point out that the first tender was arguably two days late and Ogden was thus liable to pay $10,000.00. Pollard was not present to do so. Nor did she seek relief pursuant to Trial Rule 60(B)(1) by presenting a claim of mistake, surprise, or excusable neglect. Rather, she chose to allege misconduct pursuant to Trial Rule 60(B)(3), but is unable to satisfy her requisite burden of proof. The trial court did not abuse its discretion by denying Pollard equitable relief."
NFP criminal opinions today (8):
Courts - “[I]t is intolerable for the judicial system to treat people this way.” [Updated]
Those are the words of Justice David Souter, writing for the four dissenters in The Supreme Court's decision Thursday in Bowles v. Russell. Linda Greenhouse of the NY Times quotes Souter today in a column headed "Justices, 5-4, Accept No Excuses From Inmate for Mistaken Late Filing of an Appeal." Some quotes:
A narrow Supreme Court majority on Thursday agreed that a lower court properly dismissed the appeal of a man who missed a federal filing deadline by three days because of a federal district judge’s erroneous instructions.Greenhouse also notes that the 5-4 alignment here "was the same alignment by which the court last month enforced a deadline in a different context, when it ruled that pay discriminations suits were barred unless the employee had filed a formal complaint within 180 days of the initial pay decision, a ruling that some Congressional Democrats are trying to override through legislation."
The defendant, Keith Bowles, who is serving a sentence of 15 years to life for murder, had argued that given the judge’s erroneous instruction — that he had 18 days to file an appeal instead of the 14 that federal law allows — his case should come within the “unique circumstances” doctrine that the Supreme Court created to recognize unusual instances when jurisdictional rules need not be strictly enforced.
The court, however, used the case to announce it was overruling the two precedents the Supreme Court had used when it established the “unique circumstances” doctrine in the 1960s. Writing for the majority, Justice Clarence Thomas said the court now regarded the doctrine as illegitimate. “If rigorous rules like the one applied today are thought to be inequitable,” Justice Thomas added, the remedy should come from Congress.
Justice David H. Souter, writing for the four dissenters in the case, Bowles v. Russell, No. 06-5306, objected that “it is intolerable for the judicial system to treat people this way.” He added, “There is not even a technical justification for condoning this bait and switch.”
[Update] Tony Mauro of The Legal Times also writes about the decision today, under the headline "Low-Profile Supreme Court Case Offers Glimpse of Sharp Divide."
[Update 6/17/07] The Washington Post today has a strong editorial on the Bowles decision.
Ind. Courts - More on cell phone bans in Indiana courthouses
Dionne Waugh of the Fort Wayne Journal Gazette reports today that:
It’s been almost six months since Allen County banned cell phones, cameras, iPods and nearly all other electronic devices from its court facilities.The story concludes:
Yet, hundreds of people still try to bring them in every day.
“It’s amazing,” Allen Superior Court Chief Judge Fran Gull said. “It’s a little discouraging that we still have this much of a problem this far past (January).
“There’s signs posted everywhere. People seem to think the sign has no applicability to them. It’s very frustrating for court security who get the brunt of people’s complaints. * * *
Gull said she has continued to receive requests for exemptions from doctors, out-of-town visitors, jurors and photographers, but none have been granted.
County judges made the decision to ban most electronic devices, saying cell phones were disruptive and a safety concern when people used them to take pictures and video of jurors, witnesses, victims and attorneys.
Allen County is one of the first localities in the state to ban the devices, which are also not allowed in federal court.For earlier ILB entries on courthouse cell phone bans, see this list.
Though cell phones are still allowed in court facilities in Indianapolis, Gary and South Bend, that may soon change.
Spokesman Mike Higgins with the Lake County Sheriff’s Office said Lake County may not be far behind.
Porter County announced this month it will begin banning cell phones in August after learning that guns resembling cell phones are now available on the Internet. Court officials there are still working out the details, including granting exemptions for attorneys, police and courthouse employees.
Court officials in nearby St. Joseph County are also considering changes, St. Joseph Circuit Judge Michael G. Gotsch said.
Shortly after Allen County banned cell phones in January, Steuben County followed suit after learning someone broadcast a private court hearing involving a neglected and abused child. A member of a judge’s court staff received a call from someone in LaGrange County who had received a phone call and could hear the court proceedings.
Law - Several Kentucky fen-phen lawyers indicted
The ILB has a long list of entries on the Kentucky fen-phen scandal, dating back to the beginning of 2006, when a judge resigned "rather than face removal for allegedly profiting from a $200 million settlement involving the diet drug fen-phen."
Today Andrew Wolfson of the Louisville Courier Journal reports in a lengthy story:
A federal grand jury in Covington indicted Lexington attorneys Shirley Cunningham, Melbourne Mills Jr., and William Gallion on a charge of conspiracy to commit wire fraud. If found guilty, they should pay restitution of $65 million, the grand jury said.
If convicted, each could face up to 20 years in prison and a maximum fine of $250,000.
No other defendants were named in the indictment. And attorneys for prominent Cincinnati lawyer Stan Chesley, who negotiated the $200 million diet-drug settlement in 2001, have said he is not a target of the investigation.
Ind. Decisions - Convicted murderer Michael Lambert executed early this morning
According to an AP report in the Lafayette Journal & Courier: "[Michael] Lambert, who did not give a final statement, was pronounced dead at 12:29 a.m. CDT Friday."
Tom Coyne of the AP reported in this story in the Fort Wayne Journal Gazette that:
The U.S. Supreme Court on Thursday denied, without commenting, to grant Lambert’s request that the execution be blocked. That step came a day after Gov. Mitch Daniels denied his clemency petition.Here is a list of earlier ILB entries on Michael Lambert.
Thursday, June 14, 2007
Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)
For publication opinions today (4):
In David Schlotman v. Taza Cafe, d/b/a Gyro Joint, an 11-page opinion, Judge May writes:
David Schlotman was on a sidewalk outside the Taza Café, d/b/a Gyro Joint, eating food he had purchased there, when he was assaulted by unknown persons. He sued Gyro Joint, alleging it had a duty to protect him. The trial court granted summary judgment for Gyro Joint. Schlotman argues on appeal the attack on him was foreseeable and/or Gyro Joint assumed a duty to protect him. We affirm. * * *[Note Sonya Winchell v. Remco Guy, et al. (Ind CA 12/6/06) is not referenced. Also, the issue of the admissibility of electronic records apparently was not raised.]
This case turns largely on whether the attack on Schlotman was foreseeable, and Schlotman’s designated evidence included certain records from CivicNet, a website that describes itself as “the Indianapolis/Marion County interactive portal that provides businesses and citizens with enhanced access to government records.” * * * Gyro Joint asserts the CivicNet records should be disregarded because they are inadmissible hearsay and no hearsay exceptions apply. Schlotman responds the admissibility question is not “ripe for determination at this point.” He is correct. * * *
Schlotman points to many reports of fighting in the area, but there is no designated evidence of unprovoked attacks on Gyro Joint patrons such as the one he experienced. Schlotman finds the attack on him foreseeable based on the nature of the area, specifically the number of people who are drinking, and on prior incidents of criminal activity in the area. He notes there are four bars within a block of Gyro Joint, and another in the alley behind Gyro Joint. He also asserts that a number of police cars are typically parked on the block.6 Schlotman offers no authority that explicitly supports his apparent premise that a violent attack is “foreseeable” merely because there are numerous bars in the neighborhood, and we decline to so hold. * * *
Nor did Gyro Joint assume a duty to protect its patrons who dine on the adjacent sidewalk. * * *
Schlotman asserts, without explanation or citation to authority, that by providing an outdoor area where its customers could eat Gyro Joint “had a duty to protect its customers from foreseeable criminal attacks occurring in that area.” We decline to hold the placement of a table on the sidewalk outside a carryout restaurant, without more, gives rise to a special relationship between a restaurant owner and his patrons that demonstrates the restaurant owner has undertaken to protect its patrons. * * *
The attack on Schlotman was not reasonably foreseeable under the totality of the circumstances, nor did Gyro Joint assume a duty to protect Schlotman by placing a table on the sidewalk. We accordingly affirm the summary judgment for Gyro Joint. Affirmed.
In Terresa Ann Hatke and Ron Hatke v. Stephanie Fiddler, a 7-page opinion, Judge May writes:
Terresa and Ron Hatke appeal the trial court’s dismissal of their personal injury claim against Stephanie Fiddler. The Hatkes assert the court erroneously determined it did not have jurisdiction over their common law negligence action to recover for injuries that occurred when Fiddler crashed her car into the car in which Terresa was riding. Terresa and Fiddler were co-workers traveling in the course of their employment when the accident occurred. The Worker’s Compensation Act therefore divested the trial court of jurisdiction over their claims resulting from this accident. Accordingly, we affirm.Donald L. Fields, Virginia L. Fields and Raymond Marlow v. Carla Conforti - 20-page opinion in case involving back rent and attorney fees. Judge Sharpnack:
We affirm in part, reverse in part, and remand.Chad Leeth v. State of Indiana - "When the word “shall” appears in a statute, it is construed as mandatory rather than discretionary unless it appears clear from the context or the purpose of the statute that the legislature intended a different meaning. * * * The trial court erroneously denied Leeth’s petition to modify his Class D felony to a Class A misdemeanor upon the successful completion of his probation. We reverse and remand for the trial court to modify Leeth’s conviction to a Class A misdemeanor. Reversed and remanded.
Although we are unanimous in our decision as to Issues I, II, and III, we differ on Issue IV. Judge Sharpnack writes for the panel on Issues I, II, and III. Judge Kirsch writes for the panel on Issue IV with the concurrence of Judge Mathias and a dissent by Judge Sharpnack.
Before addressing the arguments raised by the Fieldses and Marlow, we note that they did not submit a transcript of the bench trial upon which the trial court’s findings of fact and conclusions thereon are based. [substantial discussion of this point] * * *
SHARPNACK, J. dissents as to Issue IV with separate opinion
NFP civil opinions today (5):
Rolando and Jacquelyn Curington v. Joseph and Carol Allegretti (NFP) - "There is no genuine issue of material fact whether the Allegrettis breached the Purchase Agreement before the Curingtons declined to close on the Property. Accordingly, their failure to close breached an existing contract, entitling the Allegrettis to liquidated damages. The trial court properly granted summary judgment. We affirm."
George Bailey, et al v. Concord Construction, Inc. (NFP) - "There is insufficient evidence that the Owners actively consented to the construction of the motor cross track. Thus, Concord does not hold a valid and enforceable mechanic’s lien against the Owners’ real estate. We reverse."
JPMorgan Chase, N.A., and Washington Mutual, N.A. v. John Takacs, III, Heller First Capitol Corp., et al (NFP) - "JPMorgan Chase, N.A. and Washington Mutual, N.A. (hereinafter “Washington Mutual”) appeal the trial court’s March 15, 2006 Order to Set Aside Default Judgment and its denial of the April 17, 2006 Motion to Correct Error. Washington Mutual argues the intervening defendants Suzanne Julius and KMJ VII (collectively, “Julius”) did not have standing to challenge the foreclosure judgments and decrees, and the trial court erred by not holding a hearing on the March 15, 2006 Order. The intervenors had standing, but the trial court erred when it ruled without a hearing. We must accordingly reverse and remand."
R.E. Hamman, Inc. v. R.S. Development, LLP (NFP) - [Here the approval of additional work on a road-building project was never reduced to writing.) "The plain language of the contract permitted, 'Any alteration or deviation from above specifications involving extra costs . . . only upon written order.' There was no written order. In the absence of such, Hamman has not established that the undisputed evidence and all reasonable inferences drawn therefrom lead to a conclusion different than the one reached by the trial court. * * * Conclusion. Without a writing evidencing the changes, Hamman has not established that the undisputed evidence and all reasonable inferences drawn therefrom lead a conclusion different than the one reached by the trial court. We affirm.
NFP criminal opinions today (2):
Law - "U.S. News Rankings Go Under the Microscope"
The Numbers Guy, a WSJ blog, had an interesting post this week on "U.S. News and World Report’s college rankings, among the most debated numbers in the magazine world, [which] received a close examination recently from the Chronicle of Higher Education."
Law - "Big Law Losing Women Lawyers to Other Jobs"
Peter Lattman of the WSJ Blog had an interesting post yesterday on women who have left "Big Law" to pursue paths such as contract attorneys, women-owned firms, in-house positions, etc. Access it here.
Ind. Courts - Update on: St. Joseph County felony public defenders overwhelmed
On Wednesday James Wensits of the Tribune reported:
An "evolutionary" new public defender system aimed at reducing caseloads and increasing accountability was approved Tuesday by the St. Joseph County Council. * * *
Attorney Andre Gammage, a member of the Public Defender Board that will provide oversight for the new system and himself a former public defender and former deputy prosecutor, lauded the new system as "a step forward" that will add accountability for public defenders.
Gammage said that in the past, defenders were sometimes overwhelmed by caseloads given them by judges because no limit existed, even though the job of a public defender is part-time.
The ordinances approved by the council will allow the eventual hiring of 10 new public defenders, with the intent to reduce the caseloads to the state standard of about 60 active felony cases a year.
According to Circuit Court Judge Michael Gotsch, public defenders here have been carrying nearly twice that many cases. * * *
Instead of paying all public defenders the same, regardless of experience, the new program will allow a tiered pay system that will reward senior public defenders and create an entry level pay category for new hires.
Passage of the ordinances puts the county in line to be reimbursed for up to 40 percent of the public defender expenses from a state public defender fund.
That fund is fueled by a combination of court fees and state funds. Gotsch said the county had been donating court fees to the fund in the past but hadn't applied for reimbursements because there wasn't sufficient money available to meet demands.
The judge said the money is available now because the General Assembly appropriated $14.5 million for fiscal year 2007 and $15.2 million for fiscal year 2008.
Ind. Decisions - More on: "'Honk for peace' case tests limits on free speech"
Updating this ILB entry from May 14th, which included a quote from the LA Times that began:
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."Today an AP story begins:
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.
BLOOMINGTON, Ind. — A former teacher who said she was fired for talking to her elementary school class about peace activism is appealing her dismissal to the U.S. Supreme Court.
Deb Mayer lost two earlier appeals in her 2004 suit against the Monroe County Community School Corp. after she was fired from her job at Bloomington’s Clear Creek Elementary School.
“There are 3 million teachers in the United States who need to know whether or not their instructional speech is ever protected by the First Amendment to the Constitution under any circumstances,” her lawyer, Michael L. Schultz, said Wednesday.
“Because there is a difference of opinion among the various circuit courts of appeals on that subject — in some circuits teachers do have some limited protection in class with respect to instructional speech and now in the 7th Circuit it’s pretty clear they have none — the Supreme Court has never decided the question,” he said.
The 7th Circuit Court of Appeals and the U.S. District Court in Indianapolis earlier ruled in favor of the school district, which said Mayer was fired because of complaints from parents and students regarding her teaching and disciplinary style.
Ind. Decisions - Michael Lambert execution set for tonight
"Preparations for Lambert execution continue as governor rejects clemency" is the headline to this story by Nick Werner today on the Muncie Star-Press. A quote:
[Michael] Lambert, is scheduled for execution by lethal injection at the Indiana State Prison in Michigan City at 12:01 a.m. Central Standard Time (1:01 a.m. Muncie time) Friday.
Wednesday, June 13, 2007
Courts - "A Clean Sweep for Conservatives?"
That is the likelihood posited by Tom Goldstein of SCOTUSblog. Read his analysis here.
Ind. Decisions - Governor denies clemency to Lambert
From a just issued media release:
INDIANAPOLIS (June 13, 2007) – Governor Mitch Daniels has concluded his review of the case of Michael Lambert and has denied his petition for clemency.See earlier ILB entry here.
Lambert was sentenced to death in 1992 for the murder of Muncie Police Officer Gregg Winters. Lambert is scheduled to be executed after midnight on June 15 at the Indiana State Prison in Michigan City.
Ind. Decisions - Supreme Court grants transfer in absolute privilege case
Preliminary information is available on transfers so far this week (but this does not replace Friday's transfer list). The Court granted transfer, with opinion, in Bradley v. State - see ILB summary here.
In addition, the Court has granted transfer in the case of Virginia Hartman and Suzanne Swinehart v. Dr. Gabe Keri. The ILB summary of the CA opinion is here (6th case). From that summary:
We address a single dispositive issue on review, namely, whether communications made in the course of official proceedings brought under the antiharassment policies of The Trustees of Purdue University (“Purdue”) are protected by an absolute privilege. We reverse. * * *
Thus, we hold that an absolute privilege is essential to protect the integrity of the judicial functions embodied by the antiharassment proceeding. As such, Keri cannot maintain an action for defamation against Swinehart and Hartman based on the Purdue complaints, and Swinehart and Hartman are entitled to summary judgment.
Courts - New twist on: Illinois chief justice doesn't just get mad, he sues
The ILB had a number of entries in 2006 under the heading "Illinois chief justice doesn't just get mad, he sues." And he won. But now he is being sued. According to this story the Kane County Chronicle (the paper that lost the lawsuit):
CHICAGO (AP) -- A suburban Chicago newspaper filed a federal civil rights lawsuit Tuesday against the Illinois Supreme Court’s chief justice, claiming it can’t fairly appeal a multimillion defamation verdict awarded to the judge because he heads the court.Howard Bashman of How Appealing has more on this story, plus additional links.
Chief Justice Robert Thomas infected the state judiciary with a “constitutional cancer” by pursuing a defamation claim “in the friendly confines of the state legal system he dominates,” according to a lawsuit filed by the Kane County Chronicle’s parent company, Shaw Suburban Media Group, Inc., and former columnist Bill Page.
“The core of it is that the newspaper and the columnist can simply not get a fair shake on appeal and that deprives them of their civil rights,” said Bruce Sanford, an attorney for the plaintiffs.
Thomas, a former kicker with the Chicago Bears, sought damages over a series of columns that Page wrote in 2003. The articles claimed Thomas softened his position in a disciplinary hearing for former Kane County State’s Attorney Meg Gorecki after her supporters backed a judicial candidate he favored.
A jury ordered the Chronicle and Page to pay Thomas $7 million in November. But Circuit Court Judge Donald O’Brien, who is named as a defendant in the federal lawsuit, decided the award was unreasonably high and reduced it by $3 million in March.
The newspaper and columnist want the federal court to find that they can’t get a fair appeal in Illinois while Thomas is chief justice. They also want a declaration that the $4 million defamation judgment was unconstitutional. * * *
Besides Thomas and O’Brien, the lawsuit also names as defendants the remaining six justices on the Illinois Supreme Court and the three justices of the Illinois Appellate Court.
Six former and current state supreme court justices testified for Thomas at the 2006 libel trial. Five of the court’s seven justices would have to recuse themselves if the paper’s appeal reaches that level, denying the paper last appeal because the court can’t sit without at least four members, Sanford said.
One of the stories the ILB linked to last year and still worth a read is this one from the NY Times, titled "Clash of a Judge and a Small Paper Underlines the Tangled History of Defamation."
Ind. Courts - Video of History of the U.S. Courthouse at Indianapolis
In addition, this link, titled " History, Art & Architecture of the U.S. Court House," leads to much valuable information.
Ind. Decisions - "Feds end 35 years of county jail scrutiny"
Diana Penner reported yesterday in the Indianapolis Star:
A federal court judge has cleared the way for local officials to independently operate the Marion County Jail after more than three decades of federal oversight because of crowding.The story includes a side-bar listing "the major milestones of the Marion County Jail and its overcrowding problems."
U.S. District Judge Sarah Evans Barker on Friday ended the consent decree that had been in effect since 1972, and released the written order Monday.
The ruling follows a sometimes-rocky 35-year period that saw a jail expansion, court-ordered inmate releases, annexes to hold a growing number of inmates and the inception of a night court to more quickly process criminal suspects.
"(T)he Court ruled that the judgment has been fulfilled, that judicial supervision of this litigation is no longer necessary, that an order to terminate is fair, reasonable, and adequate, and the Consent Decree should be and is dissolved," Barker wrote. * * *
Ken Falk, legal director of the American Civil Liberties Union of Indiana, which filed the original lawsuit, did not oppose him.
Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)
For publication opinions today (2):
In Sun Life Assurance Company, et al. v. Indiana Department of Insurance, et al. , a 17-page opinion, Judge Riley concludes:
In light of the Commissioner’s response, we agree with the trial court’s conclusion that the Commissioner’s finding is arbitrary, capricious, contrary to law, and unsupported by the record. See I.C. § 4-21.5-5-14(d). As actions taken by ICHIA’s executive director cannot be a substitute for any action taken by the Board, the Commissioner’s decision that ICHIA’s Board had indeed taken a decision is therefore contrary to law. Accordingly, since Sun Life exhausted its administrative appeals by timely appealing within the statutory time limits, we find that the trial court had jurisdiction to determine the merits of its appeal. See I.C. § 27-8-10-2.6(e). As a result, we refuse to disturb the trial court’s determination.In John Russo, et al. v. Southern Developers, Inc., et al. , a 7-page opinion, Judge Vaidik writes:
CONCLUSION. Based on the foregoing, we find that the trial court properly concluded that ICHIA appropriately calculated the 2004 True-Up Assessment for Sun Life based on the statutory methodology prescribed for the assessment period through December 31, 2004. We also find that the trial court did not err by denying Sun Life’s Motion to Strike.
With regard to ICHIA’s Cross-Appeal, we affirm the trial court, finding that the Commissioner acted arbitrarily, capriciously, and contrary to law in dismissing Sun Life’s appeal as untimely. Affirmed.
John and Claudia Russo (“Russos”) appeal the trial court’s dismissal of their Complaint against Southern Developers, Inc., John G. Brinkworth, Inc., Brinkworth Builders, Inc., Dan Cristiani Excavating, Inc., Dan Cristiani, John G. Brinkworth, and John G. Brinkworth, Jr. (collectively “Developers”) for breach of the implied warranty of habitability. We conclude that the prior owners’ knowledge of a defect in a home is to be imputed to a subsequent purchaser for purposes of the six-year statute of limitation applicable to claims for breach of the implied warranty of habitability. Here, the prior owners discovered a defect in the home in 1997, but the Russos did not file suit against the Developers until eight years later, in 2005. As such, the Russos’ claim against the Developers is barred by the statute of limitation. We therefore affirm the judgment of the trial court. * * *NFP civil opinions today (2):
But the Russos are not without a remedy. Indeed, a subsequent purchaser will rarely, if ever, be left without a remedy. In cases where the subsequent purchaser does learn of the defect before purchasing the home, she can either decline to purchase the home or purchase the home and sue before the six-year statute of limitation expires. In cases where the prior owner fails to inform the subsequent purchaser of the defect and the defect is otherwise hidden, the subsequent purchaser will have a cause of action against the prior owner. Here, the Russos allege that the Conlees failed to inform them of the defect. As such, the Russos have sued the Conlees for fraudulent concealment. The trial court did not dismiss that claim, and it is not affected by our opinion.
In The Kroger Company v. Robert Quick (NFP) , a 10-page opinion, Judge Barnes writes:
The Kroger Company (“Kroger”) appeals the decision of the Indiana Worker’s Compensation Board (“the Board”) to reverse a single hearing member’s decision terminating Kroger’s worker’s compensation liability to its employee, Robert Quick. We remand.Kenneth Bailey v. Dutchman Manufacturing (NFP) - "Kenneth Bailey (“Bailey”) appeals the Indiana Worker’s Compensation Board’s (“Board”) decision that Bailey is not permanently and totally disabled. Specifically, Bailey argues that the Board’s order lacks the specificity necessary to permit meaningful appellate review, that certain of the Board’s findings of fact are not supported by the evidence, and that the Board erred as a matter of law in concluding that he is not permanently and totally disabled. Finding no error, we affirm the decision of the Board."
The sole issue we address is whether the Board’s findings in reversing the single hearing member’s decision are sufficient. * * *
We have some idea of what evidence was presented to the single hearing member and Board but little clue as to what they found. Thus, we must remand for the Board to enter adequate, more specific findings explaining its decision.
NFP criminal opinions today (6):
Ind. Courts - MTV "Juvies" producer wins award for MSNBC welfare documentary
The ILB has had several entries about “MTV Juvies”, set in Indiana's Lake County Juvenile Center. Now Karen Grau's Calamari Productions has won another award, as reported in this release:
Calamari Productions’ MSNBC documentary “No Place for a Child” was named today as the 2007 winner of the Casey Medal for Meritorious Journalism (in the television, long form category).
More than 700 journalists entered this year’s contest with Casey Journalism Center judges seeking masterfully reported, compelling stories that cut through “compassion fatigue,” reported socially significant topics, demonstrated enterprise and thorough research; and contained significant story impact. The contest recognizes distinguished coverage of children and families — particularly the disadvantaged.
“No Place for a Child,” an MSNBC documentary, followed five children through the Indiana Child Welfare system for seven years.
Judges cited “No Place for a Child” with the following statement: “Stories about foster children are usually predictable…but this documentary takes the unusual step of looking inside the courtrooms that rule the children’s lives. The producers provide a thorough and unflinching portrait of families involved in foster care. Happy endings seem elusive, but this production allows outsiders to perhaps understand why.”
Winners will be honored at a fall event at the National Press Club in Washington, D.C.
Karen Grau, President & Executive Producer of Calamari Productions, LLC, has been creating, producing and directing worldwide programming in all genres across all mediums for over a decade. Her company has previously won more than 15 national awards for television documentaries, writing, reporting, and efforts on behalf of children. Calamari gives special thanks to the Indiana Supreme Court, Hon. Randall T. Shepard, Chief Justice, as well as Superior Court Judge Mary Beth Bonaventura, Circuit Court Judge Viola Taliaferro and (former) Superior Court Judge James Payne.
Ind. Decisions - Supreme Court decides two
In William T. Bradley v. State of Indiana, a 5-page, 5-0 opinion, Justice Dickson writes:
The defendant, William T. Bradley, was charged with attempted murder as a class A felony, criminal confinement as a class B felony, and aggravated battery as a class B felony. After a jury trial, he was acquitted of attempted murder but convicted on the charges of criminal confinement and aggravated battery. His direct appeal raises three claims: insufficient evidence to prove criminal confinement, violation of the Indiana Double Jeopardy Clause, and abuse of sentencing discretion. The Court of Appeals affirmed in a 2-1 divided memorandum decision. The defendant's petition to transfer challenges only the rejection of his double jeopardy claim. We grant transfer and modify one of his convictions and his sentence.In Rick L. Smith v. State of Indiana, an Interlocutory Appeal from the Switzerland Superior Court, where the issue is whether a bus driver was a "child care worker" under the terms of the child seduction states (see CA opinion here - 2nd case) Justice Dickson writes:
In his appeal, the defendant contends that convictions for both criminal confinement and aggravated battery violate the "actual evidence test" for reviewing claims under the Double Jeopardy Clause of the Indiana Constitution, because there is a reasonable possibility that the facts used by the jury to establish the essential elements of criminal confinement were also used to establish the essential elements of aggravated battery. The Court of Appeals majority decision rejected his claim, concluding "that there is a reasonable possibility that the jury used different evidentiary facts to convict Bradley of aggravated battery and criminal confinement." Bradley v. State (Ind. Ct. App. Oct. 16, 2006). Judge Vaidik dissented on this point, emphasizing that the "proper inquiry" is not whether there is a reasonable probability that, in convicting the defendant of both charges, the jury used different facts, but whether it is reasonably possible it used the same facts. She is correct. * * *
We grant transfer and find that the defendant's convictions for criminal confinement as a class B felony and aggravated battery as a class B felony violate the Indiana Double Jeopardy Clause. To remedy this violation, we affirm the defendant's conviction and fifteen year sentence for aggravated battery as a class B felony, and we reduce his conviction for criminal confinement from a class B to a class D felony, for which we sentence him to two and one-half years imprisonment, to be served consecutively with his sentence for aggravated battery, for an aggregate sentence of seventeen and one-half years. In all other respects, the decision of the Court of Ap-peals is summarily affirmed.
A long-cherished principle of the American justice system is that a citizen may not be prosecuted for a crime without clearly falling within the statutory language defining the crime. This rule of law requires the granting of the defendant's motion to dismiss in this case. * * *
The undisputed basis of the State's allegation that the defendant was a child care worker is the fact that he was a Switzerland School Corporation school bus driver. The defendant filed a motion to dismiss this charge, asserting that he did not fall within the statutory definition of "child care worker." * * *
The undisputed facts establish that the defendant was not a "child care worker" as that phrase is defined to include "a person who . . . is employed by a . . . school corporation." He thus cannot be prosecuted in this case for the criminal offense of child seduction, a class D felony, as defined by the General Assembly. We reverse the denial of the defendant's motion to dismiss and remand to the trial court to grant the motion and for further proceedings not inconsistent with this opinion.
Boehm, and Rucker, JJ., concur. Sullivan, J., would deny transfer, believing the opinion of the Court of Appeals in this case to be correct. Shepard, C.J., concurs with separate opinion, in which Boehm, J., joins.
SHEPARD, Chief Justice, concurring. [in a one-page opinion which concludes:] Distasteful as it may be given the facts of the present case, I think the Court does the right thing to use the regular, garden-variety definition of “em-ployed,” with the understanding that the General Assembly has the power to broaden the class of persons covered by the statute should it choose to do so.
Boehm, J., joins.
Ind. Decisions - 7th Circuit decides waiver case
In U.S. v. Blinn (SD Ind., David F. Hamilton, Judge), a 5-page opinion, Judge Williams concludes:
However, we need not entertain the merits of this appeal because of the following waiver provision in Blinn’s plea agreement:Blinn expressly waives his right to appeal on any ground his conviction of the offense charged in Count One of the Superseding Indictment. Blinn also expressly waives his right to contest or seek review of the sentence on appeal on any ground, including the right to appeal the sentence conferred by Title 18, United States Code, Section 3742.We will enforce a plea agreement’s appellate waiver if its terms are clear and unambiguous and the record shows that the defendant knowingly and voluntarily entered into the agreement. United States v. Jemison, 237 F.3d 911, 917 (7th Cir. 2001). * * *
It is apparent from the above discussion that the parties bound by the plea agreement—Blinn, the government, and the district court per Rule 11(c)(1)(C)—were all in agreement that Blinn, in exchange for pleading guilty to Count Four, would serve a sentence between twelve and twenty months in prison. In addition, there was no question that the sentencing judge would set the terms of Blinn’s supervised release. Because the plea agreement made no recommendation as to this aspect of Blinn’s sentence, during the plea colloquy, the sentencing judge sought and received Blinn’s acknowledgment that it was within the judge’s discretion to decide the length and conditions of the supervised release. See id. In addition, as we noted earlier, though given the opportunity, Blinn made no objections to the district court’s conditions of his supervised release before it was imposed. Therefore, Blinn’s argument that he was somehow deprived of the benefit of his bargain provides no basis for us to make an exception to his appellate waiver and consider the merits of his case. Accordingly, Blinn’s appeal is DISMISSED.
Tuesday, June 12, 2007
Ind. Decision - 7th Circuit decides environmental clean-up costs case
The 7th Circuit has just released a decision in typescript (a printed copy, they say, will follow later) in the case of Kemper/Prime Industrial Partners v. Montgomery Watson and The Prime Group (ND Ill.), 12 pages. Judge Wood writes what might be taken by those not involved in the dispute as a cautionary tale:
This case concerns who is responsible for certain environmental clean-up costs. Kemper/Prime Industrial Partners (“Kemper/Prime”), the plaintiff, claims that an environmental assessment of a parcel of land performed by Warzyn, Inc., the predecessor of defendant Montgomery Watson Americas, Inc. (“Montgomery”), was deficient insofar as it failed to reveal to Kemper/Prime the full extent of contamination and clean-up costs. The property in question was called the Chicago Enterprise Center (“the Property”), which Kemper/Prime purchased after receiving Warzyn’s report in 1990. Later, when it decided to refinance the Property in 1996, Kemper/Prime conducted another environmental assessment of the land. The new assessor discovered contamination that was present in 1990 but that Warzyn had not detected. Kemper/Prime sued Montgomery, Warzyn’s successor, claiming negligent misrepresentation on Warzyn’s part, but the district court ruled that its evidence of damages was insufficient and dismissed the case with prejudice. We affirm. * * *
Kemper/Prime could have used its expert to analyze the Warzyn reports, take note of every measurable amount of contamination identified, and calculate remediation costs based on some industry standard cost, but it did not do so. Without such additional materials, the district court was left with no means of identifying or inferring the cost of remediation from the Warzyn reports.
Finally, we are left with two insurmountable calculation problems. Kemper/Prime has sold significant sections of the Property since 1990; indeed, in post-argument submissions the parties discussed the effect of Kemper/Prime’s sale of its remaining holdings in October 2004. Any remediation costs identified in the Warzyn reports would need to be reduced by the costs associated with the sections of the Property no longer owned by Kemper/Prime. This has not been done. Second, there is no evidence that even the $300,000 figure, nor any other figure, is what is called a Tier One remediation cost, or that it was calibrated to any particular standard of remediation. There are many such standards for cleaning up contaminated land, depending on what the planned use of the land is. As the district court noted, in order to come up with a valid comparison of the cost of remediating the problems that were identified with the cost of remediating all problems that existed, both must be calibrated to the same standard. Kemper/Prime offers only Tier One evidence of the full cost of remediating the contamination that existed in 1990. A court given these two cost estimates would be left to compare them not knowing if it was making an apples-to-apples comparison or an apples-to-oranges comparison. That level of uncertainty is insufficient to “establish a basis for the assessment of damages” with any “degree of probability.”
Therefore, we are led to the same conclusion as the district court: Kemper/Prime has not shown a genuine issue of material fact for the remediation costs for the contamination listed in the 1990 Warzyn reports.
Kemper/Prime’s evidence of the total cost of remediating all of the contamination that existed on the Property at the time of the 1990 reports is equally flawed. * * *
The district court gave Kemper/Prime every opportunity to put forth evidence of its recoverable damages, but it failed at every turn. We therefore AFFIRM the decision of the district court.
Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)
For publication opinions today (2):
In Frank J. Anderson, Sheriff, Marion County Sheriff's Department v. David Eliot, a 15-page opinion, Judge Darden concludes:
Given the evidence before the Pension Board, we cannot say that the Pension Board’s denial of line-of-duty disability was “made without any consideration of the facts and in total disregard of the circumstances and lacks any basis which might lead a reasonable and honest person to make the same decision.” See Roberts, 773 N.E.2d at 853. Furthermore, in referring to “the overwhelming and uncontested expert medical evidence presented in this case” and “the abundance of medical opinions,” it is clear the trial court improperly reweighed the evidence and substituted its judgment for that of the Pension Board. See City of Jasper v. Collignon, 789 N.E.2d 80, 93 (Ind. Ct. App. 2003) (finding the trial court reweighed the evidence where it focused on shortfalls in evidence and found evidence either “sufficient” or “insufficient”), trans. denied. Thus, we find that the Pension Board’s denial of line-of-duty disability benefits to Eliot was not arbitrary and capricious. Accordingly, we reverse the trial court’s judgment and remand with instructions for the trial court to affirm the Pension Board’s determination.In The Drees Company, Inc. and Drees Premier Homes, Inc. v. Frank and Janet Thompson and Estridge Development Company, Inc., a 22-page opinion, Judge Bailey writes:
Appellants-Defendants the Drees Company, Inc. and Drees Premier Homes, Inc. (collectively “Drees”) appeal the trial court’s grant of a preliminary injunction and later a permanent injunction by a summary judgment ruling in favor of the Appellees-Plaintiffs Frank and Janet Thompson and the Intervenor, the Estridge Development Company, Inc. (collectively “Thompson/Estridge”) prohibiting Drees from building the Stafford Lane development as currently planned because it would interfere with the non-exclusive ingress-egress easement rights of Thompson/Estridge. We reverse and remand with instructions. * * *NFP civil opinions today (4):
In conclusion, Thompson/Estridge has not demonstrated that the Stafford Lane development will cause material impairment or unreasonable interference with their ingress/egress easement rights. Thus, Thompson/Estridge have not succeeded on the merits of their claim that the development would diminish or terminate their easement rights and are not entitled to a permanent injunction. Based on our conclusion, we reverse and remand to the trial court to vacate its original order and enter summary judgment in favor of Drees. Additionally, we must address whether Drees is entitled to damages for being enjoined. * * *
Drees maintains that the trial court wrongfully issued the preliminary injunction and that it is entitled to damages stemming from the wrongful enjoinder. Under Indiana Trial Rule 65(C), a party may recover fees and expenses incurred as a result of wrongful enjoinder. * * *
As discussed above, the trial court erred in granting the permanent injunction against Drees, because Thompson/Estridge were not able to succeed on the merits of their claim of unreasonable interference of their ingress/egress rights. The permanent injunction was granted pursuant to a summary judgment motion and was based on the same materials and application of law as used to support the issuance of the preliminary injunction. Therefore, we come to the same conclusion that the preliminary injunction was not warranted, because when the law is applied to the facts, Thompson/Estridge was not able to demonstrate unreasonable interference with their easement rights. Hence, the trial court’s decision to grant the preliminary injunction was an abuse of discretion, and the preliminary injunction was wrongly issued against Drees. We accordingly remand to the trial court to determine the costs and damages incurred by Drees due to the injunction.
In the Matter of the Involuntary Termination of the Parent-Child Relationship of B.P. and T.J.; Tony Perry v. Marion County Department of Child Services, Child Advocates, Inc. and Ashley Jenkins (NFP) - termination, affirmed.
Wendy Stamm v. Matthew Stamm (NFP) - "Concluding that the trial court acted within its discretion in establishing the physical custody arrangement and in imposing the condition upon its order of physical custody, we affirm the trial court’s order with regard to these issues. However, we conclude that the trial court abused its discretion in ordering joint legal custody, and we reverse the trial court in this respect and remand with instructions to grant sole legal custody to one of the parents. We also conclude that insufficient evidence supports the trial court’s finding that the parties owe Matthew’s parents $6,746.91, and reverse the trial court’s order in this respect."
NFP criminal opinions today (6):
Ind. Decisions - Finding request to file belated notice of appeal improvidently granted, Supreme Court does not reach Blakely question
In Darren Witt v. State of Indiana, a 6-page, 5-0 opinion, Justice Sullivan writes:
An individual who pleads guilty where the issue of sentencing is left to the trial court’s discretion must challenge that sentence, if at all, in a direct appeal. When the time for appeal has expired, Post-Conviction Rule 2 permits such an individual to request permission to file a belated notice of appeal. But the grant of such permission is not automatic. In this case, Darren Witt did not meet the Rule’s requirement that he demonstrate by a preponderance of the evidence that he had been diligent in requesting permission to file a belated notice of appeal. * * *
Witt contends that his sentence was improperly imposed in light of Blakely v. Washington, 542 U.S. 296 (2004), which recognized certain constitutional limitations on a trial court’s sentencing authority. The State cross appeals, arguing that Witt’s request to file a belated notice of appeal was improvidently granted. Because Witt appeals from a sentence of life without parole, this Court (rather than the Court of Appeals) has jurisdiction. Ind. Appellate Rule 4(A)(1)(a).
Because we agree with the State that Witt’s request to file a belated notice of appeal was improvidently granted, we do not reach the question of whether Witt has a colorable claim under Blakely. That issue is pending before this Court in another case. See Gutermuth v. State, 848 N.E.2d 716 (Ind. Ct. App. 2006), trans. granted, 860 N.E.2d 588 (Ind. 2006) (table). * * *
Pursuant to Collins, the fact that the trial court had advised Witt that he could not file a direct appeal for review of his sentence satisfies the first requirement of Post-Conviction Rule 2; Witt is not at fault for failing to pursue what he was told would be improper appellate procedure.
Witt, however, has not demonstrated that he has complied with the second prong of Post-Conviction Rule 2. The trial court did not make any findings of fact regarding the second prong of Post-Conviction Rule 2 but compliance with the second prong is also a prerequisite for per-mission to pursue a belated appeal. Nothing in the record suggests that Witt attempted to challenge his sentence until nine and one-half years after it was entered when he filed the petition at issue here. Notably, Witt did not petition the trial court for post-conviction relief pursuant to Post-Conviction Rule 1 even though the trial judge, at the sentencing hearing, told him that he had that vehicle available to challenge his sentence. Accordingly, Witt has failed to demonstrate that he was diligent in requesting permission to file a belated notice of appeal as required by Post-Conviction Rule 2(1)(b).
Ind. Decisions - 7th Circuit turns down Lambert appeal for stay of execution
In Lambert v. Buss (SD Ind., Larry J. McKinney, Chief Judge), in a per curiam opinion, Judges Ripple, Kanne and Evans conclude:
So the present motions to recall our mandates must be denied. And with this action, the motions for a stay of execution must be denied as well.WSJV South Bend has a summary of the other actions in this story today:
Lawyers for an Indiana man are asking the U.S. Supreme Court to block his execution on Friday.
Thirty-six-year-old Michael Lambert is scheduled to die for the murder of a Muncie police officer more than 16 years ago.
Lambert's attorneys filed a petition with the Supreme Court Monday. They say three of Indiana's five Supreme Court justices have at times during his appeals ruled his death sentence is "constitutionally deficient." The court took no immediate action on the filing.
Lambert was arrested for public intoxication and placed in the back seat of officer Gregg Winters' police car. He pulled out a gun and shot Winters five times in the back of the head. The policeman died 11 days later.
Last week, the Indiana Parole Board recommended no clemency, and Governor Mitch Daniels is reviewing the case.
If the execution proceeds as scheduled, Lambert would be the second person executed in Indiana this year. David Leon Woods was executed last month for killing a 77-year-old neighbor in Garrett.
Ind. Decisions - Lake County zoning dispute comes to end
CROWN POINT | Mayor Dan Klein lost a legal battle over his power to veto.Here is a list of earlier ILB entries on this case.
The state Supreme Court denied Crown Point's request to transfer an Indiana Court of Appeals case over construction of a concrete plant in Millennium Park after oral arguments Thursday.
The denial upholds the Court of Appeals' ruling that Klein lacked the power to veto the City Council's approval of a special-use permit for construction of a Redi-Mix plant in developer Tim Heidbreder's industrial park. * * *
Heidbreder's plans were thwarted in April 2005 when Klein vetoed the council's approval of a resolution to allow petitioner Prairie Material to build the concrete plant on Millennium Drive, south of the Brookside subdivision. Nearby residents vehemently opposed the development.
The City Council failed to secure a two-thirds majority vote to override Klein's veto.
Heidbreder's application for a building permit to begin construction on the plant was denied by the city in June 2005. His petition to overturn the denial was voted down by the Crown Point Board of Zoning Appeals.
Heidbreder challenged the city's decision in Lake Superior Court, but lost.
In December, Indiana's Court of Appeals reversed the lower court's ruling, saying the Lake Superior Court erred when it found that the general zoning statute governing counties did not apply to municipalities such as Crown Point.
Assistant City Attorney Pat Schuster filed a petition to transfer the case, saying city officials thought the mayor's veto powers were improperly stripped by the Court of Appeals.
The state Supreme Court's denial of transfer also could have implications in Heidbreder's separate federal lawsuit.
Lambka said the lawsuit seeks "unspecified damages" from Klein and the city for money Heidbreder said he lost when the city illegally denied him permission to build the concrete plant.
Law - $160,000 1st year associate annual salary in NY is the equivalent of $278,573 in Chicago
"Does It Pay to Make N.Y. Law Firms Pay? Big Apple takes a bigger bite of associate salaries" is the headline to a National Law Journal story today by Leigh Jones. Some quotes:
It may be a stretch to argue that beginning lawyers at big law firms need more money, but those practicing in New York could make a strong case for a raise.A cost of living chart accompanies the story.
With more law firms now paying first-year associates in Los Angeles, San Francisco, Chicago and Boston the same amount they are doling out to their starting lawyers in New York, it seems that attorneys in the Big Apple are getting shortchanged in the deal.
Several big law firms in the last few weeks have boosted salaries for first-year associates in large cities to match the $160,000 that their New York beginners receive.
A "nationalization" of their practices is the reason many firms give for paying the same amounts in different locations. But a look at the cost-of-living differentials shows that the copycat compensation is creating some significant pay disparities among associate ranks. * * *
Cost-of-living differences are huge among major U.S. cities. According to the Council for Community and Economic Research (CCER), the equivalent of a $160,000 annual salary in New York is $205,631 in Los Angeles. The CCER, a 46-year-old nonprofit organization comprising economic development organizations, government agencies, universities and others, produces the Cost of Living Index.
In Chicago, $160,000 balloons to the equivalent of $278,573, according to the CCER. In the pricey San Francisco market, the equivalent of $160,000 in New York is $190,789. In Boston, it equates to $241,397. Housing provides some of the sharpest contrasts. An apartment costing about $2,000 per month in San Francisco runs to more than $3,400 in New York. The same apartment goes for about $1,600 in Chicago. * * *
One second-year law student at Stanford Law School said that the raises at non-New York offices make taking a job in New York "kind of foolish. "These numbers don't inspire me to run to New York to work," said the student, who is a summer associate at large firm in Washington. * * *
Whether the recent raises on the West Coast and in Chicago will spark a brush fire in New York before the year's end is uncertain. Just last week, one popular legal industry blog reported whispers of increases in New York to $190,000 for first-year associates. Some large New York firms contacted for this story said that they were not considering increases at this time.
Monday, June 11, 2007
Ind. Courts - New Marion County court administrator named
A press release from the Marion Superior Court announces that:
The Marion Superior Court Executive Committee has appointed Glenn R. Lawrence as the new Court Administrator. Mr. Lawrence will replace Senior Judge Richard Good who has served as the Interim Court Administrator for the past two months. Mr. Lawrence will start on Monday, June 25th and will earn an annual salary of $93,500.
Currently a partner with Coleman Graham & Stevenson, Mr. Lawrence has a diverse legal background in municipal and state government. Past state appointments include several years as Executive Director of the Indiana Gaming Commission and Commissioner for the Indiana Department of Administration. He has held other legal and management positions in state government, including the Indiana Department of Commerce and the Indiana Department of Correction. He has also served as the Director of Public Works for the City of Lawrence. (A resume is attached.)
Mr. Lawrence is a graduate of Duke University and has a law degree from Emory University.
Law - Blogger ejected from Univ. of Louisville game by NCAA officials
And yes, he had press credentials. Rick Bozich of the Louisville Courier Journal reports today:
A Courier-Journal sports reporter had his media credential revoked and was ordered to leave the press box during the NCAA baseball super-regional yesterday because of what the NCAA alleged was a violation of its policies prohibiting live Internet updates from its championship events.As ILB readers are aware, newspapers are in the midst of reinventing how they cover the news. Much effort is going into developing the "live-blogging" approach. More from the LCJ story:
Gene McArtor, a representative of the NCAA baseball committee, approached C-J staffer Brian Bennett at the University of Louisville's Jim Patterson Stadium in the bottom of the fifth inning in the U of L-Oklahoma State game. McArtor told him that blogging from an NCAA championship event "is against NCAA policies. We're revoking the credential and need to ask you to leave the stadium."
Courier-Journal executive editor Bennie L. Ivory challenged the NCAA's action last night and said the newspaper would consider an official response.
"It's clearly a First Amendment issue," Ivory said. "This is part of the evolution of how we present the news to our readers. It's what we did during the Orange Bowl. It's what we did during the NCAA basketball tournament. It's what we do." [emphasis added]
"It's a real question that we're being deprived of our right to report within the First Amendment from a public facility," said Jon L. Fleischaker, the newspaper's attorney.A CNET report on the incident concludes:
"Once a player hits a home run, that's a fact. It's on TV. Everybody sees it. (The NCAA) can't copyright that fact. The blog wasn't a simulcast or a recreation of the game. It was an analysis."
During the middle of yesterday's game, Courier-Journal representatives were told by two members of the U of L athletic staff that if the school did not revoke Bennett's credential it would jeopardize the school's chances of hosting another NCAA baseball event.
"If that's true, that's nothing short of extortion and thuggery," Ivory said. "We will be talking to our attorneys (today) to see where we go from here."
Said U of L athletic director Tom Jurich: "As an NCAA institution, we must abide by all NCAA rules, including those in hosting NCAA events. Our staff sought an amicable solution to this situation from many angles.
It's understandable if sports organizations like the NCAA want to control access to video of their games, but it's hard to see how they can expect news organizations to keep from reporting the news as it happens.Several readers of Slashdot.com thought differently. A few quotes from one comment:
And when they do, it makes them look like they are stuck very, very far in the past.
The NCAA naturally wants to control access to live (and recorded) broadcasts of games (and currently has the legal right to do so), whether they be video, audio, or even text. How or why is "blogging" magically different or protected?
Could someone set up a radio broadcast station from within an NCAA event without arranging the necessary licensing with the teams and the NCAA? Could someone do the same with a cell phone and broadcast it to a pirate radio station? Sure. The answer is you can do it if you don't get caught. Conspiracy theorists will wail about how it's all about money and control, just another example of censorship in our corporate/government-controlled police state society, ignoring any and all other aspects to order and law in a civil society, and the fact that, believe it or not, economic factors actually do come into play when a lot of money is involved in producing something. * * *
This isn't about "blogging". It's about live/near-live coverage of an event by a person with press credentials - that is another critical point - without having paid to do so, like everyone else who provides such coverage has.
Ind. Decisions - More on "Does Judge Posner Write Too Much?"
Readers may recall this Decision of the Day entry on Judge Ripple re Judge Posner from June 5th.
Today a DOTD entry begins:
Last week, I blogged about this Seventh Circuit decision, in which Judge Ripple wrote a low-key but sharp-edged concurrence that criticized Judge Posner for writing too much.Access it here.
Today, [Judge Ripple] is at it again, criticizing Chief Judge Easterbrook for trying to shape immigration policy. * * *
This sort of armchair quarterbacking doesn’t sit well with Judge Ripple, who thinks that judges are ill-equipped to offer advice on agency policy. Concurring to express his disagreement with this portion of the decision, Judge Ripple writes: "While individual members of the judiciary may have views on how the agency can best perform, I believe that, as an institution, we ought to refrain from such pronouncements. Refugee policy is a most difficult and sensitive issue, and individuals of great intelligence and vision have wrestled with it for a very long time. * * *"
[More] For more on immigration judges, of whom not only some 7th Circuit judges have been critical, see this March 13th ILB entry.
In addition, the Washington Post today has a major front-page story headlined "Immigration Judges Often Picked Based On GOP Ties: Law Forbids Practice; Courts Being Reshaped." The report begins:
The Bush administration increasingly emphasized partisan political ties over expertise in recent years in selecting the judges who decide the fate of hundreds of thousands of immigrants, despite laws that preclude such considerations, according to an analysis by The Washington Post.
At least one-third of the immigration judges appointed by the Justice Department since 2004 have had Republican connections or have been administration insiders, and half lacked experience in immigration law, Justice Department, immigration court and other records show.
Two newly appointed immigration judges were failed candidates for the U.S. Tax Court nominated by President Bush; one fudged his taxes and the other was deemed unqualified to be a tax judge by the nation's largest association of lawyers. Both were Republican loyalists.
Justice officials also gave immigration judgeships to a New Jersey election law specialist who represented GOP candidates, a former treasurer of the Louisiana Republican Party, a White House domestic policy adviser and a conservative crusader against pornography.
These appointments, all made by the attorney general, have begun to reshape a system of courts in which judges, ruling alone, exercise broad powers -- deporting each year nearly a quarter-million immigrants, who have limited rights to appeal and no right to an attorney. The judges do not serve fixed terms.
Ind. Courts - More on: Supreme Court signs $11 million contract with Tyler Technologies
The ILB entry from earlier today has been updated. Access it here.
Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
Gregory L. Booroom v. Judith Howard (NFP) - "Boorom raises one issue on appeal, which we restate as: Whether the trial court erred in entering judgment on a jury’s verdict and award of damages for personal injuries because the jury improperly included compensation for attorney’s fees within that award. * * *
The record specifically reflects medical expenses and lost wages totaling more than $12,000.00. Additionally, the jury was allowed to compensate Howard for the accident’s impact on her total functioning, as well as her pain and suffering. Therefore, we cannot determine with certainty that the remainder of the award, roughly $20,000.00, was to compensate Howard for her legal expenses. Consequently, we refuse to attempt to interpret the thought process of the jury in arriving at its verdict. Id. Accordingly, we must conclude that the jury followed the instructions given by the trial court and arrived at an appropriate damage award."
Fort Wayne Newcomer Services v. Fort Wayne Nissan/Infiniti (NFP) - "The appellant bears the burden of presenting a record from which this Court can conduct a meaningful review. Ind. Appellate Rule 10; General Collections, Inc. v. Ochoa, 546 N.E.2d 113, 115 (Ind. Ct. App. 1989). Here, Newcomer submitted no transcript of the bench trial from which this Court could ascertain whether Newcomer met its burden of proof on its breach of contract claim.1 Newcomer asserts that the bench trial was not transcribed. However, Newcomer has not provided us with a Statement of Evidence pursuant to Indiana Appellate Rule 31 (providing for a verified statement of the evidence where no transcript is available).2 Finally, Newcomer has failed to comply with Appellate Rule 46(A)(8)(a) by supporting its argument with cogent reasoning, citations to relevant authority, and relevant portions of the Record on Appeal relied on. Accordingly, we dismiss the appeal for failure to comply with the Indiana Rules of Appellate Procedure."
NFP criminal opinions today (3):
Environment - Important CERCLA-related SCOTUS opinion issued today
From the early AP report: "Court Allows Recovery of Voluntary Cleanup Costs." [Thanks to How Appealing]
The case is United States v. Atlantic Research Corp.. From the opinion summary:
The District Court dismissed the case, but the Eighth Circuit reversed, holding that §113(f) does not provide the exclusive remedy for recovering cleanup costs and that §107(a)(4)(B) provided a cause of action to any person other than those permitted to sue under §107(a)(4)(A). Held: Because §107(a)(4)(B)’s plain terms allow a PRP to recover costs from other PRPs, the statute provides Atlantic Research with a cause of action.Here are some earlier ILB entries on recovery of voluntary cleanup costs.
Ind. Courts - Supreme Court signs $11 million contract with Tyler Technologies [Updated]
From a lengthy Tyler Technologies press release that begins:
DALLAS, June 11 /PRNewswire-FirstCall/ -- Tyler Technologies, Inc. announced today that the Indiana Supreme Court has signed a contract for Tyler to provide and implement its Odyssey software to manage cases for Indiana trial courts. The contract, which followed a lengthy competitive procurement and includes software licensing and professional services for training and deployment, is valued at approximately $11 million, with additional services expected to be added later through follow-on agreements.The most recent information on the Court's website is this from May 24th:
"With more than 1.5 million cases filed in Indiana courts each year, Hoosier law enforcement officers, lawyers, government agencies and citizens need timely and accurate court information. Indiana courts and court clerks must have a 21st century computer system to help them manage their caseloads and provide court information to those who need it. While many individual courts have computerized case management systems today, we believe Tyler offers us the best opportunity to equip Indiana courts with a 21st century case management system and to connect those systems with each other and with those who need and use court information," said Justice Frank Sullivan, Jr., chair of the Supreme Court's Judicial Technology and Automation Committee (JTAC).
Odyssey is Tyler's new generation Web-based court case management solution for the state and local government market. A unified case management system as defined by the National Center for State Courts, Tyler's Odyssey system enables courts to automate all case management functions -- imaging, accounting, docketing, calendaring, reporting, forms merge and others -- for all case types, in a single software package. Tyler's Odyssey system is currently deployed statewide in Minnesota and New Hampshire, and eight of the nation's 35 largest counties have signed contracts with Tyler to implement Odyssey.
"We are extremely pleased that the Indiana Supreme Court has chosen to implement Tyler's Odyssey Case Manager solution statewide," commented Dustin Womble, Executive Vice President of Tyler Technologies. "The Court conducted an extremely thorough evaluation of competing courts software products, and Tyler emerged as the clear choice. We look forward to continuing to build what we believe will be a long and mutually rewarding partnership between Tyler and the state of Indiana. In our view, Odyssey is now firmly established as the courts software market leader, and our combination of advanced technology, deep domain expertise, and strong client references from across the nation enables us to continue to build momentum in the courts marketplace."
Small Portion of CMS Successfully Tested in an Indiana CourthouseThat May 24th announcement followed this May 21st ILB entry that began:
Tyler Technologies LogoJTAC is working with Tyler Technologies, Inc., to implement Odyssey in a phased approach. Phases 0 and 1 are currently in progress. During these two phases, Odyssey will be implemented in two pilot locations: all Monroe County Circuit Courts and Washington Township Small Claims Court in Marion County. Odyssey is anticipated to be live in these courts by the end of 2007.
Chief Justice Randall Shepard shared a project update on May 21, 2007. He wrote: “Proof-of-Concept” (POC) labs are currently being held with the pilot courts to determine what changes need to be made to Odyssey so that it meets the needs and requirements of Indiana law and practice. After POC labs are complete, the system will be setup, configured and tested for deployment in the pilot courts.
The rollout of Odyssey to other Indiana courts will begin after the pilot courts are live and will follow a phased approach.
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.Here is a list of earlier ILB entries referencing the JTAC project.
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.
[Updated 3:30 pm] The Tyler Technologies press release has now been added to the JTAC site. However, there is no accompanying information from the Indiana end. The May update explained:
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.What part does the newly announced $11 million contract play in this explanation?
Courts - "The Supreme Court ruled against executing the mentally retarded, but defining that group has proved difficult"
Some quotes from a story by David G. Savage in today's LA Times:
Though the high court found that there was a "national consensus" against executing the mentally retarded [5 years ago in Atkins vs. Virginia], it left it to the states to decide which murderers would qualify for that exemption.For Indiana's position (from an incomplete review of recent Indiana Supreme Court rulings on mental retardation), see the 9/13/05 opinion in Tommy R. Pruitt v. State (ILB entry here). See also this 4/26/07 entry on David Leon Woods.
Determined prosecutors have had little trouble convincing juries that a convicted killer with a low IQ is not necessarily retarded. The definition of retardation is imprecise; test results can vary, giving prosecutors an opportunity to produce additional scores and other evidence to make the case that an inmate is actually smart enough to die.
The result is that the Supreme Court's ruling has had less effect than many had foreseen.
"There has been more resistance than I expected," said University of New Mexico law professor James Ellis, an expert on mental retardation who represented Atkins before the Supreme Court.
A few states moved off of death row several inmates who had IQ scores in the 60s or low 70s, he said. But states where capital punishment has strong support, including Virginia and Texas, have let juries decide. And "it's an uphill fight with the jury" to establish mental retardation, Ellis said. * * *
The greatest effect of the court's ruling may have been in cases that followed. Some prosecutors probably chose not to seek the death penalty when a murder suspect had low IQ scores, legal experts said. * * *
Historically, the law has exempted from criminal punishment people who are mentally ill. If they were disturbed or delusional when they committed the crime, they presumably could not understand the consequences of their acts and therefore would not be considered legally responsible.
People with mild mental retardation are judged to be competent to stand trial. They presumably understand when they have done wrong. They "should be tried and punished when they commit crimes," Justice John Paul Stevens said in the Atkins decision. "Because of their disabilities in areas of reasoning, judgment and control of their impulses, however, they do not act with the level of moral culpability" that puts them among the small group of the worst offenders who deserve to die.
The Atkins case shows the difficulty of deciding whether a criminal is mentally retarded: a condition that Stevens, quoting the American Assn. on Mental Retardation, defined in part as "significantly subaverage intellectual functioning" — measured, perhaps, by an IQ of 70 or below — and difficulty in adapting to the ordinary tasks of life.
Oral arguments were held before the Supreme Court April 12th in the case of Paul Michael McManus, as reported by the Evansville C & P and quoted in this 4/13/07 ILB entry. From the story:
Rejecting his insanity defense, a jury in 2002 convicted McManus of three counts of murder; and McManus was sentenced to death.
Among other things, McManus' IQ tested in the 70s, he was in special-education classes throughout school, could read only three-letter words and couldn't complete simple tasks such as using a tape measure.
The prosecution, through the state attorney general's office, appealed, and the state Supreme Court heard arguments Thursday.
The justices had pointed questions for McManus' attorney, Joanna Green, about whether McManus could raise the mental-retardation defense after he was convicted, among other things. "Sorry, I don't buy it," Chief Justice Randall Shepard said in response to one of Green's technical points. "You're going to have to do better."
Ind. Decisions - So far "McKinney lawsuit costs BSU $650,000"
Seth Slabaugh of the Muncie Star-Press reports today:
MUNCIE -- Ball State University has spent nearly $850,000 defending its police chief, Gene Burton, and former rookie officer Robert Duplain against a federal lawsuit alleging unreasonable use of deadly force.For background, see this ILB entry from Sept. 12, 2006, and this one from Sept. 26, 2006.
"A portion of those attorney fees will be paid by our insurance," said Randy Howard, associate vice president of finance. "It's hard to say how much it is costing us because each claim goes to the insurer. I can say right now we have probably received $200,000 so far."
Which means the university's cost of defending the case to date has been $650,000.
Howard said he believed the two law firms that have represented the university in the wrongful death lawsuit were being paid out of the general institutional support account.
The Indianapolis law firm of Ice Miller LLP has been paid $541,326 and the Muncie firm DeFur Voran LLP has been paid $307,803, for a total of $849,130.
Responding to a call of a burglary in progress, Duplain shot and killed BSU senior Michael McKinney at 3:27 a.m. on Sunday, Nov. 8, 2003, after McKinney allegedly lunged or ran toward the officer in a well-lit residential back yard near campus. The highly intoxicated, unarmed student was seen by fellow student Brent Archambault crawling in the gutter of North Street about 12 minutes before the shooting. * * *
McKinney's parents, Timothy and Lisa, of Bedford, filed the lawsuit in February 2004.
Defense lawyers succeeded in getting the complaint against Burton thrown out of court, but U.S. District Judge Richard Young of Indianapolis has declined to dismiss the case against Duplain. The defense unsuccessfully appealed to the 7th U.S. Circuit Court of Appeals in Chicago.
Defense attorneys Scott Shockley and Lester Cohen of Defur Voran; David Mattingly and Bradley Williams of Ice Miller, and John Kautzman of Ruckelshaus, Roland, Kautzman, Blackwell and Hasbrook, Indianapolis, recently filed a motion asking the judge to set a trial date in January 2008. The defense attorneys have other commitments between now and the end of the year, including other trials, speaking engagements, legal education, bar association meetings and vacations.
"Plaintiffs have been waiting for their day in court for quite some time and would like to avoid any further delays, if possible," attorney Robert Giroux Jr., representing the McKinneys, wrote to the court. "Plaintiffs respectfully request a trial date in the next four to six months."
Judge Young recently assigned the lawsuit for jury trial on Jan. 22 and allowed ten days to try the case.
Ind. Decisions - "Court upholds man’s murder-for-hire conviction"
Shawn McGrath of the Anderson Herald Bulletin writes today about the Court of Appeals NFP decision May 29th in the case of Aaron Reid v. State of Indiana (ILB entry here). Some quotes:
“There is sufficient evidence from which the jury could have found that Reid entered into an agreement with Johnson to commit murder,” Appeals court Judge Nancy H. Vaidik writes in the May 29 opinion. “First, Reid requested Johnson’s assistance in killing (his) wife and mother-in-law. Second, Johnson informed Reid that he could arrange to have the crimes completed. Third, after this arrangement had been established, Reid sat by as Johnson pretended to make phone calls to Thompson stating where (Reid’s) wife lived, when she would be home, and the manner in which Reid wanted her to die.
“The fact that Johnson and Thompson had no intention to commit murder is not relevant.”
The appeals court also refuted Reid’s claim that the sentence was too long, citing his lengthy criminal history.
Ind. Courts - More on interpreter grants
Supplementing this ILB entry from June 6th, titled "Clark, Floyd courts receive interpreter grant", here is a story today in the Evansville Courier & Press by Katherine Braser headlined "Courts say 'hola' to grants." It begins:
The Rev. Simon Leon is used to getting calls at his home at all hours from non-English speakers who face court charges.
"They are concerned because they don't know the system, the laws, nothing," he said. "It can be an intimidating thing. I try to calm them down."
Leon is one of two interpreters who regularly serve Spanish-speaking people at the Vanderburgh County Courthouse.
This week, Vanderburgh and Warrick counties were among 38 in the state to split a total of $168,250 in grants to help pay for court interpreters.
Warrick County received $1,250 and Vanderburgh County received $4,000.
The grants are part of an effort by the Indiana Supreme Court to increase access to justice, especially for those who do not speak English. * * *
The grant money comes from $100,000 set aside by the Indiana Legislature and $68,250 contributed by the Indiana Supreme Court.
Awards this year ranged from $250 to $30,000. Allen County, Ind., received $30,000 because of a death-penalty case for a Spanish-speaking defendant that will likely be tried this year.
Leon said in Vanderburgh County, the grant is money well spent. He spends every Monday and every other Wednesday assisting Spanish-speaking clients at the Vanderburgh County Courthouse. On Mondays, he helps from 12 to 31 clients and on Wednesdays, he assists in eight to 20 cases.
Ind. Law - "Bopp at the center of U.S., Indiana campaign finance cases"
The Crawfordsville JournalReview today publishes a story by Brian Howey on Terr Haute attorney James Bopp Jr. A quote from the story:
The U.S. Supreme Court is set to rule on a case that revolves around the type of ads an interest group can air during the “blackout” period 60 days before a general election and 30 days before a primary. The decision is expected by June 29. In the Federal Election Commission v. Wisconsin Right to Life, the pro-life group ran television spots in 2004 urging Wisconsin voters to tell Democratic Sen. Russell Feingold not to block President Bush’s judicial nominations through a filibuster.Here is a link to a Jan. 20, 2007 ILB entry, giving background prior to the oral argument.
The problem is that the ads went up in the fall during the 60-day blackout period that was established by the 2002 campaign finance reform law -- a violation of the ban on election communications during that time frame, according to the FEC. The lawyer for Wisconsin Right to Life - Bopp - asserts that the ads constituted grassroots lobbying and should be protected as free speech.
“There’s no discussion about the election,” Bopp, a partner at Bopp, Coleson, Bostrom in Terre Haute, said. “It was about an upcoming vote in Congress. This ad was all about lobbying and not about an election, so it can’t be prohibited by campaign finance laws.”
During an intense, lively oral argument before the Supreme Court on April 25, Bopp was pressed by justices who questioned whether the timing and content of the ad were designed to influence the election — in violation of campaign finance reforms codified through the McCain-Feingold bill that Congress passed in 2002. The measure was authored by Feingold and Sen. John McCain.
“If we agree with you in this case, good-bye McCain-Feingold,” Justice Stephen Breyer told Bopp. “Maybe we should do it up front. That’s what you advocate.”
Ind. Law - "College loan practice frustrating Hoosiers: Indiana schools' use of preferred lenders like Sallie Mae is part of ongoing probe"
What looks to be the complete version of Gannet's Maureen Groppe's report on the college loan scandal and its impact in Indiana is published today on the front page of the Indianapolis Star. A version of the story published by the LCJ was quoted in the ILB Saturday, in this entry.
Sunday, June 10, 2007
Ind. Law - Private Loans Deepen a Crisis in Student Debt; the bankruptcy law change tie-in
The regulations that the federal Education Department proposed this month to crack down on payments by lenders to universities and their officials were designed to end conflicts of interest that could point students to particular lenders.More from the story:
But they do nothing to address a problem that many education officials say may have greater consequences — more students relying on private loans, which are so unregulated that Attorney General Andrew M. Cuomo of New York recently called them the Wild West of lending.
As college tuition has soared past the stagnant limits on federal aid, private loans have become the fastest-growing sector of the student finance market, more than tripling over five years to $17.3 billion in the 2005-06 school year, according to the College Board.
Unlike federal loans, whose interest rates are capped by law — now at 6.8 percent — these loans carry variable rates that can reach 20 percent, like credit cards. Mr. Cuomo and Congress are now investigating how lenders set those rates.
And while federal loans come with safeguards against students’ overextending themselves, private loans have no such limits. Students are piling up debts as high as $100,000.
Banks and lenders face negligible risk from allowing students to take out large sums. In the federal overhaul of the bankruptcy law in 2005, lenders won a provision that makes it virtually impossible to discharge private student loans in bankruptcy. Previously such provisions had only applied to federal loans, as a way to protect the taxpayer against defaulting by students.
While federal loans also allow borrowers myriad chances to reduce or defer payments for hardship, private loans typically do not. And many private loan agreements make it impossible for students to reduce the principal by paying extra each month unless they are paying off the entire loan. Officials say they are troubled by the amount of debt that loan companies and colleges are encouraging students to take on.
“It’s a huge problem,” said Barmak Nassirian, associate executive director of the American Association of Collegiate Registrars and Admissions Officers. “When a student signs the paper for these loans, they are basically signing an indenture,” Mr. Nassirian said. “We’re indebting these kids for life.” [emphasis added]
The large growth in private loans — once confined primarily to graduate students — largely comes from steep increases in tuition, which have outpaced inflation and federal aid, and an increasing reluctance among parents to take on more debt.The recent stories on the student loan scandal have pointed out that many college students are not aware of the ins and outs of interest rates and debt and depend on college loan officers to steer them in the right direction. Often, apparently, that has not been the case, with some loan officers receiving trips and other favors and sitting on the boards of the lendors. The ILB entry yesterday related that both IU and Purdue have only one "preferrred lendor" to whom they direct students - Sallie Mae. Here is quote from near the end of today's story:
For the last 15 years, the limits on the most common federal loans have stagnated at $17,125 for four years. They will increase slightly starting next month. In addition, loan companies have also come to realize that such loans can be hugely profitable.
Take Attila Valyi, a Motorola employee in Plantation, Fla. Eager to jump-start his education, he turned to American InterContinental University, a for-profit institution offering a bachelor’s degree in 13 months. But discovering how much the diploma would cost was an endeavor worthy of a dissertation.
While the $28,000 tuition was no secret, Mr. Valyi said that at the urging of university officials, he had signed an application for a loan that doubled as a pledge to pay the money back. It did not indicate an interest rate. He took out two more loans before getting his bachelor’s degree, realizing only when it was too late, he said, that he carried loans at three different interest rates that could rise from month to month, the largest for $10,745 at 18 percent.
When Mr. Valyi, 30, contacted the lender, Sallie Mae, to refinance, he said he was told he could not do so until he graduated. “You’re locked in at 18 percent,” he said he was told.
Martha Holler, a spokeswoman for Sallie Mae, said Mr. Valyi and other borrowers of those years would have been told, during the application process and in an approval letter, the interest rate as a percentage above the prime rate. And they were free to cancel, up to 30 days after the money went to the school.
Lynne Baker, a spokeswoman for the Career Education Corporation, which owns American InterContinental and scores of other for-profit colleges, said that the corporation did not track individual student interest rates and that whether to pay such rates was the students’ decision.
Law - More on "Test Case Linking Vaccines and Autism Reaches Federal Court"
Updating this ILB entry from June 5th, the Washington Post has a story today headed "Fight Over Vaccine-Autism Link Hits Court: Families, After Having Claims Rejected by Experts, Face Lower Burden of Proof. It begins:
For more than a decade, families across the country have been warring with the medical establishment over their claims that routine childhood vaccines are responsible for the nation's apparent epidemic of autism. In an extraordinary proceeding that begins tomorrow, the battle will move from the ivory tower to the courts.
Nearly 5,000 families will seek to convince a special "vaccine court" in Washington that the vaccines can cause healthy and outgoing children to withdraw into uncommunicative, autistic shells -- even though a large body of evidence and expert opinion has found no link. The court has never heard a case of such magnitude.
The shift from laboratory to courtroom means the outcome will hinge not on scientific standards of evidence but on a legal standard of plausibility -- what one lawyer for the families called "50 percent and a feather." That may make it easier for the plaintiffs to sway the panel of three "special masters," which is why the decision could not only change the lives of thousands of American families but also have a profound effect on the decisions of parents around the world about whether to vaccinate their children.
A victory by the plaintiffs, public health officials say, could increase the number of children who are not given vaccines and fall sick or die from the diseases they prevent.
Law - Play the redistricting game yourself
Starting tomorrow (Monday), according to this Washington Post story, you will be able to play the Redistricting Game:
Okay, wonks: Think you know how the political game works?
Now you can actually play it, or at least one part of it, from within the window of a computer browser.
A new, free game developed by a team at the University of Southern California makes a simple, quickly graspable point for those of us with short attention spans: It's not always the issues that determine the outcome of an election; it's how the congressional district map was drawn in the first place.
The Redistricting Game lets players bend the borders of congressional districts in a series of missions set in fictional states. Protect the incumbents, oust the opposition -- it's amazing what a few mouse-clicks can do. You read about gerrymandering in civics class, but it's much more involving to actually try your hand at it. * * *
Jonathan D. Aronson, a professor and political scientist at USC, is a little exasperated that Americans sometimes worry about the potential for voting-machine tampering when there may be a more fundamental -- though, perhaps, drier and harder-to-explain -- problem in how districts are drawn.
"My question was, why would you need to rig the voting machines if you'd already rigged the election by making seats safe?" he said. He took the issue to USC's game-design school to see whether it could build a game on the topic. * * *
The Redistricting Game takes place in imaginary states named Jefferson, Madison and Hamilton, but its developers are hoping it will draw enough interest and support to warrant making a version that uses real-world maps and census data. * * *
The game is scheduled to be available tomorrow at http://www.redistrictinggame.org.
Ind. Courts - Changes go into effect July 1 for sexually violent predator law; sentencing law study
Kara Lopp of the Fort Wayne Journal Gazette has a long story today on issues posed by the statute. Some quotes:
Allen Superior Court Judge Fran Gull labeled her first sexually violent predator in March, but she had to deviate a bit from state law to do it.The new law is HEA 1386, a 68-page bill dealing with criminal law and procedure. The changes referenced in the story may be found on pages 37-38.
Prosecutors asked Gull to declare Daniel S. Apodaca, 18, of the 4300 block of Warsaw Street, a predator because of a previous sex-related conviction. To do that, according to state law, Gull was required to obtain the opinions of two board-certified psychologists or psychiatrists.
After nearly two months of searching, Gull could find only one board-certified psychologist in northeast Indiana qualified to take the case. So she made her decision with the opinion of just one expert, and Apodaca received the sexually violent predator label.
“I couldn’t find anybody,” Gull said. “It’s a difficult statute to comply with.”
With only nine board certified clinical psychologists in Indiana, Gull isn’t alone in expressing frustration with this portion of Indiana’s current sexual predator law.
On the books for at least five years, few county prosecutors have pushed for the predator label because of the scarcity of board-certified professionals qualified to give such opinions.
Although a change in the law last year set new standards for some violent offenders, others were not getting reviewed because their crimes still required analysis by experts. Prosecutors and judges hope additional changes to the law that take effect next month will clear up years of confusion. * * *
Of the 8,366 registered sex offenders listed on Indiana’s sexual offender Web site, 2,106 people have been labeled sexually violent predators, said Doug Gosser, executive director with the state sheriff’s association.
The designation is important so the offenders can be closely monitored, Noble County Prosecutor Steven Clouse said. These types of cases are different from the Romeo-and-Juliet cases where an 18-year-old has sex with a 15-year-old, he said.
“I think the term ‘predator’ says it all,” Clouse said. “These are the people that we’re most trying to protect our children and our community from.”
Before the 2006 addition to the law, only about 45 people in Indiana had been labeled a sexual predator, said Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council.
Stephen Ross [questioned] whether when writing the law, legislators mistook the phrase “board certified” for “licensed.” A clinical psychologist certified by the American Board of Professional Psychology, Ross is one of the Indiana’s nine board-certified clinical psychologists who handle sexual predator evaluations. He worked on the Apodaca case.
Professional psychologists and psychiatrists are licensed, but board certification requires more rigorous, specialized training. And not everyone who is board-certified has the proper training to evaluate people for sexual predator cases, Ross said.
“There probably are psychologists who are qualified, but you’ve got a statute that says only board certified,” Ross said. * * *
When the amended law takes effect next month, area judges and prosecutors are expected to be able to rest a little easier.
Board-certified specialists will no longer be required for predator violations, only professionals who have experience in criminal behavioral disorders. The law also states that a prosecutor must request the evaluation.
With at least two sex-offense cases pending in Noble County, Clouse said he’s eager to use the law for the first time.
“We look forward to working with it now because I think (the legislature has) done a lot to straighten it out,” he said. “It looks a lot better right now.”
Also notable in this bill, beginning on p. 62, is the creation of a three-year sentencing law and policy study committee, charged with undertaking a comprehensive study. The committee is to submit an interim report by Nov. 1, 2008 and a final report by Nov. 1, 2010. The committee is to be staffed by the Indiana criminal justice institute.
Ind. Courts - "Lambert, now 36, is scheduled for lethal injection early Friday"
The Muncie Star-Press plans extensive coverage. A side-bar to a story published earlier this week reports:
Muncie resident Michael A. Lambert is scheduled to be executed early Friday, at the Indiana State Prison in Michigan City, for the 1990 slaying of city police officer Gregg Winters.The main story began:
See Sunday's Star Press for articles on 11th-hour legal options being considered by Lambert's attorneys and the untimely deaths of law enforcement officers in Indiana.
Other articles next week will focus on how the case has impacted the Winters and Lambert families, and on local clergymen who oppose capital punishment.
If the execution order remains in effect, reporter Nick Werner will be at the state prison late Thursday and early Friday, providing live coverage for The Star Press and its Web site, www.thestarpress.com.
INDIANAPOLIS -- The Indiana Parole Board recommended Friday that Gov. Mitch Daniels deny clemency for Michael Lambert, the Muncie man convicted of killing a police officer 17 years ago.The Sunday story, by Nick Werner of the Star-Press, is available here. Some quotes:
Lambert, now 36, is scheduled for lethal injection early Friday for killing Officer Gregg Winters on Dec. 28, 1990. Lambert was arrested for public intoxication and was in the back seat of Winters' cruiser when he pulled out a hidden gun and shot Winters five times in the head. The 32-year-old Winters died 11 days later. * * *
The parole board's decision is a recommendation and is not binding on the governor.
Jane Jankowski, spokesman for Daniels, told The Star Press the governor will review the board's decision and any other relevant material before determining whether or not to grant Lambert clemency.
"If there is a decision, it would likely come sometime next week in the days ahead of the execution," Jankowski said. * * *
[Winters' widow, Molly Winters] said she feared that the 7th Circuit Court of Appeals in Chicago might take some action that would block Lambert's execution again.
Lambert's lawyers have asked the appeals court to recall a mandate it handed down last year that cleared the way for the state to proceed with the planned execution.
The appeals court, in a 2-1 decision, last year denied Lambert's request to again challenge a state Supreme Court's ruling regarding statements the jury heard from Winters' widow about the effect her husband's death had on her family.
The high court ruled the jury should not have heard the statements but concluded the aggravating circumstances outweighed the mitigating circumstances and affirmed his death sentence. * * *
Lambert's attorneys also are asking Daniels to commute the death sentence to life in prison without parole.
They contend Lambert should be granted clemency because three of the state's five Supreme Court justices have at times during his court challenges ruled his death sentence is "constitutionally infirm."
Justice Frank Sullivan Jr. dissented about whether Lambert's sentence was proper in 1994, while Justices Theodore Boehm and Robert Rucker dissented at other times. But they never all three agreed at the same time.
MUNCIE -- With Michael Lambert's scheduled execution a week away, his attorney said he was cautiously optimistic that one of three legal options might result in a stay. * * *
Freedman said he hoped Daniels would take into consideration that three of the state's five current Supreme Court justices have at times during his appeals ruled Lambert's death sentence was "constitutionally infirm."
The three, however, never agreed at the same time so the execution was never overturned.
"It's a unique scenario," Freedman said.
Lambert also has pleadings before the U.S. Court of Appeals asking that court to vacate the judgments of previous failed appeals. Lambert's pleadings are based on arguments that testimony from Winters' widow, Molly, and other police officers might have wrongfully influenced a jury's 1991 recommendation that he be executed, Freedman said.
The Indiana Supreme Court has ruled that the testimony did affect the jury, but that his crime warranted a death penalty sentence nonetheless.
Finally, Lambert has also filed a lawsuit in the U.S. District Court for the Southern District of Indiana in Indianapolis alleging that Indiana's use of lethal objection constitutes cruel and unusual punishment.
He could ask the judge for an injunction that would delay his execution at least long enough to allow hearings in that case.
Similar efforts by David Leon Woods, a co-plaintiff in the same lawsuit, to win an injunction failed. He was executed May 4.
Lambert is now 36.
He was scheduled for execution June 22, 2005.
On June 17, 2005, however, the 7th U.S. Circuit Court of Appeals in Chicago stayed the execution for further review. A year later, that same court denied motions by Lambert to overturn his death sentence.
Saturday, June 09, 2007
Courts - More on: Litigants Blogging
On May 31st, in this ILB entry titled "Litigants Blogging," the focus was a doctor defending himself in a malpractice suit who also had been blogging about the case. Today, in this National Law Journal story by Stacey Laskin, we have more details about the case. And some suggestions:
"Just like anything else a client may have written or said in a lecture, it is a potential source of prior impeaching information." Lindeman's action "seems to me like such an obviously stupid thing to do," said Ken Withers, the director of judicial education and content for The Sedona Conference, an Arizona-based nonprofit research organization, which publishes a guide to confidentiality and public access.
"Some people live in a fantasy world," he said. "They believe what they say or do on the Internet is somehow private. They may believe that running a blog shields them from identity -- it does not. It would be no great effort for anyone to discover the source of a posting or the host." A New Hampshire case involving a juror who posted entries about court duty on his blog raised similar concerns earlier this year, prompting legal experts to predict that warnings on blogging may become a regular part of jury instructions and voir dire.
Ind. Law - "Student-loan practices at IU draw scrutiny"; bankruptcy law tie-in
The Louisville Courier Journal today is running a story by Maureen Groppe recounting New York Attorney General Andrew Cuomo's testimony to the Senate banking committee this week, and tying it back to Indiana universities. Some quotes:
WASHINGTON — Raymond McKean said he encountered countless problems when trying to get student loans for his daughter without going through Indiana University 's preferred loan provider.Here is information from a sidebar to the story:
"The very first thing out of anybody's mouth was, `It's so much easier if you use Sallie Mae,' " said McKean, of Terre Haute.
When McKean insisted on going a different route, he said he was told the forms he had faxed hadn't arrived and was charged late fees he was told wouldn't appear if he had used Sallie Mae. One semester, his daughter's loan application was automatically sent to Sallie Mae, even though she hadn't requested it.
"They were trying to force me to Sallie Mae," McKean said. "You can't lose that many confirmed faxes."
Schools' preferred-lender lists are being scrutinized by Congress and other investigators digging into whether lenders and schools have gotten too cozy at the expense of students.
"The benefits to the lenders of being included on these lists are considerable," New York Attorney General Andrew Cuomo told the Senate banking committee this week.
Because students trust their schools, most will follow the school's recommendation without comparison shopping, he said.
Cuomo's investigation has uncovered instances of illegal loan steering to preferred lenders; revenue-sharing agreements between schools and lenders; gifts, trips and stock given from lenders to school financial aid directors; and university call centers staffed by lender employees. * * *
Sallie Mae, which employs 2,300 people in Central Indiana, handles 98 percent of IU's loans. [Jim Kennedy, IU's associate vice president of student enrollment services] said IU does not discourage students from using other providers, and the 98 percent rate demonstrates students' satisfaction with Sallie Mae, not the difficulty of using someone else. * * *
Stephen Clinton, president of the nonprofit Indiana Secondary Market for Education Loans, which was created by the General Assembly in 1980 to provide secondary loans to Indiana students, said his ability to compete against preferred - list lenders varies by school.
Borrowers who want to use the nonprofit have the most problems at IU and, to a lesser extent, Purdue, he said.
"Some of the larger institutions really dig their heels in to the point where they are stalling, stalling, stalling," Clinton said. "We have situations where documentation was lost repeatedly or claimed not to be received , and we know it was."
When Margaret Gleason's son enrolled at Indiana University-Purdue University Indianapolis last year, Gleason wanted to use the nonprofit , the same lender the family was using for other student loans. When the loan got hung up, Gleason was told it was because she wasn't using the school's traditional lender.
PREFERRED LENDERS. The federal government is considering requiring colleges and universities that use preferred-lender lists to recommend more than one lender to student borrowers. Here are what some Indiana schools do:Yesterday, NPR's All Things Consdiered had a very good report on the student loan scandal. Listen to it here. The Marketplace Report, referenced in the NPR description, is also informative.
Indiana University: preferred lender is Sallie Mae.
Purdue University: preferred lender is Sallie Mae.
Ball State University: uses the government's direct lending program, has no preferred-lender list.
University of Notre Dame: preferred lenders are Citibank Student Loans, College Board Education Loans, Chase Bank, Nellie Mae, Notre Dame Federal Credit Union and Wells Fargo.
Indiana State University: preferred lenders are Chase, Citibank, College Board, College Loan Corp., Edamerica, Educaid, Fifth Third Bank, First Financial Bank, Indiana Secondary Market, ISU Federal Credit Union, KeyBank, National City Bank, Old National Bank, Student Loan Xpress and SunTrust.
Inside Higher Education has a story from June 7th headed "Taming the Student Loan ‘Wild West’". Some quotes:
The market for private student loans has exploded in recent years, fueled by the growing gap between the price of attending college and the availability of federal grant and subsidized loan funds. And the competition among student loan companies to provide those non-federal loans, occurring at a time of little or no federal regulation, created an environment in which some questionable (if not illegal) marketing practices flourished.The tie-in to the bankruptcy law is particularly interesting. Noted consumer law expert Elizabeth Warren asks on the blog, Credit Slips:
That has been one of the starkest conclusions of the student loan controversy that has unfolded over the last three months. And at a U.S. Senate hearing Wednesday, a slew of witnesses — led by New York Attorney General Andrew M. Cuomo, whose own investigation has spurred inquiries in Congress and elsewhere — discussed the private loan market and what if anything Congress should do to increase oversight of it. Among the issues debated: Looking back, is there more the federal government should have done to regulate the private loan industry? And going forward, should federal laws or rules be changed to give federal agencies more authority to regulate the market? * * *
Cuomo reiterated his belief that the government already had the authority to regulate private loans, but he endorsed applying to the private loan sector toughened standards that Congress and the Education Department have proposed imposing on lenders and college officials in the federal loan programs.
The New York attorney general also revealed that his office was widening its investigation into private loans by looking at whether the criteria lenders use to award private loans discriminate against students attending less-wealthy institutions, much as mortgage lenders are sometimes accused of refusing to give loans to, or gouging, borrowers in poor neighborhoods. “There are civil rights and legal ramifications,” Mr. Cuomo said.
The other panelists who spoke Wednesday – including student advocates and officials from Sallie Mae, Bank of America and First Marblehead, three dominant players in the private loan industry – took varying stances on how much new regulation or legislation they thought was necessary. Bank officials generally said they thought that the changes being considered by Congress now, and included in the code of conduct that Cuomo has promulgated, were more than sufficient, and that greater transparency and public information about loan rates and terms would go a long way toward protecting borrowers.
But Luke Swarthout, higher education advocate for the U.S. Public Interest Research Group, called for much more extensive changes, including changing personal bankruptcy laws so that private loans are discharged when a borrower enters bankruptcy. [emphasis added]
Among the many wonders of the 2005 bankruptcy amendments is the provision that for-profit student loan agencies would get the same protection of non-dischargeability as government lenders. No one seems to know where the amendment came from and no one seems to recall any evidence of abuse that would cause these for-profit lenders to get treatment usually reserved for domestic support recipients and the taxing authorities.A link points to this SSRN paper by John Pottow of the U of Michigan. The summary:
In the wake of the scandals over loan company payoffs to college officials, higher education experts are taking a closer look at BACPA. * * *
Ultimately the nondischargeability decisions boils down to two simple policy questions: Why should students who are trying to finance an education be treated more harshly than someone who negligently ran over a child or someone who racked up tens of thousands of dollars gambling? And why should a for-profit lender should receive the kind of extraordinary protection that is usually reserved for domestic support recipients or the government?
Politicians are scrambling to distance themselves from student loan companies, so it is no surprise that no one wants to claim credit for insert the nice bonus for for-profit student lenders into the bankruptcy bill. But if Congress is serious about investigating student lenders, perhaps the first legislative challenge to BACPA could be in section 523.
Student loans are not dischargeable in personal bankruptcy proceedings in the United States. Why is that so? The answer to that question has remained largely unexamined in bankruptcy scholarship to date. Doctrinal and empirical pieces have sprouted up here and there (some quite good), but theoretical treatment has been sparse. This article seeks to help fill that void. It assembles various defensible theories (some more defensible than others) under which student loans should be treated as nondischargeable debts. It then takes a comparative perspective by looking at how the laws in various jurisdictions square with these theories. The United States rates poorly; its laws tend toward implementation of the least defensible theories and only tangentially embrace the more compelling ones. By contrast, countries such as Australia and New Zealand, which take an income-contingent approach to student debt default, are on the right track.See also this article by Robert Shireman that traces the history of changes to the bankruptcy law treatment of student loans.
Ind. Courts - Steuben judges need more space
Kara Lopp of the Fort Wayne Journal Gazette reports today:
Steuben County judges say they need either bigger courtrooms or a new courthouse.
The judges will make their case for the construction projects before county commissioners and council during a joint meeting Tuesday. The meeting will begin at 8 a.m. in the commissioners’ room of the Steuben Community Center, 317 S. Wayne St., in Angola. * * *
When the jury selection process brings at least 60 people, extra chairs have to be brought from other rooms in the courthouse and people are forced to wait in small rooms around the courthouse, Wheat said.
Though the county’s caseload hasn’t reached the point where a fourth court would need to be added, Wheat said officials would be naïve to assume it would never get to that point.
There is no room for a fourth court in the courthouse, he said.
“I will say that a time will come where we do and it’s just a question do we want to take the offensive … or do we just want to sit and wait until we’re overwhelmed and in panic mode?”
If county officials decide to plan for the building of a new judicial center in the future, Wheat would like to see the building in the same area as the current courthouse. It’s important courtrooms are close to the county’s jail and other highly used offices, he said.
Ind. Courts - Porter County Courts have new reason for cellphone bans
The ILB has had a number of stories on decisions to ban cellphones entirely from courthouses. Allen County appears to have been the first. The rationale from a Nov. 22nd Fort Wayne Journal Gazette story:
Allen Superior Magistrate Robert Schmoll said two problems have led to the change.
“First, there’s the disruptive aspect, which is much worse in (misdemeanor and traffic court),” he said. “We have to stop a couple of times a morning because someone can’t read a sign.”
Signs stationed outside each courtroom in every building instruct people that all electronic devices must be turned off. When the phones have rung, bailiffs have confiscated them. The phones are usually returned later that day or the next. However, there is an exception.
“Now, they’re able to take pictures (using cell phones). Based on that, we’ve had instances of people taking pictures of witnesses, prosecutors, police officers. That brought … more cause for concern,” he said.
People who’ve been caught taking pictures or video inside the courtrooms have had their phones destroyed on judges’ orders. Indiana law does not allow cameras inside state courtrooms.
Cell phones are already banned in most federal courthouses and more state courthouses are going this way as well, said Schmoll, who has noticed the problem in the past five years.
Today Bob Kasarda of the NWI Times points to a new reason, in this story headed Porter County "Judges to ban cell phones from courthouses." Some quotes:
VALPARAISO | Picture this: The person across from you pulls out a cell phone, punches four buttons, and you've been shot four times.The story also provides a link to a chilling video of the cell phone gun in action.
Judges in Porter County can picture it, and they are following the lead of their peers in Allen County and at the federal level by banning cell phones and like devices from county court buildings beginning Aug. 1.
Courthouse security have alerted officials that cell phone guns capable of shooting several bullets are now available on the Internet, according to Porter Superior Court Judge David Chidester.
A cell phone stun gun also is available, he said.
"These cell phone guns are exact duplicates of normal cell phones and I, for one, don't seek to learn more about it close up," said Chidester, who serves as the judicial liaison to courthouse security.
Porter Circuit Court Judge Mary Harper has already banned cell phones during trials to avoid the potential of someone recording testimony and violating the rules by sharing it with another witness.
Banning cell phones all together will eliminate the distraction created when they ring during court, she said.
"Every Tuesday something goes off," she said, referring to her busiest court day.
Porter Superior Judge Roger Bradford, who along with Porter Superior Judge Bill Alexa was unaware the ban had been approved, said it appears to be in keeping with the state's code of judicial conduct prohibiting cameras from courtrooms.
The details of the ban are still being worked out, but exceptions may be made for attorneys, police and courthouse personnel, Chidester said. Consideration also will be given to allowing future jurors time to return to their cars during the day to access their cell phones to call family members and employers.
Everyone else who shows up to the buildings with a cell phone will be turned away, he said. Courthouse security officers currently hold on to some weapons and cameras while visitors are inside the building, but that will not be the case with cell phones.
Friday, June 08, 2007
Ind. Decisions - Court of Appeals issues Order re extensions of time for the filing of briefs
The Court of Appeals has just posted an Order, signed by Chief Judge Baker, in the case of Challenge Realty, Inc. v. James M. Leisentritt, Indymac Bank, F.S.B., and Countrybrook North C.
Unfortunately the opinion is scanned, so I cannot copy portions of it. What has happened is that on June 4th the Court permitted Appellant's counsel to withdraw, but the order also said that "Appellant's Brief remains due on or before June 15, 2007."
Appellee's counsel, also on June 4th, filed a Limited Objection, noting that Appellant had already obtained three extensions of time and requesting that the Order explicitly state that Appellant's Brief remained due on June 15th and that no further extensions would be granted.
Today's Order does just that. It states at #3 that the Limited Objection is well taken. The Court modifies the June 4th Order to state that "Appellant SHALL NOT request or be granted any additional extensions of time. Further, Appellant's FAILURE to file its Appellant's Brief on or before June 15, 2007, SHALL SUBJECT THIS APPEAL TO DISMISSAL." [emphasis in the original]
#6 provides: "Inasmuch as the contents of this order are of unique interest to the bar, and of substantial importance, this order is hereby ORDERED PUBLISHED."
Comment. This is a civil law case. The ILB has received input from readers recently commenting that in criminal law cases Chief Judge Baker has made extensions for briefs "exceptional." One reader wrote "The automatic 30 days everyone was getting are no longer automatic. If you ask for 30, you might get 14. You might not. It doesn't matter much with direct criminal appeals, since a blown deadline will only mean per se ineffective assistance of appellate counsel. But it means a lot for the civil, juvenile, and post-conviction cases." Any other thoughts, pro or con?
Law - "Gay Lawyers Come Out as Clients Demand More Diversity"
Bloomberg.com has a long story this afternoon by Cynthia Cotts that begins:
(Bloomberg) -- When Coco Soodek, a corporate lawyer in the Chicago office of Bryan Cave LLP, was promoted to partner in 2005, the firm invited all the new partners to dinner at its St. Louis headquarters.[Thanks to How Appealing for the link.]
Soodek, 36, was encouraged to bring her companion, Roxanne Saylor, 37. The couple was seated by the wife of the firm's chairman, and the partners' spouses were asked to stand.
``If I had one toe left in the closet, they made me take it out,'' Soodek says. ``There was no going back.''
Soodek's experience may be approaching the norm for gays and lesbians at prominent U.S. law firms, which compete to hire lawyers of diverse ethnic backgrounds, gender and sexual orientation.
``Today, elite law firms are behaving as good elites should,'' says Keith Wetmore, 50, a gay lawyer who is chairman of the San Francisco-based firm Morrison & Foerster LLP. ``They've become culturally sensitive.''
The number of openly gay, lesbian, bisexual and transgendered lawyers increased by more than 50 percent from 2002 to 2006, according to the National Association for Law Placement.
Courts - "Increasingly Questionable Search Tactics Survive Fourth Amendment Scrutiny"
Decision of the Day today has this entry about the searches that are passing scrutiny in the federal circuit courts of appeal.
Ind. Decisions - Transfer list for week ending June 8, 2007
Here is the Indiana Supreme Court's transfer list for the week ending June 8, 2007.
Note that transfer was denied in Heidbreder, Inc. v. Bd. of Zoning Appeals of City of Crown Point, about which the Court held oral arguments yesterday - see ILB entry from earlier today here.
(Always be sure to go through all the pages, as the "list" is really two combined lists.)
Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)
There is only one "for publication" decision today, but it is an interesting one dealing with a land sale contract.
For publication opinions today (1):
In Terry & Julie A. Huber v. Danny W. & Sheila M. Sering, a 23-page opinion, Chief Judge Baker writes:
Appellants-plaintiffs Terry and Julie Huber (collectively, the Hubers) appeal the trial court’s judgment in favor of appellees-defendants Danny and Sheila Sering (collectively, the Serings), seeking to set aside the judgment of forfeiture regarding the Serings’ real estate. Specifically, the Hubers contend that the remedy of forfeiture was inappropriate in these circumstances because they had paid a substantial amount toward the purchase price of the property. Moreover, the Hubers maintain that because the land sale contract was terminated and the Serings retook the property and subsequently sold it to another individual, the Serings were not entitled to retain the payments that the Hubers had made toward the purchase price. Moreover, the Hubers argue that they are entitled to a judgment from the Serings in the amount of $25,600 in light of an erroneous appraisal of the property that had been admitted into evidence. Concluding that forfeiture was proper in these circumstances, we affirm the judgment of the trial court. * * *NFP civil opinions today (2):
The Hubers first contend that the judgment cannot stand because the trial court incorrectly determined that they had failed to pay at least $25,000 toward the purchase price. Therefore, they claim that the forfeiture clause in the contract—even if valid—was improperly applied in this case. As a result, the Hubers direct us to Skendzel v. Marshall, 261 Ind. 226, 301 N.E.2d 641 (1973), for the proposition that foreclosure, rather than forfeiture, was the appropriate remedy. * * *
In light of our discussion above, we conclude that the Hubers were not entitled to recover any money that they had paid to the Serings because they abandoned the contract after paying only a minimal amount toward the purchase price of the property. Moreover, the evidence supported the trial court’s conclusion that the Hubers were not entitled to the value of any equity in the property because they had no equity at the time of their default. Finally, we conclude that the Hubers’ unconscionable delays in pursuing their alleged claims against the Serings establish that they are not entitled to a judgment under principles of equity because they have failed to do equity. The judgment of the trial court is affirmed.
in James T. Ferguson, et al v. Charles D. Candler, et al (NFP), a 10-page opinion, Chief Judge Baker writes:
Appellant-plaintiff James T. Ferguson appeals the trial court’s order that partially disposes of his complaint against appellees-defendants Charles D. Candler, Kenneth J. Candler, CK Enterprises (CK), and Dependable Sandblast & Deburring Corporation (Dependable). We conclude that the trial court’s order is deficient, inasmuch as it contains miniscule findings of fact and neglects to dispose of a number of the claims in the complaint and counterclaim. Consequently, we remand this matter to the trial court with instructions to enter a more detailed order that disposes of all matters raised by the parties’ pleadings. * * *James H. Higgason, Jr. v. Indiana Dept. of Correction (NFP) - "Higgason argues that the trial court erred in dismissing his complaint pursuant to Indiana Code section 34-58-2-1 because the statute is unconstitutional. A panel of our court recently addressed this argument by Higgason and concluded that Indiana Code section 34-58-2-1 “does not unreasonably deny offenders the right of access to the courts, but offers a balance between an offender’s right to bring a civil action and the heavy burden that those claims have placed on our judicial system.” Higgason, 864 N.E.2d at 1137.
The trial court neglected to rule explicitly on, by our calculation, eleven counts of Ferguson’s complaint and four counts of the counterclaim. It also neglected to rule on the parties’ respective motions for summary dismissal that it took under advisement pending trial. Thus, the conclusions of law are insufficient to dispose of all matters herein. Moreover, the extraordinarily limited findings of fact do not provide a sufficient basis for us, in our capacity as a reviewing court, to draw legal conclusions therefrom. Similarly, the limited findings of fact do not support the limited conclusions reached by the trial court.
Under these circumstances, we are compelled to remand this matter to the trial court with instructions to enter detailed findings of fact and conclusions of law on all matters before it. We also observe that both parties have requested damages pursuant to multiple counts in the complaint and counterclaim and that, notwithstanding the fact that the trial court found that Ferguson and the Candlers each breached fiduciary duties, the trial court was entirely silent on the matter of damages stemming from those breaches or any other malfeasance. The trial court must at least address the damages requests even if it ultimately concludes that no damages are warranted.
The judgment of the trial court is remanded with instructions to enter detailed findings of fact and conclusions of law on all matters raised by the parties’ pleadings.
NFP criminal opinions today (2):
Environment - "Bacteria clean up oil pit in Knox"
Rick Callahan of the AP has a report that begins:
A tar-filled pit that was among Indiana's hundreds of abandoned gas and oil well sites has been transformed into usable farmland in the first such cleanup in the state enlisting bacteria to do the work.
The success of the pilot project in Knox County is expected to lead to legislation that would authorize the less costly alternative to soil-removal cleanups.
n the Knox project, crews who received special approval from state environmental officials tilled straw, hay, mulch and fertilizer into a two-acre, crude-oil sludge pit repeatedly over a three-year period, stimulating bacteria to break down the tarlike material.
"The black stuff is all gone, so what's happening is just nature doing its thing and we're helping it along," said Dave Elgin, coordinator of the Four Rivers Resource Conservation & Development Area Inc. in Petersburg.
The nonprofit corporation, which is affiliated with the U.S. Department of Agriculture and serves a 10-county area of southwestern Indiana, helped oversee the cleanup in Westphalia, about 60 miles north of Evansville.
Elgin said the project cost about $15,000 -- one-fourth of the estimated cost to excavate the oily gunk and ship it to an authorized landfill, as is the typical procedure for such cleanups.
Ind. Courts - Still more on: French Lick casino disputes continue to be aired in Orange Circuit Court
INDIANAPOLIS -- With approval yesterday by gambling regulators, the family of billionaire Bill Cook will take full control of the French Lick Casino Resort, ending a troubled relationship with its Indianapolis partner.For background on that case, start with this June 3rd ILB entry.
The Bloomington entrepreneur and his family will pay an undisclosed amount of cash to developer Lauth Property Group, buying out Lauth's 50 percent interest in the Orange County casino and two historic hotels. * * *
Ernie Yelton, the commission's executive director, said the change will remove the tension that had gripped the casino's development and operations.
"It will be like removing a cloud that was hovering over the casino," Yelton said.
The deal ends a chaotic marriage of two privately held companies that had joined in 2005 to win the license for Indiana's 11th casino. * * *
The companies' feuds spilled into court last year as each sued the other, in part to wrest majority control of the project. But despite the struggles, the casino and the French Lick Springs Resort opened on time late last year, and the nearby West Baden Springs Hotel opened last month.
The sale will end all legal issues between the two companies. * * *
Once the deal is completed, the hotels and casino will be owned by two entities: Orange County Holdings, the original partner in the development, and the newly created BSR OC Acquisitions LLC. Both companies were created by the Cook family.
Orange County Holdings is essentially a nonprofit company. It was established to funnel profits -- once the Cooks are repaid for the costs of buying the hotels -- to three charitable organizations: the Historic Landmarks Foundation, the Indiana University Foundation and the Orange County Community Foundations.
The new BSR OC company likely will be for-profit, although the details have not been finalized, Ferguson said yesterday. The new company's directors are Bill Cook, his son Carl Cook, Ferguson and Cook Group executive Rob Santa. * * *
Lauth's partnership with Cook was the company's second attempt to win the casino license. A year earlier, Lauth had gone in with Merit Management in an initial round of bidding for the casino.
In that case, the Gaming Commission awarded the license to Trump Hotels and Casino Resorts.
When that deal fell through, Lauth joined with Cook for a second try.
Now Merit is pursing a $100 million breach-of-contract claim against Lauth, alleging that it had no authority to enter into the contract with Cook officials. The case is pending in Hamilton Superior Court.
Ind. Courts - "Court documents apparently forged"
Joe Gerrety of the Lafayette Journal & Courier reports today:
Indiana Department of Correction officials are investigating allegations of forgery involving a prison inmate serving a 15-year sentence for a Tippecanoe County armed robbery conviction.The story sounded familar, so I checked prior ILB entries and found this one, titled "Prisoner wrongly freed from Kentucky state facility based on a faxed, forged 'court order'". A quote from the AP story:
Dexter L. Berry, 29, an inmate at the Wabash Valley Correctional Facility in Carlisle, is suspected of forging a document in order to reduce his sentence.
The jail received an amended abstract of judgment, purportedly issued from Tippecanoe Circuit Court on May 22, 2007.
Staff in Circuit Court received a telephone call last week from a staff member at the prison attempting to confirm the abstract.
"We had nothing in the file," Amber Laffoon, the court reporter, said. "That was nothing that I had typed."
Circuit Court Judge Don Daniel entered an order Tuesday finding that the documents are "false and deceptive, and that said documents appear to be the result of forgery." He ordered DOC to follow terms of an April 17, 2006, order sentencing Berry to 15 years in prison. * * *
Early this week, the prison faxed copies of the documents, which bear what appear to be date stamps from the Tippecanoe County clerk's office and a rubber stamp of clerk Linda Phillips' signature.
The stamped signature, however, was not initialed by a deputy clerk, which is the normal practice.
It also appears portions of the original abstract were whited out and dates changed. Supporting documents submitted with the abstract also show signs of having been doctored.
"Mr. Berry is one of our more prolific correspondents" in the DOC, Phillips said. "He asks for a lot of different records."
"It appears that the inmate arranged for someone to fax a forged court order to the Kentucky Correctional & Psychiatric Center," Major said.
The fake court order contained grammatical errors and it was not typed on letterhead. It falsely claims that the Kentucky Supreme Court "demanded" Rouse to be released.
Ind. Decisions - Supreme Court hears oral arguments in Lake County zoning dispute [Updated]
The ILB last reported on this case in this April 12th entry, quoting from a story in the NWI Times that began:
Crown Point developer Tim Heidbreder filed a lawsuit against Mayor Dan Klein in federal court Wednesday to recoup the money Heidbreder claims he lost when the city illegally denied him permission to build a concrete plant.The entry includes a link to a number of earlier ILB entries, including this report on the Dec. 12th, 2006 Court of Appeals decision.
The federal case is separate from the ongoing legal battle regarding the concrete plant that has gone all the way to the Indiana Supreme Court, where the two sides are arguing over whether the mayor had the legal power to veto a City Council permit to build the plant.
In the state court case, the city is challenging an Indiana Court of Appeals decision that Klein did not have the power to veto the permit for the Redi-Mix plant at 1010 Millennium Drive. Nearby residents strongly opposed the plant.
Yesterday oral arguments were held on the question of whether the Supreme Court should accept transfer. Marisa Kwiatkowski reports in the NWI Times:
INDIANAPOLIS | The Indiana Supreme Court heard arguments Thursday from Crown Point and developer Tim Heidbreder's legal representatives regarding construction of a Redi-Mix concrete plant in Millennium Park.You can watch the oral argument here.
Assistant City Attorney Pat Schuster filed a petition to transfer the case to the state's highest court after an appeals court ruled Mayor Dan Klein lacked the power to veto the Crown Point City Council's approval of a special use permit for the plant.
Schuster said city officials thought the mayor's veto powers were improperly stripped by the court ruling.
Heidbreder's plans for a Redi-Mix concrete plant fell through in 2005 when Klein vetoed the approval. The resolution would have allowed petitioner Prairie Material a special use permit to build the concrete plant on Millennium Drive, south of the Brookside subdivision. Nearby residents vehemently opposed the development.
The council failed to secure a two-thirds majority vote to override Klein's veto.
Heidbreder's application for a building permit to begin construction on the plant was denied by the city in June 2005. His petition to overturn the denial was voted down by the Crown Point Board of Zoning Appeals.
Heidbreder challenged the city's decision in Lake Superior Court, but lost.
In December, Indiana's Court of Appeals reversed the lower court's ruling, saying the Lake Superior Court erred when it found that the general zoning statute governing counties did not apply to municipalities such as Crown Point.
[Updated 1:50 PM] Transfer was denied yesterday in this case.
Ind. Decisions - Appeals Court rules in Clarksville Developer Lynn's favor
Larry Thomas of the New Albany Tribune reports on Wednesday's opinion in Robert Lynn Company, Inc. v. Town of Clarksville Board of Zoning Appeals and Town of Clarksville Plan Commission (see ILB entry here - 5th case):
The Indiana Court of Appeals has struck down provisions in Clarksville zoning and subdivision control ordinances that give the town’s Plan Commission the right to grant variances and has overturned a 2004 Board of Zoning Appeals ruling against Robert Lynn Co. for the second phase of its Meyer Manor. * * *
On Sept. 7, 2004, the Board of Zoning appeals granted Robert Lynn Co.’s application for development standards variances for both sections of Meyer Manor, conditional upon the Plan Commission’s approval of the developer’s amended subdivision plat.
Bob Lynn, the company’s president, had agreed not to build duplexes where they were permitted by right in exchange for smaller lots in other portions of Meyer Manor.
Meyer Manor is located off Charlestown Road near Ind. 60.
On Nov. 1, 2004, the zoning panel rescinded its variance approval, but Lynn did not receive notice of the hearing until he attended a separate Plan Commission meeting two days later. At the Nov. 3 meeting, the Plan Commission rejected Lynn’s petition for a development standards variance and his application for an amended plat.
Lynn sued the Plan Commission and Board of Zoning Appeals on Nov. 29, 2004, in Clark Superior Court 1. On Jan. 5, 2006, former Clark Superior Court 1 Judge Jerome F. Jacobi ruled in Lynn’s favor. The following month, after the town filed a motion to correct errors, Jacobi reversed his previous ruling.
Court of Appeals Judge Terry A. Crone, writing for Judges Patrick D. Sullivan and Michael P. Barnes, found that state law does not grant plan commissions the power to grant variances and that Jacobi’s original ruling in Lynn’s favor was correct.
“We think that the trial court had it right the first time around,” Crone wrote.
Despite its ruling that Indiana law does not grant plan commission’s the authority to review variances, the Court of Appeals ordered the Clarksville Plan Commission to conduct another hearing regarding the variances granted conditional approval by the Board of Zoning Appeals.
Law - More on: Legal issues raised by the TB quarantine story
Updating this ILB entry from June 1st, see this article today from the Fulton County Daily Report, headed "The Legal Questions Behind the TB Case: Incident highlights evolving government powers to prevent epidemics." Here is one quote from the comprehensive story:
Since the terrorist attacks of Sept. 11, 2001, he said, the CDC has collaborated with Lawrence O. Gostin, who directs the Center for Law and the Public's Health at Johns Hopkins and Georgetown universities, to develop a model state public health law that will enable states to respond to a public health emergency.And some quotes from Gene W. Matthews:
He estimated that 44 states have updated their laws since. Georgia is one of them; in May 2002, then-Gov. Roy Barnes signed a bill on public health emergencies, Senate Bill 385.
Among other things, that legislation amended O.C.G.A. § 38-3-51, which deals with emergency powers of the governor. One of the amended subsections provides for various due process procedures -- including the right to counsel and means for appeal -- applicable to quarantine or vaccination programs instituted pursuant to a declaration of a public health emergency by the governor.
"We're trying to change on the fly probably 50 years of sort of quiet inattention to this particular area of how private and public people conduct themselves," said Gene W. Matthews, formerly the CDC's chief lawyer, in an interview this week.For Indiana statutes, see IC 16-41, "Public Health Measures for the Prevention and Control of Disease," and particularly IC 16-41-9, dealing with "Communicable Disease: Imposition of Restrictions on Individuals With Certain Communicable or Dangerous Communicable Diseases"
There could be a lot to change. While states have worked to update their laws in the wake of the terrorist attacks of Sept. 11, 2001, some old state statutes deal only with specific diseases like tuberculosis or yellow fever. As public health officials and lawmakers grapple with the fears of a pandemic like avian flu, they must do so in a culture more sensitive to issues of individual rights -- making future health care detentions trickier. * * *
The difficulty, said Matthews, is that in the mid-1950s, just as public health officials were developing the polio vaccine that would contain one of the last great contagious diseases, the U.S. Supreme Court decided Brown v. Board of Education, 347 U.S. 483 (1954), ushering in a rich history of protecting individual rights against government abuse. He likened the two phenomena as two ships passing in the night.
With the exceptions of AIDS and TB, said Matthews, the country only recently has had to grapple once again with a dangerous contagious disease. As the county deals with emerging, dangerous diseases, now it has to do so in the context of legal evolutions on individual rights, he explained.
"The reason this is a hot button issue ... is because in this country we have never, until recently, had to wire together the circuitry between individual liberties and public health control measures," said Matthews.
[More] The WSJBlog has an interesting entry this morning headed "TB Patient Litigates in the Worldwide Court of Public Opinion", commenting on a NY Times story today that includes quotes such as "Starting from a position of near universal condemnation, they have used persuasion, humility and the timely and selective release of bombshell evidence to portray Andrew and his family as victims of bumbling and disingenuous bureaucrats."
Thursday, June 07, 2007
Ind. Courts - Linking of judges' pay to that of legislators decried at both federal and state levels
On May 10th, the ILB had an entry titled "Linking judicial and legislative pay has led to a 25% decline in federal judges' salaries." Some quotes from that entry:
This year the General Assembly passed a bill linking legislative salaries to those of Indiana judges.That was judges' pay at the federal level. Today Judith S. Kaye, Chief Justice of the Supreme Court of New York, has an opinion piece in the NY Times titled "Free Judges' Pay." Some quotes:
Chief Justice Shepard and Justice Boehm wrote an opinion piece published in several Indiana papers last month in favor of the pay 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."
Our judges have gone nearly nine years without even a cost-of-living adjustment, longer than any other judges in America.My thoughts: It looks like just at the point in time when everyone else was trying to get out of the boiling pot, Indiana's judges may have been pulled in.
Why no increase? It is not because anyone questions the need for raises, and not for lack of funds. The problem is the longstanding tradition of tying judicial pay raises to legislative pay raises. Albany is unwilling to bring state judicial salaries up to par this year without a pay raise for legislators, something that has been prevented by political divisions and other unrelated issues. [emphasis added]
[More] Gary Welsh of Advance Indiana has just sent me this editorial from today's Rockford Illinois Register Star:
Whether or not lawmakers deserve a pay raise — and we think not — Illinois needs to find a new way to determine how its elected officials are compensated.
The current system is dishonest, complicated and unfair to taxpayers and lawmakers.
Legislators who have yet to agree on a state budget for fiscal year 2008 somehow managed to find money to add to the 2007 fiscal year so they could give themselves what amounts to a 9.6 percent pay increase.
Here’s how the system works.
The Compensation Review Board reviews salaries and decides when to recommend an increase. The pay raise goes into effect unless lawmakers vote to stop it.
Both chambers of the General Assembly need to reject the raise, but it’s not that easy. The way the resolution is worded means lawmakers vote yes to say no. The measure asks whether lawmakers should reject the Compensation Review Board’s recommendation. A yes vote means no raise.
A no vote sounds like they are being disciplined, but really it means they get more taxpayer money.
Ind. Law - More Indiana golf cart ordinances
Continuing its exhaustive coverage of the regulation of the use of golf carts on streets and roads in Indiana -- see long list of prior ILB entries here -- the surprise today is this story from The Commercial Review, "Jay County's Daily Newspaper." Reported by Jennifer Tarter, the story begins:
GENEVA - Discussion on regulating golf cart usage on town streets drew an unusually large crowd at Tuesday's council meeting.The surprise? In earlier entries, the pressure for ordinances permitting golf carts on local streets and roads has seemed to come from aging baby boomers.
"Over the last couple years, we've had a problem with kids on golf carts," Geneva town marshal Rob Johnson said, kicking off discussion on the issue.
Johnson drafted the proposed ordinance after contacting approximately 20 towns the size of Geneva and requesting a copy of town ordinances on golf cart usage. Johnson received six ordinances from other towns and used portions of those ordinances to draft the proposed ordinance.
The proposed ordinance states that the operators of a golf cart must obey traffic and parking laws; and that golf carts may only be operated during daylight hours and be equipped with headlights, tail lights and turn signals. It also states that the golf cart should be covered by liability insurance, be annually registered for $5 at the town's police department and the owner must sign a copy of the ordinance and agree to these regulations. Also, all passengers shall be seated and that the cart should be equipped with a slow moving vehicle sign.
"My number one restriction I would like to see is an age limit (for driving)," Johnson said.
The proposed ordinance states that operators must be a minimum of 16-years-old.
Several audience members disagreed with the proposed age limit suggesting ages of 14 or 15-years-olds to drive only with a parent in the passenger seat.
According to state laws, golf carts cannot be operated, parked, or driven on state or U.S. highways. In Geneva, this would include U.S. 27 (Main Street) and Ind. 116 (West Line Street).
Ind. Decisions - Court of Appeals issues 2 today (and 17 NFP)
For publication opinions today (2):
In Norman R. Carlson, Jr., et al v. Sweeney, Dabagia, Donoghue, Thorne, James & Pagos, et al, a 28-page opinion dealing with questions of alleged attorney malpractice in will drafting, Judge Robb writes:
Norman R. Carlson, Jr., individually, and as executor of the estates of Norman R. Carlson and Hilda D. Carlson, and as Trustee of the Trust established under the last wills and testaments of Norman Sr. and Hilda, Margaret Ann Carlson, Beth Carlson Montigue, and David R. Carlson, (when referred to collectively, the “Carlsons”), filed a complaint against the law firm of Sweeney, Dabagia, Donoghue, Thorne, Janes and Pagos, and lawyer John H. Sweeney (the “Lawyers”), alleging legal malpractice that resulted in adverse tax consequences. The Lawyers filed a motion for summary judgment, raising two issues. The trial court denied the Lawyers’ motion as to one issue, but granted it as to the other. The Carlsons now appeal, raising a single issue, which we restate as whether the trial court properly granted summary judgment based on its determination that reformations to the Wills drafted by the Lawyers effectively eliminated any malpractice that occurred relating to the drafting of the original Wills. On cross-appeal, the Lawyers raise a single issue, which we restate as whether the trial court properly denied its motion for summary judgment on the grounds that the original Wills would result in adverse tax consequences. The Lawyers also raise the following issues: 1) whether the “substantial adverse interest exception” protects the Carlsons from adverse tax consequences; 2) whether the Carlsons have brought this suit too early, as the IRS has not yet assigned a tax penalty; and 3) whether the trial court improperly considered the opinion of an attorney hired by the Carlsons. We conclude the adverse interest exception does not protect the Carlsons, the Carlsons are not precluded from bringing their suit at this time, and that the Lawyers waived their argument relating to the opinion of the expert witness by not raising it before the trial court. We further conclude that the trial court properly found that the original Wills would result in adverse tax consequences, and affirm the trial court’s denial of the Lawyers’ motion for summary judgment on that issue. However, we conclude that the reformations did not effectively avoid potential adverse tax consequences, reverse the trial court’s grant of summary judgment on that issue, and remand for further proceedings. * * *Chaffew James Curtis Scott v. State of Indiana - "To find Scott guilty of both forgery and money laundering requires proof of at least one unique evidentiary fact. Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002). For Scott’s forgery conviction, the unique fact is that Scott uttered or presented a forged check to the bank to be deposited into his account. For Scott’s money laundering conviction, the unique fact is that Scott agreed to facilitate a broader money-laundering scheme, wherein he agreed to receive and deposit altered checks. In addition, Scott agreed to wire ninety percent of the money overseas, or in other words to facilitate the transaction involving criminal proceeds. Scott did indeed receive a check from Lau for $68,000 in furtherance of this scheme. Because each conviction was established by at least one unique evidentiary fact, we conclude that Scott’s convictions do not violate Indiana’s prohibition against double jeopardy. Conclusion Scott’s convictions are supported by sufficient evidence and they do not violate Indiana’s double jeopardy clause."
Conclusion We conclude that the trial court properly determined that the original Wills did not establish an ascertainable standard regarding a Trustee’s ability to invade the trust corpus; that the “adverse interest” clause does not protect the Trust from tax liability; and that the Carlsons did not bring this suit prematurely. Therefore, we affirm the trial court’s denial of the summary judgment motion on these grounds. We also conclude that the reformations did not comport with Indiana law, and that the trial court therefore improperly granted summary judgment. We therefore reverse the trial courts grant of summary judgment and remand for further proceedings.
NFP civil opinions today (5):
In Christy Gehrig v. Mary Jefferson (NFP), a 10-page, 2-1 opinion, Judge Mathais writes for the majority:
Christy Gehrig (“Gehrig”) appeals the Allen Superior Court’s denial of her motion for attorney’s fees under the qualified settlement offer statute. Concluding that a defendant may incur attorney’s fees even though a third party pays such fees on the defendant’s behalf, we reverse and remand for proceedings consistent with this opinion. * * *Termination of Parental Rights of T.W., I.W., and D.W., and Clinton Walden v. Gibson Co. Child Services (NFP) - termination, affirmed.
On appeal, Gehrig maintains that a party is not required to personally pay the legal costs for his or her representation in order to be eligible for an award of attorney’s fees under the QSO statute. Jefferson, on the other hand, contends that the word “incurred” in the statute must be narrowly construed to signify that only a party who has personally paid such attorney’s fees may recoup them under the statute. * * *
Our court recently interpreted the language “incurred by the offeror” in Scott v. Irmeger, 859 N.E.2d 1238 (Ind. Ct. App. 2007). In Scott, we determined that a defendant may incur attorney’s fees even though a third party pays such fees on his or her behalf, entitling the defendant to recover attorney’s fees under the QSO statute. * * *
In the case at hand, Jefferson refused to settle for any amount less than $7500. Yet, the jury awarded Jefferson no damages. Believing that the QSO statute would not apply to her case, Jefferson forced Gehrig to incur more than $13,000 in attorney’s fees in preparation for a jury trial. A primary purpose behind the QSO statute is to provide the offering parties with leverage to encourage the other party to seriously evaluate the merits of his or her case. Scott, 859 N.E.2d at 1241. Accordingly, we conclude that the trial court should have awarded attorney’s fees to Gehrig under the QSO statute. Reversed and remanded for proceedings consistent with this opinion.
KIRSCH, J., concurs. SHARPNACK, J., dissents with separate opinion [which begins:] By the happenstance of our case assignment system, this case was assigned to the same panel as Scott v. Irmeger, 859 N.E.2d 1238 (Ind. Ct. App. 2007), reh’g denied. In that case, the trial court awarded attorney fees to the defendant from the plaintiff. Here, the trial court refused to award attorney fees to the defendant. In each case, the defendant was represented by an attorney employed and selected by the defendant’s insurance company. I dissented in Scott, and I dissent here.
Henry Booker v. Bartholomew Co. Dept. of Child Services (NFP) - termination, affirmed.
NFP criminal opinions today (12):
Ind. Decisions - One (now two) today from the 7th Circuit [Updated]
In U.S. v. Jeremy D. Hagenow (ND Ind., Robert L. Miller, Jr., Chief Judge), a 7-page opinion, Judge Williams writes:
In this appeal, we consider for the second time Jeremy Hagenow’s sentence for his conviction of being a felon in possession of a firearm and ammunition. At the initial sentencing hearing, the government introduced an affidavit attached to an information to demonstrate that Hagenow’s prior conviction for criminal confinement was for a “crime of violence” within the meaning of the sentencing enhancement provided in U.S.S.G. § 2K2.1. Subsequent case law made clear that such an affidavit was not an acceptable way of showing that a conviction constituted a crime of violence. At the sentencing hearing on remand, the government introduced instead the plea colloquy transcript from Hagenow’s criminal confinement matter. Because we conclude that the district court properly allowed the government on remand to introduce, for the first time, the plea colloquy transcript in support of its argument that the conviction was for a crime of violence, we affirm. * * *In John M. Floyd v. State Financial Bank (ND Ind., Theresa L. Springmann, Judge), an 8-page opinion, Judge Kanne concludes:
We are satisfied that only after the initial sentencing did case law make clear that the affidavit should not have been utilized to demonstrate that Hagenow’s prior conviction constituted a crime of violence for the purposes of a sentencing enhancement. We believe this intervening case law warrants a departure from the general rule that the government does not receive multiple opportunities to present evidence in support of a sentencing enhancement. As a result, the district court did not err when it allowed the government to introduce the plea colloquy for the first time on remand.
The terms of the contract between Floyd and Star are unambiguous. The agreement does not require that Star exclusively consult with Floyd, and the contract does not require that Star pay for the preliminary ideas that Floyd presented. The district court was correct that Star did not breach its contract with Floyd when it used other vendors to implement the overdraft policy and sell its credit card portfolio. Accordingly, the judgment of the district court is AFFIRMED.
Ind. Decisions - Court of Appeals postings
Well, the Court of Appeals has already posted 16 opinions this morning, mostly criminal NFPs. As regular readers may recall, the ILB used to summarize these cases as soon as they were available.
But it was burned once too often by additional opinions being added by the Court throughout the day. Nothing wrong with that, but unfortunately these newly added cases are intermingled on the Court's site with the earlier added cases of the same date, so that picking them out required the ILB to log on often and visually compare the Court site list case-by-case with the cases the ILB had already summarized, a time consuming effort that the ILB now avoids by waiting until early afternoon to access the by-then hopefully completed list.
This also allows the ILB to arrange the opinions into the categories of For Publication and NFP (civil and criminal).
Ind. Law - A twist on: Do the changes to the sex offender law mean longtime homeowners must move? [Update]
Indiana taxpayers are apparently paying for at least six sex offenders to live in two Allen County motels indefinitely after they were forced to move out of the Fort Wayne Rescue Mission.[Update 6/8/07] A story today in the Fort Wayne Journal Gazette begins:
When legislators declared the Rivergreenway a park last year, it meant most convicted sex offenders could not live within 1,000 feet of it, in accordance with state law. The Rescue Mission is within 1,000 feet of a stretch of the greenway.
Law enforcement did not start enforcing that law until last week, however, and the sex offenders on probation or parole were forced to leave the shelter Friday.
According to two of those offenders and the Rescue Mission, the state is paying for the offenders’ accommodations for an undetermined period.
The Indiana Department of Correction said Thursday it has denied – for now – a request to pay for five sex offenders to live in a Fort Wayne motel for a month.
The state parole director said the request was denied in part because it was missing a form signed by the sex offenders agreeing to repay the state for their lodging when they find new housing and obtain a job.
“At this point, we have not approved any request for assistance for Fort Wayne or Allen County yet,” said Kenneth Whipker, director of parole, in Indianapolis. “The parole agent is by no means in a position to reach any type of agreement with an establishment. That has to come from the (Indianapolis) parole office.”
The request can be resubmitted, however.
Ind. Courts - "Typo prompts appeals court to order new murder trial" [Updated]
INDIANAPOLIS (AP) — An error in a typewritten response to jurors’ questions helped lead to an appeals court ordering a new trial for a murder defendant.[Update] This from Editorial Briefs in the Fort Wayne News Sentinel, headed "A Costly Error":
The state Court of Appeals in a 2-1 ruling Tuesday reversed Tony Perry’s 2006 murder conviction and his 70-year prison sentence.
Perry, 23, was convicted in Marion Superior Court of shooting two men — one fatally — in an attempted drug buy on Indianapolis’ east side in March 2005.
During deliberations for his July trial, the judge declared jurors had reached an impasse and allowed them to submit questions to resolve it. The jurors submitted four questions centering on testimony that could have implicated Perry as the triggerman.
The typewritten response to jurors’ questions inadvertently switched Perry’s name with that of a witness, and defense attorneys argued that made it appear that Perry had admitted to firing shots.
Chief Judge John Baker and Judge Ezra Friedlander decided that the trial judge acted too swiftly in declaring an impasse and that the typewritten error might have influenced the jury’s verdict, and voted to overturn the conviction.
Judge Terry Crone dissented, saying that Perry’s attorney should have objected to the typographical error at the time of the original trial.
“I find it extremely unlikely that the typo misled the jury and resulted in Perry’s conviction,” Crone wrote in a dissenting opinion.
Somebody in the Marion Superior Court system could probably use some proofreading skills. The Indiana Court of Appeals has reversed Tony Perry’s 2006 murder conviction and his 70-year prison sentence because of an error in a typewritten response to jurors’ questions. During deliberations, the judge declared that jurors had reached an impasse and allowed them to submit questions to resolve it. The jurors submitted four questions, and the typewritten response to the questions inadvertently switched Perry’s name with that of a witness, and defense attorneys argued that made it appear that Perry had admitted to firing shots. It’s probably a stretch to say that a jury that had heard all the trial testimony would be misled by a simple switching of names. But two of the three appeals court justices decided otherwise, proving that all those teachers who said, “Pay attention – you will need this later in life,” were probably right.
Ind. Gov't. - General Assembly sets priorities for summer studies
Niki Kelly of the Fort Wayne Journal Gazette reports today in a story that begins:
INDIANAPOLIS – Legislative leaders Wednesday determined which issues lawmakers will tackle in various summer study committees but held off on examining various problems surrounding the Indiana Toll Road lease.
The Indiana Legislative Council – headed by Senate President Pro Tem David Long, R-Fort Wayne – approved the other topics unanimously.
They include:Imposition of the death penalty on the mentally ill
Vehicle crashes involving commercial motor vehicles
Various annexation issues
The use of judicial mandates
Evaluation of economic development incentives enacted in 2001
Whether the Indiana Gaming Commission has the authority to grant permission for riverboats to operate on barges
Confined feeding operations
Ind. Courts - Update on: Evansville lawyer sentenced in misdemeanor case
An Evansville attorney accused of having a meth lab in his law office and apartment is now suspended from practicing law.Access the "Order of Interim Suspension from the Practice of Law" here.
The Indiana Supreme Court issued Brad Happe's suspension this week, effective immediately and until further order by the court.
Happe, 30, is facing charges for conspiracy to commit dealing in methamphetamine, a Class B felony, and dealing in methamphetamine, a Class B felony.
According to state court documents, the Supreme Court was asked in April to consider ordering an interim suspension after two-thirds of the Indiana State Supreme Court Disciplinary Commission reportedly voted Happe could pose a threat to his clients.
The Disciplinary Commission is responsible for investigating and prosecuting claims of misconduct against lawyers. The commission is also responsible for protecting lawyers against unwarranted claims of misconduct. * * *
Happe's case in Vanderburgh County continues. He rejected a plea agreement last month, and his attorney withdrew from the case.
Ind. Courts - More on: French Lick casino disputes continue to be aired in Orange Circuit Court
In this ILB entry from Jan. 10, 2007, a quote from the Bedford Times-Mail begins:
PAOLI — Lawyers outnumbered spectators Tuesday during a daylong Orange Circuit Court hearing further delving into the bitter dispute between the partners that developed the French Lick Springs Resort Casino.Now apparently they have. This story today by Kevin O'Neal in the Indianapolis Star reports:
Orange Circuit Judge Larry Blanton let both sides know he wished they could settle their differences outside the courtroom.
“Sometime, someplace, someone from Cook and someone from Lauth is going to have to sit down and bring some common sense and resolution to this matter,” the judge said. “What we have here is an economic and financial divorce in the making. Let’s either get on with it, or kiss and make up.”
A dispute over control of the French Lick resort and casino appeared to be over Wednesday when Bill Cook's casino company agreed to buy out its partner in the project.
Orange County Holdings, backed by Cook, will buy out Lauth Resorts and Casinos, a company headed by Bob Lauth, CEO of Lauth Property Group.
The disagreement between Cook, a medical supplier headquartered in Bloomington, and Lauth, one of the state's largest private developers, had seen lawsuits and injunctions from both sides.
The two became partners in 2005, winning the last of Indiana's 11 casino licenses after a group involving Donald Trump had to back out.
By April 2006, Lauth and Cook were having conflicts over the project. They turned to an arbitration panel as well as an Orange County judge.
Law - Valuable information on legal research
As someone who does a lot of legal research, I was surprised and pleased when reviewing the responses to this post by Eugene Volokh yesterday to find some hints and a number of links that were new to me. Check it out.
Law - "U.S. Attorneys Flock to Animal Law"
The National Law Journal, in a story by Lynne Marek, reports today in an account that begins:
The practice of animal law is expanding in the United States as animal rights advocates build up law school studies in the area and ramp up litigation.The ILB has had several past entries about animal law. See this ILB entry from Sept. 16, 2005, headed "Legal Aid for Animals", and this one from Sept. 3, 2006, headed "New Breed of Lawyer Gives Every Dog His Day in Court ".
"It's growing really fast, and faster than we can probably keep up with," said Jonathan Lovvorn, who leads the Humane Society of the United States' litigation department and has quadrupled his staff to 12 during the past two years.
Work by groups such as the Humane Society and the Animal Legal Defense Fund is encouraging student and attorney interest and funneling it into legal activity. Lovvorn's department has 40 cases pending around the country and has handled 100 since starting in January 2005.
Lawyers in the area say that the public is increasingly interested in staking out legal protections for animals, and that courts are more receptive to such arguments than they have been in the past. They also credit a rise in law school interest, buoyed by $7 million in support for animal law courses from a foundation set up by "The Price is Right" television show host Bob Barker.
University of Michigan Law School is likely to become the next recipient of a $1 million Barker grant, which would be the eighth since 2001.
Georgetown University Law Center is using its grant to fund a clinic that will give students credit for working with the Humane Society's litigators. The money will also be used for a fellowship at the society for a graduate and an animal law conference next year.
Harvard Law School, Columbia Law School, Duke University School of Law, Northwestern University School of Law, University of California at Los Angeles School of Law and Stanford Law School have also received Barker grants, said Henri Bollinger, a spokesman for the TV host. * * *
Bruce Wagman, an attorney in the San Francisco office of Chicago-based Schiff Hardin who brings cases for the fund, said he turned his attention nearly full time to animal law about three years ago because of rising demand. Owners setting up trusts for their pets to be taken care of after they die is an example of the kind of work that is increasing, he said.
Wednesday, June 06, 2007
Ind. Decisions - 7th Circuit issues one Indiana opinion today
Griffin and Yarden v. Sisters of Saint Francis (SD Ind., Richard L. Young, Judge), is a 12-page, per curiam opinion that begins:
Charles Griffin and Julia Yarden were fired from their jobs at Michaela Farm in Oldenburg, Indiana. The farm is owned and run by the Sisters of Saint Francis (“SOSF”), an order of Catholic nuns. Griffin, who had worked on the farm for nearly four years, and Yarden, who had been there for just a few months, believed that they were terminated because Yarden was pregnant, and they sued SOSF under the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (“PDA”). They lost on summary judgment, and on appeal, Griffin and Yarden—who proceed pro se—argue that they provided ample evidence that their supervisor knew of Yarden’s pregnancy, fired the couple for that reason, and offered pretextual reasons for the decisions. For the reasons that follow, we affirm the judgment of the district court.
Ind. Decisions - Court of Appeals issues 6 today (and 3 NFP)
For publication opinions today (6):
In GPI at Danville Crossing v. West Central Conservancy District , a 15-page opinion, Judge Najam writes:
GPI at Danville Crossing, L.P. (“GPI”), appeals from the trial court’s entry of summary judgment in favor of West Central Conservancy District (“the District”) on GPI’s claim for injunctive relief. GPI presents two issues for our review: 1. Whether the trial court erred when it concluded that the District’s classification of GPI as a “residential user” was not arbitrary and capricious. 2. Whether the trial court erred when it concluded, in effect, that the District’s method of calculating penalties was not contrary to law. We affirm in part, reverse in part, and remand with instructions. * * *
[I] In sum, GPI cannot show that the District’s classification of Settler’s Run was arbitrary and capricious. Indeed, GPI does not make any argument that the District lacked a rational basis for the classification. And the undisputed evidence shows that the District has classified all apartment complexes as residential users under Res. 02-02. See Brewer, 839 N.E.2d at 703 (noting “a consistently applied policy weighs against the notion that it is arbitrary”). Because Settler’s Run fits the District’s definition of residential user, it was neither arbitrary nor capricious for the District to classify it as such. * * *
[II] Here, we hold that the language in Indiana Code Section 36-9-23-31 is clear and unambiguous. The statute does not provide for compounding penalties. Rather, a single penalty of 10% is applied to the total amount of delinquent fees. * * *
But we conclude that there is nothing reasonable or logical about compounding penalties where the statute does not so provide. The legislature intended to penalize non-payment of sewage fees, but limited that penalty to 10% of the total delinquent fees. As such, the District is not authorized to invoke its residual powers to compound the statutory penalty on which the Legislature has spoken. We reverse the trial court’s grant of summary judgment on the issue of the amount of fees and the total penalty GPI owes the District. We remand for a hearing to determine the amount of delinquent fees owed, plus a 10% penalty on that total amount, plus reasonable attorney’s fees.
In Walter Thompson v. Mark Hays , a 9-page opinion, Judge Robb writes:
Walter Thompson sued Mark Hays, seeking a declaratory judgment that Hays was holding two lucrative offices and also seeking an order that Hays reimburse the county for the compensation he received for one of the offices during the time of dual office-holding, plus treble damages. Hays filed a motion to dismiss, which was granted by the trial court. Thompson appeals, raising the sole issue of whether the trial court properly granted the motion to dismiss. Concluding that Hays was not holding two lucrative offices because a sheriff’s deputy is an employee, not a public officer, we affirm the decision of the trial court. * * *In Green Tree Servicing, LLC v. Random Antics, LLC and Auditor/Treasurer of Delaware County, a 14-page opinion, Chief Judge Baker writes:
Our decision that deputy sheriffs are employees is consistent with both existing case law and legislative intent. As Gaskin noted, prior case law had already determined that city police officers are employees rather than public officers. 622 N.E.2d at 528. Gaskin itself decided that deputy town marshals are employees. Id. There is nothing significantly different about sheriff’s deputies and city police officers or deputy town marshals and no compelling reason to come to a different conclusion herein. Moreover, we note that the legislature has expressed a clear intent that sheriff’s deputies be considered employees. Indiana Code section 36-8-10-11(c)(1) provides that a county police officer may “be a candidate for elective office and serve in that office if elected.” Indiana Code section 5-6-4-3, which neither party cited in their briefs to this court and upon which we therefore do not rely, states that “[f]or purposes of Article 2, Section 9 of the Constitution of the State of Indiana, the position of appointed deputy of an officer of a political subdivision . . . is not a lucrative office.”10 Conclusion For the reasons stated herein, we hold that a sheriff’s deputy is not the holder of a lucrative office for purposes of Article II, section 9. The trial court’s decision dismissing Thompson’s complaint for failure to state a claim is, therefore, affirmed.
Today, we hand this case down along with Green Tree Servicing, LLC v. Auditor and Treasurer of Howard County, No. 34A02-0608-CV-679 (Ind. Ct. App. June 6, 2007), which involves the notice requirements of the distribution of surplus funds following a tax sale of real property. In this case, appellant-third-party-plaintiff Green Tree Servicing, LLC (Green Tree) f/k/a Conseco Finance Servicing Corp., appeals the trial court’s summary judgment order and quiet title decree in favor of appellee-counterclaim-defendant Random Antics LLC, (Random Antics), and appellees-third-party-defendants the Auditor of Delaware County (Auditor) and the Treasurer of Delaware County (Treasurer) (collectively, the appellees), regarding the right to possession of a mobile home. Specifically, Green Tree claims that the grant of summary judgment in the appellees’ favor was erroneous because Green Tree was entitled to possession of the mobile home. Moreover, Green Tree contends that its right to due process was violated when it was not provided with notice of the existence of tax sale surplus funds or of an individual’s claim for the surplus funds. As a result, Green Tree argues that the Auditor and Treasurer negligently disbursed the surplus funds.In Green Tree Servicing, LLC v. Auditor/Treasurer of Howard County - a 7-page opinion, Chief Judge Baker writes:
We conclude that the trial court erred in granting the appellees’ motion for summary judgment with regard to the possession of the mobile home. However, we affirm the trial court’s entry of summary judgment as to notice regarding the distribution of the tax sale proceeds, and conclude that the Auditor and Treasurer were not negligent in disbursing those funds. Thus, we reverse in part, affirm in part, and remand this cause to the trial court with instructions to enter judgment for Green Tree with regard to the possession of the mobile home and for further proceedings consistent with this opinion.
Today we hand this case down along with Green Tree Servicing, LLC v. Random Antics, LLC, and Auditor and Treasurer of Delaware County, No. 18A05-0605-CV-233 (Ind. Ct. App. June 6, 2007) (Random Antics), which involves the notice requirements of the distribution of surplus funds following a tax sale of real property.Robert Lynn Company, Inc. v. Town of Clarksville Board of Zoning Appeals and Town of Clarksville Plan Commission is a 25-page opinion in a case involving the following issues: "I. Whether the BZA’s conditional approval of Lynn’s application for a development standards variance from the local zoning ordinance is valid; II. Whether the BZA’s subsequent revocation of its conditional approval is valid; and III. Whether the Plan Commission should be mandated to approve Lynn’s application for primary approval of an amended plat." The conclusion: "To reiterate, we reverse the trial court’s judgment on the Town’s motion to correct error in part and hold that the BZA issued a valid conditional approval of Lynn’s application for a development standards variance from the zoning ordinance. We affirm the trial court’s judgment in part and hold that the BZA’s revocation of its conditional approval is void. We also hold that any references in Clarksville’s zoning or subdivision control ordinances to the Plan Commission’s authority to grant variances from the subdivision control ordinance are void and ineffective. We remand for the Plan Commission to conduct a hearing and issue a written decision stating its reasons for approving or disapproving the variance conditionally granted by the BZA. If the Plan Commission approves the variance, it may consider Lynn’s application for primary approval of an amended plat for the R-1 Property. We affirm the trial court’s conclusion that mandate is an inappropriate remedy with respect to the plat approval process."
In this case, appellant-plaintiff Green Tree Servicing, LLC (Green Tree), appeals the trial court’s grant of appellees-defendants’ Howard County Auditor (Auditor) and Howard County Treasurer’s (Treasurer) (collectively, the appellees) motion to dismiss Green Tree’s claim against the appellees regarding the disbursement of tax sale surplus funds to a third party following a sale of real estate. As in Random Antics, Green Tree argues that its due process rights were violated when it was not given notice of the existence or establishment of a tax sale surplus fund. Thus, Green Tree asserts that the appellees were negligent in distributing the tax sale surplus funds to delinquent taxpayers rather than to the mortgagee of record. Concluding that the appellees’ motion to dismiss was properly granted, we affirm the judgment of the trial court.
Mustafa Nur v. State of Indiana - "Moreover, the record as a whole does not indicate that Nur was unable to effectively participate in his defense because of the alleged difficulty with English. Nur participated in numerous question-and-answer sessions with the court in English. Nur’s responses in those sessions were “responsive” and “indicative of his ability to speak English.” See Luna, 772 F.2d at 451 (finding that a defendant did not have a language difficulty significant enough to require an interpreter when, other than having some syntactical errors, his testimony was “very responsive” and “indicative of [his] ability to speak and understand English.”). Additionally, and as noted by the trial court in its denial of Nur’s motion for a new trial, neither Nur nor his attorney ever requested an interpreter; Nur communicated with the court in English, both orally and in writing; and the evidence at trial showed that Nur communicated with native English speakers in English when orchestrating the crime. Thus, based on the record, we cannot say that the court had notice that Nur had a significant language difficulty. As such, the court’s failure to appoint an interpreter on its own motion was not fundamental error. See, e.g., Martinez v. State, 451 N.E.2d 39, 41 (Ind. 1983) (holding that it was not error for a trial court to have failed to provide, sua sponte, a competent interpreter where counsel did not request one prior to trial and defendant spoke and understood English well enough to conversantly discuss the crime with a police officer and had no trouble answering questions at the sentencing hearing). We therefore affirm the trial court’s denial of Nur’s motion for a new trial.
 There is evidence that Nur had some difficulty understanding certain legal concepts and issues. We are not prepared to hold, however, that this difficulty was due to Nur’s inability to speak or understand English. We agree with the State’s observation that even native English-speaking non-lawyers have difficulty understanding the criminal justice system."
NFP civil opinions today (2):
In the Matter of the Paternity of M.D.D.; Anne McNevin v. David Duncan (NFP) - "Appellant-Petitioner Anne McNevin (“Mother”) appeals a paternity court order that awarded custody of her child, M.D., to Appellee-Respondent David Duncan (“Father”), apportioned costs of the custody evaluation, and determined the child support arrearages of each parent. We affirm in part, reverse in part, and remand."
Jearldine Heffernan v. Bruce B. Heffernan (NFP) - "Mother argues that Father failed to meet his burden of proving that Zachary was emancipated. Concluding that the trial court properly determined that Zachary was emancipated under subsection (a)(3) of the emancipation statute, Indiana Code § 31-16-6-6, because Zachary was eighteen years old, was not attending nor enrolled in school for a four-month period of time, and was capable of supporting himself through employment, we affirm the judgment of the trial court."
NFP criminal opinions today (1):
Law - "Wellpoint’s Lawyer-CEO Takes Reins, Faces Challenges"
The WSJBlog this morning features Indianapoplis-based WellPoint's new CEO, Angela Braly. The entry begins:
We kvelled in February when WellPoint named lawyer Angela Braly as its CEO, making it the largest U.S. company run by a woman. Now just days into taking over the reins, the 45-year-old Braly is having to flex those lawyer muscles big time.
Earlier this week, two days before she officially assumed the CEO post, Braly and the outgoing chief asked WellPoint’s well-regarded CFO, David Colby, to resign for violating the health-insurance giant’s code of conduct. What led to his departure? It’s unclear, but the company says the violation wasn’t illegal and didn’t affect the company’s business. The WSJ reports that Colby’s entangled personal life might have had something to do with his being asked to step down.
Courts - More on: What is left for the Supreme Court to decide this term?
Updating the ILB entry from June 3, Marcia Coyle of The Nation Law Journal has a very comprehensive survey today of what the expect in the few remaining weeks of this term. She also looks at the "most significant rulings thus far."
And SCOTUSblog has just announced a new edition of its StatPack, with added features. But to go directly to one feature, the 9-page Outstanding Cases for OT06 (October Term 2006 - Pending Merits Cases), click here.
Ind. Law - More on: Do the changes to the sex offender law mean longtime homeowners must move?
Following up on its stories last month on the sex offender law, the Lafayette Journal & Courier has an editorial today headed "Loopholes in offender laws will be tried." A few quotes:
Most parents will go to any extent to keep their children safe, especially from the threat of sex offenders.
But just how far should we restrict child sex offenders' rights? * * *
In Tippecanoe County, the prosecutor's office is following a state law, prohibiting sex offenders from living within 1,000 feet of a school, public park or youth program center. The county is enforcing the law, believing that it requires offenders to move, regardless of whether they committed the offense before or after July 1, 2006, when the law took effect.
Legislation in other states has met different fates.
In Iowa, sex offenders convicted of crimes involving children are barred from living within 2,000 feet of a school or day care center. A group of sex offenders challenged Iowa's legislation, claiming it was unconstitutional but the state's appeals court allowed the law to stand.
However, in Missouri, a Circuit Court judge in Cole County overturned a 2006 law that forced sex offenders to move if they lived near a school, even if they moved in before the change took effect. * * *
And just how often do we have to force sex offenders to move in order to keep our peace of mind?
Take, for example, a sex offender who moves into a rural area and lives peacefully without breaking the law. Years later, sprawl descends around his home, bringing with it new neighbors, a new school and a new park.
Should that sex offender be forced to move, years after paying his debt and staying out of trouble?
The law would seem to say yes.
We support laws that protect our children wisely. We fear this one leaves too many loopholes for exploitation, by both prosecutors and the predators.
One thing, however, is certain about this type of law: Whether it's Iowa's, Indiana's or another state's version, it will surely wind up in the Supreme Court.
Ind. Courts - "Clark, Floyd courts receive interpreter grant"
Jennifer Rigg of the New Albany News and Tribune reports:
Courts in Floyd and Clark counties received a grant from the Indiana Supreme Court which will allow them to hire interpreters for the area’s growing Spanish-speaking population without dipping into the counties’ general funds.A release on the Indiana Courts website begins:
Floyd County received $3,500 that will go into a fund from which all three courts can draw to hire and pay interpreters. Clark County received $2,500. * * *
Floyd County Superior Court Judge Susan Orth said her court applied for the grant for the second year in a row because it was seeing a greater need for interpreters.
“On average, we have four to five cases a month where we would need an interpreter,” Orth said, adding that they use interpreters not only for the Spanish-speaking population, but also for those with hearing impairments. “(This grant) is terribly important. It alleviates a burden that the taxpayers would have to pay because the only other avenue would be to have the money taken from (Floyd County’s) general fund.
Orth went on to say the Indiana Supreme Court had been “very progressive” in its effort to aid counties in hiring interpreters, and also has provided each court with a person’s constitutional rights recorded in Spanish on a CD.
“There’s a lot of things that we can piece together to try and accommodate the particular individual,” Orth said.
On average, Judge Orth and Clark County Superior Court 2 Judge Cile Blau — whose court authored the grant for Clark County — said interpreters are paid $35 an hour for their services. Floyd County often will prorate that amount for intervals of 15 minutes. Clark County requires a minimum of two hours of service, but also pays mileage.
“In the last five or six years, we’ve started seeing more Hispanic individuals in our court,” Blau said, “which, I think, is pretty consistent with the population numbers that we’re seeing.
“We’re very grateful to receive (this money) because the county is strapped for funds,” she continued. “So we appreciate the ability to get these monies.”
The Indiana Supreme Court has awarded $168,250 in Court Interpreter Grants that will be used in 40 counties to help local trial courts break down language barriers faced by non-English speaking litigants, Chief Justice Randall T. Shepard announced today.
The Supreme Court received 36 applications this year, including two that involved multi-county blocks.
Tuesday, June 05, 2007
Ind. Decisions - "Does Judge Posner Write Too Much?"
That is the question posed today by the blog, Decision of the Day, referencingJudge Posner's today opinion in Harzewski v. Guidant Corp., which the ILB earlier summarized here (or scroll down one), D of the D writes:
Anyway, Judge Posner writes and writes and writes, often raising and addressing issues that go well beyond what is necessary to decide a particular appeal. Usually his Seventh Circuit colleagues go along for the ride. But not today. In an appeal of a district court decision dismissing an ERISA case for lack of standing, the Seventh reverses, explaining that the plaintiffs do in fact have standing. But Judge Posner can’t stop there. He vacates and “remand[s] with directions” about how the district court should deal with the merits of the action. Indeed, after “clear[ing] a lot of brushwood” on the standing issue, the second half of the opinion deals with all kinds of merits issues including an analysis of how damages should be calculated in ERISA actions, speculation about whether the plaintiffs’ theory of liability will hold water, and even an aside on whether the plaintiffs have a claim for securities fraud against the defendant.
That’s all a bit to much for Judge Ripple, who writes a short concurrence agreeing with the majority’s fine reasoning on the standing issue, but noting that the Court should simply remand without commenting on the merits.
Ind. Decisions - 7th Circuit decides two Indiana cases today
In Harzewski, Erisa v. Guidant Corp (SD Ind., Larry J. McKinney, Chief Judge), a 17-page opinion, Judge Posner writes:
October 2004 to November 2005 was a period, prior to Boston Scientific’s acquisition of Guidant (which took place in April 2006), when according to the complaint the price of Guidant stock was inflated by a fraud committed by the company’s management. The alleged fraud consisted of the concealment of information concerning defects in the company’s implantable defibrillators, which accounted for nearly half its revenues. Very shortly after Boston Scientific’s acquisition of Guidant, the full gravity of Guidant’s problems came to light and the revelation contributed to the drop in the price of Boston Scientific stock from $22.49 when Boston Scientific bought Guidant to $16.33 on May 3 of this year.In Abstract & Title Guaranty Co. v. Chicago Insurance (SD Ind., John Daniel Tinder, Judge), a 9-page opinion, Judge Kanne writes:
The district court dismissed the complaint on the ground that the named plaintiffs have no “standing” to bring this suit because they retired from Guidant and cashed out their pension benefits before the filing of the amended complaint, and so ceased to be participants in the pension plan. The lawyers for the class could, to keep the class action alive, have substituted as named plaintiffs members of the class who remained participants in the plan—current employees. But being unwilling to abandon the claims of class members in the situation of the named plaintiffs, they decided instead to appeal the district court’s ruling. * * *
So the case must go back to the district court. But as its first order of business, that court will have to take a very careful look at the plaintiffs’ theory of how they were injured. * * *
VACATED AND REMANDED, WITH DIRECTIONS.
RIPPLE, Circuit Judge. I am pleased to join that part of the panel’s fine opinion that holds that the district court erred in dismissing this case for lack of standing. In my view, it would be far better, as a prudential matter, to refrain from commentary on the merits at this time. Therefore, I respectfully decline to join that part of the panel’s opinion that addresses the merits of the case.
This diversity case comes to us after entry of summary judgment in favor of the defendant. The plaintiff appeals. For the reasons set forth below, we affirm. * * *
In summary, a jurisdiction might choose to have a law that prevents an insurer from interpleading the policy limit. Such a law might require that insurers pay claims one at a time in the order that they are filed, or perhaps find some other way to prioritize the claims. Some jurisdictions have chosen such a rule of law, but the Indiana Court of Appeals in Mahan indicates that Indiana is not one of them. Furthermore, a company might choose to buy an insurance policy that requires the insurer to defend even after the policy limits are met, or to prioritize legal fees so that they are paid before other claim expenses and damages. ATG did not choose to buy such a policy, but instead asks the courts to write that requirement into its contract after the fact. We decline to do so. In light of these facts, we agree that summary judgment in favor of CIC was proper on the question of breach of contract. * * *
ATG also argues that CIC has breached its duty of good faith throughout these proceedings. * * * We find ourselves, once again, instructed by the recent decision in Mahan. * * * There, like here, “after investigating the facts and circumstances surrounding the accident, [the insurer] determined that [the insured] was [liable], and . . . most likely would be subject to multiple claims, the total of which would meet, if not exceed, the limits of the policy . . . . [The insurer] did not breach its duty of good faith. ” Mahan, 862 N.E.2d at 677. We see no evidence that leads us to a contrary conclusion in this case.
Ind. Decisions - Court of Appeals issues 5 today (and 5 NFP)
For publication opinions today (5):
In The National Mutual Insurance Company, et al. v. Jason Curtis , a 13-page opinion, Judge Riley writes:
National Mutual raises two issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court erred by concluding that National Mutual’s homeowner’s policy, issued to the Curtises, provided coverage against Beaulieu’s claim for injuries under the personal liability provisions because the policy did not clearly express an exclusion of liability coverage for injuries arising out of the ownership or use of a trampoline. * * *In Mari O. Hunter v. Anne Klimowicz, a 9-page opinion (including a concurring opinion) Chief Judge Baker writes:
[H]ere, the confusion does not lie in the policy’s language but rather in the structural ambiguity where the liability coverage and exclusions are inserted in the main policy, with an additional exclusion clause buried in a completely unrelated section fourteen pages later. The structural complexity of the policy as a whole is such that the disputed clause is obscured and a reasonable person would not realize its existence and application, regardless of his duty to read the policy. Accordingly, we hold as a matter of law that the placement of the trampoline exclusion is inconspicuous, amounting to an ambiguity in the policy. Therefore, we affirm the trial court’s Order. See AutoXchange.com, Inc., 816 N.E.2d at 47.
We reiterate that the result reached today does not do violence to the legitimate and understandable interests of insurers in limiting their liability coverage. However, if an insurance carrier desires to exclude coverage, this should be spelled out for the policyholder in clear and unmistakable language with conspicuous and plain positioning.
CONCLUSION Based on the foregoing, we conclude the trial court properly found that National Mutual’s homeowner’s policy, issued to the Curtises, provided coverage against Beaulieu’s claim for injuries under the personal injury provisions because the policy did not clearly express an exclusion of liability coverage for injuries arising out of the ownership or use of a trampoline.
Appellant-defendant Mari O. Hunter, individually and as trustee of the Anne Klimowicz Irrevocable Trust (the Trust), appeals from the trial court’s order rescinding the Trust. Hunter raises a number of arguments regarding the rescission of the Trust, focusing on allegations of undue influence and capacity. Finding that Anne lacked proper capacity to create the Trust, we affirm the judgment of the trial court. * * *In Norwood Promotional Products, Inc., et al. v. Thomas B. Roller Judge Darden writes:
We are persuaded that this testimony from Anne’s treating physician establishes that she was not of sound mind and did not have a reasonable understanding of the nature and effect of the act and the terms of the Trust at the time of its creation. Although Anne’s statements recorded at the time of the Trust could be viewed as evidence of her mental capacity, we find them to be ambiguous and note that, at a later date, she could not recall the meeting at all and was perplexed when shown the documents bearing her signature. Under these circumstances, we conclude that the trial court properly ordered that the Trust be rescinded.
DARDEN, J., concurs. ROBB, J., concurs in result with opinion [which begins:] I concur in the result reached by the majority, but write separately to emphasize an important distinction between this case and the typical estate case regarding testamentary capacity.
This case comes to us on an interlocutory appeal. Norwood Promotional Products Holdings, Inc. * * * appeal the trial court’s denial of their motion to compel arbitration of tort and securities fraud claims alleged by Thomas Roller (“Roller”) under the Indiana Securities Act. We affirm.In Tony Perry v. State of Indiana , a 2-1 opinion, Chief Judge Baker writes:
ISSUE Whether the trial court erroneously denied Norwood’s motion to compel arbitration of Roller’s alleged complaint for securities fraud and tort claims. * * *
Norwood correctly notes Indiana’s strong policy favoring enforcement of arbitration agreements, and the general view that arbitration agreements should be interpreted in light of that policy. Chesterfield Management, Inc. v. Cook, 655 N.E.2d 98, 102 (Ind. Ct. App. 1995). However, it is not the appellate court’s policy to extend arbitration agreements by construction or implication. Mislenkov, 743 N.E.2d at 289. “The arbitration promise is itself a contract.” Smith v. Meijer, 858 N.E.2d 693, 693 (Ind. Ct. App. 2006). Parties are bound to arbitrate those issues that by clear language they have agreed to arbitrate. Safety Nat., 829 N.E.2d at 1000 (citing Mislenkov, 743 N.E.2d at 289). Herein, the parties’ contract is unambiguous; thus, we give the words used in the contract their plain and ordinary meaning. Accordingly, we find that Norwood has not demonstrated that the parties agreed to submit securities disputes to arbitration.
Appellant-defendant Tony Perry appeals his convictions for Murder, a felony, and Aggravated Battery, a class B felony. Specifically, Perry argues that (1) the trial court erroneously declared the jury to be at an impasse and (2) a scrivener’s error in the trial court’s response to a jury question resulted in “incalculable” prejudice. Concluding that the trial court erroneously declared the jury to be at an impasse and that the scrivener’s error was prejudicial, we reverse the decision of the trial court and remand this cause for a new trial. * * *Gregory John Long v. State of Indiana - "Gregory John Long appeals his convictions, after a trial by jury, on one count of corrupt business influence, a class C felony, and two counts of theft, as class D felonies, and the sentence imposed by the trial court thereon. We affirm."
We emphasize that a trial court’s typographical error does not necessarily mandate reversal. * * *
Here, however, the evidence of Perry’s guilt was not overwhelming—as demonstrated by the jury’s extensive deliberations—and we cannot say that it would have been improper for the jury to have acquitted Perry because the jury notes make it clear that the jurors were uncertain about the evidence presented at trial. In sum, we cannot say that the trial court’s error did not influence the jury’s verdict, thereby prejudicing Perry and resulting in seventy years of imprisonment. For that reason, we reverse the trial court’s conviction and remand this cause for a new trial. * * *
FRIEDLANDER, J., concurs. CRONE, J., dissents with opinion. [which begins:] “It has been held repeatedly that a defendant is not entitled to a perfect trial, but is entitled to a fair trial, free of errors so egregious that they, in all probability, caused the conviction.” Averhart v. State, 614 N.E.2d 924, 929 (Ind. 1993). I respectfully disagree with the majority’s conclusion that the trial court’s typographical error in its response to Jury Note #4 is so egregious that it warrants the reversal of Perry’s convictions. Therefore, I dissent.
NFP civil opinions today (2):
Mark Lemerick v. Jerry Johns, et al. (NFP) - "The gravamen of Lemerick’s argument is that the trial court erred by concluding that the appellees did not have a fiduciary relationship with Landis that was based on constructive fraud. Finding that a fiduciary relationship did not exist between the appellees and Landis, we affirm the judgment of the trial court."
NFP criminal opinions today (3):
Ind. Gov't. - More on: "But by resigning before July 31, Smith also qualifies for lifetime, state-subsidized health insurance"
Updating this ILB entry from earlier this morning, see also: this entry this morning from Mitch Harper's blog, Fort Wayne Observed and This entry this morning from Gary Welsh of the blog Advance Indiana.
See also this March 4th ILB entry titled "Ind. Gov't. - Senate passes a non-transparent and convoluted pay raise bill," which included this discussion:
SECTION 12 amends IC 5-10-8-8, which deals with group health insurance for public employees, including the controversial subsections (f) and (j) concerning health care for legislators. Rather than repealing IC 5-10-8-8.4, which provides that the legislative health care benefit may not be revoked except by the law passed by the General Assembly:IC 5-10-8-8.4. Revocation or alteration by employerSB 401 adds a new provision to the end of section 8:
Sec. 8.4. Except as provided by an enactment of the general assembly, an election by an employer under:
(1) section 8(f) of this chapter concerning the payment of a retired employee's premium; or
(2) section 8(j) of this chapter concerning Medicare coverage and program eligibility;
may not be revoked or altered at any time by the employer or a subsequent employer to the detriment of a person entitled to benefits under section 8.2 of this chapter.
As added by P.L.184-2001, SEC.6.(l) The president pro tempore of the senate and the speaker of the house of representatives may not elect to pay any part of the premium for insurance coverage under this chapter for a former member of the general assembly or the spouse of a former member of the general assembly whose last day of service as a member of the general assembly is after July 31, 2007.Q - What does all this mean? A - It seems to mean that the existing health plan remains in place for retired legislators, their spouses, and employees, but legislators (and their spouses) retiring after this July will not be covered.
Q- Didn't the leadership revoke the plan last year - does this extend it another year? A - I don't know.
Ind. Decisions - Warrick County court reporter finishes transcript [Updated]
The transcript is in. (This is an update to the ILB entry from earlier this AM.)
Ryan Kircher of WHAS11News out of Louisville reported at 9:43 AM in the Camm-Boney Murder Trials Blog:
Mary Kennedy, the court reporter for the Warrick County Superior Court #2 in Boonville, Indiana, submitted the transcript of the second David Camm murder trial late yesterday afternoon.[Updated] Here is an update now filed by the LCJ reporting the filing.
By filing the transcript before the end of the business day yesterday, Kennedy effectively avoids potential legal charges. The Indiana Supreme Court granted her three extensions to file the transcript of the two-month trial, which was expected to weigh in at roughly 10,000 pages.
In the Indiana Supreme Court's last order, issued Friday, the court said that if Kennedy failed to meet yesterday's deadline, she would "be ordered to appear before this court in person to show cause why she should not be held in contempt."
The transcript was completed at the last minute. As of 4:00 yesterday afternoon, it had yet to be filed. Kennedy was able to meet the deadline because the filing office was open late yesterday due to traffic court.
Now that the transcript has been filed, the clock begins ticking again -- this time for the defense team. Starting today, Camm's attorneys have 30 days to file the official brief outlining their arguments for appeal.
Katharine Liell, Camm's lead defense attorney, has previously indicated that she herself will ask for a 90-day extension to file this brief.
Courts - "Supreme Court Declines Case of Ala. Leukemia Victim's Widow"
From an AP story reported today at Law.com:
The widow of a leukemia victim failed to persuade the Supreme Court Monday to consider allowing her to sue oil companies over her husband's exposure to a toxic chemical, a case her lawyer calls a legal "Catch 22" in Alabama.
The justices without comment declined to take up the case of Martha Jane Cline, who is trying to hold the companies accountable for her late husband's health problems. Jack Cline, of Vance, Ala., died in January.
The Alabama Supreme Court ruled that he waited too long to sue, even though Cline didn't know he was sick until after the deadline to sue had passed. Cline's attorney, Robert Palmer, who has filed many suits in other states over exposure to toxic chemicals, said all other states have a time limit that begins when a person learns of an illness.
Alabama courts have held there is a two-year window period to file a lawsuit from the last exposure to toxic chemicals, but they also have held there must be an injury before a lawsuit is filed. There was never a time when Cline, a longtime chemist who blamed exposure to benzene for his illness, could have filed suit because the two-year deadline passed in 1989 and he wasn't diagnosed with the disease until 1999. * * *
The case is Cline v. Ashland, Inc., 06-1329.
Law - "Test Case Linking Vaccines and Autism Reaches Federal Court"
Tony Mauro of The Legal Times has a long and very informative story today headed "Test Case Linking Vaccines and Autism Reaches Federal Court." Here are a few quotes:
On June 11, the case of Michelle Cedillo * * * goes before an extraordinary tribunal assembled by the U.S. Court of Federal Claims. Its goal is to determine, for the first time in a judicial proceeding, whether the combination of certain vaccines and thimerosal, a mercury-based vaccine preservative, can cause autism -- a set of disorders that is gaining attention as more and more children are diagnosed, as many as one in 150 children born in the United States. The government has long denied such a link exists. * * *
Cedillo v. Secretary of Health and Human Services was picked as a test case from more than 4,800 autism claims that have been filed with the little-known court, which sits anonymously overlooking Lafayette Square near the White House. The outcome of the case, the court hopes, will guide the disposition of other claims and prevent the need for repetitive discovery and expert witness testimony.
The determination also could shake -- or bolster -- public confidence in the vaccine system and affect autism litigation worldwide.
During three weeks of testimony, the hotly contested issue of causation will be advanced and picked apart by expert witnesses. A sign of the emotions infused into the case: The court sealed the names of the witnesses, for fear they would be harassed.
The trial before three special masters will take place in a 400-seat courtroom that may be filled with parents and their lawyers, as well as lawyers and lobbyists for the pharmaceutical industry, which has a huge but indirect stake in the case. Special arrangements have been made to enable out-of-town parents to listen to the trial by phone, and transcripts and audio of the trial will be made available online. * * *
The question of whether thimerosal leads to autism did not surface widely until the late 1990s. Parents and autism groups now point angrily to both government and drug company documents that show questions were being raised years earlier about the safety of the mercury preservative. Environmentalist Robert F. Kennedy Jr. wrote a controversial Rolling Stone article in 2005 accusing the government of "whitewashing" evidence of thimerosal's effects.
But the government, while phasing out the use of mercury preservatives in most vaccines, still says there is "no evidence of harm" from thimerosal. A 2004 study released by the Institute of Medicine, founded as part of the National Academy of Sciences, said the accumulation of scientific evidence "favors rejection of a causal relationship."
For many, that closed the debate, but for parents, bolstered by new studies that reach the opposite conclusion, as well as their own experiences, the connection is still apparent. Future test cases before the claims court will examine whether thimerosal alone, or the MMR vaccine alone, can also cause autism.
The Cedillo trial is a crucial moment not only for the causation issue but for the vaccine compensation system, devised by Congress in 1986 to limit the liability of vaccine makers.
Broad-based vaccination is one of the success stories of the 20th century, effectively killing off diseases ranging from smallpox to polio that used to afflict millions. The compensation system was meant to handle the rare but inevitable injuries that result from allergic and other reactions to vaccines. Under the 1986 law, instead of suing manufacturers, those injured by vaccines file claims against the government in the federal claims court -- which some call the "Vaccine Court."
Special masters acting as trial judges hear individual cases and award damages once a causal connection has been made. Pain and suffering damages are capped at $250,000, but lost wages, medical and educational costs, and lawyers' fees can all be compensated. Awards can top $1 million, and more than $750 million has been paid out since the program began.
But nobody envisioned the torrent of autism claims. * * *
If causation is shown, where will the money to compensate victims come from? Under the program, patients pay a 75 cent excise tax for each vaccine, which adds $200 million to a compensation fund each year, for a current total of $2.5 billion.
So the autism litigation, even if successful, won't actually cost the pharmaceutical industry a dime. And no drug-company lawyer will have a formal role in the upcoming trial. Yet the drug companies will be watching.
One concern the companies have is the effect the case might have on public confidence in vaccines generally, says Randolph Moss, a partner at WilmerHale who advises pharmaceutical industry clients on vaccine issues. "This trial is a big deal from a public health perspective," Moss says. "There could be very dramatic public health consequences if the judges were to conclude, despite the strong scientific evidence to the contrary, that there is some connection between vaccines and autism or similar neurological disorders."
Ind. Law - "Attorney picks up where AG leaves off"
Columnist John Ketzenberger of the Indianapolis Star writes today:
Attorney Irwin Levin has another class-action lawsuit brought under the state's deceptive-consumer-sales statute.Emphasis added. See this May 27th ILB entry titled "Is It OK for Lawyers to Copy Complaints?"
Levin has the business because Attorney General Steve Carter's office chose not to pursue a claim against computer-maker Dell on behalf of the state's consumers.
Levin, who has gone to bat many times for consumers, sees a winnable case where Carter's office didn't. These kinds of judgment calls happen all the time. But Indiana's consumer-protection law is considered among the nation's weakest. New York and California, for instance, are considered much more consumer-friendly. * * *
Levin is not too proud to note his case is ripped right from the brief Cuomo filed in New York on behalf of the Empire State's residents. After Girolami failed to persuade Carter's office to take the case, another attorney recommended Levin. It's not the first time he has gotten a case the state refused.
Is Carter doing enough to protect the state's consumers?
Carter sued Walgreen in 2005, alleging the pharmacy altered prescriptions to boost Medicaid payments. And Indiana has joined some other states' consumer cases.
Carter contends his office does the best it can with the law it has to work with. But the only recent change to Indiana's consumer-protection law was to increase the penalty for violations to $5,000 each. Carter got that done in the General Assembly.
We won't know what kind of a consumer-protection crusader Carter could be until he pushes a tougher law.
Until then, it's up to Levin -- who is following the lead of New York's attorney general.
Ind. Gov't. - "But by resigning before July 31, Smith also qualifies for lifetime, state-subsidized health insurance"
John Byrne of the Gary Post-Tribune reports today:
EAST CHICAGO -- State Sen. Sam Smith wants to pass his legislative seat to his wife.Ed Feigenbaum writes this morning in Indiana Daily Insight:
Smith, D-East Chicago, said he will resign, effective Wednesday.
He said he has received commitments from Democratic leaders in East Chicago and Hammond to support the candidacy of his wife, Diane Smith, in the precinct caucus to name his successor.
Smith said he wants to focus on running his business, Divinity Funeral Home, which is preparing to open a larger location in East Chicago.
But by resigning before July 31, Smith also qualifies for lifetime, state-subsidized health insurance.
The General Assembly passed a law this spring, eliminating the insurance package as part of a pay increase for legislators, but the new law has not yet taken effect. * * *
In 2004, Smith won the Democratic nomination on his way to another term despite a scandal touching him.
The senator pleaded guilty that year to misdemeanor charges of failure to remit sales tax in connection with his funeral home.
The transgression came to light during an investigation of misappropriated Build Indiana funds Smith helped secure for a proposed women's shelter in East Chicago which was never constructed.
Yet Smith resisted calls for his resignation then.
Now, he said, the time is right.
"(Diane) will do a great job, and I need to be here now," he said.
Some folks tell us to see a spate of additional retirements announced before the July 31 take it (and leave) or leave it deadline for the lucrative old legislative health insurance benefit package.Patrick Guinane of the NWI Times reports:
State Sen. Sam Smith, D-East Chicago, said he is resigning to focus on an expansion of his family's funeral home and wants his wife to serve the remaining 18 months of his term.
A senator since 1998, Smith faced a potential re-election roadblock next year. He pleaded guilty to tax evasion for failing to pay sales tax on his East Chicago funeral home in 2004. And a state law approved a year later prohibits those charged with a felony but convicted of a misdemeanor, as Smith was, from seeking public office.
He is asking fellow Democrats to select his wife, Diane Smith, to complete the remaining 18 months of his term.
"I was going to run and let the chips fall where they may," Smith said Monday. "This (resignation) was all based on me getting the larger (funeral home)."
Smith said his resignation is effective Wednesday.
Ind. Courts - "Officials make progress to keep federal court in Terre Haute"
Howard Greninger of the Terre Huate Tribune-Star reports today in a story that begins:
The General Services Administration still is evaluating proposals for new Terre Haute locations for the federal offices that will move from the building at Seventh and Cherry streets, a GSA spokesman said Monday.
David L. Wilkinson, spokesman for the GSA, said Monday that awarding contracts for new locations of federal tenants remains a most important task for the government.
In March, 2006, the GSA published a notice saying it wants to lease about 12,500 to 15,400 square feet of space for the courts and other tenants.
“The progress is that we are currently evaluating proposals that have been submitted as new locations for those tenants,” Wilkinson said. “No anticipated decision date has been stated, as yet.”
The building has been identified as a security risk since the terrorist attacks of September 2001, prompting the need for a new federal court facility. The current federal building lacks set-back distances from vehicular traffic.
A memorandum of understanding has been signed by Indiana State University, the U.S. Postal Service and the U.S. General Services Administration to allow ISU eventually to obtain the building.
More than $6 million in federal funds have been secured for work on the building. In 2005, ISU officials estimated the total project at $18 million, with ISU to obtain more than $12 million in private funding to convert the building for use by its College of Business.
The GSA’s lease on the federal building, which includes the courts, expires in September 2009, however the federal building could be vacated by late 2008. The building is now owned by the U.S. Postal Service.
The tenants are the federal courts, a U.S. Marshal’s office, federal adult probation office and an FBI office. The Postal Service will continue to have space in the existing building, Wilkinson said.
Ind. Courts - Wells County closer to securing Courthouse
Rebecca S. Green of the Fort Wayne Journal Gazette reports today:
BLUFFTON – More than 10 years after Wells County officials discussed tightening security at the county Courthouse, they revisited the issue Monday, coming closer to installing metal detectors and other security devices.Here is a list including some earlier ILB entries on courthouse security and discussions of the availability of $50,000 Homeland Security grants.
With a vote of 2-1, the Wells County commissioners passed a resolution on to the County Council asking the council to support the findings of a Courthouse security committee.
Created in 1995, the committee was formed to look into providing security for the four-story building – which has eight exterior doors that are always opened.
But nothing much has happened with the committee since 1995, and the issues have not gone away, Superior Judge Everett Goshorn said.
In recent years, county employees have been threatened on rare occasions, including once with a gun, Goshorn said.
A new security committee was established in February, made up of county government officials, judicial officials and local security experts. The group heard reports from vendors regarding ways to secure the building, and how much it will cost. * * *
Among the committee’s recommendations was that the commissioners focus on the eight doors to the building, including the commissioners’ room.
The plan would be to install an X-ray scanner and metal detectors inside a ground-floor door, a 24-hour video surveillance system and assign two deputies to Courthouse security, at a cost of about $47,460 to be included in the 2008 budget, Goshorn said. * * *
Mossburg said he agreed the Courthouse needs security but said he wants the county to take a smaller step in between the “panic buttons” currently installed in county offices and closing most of the doors to the building.
“I think we’re going above and beyond the next step,” he said.
Ind. Decisions - Results on: Supreme Court orders the Warrick County court reporter to finish typing the transcript of the David Camm murder retrial [Update]
Did the Warrick County court reporter get the transcript filed under the deadline set last Friday by the Indiana Supreme Court order which concluded:
This is a final extension. If the remaining portion of the transcript is not completed and filed on or before June 4, 2007, the court reporter will be ordered to appear before this Court in person to show cause why she should not be held in contempt.(See this ILB entry from Saturday for background.)
We don't know yet. Watch this spot.
This story in the Louisville Courier Journal this morning reports only that: "A Warrick County court reporter and other court staff worked into yesterday evening to finish a transcript of last year's retrial of David Camm to meet an Indiana Supreme Court deadline."
[Update] The transcript was filed on time. See this update.
Monday, June 04, 2007
Ind. Courts - More on: St. Joseph County felony public defenders overwhelmed [Updated]
The South Bend Tribune today has Part 2 of Pablo Ros' report on St. Joseph County's public defender program. (See ILB report on Sunday's story here.) Some quotes from the lengthy story exploring the pros and cons of involvement in the state reimbursement program:
St. Joseph County's historical reluctance to join a state program that reimburses some public defender expenses has been fueled at least in part by fears that the program does not fully work.For related stories, see this Jan. 6, 2007 ILB entry headed "Porter's public defenders overwhelmed", and three ILB entires, ending with this one from March 9, 2006, titled "Failure to submit paperwork to Indiana Public Defender Commission costly to many counties, including Marion."
Fifty-seven of Indiana's 92 counties have signed up for reimbursement from the Indiana Public Defender Commission, according to the commission's Web site.
Here is the website of the Indiana Public Defender Commission, which includes links to more information on excessive caseloads.
[Updated] The AP has a story today that begins:
Lake County's chief public defender thinks a state program that reimburses some public defender expenses should be done statewide.
Vanderburgh County's chief public defender Stephen Owens does not share that view. He says he doesn't believe other counties should be allowed to join until the Indiana Public Defender Commission can keep its financial commitment its current members.
"The more counties come in and the more fingers in the pie, the less money to pass around," Owens told the South Bend Tribune for a Monday story.
Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)
For publication opinions today (1):
In Donald and Jacquelyn Lindsey v. De Groot Dairy, LLC and IDEM, a 7-page opinion, Judge Bailey writes:
Donald and Jacquelyn Lindsey (“Lindseys”) appeal the dismissal of their Verified Petition for Judicial Review (“Verified Petition”) of an administrative law judge’s order. We reverse. * * *See this ILB entry from June 2, 2007 for some of the other matters involving DeGroot Dairy.
De Groot Dairy LLC (“De Groot”) operated a farm with dairy cows, including pools used to collect waste. The Indiana Department of Environmental Management (“IDEM”) issued a confined-feeding-operation permit to De Groot. Later, De Groot and IDEM entered an Agreed Judgment, pursuant to which IDEM issued an amended permit. The Lindseys live near the farm. On January 25, 2005, they filed a Petition for Administrative Review and Stay of Effectiveness of the Amendment, alleging a series of harms. The Chief Environmental Law Judge (“ELJ”) dismissed the Lindseys’ Petition for Administrative Review for failure to state a claim upon which relief can be granted.
On February 27, 2006, the Lindseys filed their Verified Petition in Huntington Superior Court, sending summons to the Attorney General, the ELJ, an IDEM attorney, and the attorney who had represented De Groot in the administrative proceeding, Todd Janzen (“Janzen”). However, no summons was sent to De Groot. De Groot filed a Motion to Dismiss, contesting subject matter jurisdiction. Also, it moved for an automatic change of judge. A special judge granted De Groot’s Motion to Dismiss. The Lindseys now appeal. * * *
[The court examines IC 4-21.5-5-1 which provides that: "A petitioner for judicial review shall serve a copy of the petition upon: . . . (4) each party to the proceeding before an agency; in the manner provided by the rules of procedure governing civil actions in the courts." The Court notes "we are presented with an issue of first impression."]
Indiana law strongly prefers disposition of cases on their merits. Coslett v. Weddle Bros. Constr. Co., Inc., 798 N.E.2d 859, 861 (Ind. 2003), reh’g denied. We prefer not to erect procedural obstacles to their presentation. Maldonado v. State, 265 Ind. 492, 355 N.E.2d 843, 848 (1976). In light of the considerations noted above, we conclude that service pursuant to Trial Rule 5 satisfies Indiana Code Section 4-21.5-5-8. To rule otherwise would create a procedural trap for unwary litigants, especially where, as here, the parties had already been engaged in the dispute for some time. If the General Assembly would prefer service to be achieved under Trial Rule 4, it should so specify. Conclusion We conclude that the trial court erred in dismissing the Lindseys’ Verified Petition for Judicial Review. Reversed.
NFP civil opinions today (0):
NFP criminal opinions today (8):
Ind. Decisions - One Indiana decision today from 7th Circuit
In U.S. v. Elton Burks (ND Ind., Philip P. Simon, Judge) Judge Bauer writes:
Burks was convicted on the attempted murder charges and sentenced by an Indiana state court to 76 years’ imprisonment. After his sentence, Burks was delivered to federal custody on a writ of habeas corpus to face trial on the federal indictment. He filed a motion to suppress all evidence recovered from his arrest; the district court denied the motion.
Burks pleaded guilty to being a felon in possession of ammunition, reserving his right to appeal the denial of his motion to suppress. The district court sentenced Burks to 84 months’ imprisonment to run concurrent to his 76-year state term of imprisonment. He now challenges the denial of his motion to suppress and the calculation of his sentence. We affirm.
Sunday, June 03, 2007
Courts - What is left for the Supreme Court to decide this term?
Here are some guides.
"Supreme Court ending term with big issues: School integration, campaign ads, Bush's faith-based initiative and more are on the divided justices' docket this last month" is the headline to a David G. Savage story dated June 2 in the LA Times. This comprehensive report begins:
The Supreme Court heads into the final month of its term next week, and is expected to deliver major decisions on the future of school integration, the role of corporate money in political campaign ads and a taxpayer challenge to President Bush's faith-based initiative.Mark Sherman of the AP has a story June 1 that begins:
There will probably be more 5-4 rulings and sharply worded dissents as the justices hand down rulings in the 26 remaining cases by the end of June and then leave town for the summer.
Important cases on race in schools, campaign finance and student speech rights are still to be decided before the Supreme Court adjourns for the summer.And for the real nitty-gitty, the experts at SCOTUSblog.com are up to Edition 3 of their "Stat Pack", a 20-page PDF covering both "Details and Questions Presented for Pending Cases in OT06" and "Details and Questions Presented for Granted Cases for OT07 (New)."
The outcome of those cases, as well as a dispute over President Bush's faith-based program, will help show how far to the right Bush's two nominees, Chief Justice John Roberts and Justice Samuel Alito, have moved the court.
The justices have about 25 opinions to issue - more than one-third of the 71 cases they have heard since October - before they leave town at the end of June for teaching gigs, foreign travel and vacations.
Ind. Law - "Law would allow judges to seal coroners’ reports"
Today Niki Kelly of the Fort Wayne Journal Gazette reports that a new law may change that. Some quotes:
While lawmakers were busy detailing new training requirements for county coroners, they also inserted a provision that will make it easier for prosecutors to seal coroners’ reports in sensitive death investigations.It will be very hard to put the toothpaste back in the tube ...
Under current law, coroners must make certain information available for public inspection and copying for every death investigation, often called a coroner’s report.
Some of these items include the name, age, address, sex and race of the deceased; the address where the body was found; the name of the person reporting the death; limited information regarding an autopsy; and conclusions on the cause and manner of death.
But Steve Key, lobbyist for the Hoosier State Press Association, said some coroners just weren’t completing the reports, possibly at the behest of police trying to keep details under wraps.
Newspapers in three high-profile homicide cases statewide sued, alleging the coroners weren’t following current state law to provide the reports.
But Key said the judge had no recourse because no timeline is specified in the law for when such a report must be made available.
That’s why the press association pushed for a provision that made it into the bill – and will become effective July 1 – clarifying that the information must be made available no later than 14 days after the completion of the autopsy report or any other report – such as toxicology – requested by the coroner as part of the investigation. * * *
But the state prosecutors association wasn’t happy with the language and worked with Key to add a section allowing the reports – including the cause and manner of death – to be sealed in some situations.
Specifically, the new law says a prosecutor can petition a local judge to prohibit the coroner from publicly disclosing information otherwise required to be available to the public. The judge must find that public access or dissemination of the information would create a significant harm to the criminal investigation of the death.
Judges have sometimes sealed coroners’ reports, the most famous of which was the Jill Behrman case. The 19-year-old Indiana University student disappeared while riding her bicycle in 2000.
Key said it was questionable whether the judge actually had the right to seal the report in that case, but the new provision provides that specific authority via state statute.
Allen County Chief Deputy Coroner Dick Alfeld said the coroners association didn’t object because the provision is helpful to law enforcement officials to keep certain information private to weed out possible suspects.
“It makes our position much stronger,” he said.
But he and others don’t think the provision sealing records will be used often.
“My understanding is it would be rarely used,” said Sen. Patricia Miller, R-Indianapolis, the author of the legislation. “I don’t think a judge would allow them to do this on a whim. There has to be some compelling reason.”
Key also said it was not the intention to regularly shield a coroner’s report from the public. In fact, the entire purpose at the beginning of the session was to ensure coroners were actually doing the reports.
“If prosecutors are routinely filing requests to seal the coroner’s report then we will have a problem and we’ll have to go back to the General Assembly,” he said. “That was not the intent of the legislation.”
Ind. Decisions - Still more on: Judge Nation has ruled against Lauth Indiana Resort & Casino
The AP has now picked up the story of last Tuesday's ruling by Judge Nation's ruling against in Lost River Dev. v. Robert L. Lauth, Jr. See the ILB entry from last Friday here.
Today's AP story begins:
NOBLESVILLE – A judge has ruled that a contract existed between an Orange County casino partner and a company that accuses it of negotiating secretly to win the casino contract.
The ruling by Hamilton Superior Judge Stephen R. Nation in Noblesville could pave the way for a trial over the French Lick Resort Casino’s operating contract.
Nation ruled on May 22 that a contract had in fact had existed between Lauth Indiana Resort & Casino and Merit Management, which joined together to form Lost River Development in a bid for the Orange County casino license.
His ruling rejected Lauth’s request for summary judgment on the contract issue.
Merit Management is suing Lauth, alleging that the Indianapolis-based resort and casino firm entered into secret negotiations with Bloomington-based Cook Inc. to cut out Merit Management in their attempts to win a contract for the casino from the Indiana Gaming Commission.
Lauth general counsel Vernon Back said Lauth never questioned if it had a contract with Merit at one time.
“That agreement was terminated,” Back said. “There was nothing in the agreement that says if there’s a second partner, that we had to reapply with (Merit).”
Back said Lauth will file many more summary judgments.
“It’s really of no effect,” he said of the ruling. “It just means that count wasn’t dismissed.”
Ind. Courts - St. Joseph County felony public defenders overwhelmed
The South Bend Tribune today has a story by Pablo Ros headed "Defenders: We're overwhelmed." Some quotes from the lengthy story:
In late 2005, Julie P. Verheye, also a felony public defender, asked a St. Joseph County Superior Court judge for help in resolving a case overload problem.
Verheye wrote she already had 116 cases that year and was concerned that "further appointments will result in inadequate representation in violation of the Rules of Professional Conduct," which instruct attorneys to provide competent representation, be diligent and prompt in representing a client and communicate fully with a client, among other things.
Failure to provide competent representation may result in "discipline or suspension from the practice of law," Verheye wrote, citing legal precedents. "Because of the sheer number of cases being assigned, it is getting very difficult if not impossible for this and other defense attorneys who represent indigent clients to conform with the Rules of Professional Conduct."
Verheye said she was too busy to be interviewed for this article.
[Greg] Kauffman recalled that in response to their complaints, "three or four" attorneys were hired to handle D felony cases "to see if they could work out pleas to try and lighten the load."
But, Kauffman recalled, that only worked temporarily.
"I compare that to the boy who puts his finger in the dike and thinks he's going to stop it from flooding the city," he said. * * *
Those interviewed for this story also said that although their income as public defenders is less than half of their total income as lawyers, the work they do as public defenders represents most of the total legal work they do -- the rest being their private practice.
"It is impossible to make a good living when you spend 80 percent of your time only making 30 percent of your yearly income," Kauffman said.
Part of what makes part-time public defender work appealing is that it gives one time to develop a private practice while being eligible to receive some benefits, including health and life insurance and a retirement fund.
"You can maybe make five times as much privately on a case-by-case basis," said James F. Korpal, the county's chief public defender.
Felony public defenders are paid about $35,000 a year, including a stipend for office expenses.
Saturday, June 02, 2007
Ind. Decisions - More on: Supreme Court orders the Warrick County court reporter to finish typing the transcript of the David Camm murder retrial
On May 4th the ILB quoted from a Ben Zion Hershberg story in the Louisville Courier Journal that began:
The 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.Today Hershberg has a story headlined "Camm case transcript not ready: Court reporter risks contempt order." Some quotes:
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.
Despite risking a contempt-of-court charge by the Indiana Supreme Court, the Warrick County court reporter responsible for typing the transcript of David Camm's murder retrial last year has asked for more time -- but only until Monday.However, this morning the ILB was delighted to discover that WHAS11.com, out of Louisville, has a Camm - Boney Murder Trials Blog - access it here.
In May, the Supreme Court ordered Mary C. Kennedy to file the completed transcript by yesterday, saying she could be charged with contempt if she failed to do so. * * *
Kennedy said she expected the seven people who have been working on the transcript with her to finish the typing yesterday, but that wouldn't leave enough time to compile the massive document and create a table of contents, lists of witnesses and exhibits, and then assemble volumes of exhibits before the end of the day.
All that will be done by Monday, Kennedy said, if the court gives her an extension through the end of the business day Monday.
The Supreme Court wasn't expected to take any action in the case yesterday, a staff attorney said.
The WHAS11 Blog has an entry from late yesterday afternoon reporting that the deadline extension had been granted, and setting out the order in full. Some quotes from the June 1 Supreme Court order by Chief Justice Randall T. Shepard:
Court Reporter Kennedy has now filed "Court Reporter's Final Verified Motion For Extension of Time to File Transcript," her third motion, asking for an extension of time of three days, to Monday, June 4, 2007, in which to complete and file the transcript.For some background on unfinished or lost transcripts, and court transcripts in general, see this ILB entry from April 22, 2007.
Court reporters are expected to comply with court orders just as parties are, and the particular circumstances that prevent the transcript from being completed June 1 is not necessarily apparent from the motion.
On the other hand, the court reporter has designated her motion as a "final" request for extension of time and the bulk of the additional time requested occurs over a weekend when the court is closed.
The court reporter's motion is GRANTED. Court Reporter Kennedy is ORDERED to complete and file the remaining portion of the transcript on or before the close of business June 4, 2007.
This is a final extension. If the remaining portion of the transcript is not completed and filed on or before June 4, 2007, the court reporter will be ordered to appear before this Court in person to show cause why she should not be held in contempt.
Ind. Decisions - More on: Supreme Court sets date for Lambert execution
INDIANAPOLIS -- The state asked a federal court of appeals yesterday not to grant a stay of execution for a man scheduled to die by lethal injection in two weeks for killing a Muncie police officer.
The state also asked the 7th U.S. Circuit Court of Appeals in Chicago not to grant Michael Lambert a new sentencing hearing, arguing that he has used up his appeals. * * *
In its filing yesterday, the attorney general's office argued that the only way that Lambert should be allowed another hearing is if he can "prove that he is actually innocent of murdering Officer Winters."
Lambert doesn't deny shooting Winters. * * *
Attorneys for Lambert argued in a motion Thursday that he deserves a new hearing because of a U.S. Supreme Court ruling last year.
They contend that the jury should not have heard from Winters' widow, Molly, about the effect that her husband's death had on her family before handing down the sentence.
The Indiana Supreme Court has ruled that the jury should not have heard the statements, but concluded that the aggravating circumstances outweighed the mitigating circumstances and affirmed his death sentence.
Environment - Closing the farm proves challenging to IDEM
The Fort Wayne Journal Gazette has an editorial today exploring the potential ramifications of IDEM's action to revoke the permit of the DeGroot dairy in Huntington County.
Here are some quotes from the editorial:
Some Huntington area residents may feel pleased that DeGroot Dairy, the rural Huntington County dairy cited for environmental infractions, is in danger of losing its state operating permit. But the problems at the farm point to a larger dilemma and a need for firmer state guidelines for large animal-feeding operations.
Decommissioning the 1,400-cow dairy creates a host of questions and concerns about how to care for the animals in a humane and environmentally sound manner if necessary. State leaders have made it a goal to grow agricultural business in Indiana, but rules to ensure the farms don’t harm the environment or neighboring property owners need to keep up with the growth. * * *
Amy Hartsock, a spokeswoman for IDEM, said the Office of Environmental Adjudication has scheduled a pre-hearing conference on the appeal for Monday. * * *
“This is the first time we have gone through the revocation process,” Hartsock said. “And because this is the first time we are taking this type of action we are taking it step by step. We anticipated that there was going to be an appeal.”
There are animal welfare as well as environmental issues involved with closing down the farm. If the DeGroots lose the appeal, something will have to be done with the cows. Dairy cows require special care and will continue to require feeding and will continue to produce large amounts of manure. Hartsock said ensuring the manure is handled appropriately during that process and long-term compliance with environmental regulations will remain the department’s focus regardless of the outcome of the appeal.
State environmental officials face a challenging problem in revoking the DeGroot Dairy permit. More comprehensive regulations for zoning and operating large animal feeding operations from state lawmakers could help prevent the need to close farms in the future.
Friday, June 01, 2007
Ind. Decisions - More on: Judge Nation has ruled in favor of Merit Management in a lawsuit filed against Lauth Indiana Resort & Casino
The ILB has now received a copy of Judge Nation's opinion in the case discussed this afternoon (see earlier ILB entry here or simply scroll down two).
Here is the 5-page opinion in Lost River Dev. v. Robert L. Lauth, Jr.
Thanks to Ed Feigenbaum of Indiana Gaming Insight (IGI), who has also granted me permission to quote a bit from his front-page exclusive published last evening, reporting on Judge Nation's May 22nd ruling.
Ed tells me: "Believe it or not, even with the local connection, the amount of $$ at stake, and the fact that it is a casino-related matter, the only thing that has been written about this case in the last year (until today) has been in Indiana Gaming Insight." Some quotes from his IGI story:
On May 22, Judge Nation rules against Lauth Indiana’s Motion for Partial Summary Judgment filed last June. He finds that the April 2004 letter agreement between Merit and Lauth which teamed the two entities together in a Lost River Development, LLC proposal for the original Orange County operating agent contract was itself a contract between the parties that had no termination date and must remain in force “until its purpose is accomplished or until that purpose becomes impracticable.”That case was Scandinavian Airlines v. McDonald's Corp. (7th Cir. 1997). See Judge Nation's finding 17 at the bottom of page 4 of the opinion.
While Lauth contends that the contract ended or became impracticable when the Indiana Gaming Commission approved the Trump Spring Valley OAC application on July 20, 2004, Judge Nation finds that “The actions of the parties after the ... contract was awarded to Trump create a genuine issue of material fact as to whether the contract was impossible or impracticable after that date.” * * *
The bottom line here is that Lauth loses its key threshold argument that there was no contract in effect once the original Orange County deal was awarded to Trump. Judge Nation believes that there is enough of a question about whether the actions of the parties after that date amounted to an understanding that the deal was still in effect that a jury must decide the matter.
Even so, his denial of the Motion for Summary Judgment serves up some higher hurdles than Lauth probably expected, including turning one important 1997 federal appellate court ruling cited by Lauth in its favor against Lauth in ruling on the motion. [emphasis added]
Ind. Decisions - Transfer list for week ending June 1, 2007
Here is the Indiana Supreme Court's transfer list for the week ending June 1, 2007.
(Always be sure to go through all the pages, as the "list" is really two combined lists.)
Ind. Decisions - Hamilton County Superior Court Judge Nation has ruled in favor of Merit Management in a lawsuit filed against Lauth Indiana Resort & Casino over a joint venture involving the development of the French Lick Resort Casino
Inside Indiana Business is reporting this afternoon:
A judge in Hamilton County Superior Court has ruled in favor of Merit Management in a lawsuit filed against Lauth Indiana Resort & Casino over a joint venture involving the development of the French Lick Resort Casino.The IIB story, which appears to be based on a press release from Merit Management, concludes:
An attorney representing Merit tells Inside INdiana Business that the ruling now opens the door for the lawsuit to go to trial. Merit Management had partnered with Indianapolis-based Lauth Property Group to form Lost River Development. That group lost out on a gaming license after the Indiana Gaming Commission awarded the license to a company owned by Donald Trump. That license was later rescinded due to Trump's financial problems.
Merit claims that Lauth was in breach of contract when Lauth then partnered with Bloomington-based Cook Group to seek the gaming license. Merit says it is seeking $100 million from Lauth Indiana Resorts & Casinos and its principals Robert Lauth, Jr., Gregory Gurnik and Vernon Back.
[Merit Management’s attorney Gary Grasso of the Chicago law firm of Grasso Bass & Williams] stated: “We believe that Mr. Lauth and Mr. Gurnik took advantage of Merit and their partners, playing the game with them until they saw an 11th hour opportunity to double-cross them and become the sole bidder for the contract with the Cook Group. We understand all too well, as the Cook Group apparently does now given its litigation with Lauth over the French Lick casino, that you must be careful before placing your trust in the Lauth people.”The ILB would be pleased to post a copy of Judge Nation's opinion, and the reaction of Lauth Indiana Resort & Casino, should either become available.
About this blog - ILB selected by Library of Congress
The ILB received an email this morning from the Library of Congress that begins:
The United States Library of Congress has selected your Web site for inclusion in its historic collections of Internet materials related to Legal Blogs. The Library's traditional functions, acquiring, cataloging, preserving and serving collection materials of historical importance to the Congress and to the American people to foster education and scholarship, extend to digital materials, including Web sites. We request your permission to collect your Web site and add it to the Library's research collections. We also ask that we be allowed to display the archived version(s) of your Web site.Of course I do. I am honored to have been selected for inclusion in this project.
With your permission, the Library of Congress or its agent will engage in the collection of content from your Web site at regular intervals over time. The Library will make this collection available to researchers onsite at Library facilities. The Library also wishes to make the collection available to offsite researchers by hosting the collection on the Library's public access Web site. The Library hopes that you share its vision of preserving Internet materials and permitting researchers from across the world to access them.
And what is this LOC project? It is number 2 in this list from the LOC website. The description:
Legal Blogs. A selective collection of authoritative blogs associated with American Bar Association approved law schools, research institutes, think tanks, and other expertise-based organizations, containing journal-style entries, articles and essays, discussions, and comments on emerging legal issues, national and international. Collection dates: March 2007 - December 2007
Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
Pike County Commissioners, G. Todd Meadors and Pike County Sheriff's Department v. Jason P. Traylor (NFP) - "Because Traylor did not file his tort claim notice until April 29, 2004, one hundred and eighty-three days after his initial injuries, we find that his tort claim notice was not timely filed. Thus, the trial court erred by denying Pike County’s summary judgment motion."
NFP criminal opinions today (2):
Law - Legal issues raised by the TB quarantine story
Mike Stobbe of the AP has an interesting story today looking at various legal issues raised by the situation of an Atlanta personal injury attorney, Andrew Speaker, with drug-resistant TB. Some quotes:
ATLANTA (AP) -- The case of a jet-setting tuberculosis patient might soon shift from the hospital wards to the courts. The patient, Andrew Speaker, an Atlanta personal injury attorney, could sue the federal government for being quarantined on the basis of federal regulations that some scholars see as unconstitutional.
Or Speaker could be sued by fellow airline passengers, especially if any caught the disease from him - which some legal scholars say is much more likely.
"He may be personally liable if someone contracts TB" from being near him on his recent flights to and from Europe, said Peter Jacobson, a University of Michigan professor of public health law. "I can see a jury coming down very hard on someone like that who willfully ignored advice not to travel."
Speaker flew to Europe for his wedding and honeymoon after being advised by health officials not to make the trip because he had TB. Then, while he was in Rome, U.S. health officials told him to stay put because further tests showed he had an even more dangerous, drug-resistant type of TB than previously thought.
The 31-year-old newlywed disregarded those instructions, taking commercial jets to Prague and then Montreal in an attempt to sneak back into the United States. * * *
Lawrence Gostin, a public health law expert at Georgetown University, agreed with those who feel Speaker has exposed himself to possible litigation.
"There are a number of cases that say a person who negligently transmits an infectious disease could be held liable," he said.
Perhaps the most significant legal issues in Speaker's case concern the federal quarantine law, and the difficulty federal health officials had trying to learn the identities of those who were exposed to Speaker, Gostin said.
The quarantine order was the first issued by the federal government since a patient with smallpox was isolated in 1963, according to the Centers for Disease Control and Prevention.
CDC officials have been requesting changes in the nation's antiquated quarantine laws to gain easier access to airline and ship passenger lists, provide patients a clearer appeals process when subjected to quarantines and give health officials explicit authority to offer vaccinations and medical treatment to quarantined people.
In the past week, Speaker was quarantined in New York City and then again - under guard - at an Atlanta hospital. The quarantine order was not approved by a judge, but rather issued under the CDC's administrative powers.
There's a reason for that, Jacobson said: In certain rare instances, such action is deemed necessary to avoid legal delays in rapidly protecting the public from a disease-carrying person.
While Speaker was still in Atlanta on Wednesday, a CDC official said Speaker had the right to request an administrative hearing to appeal the quarantine order but had not. (On Thursday, Speaker was flown to a Denver hospital, where he is no longer under guard.)
The legal rights of a quarantined person, including the right to request a hearing, are not clear under current law, Gostin said. Some legal scholars said the absence of clear guidelines could lead to a legal tangle that might stall government quarantine actions during an outbreak of pandemic flu or other contagious diseases.
Speaker can challenge the constitutionality of the quarantine order, and might even be able to seek a federal payment for damages, Gostin said.
Airlines can be slow to hand over passenger information because of concerns of violating customer privacy. It was not until late Wednesday that the CDC got full information from Air France about U.S. passengers on Speaker's May 12 flight from Atlanta to Paris.
One proposed change in the law would require airlines and cruise lines to electronically submit passenger and crew lists to the CDC upon request.
Ind. Decisions - "Appeals court agrees evidence was suppressed in Julian's trial"
Yesterday's NFP ruling in the case of State of Indiana v. Billy Wayne Julian (see ILB entry here - it is the last summarized opinion) is the subject of a story today in the Anderson Herald Bulletin. Some quotes from the story by Stacey Grosh:
Authorities knew that Brooks had been on in-home detention the night of the fire and, according to the Madison County Probation Department, Brooks never left his home that night. On four occasions, Julian’s attorney had filed requests for Brooks’ criminal history. It was finally supplied after a search of the Madison County Sheriff’s Department database. No reference to Brooks being on in-home detention was noted, although it was a part of city records.
“The State’s failure to provide a complete criminal history amounts to suppression of this information,” according to the ruling. The prosecutor’s office has a “duty to disclose evidence favorable to a criminal defendant.”
In May 2006, Circuit Court Judge Fredrick Spencer granted Julian’s post-conviction relief request after an Elwood Probation Department employee testified that its records indicated Brooks was home the night of the fire.