Wednesday, October 31, 2007
Ind. Decisions - Court of Appeals issues 8 today (and 15 NFP)
For publication opinions today (8):
In Beverly R. Newman v. Jewish Community Center Association of Indianapolis, Inc., et al, a 24-page opinion, Chief Judge Baker writes:
Beverly Newman and her daughter, Julie Sondhelm, have an extremely volatile relationship, as detailed in our memorandum decision dismissing Newman’s appeal from the trial court’s denial of her petition for grandparent visitation with Sondhelm’s children, M.S. and K.S. In re Visitation of M.S. & K.S., (Ind. Ct. App. Jan. 24, 2007). While the harmful effects of Newman and Sondhelm’s relationship were initially confined to the immediate family, Newman has chosen to involve third parties by filing suit against numerous defendants, including appellees-defendants Jewish Community Center Association of Indianapolis, Inc. (the JCC), Nancy Riddle-Mills, Bev Brown, and Beth Grimm (collectively, the appellees). Newman’s latest complaint alleges claims for defamation and invasion of privacy by false light and intrusion.In Paternity of J.T.I., Elisabeth A. Irvin v. Delenore Q. Guyton, a 12-page, 2-1 opinion, Judge Barnes writes:
Newman appeals from the trial court’s grant of summary judgment in favor of the appellees. Specifically, Newman argues that (1) the trial court erred by dismissing various defendants; (2) the trial court erred by dismissing Newman’s claim for invasion of privacy by intrusion; (3) the trial court abused its discretion during discovery; and (4) the trial court erred by granting summary judgment in favor of the appellees. Finding no error, we affirm the judgment of the trial court.
The sole issue we address is whether Irvin could be held in contempt where no rule to show cause was issued. * * *In Bryan Carson v. Cynthia Carson, a 6-page opinion, Cheif Judge Baker writes:
Because there was no compliance with the rule to show cause statute, we reverse the trial court’s contempt finding against Irvin and remand for further proceedings consistent with this opinion.
Reversed and remanded.
ROBB, J., concurs.
KIRSCH, J., dissents with opinion. [that concludes] At the hearing on January 31, 2007, Mother was held in contempt not only for her failure to make the parties’ son available for visitation, but also for her failure to appear at the hearing. The majority correctly notes that a litigant’s failure to appear at a hearing has been deemed to be an indirect contempt. While the trial court also found Mother in contempt for her failure to comply with the Indiana Parenting Time Guidelines, it stayed such finding and ordered Mother to show cause why the order should not be carried out at a hearing to be held on February 7, 2007. In so doing, I believe the trial court fully complied with Indiana Code Section 34-47-3-5.
Appellant-petitioner Bryan E. Carson appeals the trial court’s order directing him to pay his daughter, Rachel’s, educational expenses, which included room and board at Manchester College (Manchester). Specifically, Bryan argues that the order was clearly erroneous because the evidence established that Rachel was twenty-one years old, resided with her mother—appellee-respondent Cynthia Carson—and commuted to class. Concluding that the evidence did not support the trial court’s decision ordering Bryan to pay a percentage of room and board expenses in accordance with Manchester’s fee schedule because Rachel does not reside on campus, we remand this cause to the trial court for a re-determination of those expenses.In State of Indiana v. Kimco of Evansville, Inc., n/k/a KCH Acquisition, Inc., The Franklin Life Ins. Co., and Vanderburgh County, Indiana, a 17-page opinion, Judge Barnes wrties:
Case Summary. The State appeals the jury’s verdict in favor of Kimco, et al., in the amount of $2,300,000.00 for an appropriation of Kimco’s real estate in 2000. We affirm.David Mark Frentz v. State of Indiana - "David Mark Frentz appeals his convictions and fifty-nine-year aggregate sentence for murder, class C felony methamphetamine possession, class C felony cocaine possession, and class D felony marijuana possession. We affirm."
Issue. The State raises two issues, which we consolidate and restate as whether Kimco is entitled to damages for its loss of access to a public thoroughfare. * * *
Conclusion. Given these specific facts, we conclude that Kimco suffered a taking of its access rights as a matter of the law, and the jury properly determined the amount of damages for the taking suffered by Kimco for its loss of access. The trial court properly admitted evidence related to loss of access and properly instructed the jury regarding loss of access. Further, the jury’s verdict is not excessive because Kimco’s loss of access was a proper consideration when assessing damages. We affirm.
Random Justice Phillips v. State of Indiana - "Random Justice Phillips appeals his conviction and sentence for possessing material capable of causing bodily injury by an inmate, a Class C felony. We affirm."
Brian K. Crain v. State of Indiana - "Brian K. Crain asks us to reverse his conviction of non-support of a dependent, claiming his waiver of counsel was not knowing, voluntary, and intelligent. Because his claim must be raised in a post-conviction petition, we dismiss his appeal."
Ruben Green v. State of Indiana - "Ruben Green was convicted of murder. He argues his retrial after a mistrial subjected him to double jeopardy, the trial court should have declared the second trial a mistrial, the jury was improperly instructed, and the evidence was insufficient for a conviction of murder. We affirm his conviction."
NFP civil opinions today (5):
NFP criminal opinions today (10):
Law - Two worth reading entries from WSJ Blog
" Should Law Schools Adopt the B-School Case Method?" posted Oct. 30, 2007 at 5:21 pm, with 42 comments so far.
Ind. Decisions - Still more on: 7th Circuit decides legislative prayer case, dismissing for lack of standing
Coverage this morning of the 7th Circuit's 2-1 decision yesterday in the legislative prayer appeal includes:
"House prayer ban falls on appeal: Court finds plaintiffs have no legal right to sue," reported by Niki Kelly of the Fort Wayne Journal Gazette. Some quotes:
INDIANAPOLIS – The 7th Circuit U.S. Court of Appeals ruled on Tuesday that Hoosier taxpayers have no standing to challenge the content of prayer given in the Indiana House chamber, a move that effectively ends restrictions that have been in place since 2005."Limits on House prayers lifted: Plaintiffs don't have standing, court says," reported by Lesley Stedman Weidenbener of the Louisville Courier Journal. Some quotes:
The decision remands the case with orders to dismiss it for lack of jurisdiction, though it can be appealed.
The court did not rule on the merits of the case – whether prayers offered at the podium to open legislation session can be sectarian or favor one religion.
Instead, the judges found in a 2-1 decision that the taxpayers who sued lacked legal standing to bring the case.
“The plaintiffs have not tied their status as taxpayers to the House’s allegedly unconstitutional practice of regularly offering a sectarian prayer,” the ruling said. “They have not shown that the legislature has extracted from them tax dollars for the establishment and implementation of a program that violates the Establishment Clause.”
The ruling goes on to acknowledge that a minimal amount of money is spent in the administration of the program but “the plaintiffs have not pointed to any specific appropriation of funds by the legislature to implement the program.”
The decision relied heavily on a recent U.S. Supreme Court decision. * * *
But the dissent in the case points out that nothing in the opinion should be construed as a ruling in favor of the House’s procedures.
“Should someone come along who meets the majority’s concept of standing, the question whether the House may sponsor prayers at state expense urging everyone in the chamber to adhere to Christianity, or edicts declaring the room a ‘hallowed place,’ or musical exhortations, revival-style, to ‘talk with Jesus,’ is an open one.”
A federal appeals court yesterday lifted a lower court's restrictions on prayers in the Indiana House that had banned ministers from referring to Jesus Christ or making other overt references to specific denominations.The headline on the front-page of my printed Indianapolis Star this morning reads: "Court answers only part of House House prayer: Foes of sectarian prayers say ruling leaves door open for new appeal." Bill Ruthhart reports:
The 7th U.S. Circuit Court of Appeals did not rule on whether such references are constitutional. Instead, it said the taxpayers who filed a lawsuit challenging past sectarian prayers did not have standing to do so.
The court said that the taxpayers had not shown that the state had a specific appropriation to fund the prayers or had "extracted from them tax dollars for the establishment and implementation" of government-backed religion. That was necessary to have the right to sue, the appeals court said.
"We are well aware of the time and energy that the parties and the district court have expended on the merits of this matter," the appeals court said. "However, if a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so." * * *
The dissenting judge in the ruling, Circuit Judge Diane Wood, wrote that her colleagues were too narrow in their definition of standing and should not have determined that an appropriation for the prayers had to be present for the taxpayers to be aggrieved.
"Under the majority's approach, even if the Speaker decides to start working his way through the Anglican Book of Common Prayer day by day, notwithstanding the presence of Jewish, Muslim, Hindu, Buddhist, and other legislators, staff, and constituents, nothing can be done to enforce the command of the Establishment Clause," Wood wrote.
"As long as a majority of the House is Christian, it is also reasonable to predict that the House itself will never take action to curb such a practice," she wrote.
Sectarian prayers, including those to Jesus Christ, could return to the front of the Indiana House chamber after a court ruling Tuesday, but opponents warned of a legal challenge if that happens. * * *
Tuesday’s decision didn’t center on whether the prayers should be allowed. It focused more narrowly on whether the plaintiffs, a group of four taxpayers, had the legal standing to sue.
In its 2-1 opinion, the court ruled there were no expenditures directly tied to the prayers. Therefore, as taxpayers, the plaintiffs had no standing to sue.
But that doesn’t mean the legislature should resume its practice of sectarian prayers, said Ken Falk, an attorney for the ACLU of Indiana.
“The one bit of caution is that the 7th Circuit did not approve the prayer practices, and I would hope that the result of this is that the state does not go back to this practice of sectarian prayer,” Falk said. “If that would occur, there could be people who could bring litigation.”
Falk said his organization would not hesitate to file another lawsuit if approached by someone who “regularly attends the sessions and is subjected to the unwanted prayers.”
Under Tuesday’s ruling, he argued, such people would have the standing to sue.
“This doesn’t in any way make the practice any less unconstitutional than it was,” Falk said. “It just indicates that the people who brought this lawsuit, in the estimation of the two judges, were not the proper people.”
Bosma dismissed the threat of another suit.
“I’m sure the Civil Liberties Union won’t rest until all prayer is erased from every aspect of public life,” he said.
Bosma said he wasn’t concerned that the ruling wasn’t based on the case’s merits.
“We’ll take a win any way,” he said. “A hole in one is a hole in one no matter if it hits a tree or you hit it right in the cup.”
Falk said he is recommending his clients ask for Tuesday’s decision to be heard by the 7th Circuit’s full panel of 11 judges. Bosma said he’s confident the ruling would stand.
Carl Tobias, a constitutional law expert at the University of Richmond in Virginia, said he isn’t so sure.
“I think it is really a close case, and I think it will go to the whole court of the 7th Circuit to make the decision,” Tobias said. “A majority of that whole court might yet find that there is standing. So it’s not over yet.”
Judge Diane Wood, who wrote the dissenting opinion Tuesday, argued, “In my view, “the taxpayer-plaintiffs before us have alleged enough to win the right to present their challenges to the House prayer.”
Ind. Courts - "Lawrence County Judge Found Dead In Home" [Updated]
From WBIW News this morning:
(BEDFORD) - A Lawrence County circuit judge is found dead in his home last night by Bedford police.[More] Here is an update posted on the Indy Star website:
Major Dennis Parsley of the Bedford Police Department says they received a 911 call from the home of 51-year-old Judge Richard D. McIntyre, Sr. on Hill Drive in Bedford, regarding a potentially deceased individual.
Upon arrival, police confirmed the death of Judge McIntyre, who is a judge of the Lawrence County Circuit Court.
Lawrence County Coroner John Sherrill was called to the scene and assisted by Bedford officers. No other information has been released about the incident by press time.
BEDFORD, Ind. — A Lawrence County Circuit Court Judge has been found dead in his Bedford home.[Updated 12:37 PM] The Bedford Times-Mail has updated information here, including photos. The story, reported by Diana Wires, Bob Bridge and Roger Moon, begins:
Police have not released any information on the cause of death of 51-year-old Richard D. McIntyre Sr.
Police were called to his home just before 6 p.m. Tuesday and found McIntyre dead. * * *
McIntyre is survived by his wife and three children.
BEDFORD — Lawrence Circuit Court Judge Richard D. McIntyre Sr., 51, was found dead at his Brook Knoll home Tuesday night.The Times-Mail also has a story headed "Jurists mourn McIntyre," reported by Mike Lewis and Mike Ricketts, here.
Police received a call at 5:58 p.m., according to Bedford Police Department Maj. Dennis Parsley.
“I got a call saying Meredith (McIntyre’s wife) found him in the garage,” said Lawrence County Clerk Julie Blackwell Chase. “Rick was such a wonderful man. He was such a good friend, but then Rick was everyone’s friend.”
Lawrence County Coroner John Sherrill confirmed McIntyre died, and was found in a detached garage. No firearm was involved, but he would not elaborate on how McIntyre died.
Sherrill said a post-mortem examination will be conducted today, and further information will be available later today or Thursday. McIntyre’s death remains under investigation.
Ind. Courts - "Gary Judge springs lawyer without requiring bond"
Read the story by Lori Caldwell here in today's Gary Post-Tribune.
Ind. Decisions - More on "State has 128 days to retry Delph"
An attorney for Rex David Delph said Tuesday he is “99 percent certain” he will ask either that the Indiana Court of Appeals to review its ruling giving prosecutors 128 days to try the accused double murderer or that a higher court review the decision. * * *
The appeals court ruled on Friday that the Madison County Prosecutor’s Office has 128 days to try Delph on charges he intentionally set the May 2004 fire that killed his wife and son.
Madison Circuit Court Judge Fredrick Spencer tossed out the charges against Delph in December, ruling that prosecutors took too long to bring Delph to trial. In general, prosecutors have a year from when charges are filed to put the defendant on trial. The appeals court’s ruling effectively reinstated the charges against Delph. * * *
Madison County Prosecutor Thomas Broderick Jr., who took office a month after Spencer dismissed the charges, said he plans on filing a motion in the coming days asking the judge to set a trial date.
“Our plan is that we’re going to move forward on the case, regardless of what the defense is planning,” he said.
Broderick said that, if defense attorneys ask the appeals court to review its own decision, the deadline to try Delph continues to close. If the Indiana Supreme Court agrees to review the ruling, then the case will be put on hold.
Cleary said if the appeals court declines to review its decision, he can still seek to have the case transferred to the Indiana Supreme Court.
Law - "Many Teens Don't Know the Law About Sex"
Shannon McCaffrey of the AP had a story yesterday, dateline Atlanta, that reported:
The tough Georgia law that sent Genarlow Wilson to prison for having oral sex with a fellow teenager has been watered down. But in Georgia — and in many other states — it's still a crime for teenagers to have sex, even if they're close in age.For more on the Indiana law, see this ILB entry from July 8th and this one from July 16th.
Legal experts say it's rare for prosecutors to seek charges. But, as the Wilson case illustrates, they can and sometimes do.
And the rising popularity of sex offender registries can often mean that a teen nabbed for nonviolent contact with someone a year or two younger might face the same public stigma as a dangerous sexual predator.
"It's ludicrous," Wilson's lawyer B.J. Bernstein said. "In order to look tough on crime they (lawmakers) are criminalizing teen sex."
Wilson was freed Friday after the Georgia Supreme Court found that the 10-year mandatory sentence he received for having oral sex with a 15-year-old girl at a New Year's Eve party in 2003 when he was 17 was cruel and unusual punishment. He had served almost three years in prison.
Georgia's law has since been rewritten to make the same act a misdemeanor punishable by up to a year in prison.
Across the country, ages of consent range from 14 to 18.
Lawyers and health educators say most teens — and even many parents — are unaware that even consensual teenage sex is often a crime. The patchwork of laws and ages from state to state leaves many confused and critics say more education is badly needed.
"We do a disgraceful job of educating kids about the very real consequences that they face," said J. Tom Morgan, a former DeKalb County district attorney who has a new book coming out called "Ignorance Is No Defense: A Teenagers Guide to Georgia Law."
"If society is going to punish them as adults," said Morgan, "then society ought to educate them." * * *
Some states have moved in recent months to craft so-called Romeo and Juliet exceptions to prevent sexually active teenagers from being lumped together with child molesters.
Indiana changed its law so that teens in "dating relationships" would not be prosecuted. Exactly what that means is unclear, said Larry Landis, executive director of the Indiana Public Defender Council.
"I think there is a view now that 'hey, maybe we overdid it on the sex offender registry,'" Landis said.
Connecticut changed its law to stop prosecuting teens if the age gap is three years or less. And Texas has changed the way it classifies sex offenders so that some low-risk teens will no longer have to register.
Tuesday, October 30, 2007
Ind. Decisions - More on: COA issues ruling in Smith and Wesson case
The city of Gary won an appeal Monday to allow its quest to make gun manufacturers liable for selling guns to criminals.Patrick Guinane of the NWI Times has more comprehensive coverage:
The ruling in the Indiana Court of Appeals could have national implications, the Brady Campaign to Prevent Gun Violence said.
The lawsuit names 16 firearms manufacturers.
Washington, D.C.-based attorney Brian Siebel, representing the city of Gary, said the manufacturers knowingly violated an Indiana public nuisance statute.
"Now we have to go to trial to prove it," Siebel told the Post-Tribune on Monday.
The ruling stems from a suit by Gary that resulted from a sting operation in 1998 that revealed that six northern Indiana gun dealers provided more than 60 percent of the crime guns recovered in Gary, Siebel said.
Some dealers were in the top 20 dealers in the United States selling crime guns.
"This is the first appellate court in the nation to rule on the scope of the federal gun industry shield law," Peter Hamm, representing the Brady Center.
The City of Gary can move ahead with a 1999 lawsuit seeking to hold gun manufacturers responsible for the criminal misuse of their products, the Indiana Court of Appeals ruled Monday.
In a unanimous decision, the three-judge panel allowed the city's public nuisance lawsuit to go to trial despite a new federal law intended to shield the firearms industry from most liability claims.
The Protection of Lawful Commerce in Arms Act -- approved by Congress and the president in 2005 -- does not protect gun manufacturers and sellers from liability in cases in which they "knowingly" violated state or federal laws concerning the marketing and sale of their products. The Court of Appeals, citing a 2003 decision by the Indiana Supreme Court, ruled the city can pursue its claim that gun manufacturers intentionally ran afoul of the state's public nuisance law.
"This is not simply suing them because they sell guns," said Brian Siebel, a senior attorney with the Brady Center to Prevent Gun Violence. "This is suing them because they sell guns in a manner that supplies the criminal market."
Gary contends gun manufacturers aided the flow of illegal weapons by selling to distributors and dealers that facilitated "straw purchases" in which a third party, often a friend or relative, purchased handguns on behalf of a convicted felon. The city launched the lawsuit after an undercover investigation in which police officers claiming to be straw purchasers were allowed to buy numerous handguns and ammunition from region gun dealers.
Dozens of cities, including Chicago, filed similar lawsuits in the late 1990s, but only a handful remain alive in the courts. The Brady Center, which helped represent Gary in the suit, called Monday's decision "a landmark ruling with national implications" for pending cases in New York and Washington D.C.
Meanwhile, the firearms industry dismissed the appellate ruling as a minor setback and vowed to continue the court battle.
"Obviously, we're disappointed by the ruling because the City of Gary's lawsuit is precisely the kind of lawsuit that the Protection of Lawful Commerce in Arms Act is intended to stop," said Lawrence Keane, senior vice president and general counsel for the National Shooting Sports Foundation. "I'm confident that we will pursue all appellate remedies available to us to stop this lawsuit."
The gun manufacturers named in the lawsuit, including Beretta U.S.A. Corp., Glock Inc. and Smith & Wesson Corp., could ask for a rehearing from the appellate court or petition for a transfer to the Indiana Supreme Court. Attorneys for the city, meanwhile, will prepare for a trial in Lake County Superior Court.
Ind. Decisions - Court of Appeals issues 1 today (and 13 NFP)
For publication opinions today (1):
In Michael Hale v. State of Indiana , a 13-page opinion, Judge Vaidik writes:
Michael Hale (“Hale”) appeals his conviction for dealing in cocaine as a Class A felony and his fifty-year sentence. Specifically, he argues that the trial court erred in denying his motion for mistrial, the evidence is insufficient to support his conviction, and his sentence is inappropriate. Concluding that the trial court did not abuse its discretion in denying Hale’s motion for mistrial, the evidence is sufficient to prove that he knowingly or intentionally delivered cocaine in an amount weighing three grams or more, and Hale’s sentence is not inappropriate in light of the nature of the offense and his character, we affirm the trial court.NFP civil opinions today (4):
Termination of the Parent-Child Relationship of N.R.L.S.; Corey Leonard Sneed v. St. Joseph County Department of Child Services (NFP) - "Corey Sneed appeals the trial court’s involuntary termination of his parent-child relationship with N.R.L.S., his minor child. On appeal, Sneed raises two issues, which we consolidate and restate as whether sufficient evidence supports the trial court’s conclusion that continuation of the parent-child relationship poses a threat to N.R.L.S.’s well-being. Because we conclude sufficient evidence supports the trial court’s determination, we affirm."
ITermination of the Parent-Child Relationship of C.N.; Valerie Newman and Josh Newman v. Scott County Department of Child Services (NFP) - "For the foregoing reasons, we affirm the trial court’s involuntary termination of Mother and Father’s parental rights to C.N."
In Old Paths Baptist Church, an Unincorporated Association, and John T. Lewis v. Dan Young, Duane Cleghorn, Bert Engler, et al (NFP), a 24-page opinion, Judge Robb writes:
Old Paths Baptist Church, an independent unregistered church in Campbellsburg, Indiana (“Old Paths”), appeals from the trial court’s judgment against it in its action against various individuals regarding a dispute over ownership of land. In addition, John Lewis, pastor of Old Paths, appeals from the trial court’s judgment against him on Nora Shepherd’s counterclaims against him. * * *Mirar Development, Inc. v. Leland Mark Scott (NFP) - "Mirar Development, Inc. (“Mirar”) appeals the judgment of the Lake Circuit Court in favor of Leland Mark Scott (“Scott”) in Scott’s action seeking payment for work performed as a sub-contractor on behalf of Mirar. Upon appeal, Mirar presents two issues, which we restate as: (1) whether the applicable statute of limitations bars Scott’s action; and (2) whether the amount awarded to Scott was proper.
The trial court properly determined that there was an oral contract for the purchase of land and that part performance of the contract removed it from the requirements of the Statute of Frauds. Evidence adduced at trial supported the trial court’s order of specific performance and imposition of a constructive trust. The trial court’s findings regarding the legal descriptions of the three parcels of land were supported by the evidence. Lewis was not deprived of due process in the service of Nora’s counterclaims against him, and the trial court’s conclusion that Lewis should pay Nora’s attorney’s fees was not clearly erroneous. The judgment of the trial court is, therefore, affirmed.
NFP criminal opinions today (9):
Eddie G. Love v. State of Indiana - "Love’s argument is merely an invitation to assess the informant’s credibility and reweigh the evidence in his favor. This we may not do. Therefore, we affirm."
Ind. Decisions - More on: 7th Circuit decides legislative prayer case, dismissing for lack of standing [Updated]
All prayers, including those to Jesus, once again can be given from the podium of the Indiana House.[Updated] See this entry by Robert Loblaw's Decision of the Day and this entry from Gary Welsh's Advance Indiana.
The 7th U.S. Circuit Court of Appeals in Chicago ruled today to overturn the decision of a U.S. district court judge who ruled that sectarian prayers could not be offered from the floor of the Indiana House.
The initial decision, rendered by U.S. District Judge David Hamilton in November 2005, ruled that opening prayers in the House could not mention Jesus nor endorse a particular religion. Then House Speaker Brian Bosma, R-Indianapolis, appealed that decision and current Speaker B. Patrick Bauer, D-South Bend, decided to continue it.
The lawsuit challenging the House prayers was filed by the American Civil Liberties Union of Indiana on behalf of four citizens.
In a 2-1 ruling today, the appeals court said those plaintiffs did not have the standing to sue because public tax dollars could not be linked to the practice of prayer.
Ind. Decisions - In addition to legislative prayer decision, 7th Circuit issues two other Indiana decisions today
In Digrugilliers v. City of Indianapolis (SD Ind., Judge Barker), a 10-page opinion, Judge Posner writes:
The plaintiff is the pastor of the Baptist Church of the West Side, a small congregation (30 to 50 members) that conducts church services in a building that it has leased in a part of Indianapolis zoned C-1. Under the Indianapolis zoning code, the church’s building is a “religious use,” defined as “a land use and all buildings and structures associated therewith devoted primarily to the purpose of divine worship together with reasonably related accessory uses, which are subordinate to and commonly associated with the primary use, which may include but are not limited to, educational, instructional, social or residential uses.” City of Indianapolis Zoning Code § 735-751(b). A religious use is forbidden in C-1 districts without a zoning variance. So the City told the plaintiff that he would have to either apply for a variance, which would require a proceeding before the board of zoning appeals, see Ind. Code § 36-7-4- 918.4, or move his church. The plaintiff did neither, but instead brought this suit; he is authorized by the charter of the church to sue on the church’s behalf.
The suit charges that the requirement of obtaining a variance in order to make a religious use of land in C-1 districts violates the provision of the Religious Land Use and Institutionalized Persons Act of 2000 [RLUIPA], 42 U.S.C. § 2000cc et seq., that forbids a local government to “impose or implement a land use regulation in a manner that . . . . treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” § 2000cc(b)(1). The plaintiff moved for a preliminary injunction that the district court denied on the sole ground that the suit has negligible prospects of success. The plaintiff appeals from that denial. * * *
So the plaintiff’s claim that the City is violating the federal Act has at least some, and possibly great, merit. The district judge, having ruled that it had no possible merit, did not consider the other factors, besides the merits, that are germane to the decision whether to grant or deny a preliminary injunction. The judge would have been right to pretermit that inquiry had she been right that the claim had no merit; but we have seen that it has at least some merit, and no more is required to necessitate an inquiry into the balance of irreparable harms. Cavel International, Inc. v. Madigan, No. 07-2658, 2007 WL 2239215, at *4 (7th Cir. July 18, 2007). The balance seems to favor the plaintiff. If his church must vacate its premises while his case wends its way to completion, the church’s religious activities will be hampered. It is hard to see what difference it can make to the City if the church is allowed to remain in its current premises until final judgment (by which we do not mean the Day of Judgment). The church has been in its present premises since the middle of 2005, without, so far as appears, causing any trouble to anyone, including other users of land in its vicinity. But striking the balance of irreparable harms (the harm to the plaintiff if preliminary relief is denied, the harm to the City if it is granted) is a task for the district court in the first instance. REVERSED AND REMANDED.
In Holmes v. Buss (SD Ind., Judge McKinney), a 15-page opinion, Judge Posner concludes:
We do not prejudge the remand. As the petitioner’s lawyer concedes, the fact that a litigant is psychotic does not mean that he cannot assist in his case, United States v. Teague, 956 F.2d 1427, 1432 (7th Cir. 1992); Eddmonds v. Peters, 93 F.3d 1307, 1314 (7th Cir. 1996); Smith v. Armontrout, 865 F.2d 1502, 1506 (8th Cir. 1988) (en banc), especially at the appellate level. United States v. Roberts, 915 F.2d 889, 891-92 (4th Cir. 1990). Much of the time, even at the December hearing, the petitioner was lucid, even articulate. He has a good memory, at least a rudimentary familiarity with the legal process, knows who he is, where he is, etc.; and we take seriously the possibility voiced by Dr. Olive that the petitioner is malingering. If he is not malingering, however, he seems insanely preoccupied with a frivolous ground of appeal and oblivious to the other, more substantial, grounds that his lawyers wish to press, as well as severely distracted by fear of diabolical beings who are scheming against him, preventing him from reading any documents relating to his case. These matters require further exploration in the district court, pending which the appeals will remain on our docket. REMANDED
Ind. Decisions - Supreme Court grants rehearing and modifies opinion in Anglemyer
In Alexander Anglemyer v. State of Indiana, a 4-page ruling on a petition for rehearing, Justice Rucker writes:
The defendant-petitioner, Alexander J. Anglemyer, seeks rehearing following our decision affirming his sentences for robbery and battery. We grant rehearing solely to clarify that a defendant who pleads guilty does not forfeit the opportunity to claim on appeal that the trial court should have considered his guilty plea a mitigating circumstance even though the defendant failed to assert this claim at sentencing.
Ind. Decisions - 7th Circuit decides legislative prayer case, dismissing for lack of standing
The 7th Circuit has issued its long-awaiting decision today in the legislative prayer case, dismissing it for want of jurisdiction. [For background, see this long list of ILB entries.]
In Hindrichs v. Bosma [now styled Speaker of the House of Representatives] (SD Ind., Judge Hamilton), a 57-page, 2-1 opinion in the case argued Sept. 7, 2006 and issued Oct. 30, 2007, Judge Ripple writes:
Four Indiana taxpayers, Anthony Hinrichs, Henry Gerner, Lynette Herold and Francis White Quigley, brought this action against the Speaker of the House of Representatives of the Indiana General Assembly, challenging the House’s practice of opening each session with a prayer. The district court agreed with the plaintiffs that the practice of legislative prayer as implemented by the House violated the Establishment Clause and issued a permanent injunction. The Speaker timely appealed and sought a stay of the district court’s ruling pending full briefing before this court. We denied the stay but noted that our decision was based only on a preliminary understanding of the facts surrounding Indiana’s practice. See Hinrichs v. Bosma, 440 F.3d 393 (7th Cir. 2006). After briefing, oral argument and supplemental briefing, we now hold that the plaintiffs do not have standing to maintain this action. We therefore reverse the district court’s judgment and remand the action with instructions to dismiss for want of jurisdiction.
In the present case, the plaintiffs are challenging the practice of legislative prayer as implemented by the Indiana House of Representatives. It is clear from the parties’ stipulations that Indiana’s practice consists of a “Minister of the Day” program that involves the offering of a prayer by a member of the clergy with representatives filling in to offer the invocation only when “no cleric [is] present.” R.16 at 3. The program, as it is presently administered, is not mandated by statute. The origin of the practice is House Rule 10.2, and that rule merely provides that a prayer or invocation be given each meeting day before the House conducts any business. The manner in which the program is currently administered is a matter of House tradition, implemented at the discretion of the Speaker. Although there is some minimal amount of funds expended in the administration of the program, the plaintiffs have not pointed to any specific appropriation of funds by the legislature to implement the program. Furthermore, other than the costs of webcasting, the only costs incurred are postage for the sending of thank-you letters and pictures. These costs not only are unrelated to the content of the prayers offered, they are unnecessary for the administration of the “Minister of the Day” program.
Under these circumstances, we simply cannot conclude that the nexus requirements of Flast, as explained in Hein, have been met. The plaintiffs have not tied their status as taxpayers to the House’s allegedly unconstitutional practice of regularly offering a sectarian prayer. They have not shown that the legislature has extracted from them tax dollars for the establishment and implementation of a program that violates the Establishment Clause. The appropriations, which cover the incidental costs of the program, “did not expressly authorize, direct, or even mention the expenditures,” Hein, 127 S. Ct. at 2566, attendant to the “Minister of the Day” program. Instead, the plaintiffs allege only an “ ’expenditure of government funds in violation of the Establishment Clause,’ ” which the Court explicitly rejected as inadequate in Hein. Id. at 2565 (internal citations omitted). * * *
We are well aware of the time and energy that the parties and the district court have expended on the merits of this matter. However, “[i]f a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.” Cuno, 126 S. Ct. at 1860-61.
Conclusion. For the foregoing reasons, we reverse the district court’s judgment, and we remand the case to the district court with instructions to dismiss for want of jurisdiction. The Speaker may recover his costs in this court.
[Dissent by Judge Wood beginning on p. 33, concludes on p. 56-57] In my view, the taxpayer-plaintiffs before us have alleged enough to win the right to present their challenge to the House Prayer before a judicial forum. They are challenging a legislative act, and they have alleged concrete pocketbook injuries. Given both the ruling in Marsh and the qualifications on that ruling, the issue they wish to present is a serious one. They argue, in essence, that preferential access to the Speaker’s stand for adherents to the Christian faith is exactly the kind of problem that the First Amendment’s Establishment Clause was supposed to remedy. Were this a simple Establishment Clause case in which they complained about hearing the prayers as they walked past the door of the House Chamber on their usual way to work, they may very well have been entitled to proceed. The majority overextends the command of Freedom From Religion in denying them a day in court. I respectfully dissent.
Ind. Courts - Diversion programs may come under question [Updated Twice]
There was a time when people who committed crimes while under the influence of drugs or alcohol would serve their sentences and then be released — right back into the environment that led them to jail in the first place.Yesterday, Indianapolis' WIBC News posted a story by Eric Berman on the topic:
Increasingly, however, the criminal justice system recognizes that alcohol and drug offenders need follow-up treatment and monitoring to prevent them from relapsing into the same criminal conduct.
That's the rationale behind Vanderburgh County's Day-Reporting Drug Court, founded and administered by Superior Court Judge Wayne Trockman.
Prosecutors will have to account for diversion programs that let you keep traffic violations off your record, if a legislative study committee recommendation becomes law.Re truckers, see this Aug. 15 ILB entry.
Most Indiana prosecutors let you avoid a traffic fine by paying a fee instead. The prosecutor's office keeps the money, and as long as you don't break the law again, your record stays clear.
Senator Tom Wyss (R-Fort Wayne) complains no one checks to make sure you didn't slip up. And he says he's seeing too many drunken-driving charges reduced to reckless driving, and then dropped through diversion. Wyss says that sends the wrong message about the seriousness of DUI.
Drunken driving has been Wyss's signature issue in the Senate. He spearheaded the lengthy battle to lower the legal blood-alcohol limit to .08%.
Wyss charges some prosecutors are letting truckers into diversion programs, even though federal law specifically prohibits that. The study committee he chairs [ILB - see information at the end of this entry] wants prosecutors to turn over an annual list of every vehicle-related charge they file and what happens to them.
The legislative committee charged with studying the issue is the Forensic Diversion Study Committee, which according to press reports quoted by the ILB, heard a number of judges and others testify on forensic diversion programs. Unfortunately, as is the case with most other interim legislative committees, the information made available to the public is sketchy at best. Here the only items posted are meeting agendas and the names of the members.
Senator Wyss is not on the Forensic Diversion Study Committee. He does chair the Interim Study Committee on Transportation Matters, which apparently is to be the source of these legislative recommendations on forensic diversion programs.
[Updated 10:00 AM] The ILB has received a communication from the Honorable Thomas J. Felts, Judge, Allen Circuit Court, who is also head this year of the Indiana Judges Association:
I know this is a topic that has had much discussion in the past and will likely have more this session. One correction I did want to point out, though, is that the Forensic Diversion Study Committee has no connection with the type of "diversion" programs mentioned in your posting. I was a member of the initial Study Committee appointed by then-Gov. Kernan and have served on the Committee ever since. Forensic Diversion is a statutory process whereby those with diagnosed mental health and/or substance abuse disorders are identified early in the criminal justice process and, depending on the county, are required to participate in specific treatment-related programming. In our program in Allen County, the "diversion" aspect is diversion from the Department of Corrections (who provided funding for pilot programs in 6 counties which run through next Spring) - not diversion such as the type I believe Sen. Wyss is discussing (reckless driving, etc.).The ILB certainly appreciates the clarification.
[Updated again at 11:45 AM] The Honorable David Chidester, Porter Superior Court IV, agrees, writing: "Forensic Diversion is not Senator's Wyss's target. It is pre-trial diversion through the prosecutor's office." He continues:
I am involved in a case where defense counsel has challenged the court's authority to determine compliance with a pre-trial diversion agreement. Sua Sponte, I re-docketed the matter to begin as a new pending criminal case. The defense attorney has moved for a change of judge, citing my sua sponte prejudice. I issued the attached Order, finding that judges do have authority to check compliance with pre-trial diversion. But, the matter would be clear if Senator Wyss would include 3 key provisions in the pre-trial diversion statute:1. Allow judges discretion to reject a pre-trial diversion;The reason the prosecutor should not determine compliance is that often, they are protective of their agreement and won't re-docket even if they know the agreement has been breached. I would also split the fee the prosecutors receive for the pre-trial diversion in half, with 1/2 to the prosecutor and 1/2 to the county general fund, as Courts spend a lot of time on diversion agreements and the prosecutors reap 100% of the deal. I hope to reach Senator Wyss soon.
2. Allow judges to control compliance and re-docket if the pre-trial diversion agreement fails;
3. Mandate that if a defendant fails in his/her pre-trial diversion, he/she may not be allowed to re-enter a diversion program;
4. Mandate that a pre-trial diversion may not be applied to a lesser charge; (that would cure the reckless driving from DUI issue).
Monday, October 29, 2007
Ind. Law - Rochester Indiana's Ted Waggoner quoted in Nov. ABA Journal
"Charging by the Slice: Value billing shows that breaking up (the case) isn’t hard to do" is the title of a feature story by Margaret Graham Tebo in the November issue of the ABA Journal. Here is how the story begins:
Blame it on Abraham Lincoln. The 16th president is often credited with the adage “A lawyer’s time and advice are his stock-in-trade.” True enough. But the question is still how to charge a client for that.Waggoner is quoted again later in the story.
For as long as there have been lawyers, it seems, legal services have been charged by the hour.
But new technology means lawyers can be more efficient, and lawyers must serve more clients to keep billable hours up. And to many lawyers, doing the job more quickly doesn’t mean the work is worth less.
Enter value billing, a relatively new idea that’s making its way to many solos and small-firm practitioners. Lawyers break a case into its component parts, charging a specific fee for each segment. The client can stop after any segment if she doesn’t have the next payment or doesn’t think it’s worth continuing. It also prevents the lawyer from doing work before getting paid.
For example, says Ted Waggoner of Rochester, Ind. [pictured here], he might tell a client that for a certain fee he will make calls and write letters to settle a case. If the case doesn’t settle, he will conduct discovery for another set fee. If the case still doesn’t settle after discovery and the client wishes to continue and file the lawsuit, a third specific fee will be due.
“People don’t often understand the value of what you do,” Waggoner says. “Now I spend more time talking to potential clients to get a feel for what the case is worth to them.”
Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)
For publication opinions today (3):
Smith & Wesson Corp., et al & United States of America v. City of Gary, Indiana by its Mayor Rudy Clay - see ILB summary here, prepared earlier today.
In Mark A. Kline v. State of Indiana, a 7-page opinion, Judge May writes:
Mark A. Kline challenges his sentence for multiple counts of sex offenses against minors, arguing it exceeded the judge’s authority. We agree and remand for resentencing. * * *In Henry Banks, Jr. v. Dick Brown, C. Kinnaman, Sheryl Keyes, Janice Snider, Craig Hanks, a 4-page opinion (with high-powered counsel arguing on behalf of appellant), Judge May writes:
Kline did not file a belated appeal for the purpose of taking advantage of the new rule in Blakely. He raised other valid claims, which resulted in his case being remanded for resentencing in a post-Blakely world. If Kline must be resentenced, we see no reason why the trial court should not comply with the current state of constitutional law. Therefore, on remand, the trial court may not enhance Kline’s sentence based on additional facts “unless those facts are either (1) a prior conviction; (2) facts found by a jury beyond a reasonable doubt; (3) facts admitted by the defendant; [or] (4) facts found by the sentencing judge after the defendant has waived Apprendi rights and consented to judicial factfinding.” Robertson v. State, 871 N.E.2d 280, 286 (Ind. 2007).
This case is remanded for resentencing in accordance with this opinion and the terms of the original plea agreement.
Henry Banks, Jr. appeals the judgment of the small claims court, arguing he is entitled to reimbursement from the State for his costs. We affirm. * * *NFP civil opinions today (6):
Costs are punitive in nature. City of Hammond v. Conley, 498 N.E.2d 48, 53 (Ind. Ct. App. 1986). Banks’ claim was brought pursuant to the Indiana Tort Claims Act, which prohibits awards of punitive damages against the State: “A governmental entity or an employee of a governmental entity acting within the scope of employment is not liable for punitive damages.” Ind. Code § 34-13-3-4(b). Accordingly, Ind. Code § 34-13-3-4(b) prohibits the assessment of costs against the State. For these reasons, the court’s order denying Banks’ request for costs is affirmed.
Molly Allen, Joe M. Gilstrap, et al. v. Great American Reserve Insurance Company and CONSECO Insurance Company (NFP) - "The determinations by this court and our Supreme Court that the Flex II policy had a front-end load are the law of the case, and the trial court was obliged to so find in considering the subagents’ amended complaint on remand. We accordingly affirm.
In Re the Matter of the Involuntary Commitment of R.K. (NFP) - "The trial court found that R.K. was gravely disabled, and the trial court’s commitment order represents a conclusion that a reasonable person could have drawn and was sufficiently supported by clear and convincing evidence."
Steven B. Sexton v. Deborah L. Sexton (NFP) - "Steven B. Sexton appeals the division of marital property in the dissolution of his marriage to Deborah L. Sexton. He claims the court erred in finding certain of his retirement benefits were vested and erred in dividing the marital assets equally between the parties. We affirm."
Frank Polston v. Donna Jean Polston (NFP) - "Frank Polston appeals the order dissolving his marriage of twenty-nine years to Donna Jean Polston. Frank claims the court abused its discretion when it divided the marital estate equally and declined to award him spousal maintenance. We affirm."
James Jason Boren v. Valerie L. Boren (NFP) - "We conclude that the trial court did not err in denying Father’s petitions for contempt and to terminate parenting time, granting Mother’s petition to modify parenting time, and rescinding its order appointing a CASA."
Aaron (Israel) Isby v. Allen Finnan (NFP) - "Aaron (Israel) Isby appeals the Allen Superior Court’s determination it did not have jurisdiction over his motion for writ of habeas corpus. Because exclusive jurisdiction over his motion lies in Sullivan County, we affirm."
NFP criminal opinions today (2):
Ind. Decisions - COA issues ruling today in Smith and Wesson case
Oral arguments were heard by the COA earlier this month in the case of Smith and Wesson Corporation, et al v. Town of Gary, et al. Today the COA has issued its ruling, notable in part for the 3 pages of names lined up on the side of Smith & Wesson:
In Smith and Wesson Corporation, et al v. Town of Gary, et al, a 24-page opinion, Judge Sharpnack writes:
Smith & Wesson, et al. (“Manufacturers”), bring this interlocutory appeal from the trial court’s denial of their motion to dismiss or, in the alternative, motion for judgment on the pleadings in the action brought by the City of Gary, Indiana (“City”). The Manufacturers raise two issues, which we restate as:For background on the case, start with this ILB entry (2nd half) from Sept. 8th, including links to the Indiana Supreme Court's 2003 ruling and then Lake Superior Court Civil Division 5 Judge Robert Pete's Oct. 6, 2006 ruling that "a year-old federal law shielding gun makers from lawsuits" was unconstitutional.
I. Whether the Protection of Lawful Commerce in Arms Act (“PLCAA”), 15 U.S.C. §§ 7901-7903, bars the City’s nuisance claims; andBecause we conclude that the PLCAA does not bar the City’s claims, we need not address the constitutional issues. We affirm. * * *
II. Whether the PLCAA violates the Due Process Clause, separation of powers principles, and the Tenth Amendment.
Indiana’s public nuisance statute was a legislative enactment, which the Indiana Supreme Court interpreted as applying to the City’s claim. Thus, we conclude that the City’s claim is not an attempt to expand the common law and that it is not an attempt to circumvent the legislative branch of government. * * *
Based on the language of the predicate exception, the specific context of the predicate exception, and the broader context of the PLCAA, we conclude that the predicate exception is unambiguous. Because the City’s complaint and the Indiana Supreme Court’s opinion indicate that the City alleged that the Manufacturers “violated a State or Federal statute applicable to the sale or marketing of the product,” we conclude that the City’s action falls under the predicate exception and is not barred by the PLCAA. Because we conclude that the predicate exception applies and that the PLCAA does not bar the City’s claims, we need not address the remaining issues.
For the foregoing reasons, we affirm the trial court’s denial of the Manufacturers’ motion to dismiss or, in the alternative, motion for judgment on the pleadings in the action brought by the City.
Ind. Decisions - Upcoming oral arguments this week
[Note: The information below is compiled each Monday morning from the online court oral argument calendars and the court oral arguments online website.]
This week's oral arguments before the Supreme Court:
This Thursday, Nov. 1st:
9:00 AM - Querrey & Harrow v. Transcontinental Ins. Co. - Transcontinental, an excess insurer, filed a legal malpractice claim against the attorneys who had represented the insured in an earlier case. The Lake Superior Court denied the attorneys' motions for summary judgment. In this interlocutory appeal, the Court of Appeals reversed and held that the attorneys could not be held liable to Transcontinental and were entitled to summary judgment. Querrey & Harrow, Ltd. v. Transcontinental Ins. Co., 861 N.E.2d 719 (Ind. Ct. App. Feb. 19, 2007), vacated. [See ILB entry here.] The Supreme Court has granted a petition to transfer and has assumed jurisdiction over the appeal. Attorneys for Querrey & Harrow; Robert Brown of Merrillville, IN and James Stamos and George Hoffman of Chicago, IL. Attorney for Sanders Pianowski, LLP; Edward Hearn of Highland, IN. Attorneys for Transcontinental Ins. Co.; Andrew Crosmer of Dyer, IN and Gary Grasso of Burr Ridge, IL.
9:45 AM - Emma McPeek v. Charles McCardle - McPeek sought a declaration that the marriage of her late mother to McCardle, which was licensed in Indiana but solemnized in the State of Ohio, was invalid. The Circuit Court of Ohio County, Indiana, dismissed the lawsuit after concluding that the marriage was voidable, not void, and could not be challenged by McPeek. The Court of Appeals affirmed, concluding that our statutes do not require that a marriage licensed in Indiana be solemnized in Indiana and, alternatively, that the alleged defect would not render the marriage void. McPeek v. McCardle, 866 N.E.2d 387 (Ind. Ct. App. May 17, 2007), vacated. [See ILB entry here.]The Supreme Court has granted a petition to transfer and has assumed jurisdiction over the appeal. Attorney for McPeek: Leanna Weissmann, Lawrenceburg, IN. Attorney for McCardle: Alison T. Frazier, Dupont, IN.
10:30 AM - Sergio Campos v. State - After a routine traffic stop, police found cocaine in the truck of a vehicle in which Campos was a passenger, and Campos was charged with dealing in cocaine. The Lake Superior Court denied Campos’s motion to suppress the cocaine and a recording of statements by Campos during the search. The Court of Appeals affirmed in Campos v. State, 867 N.E.2d 676 (Ind. Ct. App. June 7, 2007). Campos has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorney for Campos: Kathleen Sweeney, Indianapolis, IN. Attorney for State: Ann L. Goodwin, Indianapolis, IN.
Webcasts will be available here.
This week's oral arguments before the Court of Appeals that will be webcast:
This Wednesday, Oct. 31st:
1:30 PM - Michael A. Linton, M.D., v. Lawanda Davis - Appellant, Dr. Linton, requests this court to decide three issues, raised as matters of first impression in Indiana: (1) Whether the trial court abused its discretion by admitting into evidence testimony regarding the proceedings and rulings of the Indiana Medical Licensing Board; (2) Whether the trial court abused its discretion by excluding from evidence the Indiana Medical Review Panel's statutory determination not to forward Dr. Linton's name to the Medical Licensing Board; and (3) Whether the trial court abused its discretion by disallowing Ivanka Prcevski (nurse Prcevski), called as a skilled lay witness pursuant to Ind. Evidence Rule 701, to testify about her interpretation of the baby's well-being during Davis' labor and delivery. The Scheduled Panel Members are: Judges Sharpnack, Riley and Kirsch. [Where: Indiana Supreme Court Courtroom.]
Webcasts will be available here.
This week's oral arguments before the Court of Appeals that will NOT be webcast (unless otherwise noted, arguments take place in the Indiana Court of Appeals Courtroom):
This Monday, Oct. 29th:
12:00 PM - Shafer & Freeman Lakes Conservation Corp. v. Justin Stichnoth - Justin Stichnoth and his wife filed a complaint alleging that the negligence of Shafer & Freeman Lakes Environmental Conservation Corporation caused the injuries that Justin sustained when he dove into Lake Shafer from his parent's dock and struck a dredge pipe that had been installed in the channel. Justin's parents and an engineering firm were later added as nonparties. At the close of trial, a jury assessed 50% fault to the Corporation. On appeal, the Corporation contends that the trial court (1) should have granted its summary judgment motion on the issue of whether Justin was a licensee when he dove into the lake; (2) should have granted the Corporation's request to hold separate trials on liability and damages; (3) should not have permitted an expert's testimony regarding Justin's earning capacity; and (4) should have allowed the Corporation to withdraw its nonparty defense. The Scheduled Panel Members are: Judges Najam, Mathias and Bradford. [Where: Moot Court Room of the Indiana University School of Law in Bloomington.]
This Tuesday, Oct. 30th:
1:00 PM - Andre Deshazier v. State of Indiana - Andre Deshazier was convicted of carrying a handgun without a license, a Class C felony, two counts of resisting law enforcement, a Class D felony and a Class A misdemeanor, and possession of marijuana, a Class A misdemeanor. He was sentenced to an aggregate sentence of twelve years. Deshazier appeals, contending the evidence was insufficient to convict him of carrying a handgun without a license; his sentence exceeds that allowed by statute for crimes committed in "an episode of criminal conduct"; and he was subjected to double jeopardy by being convicted and sentenced for two counts of resisting law enforcement. The Scheduled Panel Members are: Judges Kirsch, Robb and Barnes. [Where: Benton Central High School, Oxford, Indiana]
1:00 PM - Jet Credit Union vs. John V. Loudermilk, et al, - Jet Credit Union believed Loudermilk, a director and officer, committed acts of malfeasance and caused Jet financial losses. It did not allow Loudermilk to withdraw funds he had on deposit with Jet while it was trying to determine Loudermilk's financial liability. The trial court determined Jet could not withhold the money, and Jet released it. Loudermilk later sued Jet for criminal conversion and obtained summary judgment, which Jet appeals. The Scheduled Panel Members are: Judges Sharpnack, Bailey and May.
This Wednesday, Oct. 31st:
11:00 AM - Terrance A. Hood vs. State of Indiana - Terrance Hood seeks a reversal of his conviction for Voluntary Manslaughter, a Class A felony, contending that the State failed to rebut his evidence of self-defense. He also challenges the trial court's decision to impose an enhanced sentence of forty years for that crime, and to impose a consecutive sentence of six years for Carrying a Handgun Without a License, a Class C felony. The Scheduled Panel Members are: Judges Darden, Bailey and Robb. [Where: Shircliff Auditorium, Shircliff Humanities Building, Vincennes University, Vincennes, Indiana ]
This Friday, Nov. 2nd:
10:00 AM - Plaza Group Properties v. Spencer County Plan Commission - This appeal presents issues related to how and when a business can establish lawful conforming use status as a sexually oriented business. The Scheduled Panel Members are: Chief Judge Baker, Judges May and Crone. [Where: Indiana Supreme Court Courtroom, but apparently not to be webcast]
Sunday, October 28, 2007
Courts - "Judicial Races Now Rife With Politics"
That is the headline to a long story on page 1 of the Sunday Washington Post, reported by Robert Barnes. Some quotes:
Judicial elections are an almost uniquely American invention, with a patchwork of more than 16 selection systems spread across the country. In the 21 states that hold direct partisan and nonpartisan elections for the high court, some already have evolved from quiet, down-ballot contests to full-blown campaigns with consultants and multimillion-dollar advertising campaigns. An Illinois Supreme Court contest in 2004 cost more than 18 of the 34 U.S. Senate contests that year, and candidates for chief justice of the Alabama Supreme Court last year raised a total of $8.2 million.
The spending increases in large part reflect a decision by business groups to get involved in the contests. The National Association of Manufacturers announced in 2005 that it was establishing the American Justice Partnership to promote tort reform in the states, and the resulting battles between trial lawyers and business groups such as the Chamber of Commerce have led to some of the most expensive campaign battles.
A large majority of the money raised for races in 2005 and 2006 was spent in 10 states, and 44 percent of it came from business interests, the National Institute on Money in State Politics found. That was about twice as much as was given by lawyers, who had traditionally funded the campaigns.
The heightened spending and increasingly aggressive tone of the contests have alarmed nonpartisan groups and judges from around the country. Retired Supreme Court justice Sandra Day O'Connor, a longtime critic of judicial elections, has taken the lead in denouncing what she has called the "arms race" in campaign fundraising, and at a recent conference she presided over at Georgetown University Law Center, two of her like-minded former colleagues -- Justices Stephen G. Breyer and David H. Souter -- were in the audience.
"The reputation of the American judiciary is in the hands of the state courts," Breyer said. The rising demands on judges to raise money for their expensive campaigns -- plus the spending of outside groups -- could lead to the impression that the courthouse door "is open to some rather than the door is open to all.''
Thomas R. Phillips, a retired chief justice of the Texas Supreme Court, said canons of conduct outside the courtroom make judges "uniquely unable to defend themselves from attacks" from groups angry about unpopular decisions that judges have made.
That issue has particular resonance in Pennsylvania, where a 2005 middle-of-the-night decision by the legislature to grant pay raises for all three branches of government continues to roil state politics.
The state Supreme Court ruled that lawmakers could rescind their own pay raises but not those for judges. The state constitution did not allow judicial salaries to be reduced, the court said, a prohibition meant to insulate judges from political retaliation. Electoral retaliation was another matter: One justice lost his seat when he faced voters later that year.
Now, a group called PACleanSweep is urging voters to reject 66 of the 67 sitting judges on the ballot for retention this year -- the only exception being one judge who returned her raise to the state treasury.
Environment - More on "States eye lakes water management"
While the West burns and the Southeast bakes, there is little to suggest a large-scale, climatological catastrophe playing out any time soon in the Midwest. In fact, farmers in Iowa and Minnesota had trouble last week harvesting their corn and soybean crops because there had been too much rain.More from the story:
But potentially huge battles over water are looming in the Great Lakes region as cities, towns and states near and far fight for access to the world's largest body of fresh surface water, all of it residing in the five Great Lakes.
Call them water wars, with the Great Lakes states hunkering down to protect what they see as theirs.
With fresh water supplies dwindling in the West and South, the Great Lakes are the natural-resource equivalent of the fat pension fund, and some politicians are eager to raid it. The lakes contain nearly 20 percent of the world's surface fresh water.The following quote particularly caught the eye of the ILB, given the Oct. 22nd ILB report of Indiana's arrangement with a Canadian bottling company:
"You're going to see increasing pressure to gain access to this [water] supply," said Aaron Packman, a professor of civil and environmental engineering at Northwestern University. "Clearly it's a case of different regional interests competing for this water."
Eight Great Lakes-area states, from Minnesota to New York, and two Canadian provinces have proposed a regional water compact that would, among other things, strengthen an existing ban on major water diversions outside the Great Lakes Basin, home to 40 million Americans and Canadians. That proposal still has to work its way through several legislatures, and then it must go to Congress, where the political balance of power has been tilting west and south for decades.
Coveting Great Lakes water is not a recent development. In the past two decades, governors have effectively resisted attempts to divert water outside the Great Lakes Basin. For instance, they joined forces with Canada in 1988 to block an effort by then-Illinois Gov. James Thompson to tap into the Great Lakes to help free up drought-stalled barge traffic in the Mississippi River.
Those are the loud fights, conjuring images of enormously expensive pipelines delivering billions of gallons of water daily to distant, parched lands.
But there also are smaller but no less significant frictions among the states trying to protect the water, notably in the Milwaukee suburb of Waukesha, which wants to pipe Lake Michigan water into its community because its drinking water wells show high levels of cancer-causing radium. The Waukesha conflict stems from the city's being outside the vast Great Lakes Basin, which means the Lake Michigan water it would use would not be returned to the lake; it would be lost, draining into the Fox River and ultimately down the Mississippi and into the Gulf of Mexico.
Waukesha is a small but important example of the potential precedent-setting nature of diverting water to a city or state outside the Great Lakes Basin.
"There's a concern that the thirsty in the Great Lakes region will set the precedent locally, even though they may be 5 or 10 miles outside the basin. But 20, 30 or 50 years from now, that precedent could be used to send water to far-flung reaches of the continent," said Peter Annin, author of "The Great Lakes Water Wars."
"If you make the exception at 15 miles, what about 30 or 50 or 500 miles? That's the fear," Annin said. * * *
Water levels of the Great Lakes are down substantially, and while that may be part of the historic cycle of ups and downs, water managers argue the region must jealously guard what is here. At the same time, more communities are discovering contamination of their drinking-water supplies, which already has increased the pressure to obtain Great Lakes water. A recent report forecast water shortages in northeast Illinois by 2020.
"We are the water belt of the nation, and we have a real opportunity to not only do the right thing environmentally but also have a sustainable management policy that makes tremendous economic sense for the region," said Todd Ambs, water division administrator for the Wisconsin Department of Natural Resources.
"I wouldn't say we are awash in water, but there's certainly enough [water] to have a strong economic driver," Ambs said, to lure back businesses that left the region.
In Michigan, Granholm fought with Nestle Waters North America over the company's pulling millions of gallons from Lake Michigan for its Ice Mountain bottled-water franchise. The state has negotiated limits on the amount the company can pump.
Ind. Courts - Evansville federal courthouse installs monitors in jury box
Kat Braser of the Evansville Courier & Press reports today:
Eight monitors installed this month in the jury box of the federal courthouse in Evansville have arrived in good time.
The screens, which will be used to display evidence and documents to jurors in upcoming federal trials, should save court officials from making stacks of photocopies during what federal court staff anticipate to be a busy start to 2008.
Dana Schuler, courtroom deputy, said the U.S. District Court for the Southern District of Indiana typically sees seven or eight trials per year, but 2008 may see more activity than usual. Schuler said trials are already scheduled to take place there in January, February and March of next year. * * *
Schuler said previously attorneys relied on a large, bulky single monitor. He added the layout of the jury box made it difficult for jurors to see the content displayed on the monitor in detail.
"Before we used one huge monitor to show some of these documents to jurors, or else they had stacks and stacks of papers to shuffle through," Schuler said. "These will make things easier."
The new monitors — each about the size of a laptop computer screen — are affixed in the jury box between seats, so that each juror is within arm's length of one. * * *
Schuler said the screens were previously installed in a federal courtroom in Indianapolis, but the recent installation here made Evansville the only federal courthouse in the Southern District of Indiana to receive the new monitors. [ILB - that is somewhat confusing.]
Saturday, October 27, 2007
Ind. Courts - More on "Donors wanted for $500,000 decorative Randolph County Courthouse roof"
WINCHESTER -- The plan: Use one historic Randolph County building to raise money for another.
On Sunday, a group of residents -- who call themselves the Save Our Courthouse group -- will open the doors of the former county home for public tours. Organizers say it might be the first time in the building's history that the doors will be open to the public.
And though it's now void of residents -- the last ones were moved out last year -- the building is full of ornate and interesting architecture. The cost of admission -- $10 in advance or $12 at the door -- will go to a fund to help recover some of the history that was torn off the top of another local structure -- the county courthouse, on Winchester's downtown square.
Environment - "States eye lakes water management"
On October 22nd the ILB posted an entry headed "Canadian company mining Indiana aquifer." The entry concluded:
No talk here of water management policies. The day may soon be past, and perhaps it should be already, when a community will so eagerly, and with the help of the state administration, sell off the rights to draw down its aquifer for the promise of 100 jobs.Today Gitte Laasby of the Gary Post-Tribune reports:
Great Lakes water levels are near historic lows. And with droughts in the Southeast and Southwest, the pressure to turn to the Great Lakes as a source of fresh water is growing.
So is the need for states to pass the Great Lakes Compact to prevent diversions.
The Georgian Bay Association released new figures in August indicating that an extra 2.5 billion gallons of water are being drained from the lakes every day. It takes about 99 years for water in Lake Michigan to replenish itself.
Meanwhile, New Mexico Gov. and Democratic presidential hopeful Bill Richardson hinted earlier this month that he'd be willing to divert Great Lakes water when he said "states like Wisconsin are awash in water." He later partially withdrew that statement. * * *
State groups and supporters of the Compact expect to have legislation for the Indiana General Assembly to consider this spring. The compact says states have discretion to decide their own thresholds for diversions, but the default is 100,000 gallons per day.
Indiana has suggested new or increased withdrawals from Lake Michigan be capped at 5 million gallons per day on average for a 90-day period. Withdrawals from other lakes, streams or groundwater would be capped at a million gallons per day average. Above those limits, facilities would need a permit from the state.
Existing uses, for instance municipal plants, would be protected up to the facilities' current withdrawal capacity, but require a permit to go beyond.
There's bipartisan support for the compact, but a short legislative session doesn't leave room for many delays. Minnesota and Illinois have already adopted it. For the compact to take effect, the states would have to pass identical legislation and Congress would need to approve. [Emphasis added by ILB.]
Ind. Courts - More on: Special prosecutor named in attorney's fatal DUI case
A former state attorney accused of drunken driving in a fatal wreck now faces a drug-related charge in that crash.
Charges allege that Terry Record, 27, caused the accident in May after leaving a strip club, where police said he had been drinking heavily. Jimmy R. Cash, 46, died at the scene.
The new charge is operating a motor vehicle with marijuana detected in the blood, causing death. Special prosecutor Barry Brown submitted the new charge to a Marion Superior Court judge, and Record's attorney did not object to its acceptance during a hearing Friday.
Brown said lab test results showing signs of marijuana in Record's blood at the time of the crash spurred the new charge. The Class B felony carries a penalty of six to 20 years in prison.
Record already faced two counts of operating a vehicle while intoxicated, causing death, and another count of reckless homicide. The lead drunken-driving charge also is a Class B felony. * * *
During Friday's hearing, Judge Grant Hawkins approved a two-week delay of Record's trial to March 10, on Brown's request.
The judge also will consider a request by Record's attorney, David E. Lewis, to let Record live with his grandmother in Evansville until the trial.
Hawkins said he likely will grant the request over Brown's objection as long as electronic monitoring will be used.
Ind. Courts - More on: Evansville attorney previously charged with meth violatons allegedly fails drug test
A local attorney who was jailed for allegedly failing a drug test ordered as a condition of bail was released Friday when the test results turned out to be a false positive.
Teresa Perry's trial on methamphetamine charges stemming from her spring arrest had been scheduled to begin this week.
Instead, Perry spent the week in jail after testing positive for drugs during a required check-in.
Perry, 33, maintained the result was inaccurate, and Vanderburgh Superior Court Judge Wayne Trockman released her Friday after a follow-up drug screening contradicted the earlier one.
"The science proved our contention that she did not use drugs on bail. ... The truth was brought out," Perry's attorney, Doug Walton, said.
Perry's trial on eight counts related to distributing and possessing methamphetamine has been rescheduled for Dec. 10.
Trockman on Friday refused to discuss Perry's case specifically but said that "false positive" tests, while rare, are not unprecedented.
He said confirmation tests, which are requested by the court and take about three days to process, are 100 percent accurate.
Ind. Decisions - "State has 128 days to retry Delph"
The Indiana Court of Appeals has given the state 128 days to retry Rex Delph for two counts of murder, Class A felony arson resulting in bodily injury and two counts of felony murder, and Madison County Prosecutor Tom Broderick said his office would proceed promptly.
On Dec. 6, 2006, Judge Fredrick Spencer of Madison Circuit Court dismissed all charges against Delph, claiming the state took 429 days to bring the defendant to trial. The appellate opinion lists numerous continuances in the trial of Delph. * * *
Delph had sought the dismissal based on Criminal Rule 4(C), which states: “No person shall be held on recognizance or otherwise to answer a criminal charge for a period ... embracing more than one year from the date the criminal charge is filed or from the date of his arrest on such charge, whichever is later; except where a continuance is had on his motion or the delay was caused by his act or where there was not sufficient time to try him due to court congestion.”
According to a Herald Bulletin article at the time, Spencer said many of the continuances were because the prosecutor’s office failed to share evidence from the investigation. Delph’s attorney, Zaki Ali, was searching for two oil lamps found in Delph’s home. Ali, according to previous reports, wanted an expert to examine the lamps. It took two months to find the lamps in custody of the Anderson Fire Department, according to the Court of Appeals opinion.
The appellate court sought to break down the number of days that could be charged to the state and days charged to Delph to determine if the case violated Criminal Rule 4(C).
In the ruling, of the 429 noted by Spencer, 237 days were attributed to the state with the remainder to Delph. That means the state has 128 days to retry Delph.
“That’s not a great deal of time, if there are no other delays,” said Broderick.
“I will ask the judge Monday to set a trial date (in that time period). It will give us time to be prepared and look over evidence.”
Broderick said delays could come if Delph would request another look by the appellate court. Delph has 30 days to do so. Another 30 days could be added if, after another appellate review, Delph decided to transfer the case to the Indiana Supreme Court, according to Broderick.
Ind. Courts - "Two fresh faces run for judge: Goshen will get first new judge since '84"
That is the headline to a story today in the Elkhart Truth, reported by Tim Vandenack. Some quotes:
GOSHEN -- The race for judge of Goshen City Court features an Elkhart County prosecutor, Republican Gretchen Hess Lund, and longtime local attorney Joe Lehman, a Democrat.A second story, this one written by John Kline of the Goshen News and published Friday, begins:
Neither has held elective office, so it'll be a first for whoever gets the nod from voters on Nov. 6 for the part-time post.
Moreover, the race is something of a watershed. With incumbent Cecilia McGregor sitting it out because of health reasons -- subs have filled in as city judge since October 2005, when she took medical leave due to multiple sclerosis -- the winner will be the first new city judge here since 1984. That's when McGregor, who won re-election five times, was first appointed.
Lehman, 58, who has run his own general practice since 1990 save for a three-year stint with another law firm, touts his years of experience.
"My success as a local attorney as well as my 16 years of serving the public in the Goshen community make me the best candidate," he said.
Lund, 32, who handles felony child support cases as an assistant county prosecutor, says resolving disputes is her strength, making her a natural fit for the judgeship.
"Ultimately that's what a good judge should do -- come up with good resolutions to things that happen in our community," she said.
Goshen City Court came under fire last year by some who said the body should be eliminated because of the cost of running it. Both hopefuls, however, back its continuation, saying the court is vital as a means of handling local disputes locally.
City court handles misdemeanors, traffic infractions, ordinance violations and other such cases originating in Goshen.
The two candidates for Goshen City Court Judge fielded numerous questions Thursday evening at the Goshen Chamber of Commerce as part of the 2007 Judge Candidates Forum.
Republican candidate Gretchen Hess Lund was joined by Democratic candidate Joseph L. Lehman in discussing their campaigns and highlighting their goals for the City Court Judge office if elected this November.
“I felt I was qualified for this position not only on my expertise, but also on my energy,” said Lund, who has served as a Deputy Prosecuting Attorney for the Elkhart County Prosecutor’s Office since May of 2006.
Lehman also has a strong history in Goshen, having graduated from Goshen Middle School, High School and Goshen College and spending 16 of his 24 years as an attorney in the Goshen area.
Ind. Courts - Defendant's sentence includes watching his electronic gambling machines being destroyed
Sophia Voravong reports today in the Lafayette Courier & Press:
A Lafayette businessman watched Friday afternoon as 38 gambling machines seized from his former all-ages nightclub in May 2004 were crushed and destroyed.
That was part of the punishment handed down to Rodger L. Heer, 57, on Friday morning by Judge Don Johnson of Tippecanoe Superior Court 1.
Heer also was sentenced to unsupervised probation and ordered to pay $10,000 in restitution.
"This was four years ago," Heer said, gesturing to the machines being smashed by a bulldozer in the parking lot at the city of Lafayette's fleet maintenance facility.
"I don't even know why I'm here."
Heer pleaded guilty to promoting professional gambling, a Class D felony, on the morning jury selection was to begin in his trial last month.
Three other charges, including Class C felony counts of corrupt business influence and money laundering, were dropped.
The machines -- some that Heer bought brand new and some that were used -- had an approximate value of $2,200 each, according to Lt. Jim Taul of the Lafayette Police Department. * * *
Taul, who investigated the complaints, said he hopes it sends a message to other business owners who have gambling devices.
"I would think that it would encourage anyone operating the illegal machines to get rid of them," he said, "before they get arrested and charged. Because now, we have a citizen with a felony on his record."
Friday, October 26, 2007
Ind. Courts - Two interesting issues raised in Tippecanoe trial
Sophia Voravong of the Lafayette Journal & Courier has a story today that touches on two interesting issues:
The city code on West Lafayette's official Web site does not include information explaining to landlords how they should monitor over-occupancy at their properties.The first appears to be the duty of the city to make available to its citizens the legal requirements they are expected to follow.
That issue was raised Thursday in Tippecanoe Superior Court 2 by attorney William Kealey whose clients, Patti and Jerry Weida, are being sued by the city.
The civil bench trial, being heard by Judge Thomas Busch, began Tuesday morning. A decision could come today.
"You could not look up the definition of 'monitoring' by going to the site," Kealey said. "... What does duty to monitor mean for her (Patti Weida) business?"
The city of West Lafayette alleges that the Weidas allowed five women to live in a rental home together at 112 Sylvia St. in early 2006. The city's code allows up to three unrelated people to live together in areas zoned residential.
The Weidas and all five students are named as defendants in the lawsuit.
It will be up to Busch to decide whether the Weidas were diligent in monitoring the property, if they did not know of the additional residents and if they charged reasonable rent for the permitted occupancy.
Allen Grady, West Lafayette's assistant director of development, testified Thursday that he does not provide landlords with a checklist of how to monitor properties.
But he said they're encouraged to routinely visit properties, maintain contact with tenants and look at the number of vehicles parked outside.
He sent the Weidas a letter on March 6, 2006, asking them to update their occupancy affidavit.
"City ordinance states what they should do," Grady said.
The civil complaint against the Weidas was one of three recently filed by the city over code violations by landlords. In September, $61,000 was transferred into the city's legal budget to fight the court battles.
The second is the issue of local ordinances in Indiana limiting the number of unrelated people who may live together. Although this issue is often raised in college towns (see this table), and our Supreme Court has issued a ruling on it (Dvorak v. City of Bloomington - 9/23/2003), there is a federal suit pending against the Town of St. John - see this Advance Indiana entry. Here is a copy of the complaint filed by the DOJ.
Ind. Decisions - Transfer list for week ending October 26, 2007
Here is the Indiana Supreme Court's transfer list for the week ending October 26, 2007.
There were two transfers granted this week, summarized in this entry from earlier today.
Nearing four years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
Ind. Courts - Orange County Court relocating temporarily
From Q-100 News in Orange County:
The Orange Circuit Court, the Orange county Probation Department and the Orange County Clerks office will be relocating while the remodeling of the Orange county Courthouse is underway. Those offices will relocate to the Boyer building on North Gospel Street in Paoli. The rent is expected to be $2750.00 a month with a one years lease. The building will be ready to move into this week. The elevator project at the Orange County Courthouse is underway.
Ind. Courts - Warsaw company charges competitor breached its dealer website
Rebecca S. Green of the Fort Wayne Journal Gazette reports today:
A Warsaw-based projection screen maker is suing a competitor in federal court, claiming the competitor trespassed on its computers.
Filed this month in South Bend, the lawsuit alleges employees at Spiceland-based Draper Inc. gained unauthorized access to the dealer Web site for Da-Lite Screen Co.
Through that access, Draper employees found information about how much Da-Lite quoted specific customers for products and freight costs, bids prepared for those customers and products customers had bought. That information gave Draper an unfair competitive advantage in the projection screen market, according to court documents.
Da-Lite officials are seeking to recoup any financial losses they suffered, the costs of responding to the security breach, punitive damages and statutory damages of $1,000 per time Draper’s employees accessed Da-Lite’s Web site, estimated by Da-Lite to be more than 200 times since August 2005.
A phone call to Draper’s Milwaukee-based attorney was not returned Thursday. Da-Lite’s attorney declined to comment.
Ind. Decisions - 7th Circuit dismisses challenge to Indiana canons of judicial ethics
In Right to Life v. Randall T. Shepard (ND Ind., Judge Sharp), a 10-page opinion, Judge Evans writes:
Indiana Right to Life and Arline Sprau (we will refer to them collectively as Right to Life) filed this complaint against the Indiana Commission on Judicial Qualifications and the Indiana Disciplinary Commission, contending that two canons in the Indiana Code of Judicial Conduct violate their First Amendment rights. The district court agreed that one of the canons was unconstitutional and the state defendants appeal.Note that this opinion is well worth reading in full.
The canon at issue—Canon 5A(3)(d)(i) and (ii)—provides:A candidate, including an incumbent judge, for a judicial office . . . shall not: (i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; (ii) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.In the parlance of cases such as the one before us, the two clauses in this canon are referred to respectively as “pledges” and “commitments” clauses. The contention that the clauses are unconstitutional grows out of Republican Party of Minnesota v. White, 536 U.S. 765 (2002), which declared unconstitutional a provision in Minnesota’s Code of Judicial Conduct. The provision, commonly called an “announce” clause, stated that a candidate for judicial office shall not “announce his or her views on disputed legal or political issues.” The clause, the Court said, covered much more than promising to decide an issue a particular way; it prohibited merely stating a candidate’s current position, even if he did not bind himself to maintain that position after the election. That broad a prohibition was found to violate the First Amendment. The more limited provisions—pledges or promises clauses—were not challenged, and on those clauses, the Court specifically said it “express[ed] no view.” It is with its eye on invalidating the latter clauses that various groups have filed lawsuits throughout the country. See, e.g., Pennsylvania Family Institute v. Black, 489 F.3d 156 (3rd Cir. 2007); Alaska Right to Life v. Feldman, ___ F.3d ___, 2007 WL 2743603 (9th Cir. 2007). * * *
Despite recognizing that its claim is for a right to listen, Right to Life nevertheless contends that Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224 (7th Cir. 1993), requires that we find standing in this case. There is a significant and obvious difference, however, between the case before us and Buckley—or White, for that matter. Neither White nor Buckley is a right-to-listen case. More importantly, in both, the plaintiffs were themselves judicial candidates whose right to speak was constrained. * * *
In a right-to-listen case, Right to Life would have standing if there are otherwise willing speakers who are constrained by the Judicial Code. Right to Life says there are. We cannot agree. No judicial candidate in Indiana has been disciplined for a violation of the canon at issue. The two candidates who answered the questionnaire in 2004 have stated that they have no fear of disciplinary action for doing so. In addition, of the remaining six who responded to Right to Life but did not answer the questions, clearly none stated that they declined to answer based on the canon. Some mentioned the canon but went on to say that they were relying on their own personal feeling as to what was appropriate for a judicial candidate to say. Right to Life attempted to put words in the candidates’ mouths by setting out a footnote to the response “decline” on the questionnaire. The footnote seems to be an attempt to indicate that the only reason for declining would be the Code. The individual responses show that is not true and negate any force that the footnote could conceivably have. In addition, the organization’s targeted, chosen speaker, Newton, turned out to be unwilling to speak regardless of the Code. Right to Life has failed to establish standing to bring this action.
Our decision is in line with the previously mentioned decisions of the Courts of Appeals for the Third Circuit and the Ninth Circuit. In Pennsylvania Family Institute, plaintiffs had argued that if a candidate responded “Decline to Answer” with its accompanying footnote referencing the judicial code, he was communicating a belief that they were prohibited from speaking by the Code. The court said that perhaps some of the candidates, in fact, did believe they were prohibited by the Code, but, nevertheless, in order to have standing, the plaintiffs must “at least demonstrate that but for a regulation, a speaker subject to it would be willing to speak.” In Alaska Right to Life, the court looked at ripeness. As here, there was no evidence of a real threat of enforcement; accordingly, the case was not ripe. The court said that the district court should have declined jurisdiction for lack of a justiciable case or controversy. Like those cases, the case before us does not present a case or controversy. Right to Life has no standing to bring the case, and it should have been dismissed.
The decision of the district court that Canon 5A(3)(d)(i) and (ii) is unconstitutional is REVERSED. We REMAND the case to the district court with instructions to dismiss it.
For background, see this Sept. 12th ILB entry headed "Challenge to Indiana judicial canons goes before 7th Circuit."
[More] See Robert Loblaw's Decision of the Day's summary here, headed "Seventh Rejects Judicial Ethics Challenge on Standing Grounds."
Ind. Decisions - Court of Appeals issues 3 today (and 2 NFP)
For publication opinions today (3):
COA holds that that imposition of a lifetime registration requirement for sexually violent predators runs afoul of ex post facto considerations. In Anthony Thompson v. State of Indiana , a 12-page opinion, Senior Judge Sullivan writes:
Anthony Thompson (Thompson) challenges the sentencing procedures followed by the sentencing court in imposing his aggregate sentence of sixty-three years for multiple sexual offenses perpetrated upon the fifteen-year-old victim. He also challenges the sentences themselves. * * *In State of Indiana v. Rex David Delph , an 11-page opinion, Judge Bradford writes:
IV. Thompson challenges the trial court’s finding that Thompson is a sexually violent predator.
The instant offenses were committed February 2, 2005, but Thompson was not sentenced until September 25, 2006. During the interim, the General Assembly, effective July 1, 2006, amended the statute concerning a determination that a person is a sexually violent predator. At the time these offenses were committed, the statute then in effect (I.C. 5-2-12-4.5), as does the amended statute (I.C. 35-38-1-7.5), defined a sexually violent predator as a person “who suffers from a mental abnormality or personality disorder that makes the individual likely to repeatedly engage in any. . . . offenses [enumerated in I.C. 11-8-8-5]. * * *
Thompson argues that the lifetime registration impact by reason of the trial court’s determination is violative of ex post facto principles. We disagree.
Insofar as the actual determination made that Thompson is a sexually violent predator, we discern no difference between the prior statutory scheme and the scheme allegedly employed by the sentencing court. Accordingly, we do not conclude that ex post facto considerations are implicated in that determination.
Quite a different question is presented by Thompson’s challenge to the lifetime registration aspect of the trial court’s order. The statute formerly in place, Ind. Code § 5-2-12-13, provided that the duty of a sex and violent offender to register terminated after ten years unless the individual had been determined to be a sexually violent predator, in which case the registration requirement was for an “indefinite period.” This proviso was subject to an exception if a court “assisted by a board of experts finds that the sex and violent offender is no longer a sexually violent predator. . . .”
The amended statute currently in place, Ind. Code § 11-8-8-19, contains a change. It provides for a ten-year registration period for a sex or violent offender unless that person has been determined to be a sexually violent predator, in which case he must register “for life.” The change from a registration requirement for “an indefinite period subject to termination if the individual was found to be no longer a sexually violent predator” to an unequivocal and absolute requirement of registration for life is not an inconsequential change. This conclusion leads us to a consideration of Thompson’s claim of an ex post facto violation.
We first observe that although the statutory provision for determination that a person is a sexually violent predator (Ind. Code § 35-38-1-7.5) is placed within the criminal code, the provision for registration and the duration of the registration period is within the statutory code provisions dealing with the Department of Correction. This factor of placement within the Indiana Code does not provide us with a vehicle for stating with certitude that the provision is clearly not penal in nature but rather is purely regulatory. The lifetime registration impact of the trial court’s sexually violent predator determination most assuredly has penal implications. See Goldsberry v. State, 821 N.E.2d 447 (Ind. Ct. App. 2005); but see Spencer v. O’Connor, 707 N.E.2d 1039 (Ind. Ct. App. 1999), trans. denied.
In keeping with the tenor of the Goldsberry decision, we hold that imposition of a lifetime registration requirement runs afoul of ex post facto considerations. Accordingly, we affirm the convictions and the sentences imposed but reverse the sexually violent predator determination insofar as it requires Thompson to register for life. We remand with instructions to amend the registration requirement to be for an indefinite period subject to the right of Thompson to seek a determination at some time in the future that he is no longer a sexually violent predator.
Affirmed in part and reversed in part and remanded.
Appellant-Plaintiff the State of Indiana appeals from the trial court’s discharge of Rex David Delph, who had been charged with two counts of murder, one count of Class A felony arson, and two counts of felony murder, pursuant to Indiana Rule of Criminal Procedure 4(C). * * *Carla M. Browell v. Rick W. Bagby, II - "Carla (Bagby) Browell (“Mother”) appeals the trial court’s grant of Rick Bagby’s (“Father”) petition to modify custody after Mother filed a notice of intent to move to Nashville, Tennessee. Because we find that the trial court acted within its discretion in granting the petition, we affirm. * * * For the foregoing reasons, we conclude that the trial court did not abuse its discretion in granting Father’s petition to modify custody."
We conclude that the trial court correctly charged the State with a delay of 221 days from the date Delph was charged to the original trial setting, as the State conceded below that it should have been charged 221 days. The 147-day delay at issue, however, should have been charged to Delph, as he acquiesced in it. As for the delay caused by the final trial setting, we conclude that it was properly charged to the State but that sixteen additional days (and not sixty-three) should have been charged to the State. Finally, we decline to dismiss this appeal on the basis that the State failed to file a timely Brief of Appellant. We reverse and remand with instructions that the State will have a total of 128 days4 to bring Delph to trial following certification of this opinion.
NFP civil opinions today (1):
In the Matter of the Merrillville Conservancy District (NFP) - "Independence Hill Conservancy District (“IHCD”) appeals the trial court’s order granting Merrillville Conservancy District’s (“MCD”) petition to annex certain real estate owned by GCC Merrillville Ventures, LLC (“GCC”), to MCD’s sanitary sewer service territory. We affirm."
NFP criminal opinions today (1):
Ind. Law - Learn about accessing Indiana government information
The 2007 Access Boot Camp, a joint program of the Indiana Coalition for Open Government, Indiana State Bar Association and Hoosier State Press Association, is sponsoring an all-day seminar on Thursday, Nov. 8th. Here are the details. Of particular interest to the ILB is this session:
From Rules to Laws: Where is the Indiana Register?Here is the registration form. However, lawyers seeking 5.1 hours CLE credit should register here.
Indiana’s rulemaking process can be difficult to navigate. Controversial changes to the Indiana Register, a must-read for both investigative journalists, lawyers and lobbyists, has resulted in limited access to significant policy changes underway in Indiana. Experts explore the consequences of changing notice and public provisions in what was once the gold standard guide to the process of making [administrative] laws.
Ind. Courts - More on the property tax challenge in Tax Court
The Hearing in the taxpayers’ Constitutional Tax Case has been moved by the Indiana Tax Court from October 25th to October 31st. The Hearing will be at 9:30 AM in the Supreme Courtroom (Room 317 of the State House). Argument will be heard on pending motions. At issue in the case are a.) the legality of the Marion County COIT increase of 65%; b.) the legality of the deadline extension by the State Respondents for Indiana Counties to adopt COIT increases; and c.) numerous Constitutional challenges to Indiana’s property tax system as currently administered.More:
The Tax Court on October 23rd approved the Petitioners’ Motion for Leave to Amend. Changes in the case are:
1.) The addition of three (3) new taxpayer organizations as Petitioners, which brings to a total of ten (10) the number of such Indiana taxpayer associations in the case
2.) Deletion of claims for refunds by Marion County taxpayers who had overpaid their spring tax bills at the 2006 level, in that Marion County Treasurer Rodman last week notified Marion County taxpayers that he would credit their overpayments to the fall installment. With this refund action the Marion County Taxpayers who initially brought suit in July for a reassessment, at the 2006 tax cap level, and asked for refunds of overpayments, have obtained what they requested in the suit in all three instances.
3.) The addition of four (4) new individual Petitioners.
Judge Fisher has set the second Hearing in our Constitutional Tax Case for November 16, 2007 at 11 AM, also in the Supreme Court Courtroom, Room 317, State House. The second Hearing will be on all requests for injunctive relief that survive the Motions to Dismiss being argued on 10/31, and also on our request for certification as a class action.
Ind. Decisions - Court grants two transfers this week
The formal transfer list will follow later today, but two cases have been granted transfer this week:
HomeQ Servicing Corp. v. Bradley Baker - see April 13th ILB entry on COA ruling here (3rd case): "Pro se appellees lose in mortgage servicing company appeal - pro se's lack of knowlege of procedure at the trial and appeals level played a significant role in this case."
Larry Walden v. State - This is a May 10, 2007 NFP COA opinion. One of the isues in the case:
Walden first contends that the trial court abused its discretion by allowing expert witnesses to testify as to which person was driving the pickup truck based upon their knowledge of accident reconstruction. Walden contends that the witnesses’ testimony amounted to common knowledge and experience of ordinary persons, and therefore should not have been allowed as expert testimony.The Court's conclusion:
We conclude that the trial court did not abuse its discretion in admitting expert testimony about who was driving the vehicle, or in rejecting Walden’s proposed jury instruction. There was sufficient evidence to support the jury’s conclusion that Walden had a prior conviction for operating a vehicle while intoxicated, and Walden’s aggregate sentence of fifty years is not inappropriate in light of the nature of the offense and character of the offender. Affirmed.
Ind. Courts - State court plan to link county courts by 2015 may not permit interfaces by long-existing private company that already links more than 40 counties
Over the years, the ILB has posted several entries mentioning Doxpop, an Indiana company with which many ILB readers are familiar, that has put the court records of many Indiana counties online. The most recent, from July 10th, indicates that currently Doxpop has "about 40 counties and 125 courts on-line."
Here is the Doxpop Court Cases introductory page. it notes:
Doxpop provides access to over 7,066,093 current and historical cases from 133 courts in 42 Indiana counties in the Doxpop Network. During the average working day a new case is added every twenty seconds.Here is information from a posting the ILB published on March 10, 2005 (Note that it appears the number of counties Doxpop links has more than doubled since 2005.):
You can use our court case search features to find basic information about open cases, or you can subscribe to become a registered user and access all available information about current and historical cases.
The historical case information extends from three years to twenty years back depending on the jurisdiction. Most courts have at least ten years of historical case information available though Doxpop.
The court case information provided through the Doxpop Services is not the official public record. Our mission is to provide an accurate and current copy of the official record by maintaining a mirrored copy that is updated regularly.
If you are a lawyer in one of these twenty Indiana counties -- Bartholomew, Brown, Clinton, Daviess, Delaware, Elkhart, Howard, Jay, Johnson, Marshall, Miami, Monroe, Montgomery, Putnam, Randolph, Spencer, Sullivan, Sullivan, Vigo, Wabash, and Wayne -- you probably already are aware that for $39/month you can have online access to not only current case tracking information from your county's courts, but to the same information in the other nineteen listed counties. In other words, all these counties' courts are computerized and linked.What exactly does Doxpop do? As explained in the same post:
This service is provided by an Indiana business, Doxpop, LLC. According to its literature, Doxpop provides access to over 3,111,733 current and historical cases from 86 Indiana courts in the Doxpop Network (i.e. the 20 counties). During the average working day a new case is added every twenty seconds.
Ninety of Indiana's ninety-two have counties currently have computerized case-management systems (CMS). A number of different vendors provide these services to various of the counties, including CSI Computer System, Inc., providers of judicial tracking software, and Maximus, court and justice solutions. Doxpop works on top of a county's case management system. * * *Here is Doxpop's "testimonial page", which gives an indication of how it is used. Note several commenters from Monroe County.
What Doxpop does, in the most basic terms, is at 10-minute intervals take the information from these court-based case tracking systems and make it accessible, via protected internet access, to its registered users, wherever they may be.
If this sounds a lot like the Indiana State Court's Judicial Technology and Automation Committee (JTAC) plan to link all the courts in the State, it is, at least in part. As the ILB understands it, the JTAC plan is to install their case management systems (CMS) in county courts, and link them. It is the linking part that DoxPop already appears to have perfected, having linked as of now nearly half the counties, no matter what kind of CMS they use.
This ILB entry from Sept. 30th gives a good overview of the State Court's project. The JTAC timetable for installing its CMS in counties extends to 2015. According to an Indianapolis Star quote in the post:
The computerized court system could expand across the state over six years, beginning in 2009, if later pilot counties are successful. Counties won't be forced to make the switch.In other words, counties will be able to continue to use their own CMSs. This has been, and continues to be, a matter of much concern in some of the counties.
This seems to leave two questions unanswered, however. (1) If a county, such as Marion County, does not switch to the JTAC case management system (CMS) for its own court records, will the county be included in the state web of linked courts? (2) If a county does switch over to the JTAC CMS, can it still be a part of the DoxPop Network?
The answer to the latter question, at least for now, appears to be "No", according to this memo sent out by DoxPop yesterday to all its users:
The Courts of Monroe County are planning changes that will affect your ability to access up-to-date Monroe County case information via the Doxpop system after December 17, 2007.
The Monroe Courts are planning to discontinue use of their current Case Management System (CMS) as of December 17th in order to pilot the use of a CMS provided by the State Court's Judicial Technology and Automation Committee (JTAC). The JTAC CMS is capable of sending information to other systems, including the Doxpop system, but some configuration on the part of JTAC is required to enable this data interface feature.
On January 29, 2007, Doxpop submitted its first written request for a meeting with JTAC to begin work on an interface between the two systems. This meeting was deferred several times by JTAC and we had our first meeting on October 11. At that meeting we learned from JTAC that it had a clear directive to go live in Monroe County on December 17, and that it could not accommodate our request to develop an interface without specific authorization to do so. With the help of Judge Kenneth Todd, Monroe County, we met with representatives of the Division and JTAC via conference call on October 24, yesterday. In that meeting we were told that the existing authorization for us to publish Monroe County Court data under Trial Rule 77(k) was inadequate, and that we must submit a new application under Administrative Rule 9 in order to authorize JTAC to consider our request for an interface.
Today, Doxpop has submitted to the Division of State Court Administration a formal request to authorize Doxpop as a recipient of information from the JTAC system. The Division has indicated its intention to bring this matter before the Indiana Supreme Court. If the request is approved, it will take some time to implement the interface between the two systems. Since both the JTAC and Doxpop systems are designed to support such interfaces, we are hopeful that this can be completed without significant delay.
We are working hard to prevent any interruption in up-to-date service. If we have not secured approval and established an interface with the JTAC system by December 17, Doxpop will continue to provide access to historical cases, but will no longer be able to keep you informed of new cases or events as they develop after that date. The change in Monroe County will not affect your access to cases in the 42 other counties that work with Doxpop.
We will keep you informed as we learn more and as this date approaches. In the meantime, we will continue to work with the Monroe Courts, JTAC and the Division to secure approval and establish a data interface.
With no working solution yet available to us, we believe it our obligation to keep you, our customers, and the general public informed of the situation so that you may prepare for a possible disruption of your access to Monroe County Court data. However, we remain hopeful that it is possible to preserve the public access to court records we have provided for the last five years on behalf on Monroe County.
Thank you for using Doxpop.
Ray Ontko, President
P.S. If you have questions regarding access to ongoing matters before the Monroe County Courts, you may call the office of the Clerk of the Circuit Court at 812-349-2600 or the Circuit Court directly at 812-349-2615. If you are an attorney in Monroe County, Judge Kenneth Todd has requested that you convey your thoughts on this matter to the Monroe County Bar President.
P.P.S. A copy of this letter is available online at http://www.doxpop.com/prod/MonroeCounty20071025.pdf
Ind. Courts - Porter County Circuit Court Judge Mary Harper honored
The Chesterton Tribune reported earlier this week:
Porter County Circuit Court Judge Mary Harper has received a statewide award that honors leadership in addressing unmet legal needs of children.
The Indiana State Bar Association has selected Harper as this year’s recipient of the Honorable Viola J. Taliaferro Award. Taliaferro, the Monroe County Circuit Court Judge, is recognized nationally as an advocate for children, and the award named in honor is given annually to a person who best exemplifies her efforts on behalf of youth.
Harper was recognized for her service on the Mayor’s Commission Against Domestic Violence, the Porter County Early Intervention Planning Team, and the Porter County Community Corrections Advisory Board, all of which she chairs. She also serves on the Porter County Safe School Commission and the Porter County Juvenile Summit.
Under Harper, Porter County was named one of Indiana’s original three pilot site counties for a new Family Court. Harper also helped developed Porter County’s truancy diversion program known as Project ATTEND, affordable mediation services for low-income families, and a community service access center to link families to court-ordered services immediately following a juvenile court proceeding.
The State Bar Association also noted Harper’s role in obtaining funding for Porter County to implement juvenile mental health diversion programming and for securing Porter County’s participation in the Indiana State Juvenile Mental Health Screening, Assessment and Treatment Pilot Project, of which she serves as advisory board chair.
She also serves on the board of the Indiana Council of Juvenile and Family Court Judges. This year, Gov. Daniels appointed her to the board of the Indiana Criminal Justice Institute. She has been recently named to chair the Youth Division Committee of the Indiana Criminal Justice Institute.
Among her many awards, Harper has been honored with the Aled P. Davies Award for Public Policy on Health and the Marilyn J. Niequist Memorial Award for Outstanding Contributions to Youth. She has also been recognized as Judge of the Year by the Indiana Correctional Association and has received the Robert J. Kinsey Award for her work in judicial service for youth.
Taliaferro, of Bloomington, Ind., has served as a juvenile justice advisor to former U.S. Attorney General Janet Reno and as a member of the National Research Council on Juvenile Crime. She has also been named Judge of the Year by the National Court Appointed Special Advocate Association.
Courts - Kentucky Supreme Court joins 16 other states, including Indiana, with online webcasts of oral arguments
Brett Barrouquere of the AP reported yesterday in the Louisville Courier Journal:
The Kentucky Supreme Court is going live and online.ILB comments: Unfortunately, unlike Indiana's, the Kentucky oral arguments are not archived - you must tune in as they are taking place. This page lets you see the schedules of when the Kentucky Supreme Court is in session.
The high court started showing oral arguments yesterday through a Web site, joining at least 16 other states in employing the technology. The court estimated it had about 1,700 online viewers for its first Webcast, said Susan Clary, a spokeswoman for the court.
"It's gone great. No hitches," Clary said.
Kentucky joins states from Alaska to Florida in Webcasting oral arguments.
"Broadcasting Supreme Court oral arguments live gives every citizen access to our proceedings and an opportunity to see their highest court doing its work," Chief Justice Joseph Lambert said.
To see a Webcast, viewers go to the Supreme Court Web site, www.courts.ky.gov, and click on "Supreme Court LIVE."
Kentucky's high court finally had the technology in place to start Webcasting after studying the idea for several years, Clary said. The court is also looking into having attorneys file court records online, which is similar to what many federal courts require, Clary said.
This posting Wednesday from Michael Stevens of the Kentucky Law Blog indicates his assumption that the arguments will be archived, but I see no indication of this on the Kentucky Court's site. Perhaps later.
Thursday, October 25, 2007
Ind. Decisions - One Indiana opinion today from the 7th Circuit
In Thomas M. Klein and Annie J. Rice v. DePuy Orthppaedics, et.al. (ND Ind., Judge Springmann)., a 12-page opinion, Judge Evans writes:
In this products liability/personal injury suit, the defendants, DePuy Orthopaedics, Inc., DePuy, Inc., and Johnson & Johnson, contend that North Carolina law applies and that the case must be dismissed under its six-year statute of repose. The plaintiffs, Mitch Klein and Annie Rice, * * * maintain that Indiana law applies and that the suit is timely under its more generous ten-year statute of repose. Alternatively, Klein contends that, if he is stuck with North Carolina law, an exception should be applied to permit his suit to be viewed as timely. According to DePuy, no such “exception” exists.
District Judge Theresa Springmann thought that DePuy had the better of the argument, so she granted its motion for summary judgment. Klein v. DePuy, Inc., 476 F. Supp. 2d 1007, 1023 (N.D. Ind. 2007). The case is now before us on Klein’s appeal. As only questions of law are presented, our review is de novo. * * *
In sum, we agree with Judge Springmann that North Carolina law, rather than Indiana law, applies to Klein’s claims. We also agree that, had the North Carolina Supreme Court received this case, it would not have applied a “disease exception” to the six-year statute of repose at issue. The plain language of the statute, its history, and North Carolina case law all support our belief that no exception was intended. We leave it up to the North Carolina legislature to amend the statute if we are mistaken.
For the foregoing reasons, summary judgment in favor of the defendants is AFFIRMED.
Ind. Decisions - Court of Appeals issues 2 today (and 20 NFP)
For publication opinions today (2):
Michael Loos v. State of Indiana - "Loos appears to assert that the trial court’s omission of the word “aggravating” in its sentencing statement is an abuse of discretion. We disagree. The trial court adequately described the factors that supported the eight-year sentence: Loos’s history of criminal behavior and his violent acts against a pregnant woman. The omission of the word “aggravating” does not make the court’s reasoning any less apparent, and we decline any invitation to require such a “magic word.” Creekmore v. State, 853 N.E.2d 523, 529 (Ind. Ct. App. 2006), trans. denied. The record supports the trial court’s findings, and “[t]he relative weight or value assignable to reasons properly found or those which should have been found is not subject to review for abuse.” Anglemyer, 868 N.E.2d at 491. We therefore affirm."
In Lawrence Golladay v. State of Indiana , an 11-page opinion, Judge Friedlander writes:
Lawrence Golladay appeals his conviction of Home Improvement Fraud,1 a class A misdemeanor. The following restated issue is dispositive of the appeal: Did conviction under I.C. 35-43-6-12(a)(4) violate due process when the defendant was charged under I.C. 35-43-6-12(a)(3)? We reverse.* * *NFP civil opinions today (4):
Golladay challenges the conviction on several bases, two of which warrant reversal. Although we reverse the conviction on due process grounds, we will briefly discuss the other basis for reversal because we find no other cases explaining the elements of Subsection (a)(4), and wish to provide clarification on that subject. In presenting this issue, Golladay frames the question in terms of sufficiency of the evidence. The real issue, however, in view of the trial court’s comments when announcing its decision, concerns the nature of the elements of the offense set out in Subsection (a)(4). * * *
According to the trial court’s interpretation, it is enough that a false promise was made in the contract and the homeowner was induced to sign the contract in part because of that false promise, even if the homeowner knew the promise was false. Golladay contends the homeowner must have been deceived by the false promise. We agree. * * *
Subsections (a)(3) and (a)(4) clearly define similar conduct. Both require the existence of a home improvement contract, and both require some sort of deception on the part of the defendant with respect to that contract. The only difference between the two is that Subsection (a)(4) requires that the defendant use such deception to induce the consumer to enter into the contract. As such, Subsection (a)(4) contains an element that is not contained in Subsection (a)(3). Thus, it is not an inherently included offense of Subsection (a)(3). * * *
Examining this language, it is apparent that the allegations concerning the means used to commit the crime charged (i.e., Subsection (a)(3)) do not include all of the elements of Subsection (a)(4); the element of fraudulent inducement to enter into the contract is missing. An offense is not factually included within the charging instrument if critical elements of the crime convicted are excluded from the charging instrument. Chinda v. State, 754 N.E.2d 981 (Ind. Ct. App. 2001), trans. denied. Thus, Golladay could not be convicted under Subsection (a)(4) because it included an element that was neither a part of Subsection (a)(3) (the crime charged) nor factually included in the charging instrument. * * * Therefore, the conviction under Subsection (a)(4) violated due process and must be reversed. We therefore remand with instructions to enter a judgment of acquittal as to that conviction. Judgment reversed.
In the Matter of J.V., C.V., D.V. and A.V.; Jose Vega, Sr. and Patty Alonzo v. Allen County Department of Child Services (NFP) - "Sufficient evidence was presented to support the trial court’s determination that the children were CHINS."
Charles Robert Greer v. William R. Fuchs (NFP) - "Based on our review of the record, we cannot say that the trial court abused its discretion in ruling on Greer’s motion for relief from judgment without hearing additional testimony and permitting additional discovery." Affirmed.
Connie (Query) Reed v. Robert Query (NFP) - "In summary, we affirm the trial court’s modification of Father’s obligation to provide for N.Q.’s post-secondary education except to the extent such modification was made retroactive so as to terminate Father’s obligation with respect to such expenses incurred by N.Q. prior to Father’s filing of his petition for modification. We therefore remand with instructions for the trial court to correct the support modification order consistent with this opinion"
Randall Walden v. Val Majors Castrodale (NFP) - "Randall Walden appeals the denial of his “Petition to Rescind All Orders and Rulings” filed in relation to the 1996 dissolution of his marriage to Val Majors Castrodale. We affirm and remand."
NFP criminal opinions today (16):
Ind. Decisions - More on: Upcoming oral arguments this week
Updating this ILB entry from Monday, previewing the oral arguments before the Indiana Supreme Court this week, yesterday (Wednesday) the Court heard arguments in the case of Hartman v. Keri. . Niki Kelly of the Fort Wayne Journal Gazette reports today:
INDIANAPOLIS – Two former IPFW students went to the Indiana Supreme Court on Wednesday to defend their ability to file harassment complaints against a professor without fear of legal retribution.The story continues:
Virginia Hartman and Suzanne Swinehart – both graduate students in the School of Education – filed complaints alleging inappropriate behavior by then-Indiana University-Purdue University Fort Wayne professor Gabe Keri in 2003.
Both students alleged harassment by Keri. Hartman specifically also said Keri discriminated and retaliated against her by affecting her grade-point average and that he bashed homosexuals and Catholics during class.
Swinehart alleged Keri made inappropriate sexual comments to her, including a reference to her not having big enough breasts because she is white.
Keri’s supervisor received other complaints about his behavior, several of them anonymous, and wrote that “students continue to be subjected to discussion of inappropriate topics irrelevant to the content of the course within the classroom,” and “the trust and respect of students has been diminished by misuse of power.”
IPFW Chancellor Michael Wartell appointed Elaine Blakemore – chairwoman of the psychology department – to investigate the formal complaints of Swinehart and Hartman. Blakemore interviewed all those involved, including about a dozen current and former students.
Some of them had no complaints, but others offered accounts that were “startlingly consistent.”
She concluded that Keri created a hostile educational environment for both Swinehart and Hartman and had harassed Hartman.
Blakemore didn’t find Swinehart was harassed largely because the complaint wasn’t reported in the required time frame. As a result, Keri’s contract was not renewed for the next academic year because of unsatisfactory performance.
Keri later sued IPFW in federal court, but the case was dismissed. Then he sued Swinehart and Hartman in Allen Superior Court for alleged defamation. In that lawsuit, he alleged they “concocted a scheme” to file false complaints against him.
The issue before the high court Wednesday was whether the women are entitled to immunity because their allegations were made through the school’s anti-harassment proceedings.
Karen Orr, attorney for the women, told the five Indiana Supreme Court justices that all her clients did was follow the process set up by Purdue University and the legislature, including filling out the required forms, showing up to hearings and providing details to the investigator. And yet Keri sued them as a result of that process, she said.You can watch yesterday's oral arguments here.
“How can we encourage someone to file if we can’t protect them from retaliatory lawsuits?” she asked, noting a lack of immunity would create a chilling effect on the process.
For the women to have immunity, they must show their comments were made in a quasi-judicial proceeding.
While Orr argued that the procedure allowed for proper notice of the complaints to Keri and permitted him to present his own evidence and witnesses, several justices noted he was not allowed to use an attorney.
Swaray Conteh – attorney for Keri – also questioned the phone interviews Blakemore had with other students because they were used to establish a pattern, but no transcripts were made of the calls and Keri was never told who the students were.
The court will rule in the coming months.
Wednesday, October 24, 2007
Ind. Decisions - Court of Appeals issues 3 today (and 11 NFP)
For publication opinions today (3):
Darrel M. Maymon v. State of Indiana - On rehearing: "We agree that the proper remedy would be to remand to the trial court for retrial of the two burglary counts where theft did not occur. We grant rehearing and vacate our previous order to enter convictions for residential entry on these two convictions and to sentence Maymon accordingly. Instead, we reverse Maymon’s two convictions for Class A felony burglary and remand for retrial on those two counts. We reaffirm our original holding in all other respects."
State of Indiana v. Charles A. Parham, II - "The State of Indiana brings this appeal from the Allen Superior Court’s grant of a motion to suppress filed by defendant Charles A. Parham II (“Parham”). The State raises one issue: whether the trial court erred when it suppressed evidence from a search of the vehicle Parham was driving. We affirm."
In Steven Shelby v. State of Indiana , a 10-page opinion, Judge Bradford writes:
Following a jury trial, Appellant-Defendant, Steven Shelby, appeals his conviction and sentence for Auto Theft as a Class D felony and the trial court’s finding him to be a Habitual Offender.1 Upon appeal, Shelby challenges the sufficiency of the evidence to support his conviction and further claims that the trial court erred by rejecting certain proposed jury instructions. We reverse and remand. * * *NFP civil opinions today (3):
Having found the evidence insufficient to support Shelby’s conviction for auto theft, we find it unnecessary to reach Shelby’s challenge to the trial court’s rejection of his proposed jury instructions. Accordingly, we reverse and remand to the trial court with instructions to vacate Shelby’s conviction for auto theft and the resulting habitual offender finding resting upon that conviction.
In Re the Paternity of K.B.G.; Dayonna Murdock v. Joseph Laycock (NFP) - "On appeal, Mother does not challenge the trial court’s decision to allow Laycock to proceed with his petition to set aside the original paternity order pursuant to Rule 60(B)(8). Mother only argues that the trial court “was required to dismiss” Laycock’s petitions to set aside the paternity order because Laycock failed to establish “fraud on the court.” Because the trial court did not rely on a finding that Laycock had established fraud on the court in issuing its decision, we need not address Mother’s argument. Consequently, we affirm the trial court’s order denying Mother’s motion to dismiss Laycock’s petition to set aside the paternity order naming Godbey as K.B.G.’s father. Affirmed."
Jerry Fitchpatrick v. Cathy Fitchpatrick (NFP) - "Having concluded that the trial court did not abuse its discretion by ordering Jerry to pay $150.00 per week in spousal maintenance to Cathy and having further concluded that the trial court did not abuse its discretion by denying Cathy’s claim for COBRA insurance as a part of her spousal maintenance, we affirm the judgment of the trial court. Likewise, having concluded that Cathy’s request for appellate attorney fees is unwarranted, we deny her request for such relief.
The judgment of the trial court is affirmed."
Dawn Frederick v. Jim Frederick (NFP) - "The trial court abused its discretion when it failed to assign a value to the Fun Time Scuba business and failed to include the 1966 Chevrolet Impala in the marital estate. Accordingly, we remand this case for recalculation and redistribution of the marital estate. Reversed and remanded for proceedings consistent with this opinion."
NFP criminal opinions today (8):
Ind. Gov't. - "Indianapolis Public School Board met illegally Monday night"
Andy Gammill of the Indianapolis Star reports today:
The Indianapolis Public School Board met illegally Monday night when it convened in private to discuss closing five schools, several public meeting experts said.
Board members justified the closed-door executive session by citing a state law that allows private meetings to discuss pending litigation. * * *
How the district handles its school closings, IPS said, relates to the 1968 lawsuit in which the district was found guilty of de jure segregation. The district is still under a court order on its implementation of that ruling, and a district spokeswoman said officials cited that case in good faith.
Districts cannot, however, cite cases that already have been closed, said Heather Neal, the state's appointed public access counselor. The counselor is appointed by the governor to help the public understand the state's laws governing access to records and public meetings.
IPS could have such an executive session, Neal said, only if the case was still pending. She said the court order signifies the case was finished. The late Judge S. Hugh Dillin ruled against the district in 1971. * * *
"It's astonishing, and it's an affront to the public that they would make that sort of claim," said Fred Cate, a law professor at Indiana University. "The general principle to the law is that all of the public's business should be done in public."
IPS attorneys did not return phone calls Tuesday seeking comment. Superintendent Eugene White said even if pending litigation was a mistaken basis for a closed meeting, the law would allow the board to meet privately to discuss personnel issues that arise from closing schools.
Indiana law allows boards to hold executive sessions on personnel matters only to discuss job-performance reviews or to interview job candidates. Cate said that limits the board to only a few narrow topics.
The district, Cate said, should only be holding an executive session on pending litigation to discuss strategy with its attorneys and not to discuss broad issues that could be related to a case.
IPS had other options available to lay the groundwork for school closings without making the information public, Cate said. But once the board became involved, it should have been open, he said.
Ind. Law - How Hoosiers’ sales tax stacks up
The story this morning in the Indianapolis Star reporting on Gov. Daniels' speech last night announcing a property tax plan contains a side-bar intended to show how an increase in the state sales tax from 6% to 7% would stack up against some other states:
Indiana’s state sales tax would be 7 percent, higher than other Midwestern states. How Indiana’s sales tax compares now:In the story, the Star calls the proposed 7% rate "the nation’s highest sales tax" and a separate story this morning is headlined, "Sales tax would be highest in U.S." Some quotes:
•: Illinois: 6.25 percent.
•: Indiana: 6 percent.
•: Kentucky: 6 percent.
•: Michigan: 6 percent.
•: Missouri: 4.225 percent.
•: Ohio: 5.5 percent.
Indiana will have the highest sales tax rate in the nation, joining just four other states that tack on 7 percent every time shoppers buy a pair of shoes, a gallon of paint, a car, or any of thousands of other purchases, under the governor's plan.For a better picture, see this chart from The Sales Tax Clearinghouse, showing state sales tax rates along with combined average city and county rates.
Gov. Mitch Daniels on Tuesday evening proposed increasing the state sales tax from 6 percent to 7 percent, a level matched only by Tennessee, Rhode Island, New Jersey and Mississippi, according to the Federation of Tax Administrators. * * *
[However] shoppers in many other states actually pay more than 7 percent after counties add local options to the state sales tax, often boosting it by several more percentage points.
In some Tennessee counties, for example, the sales tax is as high as 12 percent. Indiana does not allow local options on top of the state sales tax.
Tuesday, October 23, 2007
Courts - More on: Pennsylvania Rule Prohibiting Judicial Candidates’ Speech Enjoined
This ILB entry from May 14th quoted a press release from attorney James Bopp, Jr., lead counsel for the plaintiffs in a Pennsylvania suit, stating that: "Federal District Court Judge Marvin Katz has granted a preliminary injunction against provisions of the Pennsylvania Code of Judicial Conduct that prohibited state court judicial candidates from responding to a questionnaire asking their views on legal and political issues." The ILB noted: "Bopp obtained a similar remedy in Indiana last November; see this Nov. 14, 2006 ILB entry."
This ILB entry from May 23rd begins:
Torsten Ove of the Pittsburgh Post-Gazette has a long article yesterday on the impact of the recent federal district court decision in Pennsylvania enjoining that State's rules that forbid judicial candidates from making “pledges or promises” of conduct in office or statements that “commit or appear to commit” candidates on issues likely to come before them. The article is too long to quote in full but deserves close reading, particularly because a similar federal court decision was issued here in Indiana last November.Today Peter Jackson of the AP reports:
HARRISBURG, Pa. - Judicial candidates in Pennsylvania are free to discuss the issues of the day on the campaign trail, so long as they do not promise to rule in a particular way once they are elected, a federal judge has ruled.Oddly, little other than today's AP story has appeared on this 68-page ruling, Penn. Family Institute v. Celluci, issued Oct.16. The ILB has obtained a copy.
"Any speech by a judicial candidate, short of a pledge, promise, or commitment to adjudicate a particular result, is speech permitted by the [Pennsylvania Code of Judicial Conduct] and by the First Amendment," Senior Judge Marvin Katz of the U.S. District Court in Philadelphia wrote in a decision issued last week.
The ruling stemmed from a lawsuit filed in the spring by the Pennsylvania Family Institute, which sent questionnaires to more than 100 candidates for state and county judgeships in which the group solicited the candidates' views on issues including abortion, gay marriage and school prayer.
Six Republican candidates running in the May 15 primary joined in the lawsuit, saying they wanted to respond to that survey and to one from another group but were barred by judicial rules.
The plaintiffs said portions of the code, written by the Pennsylvania Supreme Court, were so vague that they violated candidates' right to free speech.
Katz, who also lifted a May order that temporarily barred enforcement of rules governing judicial campaign speech, stressed that they were only one factor that a judicial candidate must consider in deciding whether to speak out on controversial topics.
"Many candidates refused to answer those questions, because they feared their answers would force them to recuse themselves from future cases, and more importantly, cast doubt on the impartiality and integrity of Pennsylvania's courts," Katz wrote. He said he "wholeheartedly agreed with these sentiments."
Only 19 candidates responded to the questionnaire, according to court papers.
Ind. Decisions - Court of Appeals issues 9 today (and 9 NFP)
For publication opinions today (9):
Invol. Term. of Parent-Child Rel. of B.M., Monica Runkel v. Miami Co. Dept. of Child Services - "Mother raises one issue, which we revise and restate as whether Ind. Code § 31-34-1-16, which limits the ability to terminate parental rights to a child voluntarily placed out of the home for special treatment, requires reversal of the trial court’s order terminating Mother’s parental rights. We affirm."
Billy R. Mead, Jr. v. State of Indiana - "Based on the foregoing, we conclude that the trial court (1) properly granted Mead’s Petition for Permission to File a Belated Notice of Appeal, and (2) did not abuse its discretion in sentencing Mead."
In State of Indiana v. Christine Penwell, an 8-page opinion, including a 3 -page dissent, Judge Kirsch writes:
The State of Indiana appeals the trial court’s order discharging Christine Penwell for violation of Indiana Criminal Rule 4(C) contending that the trial court erred in charging the delay resulting from a stay pending Penwell’s petition for certiorari to the Supreme Court of the United States to the State. We agree. We reverse and remand for further proceedings. * * *In Ralph Belvedere v. State of Indiana , a 22-page opinion, including a 4-page dissent, Judge Najam writes:
Penwell sought and received an indefinite delay in her trial to allow her to file a petition for certiorari with the United States Supreme Court. Having done so, it was incumbent upon her to take affirmative action to notify the trial court that she was dissatisfied with the delay and desired to go to trial. Until she did so, the time under Crim. R. 4 (C) was attributable to her. The trial court erred in granting Penwell’s motion for discharge.
ROBB, J., concurs.
BARNES, J., dissents with separate opinion. [which begins] I respectfully dissent. I believe the State fell asleep at the switch here, and that the delay in setting a trial date for Penwell after the United States Supreme Court denied her petition for certiorari is chargeable to the State.
Belvedere raises three issues for our review, which we restate as: 1. Whether our Supreme Court’s recent decision in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), applies and prohibits the introduction of evidence at trial that was obtained following a police search of Belvedere’s trash. 2. Whether the good faith doctrine can be applied to that trash search. We reverse. * * *David J. Mitchell v. Alicia Mitchell n/k/a Alicia Zamarron - "It was not an abuse of discretion for the trial court to reduce David’s responsibility for spousal maintenance to $250 per month and to assign $1,500 of Alicia’s attorney’s fees to David. We affirm the trial court on all issues."
In sum, we decline to hold that Litchfield does not apply to Belvedere, a person similarly-situated to the Litchfields and whose case was “pending on direct review or not yet final” at the time Litchfield was decided. See Smylie, 823 N.E.2d at 687; Pirnat, 607 N.E.2d at 974. Hence, Litchfield must be applied in our analysis of the constitutionality of Detective Earley’s search of Belvedere’s trash. In reviewing that search under Litchfield, we conclude that the search violated Article I, Section 11 of the Indiana Constitution, and that Indiana’s constitutional good faith exception cannot save the evidence seized by that search.
We also hold that Belvedere has “a right to invoke a new constitutional rule promulgated by our [S]upreme [C]ourt.” * * * Accordingly, the statutory good faith exception cannot be applied here as it would vitiate Belvedere’s right to invoke the new rule promulgated by our Supreme Court. Thus, all evidence seized from Detective Earley’s trash search, including the evidence seized pursuant to the subsequent search warrant, should have been excluded from Belvedere’s trial. As no other evidence was introduced by the State, Belvedere’s convictions must be reversed.
MATHIAS, J., concurs.
BRADFORD, J., dissents with separate opinion. [which begins] While I agree, in the abstract, with the majority’s conclusion that the Indiana Supreme Court’s decision in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), applies retroactively,7 I must respectfully dissent, as I conclude that the good faith exception applies in this case. Consequently, I would affirm the trial court in all respects.
Ricardo B. Fuller v.State of Indiana - "Fuller’s conviction and sentence for Class C felony stalking must be reversed because of the untimeliness of the addition of the stalking charges. There is sufficient evidence to support his convictions for Class A felony burglary and Class B felony criminal confinement. Finally, we conclude his sentence is not inappropriate. Affirmed in part and reversed in part."
Timothy D. Knisely v. Susan L. Forte "Based on the foregoing, we conclude that the trial court did not abuse its discretion in modifying its Order for child support and uninsured medical expenses. In addition, the trial court did not err in ordering Timothy to make these payments retroactive to a date prior to Susan’s filing of a Petition for Modification of Support. However, we remand to the trial court for further consideration of the post-secondary education expense in line with this opinion"
In Jeffrey Padgett v. State of Indiana, a 15-page opinion, Judge Riley states as the second issue:
Whether the trial court: (a) failed to follow proper procedure, and (b) violated the federal Constitution’s prohibition against ex post facto laws in determining that Padgett is a sexually violent predator under I.C. § 35-38-1-7.5 (2006). * * *In Mary C. Konger v. Tamorah Schillace, K. Tina Lewis, Kevin P. Konger, Teresa L. McEvoy and Molly E. Miller, a 15-page opinion, Judge Najam concludes:
Here, we conclude that the 2006 version of I.C. § 35-38-1-7.5 altered the definition of a sexually violent predator for some offenders. Previous versions of the statute, versions in effect when Padgett committed the crime and when he was charged, required consultation with two experts before any defendant could be found a sexually violent predator. In contrast, the version in effect at the time Padgett was sentenced required the trial court to find him a sexually violent predator per se for having been convicted of child molest as a Class A felony under I.C. § 35-42-4-3. See I.C. §§ 35-38-1-7.5 (2003); 35-38-1-7.5 (2006). Thus, the 2006 version changed the elements or ultimate facts and evidence necessary to prove that a defendant is a sexually violent predator. See Stroud, 809 N.E.2d at 288. In this sense, we conclude Padgett is correct in identifying the 2006 version as ex post facto law in his case.
Nevertheless, as the trial court stated in its Order finding Padgett a sexually violent predator, Padgett’s revised plea agreement specifically stated that he agreed “to comply with all conditions of the Indiana sex offender registry statutes . . . and any successor statutes and any similar statutes in any other state which the offender resides, as well as all statutory requirements imposed upon sexually violent predators.” (Appellant’s App. p. 215) (emphasis added). Therefore, as a plea agreement is contractual in nature and binding upon the defendant, we conclude that the trial court properly found Padgett a sexually violent predator under the version of I.C. § 35-38-1-7.5 in effect at the time of sentencing.
Mary was individually liable on the Line of Credit, and, as such, that debt was hers to pay. Although Mary may have had a contingent claim against Dean’s estate, the Indiana Code required her to file that claim within three months of the published notice of Dean’s death. See I.C. §§ 29-1-14-1(a)(1), -7. She did not. Thus, we cannot say that the trial court erred in concluding that Mary was “barred from receiving contribution from the estate towards payment of the [L]ine of [C]redit,” and, therefore, that she “is required to fulfill her contractual responsibility and to continue to make payments [on the Line of Credit], so as to maintain the remainderm[e]n’s interest in the real estate.”1 Nor can we say that the trial court abused its discretion in denying Mary’s Petition that Dean’s estate pay the monthly payments due on the Line of Credit during administration. Affirmed.NFP civil opinions today (2):
In Re The Guardianship of C.M., N.W.M., T.W.; Virginia Watson and Howard Watson v. Donald Mier and Rose Mier (NFP) - "Florida satisfied the home state test because the Parents and the Children had lived there for five years, and since the Parents still reside there. The Children’s continued absence from Florida, as a result of the Grandparents’ actions, does not change the fact that Florida is the Children’s home state. Therefore, we conclude that the trial court erred in seeking to find jurisdiction in Indiana under an alternative basis. Our conclusion makes it unnecessary to address the lack of evidence and/or findings regarding either abandonment by the Parents or a rejection of jurisdiction by a Florida court. Reversed."
NFP criminal opinions today (7):
Ind. Decisions - Still more on: Trial court ruling could void IMPD arrests
As noted here in the ILB on Oct. 9th, the Supreme Court has granted emergency transfer under Rule 56(A) in the case of State v. Cheryl Oddi-Smith, bypassing the Court of Appeals. Oral arguments have been set for Wed., Nov. 14th at 9:30 AM. Appellant's brief was due yesterday, Oct. 22. Appellee's brief is due Nov. 7.
Today a press release issued by the Appellant's counsel, Attorney General Steve Carter, announces:
The Attorney General’s office has filed its appeal with the Indiana Supreme Court, arguing that former members of the Indianapolis Police Department (IPD) and the Marion County Sheriff’s Department (MCSD), who transferred to the new Indianapolis Metropolitan Police Department (IMPD), did not have to be re-sworn in order to retain full law enforcement authority.
Officers of the IMPD are properly hired, trained, and legally entitled to do their jobs. Nothing in the law requires officers to be resworn after the merger of law enforcement bodies.”
The attorney general asked the Supreme Court to expedite the appeal and the Court agreed after the Marion County Superior Court dismissed criminal charges against a defendant charged with driving while intoxicated. The trial court dismissed the charges stating that the arresting officer had not been resworn after the merger.
In the appeal the state argues: "Nothing in either Indiana Code Section 5-4-1-1 or the more relevant Indiana Code Section 5-2-1-17 requires re-swearing of an officer when his department consolidates with another agency and he automatically becomes a sworn officer with the new agency."
Ind. Decisions - 7th Circuit issues opinion today on Fair Debt Collection Practices Act
In Evory v. RJM Acquisitions (a combined opinion where SD Ind. Judge Hamilton authored two of the decisions, the other two cases are out of Illinois), a 17-page opinion, Judge Posner writes:
We have consolidated for decision four intertwined cases that present nine questions under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq., several of which have engendered considerable controversy at the circuit level and even some circuit splits. We shall first try to answer the questions and then indicate the disposition of each of the appeals that follows from our answers.
Here are the questions:
1. Whether, if the consumer (as the statute refers to the putative debtor) is represented by a lawyer, a debt collector must give the same written notice to the lawyer that section 1692g would require were the consumer unrepresented and the notice sent directly to him.
2. Whether communications to lawyers are subject to sections 1692d through 1692f, which forbid harassing, deceptive, and unfair practices in debt collection. Compare Sayyed v. Wolpoff & Abramson, 485 F.3d 226 (4th Cir. 2007), answering yes, with Guerrero v. RJM Acquisitions LLC, No. 05-15121, 2007 WL 2389825 (9th Cir. Aug. 23, 2007) (per curiam), and Kropelnicki v. Siegel, 290 F.3d 118, 128 (2d Cir. 2002), both answering no.
3. Whether, if the answer to question 2 is yes, the standard applicable to determining whether a representation is false, deceptive, or misleading under section 1692e is the same whether the representation is made to the lawyer or to his client.
4. Whether a settlement offer contained in a letter from the debt collector to a consumer is lawful per se under section 1692f. Compare Lewis v. ACB Business Services, Inc., 135 F.3d 389, 398-400 (6th Cir. 1998) (yes), with Goswami v. American Collections Enterprise, Inc., 377 F.3d 488, 495 (5th Cir. 2004) (no).
5. If it is not per se lawful, whether its lawfulness should be affected by whether it is addressed to a lawyer, rather than to the consumer directly.
6. Whether there should be a safe harbor for a debt collector accused of violating section 1692e by making such an offer.
7. Again, if such a letter is not per se lawful, what type of evidence a plaintiff must present to prove that a settlement offer violates section 1692e.
8. Whether the determination that a representation is or is not false, deceptive, or misleading under section 1692 is always to be treated as a matter of law. Compare McMillan v. Collection Professionals, Inc., 455 F.3d 754, 759 (7th Cir. 2006); Taylor v. Cavalry Investment, LLC, 365 F.3d 572, 575 (7th Cir. 2004), and Walker v. National Recovery, Inc., 200 F.3d 500, 502, 504 (7th Cir. 1999) (no), with Wilson v. Quadramed Corp., 225 F.3d 350, 353 n. 2 (3d Cir. 2000), and Terran v. Kaplan, 109 F.3d 1428, 1432-33 (9th Cir. 1997) (yes).
9. Whether, if that determination is not always a matter of law, nevertheless a charge under section 1692e can sometimes be dismissed on the pleadings on the ground that the challenged representation was, as a matter of law, not false or misleading.
Courts - "Lawsuit Targets Facebook Mobile Texting"
According to an AP story out of San Francisco written by Michael Liedtke (and picked up this morning by the Indy Star), an Indiana woman (from Patriot, IN) with a Chicago attorney is bringing suit in a San Jose CA federal court against Facebook.com.
Environment - "Will U.S. Steel -- Gary Works be allowed to increase or decrease its discharges to the Grand Calumet River when the company's wastewater permit is renewed?"
"Will U.S. Steel -- Gary Works be allowed to increase or decrease its discharges to the Grand Calumet River when the company's wastewater permit is renewed?" writes Gitte Laasby of the Gary Post-Tribune in a story today. "For now," the story continues, "the answer is both."
A column in the Monday Martinsville Reporter-Times, by economist Morton Marcus, comments on the state of Indiana's environment:
Greenness: Want to change Indiana's image? Then change its reality. According to Forbes.com, Indiana ranks 49th of the 50 states in greenness. We ranked above only West Virginia. Our score was 15.3 on a 50-point scale; Vermont was first with a score of 43.6 out of 50. If New Jersey can be in the top ten, why can't we?
Greenness involves the carbon footprint of a state, meeting EPA water and air standards, smog and ozone measures, hazardous waste management, and other factors. Given our lack of amenities, Indiana's polluted rivers, air, and land can only deter responsible people from locating here.
When the federal EPA repudiates Indiana's Department of Environmental Management, all we can say is that things are better now than in the past. When will Hoosier administrators be able to say, with honesty, that we have achieved long-term environmental goals? That day will come when we recognize that the economic benefits realized by polluters impose greater costs on the rest of us.
Note: The national agency is the EPA accepting responsibility for Protection; our department is IDEM assuming Management. There's a difference in attitude for you.
Ind. Courts - Evansville attorney previously charged with meth violatons allegedly fails drug test
A local attorney whose trial on meth charges was supposed to begin this week is now in the Vanderburgh County Jail, awaiting a final confirmation for whether she tested positive for drugs during a recent check-in.
Teresa Perry, 33, appeared in court early Monday. She has been in custody since the drug test Friday.
During the hearing before Vanderburgh Superior Court Judge Wayne Trockman, defense attorney Doug Walton said Perry is "adamant" the test will prove to be a false positive.
"I spoke with my client and she is adamant that she hasn't done any violations and we are asking that the results be tested further," Walton said, requesting the judge allow Perry to be released on $500 cash bond pending the results of additional tests.
Prosecutors objected to allowing Perry to be released from the jail, and Trockman said Perry's bond will remain at $25,000 cash only.
Walton also asked Trockman to order a hair-follicle test.
"The court will not order a hair test, but we will allow you to do a test privately and will ask that the jail assist," Trockman said.
"I understand there are false positives, and the confirmation test results should be available within the next two or three days."
Trockman said the results of the confirmation test will be conclusive for the court.
Perry was arrested in May and faces eight counts related to possessing and distributing methamphetamine.
She allegedly sold drugs to a police informant, and investigators reportedly discovered a meth lab inside her rental home in the 3300 block of Waggoner Avenue.
The home is within 1,000 feet of McGary Middle School.
Ind. Courts - "Terre Haute Attorney Arrested"
From WTHI News out of Terre Haute, Joe Stoll reports, complete with video, that:
A hit and run accident ends with a Terre Haute attorney in jail.
Attorney William Earls is in the Vigo County Jail charged with operating a vehicle while intoxicated, possession of marijuana and running from the scene of a crash.
It was quite an accident that ended with a power pole getting snapped, power outages and a prominent Terre Haute attorney behind bars.
This was the scene of an accident Mnday night on US. Hwy. 40 near Fruitridge Ave.
Police say attorney William Earls went off the road toppling a speed limit sign and then striking a utility pole - knocking out power to more than 100 people.
Authorities say Earls then fled the scene. Police caught up with Earls at his Terre Haute home.
Ind. Decisions - "Drug question improper: Tossing of evidence by Allen judge is upheld"
The COA opinion yesterday in the case of State of Indiana v. Raymond L. Washington, Jr. (see ILB entry here - 2nd case), is the subject of a story today in the Fort Wayne Journal Gazette, reported by Niki Kelly. Some quotes:
The Indiana Court of Appeals ruled Monday that a Fort Wayne police officer violated the Indiana Constitution when he asked a man stopped for possible traffic violations whether he had any drugs on him.
The case is one of “first impression,” which means the court has not previously dealt with the issue. * * *
During the stop, Hoffman asked Washington whether he had any guns, drugs or anything that might harm the officer. Washington answered that he had marijuana in his front pocket and was arrested and charged with misdemeanor drug possession.
Allen Superior Court Magistrate Robert Ross tossed out the marijuana as evidence, saying the officer violated the state’s constitutional protections against unreasonable search and seizure.
According to Monday’s appellate court ruling, Hoffman claimed Washington was acting nervous during the traffic stop, including not making eye contact with him.
But the appeals court said that wasn’t enough to justify the question.
“Because it is not at all unusual that a citizen may become nervous when confronted by law enforcement officials, other evidence that a person may be engaged in criminal activity must accompany nervousness before the nervousness will evoke suspicion necessary to support detention,” the decision said.
Several times in the 2-1 opinion, the judges mentioned the increasing practice of officers stopping vehicles for minor traffic offenses and asking about the presence of illegal substances.
The ruling upholds the rights of officers to ask about weapons out of concern for officer safety.
But the court found Hoffman’s inquiry about drugs in this case – in which there were no indication of drugs or other criminal activity – was not related to the purpose of the stop or to officer safety.
“While we concede that Officer Hoffman’s inquiry was minimal in terms of duration, it nevertheless extended the duration of the stop,” the decision said. “Of greater significance, however, is the fact that to allow police to routinely question individuals during a traffic stop about the presence of drugs would open the door to all sorts of inquiries, including whether the person cheated on his last year’s tax return or had in the past illegally pirated music from the Internet. While tax fraud and Internet piracy are – like illegal drug possession – serious concerns, routine traffic stops are not the place for such inquiries.”
Monday, October 22, 2007
Courts - More on "For the elite of the Supreme Court Bar, this is the Gilded Age. Or call it the Age of the Guild"
Updating this ILB entry from earlier today, Richard Lazarus has now made his article, "Advocacy Matters Before and Within the Supreme Court: Transforming the Court By Transforming the Bar" . to be published in the Georgetown Law Journal, Vol. 96, 2007, available online at SSRN. Access it here. The abstract:
During the past two decades, the Supreme Court has witnessed the emergence of an elite private sector group of attorneys who are dominating advocacy before the Court to an extent not witnessed since the early nineteenth century. This development is significant for the simple reason that advocacy matters, including before the Supreme Court. Better, more effective advocates influence the development of the law and there is generally no court where such advocacy can wield more far-reaching influence than the Supreme Court. And that is precisely what the modern Supreme Court Bar has quietly and increasingly been accomplishing in recent years. The Court grants the petitions filed by the expert members of the Bar at a significantly higher rate and they also prevail on the merits more frequently. This article documents the extent of the modern Bar's domination of the Court's docket, arguments, and rulings, considers the extent to which business interests who serve as the Bar's primary clients are enjoying heightened success before the Court as a result, and suggests ways of promoting a fairer allocation of Supreme Court advocacy expertise in the future
Ind. Law - More on "IU rifle incident is quickly resolved: No one was hurt; law student arrested"
What jumped out at the [WSJ] Law Blog were reports that he was apparently aiming his rifle at his Real Estate Transfer Finance and Development casebook (pictured, top right). The book was found in the parking lot, shot clean through by two rounds, according to investigators. Sneed, who reportedly had an AR-15 and an AK-47 in his apartment, is reportedly set to undergo a psychiatric evaluation while awaiting a court appearance.
The Law Blog reached out for the authors of Real Estate Transfer Finance and Development, law professors Grant Nelson (pictured, bottom left) and Dale Whitman (pictured, bottom right). The book, now in its seventh edition, was first published in 1976. As far as we know, it’s the first time it’s been shot at.
Ind. Courts - Still more on "Marion Superior Court judges plan to start cracking down on prospective jurors who don't show up on the days they're assigned"
More people than usual reported for jury duty this morning in Marion Superior Court, spurred by the judges' vow to call no-shows back to court and institute penalties. * * *
Starting today, jurors who don't show when their groups are called in will hear from the court. Summonses will go out to the remaining 45 percent or so who didn't come this morning. They'll face a judge, who will give them a new date for jury duty. If they fail to show again, they will be held in contempt of court.
Penalties could include community service and, in some instances, time in jail.
Today's turnout, 55 percent, might not seem significant, but it beat the 41 percent who showed up a week earlier, well short of the courts' requests on a particularly busy day. The result was delays to the start of at least two trials.
Judge Mark Stoner, who oversees the jury pool, aims to drive turnout up permanently. Last year, 52 percent of those called for a given day didn't show up. The number fluctuates, but it's edged closer to 60 percent lately.
Ind. Decisions - Two Indiana decisions today from 7th Circuit
In USA v. Wiszowaty (ND Ind., Judge Moody), a 7-page opinion, Judge Evans writes:
A jury convicted Jim Wiszowaty, an orthopedic and prosthetic products salesman, of one count of conspiracy to commit health care fraud and 64 counts of health care fraud. He was sentenced to a 41- month prison term. Wiszowaty now appeals, claiming that the district court should have admitted into evidence a General Accounting Office report highlighting the poor quality of information Medicare provides to doctors. Second, he argues that the district court erred in refusing to instruct the jury that if he reasonably relied on the statement of a public official when he acted as he did, he should be found not guilty. * * * Affirmed.
In In re Boone County Utilities (SD Ind., Judge McKinney), a 7-page opinion, Judge Evans concludes:
Proof of claim 16 is clearly untimely. After the deadline for claims, one day before the hearing (which had been adjourned two times), amended claim 16 was filed. Not only is it untimely, but, as we said, it is a different claim. It does not mention a contract; it changes the date on which the debt was incurred from the date of the contract (September 8, 1995) to March 12, 2003; and it increases the claim from $648,200.35 to over $7 million. Yet, somehow Branham expects us to conclude that the bankruptcy judge abused his discretion in determining that this claim does not relate back to the prior claims and is therefore untimely. That we cannot do. As the district court (Chief Judge Larry J. McKinney) aptly noted:The Bankruptcy Court has the responsibility to administer its cases. It is well within its discretion under the rules to decide that an amended claim filed the night before a hearing, which had been continued twice by the claimant . . . is just too late.We agree. The judgment of the district court is AFFIRMED.
Ind. Decisions - Court of Appeals issues 11 today (and 16 NFP)
For publication opinions today (11):
In Joseph Guzik v. Town of St. John, Indiana , a 25-page opinion, Chief Judge Baker writes:
Appellant-plaintiff Joseph Guzik appeals the trial court’s grant of summary judgment in favor of appellees-defendants Town of St. John (the Town), and Town of St. John Metropolitan Police Commission (Police Commission) with regard to his claim for a declaratory judgment and injunctive relief, which stemmed from his allegedly coerced resignation as the Town’s police chief. * * *In State of Indiana v. Raymond L. Washington, Jr., a 13-page, 2-1 opinion, Judge Kirsch writes:
We conclude that the trial court properly ordered various portions of Guzik’s affidavit to be stricken from the record. Additionally, while we find that the trial court properly granted the Town and Police Commission’s motion for summary judgment, we further conclude that the motion should also have been granted with regard to Guzik’s request for the return of his property. Thus, we affirm in part, reverse in part, and remand this cause to the trial court with instructions that it enter final judgment for the Town and Police Commission as to Guzik’s request for the return of his personal property.
The State of Indiana appeals the trial court’s order that granted Raymond L. Washington, Jr.’s motion to suppress marijuana that was seized from his pocket during a traffic stop. The sole restated issue is whether, when a person is stopped for a traffic infraction and there are no indicia of criminal activity, the police officer violates Article 1, Section 11 of the Indiana Constitution against unreasonable searches and seizures when he asks the individual if he is in possession of drugs. We affirm. * * *Joseph L. Florio and Connie Florio v. Ray Tilley and CalArk International, Inc. - "Here, the crux of the Florios’ argument is that, but for Tilley’s purportedly negligent speed, Tilley’s vehicle would have been at a different location when Oliver lost control of his vehicle, thereby avoiding the multiple-vehicle collision."
We conclude that under the totality of the circumstances Officer Hoffman’s inquiry that asked whether Washington had any drugs on him or with him was unreasonable within the meaning of Article 1, Section 11 of the Indiana Constitution. Consequently, the trial court properly granted Washington’s motion to suppress the marijuana seized during the traffic stop.
ROBB, J., concurs.
BARNES, J., dissents with separate opinion. [that begins] I respectfully dissent. The question of whether a police officer can ask a motorist stopped for a traffic violation questions unrelated to the initial reason for the stop, aside from questions related to weapons, appears to be one of first impression in Indiana. The case law from other jurisdictions is mixed on this point, but I would side with those cases holding that police officers generally may ask such questions.
Jeannie Lewis-Levett v. Richard D. Day & Martha A. Day - "Although public policy favors home day care, we conclude that such policy is not violated by the enforcement of the restrictive covenants in this case. In other words, Indiana public policy favoring home day care does not supersede otherwise legitimate restrictive covenants prohibiting the use of lots in Golfview Estates for commercial purposes. Lewis-Levett operates a licensed day care home out of her residence, using sixty percent of her home for that purpose. She cares for twelve children, none of whom are related to her, and she concedes that there could be up to twelve vehicles entering and exiting Golf View Estates twice each day. On the facts presented in this case, we cannot say that the trial court erred when it granted summary judgment enjoining Lewis-Levett from operating a licensed day care home at her residence in Golf View Estates."
In Peggy Wiley v. Doris Mae McShane, et al. , an 8-page opinion, Judge Kirsch writes:
Peggy Wiley appeals the trial court’s order that required her to file a bond, pursuant to IC 29-1-7-19, after she filed a complaint challenging the validity of her deceased mother’s last will and testament. She raises five issues, but we find the following restated issue dispositive: whether the trial court abused its discretion when it set the will contest bond at $75,000. We reverse and remand.Keith Bohlander v. Brenda Bohlander - "Keith Bohlander appeals the trial court’s order permitting his ex-wife, Brenda Bohlander, to claim a tax exemption for their daughter, J.B., for the 2006 tax year and requiring him to a pay for a portion of J.B.’s driver’s education classes and her church camp. We dismiss. * * * We address the dispositive issue, which we restate as whether Keith’s notice of appeal was timely filed."
In John Crist v. Creation of South-West Lake Maxinkuckee Conservancy District, et al., a 20-page opinion, Cheif Judge Baker writes:
Appellant-intervenor John Crist appeals the trial court’s order creating the South-West Lake Maxinkuckee Conservancy District (the Conservancy District). Specifically, Crist argues that (1) the trial court erred by withdrawing various signatures from the petition opposing the creation of the Conservancy District, (2) the Conservancy District is not contiguous as required by Indiana Code section 14-33-3-1, (3) the trial court erred by not specifically defining one of the seven districts within the Conservancy District, and (4) the trial court’s finding that the Conservancy District would promote public health is clearly erroneous. Although we conclude that the trial court erred by withdrawing ten signatures from the remonstrators’ petition, that petition still does not have the amount of signatures that are required to dismiss the petitioners’ petition. Finding no other error, we affirm the judgment of the trial court.In Jerry & Linda Pardue v. Jerry & Linda Smith, et al., a 12-page opinion, Judge Bradford writes:
Appellants-Plaintiffs Jerry Pardue and Linda Pardue (collectively, “the Pardues”) appeal the trial court’s judgment, following a bench trial, in favor of Jerry Smith and Linda Smith (collectively, “the Smiths”), Stephen M. Carter and Carolyn Sue Carter (collectively, “the Carters”), and the Town of Plainfield (“Plainfield”) with regard to the alleged dedication of certain real property to Plainfield and an easement by necessity across the land.In Pinnacle Properties Development Group, LLC v. City of Jeffersonville, Indiana, a 5-page opinion, Judge May writes:
The Pardues raise three issues on appeal, which we consolidate and restate as: (1) whether the trial court erred in determining that the disputed property had been dedicated to the public; and (2) whether the evidence was sufficient to support a claim for an implied easement by prior use. Plainfield, in turn, requests appellate attorneys’ fees pursuant to Indiana Appellate Rule 66(E).
Concluding that the trial court properly denied the Pardues’ requested relief, we affirm. Additionally, we decline Plainfield’s request for attorneys’ fees.
Pinnacle Properties Development Group, LLC (“Pinnacle”) appeals a ruling that the City of Jeffersonville (“City”) could transfer the delinquent sewer accounts of Pinnacle’s tenants to Pinnacle’s accounts. We reverse and remand. * * *In James Butler v. Indiana Department of Insurance, et al., a 14-page opinion, Chief Judge Baker writes:
Ind. Code ch. 36-9-23 does not authorize a municipality to collect a delinquent sewer bill by any other means. See Ind. Code § 36-9-23-28 (“Any excess [balance] that remains due after application of the [deposit] forfeiture may be collected in the manner prescribed by section 31 or 32 of this chapter.”). Therefore, the trial court erred in holding the City could collect delinquent tenant bills by transferring the overdue balance from the tenant to the property owner without notice. See Ind. Code § 36-1-3-6(a) (when a statutory provision requires a power to be exercised in a specific manner, the municipality must exercise the power in that manner).
Appellant-plaintiff James Butler, as the personal representative of the Estate of Nondis Jane Butler (the Estate), appeals from the trial court’s judgment in favor of appellees-defendants Indiana Department of Insurance, as the administrator of the Patient Compensation Fund, and Clarian Health Partners, Inc. (Clarian) (collectively, the Fund). Specifically, the Estate argues that (1) the trial court erroneously admitted evidence regarding payments and benefits from Medicare and Medicaid in violation of the collateral source rule, and (2) the trial court erred by denying the Estate’s request to recover Nondis’s unpaid medical expenses pursuant to the Indiana Adult Wrongful Death Statute (AWDS).In Robert D. Storey v. State of Indiana , a 15-page opinion, Judge Vaidik writes:
We conclude that the trial court properly admitted evidence regarding the medical provider write-offs involving Medicare and Medicaid and any error resulting from the admission of the Medicare and Medicaid payments was harmless. We also conclude that, as a matter of law, the Estate was only entitled to recover the amount of actual pecuniary loss incurred as a result of Nondis’s medical expenses; therefore, the trial court properly denied its claim for additional compensation, and we affirm the judgment of the trial court.
Following re-trial, Robert D. Storey (“Storey”) appeals his convictions and sentences for Possession of Methamphetamine in Excess of Three (3) Grams with Intent to Deliver and Manufacture of Methamphetamine in Excess of Three (3) Grams. Storey argues that his separate convictions for these two crimes violate Indiana’s Double Jeopardy Clause, that the trial court abused its discretion in its consideration of the aggravating and mitigating circumstances, and that his sentence is inappropriate in light of the nature of the offenses and his character. Finding that the State sufficiently distinguished the possession offense from the manufacturing offense and provided independent evidence to support both convictions, we conclude that Storey’s possession and manufacturing convictions do not violate Indiana’s Double Jeopardy Clause. As to his sentence, we find that the trial court did not abuse its discretion in its consideration of the aggravating and mitigating circumstances in arriving at a sentence and that his sentence is not inappropriate.NFP civil opinions today (4):
NFP criminal opinions today (12):
Courts - "For the elite of the Supreme Court Bar, this is the Gilded Age. Or call it the Age of the Guild"
The is the introduction to Tony Mauro's article today in Legal Times, headed "New Study Suggests Veteran Advocates Sway Supreme Court." Some quotes from the beginning of the lengthy article:
The Court's docket continues to shrink. Yet dramatic new research by Georgetown University Law Center professor Richard Lazarus shows that more and more of the Court's cases are brought and argued by the seasoned veterans who have honed Supreme Court practice into a fine, and exclusive, art form. Last term, fully 44 percent of the nongovernment petitions that were granted review by the Court were filed by such veteran advocates. In 1980, that number was less than 6 percent.The WSJ Blog has picked up on this, in its usual entertaining fashion. Peter Lattman's post is headed "Are the Supremes Starstruck Like the Rest of Us?"
The justices and their law clerks, it seems clear, pay special attention to the briefs and arguments of these virtuosos of the bar. Chief Justice John Roberts Jr., after all, was once one of them, arguing 39 cases to the Court in his days as an appellate lawyer in the private and public sector. And Lazarus cites a 2004 survey published in the Journal of Law & Politics indicating that 88 percent of law clerks openly acknowledged giving extra consideration to briefs filed by what one called the "inner circle" of the Supreme Court Bar. The clerks, who play a crucial role in screening incoming cases for their justices, often then go to work for these same firms, garnering hiring bonuses that this year have reached $250,000.
But this is not just a "rich get richer" tale about lawyers. Lazarus, founder of the university's Supreme Court Institute, goes a step further to make the claim that the increasing dominance of the veteran Supreme Court Bar is beginning to have an impact on the Court's doctrine.
The study, set for publication soon in the Georgetown University Law Journal, draws a direct and controversial connection between the growth of the Supreme Court Bar and the Court's widely noted new pro-business tilt.
Environment - Canadian company mining Indiana aquifer
The Diane Rehm Show on NPR today focuses on:
U.S. Weather Patterns and Drought: Severe drought conditions in several southern states and in large areas of the west are prompting new concerns about possible water shortages. An update U.S. weather patterns and water management policies.The report goes far beyond the bare description. There is much discussion on how water supplies cannot be taken granted anymore anywhere in the country. There is discussion about how Canada does not allow its water to be shipped to the U.S.
KENTLAND - Canadian water bottler Ice River Springs announced it will locate a new water bottling operation in Kentland - creating up to 100 new jobs.Here is the Oct. 16th Indianapolis Star report, which begins:
The Ontario-based bottler will invest more than $20 million to build and equip a 273,000 square-foot production and distribution center in the town’s industrial park where it will manufacture and fill plastic bottles with water from a nearby spring. * * *
“The Town of Kentland is very pleased that Ice River Springs made Kentland Indiana their choice in site location for their new water bottling facility,” said Dave Smart, Kentland Town Council President. “We believe they will be a great Corporate Citizen and we are excited at the opportunity to be working with them. The team efforts of our board, the Newton County Economic Development Commission, Kentland Bank and the State of Indiana proved to be successful in winning this economic development project. This is a wonderful example of what can happen when business, state, county and local government can work together.”
The Indiana Economic Development Corporation offered Ice River Springs up to $410,000 in performance-based tax credits and up to $36,000 in training grants based on the company’s job creation plans. The state will also provide the Town of Kentland with a grant of up to $47,000 to assist in off-site infrastructure improvements needed for the project. The Town of Kentland will provide Ice River Springs with property tax abatement. The Newton County Economic Development Commission assisted in the effort.
Kentland doesn't have an Ice River, but it's near a natural spring that will help produce jobs in northwest Indiana.No talk here of water management policies. The day may soon be past, and perhaps it should be already, when a community will so eagerly, and with the help of the state administration, sell off the rights to draw down its aquifer for the promise of 100 jobs.
The Indiana Economic Development Corp. announced today that Canadian water bottler Ice River Springs will build a 273,000 square-foot production and distribution center in the town’s industrial park.
The $20 million investment in Newton County will create up to 100 new jobs. It opens in 2008.
It would be interesting to learn the details of this "deal."
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This Wednesday, Oct. 24th:
9:00 AM - Walden v. State - Following a jury trial in the Delaware Circuit Court, Walden was convicted of causing death while operating a motor vehicle under the influence of a controlled substance, and was found to be an habitual offender. Walden appealed, arguing in part that the trial court erred in refusing Walden’s tendered jury instruction, which stated: “Even where the jury finds the facts of the prerequisite prior felony convictions to be uncontroverted, the jury still has the unquestioned right to refuse to find the Defendant to be a habitual offender at law.” The Court of
Appeals affirmed the conviction and sentence in an unpublished memorandum decision, Walden v. State, No. 18A02-0605-CR-420, slip op. (Ind. Ct. App. May 10, 2007). Walden has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorneys: For Appellant: Kelly N. Bryan. For Appellee: Gary Damon Secrest
9:45 AM - Hartman v. Keri - Hartman and Swinehart, students at Indiana University-Purdue University at Fort Wayne, filed a complaint against a professor, Dr. Keri, pursuant to the University's procedure for complaints of harassment. Thereafter, Keri filed a complaint in the Allen Superior Court against Hartman and Swinehart. The trial court denied Hartman and Swinehart's motion for summary judgment on Keri's claim for defamation. A majority of the Court of Appeals reversed, holding the University's complaint procedure was a quasi-judicial proceeding and Hartman and Swinehart's complaint absolutely immune from a defamation claim. Hartman v. Keri, 858 N.E.2d 1017 (Ind. Ct. App. Dec. 27, 2006), reh'g denied, vacated. [See ILB entry here.] The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal. Attorney for Hartman and Swinehart: Karen R. Orr, Lafayette, IN Indianapolis, IN. Attorney for Keri: Swaray E. Contech, Indianapolis, IN. Attorneys for Amici Curiae Boards of Trustees Of Ball State University, Indiana State University, Indiana University and Purdue University: Scott E. Shockley, James R. Williams, Muncie, IN.
This week's oral arguments before the Court of Appeals that will be webcast:
This week's oral arguments before the Court of Appeals that will NOT be webcast:
This Monday, Oct. 22nd:
1:00 PM - State of Indiana v. Adam L. Manuwal - Whether the trial court erred when it ruled that because Defendant was driving the off road vehicle on his own property he could not be charged with operating a vehicle while intoxicated. The Scheduled Panel Members are: Chief Judge Baker, Judges Bailey and Vaidik.
Sunday, October 21, 2007
Law - Controversy over voting machines in Pennsylvania cites 2003 Indiana election
The Pittsburgh Tribune-Review today has a story about problems with voting machines in some western Pennsylvania counties. A quote:
"I don't see how they can say the machines are reliable when they have no way of showing whether the machines are reliable," said Chester County attorney Marian K. Schneider, who took state officials to court last year to ban use of iVotronics and other machines.Really?
The case is before the state Supreme Court.
"Touch-screen machines are bad for voting," said one of the plaintiffs, Danny Sleator, 53, of Squirrel Hill, a Carnegie Mellon University computer science professor. "They're too vulnerable to both machine errors (and) calibration errors ... as well as nefarious manipulation of the vote."
"This is an essential issue for maintaining our democracy," said Jeanne Zang, 58, of Sewickley, another plaintiff in the lawsuit. "We all need to be concerned that our votes are being counted properly."
Electronic machines have caused controversy ever since Congress mandated the transition to electronic voting after the 2000 election debacle in Florida.
Black Box Voting, a nonprofit elections watchdog, reports e-voting glitches -- such as 19,000 voters in one Indiana county somehow casting 144,000 votes in 2003, and the disappearance of 70 ballot "memory cards" in Ohio last year.
Environment - More on Indiana and Lake Michigan pollution
Gitte Laasby of the Gary Post-Tribune has a story today headed "EPA still unsure on lake polluters." It begins:
The U.S. Environmental Protection Agency still has not determined how much pollution goes into Lake Michigan, despite a request from U.S. Sen. Richard Durbin, D-Ill.Here is the part of the story that the ILB found fascinating:
Durbin re-quested the information after public outcry erupted over BP Whiting's wastewater permit this summer. He wanted to find out how much of various pollutants are discharged, which facilities discharge the most, and which pollutants pose the biggest threats to the environment and human health.
The intent was to determine what can be done to improve the water quality in Lake Michigan and what potential legislative steps need to be taken to reduce pollution.
In a 43-page response to Durbin's questions released to the Post-Tribune, the EPA states that because of limitations with the database that contains monitoring reports from the major facilities, the agency has not tried to calculate how much of each pollutant is discharged into Lake Michigan overall.
There are 565 wastewater permits in effect for facilities within the Lake Michigan basin. Of these, 113 are in Indiana, 251 are in Michigan, 193 in Wisconsin and eight in Illinois. In addition, states also issue general permits that cover a total of 4,238 facilities, but not all of them are located within the Lake Michigan basin.Compare these numbers against the Lake Michigan shoreline of each state!
Ind. Law - "Blogs fair game for school code of conduct"
Updating this ILB entry from Oct. 9th, which quoted from a Lafayette Journal & Courier story by Meranda Watling headlined "Student says Facebook posts led to suspension", today Ms. Watling writes under the headline "Blogs fair game for school code of conduct." Some quotes:
Though West Lafayette school administrators won't talk about the specifics of that case, a review of local school codes of conduct and discussion with area principals show some general rules on Internet posting do prevail.See also this Sept. 2nd ILB entry, quoting from a story by Sue Loughlin of the Terre Haute Tribune-Star on "a whole new territory" - the impact of MySpace and Facebook on students.
Basically, if student expression -- whether at school or posted from home on popular social networking sites like Facebook or MySpace -- disrupts school, it could get the student suspended. If it goes as far as harassment, it could get the kid expelled and be handed over to police. If it's harmless gossip or blowing off steam? Schools generally have other things to worry about.
"Unless it's a threat, if something is brought to our attention, we probably will just notify the parents," said Glade Montgomery, Jefferson High School principal. "If someone's calling me a name, I don't worry about that ... unless it becomes a disruption to the educational environment."
That's the same approach John Beeker, principal of McCutcheon High School, takes.
"We don't sit around and read Facebook all day," Beeker said. "... But if it lands on our desk, we're going to react to it.
"We feel an obligation to students to let them know this could prevent you from getting into different (activities) at McCutcheon. It's just not the right thing to do."
Beyond speech, area schools prohibit cameras outside classwork. And some schools dish punishments for postings showing inappropriate behaviors by student athletes in their uniforms or those involved in extracurricular activities.
West Lafayette freshman Michael Garland didn't think about the rules, which he said are largely unenforced, when he captured a fight in a school classroom on his camera and later posted it online.
In return for that action, which sparked the discussion where Casseday's post [ILB - the subject of the earlier story] was made, Garland said he was given an expulsion. He has been allowed to return to school on probation, but not without a lesson.
"It was the first time I've done that -- and last," Garland said.
Casseday's mother, Sophia Wilcox, said she was disappointed in the school's reaction and disagrees with students choosing to censor themselves. She said the school missed out on a teachable moment.
"The idea that you're not allowed to express your opinion in opposition, this is a serious problem," Wilcox said. "... We've taught them how to do this. Now we're saying you're not allowed?"
Ind. Law - Is the City of South Bend's Strip Bar Ordinance Enforceable?
An interesting article today in the South Bend Tribune, written by Jamie Loo, begins:
SOUTH BEND -- Is the city's adult business ordinance enforceable?In a case in 2001:
Citizens for Community Values Political Action Committee has argued repeatedly that the city isn't enforcing the entire ordinance passed by the Common Council in 2000.
But city attorney Chuck Leone says that because a judge struck down parts of the ordinance in 2001, the city can only enforce the parts ruled constitutional.
Judge Michael Scopelitis issued a 77-page partial judgment on the case, finding that some parts of it pre-empted by state liquor laws are unconstitutional.
The most controversial finding was that the 10 p.m. closing time can't be applied to establishments with a liquor license, because they are pre-empted by state liquor laws. It can only be enforced for businesses without liquor licenses.
The provision that calls for a $2,500 fine for physical contact between entertainers and customers was also struck down. Scopelitis wrote in his ruling that the way it was worded made it a violation "for patrons and entertainers to engage in a simple handshake or inadvertent or accidental touching even while both are fully clothed."
Scopelitis held more hearings a few months later, beginning in February 2002 through October 2002, to clear up the remaining issues in the case, such as whether there were enough "negative secondary effects" from the strip bars to enact the ordinance in the first place, the licensing fee and whether adult business owners were harmed by the law and entitled to damages.
During that time, Indiana attorney general Steve Carter filed a "friend of the court" brief supporting South Bend's case, including the 10 p.m. closing time. Carter felt that state liquor laws didn't pre-empt the closing time.
At the October hearing, the judge told The Tribune he expected to finish ruling on the case sometime after Jan. 27, 2003.
But before Scopelitis could rule, the Colleys and the city reached a settlement in November 2005, which dismissed the case entirely. The city bought two of the Colleys' former strip bars, and as part of the agreement, they dropped their lawsuit against the city. * * *
In a press release issued last month, CCV specifically insisted the 10 p.m. closing time should be enforced.
"We're pointing to the closing time because that's one of the most glaring things that isn't being enforced," Mangan said.
The fact that there was a lawsuit is "irrelevant" at this point because it doesn't exist anymore, he said. Carter has weighed in on the issue supporting the ordinance, he said, and the city should enforce it. Mangan said the lack of enforcement appears to be a "political problem" and that a change in city administration would mean the ordinance would be enforced properly.
"It's time for the mayor and Chuck Leone to be honest about the enforcement issues," he said. "The attorney general has told them and they know this: that the South Bend adult business ordinance isn't pre-empted by state law."
But Staci Schneider, spokeswoman for the Indiana attorney general's office, said Carter's brief in the adult business ordinance case is only an opinion, not a ruling.
Whenever a constitutional issue comes up in a court case, the attorney general's office has to be notified so it has the opportunity to intervene. Schneider said the attorney general doesn't have the authority of a judge, and Carter's opinion doesn't supersede a court order.
"The judge's ruling is the judge's ruling," Schneider said.
Leone said this is an unusual situation because the case never received a final judgment and was dismissed. He said what was ruled on sent a "clear message" to the city that parts of the ordinance are not enforceable and wouldn't stand a challenge in court.
"Our expectation is if we litigate the same issues, we would get the same results," he said.
Because of that, Leone said the city is only following the guidelines that are still enforceable. This includes general licensing provisions, age restrictions on patrons and restrictions on viewing booths.
Leone said enforcement of ordinances is generally complaint-driven, and as a "general rule" the city doesn't go out looking for violations.
In the past few years, Leone said the city hasn't received specific complaints at adult businesses to cause the city to respond. He said that if the city started hearing many complaints about a specific establishment, the city would determine whether city codes were violated.
It's a matter of appropriately allocating resources, Leone said. For example, Leone said the city spends a fair amount of time enforcing other quality-of-life ordinances such as those involving noise, drug houses and "disorderly" houses.
"That's where we hear from the residents of South Bend that there are issues," he said. "So that's where we focus our resources and try to be responsive in that way."
The wording of the entire ordinance is still in the city code and would take amendments enacted by the Common Council to officially remove them.
Saturday, October 20, 2007
Courts - "The Indianapolis Museum of Art wanted its Caravaggio back"
So begins this story today in the NY Times, reported by Anemona Hartocollis, about the problems resulting from the closing of a gallery:
They were among dozens of claimants, mainly lawyers, in a Manhattan courtroom yesterday to pick at the chaos that once was the glorious Salander-O’Reilly Galleries, situated in a town house off Madison Avenue.Here is the IMA's web page on the Sleeping Cupid.
The gallery, on East 71st Street, closed its doors on Tuesday as people waited on the sidewalk for a major show, which included the Caravaggio, to open, according to accounts given yesterday in court.
The gallery and its principal dealer, Lawrence Salander, have been accused in a string of lawsuits of defrauding customers and business partners, in part by selling the same paintings to many different people.
In the hearing yesterday, one of the largest claimants, Renaissance Art Investors, wanted to make sure that the gallery remained closed and barred from selling any of its artworks. And after listening to the claims of Renaissance Art Investors and others, Justice Richard B. Lowe III of State Supreme Court essentially agreed.
“The directive of this court is that the gallery will remain secured until further notice,” the judge said. He also ordered an inventory of the gallery’s holdings. * * *
Looking out on a gallery filled with dozens of grim-faced lawyers, Justice Lowe invited them to stand up one by one and state their claims, and at least a dozen did so. * * *
Deborah Mayer, the lawyer for the Indianapolis Museum, said the Caravaggio, “Sleeping Cupid,” had been on loan to the gallery. The museum “is the custodian of the Caravaggio, and is very anxious to get the painting back today, with your honor’s permission,” Ms. Mayer said, adding that the painting was “priceless.”
Her request drew a chuckle from the judge, and loud guffaws from some of the other lawyers.
The judge expressed sympathy for the museum’s plight, but decided that it would not be prudent to return any paintings without further investigation.
Environment - Indiana listed as next to last "greenest" state by Forbes
Here, from the current issue of Forbes, is its list of America's Greenest States. Scroll down to 49th to find Indiana.
46-50: Mississippi, Louisiana, Alabama, Indiana, West Virginia.
From the main article in Forbes:
So who's at the bottom? Mississippi, Louisiana, Alabama, Indiana and, at No. 50, West Virginia. All suffer from a mix of toxic waste, lots of pollution and consumption and no clear plans to do anything about it. Expect them to remain that way.The Gary Post-Tribune features the Forbes article today in this story by Gitte Laasby.
Ind. Courts - More on "Marion Superior Court judges plan to start cracking down on prospective jurors who don't show up on the days they're assigned"
"Marion Superior Court judges plan to start cracking down on prospective jurors who don't show up on the days they're assigned" was the headline to an Indianapolis Star story quoted by the ILB on May 7th.
Now, nearing six months later, we learn that they really mean it -- starting this coming Monday, according to this story by Jon Murray in this morning's Star. Really. Here are some quotes:
Marion County judges have been threatening for years to crack down on jury duty no-shows, but this time they're serious.In other words, your name is called to a jury pool twice as often because the Marion courts have not been cracking down on those who ignore their jury calls. See this ILB entry from Dec. 29, 2006.
If you've been called for jury duty Monday in Marion County, you better show up.
Fail to report then, and another court date will be in your future as part of a campaign aimed at no-shows -- a chronic problem in Marion Superior Court, where more than half of those called skip out.
The court will begin sending scofflaws a summons calling them to a court hearing, where they will face a judge and receive a new date for jury duty.
If they fail to show up for jury service a second time, judges will issue arrest warrants and could hold them in contempt of court, giving them community service or even jail time. * * *
State law requires jurors to show up, but enforcement has been lax in Marion County for years. Last year, only 52 percent of prospective jurors showed up on an assigned day; to meet the courts' needs, the jury pool has adapted during the years by calling in double the number requested by courts, hoping to get enough people in the door.
More from the story:
The General Assembly this year removed the limit of three days in jail for jury duty no-shows, allowing judges to hold them in contempt of court and mete out longer sentences. But Stoner said crowding in the Marion County Jail makes a jail sentence unlikely.Lake County many send at least some errant potential jurors to jail, according to this ILB entry from Dec. 24, 2005 and this entry from June 16, 2006.
The judge is adamant that nobody will be able to pay a fine to avoid jury service, making community service more likely for repeat offenders.
Friday, October 19, 2007
Ind. Courts - More on: James Ahler appointed as judge of the Jasper County Superior Court
Scandaglia & Ryan attorney James R. Ahler used to represent Jasper County, Indiana, on the field as an Indiana University Varsity football player. This year, however, he will be serving Jasper County from the bench. The Jasper County Superior Court bench that is. Leaving private practice to fulfill his dream of serving the public, Mr. Ahler will become the Jasper County Superior Court judge, effective mid-November 2007. Under his appointment by Indiana Governor Mitch Daniels, Mr. Ahler will succeed Judge J. Philip McGraw, who is retiring on October 26, 2007.
Mr. Ahler grew up in Rensselaer, Indiana, and has strong ties to the community. At a very early age, he developed a great admiration and profound respect for the local judges, including Judge McGraw, hoping to one day emulate them.
While at Scandaglia & Ryan, Mr. Ahler has represented clients in complex litigation matters involving claims of investment fraud and breach of contract as well as real estate disputes. Both Gregory J. Scandaglia and William J. Ryan, founding partners, are extremely proud of Mr. Ahler's appointment and are confident he is well-equipped to serve on the bench.
Mr. Ahler is no stranger to the inner workings of judicial chambers. Throughout his legal career, he served as a judicial law clerk to two appellate court judges, The Honorable Michael S. Kanne and The Honorable William J. Bauer, both U.S. Circuit Court judges for the Seventh Circuit Court of Appeals. He also was a judicial extern to Magistrate Terry I. Adelman, U.S. District Court, Eastern District of Missouri and a summer law clerk to Judge Thomas G. Fisher, Indiana Tax Court. * * *
Mr. Ahler received a J.D. from Saint Louis University School of Law in 1996 and a B.A. from Indiana University in 1992.
Ind. Decisions - Transfer list for week ending October 19, 2007
Here is the Indiana Supreme Court's transfer list for the week ending October 19, 2007.
There were four transfer granted this week, summarized in this entry from earlier today.
Nearing four 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 grants four transfers this week
The formal transfer list will follow later today, but four cases have been granted transfer this week:
David Green v. State - see July 27th ILB entry on COA ruling here: "The State presented sufficient evidence to negate Green’s defenses of self-defense and accident. Green has established no reversible error in the admission of evidence. Finally, he has failed to persuade us that his consecutive sentences are inappropriate. Affirmed."
Beth Kopczynski v. David Barger - see June 27th ILB entry on 2-1 COA ruling here; the majority opinion concluded:
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.Richard Pflanz v. Merrill Foster - see June 19th ILB entry on COA holding here; deals with the statute of limitations for bringing underground storage tank claims
Daniel Raess v. Joseph Doescher - This is the workplace bullying case; transfer was granted after the oral arguments held Oct. 10th in Evansville - start with ILB entry here.
Ind. Decisions - 7th Circuit decides one Indiana case today
In USA v. Brodie (SD Ind., Judge McKinney), a 9-page opinion, Judge Kanne writes:
Damien Brodie was convicted after a jury trial of possession of cocaine and marijuana with the intent to distribute. See 21 U.S.C. § 841(a)(1). On appeal he argues that evidence recovered from his jacket should not have been admitted at trial. He also challenges the district court’s calculation of his 240- month sentence under the sentencing guidelines. For the reasons set forth in this opinion, we affirm both his conviction and sentence.
Ind. Decisions - Court of Appeals issues 0 today (and 16 NFP)
For publication opinions today (0):
NFP civil opinions today (7):
James Bishop v. Ralph McRae (NFP) - "Bishop contends that any discrepancy between the McCauley survey and the 1890 survey is fatal and relies on Herbst v. Smith, 71 Ind. 44 (1880), to support this proposition. In Herbst, a subsequent survey attempted to override the official county survey and our supreme court contended the official survey was conclusive and could not be overridden. Our supreme court noted, however, that new surveys may be had for “for the purpose of re-locating or perpetuating the corners, lines or boundaries established by such original survey, where they have become obscured or lost.” Id. at 48. The boundary line between Bishop and McRae was obviously obscured and the plain objective of the McCauley survey was to retrace it. McRae presented ample evidence of the validity of the McCauley survey and how it comports with the information originally outlined in 1890. The trial court considered this evidence, and we find no clear error. We affirm the trial court’s finding that the McCauley survey is a legal survey establishing the boundary line between the McRae and Bishop properties."
The Lake County Board of Zoning Appeals, et al. v. James C. and Pamela J. Thorn (NFP) - "In all respects, we affirm our original opinion."
Johnny L. Miller v. Karesh Enterprises, Inc. d/b/a Fitness Together (NFP) - "Johnny L. Miller appeals the small claims court’s judgment in favor of Karesh Enterprises, Inc., d/b/a Fitness Together (“Fitness Together”) on his complaint alleging that Fitness Together wrongfully withheld wages in violation of the Indiana Wage Payment Statute and seeking liquidated damages and attorney’s fees. We affirm."
Deborah M. Walton v. Claybridge Homeowners Association, Inc. (NFP) - "Walton has not established that the Association committed criminal trespass in its landscaping or installation of Christmas lights. The trial court properly rejected Walton’s criminal trespass counterclaim."
NFP criminal opinions today (9):
Environment - Kansas Power Plant Rejected Over Carbon Dioxide
From the Washington Post today, a front-page story that begins:
The Kansas Department of Health and Environment yesterday became the first government agency in the United States to cite carbon dioxide emissions as the reason for rejecting an air permit for a proposed coal-fired electricity generating plant, saying that the greenhouse gas threatens public health and the environment.
The decision marks a victory for environmental groups that are fighting proposals for new coal-fired plants around the country. It may be the first of a series of similar state actions inspired by a Supreme Court decision in April that asserted that greenhouse gases such as carbon dioxide should be considered pollutants under the Clean Air Act.
In the past, air permits, which are required before construction of combustion facilities, have been denied over emissions such as sulfur dioxide, nitrogen oxides and mercury. But Roderick L. Bremby, secretary of the Kansas Department of Health and Environment, said yesterday that "it would be irresponsible to ignore emerging information about the contribution of carbon dioxide and other greenhouse gases to climate change and the potential harm to our environment and health if we do nothing."
The Kansas agency's decision caps a controversy over a proposal by Sunflower Electric Power, a rural electrical cooperative, to build a pair of big, 700-megawatt, coal-fired plants in Holcomb, a town in the western part of the state, at a cost of about $3.6 billion. One unit would have supplied power to parts of Kansas; the other, to be owned by another rural co-op, Tri-State Generation and Transmission Association, would have provided electricity to fast-growing eastern Colorado.
Together the plants would have produced 11 million tons of carbon dioxide annually, nearly as much as a group of eight Northeastern states hope to save by 2020 through a mandatory cap-and-trade program they plan to impose. The attorneys general from those states had written a letter opposing the permit.
Ind. Law - More on: Different takes on convicted sex offenders
Updating this ILB entry from yesterday, which included quotes from a story by Laura Halleman titled "Homeless man finds shelter at Courthouse," in the Madison Courier, Peggy Vlerebome of the same paper followed up the following day in a story headed: "Location restrictions make it tough for sex offenders to find places to live." Some quotes:
Prohibiting convicted sex offenders from living closer than 1,000 feet from churches, schools and parks might not be reasonable for a small town like Madison, Jefferson Superior Court Judge Fred Hoying said Wednesday. Hardly anyplace meets the criteria, he said before judges, prosecutors and legislators toured Madison Correctional Facility.The Lafayette Journal & Courier' has had a long list of stories on the related question of "Do the changes to the sex offender law mean longtime homeowners must move?" Start with this ILB entry from August 19th.
The distance limit can throw convicted sex offenders into homelessness.
"I have three who live in cars or on the Courthouse steps," Hoying said. A story about the convicted sex offender who has been living on the Courthouse porch since July was published in The Madison Courier on Wednesday.
Sex offenders, Hoying said, are being released from prison "with absolutely nowhere to go with absolutely no chance of success."
J. David Donahue, commissioner of the Indiana Department of Correction, who was in Madison for the tour, said the General Assembly last year authorized the prison system to place sex offenders in transitional housing. "Field agents (from DOC) are working diligently" to find housing in communities, he said.
Donahue said the distance requirement "is potentially too narrow" and said one solution might be "flexibility for local authorities to override the law."
The ultimate goal must be for the public to be safe and the freed sex offenders to be able to "transition into the community," he said.
There are 49 registered sex offenders in Jefferson County, he said. Each of the last six sessions, the General Assembly has increased the penalties for sex offenses, he said.
Thursday, October 18, 2007
Law - More on: Troubles continue for law school founded in 2000 by Domino’s Pizza founder Tom Monaghan
Three former professors of Ave Maria School of Law are suing the school, its dean and its founder, Domino’s Pizza founder Tom Monaghan, after they were in essence fired earlier this year.
The three are charging that they were in effect dismissed from the school for reporting violations by the dean, Bernard Dobranski, and others at the school to law-enforcement agencies, including Michigan’s Attorney General, and the American Bar Association. The ABA recently told the school it had “reason to believe” that the school isn’t in compliance with a standard “to establish and maintain conditions adequate to attract and retain a competent faculty.”
Ind. Decisions - "Judge Easterbrook: A Good Lead Plaintiff Is Hard To Find"
See this WSJ Blog entry this afternoon about the 7th Circuit opinion today out of Illinois, refusing to certify a securities class action against Baxter International. The case is Asher, et al v. Baxter Int'l.
Courts - "New rules on court records often ignored"
The ILB has posted many entries on sealed documents and on wrongfully sealed case files - here is a list of some of them, involving both Indiana and other states.
Florida has had a particularly egregious incidence of secret dockets. See for instance this ILB entry from Sept. 29th, 2006, that began with this quote:
When state Supreme Court Chief Justice Fred Lewis heard that court cases were being kept off the public docket in jurisdictions around Florida, his response was one of shock. "I almost swallowed my tongue," Lewis told the Miami Herald.Apparently all is still not resolved, according to this story dated Oct. 14th in the Miamii Herald and subheaded: "Some Miami-Dade and Broward judges aren't following tough new rules meant to prevent the wrongful sealing of court records." Some quotes from the report by Patrick Danner and Dan Christiansen:
Six months after the Florida Supreme Court ordered tough new rules aimed at curbing the wrongful sealing of court records, judges in Miami-Dade and Broward aren't following them.The story includes links to documents involved. More from the lengthy story:
A review of sealing orders shows judges often are failing to comply with some of the new law's key requirements, such as specifying in writing the grounds for sealing court records, or including findings that the secrecy was no broader than necessary.
Broward judges have issued 10 sealing orders since the high court's ruling on April 5, the clerk's office said. Eight don't meet the new requirements.
Four of six sealing orders that judges issued in Miami-Dade do not comply.
The cases include the divorce of a prominent Broward homicide prosecutor, a defamation suit against a Miami doctor, and a Fort Lauderdale law firm's fee dispute in a probate matter.
The Supreme Court unanimously adopted the rules after The Miami Herald reported that hundreds of civil and criminal cases in at least a half dozen counties were hidden from public view. Broward had the most concealed cases, and they often involved the divorces of judges, lawyers, politicians and businessmen.
The new rules require all sealing orders be posted on the court clerk's website and at the courthouse. The idea is to ensure the public has been notified in case anyone wants to challenge a sealing.
The high court's ruling also outlawed the practice in civil court of erasing any trace of a case's existence from the public record, called ''supersealing.'' The court continues to study sealing rules regarding criminal cases.
But the rules aren't always being followed.
Some cases involve records the law says should be public. Others involve sensitive information that appears to be exempt from public disclosure, like trade secrets, but were sealed with orders that don't comply with the new standards.
It's unknown whether the number of sealing orders has declined since the new rules took effect.
Ind. Decisions - Court of Appeals issues 3 today (and 28 NFP)
For publication opinions today (3):
In Natare Corporation v. Cardinal Accounts, Inc. , an 8-page opinion, Chief Judge Baker writes:
Appellant-defendant Natare Corporation (Natare) appeals from the trial court’s order granting appellee-plaintiff Cardinal Accounts, Inc.’s (Cardinal) motion to reinstate its complaint against Natare. In particular, Natare contends that Cardinal has failed to establish that it has a meritorious claim, that Cardinal has not shown exceptional circumstances justifying extraordinary relief, and that the balance of equities weighs against reinstating the complaint. Finding that Cardinal has wholly failed to carry its burden of establishing that it is entitled to reinstatement, we reverse the judgment of the trial court. * * *In Bonita G. Hilliard in her Capacity as Trustee of the H. David and Bonita G. Hilliard Living Trust v. Timothy E. Jacobs, a 9-page opinion, Judge Barnes writes:
Ultimately, we conclude that the trial court’s decision to reinstate Cardinal’s complaint was against the logic and effect of the facts and circumstances before the court and that it abused its discretion in ordering reinstatement.
Bonita Hilliard, in her capacity as the trustee of the H. David and Bonita G. Hilliard Living Trust, appeals the trial court’s granting of Timothy Jacobs’s motion for summary judgment. We affirm.In Kopka, Landau & Pinkus v. Larry Hansen, et al., a 17-page opinion, Chief Judge Baker writes:
Issue. Bonita raises one issue, which we restate as whether the trial court properly determined that Jacobs was entitled to summary judgment because he was permitted to maintain the life insurance policies on David after the insurable interest that gave rise to the policies terminated. * * *
Because these policies were valid at their inception, we find it unnecessary to extend the requirement that an insurable interest continue throughout the terms of the policies. The trial court properly granted Jacobs’s motion for summary judgment.
Conclusion. Because the life insurance policies were valid at their inception, the trial court properly granted Jacobs’s motion for summary judgment. We affirm.
Appellant-plaintiff/counter-defendant Kopka, Landau & Pinkus (KLP) appeals two of the trial court’s orders—one in which the trial court entered summary judgment in favor of appellees-defendants/counter-plaintiffs Larry Hansen, Rick Skiles, and Skiles Hansen LLP d/b/a Skiles Hansen Cook & DeTrude (SHCD) (collectively, the appellees) on KLP’s complaint, and another in which the trial court entered judgment in favor of the appellees on their counterclaims against KLP.NFP civil opinions today (7):
KLP argues that the trial court erroneously concluded that (1) KLP failed to prove that Hansen breached his fiduciary duty of loyalty, (2) the appellees are entitled to damages and attorney fees under the Indiana Wage Payment Statute,1 and (3) the appellees successfully proved their counterclaims for frivolous litigation and malicious prosecution against KLP.
Finding that the appellees are not entitled to damages or attorney fees pursuant to the Indiana Wage Payment Statute and finding no other errors, we affirm in part, reverse in part, and remand with instructions to calculate the amount of prejudgment interest owed to the appellees.
NFP criminal opinions today (21):
Ind. Courts - James Ahler appointed as judge of the Jasper County Superior Court
The Rensselaer Republic reports this afternoon:
Governor Mitch Daniels today announced the appointment of James Ahler as judge of the Jasper County Superior Court. He succeeds Judge J. Philip McGraw, who is retiring effective October 26.
Ahler, a Rensselaer native, is currently a private attorney at Scandaglia & Ryan in Chicago where he specializes in cases involving claims of investment fraud, breach of contract and estate and trust disputes. Previously, he served two judicial law clerkships in the Seventh Circuit Court of Appeals. Ahler received his undergraduate degree from Indiana University - Bloomington and his law degree from the Saint Louis University School of Law.
“We’re always on the lookout to recapture Hoosier talent that has left our state for one reason or another,” said Daniels. “James is a rising star with a bright future and we’re fortunate to have him return home to Indiana.”
Ahler’s appointment will be effective in November at a date to be determined.
Ind. Courts - More on "Carmel considers court interpreter fee"
Ind. Law - Different takes on convicted sex offenders
From a story posted on the WRBI Batesville site headed "Family Puts Up Sign About Sex Offender Moving In Nearby":
In a Versailles neighborhood that seemed perfect to raise children, there is only one sign, literally, that all might not be as idealistic as originally thought. Chad and Faith Ratliff erected a 6'x8' sign on their property south of Rexville (1050S off US 421) alerting the neighborhood that a convicted sex offender is moving in. Public records reveal that 61 year old Everett Scholl has served time for two counts of Incest and two counts of Rape on a conviction out of Madison County, Indiana. He served four years with his parole ending in April of 2008. He is required to register as a sex offender until 2013.From a lengthy story by Laura Halleman, headed "Homeless man finds shelter at Courthouse," in the Madison Courier:
The Ratliffs have four daughters ranging in age from nine to 15. Chad is a truck driver and often gone from home. Faith said the girls are afraid now and won't sleep alone in their new home. When the Ratliff family was reminded that sex offenders have to live somewhere, Faith replied, quote "Not 100 feet from my daughter's bedroom window."
A registered sex offender who is homeless and has been sleeping and living on the Jefferson County Courthouse steps since July 12 is breaking no laws, according to his probation officer and city and county law enforcement officials.
John Gribbons, 61, was convicted in November 1999 for molesting a child under the age of 14, a felony. He was sentenced by Jefferson County Circuit Judge Ted Todd to 20 years in prison, with five years suspended and supervised probation for the remainder of his sentence. He was released in July 2007 after serving eight years of his sentence.
Gribbons washes and shaves in the Courthouse men's room and said when it gets colder there is a heater in there to keep him warm. During the day he can usually be found sitting on a bench outside the Courthouse with a few bags of his belongings.
Ind. Courts - Feature on Vanderburgh Juvenile Court Judge Brett Niemeier
Kate Braser of the Evansville Courier & Press writes today:
When Vanderburgh Juvenile Court Judge Brett Niemeier was first told he would be honored by his peers for his work, he met the news with good-humored skepticism.
As he accepted the Evansville Bar Association's Spirit of Justice Award on Wednesday, Niemeier said many judges dislike the intricacies of juvenile law.
"Many people don't know this, but every year I have to decide if I am going to stay in juvenile court or join the rotation of the rest of the Superior Court judges, and I know many judges strongly dislike juvenile law," Niemeier said. "So when I heard I'd be accepting this award, I was wondering if this was their way of reassuring me so I'd stay put."
Niemeier said, all joking aside, he is passionate about his job.
"I love juvenile law," he said. "I believe it is the most rewarding part of law."
Environment - "U.S. Steel permit a dud"
From an editorial today in the Fort Wayne Journal Gazette:
The federal Environmental Protection Agency is rightly stepping in before Indiana establishes pollution standards for a Gary steel mill that environmentalists criticize as too lenient. The action comes months after Indiana stirred controversy by giving a northwest Indiana refinery permission to increase pollution into Lake Michigan.Gitte Laasby of the Gary Post-Tribune reports today, in a story headlined "Pressure mounts on U.S. Steel," that:
An early draft of the wastewater discharge permit for U.S. Steel quickly elicited groans of “here we go again” from several environmental organizations. After reviewing the draft, environmental experts voiced concern that Indiana regulators eliminated or failed to include limits on toxic chemical and metal discharges into the Grand Calumet River, a tributary of the Great Lakes.
The proposed Indiana Department of Environmental Management permit apparently fails to adequately limit emissions of oil, lead, arsenic, benzene and nitrates that the U.S. Steel plant in Gary has reported discharging. The permit also relaxes limits on chromium and could allow an increase of 62 percent. Chromium is a heavy metal that pollutes fish. Long-term chromium exposure causes liver, kidney and nervous system damage in humans.
Critics contend the draft permit violates the Clean Water Act and think Indiana deserves the heightened scrutiny from the EPA, particularly given the its track record.
The EPA has issued a pre-emptive strike against the draft wastewater discharge permit. Federal environmental regulators objected to how the proposed permit set discharge limits for several pollutants and questioned the five-year compliance schedule.
The state can’t move forward with the permit without addressing the EPA’s concerns. Moreover, receiving objections from the EPA to a draft permit is unusual.
“We received the letter from the EPA in early October, said Sandra Flum, communications and legislative director for IDEM. “It’s really rare for them to object before the permit is finalized.”
The U.S. Environmental Protection Agency sent more objections to U.S. Steel Gary Works' wastewater permit Tuesday.From Christine Kraly's report today in the NWI Times:
Meanwhile, a dozen environmental groups in Indiana and Illinois sent a joint letter to the EPA to request the agency hold a public hearing on its permit objections.
EPA sent a second letter to the Indiana Department of Environmental Management Tuesday, saying the draft permit indicates that IDEM is allowing the company to increase its discharges of chromium without proof that the pollution would not degrade water quality.
"We're not certain based on the information we've seen if the permit does or does not authorize an increase in pollutants," said Steve Jann, deputy chief of the NPDES programs branch at EPA Region 5. "Indiana could provide additional information to us to clarify."
The U.S. Environmental Protection Agency is calling out what it deems are more problems with a U.S. Steel draft wastewater permit, in a new letter sent Wednesday to Indiana regulators.In addition, the story includes a link to the EPA letter.
In a letter sent to the Indiana Department of Environmental Management, the EPA said it completed a review of the draft permit, and that the permit may not meet state water quality antidegradation rules. (Read the letter.)
The permit also fails to prove U.S. Steel is using the best technology to minimize pollution from its cooling water intake structures, as required by the federal Clean Water Act, according to the letter.
Ind. Gov't. - "DNR ends talks, to press courts for ‘canned hunting' ban"
"Canned hunting" has been the subject of a long list of ILB entries, but the most recent mention was the end of 2006, quoting an article by Phil Bloom, Fort Wayne Journal Gazette Outdoors editor, summing up the career of Kyle Hupfer:
The one issue Hupfer couldn’t resolve the way he wanted was putting an end to canned hunting.Today Niki Kelly of the Journal Gazette reports:
He announced in August 2005 that the practice of charging clients to shoot animals in penned enclosures would be illegal come April and asked the General Assembly not to intervene. Legislators sympathetic to the high-fence operators tried anyway but failed.
Facing a lawsuit from one operator, Hupfer backpedaled into a negotiated settlement that will allow a handful of canned hunt operations to stay in business for another 10 years.
State officials have shifted gears and decided to fight a lawsuit over a rule banning high-fenced hunting preserves in Indiana.For background, see this ILB entry from Aug. 27, 2006, headed "Hupfer gives 10-year reprieve to canned hunting," quoting from a story and an editorial in the Journal Gazette, which point out that DNR had passed rules prohibiting canned hunting, and criticizing Hupfer;s proposed settlement not to apply the rules against existing operation for 10 years. A quote from the editorial:
The Department of Natural Resources had entered into settlement negotiations in August 2006, but more than a year later – and with another deer hunting season under way – the legal wrangling continues. * * *
The settlement negotiations seemed to be progressing, but Hupfer decided to leave the job in December. New director Robert E. Carter came on shortly afterward and talks ceased.
Carter declined to be interviewed for this story, but DNR deputy director and chief counsel Adam Warnke said it wasn’t so much a philosophic shift as “we determined that an acceptable settlement wasn’t possible, so we elected to fight the lawsuit.”
Whatever the reason, Doug Allman of the Indiana Deer Hunters Association is happy about the change.
“They are litigating it. DNR has hired an attorney and is prepared to not settle but fight this out in court for the closure of these things,” he said. “This is what needs to happen. I was not for that settlement at all, so this is good news.”
Allman believes there are several reasons behind the shift, including Carter’s strong law enforcement background and politics.
“They just aren’t popular, and the Michael Vick thing isn’t helping,” he said, referring to dogfighting charges against the NFL star. “People just aren’t willing to accept these preserves.”
Several outdoors groups have come out against canned hunting, saying it violates the spirit of fair chase.
But that hasn’t stopped the preserve owners.
They have filed a motion in Harrison Circuit Court seeking to have the judge enforce the proposed settlement agreement even though it wasn’t officially signed. The state is trying to have that motion dismissed.
Arguments on the issue will be held Nov. 7.
“I think our chances are pretty darn good,” said William Moyer, attorney for Bruce. “I have cited several state and federal cases all that approved the enforcement of oral settlements. The fact that this was never signed in my opinion really doesn’t matter much.”
Hupfer disagrees, saying the two sides were floating ideas back and forth and never came close to making the agreement official.
And he noted that one of the reasons the DNR backed off was research finding the state is not allowed to enter into an agreement not to enforce a state rule or law that is on the books.
The DNR is getting new counsel, too – the Barnes & Thornburg law firm in Indianapolis. Warnke didn’t want to comment on the strategy behind no longer using the state attorney general but said any contract reached for legal services will be approved by that office.
He also made clear that while the state is prohibited from enforcing the rule on those involved in the lawsuit, the DNR has stopped at least two startups of similar preserves in the past year.
“We continue to enforce the law because it is the law,” Warnke said.
What looked like a satisfying end to a despicable business now appears to be a diversion to benefit high-fenced hunting preserve owners. A proposed settlement allowing the illegal operations to continue for another decade is an unacceptable resolution.
Courts - Wrap-up on "McDonald's sanctioned in strip-search case"
Updating this ILB entry from Oct. 5th, which quoted from a Louisville Courier Journal story headed "Ogborn awarded $6.1 million in strip-search hoax in Kentucky case against McDonald's," Andrew Wolfson of the LCJ has a very long feature today on Ann Oldfather, the winning attorney in the case. A quote:
Colleagues, both friends and foes, describe her as brilliant and as aggressive as a pit bull.
"She will bite your leg," said Tom Meeker, her former law partner and retired Churchill Downs chief executive, who says he placed Oldfather on a lifetime retainer -- $1 -- in the event his wife of 45 years should ever sue him for divorce.
Ind. Decisions -- "Court rules Carmel can annex Home Place"
Reporting on yesterday's Court of Appeals opinion in the case of City of Carmel, IN. v. Certain Home Place Annexation Territory Landowners (see ILB summary here), Francesca Jarosz reports today in the Indianapolis Star:
The Indiana Court of Appeals sided Wednesday with Carmel in its efforts to annex Home Place, but a lawyer representing the small community said the two-year battle isn’t over.
The court’s ruling puts Home Place closer to losing its attempt to prove that Carmel can’t afford to annex the 1.6-square-mile area of homes and small businesses north of Indianapolis’ border.
Those fighting annexation have a month to decide whether they will appeal the decision to the Indiana Supreme Court. If they don’t, the case would return to the original Hamilton Superior Court judge to decide whether Home Place meets five state-mandated criteria to prevent annexation.
Stephen Buschmann, Home Place’s lawyer, said the community has not decided whether it will appeal. * * *
Under last year’s tax rate, Home Place residents would pay 21 percent more if annexed into Carmel.
About 70 percent of the landowners signed a remonstrance against the annexation in 2005. Dozens have rallied in a group called Concerned Citizens for Home Place, which raised $60,000 through events like potluck dinners to help cover legal fees. * * *
The court’s ruling reversed a 2005 decision by Hamilton Superior Court 3 Judge William Hughes, who ruled that Carmel had not provided substantial evidence that it could afford to annex Home Place.
Carmel’s fiscal analysis showed a shortfall of more than $3.4 million in the first three years of annexation because the added tax revenue from Home Place would not cover the initial cost of expanding city services to the area.
The city said it would cover the deficit with “other net revenue” but did not specify the source of that revenue in the analysis.
The appeals court ruled that, based on documentation of the money available in the city’s operating balance, Carmel proved it could cover the cost. The court used guidance from a June ruling in the Indiana Supreme Court allowing Carmel to annex 8.3 square miles in southwest Clay Township.
Babb said the city felt comfortable that the appeals court would decide in its favor after the southwest Clay ruling.
“This decision reinforced the principal that annexations are local legislative decisions and that judicial review of those will be limited,” Babb said.
If Home Place decided to appeal, the Indiana Supreme Court would have to decide whether to accept the appeal.
If Home Place doesn’t appeal, loses its appeal or has its case rejected, the case could travel back to Hamilton Superior Court. The judge there would review Home Place remonstrators’ case to determine if they meet five criteria, such as whether Home Place has adequate roads and fire and police service without the city, and whether the annexation would have a significant financial impact on the area.
If Home Place proves these criteria, the court would ban Carmel from annexing the area.
Wednesday, October 17, 2007
Ind. Courts - "Three New Counties Join Public Defender Reimbursement Program"
So announces a press release on the Indiana Courts site:
Three more Indiana counties have become part of the Indiana Public Defender Commission Program that seeks to provide quality legal defense for criminal defendants and lessen the financial burden on Indiana counties, Chief Justice Shepard announced today.
Howard, Wabash and St. Joseph counties have taken steps to join the other 54 Indiana counties that already receive reimbursements from the State of Indiana for the cost of defending indigent criminal defendants. Counties that establish local public defender boards and establish a comprehensive plan for delivering services are eligible to receive 40 percent to defend felony cases. This is in addition to the 50 percent reimbursement of the costs of death penalty cases that any Indiana county is eligible to receive.
In Howard County, County Commissioners passed an ordinance to form a public defender board in 2004 and asked the 11-member Indiana Public Defender Commission to approve its comprehensive plan in October 2006. During 2007, the Commission has approved $249,702 in reimbursements for Howard County’s public defense expenses.
In Wabash County, County Commissioners passed an ordinance to form a public defender board in 2006 and requested approval of its comprehensive plan in April 2007. During 2007, the Commission has approved $11,663 in reimbursements for Wabash County’s public defense expenses.
In St. Joseph County, County Commissioners passed an ordinance to form a public defender board in January 2007 and requested approval of a comprehensive plan in April 2007. It is expected to be eligible to receive reimbursements in December 2007, when it come into compliance with all Commission standards.
Since the Public Defender Commission was created by the legislature in 1989, it has delivered $62.1 million to Indiana counties for the costs of indigent criminal defense. In 2007, the Indiana General Assembly increased the funding of the Commission’s work from $10 million to $14 million.
Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)
For publication opinions today (4):
In City of Carmel, IN. v. Certain Home Place Annexation Territory Landowners , a 16-page opinion, Judge Vaidik writes:
In this case, Certain Home Place Annexation Territory Landowners (“the Remonstrators”) successfully challenged an annexation attempt by the City of Carmel (“Carmel”). Carmel now appeals, complaining that the trial court improperly engaged in an audit of its fiscal plan when it found that Carmel failed to sufficiently and specifically set forth the methods of financing the planned services to be provided to Home Place following annexation. In light of the Indiana Supreme Court’s recent opinion in City of Carmel v. Certain Southwest Clay Township Annexation Territory Landowners, 868 N.E.2d 793 (Ind. 2007) (“Southwest Clay”)—in which our Supreme Court reversed the trial court’s order that Carmel may not annex territory in Southwest Clay—and Carmel’s accountant’s testimony supplementing the fiscal plan, we conclude that Carmel met its burden of proving the statutory prerequisite that the fiscal plan must show “[t]he method or methods of financing the planned services.” The trial court’s judgment to the contrary is akin to a judicial audit and constitutes clear error. We therefore reverse the trial court. * * *The ILB has had a slew of entries on this dispute - here is the list. Oral arguments were held only a month ago. Here is a copy of the 10/4/05 trial court opinion. Recall also In the Matter of the Annexation Proposed by Ordinance No. 2004-11-38, et al v. Chris Fetcko, et al, decided by a different panel last week.
Our Supreme Court has made clear that “courts reviewing annexation challenges should focus on whether the municipality made credible and enforceable commitments to provide equivalent services to similar areas. Courts are not authorized to dissect the minutiae of what are essentially legislative decisions.” * * * Although Mr. Reedy—who did not request any documents from Carmel, interview any Carmel officials, or audit Carmel’s books, disputed Carmel’s ability to finance the services, Mr. Coonrod testified that Carmel had more than enough money in its operating balance, which he labeled “Other available net revenue” in the fiscal analysis, to cover the initial deficits related to the annexation of Home Place. At the end of the day, it is apparent that Carmel has made credible and enforceable commitments to provide equivalent services to Home Place. In light of Southwest Clay and Mr. Coonrod’s testimony supplementing the fiscal plan, the trial court’s judgment that the fiscal plan did not meet the requirements of subsection (d)(2)—which requires the fiscal plan to show “[t]he method or methods of financing the planned services”—is akin to a judicial audit and constitutes clear error. Reversed.
Ronald E. Starr v. State of Indiana - "It is only a sentence—not the conviction itself—that may be challenged on direct appeal following a guilty plea. Starr cannot challenge his convictions in a direct appeal following his guilty plea."
Christopher Stephens v. State of Indiana - "The trial court did not abuse its discretion when it collaterally estopped Stephens from attacking the previous child support order in another proceeding before another court. The trial court correctly overruled Stephens’s Batson objection and did not err in finding that Stephens did not meet his burden to prove inability to pay. Finally, we find the evidence was sufficient to sustain the conviction. We affirm."
In Chuck W. Adams v. Mauro Chavez, M.D., and Prison Health Services, a 12-page opinion, Judge Robb writes:
Chuck Adams appeals the trial court’s dismissal of his proposed medical malpractice complaint. On appeal, Adams raises four issues, one of which we find dispositive and restate as whether the trial court abused its discretion in dismissing Adams’s proposed complaint. We reverse and remand, concluding that the trial court abused its discretion because, when it dismissed Adams’s proposed complaint pursuant to Indiana Code section 34-18-10-14, there was no indication that Adams had failed to act as required by Indiana Code chapter 34-18-10. * * *
We note in closing that our decision does not create a stalemate on remand.
NFP civil opinions today (6):
Matter of R.D.A., a Child in Need of Services; Larry D. Alspach v. Miami County Department of Child Services (NFP) - CHINS determination, affirmed.
In Matter of the West Central Conservancy District v. Town of Avon (NFP), a 16-page opinion, Judge Friedlander writes:
West Central Conservancy District (the District), challenges the trial court’s grant of summary judgment in favor of the Town of Avon (the Town). Upon appeal, the District presents five issues for our review, which we consolidate and restate as whether summary judgment was appropriate.Paternity of A.K.W.; Lara Winters v. Matthew Ryan Cruse (NFP) - "Lara N. Winters (Mother) appeals the portion of a paternity judgment ordering the parties’ child, A.K.W., to assume the surname of her father, Matthew R. Cruse (Father). Mother presents the following restated issue for review: Did the trial court abuse its discretion in ordering the child’s surname changed from Winters to Cruse? We affirm."
We reverse and remand.
This case concerns the efforts of the District, a not-for-profit conservancy district established for the purpose of providing sewer services to certain areas in Hendricks County, to add a “purpose” providing it with authority to provide water supply and related services.
M Doed, LLC v. Marlan B. and Mary Esther Harris (NFP) - "A notice was sent to the Harrises by certified mail with a return receipt to the last address of the property owner as indicated by the auditor’s records, which was the address of the Property. As demonstrated by the evidence, the peculiarity of this case is that this address was not provided or authorized by the Harrises to be the tax bill address. Norma Wheeldon, a Tax Sale Clerk in the Delaware County Auditor’s Office, testified that the tax bill address was changed between the years 2002 and 2003, but that she did not have any knowledge as to how it was changed. Marlan Harris testified that he did not request, authorize, or have knowledge of the change of the tax bill address. He also testified that he did not receive any notices regarding the delinquent tax status of the Property and did not learn of the issue until receiving notification that the insurance on the Property had been cancelled, which occurred after Doed filed its petition. Based on these circumstances, the notice of the tax sale was not reasonably calculated to apprise the Harrises of the pendency of the action. Therefore, we affirm the trial court’s denial of Doed’s petition to issue a tax deed. Affirmed."
NFP criminal opinions today (1):
Ind. Law - More on: Calif. Gov. Schwarzenegger kills a bill that would have required infection and death rates to be made public; what about Indiana?
Sunday the ILB posted this entry that ended by pointing out that Indiana does NOT provide the most essential information consumers need to know about Indiana hospitals - infection and death rates.
According to a story today in the Chicago Tribune [emphasis added by ILB]:
Nearly 19,000 Americans died in 2005 of invasive infections caused by drug-resistant staphylococcus bacteria—more than were killed by AIDS, according to a new study in the Journal of the American Medical Association.NPR's All Things Considered had this story last evening:
The report, written by experts at the Centers for Disease Control and Prevention, is the latest research to note the alarming spread of methicillin-resistant staphylococcus aureus in communities across the U.S. and to document the bacteria's deadly impact.
MRSA is a superbug that does not respond to treatment with common antibiotics such as penicillin. More than 94,000 Americans contracted life-threatening MRSA infections in 2005, including blood and bone infections, pneumonia and inflammation of the heart's lining. Most appear to be traceable back to hospitals, nursing homes or medical clinics, the new CDC report found.
"This is really a call to action for health-care facilities to make sure they're doing everything they can to prevent MRSA," said R. Monina Klevens, the lead author of the report and a medical epidemiologist at the CDC.
This year, Illinois became the first state in the nation to require hospitals to report infection rates, test patients in intensive-care units for the bacteria and to take specific measures to prevent its spread.
Life-threatening, drug-resistant infections are spreading in hospitals and communities across the nation. Now, in the first national analysis of resistant staph, the Centers for Disease Control and Prevention has found that the two types of resistant staph bugs are mixing.Here is the Center for Disease Control (CDC) webpage on MRSA in Healthcare Settings. "MRSA" = Methicillin-resistant Staphylococcus aureus. This type of bacteria causes “staph” infections that are resistant to treatment with usual antibiotics.
The study, in this week's Journal of the American Medical Association, finds much higher rates of serious drug-resistant staph infections than anyone suspected.
The pressure is on hospitals to do more to prevent the hard-to-manage infections. But one leading hospital executive says it's an uphill battle.
Finally, for now, don't miss this front-page story today in the Washington Post, written by Rob Stein and headlined "Drug-Resistant Staph Germ's Toll Is Higher Than Thought." A quote:
"This is a significant public health problem. We should be very worried," said Scott K. Fridkin, a medical epidemiologist at the CDC.[More] Here is the website of the Committee to Reduce Infection Deaths (RID), a non-profit organization devoted solely to providing safer, cleaner, hospital care.
Other researchers noted that the estimate includes only the most serious infections caused by the germ, known as methicillin-resistant S taphylococcus au reus (MRSA).
"It's really just the tip of the iceberg," said Elizabeth A. Bancroft, a medical epidemiologist at the Los Angeles County Department of Public Health who wrote an editorial in JAMA accompanying the new studies. "It is astounding."
MRSA is a strain of the ubiquitous bacterium that usually causes staph infections that are easily treated with common, or first-line, antibiotics in the penicillin family, such as methicillin and amoxicillin. Resistant strains of the organism, however, have been increasingly turning up in hospitals and in small outbreaks outside of heath-care settings, such as among athletes, prison inmates and children.
Here is a story from the Sept. 10th Indianapolis Star. A quote [emphasis added by ILB] :
Working with every hospital system in Indianapolis, Indiana University School of Medicine researcher Dr. Bradley Doebbeling is conducting a study that could help save lives, prevent infections and save hospitals money.
The hope is that hospitals will change policies that could reduce the number of patients in intensive care units who develop infections that are resistant to frontline antibiotics, such as penicillin.
If the methods he's advocating prove successful, health-care providers nationwide could follow the model and reduce infection rates in their hospitals.
"The main thing we want is to make sure we have an impact," said Doebbeling, who is also the Regenstrief Institute's director of health services research and the director of the Indiana University Center for Health Services and Outcomes Research. Doebbeling received a $400,000 government grant for the 18-month study.
Research started in January. It calls for participating hospitals to develop ways to improve hand hygiene and screen patients for methicillin-resistant Staphylococcus aureus -- or MRSA --one of the most common infections. * * *
Hospitals everywhere are striving to decrease the prevalence of superbug infections, which are considered preventable medical errors. Medicare recently announced plans to stop reimbursing hospitals for treating patients with infections that were acquired while in the hospital.
Neither the federal nor the state governments require hospitals to report the number of such infections, though most hospitals maintain their own data. * * *
"If you ask a health-care institution to clean and screen, screen and clean, those are the most important components of healthcare," McCaughey said.
Few hospitals in the United States follow these routines rigorously, she added.
Studies have shown that health-care providers wash their hands in between treating patients only about half of the time. About three dozen hospitals out of the thousands in the United States screen every patient for MRSA, although hospitals in other countries have done so for years, McCaughey says.
Hospitals can also reduce infections by regularly cleaning equipment like IV poles and blood pressure cuffs and encouraging staff to change their white coats, which can act as carriers for disease, she said.
Ind. Courts - "Gary Court workers to get extra pay"
Jon Seidel reports today in the Gary Post-Tribune:
The city's judge will be able to send her employees home with a little extra cash because of an ordinance passed by the City Council on Tuesday night.
City Judge Deidre Monroe sponsored the ordinance, introduced earlier this month, which orders that income from the City/Town Judicial Salary Fees Fund be placed into a separate, "non-reverting" fund.
That fund, according to the ordinance, will be used to supplement employee salaries "and other expenditures of the Gary City Court" as deemed necessary.
However, the ordinance was amended by council member Marilyn Krusas, D-1st, to require a specific appropriation before Monroe can use the money for anything else.
All present council members voted in favor of the ordinance. Council member Carolyn Rogers, D-4th, was absent.
After the council meeting, Monroe said the money generated this year by judicial salary fees in Gary will likely total about $25,000.
"It will fluctuate," Monroe said, "but it will never be a great deal of money."
Environment - Still more on "Indiana seeks to ease rules for lake polluter"
Updating this ILB entry from Oct. 13th, Gitte Laasby of the Gary Post-Tribune reports today that:
A large coalition of the biggest environmental groups in Indiana and Illinois is eyeing a new way to make sure they're being heard -- and potentially prod the Indiana Department of Environmental Management into modifying U.S. Steel Gary Works' wastewater permit even more.However, as the story continues:
Because a hearing would mainly be intended as an opportunity to discuss the objections the EPA has already made -- not expand on them -- it's most often people opposed to the objections who ask for a hearing, said Anne Rowan, EPA Region 5 spokeswoman.
"It is limited to the objections raised by the EPA. It means that it's not a public hearing to discuss other aspects of the permit in its entirety," Rowan said. "I don't think it's intended to expand our objections or for raising new information. It's an opportunity for anyone to counter the objection or to raise issues about the objection."
Courts - More on "Motion suggests guardian to oversee dogs seized from Vick home"
Should Michael Vick's pit bulls live or die?
That is a decision that will be made in part by Rebecca Huss, a Valparaiso University law professor and expert in animal law, who left the school Tuesday to begin evaluating four dozen pit bulls rescued from an animal fighting operation on property owned by the suspended Atlanta Falcons quarterback.
Late Monday night, a federal judge appointed Huss to be the guardian and special master in the case, which has captured national attention.
Huss, who teaches at the Northern Indiana university's law school, will make recommendations to the court on which dogs can be placed with an adoption agency and which should die. * * *
"My goal, and the court's goal, is to find the best possible future for the dogs and the humans and other animals with which those dogs would come in contact," Huss said in a prepared statement.
"As someone whose academic endeavors focus on the legal status and value of animals in our lives," Huss said, "I am honored to represent the interests of those at the heart of this case -- the dogs."
Huss was appointed by Chuck Rosenberg, U.S. attorney for the Eastern District of Virginia, and her appointment became official when Judge Henry Hudson signed a court order, which was released to the media Tuesday. * * *
An Iowa native, Huss has been on the faculty of Valparaiso University School of Law since 1999.
Huss was called a leading expert in animal law by the U.S. attorney. She teaches a class on animal law, according to the school's Web site, and has written several articles on the subject. But law school spokesman Tom Shaer said Huss should not be considered an animal rights activist.
Laurie Adams, who runs Casa del Toro, an Indianapolis pit bull rescue operation, said determining the adoptability of a rescued pit bull is very important. Any signs of potential danger to humans need to be discovered before an adoption takes place.
Ind. Law - "IU rifle incident is quickly resolved: No one was hurt; law student arrested"
The popular national law blog Above the Law was quick to post last evening on the story in the Indianapolis Star (here is the updated story) on the IU-Bloomington law student "accused of firing a rifle from the second floor of the apartment building." From the Star story today, reported by Vic Ryckaert:
The suspect fired several rounds at 7:02 a.m., police said. An officer who arrived five minutes later reported hearing the man yelling as he held the assault rifle.Above the Law's David Lat, however, may have the answer:
Sneed appeared to be intoxicated when officers arrested him, Qualters said.
While in police custody, Sneed admitted to an officer that he fired the shots but did not explain why, Qualters said. Later, Sneed requested an attorney and refused to give a statement to detectives.
According to sources in the local prosecutor's office, Sneed was shooting his law books, with an automatic rifle.
Tuesday, October 16, 2007
Law - PBS' Frontline tonight explores VP Cheney's efforts to expand power of the presidency
Here is the blurb:
For three decades, Vice President Dick Cheney has waged a secretive, and often bitter battle to expand the power of the presidency. Now in a direct confrontation with Congress, as the administration asserts executive privilege to head off investigations into domestic wiretapping and the firing of U.S. attorneys, FRONTLINE meticulously traces the behind-closed-doors battle within the administration over the power of the presidency and the rule of law.Here is the accompanying website.
Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)
For publication opinions today (2):
Adsit Company v. Julie Gustin & Mary Gustin, a 15-page opinion, is a case involving "a Muncie-based retailer of new, used, and rebuilt parts and accessories for Mercedes-Benz automobiles [which] does business over the phone and the Internet. Prior to placing an online order, a customer must click a button reading “I Accept,” which is located at the bottom of a web page describing the company policy." The appellee-defendants live in Texas and Alabama. Chief Judge Baker writes:
Appellant-plaintiff Adsit Company, Inc. (Adsit), appeals the trial court’s order entering judgment in Adsit’s favor on Adsit’s breach of contract complaint against appellees-defendants Julie and Mary Gustin but refusing to award any damages based on Adsit’s failure to mitigate its damages. Adsit argues that the trial court erroneously concluded that it was required to mitigate its damages following the Gustins’ wrongful rejection of goods. Additionally, the Gustins cross-appeal, arguing that the trial court did not have personal jurisdiction over them and that it should not have found that they breached the contract given Adsit’s alleged breaches of the implied warranty of fitness for a particular purpose and an express warranty.In Shaquita Gilbert v. State of Indiana , a 6-page opinion, Chief Judge Baker writes:
We find that the trial court had personal jurisdiction over Mary pursuant to a forum selection clause in Adsit’s online clickwrap agreement and that it had personal jurisdiction over Julie because Mary acted as Julie’s agent when Julie gave her permission to use Julie’s credit card number in the online transaction. We also find that Adsit did not breach any warranties and that mitigation of damages was not an accurate way to frame the issue herein. Instead, what must be determined is which party bore the risk of loss of the goods, and we conclude that Adsit bore the risk of loss following its agent’s acceptance of the wrongfully rejected goods. Additionally, we find that, inasmuch as Adsit has not proved that it is entitled to damages stemming from the Gustins’ breach, the trial court erroneously awarded attorney fees in the amount of $500 to the company. Therefore, we affirm in part and reverse in part.
Appellant-defendant Shaquita Gilbert appeals her conviction for Aggravated Battery,2 a class B felony. Gilbert argues that there is insufficient evidence establishing that she caused the victim’s severe injuries. Finding that Gilbert inflicted the injuries by inciting her pit bull to attack the victim, we affirm the judgment of the trial court. * * *NFP civil opinions today (0):
If a defendant shoots the victim with a gun, we would certainly not find insufficient evidence merely because it was the gun, rather than the defendant, that injured or killed the victim. Similarly, if a defendant incites and encourages a dog to attack the victim, it is logical and just to hold the defendant, who knowingly or intentionally pulled the metaphorical trigger, responsible for the injuries caused by the weapon she wielded.
Here, based on the evidence and inferences in the record, the jury found that the dog did not act of its own accord and was instead used by Gilbert as a weapon to attack McAtee. We cannot say that such a conclusion was unreasonable. Gilbert’s emphasis on other evidence questioning the timeline of events merely amounts to a request that we reweigh the evidence and judge the credibility of witnesses—a practice in which we do not engage when considering the sufficiency of the evidence supporting a conviction. Consequently, we find the evidence sufficient to support Gilbert’s conviction. The judgment of the trial court is affirmed.
[ILB Note: A footnote on p. 1 states: "This case was eligible for transmission to the Indiana Court of Appeals on December 15, 2006. By oversight, it was not transmitted from the Clerk’s Office to this court until September 21, 2007."]
NFP criminal opinions today (4):
Ind. Courts - "Carmel considers court interpreter fee"
Francesca Jarosz reports today on the Indianapolis Star website:
CARMEL, Ind. -- The Carmel City Council is considering allowing its City Court to start collecting money from defendants who require English-language interpreters.What is this case? It is Jesus Arrieta v. State. The Supreme Court heard oral arguments April 12th of this year. See this ILB entry from April 13th. Here is a list of earlier ILB entries, including this one from Nov. 22, 2006, summarizing the 2-1 Court of Appeals opinion.
City Judge Paul Felix addressed the council with the issue at Monday night's meeting. He said state law allows for the court to ask defendants to pay, although indigents would not be required to pay.
The Indiana Supreme Court is reviewing a case to decide whether a non-English-speaking defendant is entitled to an interpreter at government expense without establishing financial need. If the court decides yes, then Carmel will not be allowed to require defendants to pay for interpreters.
Ind. Decisions - One Indiana case from 7th Circuit today [More]
In Coolidge v. Indianapolis (SD Ind., Judge Barker), an 8-page opinion, Judge Williams writes:
This appeal arises out of Kelly Coolidge’s second lawsuit charging her former employer, the Indianapolis-Marion County Forensic Services Agency, also known as the Crime Lab, with sexual harassment and retaliation. She won the first lawsuit— which is not before us on appeal—when a jury concluded that the Crime Lab stood by while her supervisor, David Willoughby, sexually harassed her with coarse propositions and unwelcome fondling. (The jury awarded $300,000 in damages but the parties settled in exchange for the defendants’ dropping their appeal.) She didn’t win the present suit. She sued Indianapolis and Marion County claiming that Willoughby continued harassing her after his retirement by leaving behind pornography where she would find it, and that the city retaliated against her for filing the first lawsuit and EEOC complaints by refusing to promote her and by reprimanding and then firing her. The district court granted summary judgment to the defendants, and Coolidge appealed. Because the pornography did not create a hostile work environment, and because she cannot make out a prima facie case of retaliation, we affirm.[More] Howard Bashman of How Appealing quotes this line from the opinion: "Crime Lab employees frequently worked with corpses, so pornography depicting necrophilia might not have the same shocking overtones there as it would in another setting."
See also today's Decision of the Day entry on the ruling.
Ind. Courts - Success stories from Porter County drug court
Bob Kasarda of the NWI Times has a story today of successful graduates of the Porter drug court program.
Ind. Decisions - Crown Point annexation feud goes back to court
Reporting on the Court of Appeals decision last Friday in the case, In the Matter of the Annexation Proposed by Ordinance No. 2004-11-38, et al v. Chris Fetcko, et al (see ILB entry here), Diane Krieger Spivak of the Gary Post-Tribune writes today:
CROWN POINT -- The city won a round in its move to annex Liberty Park, but residents of the 60-year-old residential area aren't particularly worried by it.
The Indiana Court of Appeals on Friday ruled in favor of the city when it decided that Crown Point had provided an adequate fiscal plan, as required by law in annexation proceedings, regarding the cost of extending city services to Liberty Park.
The matter now goes back to Lake Superior Court Judge Gerald Svetanoff, to whom residents will be able to present their case against annexation.
"The decision was based on a judge's ruling on a technicality, so the original trial will continue," said Chris Fetcko, chairman of the Liberty Park Preservation Committee.
Courts - "Motion suggests guardian to oversee dogs seized from Vick home"
"RICHMOND, Va. — Federal authorities on Monday filed a motion asking that a Valparasio law professor oversee the outcome of dozens of dogs seized from Atlanta Falcons quarterback Michael Vick's home."
So begins this AP story by Michael Felberbaum that appears in USAToday. More from the story:
The U.S. Attorney's Office in Richmond also asked that each of the 48 pit bulls be spayed, neutered and have microchips implanted, according to the motion filed in U.S. District Court.Why Prof. Huss? The story does not go into detail, but take a look at her faculty page, and particularly her writings.
The motion, which now goes to U.S. District Judge Henry Hudson, requests that animal law expert Rebecca J. Huss serve as the guardian-special master to oversee the disposition and possible placement of the dogs.
If appointed, Huss would travel to Virginia to evaluate the animals and make recommendations on their placement or future, said Tom Shaer, a spokesman for Valparasio University School of Law in Indiana. There is no deadline for the process.
The court then would be responsible for carrying out Huss' recommendations.
Huss will not comment until her work is complete, Shaer said. But, he said, "her goal is, and the court's goal is, to find the best possible future for the dogs and the humans and other animals with which those dogs would come in contact."
Law - "Competing for Clients, and Paying by the Click"
This story from yesterday's NY Times amazed me.
Legal columnist Adam Liptak writes this week about Google "per per click" lawyer ads. Some quotes:
You can do cool things with Google, like take the pulse of the legal profession.
Google is, of course, more than a search engine. It also sells advertising, including the shaded “sponsored links” that run next to the real search results. It auctions off those ads to advertisers, who agree to pay a given amount each time someone clicks on their link.
“Christmas recipes,” for instance, was going for 54 cents per click the other day. “Britney Spears” cost 36 cents, and “Britney Spears nude” only 21 cents.
But “Oakland personal injury lawyer” cost $58.03. “Asbestos attorney” cost $51.68. And “mesothelioma attorney Texas” — mesothelioma is a kind of cancer caused by inhaling asbestos — cost $65.21.
A Web site called CyberWyre, at www.cwire.org, posts a regularly updated list of the most expensive search terms. “The four leading industries are definitely law, medicine, finance and travel,” said Sam Elhag, who writes for the site. On a recent visit, lawyers and lung cancer dominated the top 10.
Ted Frank, the director of the Legal Center for the Public Interest at the American Enterprise Institute, said the fact that some personal injury lawyers were willing to pay $60 a click was telling, particularly given that relatively few of those clicks would bring in actual business.
“These lawyers don’t really litigate cases — they settle cases,” Mr. Frank said. “And they need a big inventory of cases. The only job of the attorney is to come up with the clients.”
“There is nothing wrong with what Google is doing,” he added. “There is nothing wrong with advertising for clients. It’s just fascinating that clients are worth so much.”
And there is no client more lucrative than one with mesothelioma. That word has hovered near the top of the CyberWyre list since 2003, Mr. Elhag said. * * *
Personal injury lawyers are not the only ones who advertise on Google. “Tax lawyer” cost $34.32 the other day, “bankruptcy lawyer” $8.46 and “patent lawyer” $5.08.
Monday, October 15, 2007
Ind. Courts - Feature story on Adams Circuit Judge Fred A. Schurger
The Decatur Daily Democrat has a very long story by Libbie Adams; here are some quotes:
Few people have an opportunity to experience the populace of their community in quite the same way as Decatur Judge, Fred A. Schurger.
From his position on the bench of the Adams Circuit Court, he daily witnesses the full gamut of human emotions. The highs and lows of a job that he says is "gut wrenching" at times.
Schurger was indoctrinated into the law profession at a very early age. Both his mother and father were attorneys — as are an uncle, his sister, and his sister's daughter. So it was no big surprise when he also chose law as a career. * * *
In August of 1999, circuit court Judge Lorren Caffee left the bench — and the country — and Schurger was appointed to replace him. "I had always wanted to become a judge, but only if I was appointed," he said. "The other attorneys reached a consensus and I took the bench on August 2. I took an oath to God to follow the law and I try my best not to violate that — even though sometimes I might not agree personally with a particular law and it leaves me shaking my head. When I came into this job, I felt I was pretty certain of what I was doing. But it was six years before I became aware of what is and isn't, and I'm still becoming educated."
All juvenile cases come before the circuit court judge, and Schurger admits it's not always easy to leave his work at the office. He genuinely cares about the kids who come into his courtroom. "There are a lot of delinquency cases, varying from disobedience and alcohol, to robbery and vandalism," Schurger said. "That's why I try so hard to deliver the message to kids that the most precious thing they can do is get an education. Public education is free in this country through the 12th grade. That's a marvelous thing, and I want them to take advantage of it."
Schurger says the child abuse cases are his hardest. "They take a piece of your soul," he said. "And the sentencing does, too. I have to exercise discretion, to evaluate the facts and make a decision that will have a bearing on everyone involved. The child custody cases are difficult, as well.
"As the judge, I'm kept in an ivory tower, so to speak. I don't know the whole story until it is told to me in the courtroom. People don't understand why they can't call me on the phone and tell me their side of things. But that wouldn't be fair to the other side. I have to remain objective. In deciding the custody of children, I have to consider that there might be underlying issues, and I'm concerned that I may not always get the full story. I have to consider what is in the best interest of the children. Who should raise the baby? Child custody fights raise animosity to dangerous levels, at times. It's never easy." * * *
In August of 1999, circuit court Judge Lorren Caffee left the bench — and the country — and Schurger was appointed to replace him. "I had always wanted to become a judge, but only if I was appointed," he said. "The other attorneys reached a consensus and I took the bench on August 2. I took an oath to God to follow the law and I try my best not to violate that — even though sometimes I might not agree personally with a particular law and it leaves me shaking my head. When I came into this job, I felt I was pretty certain of what I was doing. But it was six years before I became aware of what is and isn't, and I'm still becoming educated."
All juvenile cases come before the circuit court judge, and Schurger admits it's not always easy to leave his work at the office. He genuinely cares about the kids who come into his courtroom. "There are a lot of delinquency cases, varying from disobedience and alcohol, to robbery and vandalism," Schurger said. "That's why I try so hard to deliver the message to kids that the most precious thing they can do is get an education. Public education is free in this country through the 12th grade. That's a marvelous thing, and I want them to take advantage of it."
Schurger says the child abuse cases are his hardest. "They take a piece of your soul," he said. "And the sentencing does, too. I have to exercise discretion, to evaluate the facts and make a decision that will have a bearing on everyone involved. The child custody cases are difficult, as well.
"As the judge, I'm kept in an ivory tower, so to speak. I don't know the whole story until it is told to me in the courtroom. People don't understand why they can't call me on the phone and tell me their side of things. But that wouldn't be fair to the other side. I have to remain objective. In deciding the custody of children, I have to consider that there might be underlying issues, and I'm concerned that I may not always get the full story. I have to consider what is in the best interest of the children. Who should raise the baby? Child custody fights raise animosity to dangerous levels, at times. It's never easy."
Law - Beyond googling: More and more, lawyers are using social networking sites as litigation tools
Vesna Jaksic of The National Law Journal has an informative article today, available via Law.com. Some quotes:
At Malbrough & Lirette in Houma, La., a secretary browses MySpace and Facebook Web sites each day.
She's not checking the online social networking sites for personal reasons, but is performing one of her job duties.
"It's an everyday occasion," said Joan Malbrough, a partner at the three-attorney firm, which handles family law, personal injury and corporate law matters. "Every new client we do a MySpace and Facebook search on to see if they or their spouse have any useful information."
In one case, Malbrough said she helped secure shared custody for the father after finding his wife had posted sexually explicit comments on her boyfriend's MySpace page. In another case, a husband's credibility was questioned because, on his MySpace page, he said he was single and looking.
Lawyers in civil and criminal cases are increasingly finding that social networking sites can contain treasure chests of information for their cases. Armed with printouts from sites such as Facebook and MySpace, attorneys have used pictures, comments and connections from these sites as powerful evidence in the courtroom. * * *
John Palfrey, executive director of The Berkman Center for Internet & Society at Harvard Law School, said that, because social networking sites are fairly new, there are not many court decisions about the admissibility of information from them in court. But judges have indicated that they will treat this information like other electronic evidence, Palfrey said.
"There is a sense that this information would be admissible if it's verifiable, as with any other form of electronic discovery," said Palfrey, whose focus at Harvard Law School is Internet and law. "The one issue is going to be authentication as far as what is said online and who said it."
Ind. Law - Still more on: Not golfcarts, but ATVs
Updating this ILB entry from Sept. 19th, which included this quote from a LCJ story: "An ordinance that would have allowed farmers to use all-terrain vehicles on roads in Floyd County died last night after the Floyd County Sheriff's Department and police chief opposed it."
Dick Kaukas of the LCJ reports today, in a story that begins:
An ordinance allowing all-terrain vehicles operated by farmers to use Floyd County roads is expected to be considered again this week by the Board of Commissioners.
The proposal died last month after Sheriff Darrell Mills objected to it. But County Attorney Rick Fox said last week that a key clause restricting farmers' use of ATVs to daylight hours except in emergencies was added to the proposal and it's now acceptable to Mills.
Mills said that after talking to sheriffs in nearby counties and researching the subject, he concluded the main risk was posed by ATV operations at night when one of the slower-moving vehicles might get hit by a car or truck.
"I could live with" the ordinance limiting ATV use to daylight hours except in emergencies, Mills said, noting that the decision on whether to approve the new version of the measure is "up to the commissioners."
Ind. Courts - Monroe Circuit Judge Teresa Harper to preside over the new court
Some quotes from a report by Bethany Nolan in the Bloomington Herald Times today:
The county’s ninth court, scheduled to come online in January, will handle criminal cases; but even with the new court, the county’s case load may be too much to expect nine judges to handle, statistics show.
Monroe Circuit Judge Teresa Harper will preside over the new court, and a newly appointed judge will take over her current civil case load.
Monroe Circuit Judge Kenneth Todd, the presiding judge for the county’s board of judges, has confirmed the changes. He said the board of judges chose Harper to preside over the county’s fourth criminal court due to her background in criminal law. Before taking the bench earlier this year, Harper was a state public defender and worked in private practice. * * *
Statistics showed the new court should handle criminal cases to keep the case load even between all the county’s judges, according to the court services office. One-quarter of all the county’s current criminal cases will be transferred to Harper’s court, and she’ll be assigned one-quarter of all future filings. Currently, there are three criminal judges in the county’s unified circuit court — Todd, Monroe Circuit Judge Marc Kellams and Monroe Circuit Judge Mary Ellen Diekhoff.
Harper said she’s looking forward to her new job. She currently handles 30 percent of the divorce cases, one-quarter of protective orders and half of all small claims cases.
“I can’t wait,” she said. “I’m really excited about getting back to the subject matter of my old professional life.” She said she learned much during her first year on the bench, adding, “It’s been a wonderful opportunity to use my experience and my knowledge in a new and different way.” * * *
Five locals have applied for the new judgeship. They are: Donald Francis Jr., Joby Jerrells, Valerie Haughton, Christine Haseman and Herb Kilmer.
Indiana Gov. Mitch Daniels will appoint someone to preside over the newest court for a year, after which the seat will be up for election. Daniels’ spokeswoman, Jane Jankowski, said the governor’s office expects to interview candidates this month and expects to make an appointment before the
end of the year.
Ind. Decisions - Court of Appeals issues 1 today (and 11 NFP)
For publication opinions today (1):
In Pramco, III v. Jose C. Arellano, et al. , a 17-page opinion involving a land sales contract, Senior Judge Barteau writes:
Pramco challenges two of the trial court’s findings and one of the trial court’s conclusions of law, more specifically:NFP civil opinions today (3):
1. Whether the evidence supports the finding regarding payments made to Yoder by Arellano on a land sale contract?
2. Whether the evidence supports the finding regarding a request made by Yoder for an accounting of payments made by Arellano and forwarded to First National Bank by Yoder?
3. Whether the trial court correctly concluded that equitable relief was appropriate in this situation where foreclosure was sought?
Arellano raises the additional issue of his entitlement to damages, costs, and attorney fees pursuant to Ind. Appellate Rule 66(E). * * *
The trial court’s findings are not clearly erroneous, but supported by the evidence. The trial court did not err by concluding that equitable relief was appropriate in the case at bar. Last, attorney fees are not warranted in this instance.
Kim D. Schultz v. Marc D. Schultz (NFP) - "Here, the trial court’s findings noted the parties’ antagonism and discord and concluded that sole physical custody with Mother and joint legal custody was in the children’s best interests. Mother has failed to show that this determination is clearly erroneous. Affirmed."
Gene Nichols v. Estate of James Robert Nichols (NFP) - interesting, 4-page probate opinion, involving an offer that was never made.
NFP criminal opinions today (8):
Ind. Law - "State ID wrapped in red tape"
Jeff Burton of the NWI Times reports today:
PORTAGE | Diane Pearson just wanted her daughter to have a state ID card. But a trip to the BMV last week has her thinking the requirements to get an identification card aren't exactly fair.
Her daughter, Christina, 20, has Down syndrome and lives in a group home in Mishawaka, Ind. Proving her residency through a short list of acceptable documents was difficult for Pearson to do.
In all, it took four trips to two branches and calls to the Bureau of Motor Vehicles' Indianapolis headquarters in two days before Christina was able to get her ID card.
"I had felt that it was absolutely ridiculous for my daughter to have to go through this. She's not a terrorist," Pearson said. "It was absolutely crazy."
Christina's problem was that she and her mother couldn't provide one of the state-required residency documents, such as a child support check, current utility bill, property deed or voter registration card. Christina has none of those.
"These people don't get bills in their name," Pearson said. "She needs help with most everything."
The Indiana Civil Liberties Union is currently challenging a state law that requires a government-issued ID card to vote. Last month, the U.S. Supreme Court granted a full review of the law, which the ICLU and other community groups contend restricts access of the disabled, senior citizens and other portions of the population to voting polls.
Dennis Rosenbrough, the BMV's communication director, said getting a state ID shouldn't have been as complicated as it was for Pearson and her daughter.
"I'm sure our staff did what they could do to accommodate her, but they're under very strict order to only accept only what's spelled out in the law," Rosenbrough said. "It's very important for all states to issue the IDs in a very careful way. This is not unusual to Indiana in any stretch of the imagination."
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This Thursday, Oct. 18th:
9:00 AM - Russell Prewitt v. State - After finding that Prewitt had violated his probation, the Clark Superior Court ordered Prewitt to serve two years of his previously suspended sentence, and upon release, to enter a state hospital as a condition of probation. The Court of Appeals reversed, deciding that trial courts have statutory authority to order only one of the three options in Indiana Code § 35-38-2-3(g). See Prewitt v. State, 865 N.E.2d 669 (Ind. Ct. App. 2007), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Prewitt; Jeffrey D. Stonebraker of Indianapolis, IN. Attorney for State; Ellen H. Meilaender of Indianapolis, IN. [See April 30, 2007 ILB entry here - 8th case.]
9:45 AM - Randolph County v. Leanne Chamness - Chamness was in an automobile accident in which the vehicle left the road in Randolph County and came to rest in adjoining Delaware County. Chamness filed a complaint against Randolph County in Delaware County, alleging Randolph County negligently constructed and maintained the road. Randolph County filed a motion to transfer venue to Randolph County. The Delaware Circuit Court denied the motion. The Court of Appeals reversed, concluding that under Trial Rule 75(A), Randolph County was a county of preferred venue and Delaware County was not a county of preferred venue. Randolph County v. Chamness, 859 N.E.2d 795 (Ind. Ct. App. 2007), vacated. The Supreme Court has granted a petition to transfer and has assumed jurisdiction over the appeal. Attorney for Randolph County; Andrew P. Wirick of Indianapolis, IN. Attorney for Chamness; James S. Stephenson of Indianapolis, IN. [See Jan. 12, 2007 ILB entry here - 4th case.]
Webcasts will be available here.
This week's oral arguments before the Court of Appeals that will be webcast:
This week's oral arguments before the Court of Appeals that will NOT be webcast:
This Friday, Oct. 19th:
1:00 PM - Ava McSwane, as Personal Representative of the Estate of Malia Vandeneede vs. Bloomington Hospital and Jean Eelma, M.D. - Bloomington Hospital treated Malia Vandeneede after she said she fell off a horse. In fact, she may have been beaten by her former husband. She was discharged into her former husband's custody and he killed her later that day. Her representative sued the Hospital and a doctor there, asserting the Hospital had a duty to protect her from the domestic violence. The trial court granted summary judgment for the Hospital on the grounds the Hospital had no such duty and Vandeneede was contributorily negligent. The Scheduled Panel Members are: Chief Judge Baker, Judges May and Robb. The oral argument will take place at: Franklin College, Franklin, Indiana.
NOTE: The ILB has added a new category - Upcoming Oral Arguments, that allows you to readily locate these entries.
Ind. Courts - Supreme Court withdraws amendment to Appellate Rule 43(K) mandating electronic filing of briefs effective Jan. 1, 2008
The ILB had planned to write today on one of the Supreme Court amendments to the Appellate Rules issued Sept. 10th and effective Jan. 1, 2008 -- specifically the amendment to Rule 43(K), Form of Briefs and Petitions: Copy of Document in Electronic Format.
You can access the amendment here (via the page titled "2007 Orders Amending Indiana Rules of Court"): Order Amending Rules of Appellate Procedure (Rules 14, 15, 22, 23, 43, and 57). It is on page 5 of the document.
The amendment reads:
K. Copy of Document inThe ILB had planned a post today noting the upcoming rule amendment requiring that a copy of briefs be filed electronically/digitally and expressing the hope that this change would mean that the briefs soon would be available online to the public, just as the appellate decisions now are.
maymust be accompanied by a digital copy of the document in Word or text-searchable PDF format electronic format. Any electronic format used by the word processing system to generate the document is permissible. The document may be received by the Clerk’s Office on a floppy disk or CD with the filing of the hard copies of the document, or it may be transmitted to the Clerk’s Office by e-mail to firstname.lastname@example.org on the same day the hard copies are filed. Unrepresented parties are excused from compliance with the requirements of this section of Rule 43 only.
However, this morning the ILB was alerted to check again by a posting in Indiana Daily Insight citing a headline in the October 15 issue of Indiana Legislative Insight that reads "Supremes back off electronic filing rule".
Sure enough, the requirement has been withdrawn. You can access the NEW amendment here (also via the page titled "2007 Orders Amending Indiana Rules of Court"): Order Amending the Order Amending the Rules of Appellate Procedure (Rule 43(K) - Effective Immediately. (Note: adding to the confusion, one of the links the Supreme Court page provides is incorrect and leads back to the Sept. 10 language.)
Here is the "Order Amending Order Amending Rules of Appellate Procedure":
On September 10, 2007, this Court issued an Order Amending Rules of Appellate Procedure. Included in this Order was an amendment to Ind. Appellate Rule 43(K). The amendment to Appellate Rule 43(K) was inadvertently included in the September 10 Order and was not intended to be issued in that form at that time. We find that the portion of our September 10, 2007 Order Amending Rules of Appellate Procedure purporting to amend Appellate Rule 43(K) should be stricken.The ILB has posted a number of times over the years on its disappointment that appellate briefs are not available via the Indiana Courts' website. Take a look at this posting from Nov. 25, 2005. Now, two years later, it seems no progress at all has been made.
IT IS, THEREFORE, ORDERED that the portion of our September 10, 2007 Order Amending Rules of Appellate Procedure, concerning Appellate Rule 43(K), is stricken and that in all other respects the Order is confirmed.
Sunday, October 14, 2007
Law - A survey of several state public access laws, including Indiana's
Columnist Rox Laird of the DesMoines Register had a column this week on state public access laws, because an Iowa legislative committee is "studying the possibility of creating a state agency to aid Iowa citizens with open-government questions and problems." Some quotes from the column:
While Iowa law is unambiguous in declaring that government meetings and records are, with certain exceptions, open to the public, the law is almost never enforced unless citizens or news organizations file a lawsuit at their own expense. State or county prosecutors ordinarily enforce state laws, but because they also represent state and local governments, prosecuting their clients often presents a conflict of interests.
Other states, facing this same problem, have turned to alternatives to prosecution to enforce their sunshine laws. Connecticut's Freedom of Information Commission is one of several models adopted by states, including New York, Maryland, Indiana and Virginia. With an annual operating budget approaching $2 million and a staff of 19 that includes 11 lawyers, the commission is the envy of other states.
Of the states that have created agencies to help the public gain access to their state and local governments, Connecticut's 32-year-old commission is among the oldest, has the most resources and enjoys the toughest enforcement powers.
Its process for filing and resolving complaints requires no lawyers for the citizens or the governments involved, and, unless a commission ruling is appealed, no courtrooms or judges.
Connecticut's is not necessarily the only way to go, however. The more common model is what's typically called a "public access counselor," who is not empowered to enforce the law but instead gives advice on open-government questions and complaints, conducts training and educational sessions and issues formal opinions when a citizen believes the law has been violated by a government body.
Indiana offers training, opinions
Indiana has had a public-access counselor since 1998. The agency consists of two employees, a lawyer appointed by the governor to a four-year term and one assistant, who divide their time between training, handling questions and complaints from citizens and government officials alike, and issuing advisory opinions based on formal complaints.
In the past six months, for example, the access counselor has issued opinions on school disciplinary records, inadequate notice of public hearings, access to county real-estate records and the availability of court records in a divorce case. About half the opinions come down on the side of the citizen, half for the government.
Either side has the option of appealing to state court, but in Indiana, as well as in other states with similar processes, that doesn't happen very often. Indeed, the Indiana process is designed to avoid court by forcing parties to get an advisory opinion before filing a records or meetings lawsuit. In any case, the vast majority of complaints about access issues are resolved in a phone call or e-mail or through informal mediation.
Indiana's Public Access Counselor has a budget of just $150,000 a year. Public Access Counselor Heather Willis Neal said the Indiana Legislature has never increased the budget, mostly, she believes, because the agency is not a high priority for many legislators. "We are a rounding error to most people," she said. Still, the agency has seen a huge increase in business: In the first year it issued 41 opinions; it has issued nearly three times that in just the past three months.
In N.Y., opinions rarely challenged
In New York state, the New York Committee on Open Government has a budget of about $350,000 for a staff of four, including director Robert Freeman, who has been in the job since 1976. Like Indiana, the New York committee has no enforcement powers, but with Freeman's personal credibility and long tenure, its opinions are typically considered the final word.
The advisory processes in Indiana and New York no doubt eliminate costly and time-consuming litigation over open-government disputes, either through mediation or giving free legal advice, but it's hard to say whether those states are more or less effective than Connecticut in achieving the ultimate goal of open government. While the outcome of the Connecticut commission's decisions has the force of law, states that use the advisory approach typically do not know whether the advice is followed because there is no mechanism for follow-up.
The Connecticut model, with enforcement authority, puts teeth in the law but is 10 times more expensive than the alternative. The Indiana and New York models are efficient, but ultimately rely on good will and responsible public officials for compliance with the law.
Either way, these agencies are a vast improvement over the situation in Iowa, where citizens are left to their own devices in open-government disputes, whether they need information, advice or a powerful ally. They have none of that now.
Courts - "Demystifying the U.S. Supreme Court's Cert Granted Process"
Howard Bashman of How Appealing has posted a very useful article on the Supreme Court's cert review process. Here is a sample:
Fortunately, thanks to the Internet, the debate over whether the cert pool is a useful development -- or, instead, something that should be abandoned -- no longer needs to be conducted in the abstract, without the ability to marshal relevant evidence. Although the pool memoranda that the U.S. Supreme Court's law clerks write are treated by the court as confidential documents that hardly ever see the light of day, the papers of Justice Harry A. Blackmun contain a treasure trove of these memoranda. And now the memos from the Court's 1986 through 1993 terms are freely available online for all to access and review.
I have not conducted a comprehensive review of those pool memos, but my casual examination confirms what I have long suspected: The vast majority of cases on the U.S. Supreme Court's certiorari docket are being denied because they fall far short of satisfying the objective criteria for review. The cases that are closer calls -- those that might satisfy the Court's stringent criteria for review -- receive much more in-depth treatment from the law clerk assigned to prepare the pool memo.
I was also impressed with the fact that, in Blackmun's chambers, it was clear that each pool memo written by a law clerk from another chamber was first examined by one of Blackmun's law clerks to see whether that law clerk agreed with the memo's analysis and recommendation. The Blackmun papers also reflect that Blackmun himself reviewed the pool memos very carefully, with an eye toward reaching his own independent decision on whether or not a given case should be granted review.
Ind. Law - Calif. Gov. Schwarzenegger kills a bill that would have required infection and death rates to be made public; what about Indiana?
The LA Times reports today:
SACRAMENTO -- Under pressure from the politically robust hospital industry, Gov. Arnold Schwarzenegger has rebuffed a legislative proposal that could help California catch up with other parts of the nation by allowing patients to learn the safety and surgical success rates of specific hospitals and doctors.What about Indiana?
Healthcare experts say that one of the most inexpensive and effective ways to encourage hospitals to improve patient care is to make their failures public. Schwarzenegger has endorsed this approach, saying as recently as March that greater transparency would "drive healthcare providers to perform at peak levels," "boost the power of consumer choices," "save a lot of money" and "save a lot of lives."
But the governor on Friday vetoed a bill passed by the Legislature that contained provisions that would have made it easier for the public to review hospital performance. * * *
The proposal does not require the state to release any information to the public, leaving those decisions to the discretion of the governor. * * *
More than two decades after the state started collecting data from hospitals, the state's performance continues to be less than inspiring.
California has issued studies on how hospitals handle just two conditions -- heart attacks and pneumonia -- and one operation -- coronary artery bypass grafts -- even though a 1980s law requires the state to complete at least nine reports each year. * * *
Other states, including New Jersey, Kentucky, Missouri and Maryland, are doing more. Last month, New York City began releasing annual infection and death rates at the city's 11 public hospitals.
Healthcare experts say Pennsylvania does the best job, reporting each year how effectively its hospitals treat 19 common ailments, including blood clots, heart and kidney failure and strokes.
Pennsylvania also publishes data showing how well its hospitals repaired hip fractures, unblocked seized-up hearts and performed 10 other procedures.
California is particularly far behind other states in compelling hospitals to reveal how likely patients are to contract an infection while in a hospital. Prodded by Consumers Union, a nonprofit advocacy group, lawmakers in 19 other states have mandated that hospitals release that data.
Federal officials estimate that healthcare-associated infections lead to 99,000 deaths each year, making them one of the biggest killers in the United States. Infections have grown so costly to Medicare, the nation's insurance program for the elderly, that starting next year the government will cease reimbursing hospitals for the cost of treating infections that patients pick up there.
Hospital infection rates and death rates are what consumers need to see. This most recent ILB entry, from March 6th, 2007, reporting on a press conference by the Governor and State Health Commissioner, says nothing about either hospital infection rates or death rates.
The Indiana State Board of Health (ISBH) Hospital Consumer Reports Search Page does not, as far as the ILB can determine, using its Hospital Quality Alliance Quality Measures, give either infection rates or death rates by Indiana hospital. Rather, it gives preventive care measures - how often did the hospital give aspirin to a heart attack patient, etc?
The ILB finds the ISBH pages confusing and even maddening to try to use. At one point the ILB seemed to find some information on overall Indiana hospital mortality rates, but it took many minutes to relocate it . Here is the page. As it turned out, the Indiana page links without notice to a federal HHS page, not an Indiana page, and provides no information about Indiana hospital mortality rates.
And the ILB was able to locate nothing about Indiana hospital infection rates. So, unless someone can point the ILB elsewhere, it appears that Indiana is in the same position as California insofar as NOT providing the most essential information consumers need to know about Indiana hospitals - infection and death rates.
Consumers Union has been leading the efforts to make this information available to the public. See this press release from March 8th, 2007 for much useful information, including this chart of 2007 Legislative Session Hospital-acquired infection public reporting bills. It includes this information about Indiana bills in the 2007 session:
Indiana – HB 1592; SB 513; SB 531
Bill Status: All bills failed to pass before crossover deadline.
Bill Sponsor(s): HB 1592: Rep. Dvorak; SB 513: Sen. Alting; SB 531: Sen. Dillon
Other Information: HB1592 and SB513 require public reporting of hospital infection rates. SB 531 allows for a committee and agency to determine what infection information should be reported.
Ind. Gov't. - NYT article surveys efforts to lease or sell state lotteries
Don't miss this major story in the NYT today (Sunday) by Nelson D. Schwartz and Ron Nixon. The story includes links to documents such as J.P. Morgan's Proposal for Private Operation of Indiana's Lottery, and a survey of the states named as "possible candidates for privatization." Some quotes:
Like shoppers at convenience stores who can’t resist placing bets when lotto jackpots get big enough, government officials in at least a dozen states are considering lottery privatizations — what would collectively amount to the biggest privatization of a government enterprise in American history.
Wall Street, positioned to play an important role in orchestrating these deals, is looking at some very big prizes itself. If privatization plans now being considered in four large states — California, Illinois, Texas and Florida — were to go through, Wall Street could conservatively reap a minimum of $250 million in fees alone.
The temptation for states to cash in also cuts across political lines. In the last 18 months, governors in Democratic strongholds like Illinois as well as Republican-dominated states like Indiana and Texas have all made formal proposals to their state legislatures to privatize their lotteries. * * *
While cash-hungry states are understandably intrigued by the potential financial windfall from privatizing lotteries, critics say they worry about the possible social consequences. They contend that future growth in lottery revenue, fed by private operators funneling resources into increased marketing efforts and sales outlets, is likely to come from minority and low-income gamblers who already form a disproportionate share of those who play.
Opponents are also concerned that private owners may introduce more video lottery terminals and other faster-paced games that many states restrict because of fears that the devices foster addictive gambling.
“There’s no doubt in my mind that if it were in private hands, they’d want to market it more aggressively,” says David Ford, a Republican state senator in Indiana who voted against the privatization proposal last February. “The lottery is a regressive tax that pulls money from people. I’m not morally opposed to the lottery or privatization; I just think it’s bad policy.”
At the same time, advocates for the traditional beneficiaries of state lotteries — public schools and universities — worry that privatization may eventually lead to a cutoff in money for education. In fact, proceeds from proposed lottery sales are already being earmarked for other purposes, such as health care reform in California, cancer research in Texas and to help fill a $41 billion public pension liability in Illinois.
That would be a remarkable turn of events. After all, since the country’s first state lottery was introduced in New Hampshire in 1964, the games have been sold as a painless way to support public schools (hough lottery proceeds typically represent a minuscule percentage of states’ school budgets). * * *
ALTHOUGH privatization bills failed to pass in Indiana, Illinois, and Texas in the last two years, the governors of those states say they’re likely to resurrect the idea when their lawmakers reconvene. And having carefully watched the heated debate in those states, political leaders in California and Florida are taking a subtler approach, getting advice from Wall Street about how to promote privatization to skeptical audiences like editorial boards, state legislators and unions fearing job losses. * * *
Raising margins and, above all, selling more tickets are at the heart of Wall Street’s pitches. Goldman’s presentation, for example, notes that the California Lottery ranks in the lower half of the pack when it comes to sales per capita, and it suggests that additional retail outlets could increase sales. “This is a retail business — penetration is key,” Mr. Florian says. While acknowledging possible social consequences of a lottery expansion, he says that those issues are for state officials to tackle: “We say: ‘Here’s the financial issue. Here’s the policy issue. You decide.’”
ALTHOUGH the brokerage firms say states can require that any privatization deals carry restrictions on new games or enhanced marketing efforts, one leading banker acknowledges that private operators will want to bolster sales. “The private sector will be as aggressive as they can be,” Mr. Ryan says. “If you can’t do better than the state, then why go through the privatization process at all?”
Saturday, October 13, 2007
Environment - More on "Indiana seeks to ease rules for lake polluter"
More on the developing brouhaha involving the draft permit proposed by IDEM for US. Steel discharges into the Grand Calumet River and Lake Michigan.
Yesterday's ILB entry quoted a number of stories indicating growing criticism of the draft permit developed by IDEM.
Today's papers report on the release by IDEM of an Oct. 1st letter from EPA apparently strongly criticizing and requiring revisions in IDEM's suggested permit. Unfortunately, none of the stories include a link either to the text of the EPA letter or to the release IDEM issued in response, And neither are available on the IDEM site.
The Gary Post-Tribune's Gitte Laasby reports, in a story that begins:
The U.S. Environmental Protection Agency and Illinois lawmakers are blasting the Indiana Department of Environmental Management over a proposed permit for U.S. Steel Corp. that some fear would increase pollution dumped into the Grand Calumet River and Lake Michigan.Later in the story:
The EPA criticized IDEM for being too lenient when it proposed to allow U.S. Steel Gary Works five years to comply with federal water quality standards for several chemicals it discharges into the Grand Calumet River, including mercury, ammonia, zinc, copper, cyanide and benzo(a)pyrene.
IDEM should not have suggested giving the company five years without evidence that the company can't comply now or earlier, and without details about how long it would take to implement measures to reduce pollution, EPA said in an Oct. 1 letter objecting to IDEM's proposed wastewater permit.
Under federal rules, IDEM can't issue a permit over an EPA objection. The EPA has suggested modifications to the permit and will work with IDEM to revise the permit "to ensure it complies with federal law and EPA regulations," the agency said Friday. Critics have said the permit violates the Clean Water Act.
Sen. Richard Durbin, D-Ill., lashed out at IDEM and Indiana Gov. Mitch Daniels, accusing the governor of not doing his part to protect Lake Michigan.Michael Hawthorne of the Chicago Tribune reports:
"It troubles me why, month after month, we have to worry about the governor of Indiana asking for another permit to pollute this lake," Durbin said at a news conference Friday. "I wish Gov. Daniels would come up and take a look at this beautiful lake. It is not just the back yard and sewage dump for the industries, for the heavy industries that happen to be in Indiana. It happens to be an asset to this state, for our state, and many of the other states in the Midwest."
In response, the governor's spokeswoman, Jane Jankowski, told the Post-Tribune, "Gov. Daniels will ignore the personal cheap shots hurled at him by Senator Durbin, but it's clear the senator doesn't care if steelworkers lose their jobs or not. It sounds like he'd prefer Northwest Indiana to be a residential colony of Chicago. Our responsibility is to keep the lake clean and people at work."
The EPA released a letter informing Indiana regulators that the agency won't allow a new permit for the Gary Works to take effect until the problems are fixed. "Please be advised that . . . the State may not issue this permit over an EPA objection," the letter concluded, citing the agency's authority under the Clean Water Act.
Ind. Law - More on "Who will be the new CEO of Baker & Daniels?"
Thomas C. Froehle Jr. has been named chief executive partner of Baker & Daniels, succeeding Brian Burke and ending weeks of speculation about who will land the top job at one of Indianapolis’ largest law firms.See this John Ketzenberger column for more details on the contenders.
A five-member nominating committee announced the decision at the firm’s annual partners meeting today. * * *
Froehle reportedly beat out five candidates, including attorneys Daniel Boeglin, Francina Dlouhy, Fred Glass, David Herzog and Hudnall Pfeiffer.
Ind. Courts - David Camm appeal brief filed with the Supreme Court
Updating this ILB entry from Sept. 29th, which reported that Chief Justice Shepard had granted David Camm's attorneys until Oct. 12 to finish their appeal brief, but that "Shepard denied the attorneys' request to increase the size limit on the brief from 21,000 words to 28,000," the Louisville Courier Journal reports today, in a comprehensive story by Ben Zion Hershberg:
Lawyers for former Indiana State Trooper David Camm filed a 21,000-word appeal yesterday with the Indiana Supreme Court, arguing that his conviction last year for the murders of his wife and two children seven years ago was the result of a drastically imbalanced playing field created by numerous errors by the trial judge. * * *Additional coverage may be found in this story by Shea Van Hoy in the Jeffersonville News & Tribune.
In his second trial in the case, Camm was found guilty on March 3, 2006, of fatally shooting his wife, Kimberly, and their two children in the garage of their Georgetown home on Sept. 28, 2000. He was sentenced to life in prison without the possibility of parole.
Because of intense publicity about the killings, the trial was moved to Warrick County, with Superior Court Judge Robert Aylsworth presiding.
Yesterday was the deadline that the Supreme Court had set for filing the appeal. The state attorney general's office has at least 30 days to respond and could seek an extension. The defense will then have another 15 days to answer the attorney general's response.
Liell said she believes that arguments before the Supreme Court are likely to be held in the spring and that the court could make a decision later next year.
If the verdict is overturned, Camm could be released immediately if the Supreme Court finds there isn't enough evidence to support a conviction, Liell said, or it could order a third trial.
The 73-page appeal filed yesterday was supported by a friend-of-the-court brief submitted by Thomas Schornhorst, a law professor emeritus at Indiana University.
Friday, October 12, 2007
Ind. Decisions - Transfer list for week ending October 12, 2007
Here is the Indiana Supreme Court's transfer list for the week ending October 12, 2007.
There are no transfers granted on this week's list. However, earlier this week (see this ILB entry from Oct. 9th) the Supreme Court granted emergency transfer directly from the trial court under Rule 56(A) in the case of State v. Cheryl Oddi-Smith.
Nearing four years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)
For publication opinions today (2):
In In the Matter of the Annexation Proposed by Ordinance No. 2004-11-38, et al v. Chris Fetcko, et al, an 8-page opinion, Judge Crone writes:
Case Summary. The City of Crown Point (“the City”) appeals the trial court’s order granting the motion for involuntary dismissal filed by Chris Fetcko and other landowners (“the Remonstrators”) as to a City ordinance annexing certain real estate. We reverse and remand.In Robert K. Yeager, et al v. David A. McManama, et al , a 25-page opinion, Judge Darden writes:
Issue. The issue is whether the City’s fiscal plan for the annexation is sufficiently specific regarding funding sources to satisfy the requirements of Indiana Code Section 36-4-3-13(d)(2). * * *
Following our supreme court’s guidance in City of Carmel, we conclude that the plan is sufficiently specific regarding funding sources to satisfy the requirements of Indiana Code Section 36-4-3-13(d)(2) and that the trial court’s conclusion to the contrary is clearly erroneous. Therefore, we reverse and remand for further proceedings to determine whether the conditions enumerated in Indiana Code Section 36-4-3-13(e)(2) exist.
Specifically, the Plaintiffs alleged that they had purchased lots and constructed very expensive homes in Emerald Highlands relying on the representations as to the high quality standards for homes in Emerald Highlands made by the Developer, the Yeagers, and by builder Steven Morse – the Developer-approved exclusive builder for homes there, as reflected in the Declaration,. The Plaintiffs further alleged that pursuant to the Declaration, the Yeagers were the sole members of the Architectural Review Board, the duty of which was to “regulate the external design, appearance, use and location of improvements on the Real Estate in such manner as to preserve and enhance values and to maintain a harmonious relationship amongst structures, improvements and the natural vegetation and topography” of Emerald Highlands. The Plaintiffs further alleged that by allowing construction of homes “not of comparable size and quality,” the Developer and the Yeagers had breached their duties and responsibilities pursuant to the Declaration and their representations that Emerald Highlands would consist of large custom homes. The Plaintiffs alleged that their resulting injury was a significant reduced value of their homes. * * *NFP civil opinions today (2):
The trial court’s findings lead to the conclusion that the Yeagers’ disregard for the duties established in the Declaration – of which the Developer was the Declarant – was indeed “wholesale.” Moreover, the evidence in support of the findings established that not only did the Yeagers fail to comply with the various duties imposed by the Declaration but that they did so with full knowledge of the duties imposed by the Declaration. The trial court’s conclusion that the Developer is liable based upon the gross negligence of the Yeagers in failing to fulfill their duties to the Plaintiffs pursuant to the Declaration is not clearly erroneous.
Guardianship of A.N.M., Jeannea Madsen v. Deborah and Jimmie Jones (NFP) - "Appellant-Petitioner, Jeannea Madsen (Madsen), appeals the trial court’s denial of her petition to terminate Deborah and Jimmie Jones’s (the Joneses) guardianship over her minor child, A.M. We affirm."
Robert William White v. K.B.W., b/n/f Marti Anne Crist, a/k/a Marti Anne Dietrich, n/k/a Marti Anne Ryan (NFP) - "Appellant-Respondent, Robert W. White (White), appeals the trial court’s decision to relinquish jurisdiction to Florida under Indiana’s adoption of the Uniform Child Custody Jurisdiction Act (UCCJA). We affirm."
NFP criminal opinions today (5):
Courts - Still more on: Illinois chief justice doesn't just get mad, he sues
The chief justice of the Illinois Supreme Court has settled his libel suit against a Chicago suburban newspaper for a reported $3 million.The story also links to a Chicago Tribune chart, remarking: "Judges have won eight out of 11 lawsuits against the media. A chart shows Thomas’ final award was the largest."
The agreement settles ongoing litigation following a $7 million libel verdict for Justice Robert Thomas against the Kane County Chronicle, the Chicago Tribune reports. The Chronicle also agreed to apologize for the article.
Last November a trial judge had found the jury award for Thomas shocked the conscience and reduced the amount to $4 million. The newspaper had appealed the verdict and also filed suit in federal court against 11 state judges, highlighting the difficulties of suing in a court system headed by the plaintiff. All appeals will be dropped, the Kane County Chronicle reports.
Ind. Decisions - 7th Circuit decides Illinois case on calculation of class action attorneys' fees
In Sutton v. Bernard, a 10-page opinion, Judge Williams writes:
The legal claims in this multimillion dollar securities class action have been settled. The issue of attorneys’ fees for class counsel, however, has the end of the litigation, the district court concluded that the “degree of success” obtained for the class was the controlling factor in its decision. As we explain more fully below, the district court failed to approximate what the market would have paid the lawyers for their services had they negotiated their fee at the beginning of the case, an approach that our precedent requires. Therefore, we vacate the district court’s decision and remand for a recalculation of the award.
Law - Wine shipping and the dormant commerce clause
See this entry by Howard Bashman of How Appealing.
Ind. Courts - "Police tickets will be speedier: New State Police system could eventually replace paper tickets"
Ryan S. Clark of the Richmond Palladium-Item reports today:
CONNERSVILLE, Ind. -- The Indiana State Police are working with an electronic ticketing system that could eventually replace writing paper tickets.
Starting this fall, the Electronic Citation and Warning System or eCWS will allow the state police to issue a ticket by scanning the bar code on the back of a driver's license and vehicle registration.
"Writing a ticket usually takes around seven to eight minutes," state police Sgt. Brian Metcalfe said during a demonstration Thursday at the Connersville post. "But with this new program it should cut down the process to two or three minutes."
Licenses and registration will be scanned with a handheld device attached to a laptop computer.
The scanned information along with a picture of the license will appear on the citation, which will be printed from the officer's car. * * *
The eCWS was created upon discussion from another project the state was working on, said Mary DePrez, the director and counsel for Trial Court Technology for the Indiana Supreme Court Division of State Court Administration.
State police and the Indiana Criminal Justice Institute were working on a program to electronically process probable cause affidavits for vehicle infractions, DePrez said.
"An example for an affidavit would be an operating while intoxicated citation," she said. "Through those discussions we realized an officer was filling out a traffic ticket while filling out a probable cause affidavit and we felt it would be a great idea if everything at once could be taken care of."
Ind. Courts - Still more on "Hammond lawyer arrested for intoxication in court"
HAMMOND | Well-known area attorney and North Township Board member Peter Katic faces three misdemeanor charges in connection with his arrest last week by Munster police.
Charges filed Thursday in Lake County Superior Court include a Class A misdemeanor, operating while intoxicated endangering a person, and two Class C misdemeanors, operating while intoxicated and leaving the scene of an accident. Katic was also cited for following too closely.
Katic was arrested Oct. 5 following a three-car collision on the 8800 block of Calumet Avenue, according to a Munster police report.
Katic left the scene of the accident in a white 1997 Infiniti that had sustained extensive front end damage, police said. The car's engine was steaming and fluids leaked onto the street.
Police gave chase, stopping the car in a parking lot at 8501 Calumet Ave. Also in pursuit were the drivers of the other two cars involved in the collision.
Environment - "Indiana seeks to ease rules for lake polluter: State offers U.S. Steel a pass on some regulations" [Updated]
So reads the headline to a Chicago Tribune "exclusive" today, reported by Michael Hawthorne, who wrote many of the initial BP stories. Some quotes from the very long story:
Indiana is moving to scrap, relax or omit limits on toxic chemicals and heavy metals dumped into a Lake Michigan tributary by the sprawling U.S. Steel Corp. mill in Gary, according to environmental lawyers and former federal regulators who have reviewed a proposed water permit.See this related coverage from earlier this month by Gitte Laasby of the Gary Post-Tribune: From Oct. 3rd - "Activists still wary of U.S. Steel permit." From Sept. 27th - "Permit lingo steams critics." Some quotes from the latter story:
Language outlining the changes is buried in 117 densely worded pages under consideration by the Indiana Department of Environmental Management, which provoked a public outcry this year when it gave a nearby BP refinery permission to significantly increase pollution discharged into the lake.
BP explicitly asked to dump more pollution. By contrast, Indiana regulators and U.S. Steel officials insist the latest proposal will not allow the Gary Works to increase the amount of oil, grease, metals and chemicals pumped into the Grand Calumet River before it empties into Lake Michigan.
The permit appears to tell a different story, raising questions about Indiana's enforcement of federal and state laws intended to clean up the nation's lakes and rivers.
The Gary Works, a massive complex of blast furnaces, coke ovens and steel-finishing mills about 15 miles southeast of Chicago, already is the largest source of water pollution in the Lake Michigan basin, dumping more than 1.7 million pounds in 2005.
Experts who have analyzed the mill's proposed new permit say that at some points where the steel mill discharges waste into the Grand Calumet, Indiana regulators eliminated or failed to include limits on toxic chemicals and metals that have turned the river into one of the most contaminated sites along the Great Lakes.
Specifically, U.S. Steel reports discharging oil and grease, lead, arsenic, benzene, fluoride and nitrates from waste-water pipes at the mill, yet the draft permit fails to limit emissions of these pollutants at all discharge points.
The permit also relaxes the limits on chromium, a heavy metal that builds up in fish over time. In humans, long-term exposure can damage the liver, kidneys and nervous system. The average allowable amount of chromium discharged from one waste-water pipe into the Grand Calumet would increase by 62 percent, to 17,702 pounds a year, and the permit does not require U.S. Steel to curb discharges from other pipes.
For other pollutants, regulators agreed to give U.S. Steel an additional five years to meet federal standards that have been on the books for more than a decade. Mercury, cyanide, ammonia, zinc, copper and a chemical called benzo(a)pyrene fall into that category. * * *
"There are very serious problems with this permit that must be addressed," said Ann Alexander, a Chicago attorney for the Natural Resources Defense Council, an environmental advocacy group. "Given what happened with the BP situation, there should be much greater public scrutiny before Indiana moves forward."
State regulators gave citizens and environmental groups until the beginning of October to file comments about the proposed U.S. Steel permit. Most who have tried to make sense of the document said they found it impossible to determine whether overall levels of various pollutants would increase, decrease or remain the same.
Citizens who attended a recent public hearing said they also were frustrated by the state's response to their questions.
"This permit is indecipherable," said John Crayton, a Chesterton, Ind., physician. "They tell me I'm going to get some answers, but I'm still waiting."
Residents of Northwest Indiana want to be involved when the Indiana Department of Environmental Management issues wastewater permits, but find it difficult and frustrating.
Critics said the technical language in the permits is incomprehensible and IDEM records are virtually impossible to compile. IDEM sometimes cannot answer simple questions.
Several made that clear to IDEM representatives and Commissioner Tom Easterly at the second meeting on U.S. Steel Gary Works' wastewater permit renewal Wednesday night in Gary.
"With this new permit, is there going to be an increase of the limits into the lake or not? Don't you need to know that before you do anything else?" asked John Crayton, a physician and professor from Chesterton. "When I look at this application and the data, I can't make neither head nor tail nor nothing. It's completely unintelligible."
IDEM representatives couldn't answer whether the new limits for each pollutant were higher or lower than in the previous permit. They said some pollutants have concentration limits while others also have a mass limit that depends on how much the company produces.
Easterly promised IDEM will answer all questions before issuing a final permit. He said the agency would consider making a table comparing limits. * * *
Ogden Dunes resident Mark Coleman asked why U.S. Steel is continues to discharge into the Grand Calumet River when it is still finishing dredging contaminants from there.
"A lot is legacy," said IDEM Assistant Commissioner Bruno Pigott. "The levels discharged today are far different than the levels that were discharged in the past -- and dramatically improved."
See also yesterday's ILB entry, "Still more on the U.S. Steel Gary Works/Grand Calumet permit, and related issues."
Here is the IDEM link to United States Steel - Gary Works NPDES Permit Information.
The ILB complained several months back about the unfriendly way IDEM presented the BP information to the public and finds it necessary now to complain again, this time about the USS draft permit. This is a 119-page document. Rather than post it as an easily accessible, searchable, quotable, PDF document, IDEM has elected to post it as an unwieldy, scanned, 5.2 MB PDF document. Why?
And the same goes for the 88-page fact sheet, posted for the public as a 4.0 MB scanned document. Both documents were produced on IDEM computers and could have been readily posted as PDFs with accessible, searchable content. This would have made them user-friendly. Instead, IDEM apparently printed out the documents and then ran them, page-by-page, through a scanner, so that the online documents are only equivalent to photos of each page.
[Update, 12:07 PM] Although billed as an "exclusive," and indeed it is a useful wrapup, much of what the Chicago Tribune publishes today, as the ILB indicated by the two Gary Post-Tribune stories cited above, has been covered in earlier Post-Tribune stories. Here, all in one place, is a complete list:
- July 24: “IDEM: No change in U.S. Steel output”
- July 31: "U.S. Steel permit gets close look"
- Sept. 18: "Group presses U.S. Steel, IDEM"
- Sept. 19: "Second public hearing set on U.S. Steel permit"
- Sept. 22: "U.S. Steel defends record, calls its data misleading"
- Sept. 27: "Permit lingo steams critics"
- Oct. 2: "Activists claim IDEM permit is illegal and lacks interim goals for U.S. Steel"
- Oct. 3: "Activists still wary of U.S. Steel permit"
Courts: Women now make up 1/3 of Kentucky judiciary per report by Sec'y of State
See this entry by Michael Stevens in the Kentucky Law Blog, including this quote from the Northern Kentucky Post.:
In 1995, there was just one woman on the Court of Appeals and one on the Supreme Court. Today, two women sit on the state's highest court, and five are members of the Court of Appeals - including its chief judge, Sara Walter Combs of Stanton.
Ind. Law - More on golf carts in Greene County; Bainbridge to ban ATVs but allow golf carts
Now that the Greene County Daily World has run two recent stories (here and here) on the use of golf carts on public roads in Worthington and Bloomfield, the Bloomfield Free Press is offering a "completely unscientific survey" of residents' thoughts on the issue.
And in a story from the Greencastle Banner Graphic, Michael Zennie reports:
The Bainbridge Town Council reversed a previous decision to follow county ATV guidelines Wednesday and moved forward on a crafting its own ordinance on the subject.
When Town Marshall Rodney Fenwick asked the board for guidance in policing ATVs on Bainbridge roadways, members ultimately decided that Fenwick should enforce the existing state law, which bans their use, as well as all unlicensed vehicles, on streets.
However, they asked Fenwick and town attorney Laurie Hardwick to draft an ordinance that would ban four-wheelers but still allow smaller vehicles like golf carts and lawnmowers.
However, until such a resolution is passed, all such modes of transportation are illegal on town roads, Hardwick said.
Thursday, October 11, 2007
Ind. Decisions - "Seventh Circuit Trashes Another Attorney’s Career"
Environment - Still more on the U.S. Steel Gary Works/Grand Calumet permit, and related issues
This August 5th ILB entry begins with this quote from the Gary Post-Tribune:
The Indiana Department of Environmental Management has drafted a permit allowing U.S. Steel Gary Works to continue discharging an average of 2,802 pounds of oil and grease per day into the east branch of the Grand Calumet River -- the same branch of the river the company is still trying to clean up.Today the same reporter, Gitte Laasby, writes:
A $1 million study intended to help figure out how to lower the level of mercury in the Grand Calumet River is still not complete, at least three years after the state's original deadline.
Because of staff turnover, nobody at the Indiana Department of Environmental Management was able to answer when work on the study started, what exactly has been done so far and how much taxpayer money has been spent -- in cash or staff time.
IDEM's study is supposed to determine the maximum amount of mercury the Grand Calumet River can receive while still meeting water quality standards. The results would then be used to determine how much industry and municipalities would need to reduce their mercury discharges.
The U.S. Army Corps of Engineers sampled the water and put together a water quality model, industries and municipalities supplied lab results, and local environmental groups donated their time.
But the data were never processed into a final report. Instead, four boxes of material are collecting dust at IDEM headquarters.
IDEM spokesman Steve Polston said although the agency is required to do the study, it can prioritize when to do it.
"We don't feel the urgency to do this right now," Polston said. "We get to decide when to do it based on an understanding of our own resources with staff and abilities."
Meanwhile, the Indiana State Department of Health continues to advise people not to eat any fish from the Grand Calumet River. * * *
Until IDEM knows the biggest sources of mercury in the river, the agency is unable to prioritize which of the discharging facilities to target for reductions to get the most bang for the buck, said Kathy Luther, former coordinator of the mercury study for IDEM.
"If you don't know where the priority of a pollutant is, you can throw a lot of money at one source and still not solve the problem," said Luther, who now works as the director of environmental management for the Northwestern Indiana Regional Planning Commission.
Luther said she believes the original deadline was 2004, but IDEM also had to do studies for pollutants in the other water bodies. "They have like a 15-year schedule. It's up to the state how they prioritize that schedule. IDEM wanted to do the easier ones first." * * *
Save the Dunes Executive Director Tom Anderson questioned how IDEM can issue wastewater permits to plants discharging into the Grand Calumet River -- from U.S. Steel to municipalities -- without knowing what reductions are needed to comply with Indiana law.
He said that without the study, IDEM is unable to convince dischargers that mercury reduction measures would make a difference.
While IDEM couldn't answer when the study started or how much it cost so far, Anderson said the agency previously provided written estimates of $1,050,000 to a mercury work group he was a member of. Not completing the study "would waste a considerable amount of public and private money," he said.
"It's always a concern when you spend so much money and don't get anything done," Anderson said.
The data are a snapshot of discharges at a certain time and become obsolete, he said. "At what point will anyone say, 'The data's so old it's not active,'" he said. "We collect data. Now it's not timely. We spend our money and spin our wheels."
Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
Michael A. Luttrull v. Al C. Parke (NFP) - "Michael Luttrull (“Lutrull”) filed a petition for writ of habeas corpus in the Putnam Superior Court alleging that he is being illegally restrained by the Superintendent of the Putnamville Correctional Facility, Al Parke (“Parke”). The trial court denied Luttrull’s petition, and he appeals arguing that his due process rights were violated when his parole was revoked. We affirm."
NFP criminal opinions today (3):
Ind. Courts - "Courthouse security worries Huntington County workers"
Judy Fitzmaurice reports in the Huntington County Herald Press:
The County Commissioners have formed a committee to evaluate concerns over safety in the Courthouse.
At Monday's commissioners' meeting, several department heads voiced concerns about security measures at the Courthouse. While some steps have been taken to make the building safer, more is needed, said County Jail Commander Steve McIntyre, who spoke on behalf of other county employees.
Panic buttons were installed in all offices in the building several years ago, security cameras are in place, and metal detectors have been added to the entrances of all three courtrooms. But McIntyre said that is not enough.
“No office in the Courthouse is not at risk of people becoming hostile,” McIntyre said. “The threat is there for anybody who works at or visits the Courthouse.”
McIntyre suggested having everyone enter the building through one door as a security upgrade.
“The best thing to do is have a plan that limits Courthouse entrances and exits,” he said. “For safety, we should limit the access points into the Courthouse.”
McIntyre pointed out that most surrounding counties have already beefed up courthouse security.
“I'm asking you to look into whatever grants are available to accomplish this task,” he said. “We would prefer to be proactive rather than let something happen.”
Other counties have police officers - from either local law enforcement agencies or outside contractors - present during courthouses business hours, McIntyre noted.
Commissioners agreed that concerns should be addressed but said the county doesn't have the funds to do much now.
“Everybody's in agreement,” said Commissioner Richard Brubaker. “We know what we need, we just don't have the money to pay for it.”
Ind. Law - "Douglas Church elected president of the Indiana State Bar Association"
So reports the Noblesville Daily Times today in this story, which begins:
Douglas D. Church, senior partner in the Hamilton County law firm, Church, Church, Hittle & Antrim, was elected president of the Indiana State Bar Association for 2007-08 at the Association’s fall meeting in French Lick.
Church was Noblesville city attorney from 1987-1995, and has served as Fishers town attorney from 1980 to the present.
He succeeds Richard S. Eynon, Columbus, who now will serve as immediate past president on the Indiana State Bar Association’s 22-member Board of Governors. R. William Jonas Jr., South Bend, advanced to the office of president-elect, and Roderick H. Morgan, Indianapolis, was elected vice president.
Ind. Courts - Sad notes on case of the mother who took the court records
Rebecca S. Green of the Fort Wayne Journal Gazette brings us up-to-date today on the case of the mother who took the court transcript and refused to return it. Here is a list of earlier ILB entries. From today's story:
A Fort Wayne woman 26 days into a three-month jail sentence for contempt of court wants to get out early.
The attorney for Adela Favela, 58, requested a hearing to determine whether Allen Superior Court Judge Fran Gull should release the woman from the Allen County Jail 45 days ahead of schedule. The hearing has been scheduled for Oct. 24.
On Sept. 13, Gull sentenced Favela to 90 days in jail for contempt of court after she refused to return the official court record of her son Daniel Favela’s 2006 murder trial. * * *
In his request for early release, Adela Favela’s court-appointed attorney Philip Terrill said the woman’s continued incarceration creates an undue hardship for 17-year-old Maria Favela, her daughter.
The North Side High School senior is staying with friends while her mother is in jail.
According to court documents, Terrill asserts that the longer Adela Favela remains in jail, the more bills keep piling up and the greater the danger of the family losing their apartment.
Adela Favela is also in ill health, with a tumor growing in her stomach and other physical handicaps, according to court documents.
“It would be a tragedy if Mrs. Favela were unable to survive her incarceration in the jail,” Terrill wrote in his request to Gull.
Terrill also included letters from Rosa Gerra, executive director of United Hispanic-Americans, Inc., El Mexicano editor Fernando Zapari, and a friend of Adela Favela’s.
Adela Favela also sent a letter to the court.
“Judge Gull, please forgive me,” Adela Favela said in her letter. “I know that you gave me a lot of chances to do the right thing and for that I am sorry. I thought I was doing the right thing for my son by protecting those papers.”
Ind. Law - "Golf carts haven't caused many problems in Worthington"
Another golf cart story. Timberly Ferree reported Tuesday in the Green County Daily World:
Golf cart use in the town of Worthington is permitted on its streets with few restrictions and minimal problems.
Worthington Town Council President Hal Harp explained, "We have a policy that if the operator of the golf cart is of legal driving age they are allowed to operate a golf cart and of course all the rules of the road must be met. The reason that we ask people to be 16 or older is because they have in most cases a valid driver's license."
Last week, the Bloomfield Town Council discussed possibly allowing golf carts, but council members want to look into the legal matters further before making a decision. [See Oct. 3 ILB entry here]
Overall, there have been few problems with golf cart use in Worthington, Harp added.
"Every now and then we'll have someone operating a golf cart that is not old enough and if they are seen by a policeman they would be told that they're not allowed to operate that particular golf cart," Harp explained.
But the verbal warnings are minimal and seem to work.
There have been a few instances in which four or five kids have been riding on one golf cart, he added.
"But that has only happened a handful of times."
Most golf cart users in Worthington are also older in age.
"There are quite a few older people in Worthington and we felt that the golf cart is an economical and safe way for them to get around," Harp stressed.
Golf cart use in town is rarely addressed at a council meeting, he noted.
"At the last council meeting one person felt a golf cart was in an inappropriate place," he said. "We don't have violations. Most people that have them are very responsible and use them for going to the park or driving around town."
Harp is also an owner of a golf cart.
"I have one and my wife who doesn't drive drives the golf cart," he said.
Overall, golf carts are useful for many people, he said.
"They are handy for people who are old enough to drive," Harp explained. "There are several (people) that probably have difficulty walking (who use them)."
Golf carts are also very environmental friendly, he added. They can have gas or electric motors.
Both kinds can be seen around the town of Worthington, he added.
Common sense goes along way when driving a golf cart, Harp noted.
"There are people that don't have lighting on their golf carts so they don't operate them during hours they can't see," he explained.
In general, there are more problems with four-wheelers in town, Harp stressed.
"We have more problems with licensed four-wheelers than golf carts."
Drivers of four-wheelers sometimes run stop signs, speed and pop wheelies, he said.
Four-wheelers are unlike golf carts in that they must be registered with the state, Harp explained.
"The only problem I can see is if some issue is raised and someone says they (golf carts) are illegal," he added.
It is illegal to drive golf carts on state highways. Both State Roads 67 and 157 run through the town of Worthington, Harp said. Golf carts cannot be driven on these highways.
"Although if you drive around town (in a golf cart) you do have to cross them (highways)," he added.
The town charges no registration fee for golf cart use, Harp added.
Worthington Town Marshal Dennis Conaway explained, "Golf carts ... we really don't have an issue as long as they're (drivers) responsible."
In general, if there is a problem with a golf cart in town, just speaking with the driver or a parent is enough to correct the problem, Conaway added.
"There's no state statute on golf carts," he stressed, noting that hopefully the state will soon do so.
"But now talking with people one on one seems to work," he added.
Conaway agreed that most Worthington residents who use golf carts are older-aged people.
In general, as long as golf carts stay off the highways, are not driven by children and the rules of the road are followed then there is no trouble, he said.
Courts - "Leave it to Texas to put a stop to executive overreaching"
The ILB's favorite Supreme Court writer is Dahlia Lithwick, who writes for Slate and appears on NPR's Day to Day. Here is a paragraph from a column posted yesterday:
Medellin v. Texas could be a law-school exam unto itself. It touches on the separation of powers and the supremacy clause, international treaties and state criminal codes, federalism and the reach of the president's diplomatic authority, all wrapped up in fundamental questions about the scope of judicial review. But really, the best part of Medellin is that if you are a casual spectator attempting to pick out the "good guys," here's your choice: the state of Texas and its relentless quest to execute its people without regard to moral, international, or legal norms, versus the Bush administration and its claim to broad new executive authority to boss around state judges. It's like having to choose between being clawed to ribbons by a grizzly bear or gnawed to death by a killer whale.
Ind. Courts - "House packed for Supreme Court case"
The oral arguments in the "workplace bullying" case of Daniel Raess, M.D. v. Joseph Doescher were held before the Indiana Supreme Court convened in Evansville yesterday. For background, start with this ILB entry from Oct. 8th.
Today Kate Braser of the Evansville Courier & Press reports
The wood-paneled walls of the Evansville City Council Chambers served as the backdrop Wednesday for a rare visit from the Indiana Supreme Court.You can watch the oral argument online here.
The local arguments were part of efforts by the state's highest court to reach out to the public by hearing cases in cities around the state.
Every seat in the council chambers was occupied, and the walls were lined with onlookers — mostly local attorneys and judges — as the Indiana Supreme Court justices heard oral arguments in a civil assault case originally filed in Marion County.
Chief Justice Randall Shepard, an Evansville native, was among those hearing the case in which Joseph E. Doescher, a perfusionist — a person who operates a heart-lung machine during heart surgery — at St. Francis Hospital in Indianapolis, alleged that heart surgeon Daniel H. Raess intentionally inflicted emotional distress and assault on him.
A jury originally ruled in favor of Doescher, awarding damages of $325,000, but the Court of Appeals reversed that ruling, ordering a new trial be held.
Doescher has petitioned the Indiana Supreme Court to overturn that decision and allow the previous verdict and damages to stand.
The dispute began in October 2001, when Doescher's absence from work for personal business reportedly prompted an outburst by Raess. When Raess allegedly confronted Doescher about his absence, Doescher claimed Raess clenched his fists at his side and said "You're over. You're history. You're finished."
The confrontation reportedly led Doescher to suffer anxiety and depression. He sued Raess for assault and intentional infliction of emotional distress.
Arguing before the justices, Doescher's attorney, Kevin Betz, called Raess the "Bobby Knight of St. Francis Hospitals," and said he was known for workplace bullying.
But justices questioned Betz about the difference between criminal and civil assault, and about the purpose of one expert he called to testify that reportedly dredged up previous bad acts in the workplace by Raess, possibly prejudicing the jury.
"As you know, this court gets 900 to 1,000 petitions to transfer per year," said Justice Frank Sullivan Jr. "What about this case means we should take it?"
Betz said the issue of workplace abuse is "rampant in cardiac surgery units" and has struck a nerve in the medical community.
"This case has enormous importance to hospitals everywhere, everyday," Betz said.
Representing Raess, Karl Mulvaney said the use of the term "workplace bullying" throughout the trial confused jurors, possibly skewing their understanding of the allegations.
"In court, we don't call a murderer a murderer," he said. "A jury doesn't need that help, do they?":
Ind. Decisions - Trumping legislative prayer case, another Indiana case has been awaiting an opinion from the 7th Circuit for more than two years
Referencing the ILB entry yesterday headed "How long has it been since the 7th Circuit heard oral arguments in the legislative prayer case?", a reader writes to point out:
While the legislative prayer case has been post-Oral Argument for more than a year, the appeal in the Indianapolis adult business case has been pending for more than TWO YEARS since oral argument.Sure enough:
05-1926 - Annex Books v. City of IndianapolisA check of past ILB Annex Books entries shows entries from 8/4/04 ("Federal court upholds Indianapolis' ordinance re adult businesses"), 8/15/04 (a copy of Judge Barker's opinion), and 10/19/04 ("Cities battle adult stores in courts").
Oral argument 09/08/2005 - Case heard and taken under advisement by panel: Chief Judge Joel M. Flaum, Circuit Judge Frank H. Easterbrook, Circuit Judge Ilana D. Rovner.
05-4604 - Hinrichs, Anthony v. Bosma, Brian
Oral argument 09/07/2006 - Case heard and taken under advisement by panel: Circuit Judge Kenneth F. Ripple, Circuit Judge Michael S. Kanne, Circuit Judge Diane P. Wood.
Oddly, the ILB does not appear to have covered the appeal to the 7th Circuit, but will surely cover the ruling, whenever it is issued.
Wednesday, October 10, 2007
Ind. Decisions - A new twist on: How long has it been since the 7th Circuit heard oral arguments in the legislative prayer case?
On July 3rd the ILB posted an entry that began: "The 7th Circuit heard oral arguments in the case of Hindrichs v. Bosma on September 7th, 2006." Here is a long list of other ILB entries on legislative prayer.
Today, via a story by Stephen Majors of the AP published in the Cincinnati Post, a new twist:
COLUMBUS - Ohio's House speaker will ignore a 12-year-old guideline that prayers given by visiting clergy before legislative sessions be nonsectarian and non-denominational, although he asks that they not mention specific legislation or advocate certain positions.
The policy could rest on uncertain legal ground, as some courts have ruled that legislative prayer should not proselytize or reference a specific deity. Other courts, however, have said sectarian prayer is constitutional - as long as legislators allow prayers from various religions.
House Speaker Jon Husted, a Republican from Kettering, spent the summer mulling over the prayer policy after a prayer by a visiting clergy member in May caused two Democrats to walk off the chamber floor. The prayer invoked Jesus' name, spoke favorably of church-sponsored schools and referenced pending legislation clamping down on strip-club operations.
Each House session starts with a prayer. The new policy went into effect when legislators returned to the house in September after their summer recess.
"I'm not going to get in the business of censoring people's prayers," Husted said. "The most important goal was to make sure we preserve prayer in a way that made sure people had their freedom of expression."
Husted decided against hiring a chaplain, which the House had until 1995, when guest clergy began giving the prayer according to the nonsectarian guidelines.
He said he wanted to err on the side of providing an open environment for prayer without censorship. * * *
In Indiana, a federal district judge ruled in December 2005 that prayers in the Indiana House of Representatives could no longer mention Jesus or advance a religious faith - a ruling that casts doubt on the Ohio House's latest move. A federal appeals judge refused to lift the injunction while Indiana's House speaker appealed.
But in Georgia, a federal district judge ruled that Cobb County commissioners could have sectarian prayer as long as prayers from different religions were allowed.
Given the variety of lower court decisions and the lack of a definitive Supreme Court ruling on the content of legislative prayers, most governmental bodies have taken the middle road of having nonsectarian prayer, Haynes said. "It avoids the fight.
"It's a model that's avoided controversy many places."
Courts - ABA establishes judicial disqualification project, names IU prof
A release from IU Law-Bloomington:
The American Bar Association has established a project to study judicial disqualification, called "The Judicial Disqualification Project," and asked Professor Charles Geyh to serve as director. Kate Lee (2L) will serve as assistant to the director. The Project will be aided by a six-member board of advisors comprised of judges and lawyers.Here is Professor Geyh's webpage.
Here, from the National Center for State Courts (NCSC), is a list of links on " Recusal, Removal, and Disqualification."
Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
In Mark Auberry v. Southern Sales, Inc. (NFP), a 21-page opinion, Judge Crone writes:
Case Summary. Following the denial of his motion to correct error, Mark Auberry appeals the jury’s verdict in favor of Southern Sales, Inc. (“SSI”), on Auberry’s negligence claims. We affirm.Matter of L.M.S. (CHINS); Felicia Dubs v. Whitley County Department of Child Services (NFP) - "Appellant-Respondent Felicia Dubs (“Dubs”) appeals the trial court’s determination that her daughter L.S. is a Child in Need of Services (“CHINS”). We affirm."
Issues. We restate the issues as follows: I. Whether the trial court abused its discretion in making several rulings as to expert witness Jay Nogan; II. Whether the trial court abused its discretion in excluding certain testimony of expert witness Vaughn Adams; III. Whether the trial court abused its discretion in admitting Auberry’s rental agreement with NationsRent, Inc.; IV. Whether the trial court abused its discretion in excluding a warning label; and V. Whether the trial court abused its discretion in instructing the jury on proximate cause, incurred risk, and misuse.
NFP criminal opinions today (2):
Courts - Merrillville native Maureen Mahoney featured in WSJ Law Blog entry today
Merrillville native Maureen Mahoney, who has been on short-lists for the Supreme Court, has been the subject of several ILB entries. Today the WSJ Law Blog focuses on Ms. Mahoney, her brief in the appeal of Joe Nacchio, and her love of donuts.
Environment - "Indiana Dunes National Lakeshore is in poor condition"
Gitte Laasby of the Gary Post-Tribune reports today:
The Indiana Dunes National Lakeshore is in poor condition, according to a report released Tuesday by the National Parks Conservation Association. The dunes are eroding, water pollution is contaminating the surrounding Lake Michigan and air pollution harms the air quality at the park, the report says.Here is a copy of the complete October 2007 report.
It assesses the Great Lakes national parks based on data supplied by park managers and findings of researchers with the conservation association.
Indiana Dunes got its lowest score on air quality.
"Indiana Dunes was the only park in the Great Lakes that had a poor natural resource condition. They have a really low score on air quality, which stands to reason for where they're located," said Lynn McClure, Midwest regional director for NPCA. "That means our job to protect it becomes that much higher. We have to reinforce some of the laws we already have that govern clean air. They're borderline critical on air quality. It's a lot of traffic, a lot of industry."
It's pollution from ozone, sulfur dioxide, particulates and mercury from surrounding industrial facilities that harms the air quality in the park, according to the report. Nitrogen is also deposited, which causes non-native grasses to out-compete native plants.
"High priority projects such as threatened and endangered species protection, invasive plant control, historic structure and museum collection preservation, and dune protection remain unfunded," the report says.
The dunes are retreating because shoreline development nearby prevents the natural deposit of sand that replenishes them. As of Jan. 1 this year, the U.S. Army Corps of Engineers had brought in more than a million cubic yards of sands to Mount Baldy near Michigan City, the park's largest active dune, to help counteract erosion.
Tom Anderson, executive director of Save the Dunes Council, said officials have discussed a permanent pumping system to bypass a break wall at Michigan City Harbor that prevents the natural movement of sand. The hydraulic system would move the sand quicker than trucks.
"There's been some talk about a permanent hose system so they just hook the pipe up when they dredge," Anderson said.
The report also says contamination from stormwater runoff, industrial pollution and sewage systems degrade park waters.
Krystin E. Kasak of the NWI Times also has a story today on the report.
Environment - "American Electric Power's plant in Rockport, Ind., near Owensboro, Ky., is the largest coal-fired plant in the world"
A legal settlement between American Electric Power and federal regulators will bring $1.6 billion in new pollution controls to a large coal-fired power plant -- and possibly cleaner air to Louisville and nearby Southern Indiana communities.
The new controls are intended to reduce emissions of sulfur dioxide and nitrogen oxides at the company's plant at Rockport, Ind., by 2019. The cuts will mean less pollution carried by the wind 80 miles east to the metro area, said Art Williams, director of the Louisville Metro Air Pollution Control District. * * *
The pollution cuts scheduled at the 2,600-megawatt plant along the Ohio River are part of a more than $4.6 billion agreement by AEP to reduce pollution, pay fines and fund other environmental programs in what Department of Justice officials are calling the nation's largest environmental settlement.
Ind. Decisions - "Judge denies motion to restrict jukebox incident from murder case"
From the Oct. 4 Lebanon Daily Sun, this story, reported by Matt Hendrix, on a trial court ruling:
Judge Rebecca McClure has ruled that the music a murder suspect allegedly listened to in the hours leading up to his wife's death is relevant for use in his upcoming trial.
"Evidence that the defendant listened repeatedly to two specific songs in the hours immediately prior to his wife's death, and the lyrics to those songs, is relevant," McClure wrote this week, in an order denying a motion that would have prevented the evidence from being used in Michael W. Venis' trial.
On Sept. 25, defense attorney Thomas Whitsitt argued for a motion in limine in the case of Venis, 44, who is accused of shooting his wife Aug. 11, 2006, at their Lebanon home. A motion in limine is usually made by a party who believes that simply the mention of certain evidence would prejudice the jury against that party, even if the judge later instructed the jury to disregard the evidence.
Whitsitt hoped to keep testimony about two songs Venis allegedly played repeatedly on the Boone's Pub jukebox between about 9 p.m. Aug. 10, 2006, and midnight Aug. 11, 2006, out of his upcoming murder trial. Deputy Prosecutor Kent Eastwood, meanwhile, argued the songs - both by country singer Garth Brooks - reveal Venis' violent mindset that night.
Venis' wife, Cindy Venis, was found dead from a shotgun wound at 609 S. Lebanon St., early in the morning of Aug. 11, 2006. Police said they received multiple phone calls at 12:51 a.m. from neighbors reporting an adult daughter of Michael and Cindy Venis was outside the home screaming that her father had shot her mother. Michael Venis was booked into the Boone County Jail just after 2 a.m. Aug. 11, 2006, after fleeing from local police into neighboring Hendricks County. He apparently made threats to take his own life, but eventually spoke with a police hostage negotiator via cell phone and surrendered.
Eastwood said at the Sept. 25 hearing that witnesses placed both Michael and Cindy Venis inside Boone's Pub in Lebanon on the night Cindy Venis was shot. He said a female bartender who worked that night will confirm Michael Venis played two Brooks' songs, "The Thunder Rolls" and "Papa Loved Mama," "in excess of five times each" during a period leading up to Cindy Venis' death, which investigators estimate occurred at 12:40 a.m. Aug. 11, 2006.
The deputy prosecutor said the bartender described Michael Venis as "guarding" the jukebox that night, while his wife was playing pool and periodically visiting the bar to buy drinks. According to Eastwood, Venis played the Garth Brooks songs (both about angry people killing a cheating spouse) so often that it angered other bar patrons and caused bar staff to reset the jukebox.
Whitsitt cited case law in which a burglary suspect's preference for the AC/DC song "Night Prowler" wasn't admitted into court. But in her recent ruling, McClure noticed a "distinguishable" difference between that case (Houser v. State) and Venis' case.
"In Houser, the disputed song lyrics were those of a song that the defendant liked to listen to," McClure wrote. "There was no evidence that Houser played the song repeatedly just prior to the commission of the crimes for which he was charged."
McClure noted that the Garth Brooks songs "are about the intentional killings by a spouse of his or her unfaithful spouse."
While it is not on the record whether Cindy Venis was unfaithful in her marriage, Eastwood said Sept. 25 that the Boone County Prosecutor's Office intends to prove Michael Venis believed his wife was cheating on him and knew she planned to leave or divorce him.
Eastwood said the Venis case won't be so much about whether or not Michael Venis killed his wife - he has reportedly never denied pulling the trigger - but whether it was intentional or accidental. It's important for the jury to know Michael Venis' mindset in the hours just before his wife's death, Eastwood argued on Sept. 25.
McClure apparently agreed. In denying Whitsitt's motion in limine, she wrote that "direct proof of a defendant's mental state is rarely available."
"A defendant's mental state may be proven by indirect evidence and inferences that can be drawn therefrom," the judge noted. "When intent is an issue in a murder case, the defendant's mental state may be determined by evidence of the defendant's conduct before, at the time of, and immediately after the charged murder."
McClure also wrote that the potential prejudice from admitting the songs and their lyrics as evidence "does not significantly outweigh its probative value" to the case.
A pre-trial hearing in the Venis case occurred Thursday, but took place in Judge McClure's chambers and was not on the record. Michael Venis' trial is scheduled to begin Oct. 16 in Boone County Superior Court II.
Ind. Decisions - "Exotic Dancer Worker's Comp Upheld"
An Indiana appeals court upheld a worker's compensation award Tuesday for an exotic dancer who was injured while performing on a pole at a strip club.Here is a report from halfway around the world, from the Melbourne Herald Sun, that begins:
The Indiana Court of Appeals ruled in favor of Angela Hobson and ordered the state Worker's Compensation Board to determine if she was entitled to double compensation.
Hobson claimed she suffered neck pain and numbness after injuring herself while dancing at the Shangri-La West club in Fort Wayne on Dec. 20, 2001. She underwent surgery for a herniated disc in her cervical spine, according to court records.
Hobson said she reported her injury to her employers, but they later denied knowledge of the injury.
In 2006, the compensation board awarded her temporary total disability benefits and other compensation totaling more than $10,000 and found that Shangri-La did not have a worker's compensation policy and was not approved as a self-insurer.
Shangri-La appealed, arguing that the board erred when it found Hobson more credible than its witnesses. But the court declined to reweigh the evidence and upheld the original award, adding a 5 percent increase due to the passage of time.
The court also instructed the board to determine whether Hobson was entitled to double compensation due in part to the allegation that Shangri-La violated state law by not having worker's compensation insurance.
AN exotic dancer who injured herself while pole dancing at an Indiana strip club has had her bid for compensation upheld by the courts.Here is coverage of the story from Niki Kelly of the Fort Wayne Journal Gazette.
Tuesday, October 09, 2007
Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)
For publication opinions today (3):
In Wholesalers, Inc. d/b/a Shangri-La v. Angela Hobson, a 12-page opinion, Chief Judge Baker writes:
Appellant-respondent Wholesalers, Inc., d/b/a Shangri-La (Shangri-La), appeals the order of the Full Worker’s Compensation Board (the Board) in favor of appellee-claimant Angela Hobson on her claim for worker’s compensation benefits. Shangri-La argues that the Board erroneously found Hobson to be more credible than Shangri-La’s witnesses. Inasmuch as we do not reweigh the evidence or assess witness credibility on appeal, we affirm the judgment of the Board.In Madison State Hospital, Indiana Family & Social Services Administration and State Personnel Department v. Karen L. Ferguson , a 12-page opinion, Chief Judge Baker writes:
Additionally, Hobson argues that she is entitled to appellate attorney fees based on Shangri-La’s bad faith, a statutory 10% increase in her award based on the four- to six-year delay in her receipt of benefits, and double compensation and attorney fees based on Shangri-La’s failure to carry worker’s compensation insurance at the time of Hobson’s injury. We find that Hobson is not entitled to appellate attorney fees or a 10% increase in her award, but that she is entitled to an automatic 5% increase in the award and may be entitled to double compensation and attorney fees. We remand, therefore, with instructions that the Board determine whether Hobson is entitled to double compensation and attorney fees and to instruct Shangri-La to make immediate payment to Hobson for the full amount of the award to which she is entitled, including the 5% increase pursuant to Indiana Code section 22-3-4-8.
Appellants-respondents Madison State Hospital (the Hospital), Indiana Family and Social Services Administration (FSSA), and State Personnel Department (SPD) (collectively, the State) appeal the trial court’s order awarding relief to appellee-plaintiff Karen L. Ferguson. The State argues that the underlying final determination of the State Employees’ Appeals Commission (SEAC), which was in the State’s favor, was neither arbitrary, capricious, an abuse of discretion, nor contrary to law. Finding that the SEAC did not erroneously conclude that the State’s restructured pay plan for nurses was rational and proper, we reverse the judgment of the trial court.Cesar Gervasio v. State of Indiana - sentencing, affirmed.
NFP civil opinions today (1):
Thomas Robertson v. Lisa Robertson (NFP) - "Appellant-respondent Thomas Robertson appeals from the trial court’s dissolution decree of the marriage of Thomas and appellee-petitioner Lisa Robertson. Specifically, Thomas argues that the trial court erred by (1) awarding Lisa 74% of the marital estate, (2) refusing to award Thomas retroactive child support, and (3) refusing to include $17,800 rent in the marital estate. Finding no error, we affirm the judgment of the trial court."
NFP criminal opinions today (7):
Ind. Decisions - More on: Trial court ruling could void IMPD arrests
Updating this ILB entry from August 8th, where the ILB quoted from an Indianapolis Star story that began:
A Marion Superior Court judge ruled today that a woman's arrest on drunken driving charges was illegal because the police officer had not been properly sworn in after the creation of Indianapolis Metropolitan Police Department.Today the Supreme Court has announced that it has granted transfer in the case of State v. Cheryl Oddi-Smith.
The ruling likely means charges against Cheryl Oddi-Smith, 44, will be thrown out of court. She was arrested Jan. 15 after a three-car fender-bender on Thompson Road near Arlington Avenue and was charged with misdemeanor and felony counts of operating a vehicle while intoxicated.
But Judge Reuben Hill's ruling could have wider impact. He agreed with defense attorneys Annie Fierek and James Voyles that officer William J. Bueckers, who arrested Oddi-Smith, was not sworn in after the merger of the Indianapolis Police Department and the Marion County Sheriff's Department took effect Jan. 1.
Although the Clerk's docket has not been updated since 9/12/07 in the case (49 A 05 - 0708 - CR - 00445), it appears that the transfer is granted under Rule 56(A), which provides:
In rare cases, the Supreme Court may, upon verified motion of a party, accept jurisdiction over an appeal that would otherwise be within the jurisdiction of the Court of Appeals upon a showing that the appeal involves a substantial question of law of great public importance and that an emergency exists requiring a speedy determination. If the Supreme Court grants the motion, it will transfer the case to the Supreme Court, where the case shall proceed as if it had been originally filed there. If a filing fee has already been paid in the Court of Appeals, no additional filing fee is required.
Environment - AEP to Pay Large Sum in Clean Air Settlement [Updated]
From a story today in the Washington Post reported by Steven Mufson:
In a major Clean Air Act settlement, one of the nation's biggest coal-fired electricity producers has agreed to spend hundreds of millions of dollars to slash its acid-rain-causing emissions by more than two-thirds over the next decade, sources said yesterday. * * *From CNNMoney.com:
The settlement is to be made public today, ending a lawsuit that was filed in 1999 and was set to go to trial today in federal court in Columbus, Ohio, where AEP has its headquarters.
Nine states, 13 environmental groups and the Environmental Protection Agency filed the suit, alleging that the company had done enough modification of its existing coal plants to trigger a Clean Air Act clause that requires the installation of new pollution controls when significant work is done. The plaintiffs alleged that AEP had violated limits at 30 of 46 coal-fired units. * * *
The Clean Air Act clause, known as "new source review," has been the subject of intense dispute among major electric utilities, environmental groups and federal regulators. * * *
An April Supreme Court decision may have contributed to AEP's decision to settle the lawsuit. In that case, Environmental Defense v. Duke Energy Corp., the court backed the policy dating back to the Clinton administration aimed at making power plants install new pollution-control equipment. The justices' unambiguous ruling made it clear to utilities that sooner or later, they might be forced under law to curtail their emissions from aging coal-fired plants.
American Electric Power has reached a settlement agreement with the U.S. Environmental Protection Agency (U.S. EPA), eight states and 14 environmental organizations, bringing an end to almost eight years of litigation regarding alleged violations of the New Source Review (NSR) provisions of the Clean Air Act. AEP admits no violations of law, and all claims against AEP were released.[Updated] From NPR.org's noontime show, Day to Day, a story on the AEP settlement. Access it here - it will be available for listening at about 3 PM.
Under terms of the settlement agreement, filed today in the U.S. District Court for the Southern District of Ohio, AEP agreed to annual sulfur dioxide (SO2) and nitrogen oxides (NOx) emissions limits for its fleet of 16 coal- fueled power plants in Indiana, Kentucky, Ohio, Virginia and West Virginia. Additionally, the company agreed to install additional emissions control equipment on two plants.
AEP also will provide $36 million for environmental projects coordinated with the federal government and $24 million to the states that were parties to the agreement for environmental mitigation. AEP will pay a civil penalty of $15 million.
The NSR provisions require new major sources of emissions or existing sources that undergo major modifications to install additional environmental controls. The complaint alleged that AEP made major modifications at some of its coal-fueled generating units without obtaining the necessary permits and without installing controls required by the Clean Air Act to reduce SO2, NOx and particulate matter emissions. * * *
The claims, initially filed on Nov. 3, 1999, by the U.S. Department of Justice on behalf of the U.S. EPA, eventually included allegations involving nine AEP plants: Amos, Cardinal, Clinch River, Conesville, Kammer, Mitchell, Muskingum River, Sporn and Tanners Creek. New York, Connecticut, New Jersey, Vermont, New Hampshire, Maryland, Rhode Island and Massachusetts intervened. Complaints were filed by Ohio Citizen Action, Citizens Action Coalition of Indiana, Hoosier Environmental Council, Valley Watch, Ohio Valley Environmental Coalition, West Virginia Environmental Council, Clean Air Council, Izaak Walton League of America, U.S. Public Interest Research Group, National Wildlife Federation, Indiana Wildlife Federation, League of Ohio Sportsmen, Sierra Club and Natural Resources Defense Council.
Ind. Decisions - More on: Three cases granted transfer today, including whether myspace.com postings are protected political speech
From this Sept. 26th ILB entry, reporting that the Supreme Court had granted transfer in the case of:
A.B. v. State - The ILB summary to the COA opinion sets out the issue: "Whether the message authored by A.B. and posted on a myspace.com website is protected political speech." See also this ILB entry from April 10, 2007, this one from July 17, 2007, and this one from Sept. 2, 2007.Today Meranda Watling reports in the Lafayette Journal & Courier, under the headline "Student says Facebook posts led to suspension":
A West Lafayette High School student says she and several others were punished last week for messages posted on a Facebook group created in support of a student who had been suspended.
School officials were keeping quiet Monday about the incidents, saying all behavior issues are confidential.
But sophomore Caitlyn Casseday said she was given in-school suspension Friday for a comment posted on a video that showed two students in the altercation that led to the original suspension. She said Monday that she posted comments on the Facebook site that included calling assistant principal Ron Shriner an obscene name, but she said none of the posts threatened him.
"A lot of people who made comments about the video and administration and Mr. Shriner got in trouble," Casseday said.
She said someone printed the comments and gave them to administrators. Unless set otherwise, Facebook groups can be accessed by anyone with an account on the social networking site.
After that, she said several students were given punishments. Casseday said she was called into Shriner's office.
"I asked him, 'Am I not protected? How can I get in trouble? Don't I have freedom of speech?'" Casseday said. * * *
School officials, including Allen and superintendent Rocky Killion, would not confirm whether students had been suspended or how many may have been involved.
Allen would not comment on the allegations but said the school's policy is clear.
"All we're asking is for kids to cooperate with the school code of conduct and not disrupt school," he said.
The code of conduct, which is posted on the school's Web site, does not directly address postings on the Internet.
Under grounds for suspension or expulsion, it does include "engaging in speech or conduct ... that is profane, indecent, lewd, vulgar ... or is plainly offensive to school purposes." The code notes that the rules apply when a student is on school grounds, off school grounds at a school activity or traveling to or from school or a school activity.
Killion also declined to discuss the incident but said comments made about the school by students should be investigated.
"When students place inappropriate information and comments on the Internet and other sites, we take it on a case-by-case basis," he said.
David Hudson, a scholar at the First Amendment Center who specializes in student expression, said case law has yet to determine how far school authority extends when it comes to the Internet.
"It really is a case-by-case," Hudson said. "I think the problem for school officials is sometimes they just censor it because they don't like it. And disliking student speech is not an acceptable defense. You have to point to specific facts that indicate it will cause a significant disruption."
Monday, October 08, 2007
Law - "Security Officials Seek to Block Some Online Maps"
An interesting story this morning on NPR, although not the first time it has come up .... Freedom of information vs. government officials seeking to take information off the record. Here is the blurb:
Morning Edition, October 8, 2007 · With Google Earth and GPS, people have grown accustomed to online maps of whatever they're searching for. But the boom in digital mapping has run into an obstacle. Some government officials are refusing to release electronic maps of what they call "critical infrastructure," such as water mains and fire hydrants.Take a listen here.
Ind. Law - More on: Gary ordinance to prohibit use of cell phones while driving
In January, motorists in the city caught using their cell phones while driving will face fines up to $200.
Three months before it takes effect, the new law is already drawing mixed reactions.
Gary is likely the first municipality in the state to forge ahead with such a measure, said Laura Gibbons, Indiana Association of Cities and Towns research and policy manager. * * *
The law also does not apply to police officers or emergency vehicle drivers. Also, those using their phones to dial 911 or other emergency telephone numbers are exempt from the ordinance.
The enforcement would not take place on interstate highways that cross over into Gary, like the Borman Expressway, which is patrolled by the Indiana State Police.
"(Gary's ban) wouldn't affect the way the state police do business," said Sgt. Peter Wood, of the State Police. "It's a city ordinance that we're not going to be enforcing."
"Like with other city ordinances, people passing through any municipalities are going to be subject to that municipality's laws," Wood said.
At-large Councilman Roy Pratt introduced the cell ban, modeled after Chicago's ban, in July. The ordinance cites a National Highway Traffic Safety Administration statistic indicating that cell phone usage while driving was a contributing factor for 2,600 fatal crashes in 2005. Fines are $20 for the first offense and $50 for the second offense. Also, if the violation occurred during an accident, the maximum fine is $200.
Ind. Courts - 7th Circuit Judge Ripple speaks at Fort Wayne Red Mass
Becky Manley reports in the Fort Wayne Journal Gazette today, in a story that begins:
Because members of the legal profession are often led to their careers through the influence of others, they must help train and support the members of their profession to help them realize the dignity of their calling.
That was part of the message delivered by 7th Circuit U.S. Court of Appeals Judge Kenneth F. Ripple to about 55 attorneys, judges, civil servants and others who gathered at Grand Wayne Center on Sunday. The gathering followed the Red Mass at the Cathedral of the Immaculate Conception.
The Red Mass, a Catholic tradition that dates to the 1200s, honors members of the legal profession as well as those in public service who help administer justice.
While the Bible tells of heavenly messages sent via burning bushes and lightning bolts, Ripple said God can prompt people to enter the legal profession through their studies, experiences or the influence of a family member.
“I didn’t become a lawyer because an angel visited me,” Ripple said.
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This Wednesday, Oct. 10th
3:00 PM - Daniel Raess, M.D. v. Joseph Doescher - Following a trial on plaintiff Doescher’s claims for intentional infliction of emotional distress and assault, the jury returned a verdict in favor of Doescher on the assault claim and awarded damages of $325,000. The Court of Appeals reversed and remanded for a new trial, holding that expert testimony was improperly admitted and a related jury instruction tendered by Raess was improperly refused. Raess v. Doescher, 858 N.E.2d 119 (Ind. Ct. App. 2006), aff’d on reh’g, 861 N.E.2d 1216 (Ind. Ct. App. 2007). Doescher has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorneys for Doescher: Kevin Betz, Sandra Blevins, Indianapoils, IN. Attorneys for Raess: Mary Watts, Karl Mulvaney, Kelly Eskew ,Indianapolis, IN.
Note: This oral argument will be held in Evansville. For more information, see this ILB entry from Oct. 5th headed "Supreme Court justices to hear workplace bullying case in Evansville."
This week's oral arguments before the Court of Appeals that will be webcast:
This week's oral arguments before the Court of Appeals that will NOT be webcast:
Sunday, October 07, 2007
Ind. Courts - "GPS keeps felons honest ... or else"
A story by Kate Braser of the Evansville Courier and Press today begins:
When convicted felon Richard W. Robb Jr. was violating the terms of his probation by making trips to Wal-Mart, a friend's home and even a liquor store, his every move was being tracked in 20-second intervals.
Those violations — recorded meticulously on the GPS device he wore around his ankle and saved in a computer system — were later reviewed by Vanderburgh Circuit Court Magistrate David Kiely.
The judge ultimately decided to send Robb, 25, to the Department of Correction for the duration of his sentence on a conviction for operating a vehicle after being declared a habitual traffic offender.
Local business ABK Tracking began offering GPS services this year, and law enforcement officials are embracing the opportunity to ease jail overcrowding and offer nonviolent criminals a way to be productive members of the community.
"Overall, I think the defense attorneys and the prosecutors both agree this is a good alternative in the appropriate case," Kiely said.
Kiely estimates he has ordered GPS tracking for at least 20 cases so far.
"It's a good alternative to pretrial incarceration," he said. "We can keep track of them but don't have to house them in the jail, and they are paying the expense for it instead of the taxpayers."
Ind. Courts - Three women, the judge, the prosecutor, and the defense attorney, at center of major Allen County trial
Last week the Simon Rios murder trial concluded in Allen County, as reported in this Oct. 2nd story by Rebecca S. Green of the Fort Wayne Journal Gazette, headed "4 life terms provide finality in Rios case."
Today Green reports on the attorneys behind the trial:
For most of the past two years, they were the central players in the biggest criminal case Allen County has seen in years, one of the biggest in the past decade.Here are the stories: Fran Gull, the judge; Karen Richards, the prosecutor; and Michelle Kraus, the defense attorney.
The judge – steely in her own resolve to keep the case pushing forward toward a monthlong October trial, guarding the rights of the accused and allowing a place for the voice of the victims to be heard.
The prosecutor – flint-tough, unmoving in her pursuit of the death penalty against Simon Rios, blinking only at the last minute at the request of the victims’ family.
And the defense attorney – unwavering in her defense of her client, not of his actions but of his life, of what she believes is a humanity lost in the murders of five people, four of them children.
Fifteen years ago, the three women were colleagues working in the Allen County Prosecutor’s Office. Now, they represent the three points of the criminal justice system in the case of the State of Indiana vs. Simon Rios.
“They’re all great lawyers. They all serve the public very well in different capacities,” said Allen Superior Court Judge Stephen Sims, the three women’s one-time boss when he was Allen County prosecutor.
Sims called it a privilege to supervise all three women: Allen County Prosecutor Karen Richards, public defender Michelle Kraus and Allen Superior Court Judge Fran Gull.
In the days after the conclusion of the quadruple-murder case, Gull, Richards and Kraus agreed to separate interviews where they talked about the Simon Rios case and their relationships.
Ind. Courts - More on "Hammond lawyer arrested for intoxication in court"
MUNSTER -- Munster police will file charges against attorney and former judge Peter Katic, who they say caused a three-car accident while driving drunk on Friday.
Katic, a former Hammond city judge and Lake County commissioner, was on Calumet Avenue at 3:05 p.m. Friday when he rear-ended a vehicle, which then rear-ended a second vehicle, Munster police Sgt. Steve Kovacik said Saturday.
Katic then left the scene in his 1997 Infiniti but was caught within three blocks, at 8500 Calumet Ave.
No one was hurt.
Katic, 53, refused to take a breathalyzer at the scene, Kovacik said. Katic was taken to Community Hospital.
Ind. Courts - "More often than not, in civil courts these days lawyers are being replaced by their own clients"
So begins a report by Diane Krieger Spivak today in the Gary Post-Tribune that should not be missed. Some quotes:
[M]ore than 80 percent of family law cases in the United States involve at least one person who represents himself or herself.
Called pro se, or self-represented litigants, they are increasing in greater numbers than ever before.
In half of the family law cases both litigants represent themselves. By 2010 it's estimated that the vast majority of legal proceedings will be self represented,
"We're seeing more," Porter Superior Court Judge David Chidester said.
Reasons range from the cost of hiring an attorney to anti-lawyer sentiment to easy access to information on the Internet, Chidester said.
"There are people in gray areas who have an income but their money is earmarked for bills," Chidester said. "They can't afford a private attorney but they don't qualify for a public defender."
Most self-represented litigants are seen in small claims courts.
"But family law is seeing more in juvenile and divorce court," Chidester said.
Chidester recently attended a course for judges in how to handle pro se litigants at the national Judicial College.
Self representation often presents a problem for judges for a number of reasons.
"It takes up more time in court, and its a struggle for judges," Chidester said. "We're not allowed to help one side or the other, but we often have to ask them questions or have them rephrase something."
As a group, those who represent themselves "aren't doing well," Chidester said. "They're not prepared and they're judged by the same standards as a lawyer. Judge Judy and Judge Joe Brown are not the best ways to learn what happens in a courtroom."
Chidester estimates that 70 percent of pro se litigants lose their cases. "Judges are going to have to learn to deal with it."
Ind. Law - "Argos Town Board Discusses Golf Cart Ordinance"
Yet another golf cart ordinance story, this one reported by the Argos station, WTCA, AM 1050:
There was a lengthy discussion concerning the golf cart ordinance during the Argos Town Council meeting Wednesday night. Town attorney Ron Gifford, brought a draft based on Culver's ordinance for consideration.For background on golf cart ordiances, start with this ILB entry from Oct. 3rd.
Council member Val Harley stated that she saw no need for an ordinance. In the past the golf carts were impounded if they were being used by underage drivers and the parents were contacted. She was also against the registration fee.
Council President, George Null, wanted to know if the fee could be for a four year period. He also wanted the carts to have workable lights, seat belts and reflectors.
Council member Mark Umbaugh was concerned that the carts have proof of insurance liability and be operated by licensed drivers. He also suggested that the registration fee be waived for the citizens 60 years and older.
Mr. Gifford will present the golf cart ordinance at the next meeting with the changes.
Ind. Courts - La Porte County Magistrate Sally Ankony retiring in January
Laurie Wink of the Michigan City News-Dispatch reports:
As a newly minted lawyer in 1983, Ankony joined the Michigan City firm of Sweeney, Dabagia. She was appointed probate commissioner for La Porte Circuit Court in 1991. Four years later, she was appointed magistrate for the same court.In sidebar reports that: "Greta Friedman has been appointed to replace retiring Sally Ankony as magistrate serving La Porte Superior Courts."
Ankony says a magistrate is an attorney who performs like an assistant judge. She is paid by the state and enforces state law, handling cases involving divorce, paternity, child support and abuse, juvenile delinquency, probate and mental illness. She hears cases, makes decisions based on the facts and issues court orders.
If a case is one that can be appealed, it is reviewed and signed by Circuit Court Judge Tom Alevizos.
"I can do everything a judge can do except final appeals," Ankony said.
During 12 years as magistrate, Ankony says her case load has "increased tremendously." She's seen the state and federal governments get more involved with child and family welfare issues. For example, the state now mandates reviews of child abuse and neglect cases every six months, rather than the previous 18 months. The same applies to juvenile delinquency cases.
"We want to move cases along so kids don't sit in foster homes forever," Ankony said. "We try to get them back with parents or in a permanent home."
Ankony routinely works with case managers at the Madison and Swanson centers in Michigan City and other service providers as part of a more holistic approach to treating the family, rather than focusing only the troubled child.
"We're not looking at just the delinquent or abused child, she said. "We're looking more at the causes. Why are they acting out? We get to the root cause, not just put a Band-Aid on it. What can we do to help the family?"
By getting family members to identify problems and participate in the decision making, there's more buy-in, said Ankony, who was instrumental in creating Children Cope with Divorce, now called Transparenting. The program requires divorcing parents with children younger than 18 to figure out how to be co-parents before the divorce is final.
Environment - More on: State backs off in Feddeler Landfill dispute with Lake County sheriff
INDIANAPOLIS | Gov. Mitch Daniels expressed optimism Friday that Lake County Sheriff Rogelio "Roy" Dominguez and the Indiana Department of Environmental Management will amicably resolve a turf war over the former Feddeler Landfill west of Lowell.
And Earle Goode, the governor's chief of staff, followed up with terms for burying the hatchet.
Goode sent Dominguez a letter Friday afternoon saying it is "important that your office and the state agree that the landfill does not pose a public health threat." Goode agreed to conducting another round of tests at the landfill under conditions similar to those in summer 2006, when a county contractor detected the presence of toxic gas.
The state suspected the contractor received a false reading, and follow-up tests last year by the Indiana Department of Environmental Management and the U.S. Environmental Protection Agency showed no sign of toxic gas. A hunt for barrels of hazardous waste believed to have been buried in the landfill decades ago also turned up empty.
State and federal regulators subsequently declared the defunct dump safe, but county officials pressed for a new round of environmental tests. IDEM responded with an August letter threatening to fine Dominguez up to $25,000 a day until the county sealed testing wells its contractor dug last year.
IDEM argued the sheriff lacked the legal authority to go rooting around the landfill in the first place. Dominguez in turn blasted the state agency for failing to protect the public.
The governor said he hopes the sit-down Thursday helped put the finger-pointing to rest.
"The briefing I had says they had a really good meeting, and we'll get this thing worked out," Daniels said. "(Dominguez) is trying to do the right thing and so is IDEM, and I think they made headway (Thursday)."
Ind. Law - More on wine shipping
"Uncorked," the excellent wine column written by Dan and Krista Stockman for the Fort Wayne Journal Gazette, is definitely a keeper this week for anyone who wants to know the ins and outs of operating under the new laws in Indiana and other states.
Saturday, October 06, 2007
Ind. Courts - "Putting price on Allen County Courthouse art"
Amanda Iacone reports today in the Fort Wayne Journal Gazette:
Much like the building around it, the fine artwork housed inside the Allen County Courthouse has increased in value even though it could never really be replaced in the event of a natural disaster or fire.
The county commissioners Friday agreed to provide a separate insurance policy for the fine art, valued at $34.8 million. The county previously included the artwork as part of the blanket policy that covers the building structure and contents, said Cathy Serrano, risk manager and human resources attorney for the county.
This spring, county officials brought in a specialist to appraise the artwork, which includes bronze, cast bas-reliefs that form a decorative part of the courtroom walls, murals painted on ceiling areas, and some portrait paintings.
To arrive at the $34.8 million appraisal, the specialist compared the works to museum-quality art of a similar period and style that have been sold or auctioned recently. The price would be adjusted based on condition and how famous the artist was, Serrano said.
Artist Carl Gutherz painted three murals in courtroom No. 2. He was based in Washington, D.C., and an example of his work can be found in the reading room of the Library of Congress. He was also more widely known than his student Charles Holloway, who painted the four murals on the main rotunda.
Holloway won a gold medal at the 1900 Paris Expo.
“That’s why it takes a very specialized appraiser to do,” she said.
The county tried local appraisers, specialists from Chicago and at the Smithsonian Institution, who declined to take the job. However, the county was recommended to Sharon Smith Theobald with Appraisal Associates International, who specializes in museum-quality art and architectural art found in buildings like museums worldwide, Serrano said.
Theobald documented the Courthouse art while in Fort Wayne doing similar work at the Lincoln Museum. The work cost the county less than $2,000, she said.
The fine art was appraised for the first time while the interior of the 105-year-old Courthouse was being renovated during the late 1990s. The value of about $9 million was low because the artwork was in the midst of being restored and cleaned, Serrano said.
Officials knew at the time that the artwork would need to be appraised again. The Courthouse structural elements were also appraised during the renovation for a value of $38 million, but the value of the Courthouse almost tripled after a recent reappraisal to $107 million.
Despite the large value associated with the artwork, the artwork is priceless and could never truly be replaced if it were ever damaged or destroyed, Commissioner Linda Bloom said.
Copies and photographs of all the artwork could be used to duplicate any damaged item.
“It wouldn’t be the same,” Bloom said.
The commissioners agreed to pay a premium of $19,981 annually to Travelers Insurance, which specializes in such coverage.
Securing the precious works of art is another concern, but one county officials believe is under control.
Armed guards who work for the Allen County Sheriff’s Department provide security at the Courthouse during the day. And security guards walk through the building periodically after hours to keep an eye on everything from computers to broken windows to stolen artwork, said Tony Burrus, county safety and environmental director.
The building also has an alarm system, and certain areas require a pass key to enter after hours, Burrus said.
But the location of the artwork also protects it from damage or theft, Serrano said.
Many of the bas-reliefs are so high up along the courtroom walls that someone would need a ladder to reach them. Any ladders in the building are locked in maintenance areas, she said.
The works of art cast in bronze would also be very heavy and are permanently affixed to the wall. Although they could be removed, it would not be easy, Serrano said.
Ind. Courts - "Few women in Indiana are appointed to high judiciary posts"
The ILB has had numerous entries pointing to the small number of women on the Indiana bench. Most recently, the fact that Indiana was the only state high court without a woman justice headed several entries.
Today, Cynthia A. Sequin of the Indiana Business Journal has this lengthy story headed "Is justice blind? Few women in Indiana are appointed to high judiciary posts." Some quotes:
Indiana is the only state in the country that has not had a Caucasian woman serve on its Supreme Court, and Indiana and Idaho are the only states that do not currently have any women on their highest court.ILB readers may also remember the Q & A from last year, where this question was asked of the Supreme and Appellate Court judges up to retention last November:
Myra C. Selby, now a partner with Indianapolisbased law firm Ice Miller LLP, is the only woman to have served as a justice on the Indiana Supreme Court. She was named in 1995 to serve on the court by Gov. Evan Bayh, causing the justices’ chambers to be remodeled to accommodate a women’s restroom for the first time in its 191-year history. She left the court in 1999 but remains involved by chairing the Indiana Supreme Court Commission on Race and Gender Fairness.
“When I was on the court I can remember when third- and fourth-grade students would come to tour the chambers and the girls would ask ‘Where are the girls?’” Selby said. “Everywhere they looked they would see photo after photo of men. I looked at it as an opportunity to ask them what they wanted in life and to encourage them to see themselves in leadership roles when they grow up.” * * *
Patricia A. Riley is one of four women who serve as a judge on the Indiana Court of Appeals and is an adjunct professor at IU’s law school here. She earned her law degree here after getting her undergraduate degree in Bloomington. She worked at different times as a prosecuting attorney and public defender in Marion County.
“I always wanted to be a lawyer, and I became one in 1974,” Riley said. She was the only female in her class back then. While times have changed, “unfortunately being a woman is still an issue—I haven’t seen it as a plus yet!” she said. “Until we place women in … leadership roles it will be an issue.”
Riley said it is difficult to quantify the subtle bias that women face.
“We can look at the data, though,” she said. “Women still don’t get pay equal to men, more men than women are put on the ‘partner track’ in law firms, more men are made partners and there aren’t enough women serving as judges.” She hopes these issues will steer her own sons as they begin their legal careers.
There are no women on the 5-member Indiana Supreme Court (and there has been only one woman on the Court in its history). There are only four women (of 15) on the Court of Appeals. Minorities are poorly represented on both courts. Any thoughts?The judges/justices decided to answer with a collective response, available here, as the last item.
All eight Q & A may be accessed here. The Q & A is accompanied by a list of those participating in the collective response:
"Every jurist who received a questionnaire has elected to participate in the responses: from the Court of Appeals -- Chief Judge James S. Kirsch, Judge Terry A. Crone, Judge Ezra H. Friedlander, Judge Edward W. Najam Jr. and Judge Patricia A. Riley; from the Supreme Court -- Justice Frank Sullivan Jr.
Friday, October 05, 2007
Environment - State backs off in Feddeler Landfill dispute with Lake County sheriff
On Sept. 28th Bill Dolan reported in the NWI Times:
LOWELL | The state's top environmental official is speaking out in a war of words between his agency and the Lake County sheriff.On Sept,. 26, John Byre of the Gary Post Tribune reported:
"We have a sheriff who would like to be the environment leader for the county of Lake, and he's not," Indiana Department of Environmental Management Commissioner Tom Easterly said Wednesday during a public meeting regarding water pollution at Indiana University Northwest in Gary.
Sheriff Rogelio "Roy" Dominguez has been quarreling for months with IDEM regarding whether the state is aggressively monitoring the Feddeler landfill outside of Lowell.
The sheriff announced last year his environmental task force installed four wells within the 40-acre site west of Lowell and found evidence of fatal cyanide vapors leaking from the landfill.
IDEM later concluded from its own testing early this year that there was no health risk to off-site residents and demanded the wells be closed to prevent any pollution leaking from the wells into ground or surface water.
"I asked him for six months to fix it, and he didn't," Easterly said of Dominguez.
The sheriff could not be reached Thursday for comment. He said earlier this week that he refuses to seal the wells because the state first should perform further testing. The sheriff said the cyanide vapors are more detectable during warm weather months.
IDEM also has lectured the sheriff on getting involved in environmental law enforcement. The state agency obtained a legal opinion from the Indiana attorney general's office contending that state law gives IDEM almost complete authority to regulate and enforce state environmental laws, pre-empting county enforcement actions. [ILB - This opinion is not on the AG's web site]
The sheriff said earlier this week the constitution and county ordinance give him the authority he needs in this case.
LOWELL -- The Feddeler landfill is fenced in and quiet now, but the political turf war over the environmental safety of the former dumping site grows louder by the day.The meeting was yesterday, Oct. 4th. This afternnon, just a few minutes ago the Governor's office posted this release:
On Tuesday, Lake County Sheriff Roy Dominguez requested a meeting with Gov. Mitch Daniels in an attempt to overcome what the sheriff sees as gamesmanship by the Indiana Department of Environmental Management.
IDEM has threatened to fine the sheriff's department $25,000 per day unless the county repairs wells dug by county environmental contractors at the Feddeler site.
The state agency says the wells pose a threat to the groundwater around the landfill north of Indiana 2 near Lowell.
IDEM also has accused the county of overstepping its authority on environmental matters when Dominguez and Prosecutor Bernard Carter formed a joint Lake County Environmental Law Enforcement Task Force in November 2005 and started investigating polluters.
The sheriff thinks state officials resent the fact the county has taken the lead on dealing with the potentially dangerous landfill after IDEM neglected it.
"They should have been more aggressive and vigilant on Feddeler," Dominguez said. "Now we have gotten involved and they don't like it."
Dominguez said he hopes the governor can step in and refocus the Feddeler discussion on making sure people who live near it are safe.
"I find it ironic the state has targeted me, rather than the polluters," the sheriff said.
Earl Goode, Governor Mitch Daniels’ chief of staff, and Lake County Sheriff Roy Dominguez met in Indianapolis on October 4 to discuss matters related to the Feddeler Landfill in Lowell. Goode sent a follow-up letter to the sheriff today to summarize the meeting. The text of the letter is below:The ILB has posted plenty of earlier stories on the Feddeler Landfill, going back to 2004. See the list here.
Dear Sheriff Dominguez,
Thank you for taking time to travel to Indianapolis to discuss the environmental concerns surrounding the Feddeler Landfill in Lowell. Our meeting was productive and I’m pleased that everyone pledged continuing efforts to strengthen our relationship.
Governor Daniels and the Indiana Department of Environmental Management (IDEM) share your concern for public safety at and around the landfill. Since 2004, IDEM has regularly monitored and tested the ground water to determine if pollution is escaping from the site. The results, along with tests conducted by the United State Environmental Protection Agency, show the landfill is not harming surface or ground water, nor is it releasing toxic gas.
Based on this scientific data, it is very important that your office and the state agree that the landfill does not pose a public health threat. Additional work on the protective cap is underway to make the site even safer. To further assure Lake County residents, additional testing will be done under conditions similar to when the county’s contractor identified possible toxic gas.
Please let Lake County residents know that IDEM and the Indiana Attorney General instituted a civil action, in 2006, against the landfill’s owners to force compliance with requirements for capping and monitoring the site. IDEM will continue to lead efforts to monitor the site and pursue financial damages against the owners.
Again, thank you for taking time to work with us to resolve apparent misunderstandings. We look forward to continued progress and welcome your support of IDEM’s efforts to properly close the landfill. I trust you will let us know of any concerns or questions you may have.
Earl A. Goode
Chief of Staff
Courts - Updating "McDonald's sanctioned in strip-search case"
"Ogborn awarded $6.1 million in strip-search hoax in Kentucky case against McDonald's" is the headline of a story posted this afternoon by the Louisville Courier Journal. Andrew Wolfson reports:
A Bullitt County jury has found McDonald's Corp. liable in Louise Ogborn's hoax strip-search suit. Ogborn was awarded compensatory damages of over $1 million and punitive damages of $5 million.See a list of earlier ILB entries here.
Ogborn, 21, erupted into tears when the verdict was announced and hugged her mother and grandparents.
She told reporters she felt relieved the case was over and plans to use the money to go to law school.
“She wants to right wrongs,” said her lead counsel, Ann Oldfather.
Ogborn had sought $200 million, but Oldfather called the verdict a “resounding vindication” and a “total rejection” of McDonald’s claim it had no responsibility for Ogborn’s ordeal and that of victims of strip search hoaxes at 40 of its other restaurants.
“We think this is a great day for employee safety in Kentucky,” Oldfather said. “When McDonald’s has to choose between its brand image and employee safety, they had better choose employee safety.” * * *
The jurors divided the blame equally for the incident between McDonald's and the hoax caller who pretended he was a police officer.
Ind. Decisions - Transfer list for week ending October 5, 2007
Here is the Indiana Supreme Court's transfer list for the week ending October 5, 2007.
There was one transfer granted this week, summarized in this entry from earlier today.
Courts - "Oyez Releases Oral Arguments for 2006-07 Term"
This is exciting. The SCOTUS Blog announced this afternoon that "Earlier today, the Oyez Project made available audio files of all Supreme Court oral arguments from the October 2006 term."
So the ILB took a look at the Oyez page cited. Not only can you readily listen to every oral argument from last term, either online or you can download it as as MP3, BUT you can also do the same for the announcements of decisions on Decision Day.
The ILB never knew before that these announcements are available. Take a listen to one of the more contentious ones. I picked the Ledbetter decision, where Justice Alito delivers his summary of the majority opinion, and Justice Ginsburg delivers the dissent. Others that immediately come to mind of interest would be Gonzales v. Planned Parenthood and Parents Involved in Community Schools v. Seattle School District No.1.
Law - "In Age-Bias Suit, Sidley To Pay Ex-Partners $27.5 Million"
So reports Peter Lattman in the WSJ Law Blog this afternoon. Some quotes:
In a case closely followed by the legal community, Sidley will pay $27.5 million to 32 former partners who the EEOC alleged were forced out of the partnership because of their age, under a consent decree approved by a federal judge.
“This settlement puts the cost, time and distraction of this litigation behind us,” said the firm to the Chicago Tribune. “Moreover, continuing litigation with the EEOC would have placed us in an adversarial position with former partners.”
The partners were expelled from the partnership in connection with an October 1999 reorganization or retired under the firm’s age-based retirement policy. The median payment is $875,572. The highest payment to any former partner will be $1,835,510, and the lowest payment $122,169.
The EEOC brought the suit in 2005 under the Age Discrimination in Employment Act. At issue: whether partners in the law firm were protected as employees under the ADEA. The decree provides that “Sidley agrees that each person for whom EEOC has sought relief in this matter was an employee with the meaning of the ADEA.”
The consent decree also includes an injunction that bars the law firm from “terminating, expelling, retiring, reducing the compensation of or otherwise adversely changing the partnership status of a partner because of age” or “maintaining any formal or informal policy or practice requiring retirement as a partner or requiring permission to continue as a partner once the partner has reached a certain age.”
Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
In Termination of the Parent-Child Relationship of T.H.; Tyrone Blue v. Marion County Department of Child Services and Child Advocates, Inc. (NFP), a 12-page opinion, Judge Robb writes:
Tyrone Blue appeals the trial court’s involuntary termination of his parent-child relationship with T.H., his alleged minor child.1 On appeal, Blue raises two issues, which we restate as 1) whether sufficient evidence supports the trial court’s conclusions that the conditions resulting in T.H.’s removal from Blue’s custody will not be remedied and that continuation of the parent-child relationship poses a threat to T.H.’s well-being; and 2) whether the guardian ad litem’s performance denied Blue due process. We affirm, concluding sufficient evidence supports the trial court’s conclusions and the guardian ad litem’s performance did not deny Blue due process. * * *NFP criminal opinions today (0):
Sufficient evidence supports the trial court’s findings that the conditions resulting in T.H.’s removal from Blue’s custody will not be remedied and that continuation of the parent-child relationship poses a threat to T.H.’s well-being. Moreover, the guardian ad litem’s performance did not deny Blue due process. Affirmed.
Ind. Law - More on sex offender prohibitions
"When Dad has a past, can he go to his child's school program?" is the headline to this story today in the Huntington Herald-Press:
Huntington County's schools may not have specific policies pertaining to sex offenders, but they are still taking measures to ensure the safety of their students.
“When we find out about an offender linked to one of our students as a parent, a meeting is scheduled with the family and the building principal of that school,” said Tracey Shafer, superintendent of the Huntington County Community Schools
The purpose of these meetings is to discuss how much access the offender will have to their child's school.
Rather than impose policies that close the door on sex offenders, Shafer said, he prefers to handle each one individually - and with close supervision.
Offenders who wish to visit the school or talk to their child will be monitored at all times, he said. They must check in at the office and be escorted by a teacher or the building principal while they are in the school.
“A known offender can come into the school to see their child but it must be a supervised situation,” Shafer said.
The school corporation also takes further safety precautions by performing background checks on anyone who wants to become a volunteer.
“These checks help us to screen anyone who could be potentially harmful to our students,” Shafer said.
Ind. Decisions - Court grants one transfer this week
The formal transfer list will follow later today, but only one case was granted transfer this week, State v. Karl D. Jackson. A number of criminal cases were denied transfer.
Here is the April 22, 2007 ILB summary of the Jackson opinion:
In State of Indiana v. Karl D. Jackson , an 18-page opinion, Judge Robb concludes:
We conclude that the OWHTV statute requires that the defendant have actual knowledge that his or her license has been suspended because that person has been determined to be an HTV (Habitual Traffic Violator). We further hold that the trial court did not abuse its discretion in finding that Jackson rebutted this presumption, notwithstanding the fact that Jackson failed to comply with the statutory requirement that he notify the BMV of a change in address. Affirmed.
Ind. Decisions - Yet more on: U.S. Supreme Court hears Lake County definition of "money laundering" case
U.S. Supreme Court justices are mulling the question of whether East Chicago's bolita was simply an illegal lottery or a more sinister and organized criminal enterprise that used money laundering to promote its success and conceal it from police.
Federal prosecutors want the high court, which began hearing oral arguments in the case Wednesday, to declare Efrain Santos -- better known as "Puerto Rican Frankie" -- guilty of being both a gambler and a money launderer.
The U.S. attorney's office proved to a Hammond federal jury 10 years ago that Santos raked in $1.7 million in profits by selling bolita lottery-like tickets to customers patronizing East Chicago taverns from 1989 to 1994.
U.S. District Court Judge James Moody sentenced Santos to five years in prison for illegal gambling.
Moody gave Santos an additional sentence of 17.5 years for money laundering for payments Santos made to runners who collected bets and delivered winnings.
Typically, the crime of money laundering is defined as concealing the profits of criminal activity as legitimate income, but another provision in that law also makes it illegal to spend the proceeds of a crime to ensure the success of a continuing criminal enterprise.
Federal prosecutors argued that paying the runners promoted the bolita game and was money laundering.
However, Moody reversed himself in 2004, overturned Santos' money laundering conviction and freed Santos from serving the remainder of his prison sentence.
The federal government asked the U.S. Supreme Court on Wednesday to reinstate the money laundering conviction. It is unclear whether Santos would have to return to prison if the government prevails.
Santos' attorney, Todd G. Vare, of Indianapolis, argued Wednesday that payments to the runners were an essential part of gambling and not a separate crime.
Justice Antonin Scalia seemed to agree with Santos' attorney.
"I think it ... extraordinary ... that Congress would want to make all betting operations like this a violation automatically of two criminal statutes," Scalia said.
Justice Ruth Bader Ginsburg said, "It's hard to see this ... just in the sense of laundering. Nothing is being concealed."
The justices debated whether the money laundering law applies to financial transactions involving any money Santos' bolita game brought in or only financial transactions involving the profits -- money left over after Santos paid his runners.
Ind. Courts - Supreme Court justices to hear workplace bullying case in Evansville
We have gotten accustomed to Court of Appeals panels hearing oral arguments outside Indianapolis, but it is a rarity for the Supreme Court. Today Bryan Corbin of the Evansvlle Courier & Press reports:
Evansville residents will get to see their Indiana Supreme Court in action when the five justices travel to Evansville's Civic Center to hear a workplace-bullying case Wednesday.The ILB has had a number of entries on this case - access them here.
The high court usually hears cases in an ornate courtroom in the Statehouse in Indianapolis.
Occasionally, as a public-outreach measure, the justices will convene court in other cities. Evansville is the hometown of Chief Justice Randall Shepard, who was once a Vanderburgh County judge.
The Court will be in session at 3 p.m. Wednesday in Room 301 of the Civic Center.
The public is invited to attend and hear the attorneys' arguments, which are expected to last about 40 minutes. The justices will then field questions from the audience.
The case is an appeal of a lawsuit originally filed in Marion County between two medical professionals who worked at St. Francis Hospitals in Indianapolis. Joseph E. Doescher was chief perfusionist at the hospital, in charge of operating a heart-lung machine that keeps patients alive during open-heart surgery. Dr. Daniel H. Raess is a heart surgeon.
Dispute started in 2001
According to court records, the dispute began in October 2001 when Doescher had to be absent because of personal business, and lining up a replacement delayed Raess from performing an emergency heart surgery — prompting an outburst by Raess at co-workers.
Doescher alleged that days later, Raess confronted him about the absence and they argued. Doescher claimed Raess had his fists at his sides and yelled, "You're over. You're history. You're finished," court records said.
Doescher claimed he suffered such anxiety and depression from the confrontation that he could not return to work. Doescher sued Raess for assault and intentional infliction of emotional distress. A Marion County Superior Court jury sided with Doescher on the assault count, awarding him $325,000 in damages.
Raess appealed, and the Indiana Court of Appeals reversed the verdict and ordered a new trial. Doescher now has appealed that ruling up to the Supreme Court, seeking to get the appeals court decision overturned so that the earlier verdict and damages would stand.
Previously, the Indiana Court of Appeals found that the trial court judge made two errors: by improperly allowing one of Doescher's expert witnesses to testify that Raess was a "workplace abuser" and the altercation "an episode of workplace bullying," and by improperly refusing to read jurors a jury instruction Raess had requested. The Indiana Supreme Court will consider those same issues.
Thursday, October 04, 2007
Ind. Decisions - Court of Appeals issues 1 today (and 1 NFP)
The ILB is running a little late today, but that may be all to the good. A for publication opinion posted by the Court earlier today, Citizens Gas & Coke Utility v. Local Union No. 1400, International Brotherhood of Electrical Workers (still available at this link), upholding an arbitration award, has been removed from the Court's list of opinions. Don't know right now what that means, perhaps nothing other than that a typo is being corrected
For publication opinions today (
[See note, above]
[Later - 3:50 PM] OK, now it is back with the same URL:
in Citizens Gas & Coke Utility v. Local Union No. 1400, International Brotherhood of Electrical Workers, a 21-page opinion, Judge Vaidik writes in her case summary:
Citizens Gas & Coke Utility (“Citizens”) appeals the trial court’s denial of its Verified Complaint and Application to Vacate Arbitration Award or, in the Alternative, for Modification or Correction of Award (“Application to Vacate or Modify Award”). Citizens maintains that Arbitrator Cynthia Stanley (“Arbitrator Stanley”) exceeded her powers by considering an unwritten attendance policy requiring progressive discipline in determining that Mr. Russell Hilt (“Mr. Hilt”) was unjustly terminated. Additionally, Citizens contends that Arbitrator Stanley exceeded her powers by awarding Mr. Hilt’s widow $75,000.00 based upon Prudential Insurance Company of America’s (“Prudential”) life insurance policy. Finally, Citizens argues that Arbitrator Stanley wrongfully refused to hear evidence material to the controversy.NFP civil opinions today (0):
Concluding that Arbitrator Stanley did not exceed her powers by considering an unwritten attendance policy requiring progressive discipline, did not exceed her powers by awarding $75,000.00 based upon Prudential’s life insurance policy, and did not wrongfully refuse to hear evidence material to the controversy, we affirm the judgment of the trial court. * * *
ROBB, J., concurs. SULLIVAN, Sr. J., concurs with separate opinion [beginning on p. 19].
NFP criminal opinions today (1):
Ind. Courts - Caseload of Jasper County Circuit Court judge continues to grow
Sherri Morrison, staff writer for the Kankakee Valley Post-News, has a Q & A today with Jasper County Circuit Court Judge John Potter, focusing on juvenile cases. Some quotes:
In 2003 there were 153 total juvenile cases seen by the court in Jasper County. In 2006, that number more than doubled to 354 juvenile cases. With Jasper County's population growing at a rapid rate, the caseload of Circuit Court Judge John Potter continues to increase also. With no facility in Jasper County to house juvenile offenders, the courts are working to come up with effective solutions to handle the growing problem.
Q. What type of cases do you usually see in juvenile court?
A. Primarily two types. Welfare cases in which children are being taken away from their parents and delinquency cases which are kids in trouble. * * *
Q. Is there some type of child advocate in the court system for these neglected or abused children?
A. We do not have a child advocate now but we are in the process budgeting a child advocate for next year. The state is required us to do so. The county pledged $12,000.00 which the state will match. The program is called CASA (Court appointed special advocate). These are volunteers who are trained to help these children.
Q. Do you see many welfare cases where children are being neglected or abused in Jasper County?
A. There are approximately 60 children removed from their homes in Jasper County right now. That does not include children who have been placed with other family members such as grandparents, aunts, etc. * * *
Q. What solutions to the rising caseload have you come up with?
A. What we have discovered is “if you're sweating and tired from working, you may not get in as much trouble.” The problem was we had 1000's of hours for juveniles to do community service with no place to send them.
Q. What was the problem?
A. Businesses and municipalities were afraid of the liability and didn't have the manpower to supervise.
Q. How did you resolve this issue?
A. We hired a college student, Joe Gudeman to coordinate juvenile community service hours with off-duty police and correctional officers to supervise these offenders. The off-duty officers were then paid with the probation user fees issued to the juvenile offenders. Gudeman exceeded our expectations and over 2000 community service hours were used by municipalities, parks, churches, Jasper County Hospital and cemeteries all over Jasper County. This was our first year doing this and we plan on doing it again next year.
Q. What about those serious or repeat offenders?
A. Since we do not have a juvenile facility in Jasper County, we rent out bed space at Porter County Juvenile Detention Center and space in Muncie, Indiana which is a “military boot camp” type facility. There is also a boys' or girls' school which is, in fact, ran by the Indiana Department of Corrections for serious offenders.
Ind. Courts - Still more on: CASA partners with IRTA
Updating this ILB entry from Tuesday, Bryan Corbin of the Evansville Courier & Press reports today on the court system's the new partnership with the Indiana Retired Teachers Association. Some quotes:
A program started in Evansville years ago to have volunteers advocate in court for abused children has expanded throughout much of the state. With more court cases than volunteers to go around, however, the state is enlisting the help of retired teachers to serve as court-appointed special advocates for victimized children.
Chief Justice Randall Shepard, an Evansville native, as well as state Rep. Dennis Avery, D-Evansville, and Gov. Mitch Daniels unveiled the new partnership with the Indiana Retired Teachers Association on Wednesday. The association is recruiting some of its 23,000 retired teachers — who donated a combined 1 million hours volunteering each of the past three years — to serve as child advocates in the Court Appointed Special Advocates or CASA program. * * *
In some counties, attorneys are appointed as guardians ad litem and paid an average of $50 an hour to represent the abused or neglected children. The court-appointed special advocate program instead uses volunteers who are trained to investigate the case and speak on the child's behalf in court, without pay. * * *
About two-thirds of counties now have CASA programs, Shepard said. Posey County — with approximately 20 cases of children under court intervention — is one that does not. Since the court does not use a CASA program, attorneys are appointed as guardians ad litem. Posey Circuit Court Judge James Redwine, who presides over such cases, was out of the office and unavailable Wednesday, his staff said.
Ind. Decisions - Still more on: U.S. Supreme Court to hear Lake County definition of "money laundering" case
Updating this ILB entry re yesterday's oral arguments before the SCOTUS in the case of United States v. Santos. the Indianapolis Star today has a feature by Jon Murray on the Indianapolis attorney, Todd Vare of Barnes & Thornburg, who argued on behalf of Mr. Santos, headlined "Supreme Court 'intimidating,' but he was ready." Mr. Vare, a patent and IP specialist, handled the case pro bono through a federal court system program, according to the story.
Wednesday, October 03, 2007
Ind. Law - Golf cart use on Bloomfield streets draws town council discussion
In another of the ILB's long list of stories about the legality of golf carts on streets and highways, Timberly Ferree reported Tuesday in the Greene County Daily World:
Discussion turned to the pros and cons of legalizing golf carts on the streets of Bloomfield during its town council meeting on Tuesday.
The topic was brought up by a Bloomfield resident during the meeting's public participation forum.
Town Council President Eric Harrah explained that currently mopeds and scooters can be legally used for transportation within the town limits, but golf carts and four-wheelers are prohibited.
"Probably by not having golf carts we could possibly be penalizing responsible adults because kids who are 14-years old can ride around on a scooter anyway," Harrah explained.
Town Marshal Ken Tharp said that the current town ordinance would allow him to impound a golf cart that was driven within the town limits.
According to state statute, golf carts are considered recreational off-the-road vehicles, Tharp noted.
In the past, Harrah stressed his main concern about legalizing golf carts had a lot to do with non-licensed kids driving them.
The same resident also inquired whether or not golf carts could be driven in the upcoming Apple Festival Parade--which is scheduled for Sunday.
Former Town Marshal Bob Richardson joined the conversation and said, "We've had four-wheelers (in the parade) before."
Tharp then explained, "I think the parade is a special event in town and it would be kind of overlooked…if the Apple Festival approved you to be in the parade then you can be in the parade."
Harrah explained, "I see both sides. I was mostly against it in the past…but only looking at bad things that could happen…"
Council Member Gary Swinney agreed with Harrah and explained that the council's past decision to not allow golf carts on the streets was based entirely upon the cons.
The decision was originally made when Swinney, Harrah and the late Russell Basye made up the council, Swinney noted.
Tharp also stressed that allowing golf carts to be legally driven in town would call for writing a whole new book of codes for violations.
Another con noted by Tharp was possible insurance rate increases.
"I'm looking at the big picture," Tharp added.
Harrah also requested some feedback from those at the meeting.
He asked if those in favor of passing a golf cart ordinance would be willing to pay a registration fee and if so what fee would fee feasible.
The majority of those at the meeting agreed that paying an annual fee would be acceptable. Some suggested that the fee be as low as $25.
Harrah stressed that some towns require an annual fee as high as $140 for golf cart registration.
Some towns also require an annual safety inspection of all golf carts, he said.
No action was taken on the golf cart discussion.
Harrah as well as those in attendance were happy with the matter being brought to the table.
"If you do it (legalize golf carts) do it the right way," Harrah stressed--noting that the discussion was a great opportunity to hear from the public on the idea.
Ind. Courts - Jefferson Circuit Court judge insists on complaints being filed before approving IDEM agreed order
Peggy Vlerebome reports in The Madison Courier, under the heading "IDEM suit against city merely a technicality," that the Indiana Department of Environment has entered into agreed orders with cities throughout the state whereby the municipalities agree to embark on programs to remedy combined sewer overflows (CSOs). When they got to Madison, however:
[T]he judge who had to accept the agreed orders [who the story does not identify by name] said there couldn't be agreed orders without complaints being filed.Confused? Here is more from the story:
So last week the state attorney general's office, on behalf of IDEM, filed 23 complaints across the state, including in Jefferson Circuit Court against Madison. [Emphasis added by ILB]
City officials had not received a copy of a complaint or heard about it until a reporter asked about it at city hall Tuesday.
The mayor called the attorney general's office and left a message, and later the city received a call saying that Madison had not done anything wrong.
That was the word, too, from IDEM.
"It's one of those weird things," IDEM spokesman Steve Polston said about the complaint. "It doesn't signify that anyone's done anything wrong."
The Indiana Department of Environmental Management filed a complaint Thursday in Jefferson Circuit Court against the City of Madison.
But it turned out that the city hadn't done anything wrong.
The complaint said the city continues to pollute the Ohio River and three creeks because of combined sewer overflows. In wet weather, sewage gets into waterways because Madison has an antiquated system whereby sewage and storm runoff travel in the same pipes.
The city has a long-term plan for separating the runoff from the sewage that will take more than five years to complete.
As part of the process for IDEM and the city to agree on what will be done and when, IDEM and the city signed an agreed order for IDEM to file in court.
Courts - Still more on: Outcome of Indiana cert petitions to SCOTUS
Updating this ILB entry from yesterday on the two Indiana cases that failed to be granted cert last Monday, Gilles v. Blanchard, and Mayer v. Monroe County, here are two news stories from yesterday on the cases:
From the Chronicle of Higher Education, a story headed "Supreme Court Passes Up Case of Preacher's Restricted Access to Campus."
From the Fort Wayne Journal Gazette, a story by Sylvia Smith headed "Justices let stand firing of teacher."
Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)
For publication opinions today (2):
In Michael Owen Proctor v. State of Indiana , a 6-page opinion, Judge Bradford writes:
Upon appeal, Proctor claims the trial court erred by admitting evidence in violation of his Sixth Amendment right to confrontation pursuant to Crawford v. Washington. * * *In C.L.M. v. State of Indiana , a 9-page opinion, Judge Vaidik writes:
As the United States Supreme Court held in United States v. Owens, 484 U.S. 554, 558 (1988), as long as the declarant testifies, the Confrontation Clause is satisfied, even if the declarant is unable to recall the events in question. * * *
As Sheila was present at trial and responded willingly to questions, we find no Crawford violation in the admission of her taped statement in State’s Exhibit 3. Accordingly, we conclude that Proctor’s challenge to his convictions on the basis of Crawford is without merit.
C.L.M., who was nine years old at the relevant time, appeals his adjudication as a delinquent child for committing what would have constituted Class C felony child molesting if committed by an adult for touching or fondling his three-year-old half-sister with intent to arouse or satisfy his sexual desires. Specifically, he argues that the trial court erred in admitting statements he made to a police officer during an interview at a child advocacy center into evidence because he was in custody and not given a Miranda warning. Finding that the trial court abused its discretion in admitting C.L.M.’s statements into evidence because he was in custody at the time and therefore should have been given a Miranda warning and that the State has not shown that the admission of C.L.M.’s statements did not contribute to his adjudication, we reverse the trial court.NFP civil opinions today (1):
Kenray Association, Inc., et al. v. Hoosier Insurance Company (NFP) - "The claims brought by Kenray’s customer’s fall within the impaired property exclusion to coverage under Hoosier’s claims, and the “sudden and accidental” physical injury exception to this exclusion is inapplicable. Because we conclude that the claims fit within this exception, we need not consider whether they also fit within other exceptions to coverage. The trial court therefore did not err in granting summary judgment in favor of Hoosier. Affirmed."
NFP criminal opinions today (9):
Ind. Decisions - Still more on: U.S. Supreme Court to hear Lake County definition of "money laundering" case
At 11 a.m., the Court is scheduled to hear argument in United States v. Santos (06-1005), asking whether the term “proceeds” in the principal federal money laundering statute refers to total receipts from illegal activity or just the profits. Matthew D. Roberts of the Solicitor General’s office will argue for the petitioner, and Todd G. Vare of Indianapolis, Ind., will argue for the respondent. For a preview of the argument, click here. (SCOTUSwiki)
Courts - Former NY Court's highest judge regains law license
"Sol Wachtler Got His Law License Back" is the headline to this post by Peter Lattman in the WSJ Blog, including links to other stories.
The ILB has covered this story over the years; check here for earlier entries.
Ind. Decisions - "Fired worker blames porn on malware" (malicious software)
A September 26th ruling by Federal District Judge Sarah Evans Barker, in the case of David Farr v. St. Francis Hospital (access the ruling via the ILB here), is the subject of a story today by Declan McCullagh , a writer for CNET News, published both by CNET and here in the New York Times technology section.
According to the opinion, "Plaintiff, David Farr (“Farr”), brought suit against St. Francis, his former employer, after his employment was terminated when St. Francis allegedly discovered pornography on a workplace computer used by Farr." From p. 3 of the opinion:
An expert in computer science retained by Farr has analyzed the material provided by St. Francis and concluded that the pornography was not intentionally downloaded onto the respiratory therapists’ computer; rather, the pornography was retrieved and saved by a computer virus without the computer operator’s knowledge.This is an employment law case and the decision is based on Indiana law. The news story adds context. Both the opinion and the coverage are well worth reading. Judge Barker's opinion concludes:
Despite the reiteration of the narrowness of the public policy exception by the Indiana Supreme Court, Plaintiff implores us to extend the public policy exception to allow a claim for wrongful discharge when an employee is fired out of expediency to cover up an alleged violation of law by the employer. To bolster his argument, Plaintiff claims that his termination contravenes Plaintiff’s “right to live his life free of specious and knowingly false accusations that were designed to hide his employer’s wrongs.” Although it is likely that most people would like to live a life free from specious and false accusations, Plaintiff fails to indicate how such a freedom is clearly secured by statute (specifically, HIPAA). As such, Plaintiff’s proposed extension of Indiana law fails to meet even the minimum requirements of the public policy exception: that termination contravene a clear statutory right or duty. “General expression of public policy do not support new exceptions to the employment-at-will doctrine,” Montgomery, 849 N.E.2d at 1128; accordingly, we decline to extend the public policy exception here and Rule 12(b)(6) dismissal is appropriate.
Ind. Law - Gary ordinance to prohibit use of cell phones while driving
Jon Seidel writes today in the Gary Post-Tribune:
GARY -- A law prohibiting drivers from using their cell phones while behind the wheel on city streets was approved Tuesday night by the Gary City Council.
Originally introduced three months ago, it is the first such law in Northwest Indiana, and it is scheduled to go into effect Jan. 1, 2008. * * *
Under this new ordinance, drivers will be prohibited from using cell phones unless they are using a "hands-free" device, calling 911 or sitting in a parked car.
The law, based on Chicago's ban on driving and dialing, does not apply to police officers or emergency vehicle drivers.
Although it applies to "any street or highway within the city limits," an Indiana State Police spokesman said in July that troopers do not enforce local ordinances while patrolling interstates that weave through Gary.
Those include Interstates 65, 80/94 and the Indiana Toll Road.
Ind. Courts - East Chicago Courthouse to stay, newest judge promises
Teresa Auch reports today in the Gary Post-Tribune:
Calvin Hawkins, newly sworn in as a Lake County Superior judge, already has plans for his office, including keeping it in East Chicago.See an earlier, Sept. 17th ILB on the East Chicago Courthouse here.
"I'll do whatever it takes," he promised the audience Tuesday at his swearing-in.
Hawkins was appointed in August by Gov. Mitch Daniels, who came to the ceremony.
The East Chicago courthouse has the smallest caseload of all the county courthouses, and there has been recent talk of closing the office.
But not only did Hawkins throw his support behind the courthouse, he called for his position to be fully committed to it, instead of also going to the Gary and Hammond courthouses.
"If the judge is not there, the lawyers and people will go elsewhere," he said.
The new judge said he would also support allowing lawyers to file their cases with specific judges, instead of the current random filing system.
Environment - Adinistrative hearing in Indy on BP air variance challenge
The second half of this ILB entry from August 25th includes this quote from a Gary Post-Tribune story by Gitte Laasby:
BP and the Indiana Department of Environmental Management are facing new opposition against BP's air variance.In this Oct. 2 P-T story, Laasby reports:
The City of Chicago, the Illinois Attorney General, the Natural Resources Defense Council and the Environmental Law and Policy Center filed a petition Friday for administrative review of the air variance IDEM Commissioner Tom Easterly granted BP on July 5. * * *
DEM argued that the Office of Environmental Adjudication (OEA) should reject Illinois' petition because it was incomplete.
Illinois countered that rejecting the petition would prevent a "meaningful public review of IDEM's decision."
An OEA environmental judge is expected to respond in the coming weeks.
An environmental law judge plans to decide at the end of October or early November whether an Illinois appeal of BP's air variance will move forward.
Mary Davidsen, chief environmental law judge with the Office of Environmental Adjudication (OEA) heard oral arguments in Indianapolis on Monday from BP, the Indiana Department of Environmental Management and a group of Illinois petitioners, including the Illinois Attorney General, the city of Chicago, the Natural Resources Defense Council and the Environmental Law and Policy Center.
The Illinois petitioners want the OEA to review IDEM's decision in July to grant BP the variance, which allows the company to continue to emit the same amount of tiny particles into the air rather than reducing emissions by about half.
IDEM and BP have argued that the Illinois parties submitted an incomplete petition, and that a judge should not have agreed to hear the case.
Ind. Courts - Still more on: "A judge has ordered a defendant to 'return to the South Bend Tribune and admit that he lied' to a reporter."
As a judge recently advised him to do, a man charged with having sex with a 15-year-old girl walked into The Tribune newsroom Monday and said he lied to a Tribune reporter when he said he had never touched the girl in a sexual manner. * * *
Legal experts contacted for comment Monday said they had never before seen such a case.
"No, the whole thing is strange," said Craig Bradley, professor at the Indiana University School of Law in Bloomington. "It kind of puts (The Tribune) in an awkward position. You want to report the news; you don't want to be the news."
Steve Key, legal counsel for the Hoosier State Press Association, agreed.
"I've been with HSPA since 1993 and I don't know that I've run across a situation where a criminal defendant has come into a newsroom and retracted his story that claimed his innocence," Key said. "I would say that's very rare."
Bradley noted that the U.S. Supreme Court, in a 1970 ruling, held that a defendant may plead guilty to a crime while professing their innocence. Such a plea, known as an "Alford plea," is allowed in federal courts and in many states, including the four that border Indiana.
But Indiana has not allowed Alford pleas since a state Supreme Court ruling in 1953.
Sheneman was initially charged with sexual misconduct with a minor as a Class A felony, which involves intercourse. Under the plea agreement, he would avoid prison time in exchange for testifying against Tyrone Vaughn, a former tenant of Sheneman's who has been charged with sending the girl to Sheneman.
Frese has yet to act on Sheneman's plea agreement and has said he won't do so until after Sheneman testifies against Vaughn. Sheneman is due to appear before Frese again on Oct. 8.
After Sheneman read his brief statement to The Tribune on Monday, McLaughlin said he felt his client had complied with Frese's order, and neither he nor Sheneman would comment further.
A Tribune editor then told Sheneman that if he wanted to talk about the case in the future, he knew how to contact the newspaper.
"It gets me in trouble, because -- " Sheneman started, before his attorney gestured to his client to stop talking.
Ind. Decisions - "Seventh Expands Terry Frisks"
Tuesday, October 02, 2007
Courts - More on: Outcome of Indiana cert petitions to SCOTUS
In this ILB entry from Sept. 25, and this ILB entry from Sept. 22, background was given on three 7th Circuit opinions in Indiana cases that were on the list of cases to be considered for cert at the conference of the SCOTUS on Monday, Sept. 24th:
- Gilles v. Blanchard, et al., a case involving religious speech on a public university campus - Vincennes Unniversity.
- Mayer, Deborah v. Monroe County - "Honk for peace" case
- Crawford v. Marion County Election Board/Democtratic Party v. Rokita - voter ID case
This SCOTUS Blog entry states that:
Three cases that were slated for consideration at last Monday’s conference have been re-listed for the upcoming conference on Friday, October 5.But neither the Vincennes University case nor the "Honk for Peace" case are among them. Instead, both cases have now been formally denied Supreme Court review, meaning the 7th Circuit's rulings stand.
Ind. Courts - More on: CASA partners with IRTA
The Indiana Retired Teachers Association has chosen the Indiana Supreme Court’s Guardian Ad Litem/Court Appointed Special Advocate program as its members’ special volunteer project. They will link IRTA members across the state with volunteer opportunities with GAL/CASA. The IRTA has 23,000 members. Indiana law requires the appointment of a guardian ad litem or court appointed special advocate in child abuse and neglect cases so one party is focused exclusively on the child.A "Launch of new partnership between the Indiana Supreme Court’s Guardian Ad Litem/Court Appointed Special Advocate Program and the Indiana Retired Teachers Association that will benefit abused/neglected children across Indiana." will occur at 10 AM Wed., Oct. 3, 2007 in the Supreme Court Courtroom and will be webcast live.
Ind. Decisions - Court of Appeals issues 1 today (and 11 NFP)
For publication opinions today (1):
In Nathan D. Feeney v. State of Indiana , a 9-page opinion, Judge Vaidik writes:
Nathan Feeney (“Feeney”) appeals his cumulative forty-year sentence for his convictions on ten counts of burglary as a Class B felony, which consists of four consecutive and six concurrent ten-year sentences. He contends that the sentence is inappropriate in light of the nature of his offenses and his character under Indiana Appellate Rule 7(B). We agree and therefore revise Feeney’s sentence to fourteen years, with ten years executed in the Indiana Department of Correction, two years served with Tippecanoe County Community Corrections, and two years on supervised probation. * * *NFP civil opinions today (4):
Of greater concern to us is Feeney’s young age and complete lack of juvenile delinquency adjudications and adult criminal convictions. * * * Feeney is certainly a young man in need of reformation, but a forty-year sentence is unduly harsh under the circumstances. Even if Feeney were to behave himself while incarcerated, he could still be in prison well into his late thirties, where, as his counsel states, he may very well end up under the tutelage of experienced criminals. We therefore find it appropriate to revise Feeney’s sentence to fourteen years, with ten years executed in the Indiana Department of Correction, two years served with Tippecanoe County Community Corrections, and two years on supervised probation. Reversed.
ROBB J., concurs.
SULLIVAN, Sr. J., concurs with separate opinion. [which states in part] I do however agree that the court did not use a free-standing “additional” aggravator as the basis for imposing consecutive sentences. The court utilized the “sheer number of burglaries” both as an aggravating circumstance in its balancing process and then re-used the same aggravator to impose consecutive sentences.
Tracy Denny v. Donald Meade (NFP) - "Where injury to the property is permanent, the appropriate measure of damages is the difference between the fair market value of the property prior to and after the injury. Id. As a general rule, permanent injury occurs when the cost of restoration of the property to its pre-injury condition exceeds the market value of the real estate prior to injury. Neal v. Bullock, 538 N.E.2d 308, 309 (Ind. Ct. App. 1989). A temporary injury is one which is not defined as permanent. Id. In cases where the injury is temporary or repairable, the measure of damages is the cost of repair. Warrick County v. Waste Management of Evansville, 732 N.E.2d 1255, 1258 (Ind. Ct. App. 2000). * * *
"We reverse and remand with instructions that the trial court grant Denny’s request for a new hearing on damages. In this new hearing, the parties may present evidence of loss of use, restoration, and any other damages occasioned by the continuing nature of Denny’s nuisance."
Quail Run Associates v. B. Steve Hancher (NFP) - "Respondent/Appellant Quail Run Associates Limited Partnership (“Quail Run”) appeals from the Indiana Civil Rights Commission’s (“Commission”) decision in favor of Complainant/Appellee B. Steve Hancher (“Hancher”). We reverse and remand with instructions."
In Re The Adoption of A.S. and O.S.; Scott Spencer v. Jeromy Hileman (NFP) - "Scott Spencer (“Father”) appeals the trial court’s order granting the petitions for adoption filed by Jeromy Hileman (“Stepfather”). We reverse."
In Christine and Lloyd Overton v. Marshall Grillo, M.D. (NFP), a 12-page opinion, Judge Darden writes:
Christine Overton (“Christine”) and Lloyd Overton, individually and as husband and wife (collectively, “Overton”), appeal the trial court’s order granting the motion for summary judgment of Marshall Grillo, D.O., against whom they brought an action alleging that Dr. Grillo had negligently failed to detect the presence of a cancerous lesion in Christine’s right breast when he reviewed a film of her bilateral mammography. We reverse.NFP criminal opinions today (7):
Issue. Whether the trial court erred when it found that the two-year statute of limitations barred Overton's claim and, therefore, granted Dr. Grillo’s motion for summary judgment. * * *
Thus, the question remains: on October 2, 2000, did Christine have “enough information that would lead a reasonably diligent person” to discover the existence of malpractice?
Based upon the evidence designated to the trial court, we find that whether the fact of Christine’s diagnosis in October of 2000, without more, was knowledge sufficient to lead a reasonably diligent person to discover there had been malpractice by Dr. Grillo is a question of disputed fact. Therefore, the trial court erred in granting Dr. Grillo’s motion for summary judgment based upon his statute of limitations defense. Reversed.
BAKER, C.J., concurs.
ROBB, J., concurs in result with separate opinion. [which concludes] I do not believe that we should place the burden of medical knowledge on the patient, but rather on the trained medical professionals on whom we should be able to rely. Therefore, I would hold as a matter of law that Christine did not discover the alleged malpractice until more than two years after it occurred and reverse summary judgment on that basis.
Ind. Courts - "Hawkins to be sworn in as judge in Lake County civil court"
The Huntington County Herald-Press reports:
A 1967 Huntington College graduate will be sworn in Tuesday as a judge in the Civil Division of the Lake County Superior Court.
Calvin Hawkins, a resident of Gary, will succeed Judge Robert A. Pete, who died on March 6.
The ceremony will take place at 2:30 p.m. in the East Chicago Courthouse.
Huntington University President Dr. G. Blair Dowden will offer greetings, while Gov. Mitch Daniels will officiate the ceremony.
In addition to his undergraduate degree from Huntington, Hawkins earned a law degree from Howard University and a master of divinity degree from Wesley Theological Seminary. * * *
Hawkins has spent his life as a private attorney in Gary, specializing in civil and church litigation, bankruptcy law, probate and family law. He is also a member of the Gary Police Civil Service Commission.
Ind. Courts - Elkhart Superior Court judge won't seek reelection
The Elkhart Truth reports today (registration required):
James Rieckhoff, longtime judge of Elkhart Superior Court No. 5, won't seek re-election next year, paving the way for a new face in the local judiciary.
"I still have the interest, the energy and the enthusiasm to continue serving," he said Monday in a press release. "But I would like to spend more time with my family members and to engage in some additional non-judicial activities."
Rieckhoff, a Republican, started his career as judge on Feb. 22, 1982, after Gov. Robert Orr appointed him to the post. He has been re-elected four times since.
Though the election to fill his slot isn't until next year, Rieckhoff, in making Monday's announcement, said he wanted to give would-be candidates as much time as possible to prepare their campaigns. Superior Court No. 5 handles both criminal and civil cases.
Courts - "Judicial mandate not popular device"
"Judicial mandate not popular device" is the headline to an editorial today in the Goshen News:
Mention a judicial mandate to a county council member and it is guaranteed to cause an increase in blood pressure.For more on the Supreme Court's decision in the Montgomery Conty mandate case, start with this ILB entry from Sept. 28th.
A judicial mandate ordering pay hikes for court employees in Montgomery County was recently upheld by the Indiana Supreme Court, which again confirms the legality of the action.
But that doesn’t make it any more palatable for other county officials. Just because a judge can issue a mandate doesn’t mean he should do it.
Consider the Montgomery County case. The judges said they were losing staff to higher-paying jobs, but county officials said they couldn’t afford the raises. The County Council had cut $1.2 million from the budget.
Yet the judicial power of the state reaches from the Supreme Court at the state level all the way to the courts of general jurisdiction at the local level. So even though staffers who work for the courts are considered county employees, their pay can’t be controlled by the county council. * * *
A judicial mandate is a device that should be used sparingly, if at all. If a need is compelling, judges should be able to draw on their background of advocacy to persuade county officials to go along with the request.
Ind. Courts - More on: "A judge has ordered a defendant to 'return to the South Bend Tribune and admit that he lied' to a reporter."
A man walked into the newsroom of the South Bend Tribune under a court order today and admitted lying to a reporter when he denied having sexual contact with a 15-year-old girl.
Michael P. Sheneman, 56, pleaded guilty on June 4 to fondling the girl but denied the charge in an interview with a Tribune reporter for a story two weeks later.
St. Joseph Superior Judge Jerome Frese chastised Sheneman during a hearing last month, telling him that his conflicting stories had cast the criminal justice system in a bad light and ordering him to return to the newspaper to admit that he had lied.
Ind. Courts - "Donors wanted for $500,000 decorative Randolph County Courthouse roof"
Joy Leiker reports today in the Muncie Star-Press about the Randolph County Courthouse, until recently slated for demolition. Some quotes:
WINCHESTER — More than 50 years ago, the clock tower and decorative mansard roof were ripped off the top of the Randolph County Courthouse.
To some, it was one of the biggest mistakes of the century, a mistake preservationists didn’t want repeated with the demolition of the entire building.
The courthouse now is safe, and plans for renovations and an expansion are ongoing. With two historic-minded members leading the board of county commissioners, Randolph County now might be on its way to correcting the roof destruction that took place in 1954.
On Monday, commissioners took their first look at two drawings of replacement decorative roofs. One is a bit more detailed than the other, but both feature mansard roofs and a tall clock to be built on top of the tower, which will hold a new elevator.
And though Commissioners Dave Lenkensdofer and Kathy Beumer both expressed their delight with the drawings, that doesn’t change the fact the county has no intention of paying for the roof and clock tower. (The third member of the commission, Ron Chalfant, was absent Monday.) * * *
A committee of residents — including many who spearheaded the popular nearly naked Courthouse Girls calendars of 2006 and 2007 — is working to raise money to pay for the decorative elements. Larry Francer of Farmland, the man who led the calendar effort, asked commissioners Monday for permission to hold a fund-raiser later this month in the former county home.
Ron Ross, of the engineering and architectural firm Martin Riley, estimated those roof details would cost about $500,000.
That price is on top of the $7 million estimate for the rest of the work at the courthouse, which includes a two-story annex to be built on the south side of the existing building.
Ind. Courts - "Timothy M. Morrison begins serving as acting U.S. state's attorney for the Southern District of Indiana this week"
Kate Braser's report today in the Evansville Courier & Press continues:
On Monday, the Bloomington, Ind., resident stepped into the role, taking over as the federal district's chief law enforcement officer.
His appointment comes in the wake of an announcement by former U.S. States Attorney Susan Brooks, who said last month she was leaving the Southern District of Indiana position after nearly six years to serve a dual role as general counsel and vice president of workforce development at Ivy Tech.
Morrison, 58, will oversee federal law enforcement for the state's southern 60 counties. He will be in charge of a staff of 30 lawyers and another 40 professionals.
He has served as the First Assistant United States Attorney for the Southern District of Indiana for the past 19 years. During that time, he has served twice before as interim U.S. Attorney. * * *
Morrison said it is unlikely Bush will appoint a U.S. Attorney for the district before his term expires.
According to federal guidelines, Morrison became acting U.S. Attorney after Brooks left because he was second in command. Morrison said he can serve in this role for 210 days. After that period, the Department of Justice can appoint an interim U.S. Attorney to serve for 120 days. After the 120 days, district court judges can select a replacement until the president appoints a new one. * * *
Morrison is a 1974 graduate of the Indiana University School of Law in Bloomington and previously worked as a supervising deputy prosecuting attorney in both Marion and Monroe counties, serving as chief deputy in Monroe County between 1975 and 1981.
Monday, October 01, 2007
Courts - Cameras in the courtroom
Definitely worth watching, the 2 hour and 30 minute U.S. House Judiciary Committee Hearing on Cameras in Federal Courts, via C-SPAN, which took place 9/27/07. Much mention is made of the state courts' having figured out how to successfully allow cameras in their trial courts in nearly all states, while the federal courts lag behind. Right now it is listed on this C-SPAN page, under "Recent Programs."
Courts - SCOTUS declines to hear challenge to Zyprexa patent
Updating this Dec. 27, 2006 ILB entry, headed "Lilly wins major Zyprexa patent case," (and including a link to the United States Court of Appeals for the Federal Circuit 23-page opinion in the case of Eli Lilly v. Zenith Goldline Pharmaceuticals), the Indianapolis Star's Maureen Groppe reports today that:
The Supreme Court has declined to hear a patent challenge to Zyprexa, the world's top selling schizophrenia drug and the top revenue-generating drug of Eli Lilly and Co.See also this ILB entry from Jan. 2, 2007.
The court without comment Monday let stand a federal appeals court ruling that Lilly's patent is valid.
Courts - "A guide to key cases on the Supreme Court's 2007-2008 docket"
From the Washington Post, a very nice "A guide to key cases on the Supreme Court's 2007-2008 docket" that begins with the Indiana voter ID case.
Ind. Decisions - 7th Circuit decides one Indiana case today
In Hunt Construction v. Allianz Global Risks (SD Ind., Judge Tinder), a 13-page opinion by Judge Poser, the trial court is reversed. Judge Posner:
Hunt, a construction company, brought this diversity suit governed by Michigan law against the Allianz insurance company, and appeals from the grant of summary judgment in favor of Allianz. The district judge’s ground was that Michigan law reads into the insurance policy on which Hunt’s suit is based a oneyear statute of limitations. Hunt contends that the suit is governed by the six-year statute of limitations applicable to contract actions for which no other limitations period is specified. If the longer statute of limitations applies, the suit is timely and the decision of the district court must be reversed. * * *
The judgment is reversed and the case remanded for further proceedings consistent with this opinion.
Ind. Decisions - "Gary gun liability case in court today"
Patrick Guinane of the NWI Times reports today:
The Indiana Court of Appeals will hear arguments this morning in the city of Gary's eight-year battle to hold gunmakers responsible for violence wrought by their products.[For more, scroll down to the next ILB entry.]
Gary, led by then-Mayor Scott King, was among dozens of U.S. cities to file lawsuits against firearm manufacturers and gun dealers in the late 1990s.
The city launched the suit after an undercover investigation in which police officers claiming to be convicted felons were allowed to purchase numerous handguns and ammunition. Gary's suit accused gunmakers of negligently designing and distributing their products and creating a public nuisance in Gary by failing to prevent criminals from obtaining and misusing handguns.
A Lake County judge dismissed the case in 2001. The state Court of Appeals reinstated the nuisance claim a year later, but ultimately ruled against the city. Gary found a more receptive audience with the Indiana Supreme Court, which in 2003 ruled the lawsuit could proceed.
Then the legislative branch got involved. In 2005, Congress approved and President Bush signed the Protection of Lawful Commerce in Arms Act, which shields firearm dealers and manufacturers from being held liable for crimes committed with their products.
A Lake County judge subsequently ruled the new federal law wiped out Gary's claim, but declared the law itself unconstitutional, ruling it infringed on due process rights, violated the separation of powers clause and unfairly applied retroactively.
"That's the only judge in the nation, so far, that has ruled in a case where the (new law) was asserted," said Lawrence Keane, a spokesman for the firearms industry. "Other courts that have adjudicated motions to dismiss, etc., have all concluded that the act is a constitutional exercise of power under the commerce clause by Congress. And we would, of course, agree with that."
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This week's oral arguments before the Court of Appeals that will be webcast:
This Monday, Oct. 1st:
10:00 AM - Smith and Wesson Corporation, et al v. Town of Gary, et al - The City of Gary filed a complaint against a number of manufacturers and distributors of handguns. The City alleged that the manufacturers negligently designed and distributed handguns and created a public nuisance in Gary by failing to take steps to prevent criminals from acquiring and misusing their products. The manufacturers filed a motion to dismiss the City's complaint or for judgment on the pleadings and argued that the Protection of Lawful Commerce in Arms Act ("PLCAA") required dismissal of the case. The trial court found that the PLCAA destroyed the City's cause of action but that the PLCAA was unconstitutional because it: violated the Due Process Clause, constituted an ex post facto law, and violated the separation of powers. On interlocutory appeal, the manufacturers argue that the PLCAA bars the City's lawsuit and that the PLCAA is constitutional. The City argues that the PLCAA does not provide a basis to dismiss this case and that the PLCAA is unconstitutional. The United States of America argues, as an intervenor, that the PLCAA is constitutional.
[For background on this case, see this Sept. 8, 2007 ILB entry, beginning at "And what of Indiana's Gary-based gun suit?"]
Webcasts will be available here.
This week's oral arguments before the Court of Appeals that will NOT be webcast:
This Monday, Oct. 1st:
1:30 PM - Maverick Musser, by his next friends; Mischelle Musser and Michael Musser vs. Daniel A. Roby, David J. Stach and Roby & Hood Law Firm - Maverick Musser, by his parents and next friends, Mischelle and Michael Musser (the Mussers), brought a legal malpractice action against Daniel Roby, David Stach, and Roby & Hood Law Firm (the Law Firm). The Mussers based their claim, in relevant part, upon the Law Firm's failure to properly disclose expert medical witnesses in a federal medical malpractice suit, which resulted in the exclusion of said expert testimony and the grant of summary judgment in favor of their deceased son's medical providers. The Law Firm sought summary judgment on the basis that the Mussers were not injured by the Law Firm's failure to designate certain witnesses (two treating physicians and three nurses) as experts because the Mussers would not have survived summary judgment in the federal case even if said witnesses had been properly designated. The trial court agreed and granted summary judgment in favor of the Law Firm. The Mussers now appeal. The Scheduled Panel Members are: Chief Judge Baker, Judges Friedlander and Crone.
This Wednesday, Oct. 3rd:
10:00 AM [at Sullivan High School, Sullivan, Indiana] - Jeffrey Douglas v. State of Indiana - Jeffrey Douglas pled guilty for failing to register as a sex offender, but challenges his sentence. In 1997, Douglas was convicted and sentenced for sexual misconduct with a minor, as a Class C felony. Douglas initially registered as a sex offender and reported a Madison County address, but moved without notifying or providing local law enforcement with a forwarding address. On appeal, Douglas argues that as applied to him the statute requiring registration by sex offenders is an ex post facto law. Douglas contends that the registration requirement is an additional penalty that did not exist at the time of his conviction, because the statute was modified after he was convicted to include those who committed misconduct with a minor, as a Class C felony. Additionally, Douglas claims that his enhanced sentence violates both the U.S. and Indiana Constitutions and that his sentence is inappropriate in light of the nature of the offense and the character of the offender. The Scheduled Panel Members are: Chief Judge Baker, Judges Bailey and Vaidik.
This Thurssday, Oct. 4th:
11:00 AM [at Indiana State University, Terre Haute, Indiana] - State of Indiana vs. Rex David Delph - The State appeals from the trial court's dismissal of all charges against Rex David Delph, who was accused of setting his home on fire, resulting in the deaths of his wife and son. The State had charged Delph with two counts of murder, Class A felony arson, and two counts of felony murder. The trial court, however, dismissed all charges against Delph on the basis that the State had failed to bring him to trial in a timely fashion, thereby violating his constitutional right to a speedy trial. The Scheduled Panel Members are: Judges Riley, Robb and Bradford
Courts - The First Monday in October
Today is of course the first Monday in October and the Supreme Court of the United States is beginning a new term.
Here, via the Washington Post, is the Court's schedule for this week.
And, to keep on top of everything, check the SCOTUS Blog.