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Monday, November 05, 2007

Ind. Courts - "Magistrate fired after dispute with judge"

Vince Luecke reports in today's Perry County News:

TELL CITY - A dramatic clash Tuesday between Judge Lucy Goffinet and Jonathan Parkhurst, the county's appointed magistrate, over how to reduce the number of prisoners in the county jail led to Parkhurst's dismissal the next day.

Goffinet, Perry County's elected circuit-court judge, confirmed Thursday she had terminated Parkhurst's employment as of 4 p.m. Wednesday.

According to Goffinet and Parkhurst, the disagreement centered over the process of choosing offenders who could be released to free up jail beds. * * *

Speaking by telephone Friday, Parkhurst said he met with Goffinet Tuesday to discuss who might be released to make more room.

"Perry County, like most communities in Indiana, has an ongoing jail-overcrowding problem. Earlier this week I was informed by a jail official that there were over 40 inmates in the jail and I was asked to help determine who might appropriately be released back into the community,� he said.

Parkhurst said he began reviewing the jail list, e-mailed or faxed to the court and prosecutor's office every day.

"I took the jail list to the judge in hopes of reviewing the backgrounds, prior records and current charges on those inmates whom we might consider for release. I took issue with her decision to release without any real review certain individuals charged with drunk driving and others who had already previously failed to report to court as they had been ordered," he said.

Goffinet said she wasn't upset by Parkhurst's suggestion to review cases, but was taken aback by his demeanor during the meeting.

Neither person offered details on the tone of the disagreement, but Goffinet said Parkhurst's words and actions were unprofessional. Parkhurst said he and Goffinet "had a disagreement" which led to him losing his job.

Posted by Marcia Oddi on Monday, November 05, 2007
Posted to Indiana Courts

Law - More on: Lafayette native Brian Lamb will be presented the Presidential Medal of Freedom this morning [Updated]

Updating the ILB entry from earlier today, you can now watch this morning's award ceremony here, via Real Video. See the Brian Lamb award at 24:50 minutes and at about 35:00 minutes. At the latter point, Brian is joined on the stage by Mrs. Lamb.

[Updated] The Indianapolis Star's Maureen Groppe now has a feature story on the award this morning to Brian Lamb.

Posted by Marcia Oddi on Monday, November 05, 2007
Posted to General Law Related

Ind. Decisions - Merits briefs due today in Indiana voter ID cases [Updated]

Per SCOTUSBlog.com, Petitioners’ briefs are due Monday (today) in Crawford v. Marion City Election Board (07-21) and Indiana Democratic Party v. Rokita (07-25), the voter identification cases. Check the SCOTUS WIKI page for briefs and documents, when filed.

[Updated] See this post by Rick Hasen of the Election Law Blog.

Posted by Marcia Oddi on Monday, November 05, 2007
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 14 NFP) [Revised]

For publication opinions today (4):

In Floyd Tewell v. State of Indiana, a 7-page opinion, Chief Judge Baker writes:

Appellant-petitioner Floyd Tewell appeals from the denial of his petition for writ of habeas corpus, which the post-conviction court treated as a petition for post-conviction relief. Tewell argues that it was erroneous for the court to treat his petition as one seeking post-conviction relief and that the post-conviction court erroneously concluded that the Indiana Parole Board had not discharged Tewell from his life sentence. Finding no error, we affirm the judgment of the post-conviction court.
In Whirlpool Corporation v. Vanderburgh County, City of Evansville Human Relations Commission and Harriett Layne, a 19-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude the record contains substantial evidence in support of the Commission’s decision that Whirlpool terminated and refused to reinstate Layne’s employment in retaliation for her filing a discrimination charge against Whirlpool. Affirmed.
In Samuel Fonner v. State of Indiana , a 7-page opinion, Judge Vaidik writes:
Samuel Fonner (“Fonner”) appeals his conviction for Operating a Motor Vehicle while Privileges are Forfeited for Life, a Class C felony, claiming that the evidence is insufficient to support his conviction. He also argues that his sentence is inappropriate in light of the nature of his offense and his character. Finding that there is sufficient evidence to support Fonner’s conviction and that his sentence is not inappropriate, we affirm the judgment of the trial court.
In Joseph Bauer v. State of Indiana , a 12-page opinion, Judge Crone concludes:
[O]nce the trial court amends the sentencing order to attach the habitual substance offender finding to an underlying conviction, two years of the resulting enhanced sentence may be suspended.

We further observe that Indiana Code Section 35-50-2-2(c) provides, “Except as provided in subsection (e), whenever the court suspends a sentence for a felony, it shall place the person on probation under IC 35-38-2 for a fixed period to end not later than the date that the maximum sentence that may be imposed for the felony will expire.” Therefore, the trial court must place Bauer on probation during the time his sentence is suspended.

Based on the foregoing, we remand with instructions to amend the sentencing order to attach the habitual substance offender finding to the underlying conviction and to enhance the sentence for that conviction in a manner consistent with this opinion. Affirmed in part, reversed in part, and remanded.

NFP civil opinions today (3):

Riley N. Fowler v. Katherine M. Schweitzer (NFP) - "Appellant-plaintiff Riley Nelson Fowler appeals the trial court’s exclusion of certain digital motion x-ray (DMX) evidence from the jury trial that was held regarding his personal injury claim against appellee-defendant Katherine M. Schweitzer for injuries that he sustained in an automobile accident. Specifically, Fowler claims that the trial court abused its discretion in excluding this evidence because it failed to properly apply the provisions of Indiana Rule of Evidence 702(b) in making its ruling. Finding no error, we affirm the judgment of the trial court."

American Family Mutual Insurance Co. v. John Houin (NFP) - "The trial court did not abuse its discretion by excluding evidence to which the parties had stipulated, by instructing Houin’s attorney to re-phrase a statement, or by denying American Family’s motion for a mistrial. Affirmed."

Gary Community School Corp. and Banneker Elementary School v. William Marshall and Valerie Gooch Greene, et al (NFP) - "The evidence is sufficient to allow a jury to determine that the School Corporation’s provision of only one supervisor created an unsafe environment where, over a period of time when he was unobserved by the single supervisor distracted by her other duties, a first-grade student could become frustrated by the actions of other students, which were also unobserved, and could react in accordance with that frustration. Thus, we conclude that the trial court was correct in allowing this case to go to the jury. We further conclude that the evidence supports the jury’s verdict and that the School Corporation failed to show that it should prevail as a matter of law."

NFP criminal opinions today (11):

Joseph Bauer v. State of Indiana (NFP)

David Hooker v. State of Indiana (NFP)

Gustavo Celestino v. State of Indiana (NFP)

Rachael Robertson v. State of Indiana (NFP)

James H. Gray v. State of Indiana (NFP)

Joe Thomas Bunch v. State of Indiana (NFP)

Edgar Lewis Baker v. State of Indiana (NFP)

Jeremiah Roberson v. State of Indiana (NFP)

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

David E. Hawes v. State of Indiana (NFP)

Bryan Minier v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, November 05, 2007
Posted to Ind. App.Ct. Decisions

Ind. Courts - The Appellate E-Filing Project

Many readers will recall this ILB entry from Oct. 15, titled "Supreme Court withdraws amendment to Appellate Rule 43(K) mandating electronic filing of briefs effective Jan. 1, 2008." As noted in the entry, the Court first posted, and then later withdrew an amendment to the rule that would have required that all appellate document filings include an electronic/digital copy.

Today the ILB was reviewing the newly posted 2006-2007 Annual Report of the Indiana Supreme Court, and read with interest this passage:

Appellate Electronic Filing.Project.

In fiscal year 2005-06, the Supreme Court authorized the Clerk to move forward with a project designed to bring about electronic filing and case management in Indiana’s appellate courts and Tax Court. That project continued this fiscal year.

In December 2006, the Clerk visited the Judges and Clerk of the Arizona Court of Appeals, Division 2, to examine first-hand that court’s “paperless” electronic filing and case management system.

When investigating whether the Arizona system could be adopted for use in Indiana, it was quickly determined that a much broader and more comprehensive review and assessment of the Indiana appellate courts’ technological capabilities and needs as a whole was first in order.

Therefore, the Supreme Court and Court of Appeals contracted with technology consultants from the National Center for State Courts (NCSC) to provide a comprehensive assessment.

The consultants visited Indianapolis over several days in February and May 2007 to investigate how the courts and their agencies use technology and how they might further benefit from it, and at the close of this fiscal year the consultants were working on an extensive report detailing their findings and recommendations, which should be delivered in September 2007.

This report, among other things, is expected to provide advice on which appellate e-filing and case management systems might best serve the needs of Indiana. When the final report is delivered, the Clerk will then determine the next steps to take concerning the Appellate E-Filing Project.

Hopefully, this NCSC report will be made available before the end of the year to Indiana practitioners for review and comment.

Posted by Marcia Oddi on Monday, November 05, 2007
Posted to Indiana Courts

Ind. Courts - Even 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"

Updating this ILB entry from Oct. 22nd, Jon Murray of the Indianapolis Star reports today that:

Marion Superior Court has begun sending summonses to people who fail to show up for jury duty. The 325 people who skipped out Oct. 22-26 have been called to appear before a judge Nov. 14 at the City-County Building.

Two courtrooms will be set aside for staggered hearings in the afternoon, with Judge Mark Stoner moving back and forth. Attendees will be given a new date for jury duty, and no-shows could have warrants issued for their arrest, Stoner said.

More from the story:
The judges hope the public takes notice. Since they announced the tougher stance Oct. 19, an initial spike in juror turn-out has fallen back to what Judge Mark Stoner calls unacceptable levels.

"I think, unfortunately, some people won't respond until we have to issue arrest warrants," said Stoner, who oversees the jury pool.

Posted by Marcia Oddi on Monday, November 05, 2007
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Thursday, Nov. 8th:

9:00 AM - Baxendale v. Raich - Baxendale, who had primary physical custody of the parties’ son A.R., filed notice of intent to relocate with A.R. from northwest Indiana to Minnesota. Raich then sought to modify primary physical custody from Baxendale to himself. The trial court denied Baxendale’s request to relocate with A.R. and conditionally granted Raich’s custody modification motion in the event Baxendale remained in Minnesota. The Court of Appeals reversed, holding the trial court abused its discretion in modifying custody. Baxendale v. Raich, 866 N.E.2d 333 (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 Baxendale: B. Scott Skillman, Terre Haute, IN. Attorney for Raich: Thomas E. Rucinski, Hammond IN.

9:45 AM - Stewart v. Vulliet - In this dissolution case, the Clinton Superior Court determined that it had jurisdiction under the Uniform Child Custody Jurisdiction Act ("UCCJA") to adjudicate issues of child custody and visitation but that the State of Washington was a more convenient forum. The Court of Appeals affirmed in part, holding the trial court had jurisdiction under the UCCJA, but reversed in part, holding that Indiana is the more convenient forum. See Stewart v. Vulliet, 867 N.E.2d 226 (Ind. Ct. App. 2007), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. For Appellant, Anthony N. Stewart: David W. Stone IV. For Appellee, Signe L. Vulliet: Nancy L. Cross, Monty K. Woolsey.

10:30 AM - Hobert Pittman v. State - Following a jury trial, Pittman was convicted of murder and other offenses. Upon the unanimous recommendation of the jury, the Harrison Superior Court sentenced Pittman to life imprisonment without parole. He was sentenced to terms of years for the other offenses. In this direct appeal, Pittman argues the convictions and sentences should be reversed. Attorney for Pittman: Matthew Jon McGovern, Evansville, IN. Attorney for State: James B. Martin, Indianapolis, IN.

Webcasts will be available here.


This week's oral arguments before the Court of Appeals that will be webcast:

None scheduled.

This week's oral arguments before the Court of Appeals that will NOT be webcast:

This Monday, Nov. 5th:

2:00 PM - Estate of Martha O'Neal v. Bethlehem Woods Nursing and Rehab. Center - Martha O’Neal was a resident at Bethlehem Woods Nursing Home and Rehabilitation Center, LLC, until September 22, 2001, when she was transferred to a hospital. O’Neal passed away on November 6, 2001, and her Estate filed a claim against Bethlehem Woods on October 22, 2003. Bethlehem Woods filed a motion for summary judgment alleging that the complaint sounded in medical malpractice and the occurrence-based statute of limitations began to run on September 22, 2001, the date of Bethlehem Woods’s last contact with O’Neal. O’Neal’s Estate appeals the trial court’s grant of summary judgment in Bethlehem Woods’s favor. The Scheduled Panel Members are: Judges Kirsch, Robb and Barnes. [Where: Indiana Supreme Court Courtroom, but apparently not to be webcast]

This Thursday, Nov. 8th:

1:30 PM - D.L. vs. State of Indiana - D.L. appeals the juvenile court's adjudicating him to be a delinquent child on the basis of Possession of Marijuana, a Class A misdemeanor if committed by an adult. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Bradford. [Where: Lawrence North High School, Indianapolis, Indiana]

Posted by Marcia Oddi on Monday, November 05, 2007
Posted to Upcoming Oral Arguments

Law - Lafayette native Brian Lamb will be presented the Presidential Medal of Freedom this morning

Max Showalter of the Lafayette Journal & Courier reports today:

Twenty-eight years after C-SPAN was first broadcast on America's television sets, the founder of the cable TV staple that covers government, politics and public affairs events will be on the other end of the ceremonial process today.

Lafayette native Brian Lamb will be presented the Presidential Medal of Freedom by President Bush during a ceremony at the White House.

The medal of freedom is given to individuals who have made "an especially meritorious contribution" to culture, world peace or to national security and other national interests.

Lamb said he will accept the medal on behalf of the cable TV industry, which created C-SPAN as a public service.

People who knew the Jefferson High School and Purdue University graduate when he was growing up aren't surprised that he is deflecting the spotlight away from himself.

From a story last Wednesday by Sylvia A. Smith, Washington editor of the Fort Wayne Journal Gazette:
Lamb, 66, is a Lafayette native and graduate of Purdue University. After a tour in the Navy and job running the Washington bureau of Cablevision magazine, he founded C-SPAN in 1979.

Financed by the cable TV industry, C-SPAN’s three television channels, 10 Web sites and one radio channel carry gavel-to-gavel coverage of the House and Senate. When either chamber is not in session, the network airs congressional hearings, news conferences and other public-policy programming.

A White House statement said Lamb “has elevated America’s public debate and helped open up our government to citizens across the nation. His dedication to a transparent political system and the free flow of ideas has enriched and strengthened our democracy.” * * *

In addition to running the operation, which has 256 employees, Lamb takes his turn on on-air programs. He is the regular host of the Friday morning call-in program and for 15 years interviewed non-fiction authors on “Booknotes.” Four books of collected interviews from the show have been published.

Watch it live. You can watch the award ceremony live this morning on C-SPAN at 10:05 AM.

Posted by Marcia Oddi on Monday, November 05, 2007
Posted to General Law Related