Friday, November 30, 2007
Ind. Decisions - Supreme Court denies Bopp motion for an emergency writ regarding the middle initial issue in the recount
Here is the order issued this afternoon in the case of STATE OF INDIANA EX. REL, DUKE BENNETT v. VIGO COUNTY (84 S 00 - 0711 - OR - 00558):
Relator's application papers include a request for an emergency writ. An emergency writ is limited in purpose; it operates as a temporary stay of the proceedings in the trial court until this court hears and rules upon the original action application. Ind. Original action rule 3(e)(1).For background, start with this entry from earlier today.
A relator seeking an emergency writ has the burden of demonstrating that an emergency writ must be issued to maintain the status quo and prevent irreparable injury until the underlying application can be heard.
The only allegation of irreparable harm made by relator is his assertion that an emergency writ is necessary because the trial court may conclude the cases below before this court has the opportunity to resolve this original action.
However, such a general allegation is insufficient to establish irreprarable harm.
Accordingly, the court denies the request for an emergency writ.
Nevertheless, the court determines this original action warrants additional briefing. Accordingly, the honorable David R. Bolk (by himself or by counsel) and any party opposing relator in the trial court may each file a brief opposing issuance of the writ and, if appropriate, a supplemental record of proceedings.
Any supplemental record should be submitted in the same format required for the record under original action rule 3(c). Such briefs or supplemental records should be filed directly with the clerk of the supreme court, court of appeals, and tax court and must be physically on file (not merely in the mail) at or before noon on friday, december 7, 2007. Once briefing is completed, the court will take the matter under advisement.
Randall T. Shepard, Chief Justice
Ind. Decisions - Voter ID - What's at Stake?
PENNumbra, "A project of the University of Penneslyvania uniting the public and the legal acadamy," presents this 21-page debate between two law profs on Crawford v. Marion County Election Board. Here is the summary:
Professor Smith finds no reason for the Court to tinker with Indiana’s voter ID laws, and leads off the debate by invoking the “broken windows” theory of Kelling and Wilson. He intuits that “to most Americans . . . a requirement that a voter demonstrate that he is who he claims to be is considered a most minimal intrusion.” He continues, even if it is true “that a voter ID law prevents very little fraud in a direct sense, . . . like fixing broken windows and cleaning up litter and graffiti, such a basic procedure may prevent fraud from growing. It sends a message that voting is serious . . . .”
Professor Foley agrees that voting is a serious matter—so serious, in fact, that “[e]qual voting rights are a prerequisite to democratic fairness not only for their instrumental value . . . but also . . . for the additional symbolic . . . reason that they signify the equality of citizenship upon which democratic fairness depends.” Professor Foley sees Indiana’s law as unnecessarily draconian and argues that “a fair effort to introduce modernity and rationality to th[e] authentication process would use a form of public-spirited . . . reasoning that attempted to consider the interests of all citizens equally, rather than to select a more onerous than necessary method of authentication because it would promote a partisan advantage.”
Ind. Decisions - Transfer list for week ending November 30, 2007
Here is the Indiana Supreme Court's transfer list for the week ending December 30, 2007. Be sure to view all 4 pages.
There were two transfers granted this week (plus one criminal grant, with opinion). See this ILB entry from earlier today for details.
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.
Law - Friday reading: How students enter law school with high-minded ideals and walk out the doors avaricious corporate lawyers
Two good posts this afternoon in the WSJ Blog: "Law Blog Advice Column: What Should Beirne Do?" is the first; "Has 'The Legal Profession' Gone the Way Of the Dodo?" is the second.
Ind. Decisions - Court of Appeals issues 3 today (and 14 NFP)
For publication opinions today (3):
In Robert Thompson, et al. v. Vigo County Board of County Commissioners , a 12-page opinion, Judge Riley writes:
Thompson raises two issues on appeal which we restate as follows: (1) Whether the trial court erred by granting Vigo County’s Motion to Dismiss because Count I of Thompson’s Complaint should be certified as a public lawsuit, subject to the provisions of Indiana’s Public Lawsuit Statute; and (2) Whether the trial court erred by granting Famco’s and Gibson’s Motion to Dismiss because Count II of Thompson’s Complaint cannot be sustained under the statutory antitrust violations. * * *Paternity of A.R.S.A.; Alberto S. Meneses v. Rudit A. Legunes - "Based on the foregoing, we conclude that the trial court properly ordered Meneses to reimburse Medicaid for fifty percent of the medical expenses incurred during the birth of his son, pursuant to Ind. Code § 31-14-17-1. We further conclude that I.C. § 31-14-17-1 does not violate the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment of the United States Constitution."
Requesting us to strictly construe the statute at issue, Thompson now argues that the swap or exchange of real estate between Famco and Vigo County cannot be characterized as the “construction, financing or leasing of any public improvement.” See I.C. § 34-6-2-124. Consequently, he maintains that the trial court erred by imposing the statutory provisions of a public lawsuit on the instant cause. * * *
Thompson next contends that the trial court erred in dismissing his claim against Famco. Specifically, Thompson argues that Famco colluded with Vigo County by engaging in a scheme geared to restrain bidding and restrict free competition in violation of I.C. §§ 24-1-2-3 and 24-1-2-7. Asserting that the Notice to Offer was unduly restrictive as to ensure only Famco satisfied its requirements, Thompson was excluded from the bidding process. As a result, he had to purchase additional property and erect buildings to expand his business. * * *
Based on the foregoing, we conclude that the trial court properly granted Vigo County’s Motion to Dismiss because Count I of Thompson’s Complaint should be certified as a public lawsuit, subject to the provisions of the Public Lawsuit Statute; and the trial court properly granted Famco’s and Gibson’s Motion to Dismiss because Count II of Thompson’s Complaint cannot be sustained under the statutory antitrust violations.
In Surfware, Inc., et al. v. Allied Specialty Precision, Inc. , a 9-page opinion, Judge Riley writes:
The Appellants raise one issue on interlocutory appeal: Whether the trial court properly denied the Appellants’ Motion to Dismiss or in the Alternative Transfer by finding that St. Joseph County constituted a county of preferred venue pursuant to Ind. Trial Rule 75(A)(2). * * *NFP civil opinions today (5):
The Appellants aver the trial court incorrectly concluded that St. Joseph County is a preferred venue pursuant to T.R. 75(A)(2). Specifically, the Appellants argue the geographic location of the chattel is not the controlling factor in determining venue under T.R. 75(A)(2), and therefore basing venue on the location of the chattels would undermine T.R. 75(A)(1), (3), (4), and (10). * * *
The Appellants knew Allied was located in St. Joseph County. Schaumberg traveled to St. Joseph County to install the software and when he was unable to properly install the software, he never returned to update the software and train Allied’s employees. Allied did not try to use the software in a third county and file in St. Joseph County claiming it is a county of preferred venue, or keep the software in a third county and file its lawsuit there. Rather, as the trial court notes, “by analogy to automobile accident cases, St. Joseph County is the county in which the ‘accident’ and the resulting damages occurred.” (Appellant’s Br. p. 12). Thus, pursuant to R & D Transport, St. Joseph County is a county of preferred venue.
Second, although the Appellants rely on Burris v. Porter, 477 N.E.2d 879 (Ind. Ct. App. 1985), as a case directly on point with this case, our research reveals Burris has been expressly rejected by this court. * * *
Based on the foregoing, we find the trial court properly denied the Appellants’ Motion to Dismiss or in the Alternative Transfer venue to Boone County as St. Joseph County is also a county of preferred venue pursuant to T.R. 75(A)(2). Affirmed.
In Christopher Cornett v. Everett and Mary Bamish (NFP), a 10-page opinion, Judge Riley writes:
Cornett presents one issue on appeal, which we restate as follows: Whether the trial court properly applied a six-year statute of limitations to Cornett’s action. * * *Matter of the Involuntary Termination of the Parent-Child Relationship of C.T. and I.M.-T.; Wayne Turner v. Marion County Department of Child Services and Child Advocates, Inc. (NFP) - "Based on the overwhelming evidence in this case, we conclude that the trial court’s finding regarding the racial statement made by Turner is superfluous and that any error in considering it is harmless. The trial court properly terminated Turner’s parental rights."
In 2003, Cornett and Everett Bamish noticed flooding of Cornett’s property and erosion damage. Cornett attributes flooding of his property and erosion damage to the actions by the Bamishes.
On May 19, 2005, Cornett filed a complaint in Montgomery County seeking damages and equitable relief. On December 12, 2006, the Bamishes filed a Motion for Summary Judgment arguing primarily that Cornett failed to commence the action within the applicable statute of limitations. On January 31, 2007, the trial court applied the six-year statute of limitations codified at I.C. § 34-11-2-7(2) to Cornett’s action, found that it had run prior to Cornett’s commencement of the action and granted the Bamishes summary judgment. * * *
When analyzing the record before us, we find that the trespass of the pipe and the injuries from the flooding must be considered separately. We find that the trespass of the pipe itself is a permanent injury for which Cornett did not satisfy the six-year statute of limitations. Therefore, we conclude the trial court appropriately awarded summary judgment to the Bamishes on Cornett’s claim for damages caused by the trespass of the pipe.
However, the injuries of erosion and flooding are injuries separate and distinct from the trespass of the pipe itself. We cannot tell from the record whether those injuries are permanent or temporary. The record contains only that the erosion and flooding was first noticed in 2003, six years after the installation of the pipe. Moreover, the pipe was placed so that it would drain into an existing waterway on Cornett’s property. There is no evidence in the record that Cornett knew or should have known that the pipe would cause erosion or flooding prior to 2003. Even if the injuries of flooding and erosion are permanent injuries, we find that they were first noticed in 2003, within six years prior to when Cornett filed his complaint addressing those injuries. Thus, we conclude that Cornett has satisfied the statute of limitations for addressing the injuries of flooding and erosion to his property.
Conclusion. For the foregoing reasons, we conclude that Cornett has satisfied the appropriate twenty-year statute of limitations to bring his equitable claim, has satisfied the six-year statute of limitations to bring a claim for damages to address the injuries of flooding and erosion, but has not satisfied the statute of limitations to bring a claim for damages to address the trespass of the pipe. Reversed and remanded.
Matter of M.S.; Jayne Boudia and Robert Shoulders v. Marion County Department of Family & Child Services and Child Advocates, Inc. (NFP) - "Based on the foregoing, we conclude that the DCS failed to prove beyond a preponderance of the evidence that M.S. is a CHINS as to Mother and Father. Accordingly, we reverse the trial court’s CHINS determination as to both parents. Reversed." [ILB - See also the opinion concurring only in result.]
Cloverleaf Healthcare Services, Inc., Wanda Prock, Theodore E. Bruzas, et al v. Boonville Convalescent Center, Inc., et al (NFP) - "Cloverleaf Healthcare Services, Inc., its shareholders, and their spouses, appeal the trial court’s determination of the extent of their liability to their landlord, Boonville Convalescent Center, Inc. Boonville cross-appeals. We affirm in part, reverse in part, and remand."
Term. of Parent-Child Rel. of P.F. & S.F., and Courtney Frierson v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. (NFP) - "Courtney Frierson (“Father”) appeals the termination of his parental rights to his daughters, P.F. and S.F., in Marion Superior Court. In so doing, Father raises several issues which we restate as whether the trial court’s order terminating Father’s parental rights to P.F. and S.F. is clearly erroneous. We affirm."
NFP criminal opinions today (9):
Ind. Decisions - Court grants transfer in two cases
The formal transfer list will follow later today, but the ILB has received notice of two cases having been granted transfer:
Christopher Brown, D.D.S, Inc. v. Decatur County Memorial Hospital , issued by the COA on August 9th, raised one question on appeal: Whether prejudgment interest is available for belated payments to health care providers for services rendered under the Worker’s Compensation Act.
In Alan Jones v. State, issued by the COA on Sept. 21st, the COA ruled:
Given the potential for very serious probation violations, we find that trial courts should have discretion to consider assigning sexually violent predator status when considering probation violations and determining the sentence to be imposed for such violations. We conclude that the plain language of the statute here does not limit the consideration to the initial sentencing hearing, and Jones’s arguments to the contrary must fail.
Ind. Courts - Schedule set for COA Second Round Interviews
The Indiana Judicial Nominating Commission has announced that it selected seven of the fifteen applicants for the upcoming vacancy on the Indiana Court of Appeals to return on December 12, 2007 for second interviews.
The seven semi-finalists are:
* Hon. Elaine B. Brown, Dubois Superior Court
* Hon. Jane Spencer Craney, Morgan Superior Court 3
* Mr. Stephen J. Johnson, Executive Director, Indiana Prosecuting Attorneys Council
* Mr. Leslie C. Shively, Evansville
* Hon. P. Thomas Snow, Wayne Superior Court 1
* Sen. Brent E. Steele, Bedford
* Hon. G. Michael Witte, Dearborn Superior Court
The interviews on December 12, 2007 will be open to the public in room 319, Statehouse. The Commission will nominate to the Governor the three most highly qualified candidates. Within sixty days after the formal nomination, the Governor will appoint one of the nominees to succeed Judge John Sharpnack, who is retiring May 3, 2008 after nearly 17 years on the Court of Appeals.
Here is the schedule:
• 9:00 a.m. – 9:20 a.m. – Hon. G. Michael WitteMore about the Judicial Nominating Commission:
• 9:25 a.m. – 9:45 a.m. – Sen. Brent E. Steele
• 9:50 a.m. – 10:10 a.m. – Hon. Elaine B. Brown
• 10:15 a.m. – 10:35 a.m. – Hon. P. Thomas Snow
• 10:50 a.m. – 11:10a.m. – Hon. Jane Spencer Craney
• 11:15 a.m. – 11:35 a.m. – Mr. Stephen J. Johnson
• 11:40 a.m. – 12:00 p.m. – Mr. Leslie C. Shively
(Break – Lunch)
• 1:30 p.m. – Deliberations in Executive Session followed by public session and vote to name three nominees for vacancy
The Judicial Nominating Commission recruits and interviews applicants to fill vacancies on the Supreme Court, the Court of Appeals, and the Tax Court, and the Governor appoints one of the Commission's three nominees for each vacancy. Additionally, the Nominating Commission selects the Chief Justice of Indiana from among the five Justices on the Indiana Supreme Court. Finally, the Nominating Commission certifies former Indiana judges as Senior Judges to serve in Indiana 's courts.
Who is on the Nominating Commission?
Chief Justice Randall T. Shepard, Chair, Indiana Supreme Court, Indianapolis
Stephen L. Williams, Esq., First District, Terre Haute
Joan M. Hurley, First District, Sellersburg
James H. Young, Esq., Second District, Indianapolis
Mark Lubbers, Second District, Indianapolis
Sherrill Wm. Colvin , Esq., Third District, Fort Wayne
Dr. Daryl R. Yost, Third District, Fort Wayne
(ILB - Unfortunately, the online list no longer includes information about term beginnings and ends for the Nominating Commission membership.)*
*Note. As of Dec. 7, this has been remedied. See list, now with term expiration dates, here. In addition, Attorney John C. Trimble, Indianapolis, will succeed James Young on Jan. 1, 2008. A replacement for Joan Hurley, whose term also expires Jan. 1, has not yet been named by the Governor. Recall that the attorney representatives are elected by the bar; the citizen members are appointed by the Governor.
Ind. Courts - "Justices hear appeal in Griffith slayings"
INDIANAPOLIS | Attorneys for a Griffith man convicted of murdering his wife and unborn son three years ago asked the Indiana Supreme Court on Thursday to cut the killer's 90-year sentence in half or order a new trial.
The latter could put the death penalty back in play for David Green, who received consecutive 45-year prison terms last year for beating, strangling and stabbing Stacy Green in their Griffith home on Nov. 2, 2004. The Greens had been estranged for nearly two years, but Stacy was just days away from delivering the couple's third child.
David Green, 32, had not been charged when he gave prosecutors a statement that is at issue in his appeal. Green admitted to having a fight with his wife, but he said she attacked him with a knife and her death was accidental.
Lake County prosecutors agreed not to pursue the death penalty in exchange for the statement, which later was presented to the jury over Green's objections. But David Green's attorneys told the Supreme Court the pretrial statement -- placing him at the crime scene -- should have been treated like a plea agreement, making it inadmissible at trial.
Ind. Law - More on: Because of two conflicting laws, Lake County Councilman Will Smith Jr. on council until sentencing
INDIANAPOLIS | A region legislator has begun work to correct a defective state law that has allowed Lake County Councilman Will Smith Jr. to remain in office two months after being found guilty of tax fraud.
A 2005 law was inspired by a trio of East Chicago officials who refused to step down after their conviction in the infamous sidewalks-for-votes scandal. It was intended to force politicians out of office as soon as they're found guilty of a felony. But another measure that went on the books that year contained contradictory language that has left prosecutors powerless to remove Smith.
State Sen. Frank Mrvan, who sponsored the ill-fated 2005 law, said Thursday he has spent the past two weeks drafting legislation to fix the problem. The Hammond Democrat said there's no reason to allow tarnished politicians to stick around, collecting salary and benefit, while they're waiting to be sentenced.
"It's the same old nonsense that happened in 2005, with the East Chicago people," Mrvan said. "I'm just angry. It's not fair that someone else found guilty is going to continue (in office). He forfeited that right when he became a felon and he stole from the poor. And he should not stay in office while he's waiting for sentencing." * * *
The legality of Smith's continued service has come under increased scrutiny as the County Council prepares for a final vote to impose a local income tax. Smith, who supports the 1 percent tax, said county attorneys have assured his vote would withstand a lawsuit.
"I'm not sitting here illegal. And all of the action that I undertake and my vote, from the council's standpoint, is legal action," he said. "There's no way that the attorneys that represent (Lake County) -- Ray Szarmach and John Dull -- are going to allow that to happen if it wasn't factual."
State Sen. Frank Mrvan, D-Hammond, is drafting legislation that will force elected officials to resign as soon as they are found guilty of a felony. He sponsored a similar measure in 2005 but it was canceled out by another law that allows felons to stick around until sentencing. The conflict in state law has allowed Lake County Councilman Will Smith Jr. to remain in office despite being found guilty of tax fraud in late September.
Courts - SCOTUS hears arguments in Rowe v. NH Motor Transport
Does the Federal Aviation Administration Authorization Act of 1994 preempt state regulation of carriers that deliver shipments of tobacco and other products? Can a state require shippers of tobacco products to use a carrier that will obtain a signature and verify the age of the person receiving the shipment, in order to keep dangerous items out of the hands of minors? The Supreme Court will hear argument on these questions on November 28, 2007, in Rowe v. New Hampshire Motor Transport Association, No. 06-457. This clash between federal preemption and the public health police powers of states will determine whether states can use delivery regulations to block Internet sales of tobacco to teens.Tom Walker of WTHR Eyewitness News has a brief piece on the case, here.
David G. Savage of the LA Times reports today in a story that begins:
WASHINGTON -- The Supreme Court took up a little-noted case Wednesday that could prove a boon in the era of Internet commerce -- and deal a setback to states' efforts to keep cigarettes, drugs and other harmful products out of the hands of minors.
Until the last decade, states restricted sales of certain products by regulating the sellers. For example, retailers were banned from selling cigarettes to those under age 18.
But cigarettes, like nearly every other product, now can be bought over the Internet and sent directly to the consumer, which means the seller cannot verify the age of the purchaser. The number of Web vendors of cigarettes rose from 88 in 2000 to 772 early last year, according to the California attorney general's office.
As a fallback, states increasingly have turned to shippers and delivery services, such as UPS or FedEx, and said they must see to it that certain products, including tobacco, are delivered only to adults, not minors. Maine, for example, adopted a law requiring shippers who deliver tobacco products to obtain a signature from an adult and see a government-issued identification card.
But Bush administration lawyers joined the trucking industry Wednesday in urging the high court to throw out Maine's law and to shield shippers from all such state regulation of delivery services. This would speed the flow of Internet sales and reduce costs, they said.
Environment - "BP Alleged to Have Modified Whiting Refinery Illegally"
A release from the Environmental News Service today begins:
CHICAGO, Illinois, November 29, 2007 (ENS) - The federal government today formally notified BP Products North America Inc. of alleged violations of multiple Clean Air Act requirements at its refinery in Whiting, Indiana, near Chicago.The NWI Times also has a brief story today.
The U.S. Environmental Protection Agency Region 5 alleges that the BP Whiting refinery, failed to obtain a permit when it made "major modifications" to its fluidized catalytic cracking unit.
A fluidized catalytic cracking unit converts heavier oils into lighter products such as gasoline and naphtha. The modifications were made in BP's pursuit of the capacity to handle more Canadian heavy crude oil by modernizing the refinery located at 2815 Indianapolis Blvd.
The unpermitted modification caused "significant increases" of nitrogen oxide, NOx, sulfur dioxide, SO2, particulate matter, PM10, and carbon monoxide, CO, emissions, says the federal agency.
The agency also claims that BP violated New Source Performance Standards at Whiting by modifying flares without complying with requirements, exceeding SO2 emission limits, and failing to monitor emissions from several sources.
These New Source Performance Standards regulate new and modified industrial facilities that contribute to air pollution.
Finally, BP is accused of failing to conduct timely performance tests of hydrogen chloride emissions from its catalytic reforming units.
BP has 10 days to request a conference to discuss these clean air violations.
At the same time it is being notified of these violations, the company is proposing to lower air emissions limits at the Whiting Refinery.
Ind. Decisions - "Supreme Court reduces ex-Muncie man's sentence"
Reporting on the Supreme Court's Nov. 28th decision in In Aaron Reid v. State of Indiana (ILB entry here), a story today in the Muncie Star Press begins:
ANDERSON -- The Indiana Supreme Court this week provided an early Christmas gifts of sorts for convicted felon Aaron D. Reid -- trimming his 2006 sentence for trying to arrange the slayings of his wife and mother-in-law from 50 to 30 years.
Reid, now 24, was being held in the Madison County jail on misdemeanor battery charges in January 2006 when he asked other inmates whether they knew someone who would be willing to kill his wife.
An inmate put him in touch with a Madison County police deputy who posed as a hit man. After a phone conversation, Reid sent the deputy a photograph of his wife and their infant daughter, along with a description of her vehicle and directions to her home in Parker City.
The former Muncie resident also hoped to have his mother-in-law killed, authorities said.
A Madison Superior Court 3 jury found Reid guilty of conspiracy to commit murder in March 2006. The following month, Judge Thomas Newman Jr. imposed a maximum 50-year sentence, despite pleas for leniency for Reid's wife, who said her husband needed "constant counseling," not a lengthy prison term.
In a 5-0 ruling released Wednesday, the Indiana Supreme Court ordered Newman to reduce Reid's prison term to 30 years, the standard sentence for a class A felony conviction.
"If the facts had really been as Reid perceived them, his wife and mother-in-law would have been murdered," Chief Justice Randall Shepard wrote in the opinion. "Still, considering all the circumstances, we cannot say Reid is one of the worst offenders deserving of the maximum sentence."
Shepard suggested Reid's "mental health problems may have made him an easy target" to become involved in the bogus murder-for-hire scheme with his fellow inmate-turned-informant and the undercover officer.
Ind. Gov't. - Even more on: "Terre Haute Mayor Kevin Burke has thrown opponent Duke Bennett’s eligibility to be mayor into question"
Updating this ILB entry from Nov. 28th, about the Terre Haute mayoral challenge suit, where the Ann and Ed DeLaney Indianapolis law firm represents the challenger, and James Bopp, Jr. represents Mayor-elect Duke Bennett, Austin Arceo reports in the Terre Haute Trib-Star:
TERRE HAUTE — Although a local judge set a date Thursday to hear a challenge in the city’s mayoral race results, the Indiana Supreme Court may prevent that from ever happening.Here is an AP story, based on Trib-Star information:
Judge David Bolk of Vigo County Superior Court Division 3 set the trial for 1:45 p.m. Dec. 17 for Mayor Kevin Burke’s challenge of the election he lost to Mayor-elect Duke Bennett. Bolk also said the recount will start at 9 a.m. Monday.
But James Bopp Jr., Bennett’s attorney, on Thursday afternoon filed two mandate actions with the Indiana Supreme Court to overrule Bolk. Bolk earlier this week denied Bopp’s motions to dismiss Burke’s recount and election challenge petitions. Bopp had asked for the dismissal since the petitions left out Bennett’s middle initial, thus did not meet the legal requirement of having the candidate’s name as listed on the ballot.
“It’s fatal to the case because it’s jurisdictional,” Bopp said. “The court does not have jurisdiction over this matter unless it’s properly done.”
TERRE HAUTE, Ind. (AP) -- An attorney is asking the Indiana Supreme Court to overrule a judge who ordered a recount and a trial on a challenge in Terre Haute's mayoral race. * * *
Bennett's attorney, James Bopp Jr., this week asked Bolk to throw out the recount request and the election challenge on a technicality.
Bopp argued that the paperwork did not include Bennett's full name - including his middle initial - as it appeared on the ballot as required by law. But Bolk denied his motions, and Thursday Bopp asked the state Supreme Court to intervene.
"It's fatal to the case because it's jurisdictional," Bopp said. "The court does not have jurisdiction over this matter unless it's properly done." * * *
Attorney Ed DeLaney, who represents Burke, said that Bennett's side doesn't want a recount or challenge, "and they want to stop Judge Bolk from doing that over the letter 'A.'"
"They do not want to ever explain how Mr. Bennett complied with the Hatch Act," DeLaney said. "There is no circumstance under which they are willing to answer that question."
Thursday, November 29, 2007
Ind. Decisions - More on: Supreme Court issues confusing ruling re Mental Illness and Competency to be Executed
More on the Supreme Court's opinion yesterday in the case of Michael Dean Overstreet v. State of Indiana, a 46-page opinion authored by Justice Rucker for the majority, which, as the ILB observed in its summary Nov. 27th, is "somewhat split." This split is indicated on p. 41, and, on pp. 38-40, when the discussion of the majority opinion turns to the VI-B, the state constitutional claim, the "majority" language becomes that of a minority opinion.
A knowledgeable reader writes in agreement:
I've never seen anything like Overstreet.
After hearing oral argument, the court meets in conference and tentatively votes. The case is then assigned to a justice in the majority by consensus. I can't believe it wasn't clear at conference that Justice Rucker would not be in the majority. He has long opposed the death penalty for those with a severe mental illness; no other Justice has expressed that same concern. Therefore, the case should have been assigned to one of the four justices in the majority.
A one-justice lead opinion (complete with "I"s) is very confusing. I feel sorry for the attorney at West who must write headnotes for it. The lead opinion needs to announce the result, even if the dissenting justices announce the rationale or applicable rule of law.
Law - More on "Georgia's top court overturned a state law Wednesday that banned registered sex offenders from living within 1,000 feet of schools, churches and other areas where children congregate"
Updating this ILB entry from November 21st, Laura Bauer of the Kansas City Star reports today under the headling "Georgia ruling on sex offenders prompts other states, including Missouri, to re-examine laws." The story begins:
A Georgia Supreme Court ruling has refueled the debate on whether states should restrict where sex offenders live.As noted in the earlier entry, Indiana has at least one similar case pending at the trial level. See this August 19th ILB entry for the most recent info the ILB has.
The Georgia court struck down its residency restrictions last week, giving opponents of such buffer zones hope that other state laws will be reviewed and possibly overturned.
“It certainly sends a message that creating laws that render people homeless is not in anybody’s best interest,” said Jill Levenson, a professor at Florida’s Lynn University who has done extensive studies on the effect of residency restrictions. “In theory, I believe this could pave the way for a U.S. Supreme Court case.”
At least 21 states — including Missouri — have laws that ban registered sex offenders from living within a specified distance of schools, day-care centers and in some cases parks, swimming pools and bus stops. After high-profile child abductions and sexual assaults, parents across the nation fought for the buffer zones, urging lawmakers to protect their children from sexual predators.
Some authorities think the laws, if properly enforced, are helpful.
“I do think there’s an increased danger if a sex offender is in close proximity to children that they’ll re-offend,” Platte County prosecutor Eric Zahnd said. “Many are pedophiles in the truest sense of the word.”
But for the past three years, opposition to residency restrictions has grown. Opponents say buffer zones create a false sense of security for parents because offenders are restricted only in where they live, not in where they go. Also, Levenson said, in the vast majority of cases children know their molesters.
“They’re not strangers lurking in schoolyards,” she said.
Opponents also say that residency restrictions lead many offenders to stop registering, which they are required by law to do; become homeless; or move to rural areas where they can’t be easily tracked.
In Iowa, where courts have upheld the buffer zones, authorities estimate that they have lost track of many offenders and say it will only get worse. That’s why Georgia’s ruling was “monumental,” said Corwin Ritchie of the Iowa County Attorneys Association.
“When these laws were first bantered about, they sold an awfully convincing bill of goods, that they are awfully good safety measures,” Ritchie said. “I think in Georgia they are seeing the full impact of the unintended consequences and saying this is not constitutional.”
[Thanks to How Appealing for the link to the Kansas City Star story today.]
Ind. Law - Because of two conflicting laws, Lake County Councilman Will Smith Jr. on council until sentencing
John Byrne of the Gary Post-Tribune reports today:
Convicted felon and Lake County Councilman Will Smith Jr. appears to be on firm legal ground in his bid to stay on the council until he is sentenced for federal income tax evasion.Another Will Smith related story today in the Gary paper, this one by Jon Seidel and headlined
Indiana Attorney General Steve Carter and Lake County Prosecutor Bernard Carter announced Wednesday that state law does not empower them to force Smith to step down in advance of his sentencing, scheduled for Jan. 9.
The two officials instead resorted to appealing to the ethical and moral standards of Smith and his colleagues on the council, imploring them to do what's best for their reputations and that of the county by having the embattled legislator resign now.
"We're asking them to reach a little higher than the minimum ... legal standard," Steve Carter said.
Bernard Carter concurred. "I certainly would recommend that. I think the right thing to do would be to step down, yes," he said.
Smith, D-Gary, was not available to comment Wednesday. But he has said recently he plans to stay on the council until sentencing, contending his constituents and colleagues support the decision.
And there isn't any way for Smith's fellow council members to force him out, Bernard Carter said.
In the wake of Smith's September conviction for his part in a land fraud scheme, Steve Carter believed state law mandated the councilman step down immediately.
But further analysis revealed two conflicting statutes -- one ordering public officials to leave office upon conviction of felonies, the other allowing them to stay until sentencing -- both of which were signed into law May 4, 2005.
"Attorney to replace convicted colleague":GARY -- Attorney Clorius Lay will fill a void left in the city of Gary's law department by the conviction of his colleague, Willie Harris.
Lay's 13-month contract with the city was approved by the Board of Public Works and Safety on Wednesday. It runs Dec. 1 through Dec. 31, 2008.
City Controller Celita Green said Lay will receive no more than $36,000 for his work in the law department.
Hamilton Carmouche, the city's corporation counsel, said at the meeting that Lay is filling a vacancy, and the money for his contract is already in the city budget.
Afterward, Carmouche said Harris' $20,000 contract has not been terminated because of his involvement with pending litigation.
The contract is scheduled to expire at the end of this year. Harris has been an attorney for the city since April 2006, when Mayor Rudy Clay took office.
Harris was convicted in September of fraud while on trial with Roosevelt Powell and Lake County Councilman Will Smith.
Ind. Courts - "Consumers file lawsuit against two Merrillville collection agencies"
Erik Potter of the Gary Post-Tribune reports:
A pair of Merrillville debt collection companies are facing a class-action lawsuit in federal court for allegedly violating federal debt collection law.
The suit was filed Tuesday by Donna Ketchem on behalf of herself and 50 other Indiana consumers against American Acceptance Co., and the law firm of Bowman Heintz Boscia & Vician Professional Corp., both located at the corner of 86th Avenue and Broadway in Merrillville.
The Bowman Heintz Boscia & Vician offices were closed Wednesday, and messages left at American Acceptance Co. were not returned.
The suit claims both businesses are owned by the same people, with American Acceptance Co. purchasing delinquent debt from credit card companies and turning it over to Bowman Heintz Boscia & Vician to pursue collection in court.
The 50-plus members of the suit claim that American Acceptance Co. was misleading when it threatened to charge consumers the legal fees it incurred in collecting their debt, because it was not legally able to collect those fees.
Many major credit card companies, including Citibank, Capital One, Wells Fargo and MBNA (now FIA Card Services), prohibit collection agencies from collecting in-house attorney's fees.
The suit claims that, given the "substantial identity of interest" between American Acceptance Co. and Bowman Heintz Boscia & Vician, that the firm functions like an in-house firm and falls under the same rules.
Ind. Decisions - "Mentally ill man can be executed "
Reporting on the Supreme Court's decision yesterday in the case of Michael Dean Overstreet v. State of Indiana [see ILB entry here], Charles Wilson of the AP writes:
The Indiana Supreme Court has upheld the death sentence for a mentally ill man convicted in the 1997 abduction, rape and slaying of a Franklin College student -- but with reservations.
Attorneys for Michael Dean Overstreet had argued that his severe mental illness at the time he was convicted of killing Kelly Eckart would make his execution cruel and unusual punishment under the state constitution.
Justice Robert Rucker, who wrote the opinion issued Tuesday, agreed.
Rucker said that the 41-year-old Overstreet's mental illness impeded his thought processes to a point comparable with mental retardation. The U.S. Supreme Court has ruled that mentally retarded people are ineligible for the death penalty, and Rucker wrote that he believed Indiana's constitution offered even greater protection.
"Because I see no principled distinction between the diminished capacities exhibited by Overstreet and the diminished capacities that exempt the mentally retarded from execution, I would declare that executing Overstreet constitutes purposeless and needless imposition of pain and suffering thereby violating the Cruel and Unusual Punishment provision of the Indiana Constitution," Rucker wrote in the 46-page opinion.
"Therefore, I would remand this cause to the post-conviction court with instructions to impose a sentence of life imprisonment without parole."
However, the other four justices disagreed with Rucker and held that Overstreet was eligible for the death penalty.
All five justices agreed to uphold Johnson Superior Court's handling of Overstreet's case, dismissing other arguments including that Overstreet had had ineffective counsel.
No evidence of Overstreet's mental illness was presented during his trial, though he had been diagnosed. The defense instead tried to prove that someone else had killed Eckart.
Ind. Decisions - Supreme Court holds post-secondary educational orders may include medical expenses for the student
In Michael M. Cubel v. Debra A. Cubel, a 5-page, 5-0 opinion, Chief Justice Shepard writes:
The legislature has authorized trial courts to enter orders providing parental assistance for college students, and it has indicated that such orders may extend beyond age twenty-one, the general cut-off for child support obligations. Appellant Michael Cubel argues that such post-secondary educational orders may not include medical expenses for the student. We hold that the Indiana Code authorizes orders covering these expenses. * * *
In this case, we are asked to determine whether the General Assembly intended the child support statutes to include insurance coverage for children during college, in accordance with the Schueneman holding, or whether it did not intend to provide for a child’s health care costs beyond age twenty-one regardless of whether the child is attending college, in accordance with the Sebastian holding. * * *
To the extent there is a conflict in the case law, we hold that a post-secondary educational order may include medical, dental, and optical insurance costs, as well as other health care costs, where the court finds such costs appropriate. As with all payments in post-secondary educational orders, payment of insurance and health care costs must be contingent upon the child remaining enrolled in a post-secondary educational institution. When fashioning the order, the court must consider the child’s aptitude and ability, the child’s reasonable ability to contribute to such expenses, and the ability of each parent to meet these expenses.
Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)
For publication opinions today (1):
In Shafer & Freeman Lakes Environmental Conservation Corp. v. Justin and Corraine Stichnoth, a 19-page opinion, Judge Najam writes:
Shafer & Freeman Lakes Environmental Conservation Corporation (“Shafer”) appeals from the trial court’s judgment in favor of Justin and Corraine Stichnoth (collectively “the Stichnoths”) on their complaint alleging negligence. Shafer presents four issues for our review: 1. Whether the trial court erred when it denied Shafer’s summary judgment motion on the issue of whether Justin was a licensee when he dove into Lake Shafer [ILB - from p. 9: "While most visitors to those lakes may reach the water from private property, that fact alone does not convert a lake otherwise held open for public use into a private lake."] . 2. Whether the trial court abused its discretion when it denied Shafer’s motion to bifurcate the trial. 3. Whether the trial court abused its discretion when it permitted expert testimony regarding Justin’s impaired earning capacity. 4. Whether the trial court abused its discretion when it denied Shafer’s motion to withdraw its nonparty defense. We affirm.NFP civil opinions today (5):
In Termination the Parent-Child Relationship of D.J., K.P. and K.R.; Teffany Reaves v. Marion County Department of Child Services (NFP), an 11-page opinion, Judge Bradford writes:
Appellants-Respondents Kevin and Teffany Reaves (the “Reaveses”) appeal the juvenile court’s order involuntarily terminating Teffany’s parental rights to K.P., D.J., and K.R. (“the children”) and Kevin’s parental rights to K.R.1 Specifically, the Reaveses claim that the Marion County Department of Child Services (“DCS”) did not present sufficient evidence to support the juvenile court’s order terminating their parental rights. Alternatively, they claim that DCS negligently provided them with services, thus impeding their ability to re-acquire custody of their children. We conclude that the sua sponte findings entered by the juvenile court hinder effective appellate review and therefore remand this matter to the juvenile court for the entry of further findings and conclusions thereon. * * *
The termination of one’s parental rights is of such importance that we must be convinced that the juvenile court has based its judgment on proper considerations. Therefore, we conclude that the findings of the juvenile court and its recitation of statutory language as its conclusions thereon are such that we cannot make a determination as to the validity of the termination of the Reaveses’ parental rights. Accordingly, we remand to the juvenile court with instructions to enter factual findings that are fully supported by the evidence and to include an explanation as to how its factual findings support its judgment.
In Spring Lake Chapter of the Izaak Walton League of America, Inc. v. Indiana Division of the Izaak Walton League of America, Inc., Charles Siar and Emil Garcia (NFP), an 11-page, 2-1 opinion, concerns an Izaak Walton League dispute involving the national chapter and the Spring Lake and Indiana Dvision local chapters. Judge Bailey writes:
Spring Lake presents five issues for appeal, which we consolidate and restate as the following two issues: I. Whether summary judgment was properly granted in favor of the Indiana Division upon the malicious prosecution claim; and II. Whether summary judgment was properly granted in favor of the Indiana Division upon the abuse of process claim. * * *In Estate of Jerome Mintz v. Connecticut General Life Insurance Company and Wayne E. Gruber (NFP), a 21-page opinion, includes a good discussion of the "law of the case" doctrine and Judge Bailey writes:
The grant of summary judgment upon the malicious prosecution claim is reversed. The grant of summary judgment upon the abuse of process claim is affirmed. Affirmed in part; reversed in part; and remanded.
VAIDIK, J., concurs.
BAKER, C.J., concurs in part and dissents in part with opinion.
This opinion addressed the legal issue of breach of contract. It did not address or resolve the outstanding legal issue of whether Gruber was negligent. Therefore, the language in the prior opinion is not the law of the case as to the negligence claim against Gruber. However, the trial court’s entry of summary judgment is sustainable on other grounds. * * *The Kroger Company v. Patricia K. Hammond (NFP), a 9-page opinion by Judge Robb, concludes: "In taking the cart from Hammond and moving it out of the way, Kroger failed to use ordinary care to protect Hammond’s personal property still in the cart. The record supports the small claims court’s conclusion that Kroger breached its standard of care." Judge Robb's summary:
[As to bad faith, the Courte wrote] Without some evidence that the insurer’s actions departed from their normal routine or were deceitful, unfounded or fraudulent, a bad faith claim will not survive summary judgment. The trial court did not err in granting summary judgment in favor of Connecticut General.
Conclusion. Gruber’s actions were not the proximate cause of the Estate’s injuries and Gruber and Connecticut General were properly granted summary judgment on the Estate’s claims of negligence and vicarious liability. Connecticut General was also entitled to summary judgment for the remaining claim of bad faith because the Estate’s claim was essentially based on Connecticut General’s unwillingness to depart from its stated procedure and make an exception.
MAY, J., concurs.
SHARPNACK, J., concurs in part and dissents in part with [a 6-page] opinion. [which reads in part] A review of the facts most favorable to the Estate reveals that “Mintz told Gruber his health was failing and indicated his desire to convert the entire value of the group coverage to individual policies. Gruber told Mintz he would take care of ‘everything.’” In April 1995, Gruber mailed an application to Mintz to convert the $62,300 lost by the first reduction of group coverage into an individual policy. When Connecticut General informed Mr. Mintz that the check for the premium was incorrect, Mrs. Mintz spoke with Gruber who informed her that everything was fine and that she did not need to worry about anything. Gruber never sent the Mintzes an application for the second conversion nor did anything else to “take care of everything.” Based on the designated evidence, I cannot conclude, as a matter of law, that Gruber’s actions were not a proximate cause of the Mintzes’ injuries.
The Kroger Company (“Kroger”) appeals a small claims judgment against it and in favor of Patricia Hammond in the amount of $570.00. For our review, Kroger raises two issues, which we consolidate and restate as one: whether the small claims court’s judgment was contrary to law. Concluding that the small claims court’s determination that a bailment existed between Hammond and Kroger and that Kroger breached its standard of care as bailee is not clearly erroneous, we affirm.Invol. Term. of Parent-Child Rel. of O.E., S.E., and M.E., and Desirae Evans v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. (NFP) - "Concluding that the trial court acted within its discretion in denying Desirae’s motion for a continuance and that sufficient evidence supports the order, we affirm."
NFP criminal opinions today (3):
Wednesday, November 28, 2007
Ind. Decisions - Supreme Court issues one today
In Aaron Reid v. State of Indiana, a 5-page, 5-0 opinion, Chief Justice Shepard writes:
Appellant Aaron Reid, convicted of conspiracy to commit murder after collaborating with a police informant and an undercover officer, argues that his sentence is inappropriate. We revise his sentence from the fifty-year maximum imposed by the trial court to the thirty-year advisory sentence. * * *
Given that no one was injured, both potential victims pleaded for leniency, and Reid had a history of mental health problems, it is inappropriate to order twenty-two year old Reid to serve fifty years. The advisory sentence of thirty years is more appropriate.
We direct the trial court to enter a sentence of thirty years executed time in the Indiana Department of Correction.
Ind. Decisions - Court of Appeals issues 2 today (and 23 NFP)
For publication opinions today (2):
In State of Indiana v. Adam L. Manuwal, a 14-page, 2-1 opinion, Chief Judge Baker writes:
Today we have the occasion to decide whether the trial court correctly determined that a driver of an all terrain vehicle (ATV) should not be prosecuted for driving under the influence of alcohol on his own property pursuant to Indiana Code sections 9-30-5-1 and –2, the statutes governing the offense of operating a vehicle while intoxicated. When examining the relevant provisions, it is apparent that the State should have instead proceeded against Manuwal pursuant to Indiana Code section 14-16-1-23, the statute governing a defendant’s operation of an off-road vehicle while under the influence of an alcoholic beverage.Gerald A. Rickert v. State of Indiana - "Gerald A. Rickert appeals his conviction for Robbery While Armed with a Deadly Weapon,1 a class B felony, as well as his sentencing enhancement for being a habitual offender. Rickert presents the following restated issues for review: 1. Did the State present sufficient evidence to support his robbery conviction? 2. Did the trial court improperly sentence Rickert with respect to his habitual offender enhancement? We affirm."
Appellant-plaintiff State of Indiana (the State) appeals the grant of appellee-defendant Adam L. Manuwal’s motion to dismiss—which Manuwal styled as a “verified petition for judicial review of probable cause and motion to suppress” (verified petition)—claiming that the trial court erred in concluding that Manuwal could not be prosecuted for Operating a Vehicle While Intoxicated Endangering a Person, a class A misdemeanor (OWI), on his own property. The State contends that prosecuting Manuwal for the alleged commission of the charged offense should proceed because the OWI statues make no distinction between operating a vehicle on private and public property. Concluding that Manual’s verified petition was properly granted, we affirm the judgment of the trial court. * * *
[U]nlike the OWI statutes—which require an operator’s license—there is no requirement that an individual must possess a driver’s license to operate an off-road vehicle on private property. For these reasons, we conclude that the trial court properly granted Manuwal’s verified petition because he was improperly charged under the general OWI statutes. The judgment of the trial court is affirmed.
BAILEY, J., concurs.
VAIDIK, J., dissents with opinion. [which begins] I respectfully dissent. First, although permissible, I find it problematic that the majority has created an argument on behalf of the defendant, completely altering the stated issue in this appeal. Second, after raising the issue of improper charging sua sponte, I believe that the majority improperly applies the law.
NFP civil opinions today (9):
Sebastian Chapman v. J. Mulroony, J. Pemberton, J. Hannish, and Lt. Brough (NFP) - "Sebastian Chapman is appealing a judgment in favor of various State prison officials regarding his claims for alleged civil rights violations under 42 U.S.C. Section 1983 (Section 1983)." Affirmed.
In Re: The Adoption of H.H.; Terry Hamrick v. Bradley Wright (NFP) - "Terry Hamrick (“Father”) appeals the trial court’s denial of his motion to correct error following its determination that his consent was unnecessary to the adoption of his daughter, H.H., by Bradley Wright (“Wright”). We affirm."
Marlan C. Bonds v. Carl Nelson Rutt, M.D. (NFP) - "Marlan Bonds, pro se, appeals an October 30, 2006 order dismissing his medical malpractice action. We affirm."
Dennis Hoffman, Eric Harvey, et al v. WCC Equity Partners, L.P., Eaton Excavating Inc., et al (NFP) - "Because the Neighbors did not provide the trial court with properly designated evidence supporting arguments in opposition to summary judgment, we cannot review the grant of summary judgment in favor of Benchmark and Eaton. Affirmed."
Traci C. Christensen v. J.R. Rumpza Chevrolet, Inc. (NFP) - "Traci D. Christensen appeals from the trial court’s judgment in favor of J.R. Rumpza Chevrolet, Inc. (“J.R. Chevrolet”), on her unpaid wage claim. We remand for more specific findings and for a ruling on the issue of J.R. Chevrolet’s allegedly improper withholding of Christensen’s health insurance premiums."
Sebastian Chapman v. Steve McCauley, Jayne Grimes, J. Mulroony, et al (NFP) - "Sebastian Chapman is appealing a judgment in favor of various State prison officials regarding his claims for alleged civil rights violations under 42 U.S.C. Section 1983 (Section 1983)." Affirmed.
In the Matter of A.M. V. State of Indiana (NFP) - "A.M. appeals his adjudication as a delinquent child for committing an act that, if committed by an adult, would constitute Child Molesting, as a class B felony." Affirmed.
Joel T. Boucher v. Huntington County Community School Corporation (NFP) - "We affirm the trial court’s grant of summary judgment in favor of Huntington because Boucher did not raise the issue of Huntington’s compliance with Indiana Code Section 20-28-7-2(c) at the hearing before the Board."
NFP criminal opinions today (14):
Ind. Decisions - 7th Circuit's case involving “'Pull My Finger Fred,' a farting plush doll," is back
The ILB reported on the "Pull My Finger Fred" case on March 20, 2007. Today the case, JCW INVESTMENTS, INC., d/b/a Tekky Toys, Plaintiff-Appellee v. NOVELTY, INC.. is back. In a 4-page opinion, Judge Diane P. Wood writes:
Tekky Toys won a jury verdict for $575,099.82 on its claim that Novelty, Inc., infringed Tekky’s copyright and trademark on “Pull My Finger Fred,” a farting plush doll; this court affirmed that judgment. See JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910, 921 (7th Cir. 2007). Thirty days after we entered judgment in Tekky’s favor, it filed a petition for attorneys’ fees, expenses, and costs in the district court. What is presently before us is the petition Tekky filed in this court for an award of appellate attorneys’ fees, expenses, and costs in the amount of $78,037.76.Ultimately Judge Woods decides:
To summarize, Tekky’s petition for costs [in the amount of $132.76] is DENIED, and Novelty is ORDERED to pay Tekky a total of $70,423.75 in attorneys’ fees.
Law - Brooke Russell Astor and Anna Nicole Smith
The Brooke Astor estate dispute promises to become the stuff of trusts and estates casebooks, moving along-side the Anna Nicole Smith estate fight. (See this March 11, 2007 ILB entry titled "Anna Nicole Smith bankruptcy and estate issues become law school case studies.")
Today the NY Times has the kind of thing the ILB loves, a guide headed "The Astor Estate Dispute: A Chronology." It includes a chronology of the dispute, with links to the actual documents - the last will and testament of Brooke Russell Astor, and the three codicils.
And for those of you who have access to the Wall Street Journal ($$$, for now), here is a story today (p. D1) headed "How to Ensure Relatives Don't Rip You Off: Case of Astor's Son Highlights Risks of Powers of Attorney; Requiring Regular Accounts," by Rachel Emma Silverman and Ashby Jones. It begins:
Sadly, Brooke Astor is making headlines again. But there may be a lesson in the indictment of the late philanthropist's son and a lawyer close to the family's affairs: It can be risky to hand off financial responsibilities even to someone you think you can trust.
Estate lawyers say older people are often making use of a tool known as a durable financial power of attorney. This legal document authorizes an agent -- usually a spouse, another family member, or a trusted adviser -- to make financial decisions if you become unable to make them yourself. But naming someone to take control over your money has the potential for serious abuse, and lawyers are increasingly devising strategies to help safeguard their clients.
Among the tactics: Lawyers are including provisions requiring regular accounting statements from agents. They also are naming co-agents who can serve as checks on each other, or naming a supervisor who has the power to fire an agent.
"People want to make sure when they sign the document that they do what they can to protect themselves," says Bernard A. Krooks, a lawyer with Littman Krooks in New York, who specializes in elder-law. "When the power of attorney takes over, you're usually no longer in a position to supervise it."
According to the indictment in the Astor case, made public yesterday in Manhattan, Ms. Astor's son, Anthony Marshall, abused his power of attorney in order to "unjustly enrich" himself and others. The indictment alleges that while his mother had diminished mental capacity, Mr. Marshall took works of art from her home and used her funds in a variety of ways: among them, to increase his salary, pay expenses related to a Maine property that Ms. Astor no longer used and pay the expenses of a yacht captain.
Ind. Gov't. - Still more on: "Terre Haute Mayor Kevin Burke has thrown opponent Duke Bennett’s eligibility to be mayor into question"
Updating this ILB entry from Nov. 20th, there are three stories today in the Terre Haute Trib-Star about the Terre Haute mayoral challenge suit, where the Ann and Ed DeLaney Indianapolis law firm represents the challenger, and James Bopp, Jr. represents Mayor-elect Duke Bennett.
An AP story is headlined "Missing initial may doom election challenge." A later story by Austin Arceo is headed "Judge grants recount in Terre Haute mayoral race: Judge David Bolk denies motions to dismiss recount and Burke challenge." A third story is headed "Depositions start Wednesday in Terre Haute mayoral challenge suit."
Courts - Tennessee attorney is loser in Kentucky malpractice lawsuit
Andrew Wolfson has an interesting, an lengthy, story today in the Louisville Courier Journal that begins:
He has been called the lawyer "sued on both ends" -- losing lawsuits filed against him by his client and by the Louisville surgeon his client unsuccessfully sued.From a side-bar headed "Who is Dr. Dry?"
As the Kentucky Trial Court Review put it, Tennessee attorney Laurence Dry was found on one hand to have botched a medical malpractice case "so good he couldn't lose it" and on the other hand to have filed a case "so bad he never should have taken it."
The paradoxical result is unprecedented in Kentucky, according to the presidents of both Kentucky Defense Counsel, which defends civil cases, and the Kentucky Justice Association, which represents plaintiffs.
"This must be the first time this has happened in the history of American law," said Louisville lawyer Gary Weiss, who represented another party in the cases.
Known as "Dr. Dry," Laurence Dry was a practicing surgeon for 24 years before he switched to law about 20 years ago. He advises other lawyers on medical negligence cases and tries some himself, according to other plaintiff's lawyers, who say he is nationally recognized in the field.
But Dry is also known in Kentucky legal circles for the unusual fashion in which he met his wife, who was a juror on a medical malpractice case he won in Fayette County in 1998.
A few days after the verdict, he called up Wanda McClure, asked her out, and then married her, she later said in a deposition. At their request, the judge who tried the case, Lewis Paisley, performed the ceremony -- after he was assured they had never met before the trial and there was no "funny business" during it, he said.
Paisley, now retired, said it was an innocent case of love at first sight.
The couple is still married, and Wanda McClure Dry, who later went to law school, now practices in his office.
Tuesday, November 27, 2007
Courts - "A Judge’s ‘Inexplicable Madness’ Over a Cellphone"
Howard Bashman's How Appealing has all the links that go with a story today from the Buffalo News that begins, "A state panel has ordered City Judge Robert M. Restaino removed from the bench for jailing 46 defendants after a cell phone rang in his courtroom and no one would admit to owning it."
[Updated 11/28/07] "Judge's Removal Recommended for Prolonged Tirade Over Courtroom Cell Phone" is the title to a story today by Joel Stashenko in the New York Law Journal.
Ind. Courts - "Monroe courts picked as computer test site"
This most recent ILB entry, dated Oct. 26, 2007, headed "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," discussed how the planned state court pilot project in Monroe County might (unnecessarily) interfere with existing DoxPop service in that county.
That situation apparently continues to be unresolved. However, the Bloomington Herald Times ($$$) has a story today by Bethany Nolan proving general background on the Monroe County pilot project:
Monroe County is a test site for a new computerized courts case management system the state hopes will be used by all 92 Indiana counties within the next five years.
The state is footing the bill for the Web-based system, which enables courts to automate functions such as imaging, accounting, docketing and creating calendars and reports. Indiana Supreme Court Justice Frank Sullivan, who was in Bloomington Monday to talk with area judges, county officials and attorneys about the new system, said it will also allow citizens to check the status of a case through the Internet for free, create a statewide registry of protective orders, and allow law enforcement to issue paperless “e-tickets” that will transmit directly into the system. It will also connect with the state Bureau of Motor Vehicles, the Indiana State Police, the Department of Correction and the Family and Social Services Administration.
The new system, called Odyssey, will go live in Monroe County on Dec. 17. Marion County’s small claims court is serving as a test site as well. The system was developed by Texas-based Tyler Technology.
“This will move us, by substantial steps, into the 21st century,” Monroe Circuit Judge Kenneth Todd said. “It will move us into a far better position to serve the citizens of Monroe County, and serve them in a more efficient and capable fashion.”
Sullivan, who serves as chair of the state Supreme Court’s Judicial Technology and Automation Committee, said the committee formed several years ago to provide help for local courts. Committee members believe the Odyssey system will create more efficient courts, improve communication with law enforcement and save money by moving counties that operate on different systems to the same case management system, he said.
“The Indiana Supreme Court is proud to be your partner in technology,” he said, adding, “This is all about trying to do things more efficiently by combining the resources of multiple counties.”
The state is paying for the system through user fees — of the fee people pay to file a civil case, $7 is dedicated to the project, Sullivan said. That’s raised enough to pay the expected $7 million to $8 million licensing fees for the program, he said. The state also expects to pay for updates, maintenance and to keep up a central server system in Indianapolis. The committee will also use about $65,000 in grant money to help law enforcement agencies obtain the necessary equipment to issue “e-tickets” rather than traditional paper violation tickets, Sullivan said.
Monroe County got a bonus by being a test site, however. The state is converting the data of more than 250,000 cases in the county’s current case management system to put into the Odyssey system so the county doesn’t have to run two systems in the future.
Sullivan said the committee hopes to see 20 percent of the state’s counties using Odyssey by the end of 2008, with the goal of having most counties online by 2010 or 2011. He said the state chose Monroe County as a test site because of the county’s eagerness to participate and its high quality courts and technology staff.
Ind. Courts - More on "Admissibility of electronic evidence -- is it "authentic"?
On Nov. 16, 2007 the Lafayette Journal & Courier published a story headlined "Transcript leads to man's conviction," written by Sophia Voravong, that reported:
For nearly two hours Wednesday, a Tippecanoe County jury listened to a sordid exchange between a 24-year-old man and someone he believed was a 13-year-old girl.Given that authentication of computer-related evidence is a relatively new area, the ILB wondered about the steps the prosecution took to get the chat room conversations admitted. In response to a question from the ILB, an observer at the trial responded:
The line-by-line recitation came from several online conversations that Justin W. Hicks, now 25, of New Castle had with the "girl," in which he detailed wanting to perform kinky sexual acts on her.
It was a key piece of evidence presented by the Tippecanoe County prosecutor's office during a two-day trial in Tippecanoe Circuit Court -- resulting in Hick's conviction Thursday of two counts of Class A felony attempted child molestation and five counts of Class C felony child solicitation.
Jurors deliberated for about three hours before returning the verdict.
"He was found guilty as charged," deputy prosecutor Laura Zeman said. "We're pleased because we don't want child predators traveling to our community to have sex with our children."
Hicks, a prison guard at New Castle Correctional Facility, was arrested as part of an undercover sting by the Lafayette Police Department. The "girl" he had been chatting with was detective Sgt. Tom Davidson.
He showed up in December 2006 to a Lafayette apartment where he believed the teen lived. The meeting had been arranged online.
The detective posing as the girl and an a female investigator actually read printed pages of the transcripts out loud. The detective read the suspect's "lines" and the investigator (a female) read the 13-year-old's lines.The ILB sent a message to the proscutor asking about how the chat room conversations had been authenticated, but received no response.
There were probably a good 20 pages or so of printed chat from a Yahoo chatroom, took about two hours for them to go through it all line-by-line (every LOL, brb, etc).
I know the detective saved each chat at the end and those were copied to a disk. He also printed off copies. They seized Hicks' computer, too. I'm not sure how exactly it works, but we have a similar chat system and you can save all chats verbatim. It gives a timestamp after each entered line.
In an entry dated June 18th, headed "Admissibility of electronic evidence -- is it "authentic"?", the ILB pointed to the May 4, 2007 opinion issued by U.S. Magistrate Judge Paul W. Grimm in the case of Lorraine v. Markel (D Md). The ILB posted the 101-page opinion online, along with a linked TOC. From the TOC it is easy to see the five evidence standards that electronically stored information must satisfy in order to be admissible under Judge Grimm's ruling. These are (1) relevance, (2) authenticity, (3) hearsay, (4) the original writing rule, and (5) balancing probative value against unfair prejudice.
[The second standard, authenticity, has been the focus of several Res Gestae articles I have written, focused on the problems of assuring the authenticy and admissibility of Indiana rules and statues where the official text of these basic legal documents is no longer available in print, but solely online.]
Judges Grimes' May 4, 2007 ruling has a discussion on the admission of "Text Messages and Chat Room Content," found on pp. 43-44 of the Md. federal court opinion.
Interestingly, another federal district case, out of Nebraska, issued a little over a month earlier than Lorraine, illustrates what can go wrong in the authentication of chat room discussions. The decision is U.S. v. Gerald Jackson (D. Neb., 3/28/07), and involves a motion in limine to exclude the chat room evidence. Some quotes:
In his current motion in limine, defendant seeks an order prohibiting the government from introducing the cut-and-paste document of alleged online chat conversations between “gnesta18" and “k8tee4fun” into evidence at trial. * * *The ILB had an entry earlier this year about another chat room conviction, in federal court, involving a former coach "charged with trolling the Web for sex with young girls," according to the NWI Times (see 7/15/07 ILB entry here).
The evidence at issue involves certain “instant message” or “chat” conversations conducted via computer between Margritz, posing as fourteen-year-old girl with the screen name k8tee4fun, and the defendant, using the screen name gnesta18. The conversations occurred between July 17, 2001, and August 14, 2001. The parties agree that both defendant’s and Margritz’s computers are missing. The parties also agree that there are no longer original electronic computer printouts or copies on floppy discs or hard drives or disc drives capturing the computer conversations between Margritz and the defendant during that period of time. None of the conversations were saved. It appears from the testimony of Margritz that he wiped his computer clean during a routine upgrade a couple of years after this investigation. Although it is not totally clear, the court believes the government agrees that the computer seized from the defendant has been lost or destroyed. Consequently, the government is attempting to introduce copy-and-paste notes taken by Margritz from the online chats and saved into a Microsoft Word document. Defendant objects to the admissibility of this evidence.
Margritz testified he conducted the online sting operation that resulted in the arrest of Jackson. He further testified that, at the end of each chat session, he saved the conversations between k8tee4fun and gnesta18 by clicking and dragging to highlight the complete conversation from start to finish. Filing No. 71 at 11, 18. He then copied and pasted the entire selection into a word processing document in Microsoft Word. Id. He testified that he saved each conversation chronologically in an ongoing log. Filing No. 71, 12:1-2; 18:14-16. He further testified that immediately after he copied and pasted the conversations into Word, he made another copy for himself and added certain notes and edits to that copy. Filing Nos. 71, 73-74, 77-78. He acknowledged that it was possible to leave out words if they were not properly highlighted and dragged, but stated that there was no human error in this case because he took “great pains” to look back at the screen and make sure he captured everything accurately before closing the chat window. Id. at 12-14, 21-22. He further testified that he never modified the document in any way. Id. at 12:9-13. He testified that he never relied on the archives of Yahoo, apparently because it was unavailable or he had been told it was not reliable.
Kevin H. Peden, a computer forensics expert, also testified at the hearing. He stated that he had seventeen years of law enforcement, had background experience investigating crimes involving children, and he had a computer engineering degree from Spokane Community College. He received training at the computer forensic boot camp, and he attended the NTI school of forensics. He has a computer certificate from Oregon State. He testified that he has conducted over 100 investigations and worked on fifteen child pornography cases. He testified that he always produced a bit-stream image of the hard drive, which was the forensic copy of the hard drive and is the best way to confirm the chat. Peden testified that the bit stream image would be the only way to see the evidence exactly as it appeared during the conversations. According to Peden, other ways to accurately save computer chats would include a screen capture where a log file is saved to the hard drive, found in unallocated space, or use of the ypager log found in Yahoo. He also testified that there were third-party software programs available in 2001 that would accurately save the online chats, and the basic “print screen” and “file-print” options would likewise have captured the entire chat. Peden testified that the cut-and-paste method employed by Margritz was the least effective way to capture the chat log. Filing No. 72, 19:4-12. * * *
The court finds the cut-and-paste document is not admissible at trial. First, the burden is on the government to show the document is authentic. United States v. Black, 767 F.2d 1334, 1342 (8th Cir. 1985); Fed. R. Evid. 901(a); United States v. Tank, 200 F.3d 627, 630 (9th Cir. 2000). The government must make a foundational showing that the transcript is trustworthy. United States v. Webster, 84 F.3d 1056, 1064 (8th Cir. 1996) (with regard to recording). The government attempts to introduce the editorialized version of the cut-and-paste document. However, the court finds the evidence offered by Peden is credible and supportable. Peden testified about a number of methods that could have been utilized to accurately capture the chats, but none of these methods were used. As set forth above, there are numerous examples of missing data, timing sequences that do not make sense, and editorial information. The court finds that this document does not accurately represent the entire conversations that took place between the defendant and Margritz. The defendant argues that his intent when agreeing to the meeting was to introduce his grandniece to the fourteen-year-old girl. Defendant is entitled to defend on this basis, as it goes to the issue of intent. Defendant alleges that such information was excluded from the cut-and-paste document or from a lost audiotape of a phone conversation between him and Margritz. The court agrees and finds the missing data creates doubt as to the trustworthiness of the document. See, e.g., Webster, 84 F.3d at 1064 (government must show trustworthiness of tape recording). Changes, additions, and deletions have clearly been made to this document, and accordingly, the court finds this document is not authentic as a matter of law.
Second, in the alternative, defendant argues that the cut-and-paste document is not admissible as it is not the best evidence. This rule provides an original writing or recording to prove the truth of the contents. Fed. R. Evid.1002. A computer printout is considered the original if it accurately reflects the data. Fed. R. Evid. 1001(3). The same is true of a duplicate. Fed. R. Evid. 1001(4), 1003. As the court has previously stated, the cut-and-paste document offered by the government is not an accurate original or duplicate, because, as previously noted herein, it does not accurately reflect the entire conversations between the defendant and Margritz. In addition, Margritz changed this document by including his editorial comments. Unlike the cases relied on by the government in its brief, in the case before the court there is expert testimony that the cut-and-paste document has been altered. Accordingly, for these same reasons the court likewise finds the cut-and-paste document inadmissible. In that same regard, the court finds the document is inadmissible under Fed. R. Evid. 1004 (allows for the secondary evidence when original is destroyed). See United States v. Gerhart, 538 F.2d 807, 809 (8th Cir. 1976). It is clear that the proposed document does not accurately reflect the contents of the original.
The government relies heavily on United States v. Tank, 200 F.3d 627 (9th Cir. 2000) and United States v. Simpson, 152 F.3d 1241, 1249-50 (10th Cir. 1998) for the proposition that chat room logs are admissible. The court finds the cases relied on by the government to be of little assistance. In both cases, it appears that the actual computer files were offered as evidence, not a cut-and-paste version of the computer files. The court would have no difficulty admitting evidence which had been saved on the computer and was the actual computer printout. The cut-and-paste document is not a computer record nor is it a computer printout. * * *
The motion in limine is granted and the cut-and-paste document is excluded for all purposes.
Ind. Decisions - "The Indiana Securities Law requires more of a director than a simple assumption that all is well."
In Ralph E. Lean v. Charles D. Reed and Paul A. Reinken, and Galaxy Online, Inc. and Galaxy Internet, Inc., a 14-page, 4-1 opinion, Justice Boehm writes:
The Indiana Securities Law creates liability of a director of a corporation for violations of the requirement that the corporation’s securities be registered and for misrepresentations and omissions of material facts in the sale of its securities. The director may establish a defense that in the exercise of reasonable care he did not know and could not have known of the violations. In most cases reasonable care is a fact issue. However, where it is undisputed that the director had no basis other than an assumption that management and counsel had arranged the transaction in conformity to law, failure to exercise reasonable care is established as a matter of law. * * *
The Indiana Securities Law requires more of a director than a simple assumption that all is well.
Conclusion. The trial court’s grant of partial summary judgment is affirmed. We summarily affirm the Court of Appeals as to issues not addressed in this opinion. See Appellate Rule 58(A).
Shepard, C.J., and Dickson and Rucker, J.J., concur.
Sullivan, J., dissents, believing this appeal should be dismissed as moot because this case has been settled.
Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)
For publication opinions today (3):
William McDermott v. State of Indiana - "Under the unique facts and circumstances of this case, we find that the State has met its difficult burden of demonstrating probable cause as well as exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. The trial court’s decision is not against the logic and effect of the facts and circumstances before it. Therefore, we do not find that the trial court abused its discretion when it denied McDermott’s motion to suppress."
Theodore Wittl v. State of Indiana - "Theodore Wittl (“Wittl”) pleaded guilty in Marion Superior Court to Class D felony auto theft and Class A misdemeanor criminal recklessness and was ordered to pay $4,918.80 in restitution to Hertz Rental Car of Louisville, Kentucky (“Hertz”). Wittl appeals the amount of ordered restitution. We affirm."
Brian Woods v. State of Indiana - "Brian Woods (“Woods”) was placed on probation in 2002. This case arises from the decision of the Marion Superior Court to revoke Woods’s probation. Woods claims upon appeal that the trial court denied him due process by preventing him from explaining why he violated the terms of his probation. We affirm."
NFP civil opinions today (2):
In the Matter of K.H. v. State of Indiana (NFP) - "Given K.H.’s failure to respond to the numerous lesser measures already afforded her, we cannot say that the juvenile court abused its discretion by concluding that its disposition was the least restrictive alternative consistent with the safety of the community and the best interests of the child. Thus, we cannot say that the juvenile court abused its discretion by making K.H. a ward of the DOC and recommending a six month commitment to the DOC."
Johann L. Backer v. Portage Twp. of St. Joseph County and Portage Twp. Trustee (NFP) - "In sum, the evidence most favorable to the judgment indicates that the Trustee gathered information regarding Backer’s application, applied its guidelines to that information, and granted partial assistance accordingly. The evidence supports the trial court’s findings and the findings support its judgment to uphold the Board’s decision to affirm the Trustee’s notice of poor relief action."
NFP criminal opinions today (8):
Ind. Decisions - Supreme Court issues confusing ruling re Mental Illness and Competency to be Executed
Michael Dean Overstreet v. State of Indiana, a 46-page opinion authored by Justice Rucker for the majority, is somewhat split , as indicated on p. 41:
Shepard, C.J., and Dickson, Sullivan, and Boehm, JJ., concur except as to part VI. B, and vote to affirm the judgment of the post-conviction court.Justice Rucker's opinion begins:
As to part VI. B, Shepard, C.J. delivers an opinion in which Sullivan, J. concurs and Dickson, J., and Boehm, J., deliver separate opinions.
A jury convicted Michael Dean Overstreet of murder, rape, and criminal confinement in connection with the 1997 strangulation death of 18-year-old Kelly Eckart. The jury recommended a sentence of death, and the trial court accepted the recommendation. On direct appeal we affirmed Overstreet’s conviction and sentence of death. Overstreet v. State, 783 N.E.2d 1140 (Ind. 2003), cert. denied, 540 U.S. 1150 (2004). Thereafter, Overstreet filed a petition for post-conviction relief, which the post-conviction court denied after a hearing. He now appeals that denial raising several issues for our review, at least two of which are waived because they were known and available at the time of Overstreet’s direct appeal, and another three are barred because of the doctrine of res judicata. We address the remaining issues, which we rephrase as follows: (a) was Overstreet denied the effective assistance of trial counsel; (b) was Overstreet denied the effective assistance of appellate counsel; (c) did Overstreet receive a fair post-conviction proceeding; and (d) is Overstreet incompetent to be executed because of his mental illness.Part VI is "Mental Illness and Competency to be Executed"; VI-A relates to the federal constitutional claim, VI-B to state constitutional claim.
Oddly, on pp. 38-40, where the discussion of the majority opinion turns to the VI-B, the state constitutional claim, the language becomes that of a minority opinion, ending on p. 40 with:
Because I see no principled distinction between the diminished capacities exhibited by Overstreet and the diminished capacities that exempt the mentally retarded from execution, I would declare that executing Overstreet constitutes purposeless and needless imposition of pain and suffering thereby violating the Cruel and Unusual Punishment provision of the Indiana Constitution. Therefore, I would remand this cause to the post-conviction court with instructions to impose a sentence of life imprisonment without parole. In all other respects, I would affirm the judgment of the post-conviction court.
Ind. Law - "Gary cameras may nab drivers who run red lights"
Jon Seidel reports today in the Gary Post-Tribune:
Running a red light in the city might get riskier if talks between the city's administration and other elected officials go as planned.This was an issue in Indiana nearly 3 years ago, as indicated in this Feb. 2, 2005 ILB entry headed "State may jump on red-light camera bandwagon." At the time, a bill was proposed which would allow 10 Indiana cities to install red-light cameras. Another ILB entry, from March 30, 2005, includes these quotes from an Evansville Courier & Press editorial:
A proposed law withdrawn from the City Council agenda last week would have allowed the use of cameras to catch drivers ignoring a red light on the road.
Joel Rodriguez, a special assistant to Mayor Rudy Clay, said the ordinance was withdrawn because Clay wants to discuss the idea with City Clerk Suzette Raggs and City Judge Deidre Monroe.
Once that happens, Rodriguez said, the City Council can expect to see the item return for a vote. "Our goal is to have at least four pilot cameras up," Rodriguez said.
Similar devices are in use in Chicago, but Rodriguez said he doesn't know of any city in Indiana that uses them.
Several states have banned red-light cameras and other photographic-enforcement systems.Gary also has an ordinance going into effect Jan. 1, 2008 which prohibits use of cell phones while driving - see this Oct. 8, 2007 ILB entry.
Others have rewritten their laws after noticing that violations were being driven more by government greed than by safety considerations.
So from the safety standpoint there is some evidence that red-light cameras work, but there is enough evidence to the contrary to warrant caution. On the issues of intrusiveness and potential for abuse, the verdict would appear pretty clear.
We see a signal indicating the way the Legislature ought to vote on red-light cameras.
It would appear to be flashing yellow.
Ind. Courts - "Repeat-offender cases concern judge, prosecutor"
Rick Yencer reports in the Muncie Star-Press:
A convicted murderer and other alleged repeat offenders remained in jail Monday after trial dates were set on their latest charges.
Delaware Circuit Court 4 Judge John Feick said it was discouraging to see a growing number of convicted felons returning to court to face new charges, a trend that also concerns Delaware County Prosecutor Mark McKinney. * * *
McKinney said a study was under way to determine the number of habitual offender cases filed over he past five years to determine whether a trend exists.
"The Indiana Department of Corrections, Legislature and Indiana Court of Appeals seem to all be working hard to get offenders out of prison quicker and quicker," he said.
The Legislature recently gave drug dealers one pass because the first dealing conviction does not count toward habitual offender enhancement, the prosecutor said.
McKinney supports a system similar to the federal government that requires offenders to do at least 85 percent of their sentence. Convicts in state courts generally serve about half of the sentence imposed by a judge.
Monday, November 26, 2007
Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)
For publication opinions today (1):
In Matter of the Unsupervised Estate of Martha H. Harris, Deceased; Kathy L. Wininger v. Pauline A. Giles , a 6-page opinion, Judge Najam writes:
Kathy Wininger, the executrix of the Estate of Martha Harris (“the Estate”), filed a petition in the Orange Circuit Court alleging that Pauline Giles had converted a certificate of deposit belonging to the Estate. After a hearing, the trial court determined that Giles was the rightful owner of the certificate of deposit. Wininger appeals and raises two issues for our review, but we address only the following dispositive issue: whether under Indiana Code Section 34-45-2-4 (“the Dead Man’s Statute”) Giles was precluded from testifying at the hearing. We reverse and remand for proceedings consistent with this opinion. * * *NFP civil opinions today (5):
The Dead Man’s Statute “guards against false testimony by a survivor by establishing a rule of mutuality, wherein the lips of the surviving party are closed by law when the lips of the other party are closed by death.” The application of the statute is limited to circumstances in which the decedent, if alive, could have refuted the testimony of the surviving party.
Christine A. Ankney v. Gregory A. Ankney (NFP) - "We reaffirm our holding that the trial court’s modification order is not supported by the evidence. Petition for rehearing granted, memorandum decision affirmed."
Ronald Hill v. Albert Cabage (NFP) - "Following a jury verdict arising from an automobile accident, Ronald Hill appeals the trial court’s denial of his motion to correct error, raising two issues: I. Whether the jury’s damages award was adequate; and II. Whether the evidence was sufficient to support the jury’s fault apportionment. We affirm."
Partow Development, Inc. v. Armando Gonzalez (NFP) - "Partow Development, Inc. (“Partow”) appeals the trial court’s findings that Armando Gonzalez (“Gonzalez) was permitted to build a pool house and attorney fees [sic.] because the neighborhood restrictive covenants were ambiguous and laches estopped Partow from objecting to Gonzalez’s design. On appeal, Partow raises several issues, which we restate as: I. Whether the restrictive covenants were ambiguous; II. Whether laches estopped Partow; III. Whether the trial court abused its discretion in ruling on the admissibility of conclusory testimony; and IV. Whether Gonzalez is entitled to attorney fees. We affirm in part and reverse in part."
Michael R. McGill v. Clark Holesinger (NFP) - "Michael R. McGill appeals the trial court’s grant of summary judgment to Clark Holesinger regarding McGill’s attorney malpractice complaint against Holesinger. * * * We conclude that McGill failed to establish a genuine issue of material fact that he was damaged by Holesinger’s alleged negligence in his billing and accounting practices. Consequently, the trial court properly granted Holesinger’s motion for summary judgment."
In Chuck Gunter v. Larissa Curry and J.M.L. (NFP), a 7-page opinion, Judge Kirsch writes:
Chuck Gunter appeals the trial court’s order granting a protective order to Larissa Curry and her daughter J.M.L. He raises two issues, which we consolidate and restate as whether the trial court erred when it issued the order of protection. We reverse.NFP criminal opinions today (3):
On February 27, 2007, Curry filed a petition for an order for protection against Gunter. In this petition, Curry requested protection for herself, her fiancé, and her three daughters. The petition alleged that Gunter had committed stalking against Curry’s fifteen-year-old daughter, J.M.L., by sending her emails.
Gunter is a volunteer fireman and EMT in Versailles, Indiana. He had met J.M.L. through his friendship with her brother-in-law and played on a church softball league with her. Gunter had also employed J.M.L. to babysit for his children. Beginning in October 2006, Gunter and J.M.L. exchanged emails and continued the exchange until January 2007, when Curry’s fiancé asked Gunter to stop emailing J.M.L. Gunter made no further attempt to contact J.M.L. after this. * * *
Under the statute, in order for Curry to qualify for an order of protection, she must be a victim of domestic or family violence and must file the petition against either a family or household member who committed an act of domestic violence or a person who has committed stalking or a sex offense against her. As stated above, Gunter is not a family or household member of Curry, and no allegations were made that she was a victim of domestic or family violence, stalking, or a sex offense. Therefore, Curry was not a person authorized to file a petition for an order of protection under IC 34-26-5-2. The trial court erred in issuing the order as it pertained to Curry.
Under the statute, Curry could petition the trial court for an order of protection on behalf of J.M.L. if Gunter was a family or household member who committed an act of domestic violence or if he had committed stalking or a sex offense against J.M.L. Gunter was not a family or household member of Curry or J.M.L. and was not accused of committing a sex offense. Further, as previously stated, the evidence did not support a finding that Gunter committed stalking against J.M.L. Curry was not authorized to file a petition on behalf of J.M.L. for an order of protection. We conclude that Gunter has proven prima facie error, and the trial court erred in issuing an order of protection for both Curry and J.M.L. Reversed.
Law - Resources on electronic discovery
Ind. Decisions - "State appeals court denies man’s probation gripes"
The Indiana Court of Appeals released a decision denying an Anderson man’s appeal that the Madison County Superior Court 1 erred when it ruled he should go to jail for a probation violation. * * *
The appeals court found that Wright’s rights were not violated because, “courts may admit evidence during probation hearings that would not be permitted in a full-blown criminal trial,” read the decision, quoting state statute.
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This Thursday, Nov. 29th:
9:00 AM - Timothy Creech v. State - Creech pleaded guilty in the Huntington Circuit Court to child molesting as a Class C felony. Creech’s plea agreement specified that he waived his right to appeal if the sentence was within the range agreed to. Creech was sentenced to six years, a term within the range; Creech appealed. In an unpublished memorandum decision, the Court of Appeals held that the plea agreement meant Creech had waived his right to a direct appeal of the sentence. Creech v. State, No. 35A02-0612-CR-1140, slip op. (Ind. Ct. App. Aug. 6, 2007) (NFP), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Creech: Darren Bedwell, Indianapolis, IN. Attorney for State, Zachary Stock, Indianapolis, IN.
9:45 AM - State v. Karl D. Jackson - Jackson was charged with operating a vehicle after being adjudged an habitual traffic violator. See Ind. Code § 9-30-10-16. The Hamilton Superior Court acquitted Jackson, and the Court of Appeals affirmed in State v. Jackson, 864 N.E.2d 431 (Ind. Ct. App. April 22, 2007), vacated. [See ILB entry here, 3rd case] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney State of Indiana: Cynthia L. Ploughe
Indianapolis, For Karl D. Jackson: Lawrence M. Hansen. Fishers, IN.
10:30 AM - David Green v. State - Green was convicted of murdering his pregnant wife and her unborn son. Green’s pretrial statement to police, given after the State agreed it would not pursue the death penalty against Green, was admitted at trial over Green’s objection. At sentencing, the Lake Superior Court stated the mitigating circumstances outweighed the aggravating circumstances, imposed minimum forty-five year sentences for each murder conviction, and ordered the sentences to be served consecutively. The Court of Appeals affirmed for reasons explained in Green v. State, 870 N.E.2d 560 (Ind. Ct. App. July 27, 2007), vacated [see ILB entry here]. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Green: Marce Gonzalez, Jr., Dyer, IN; Samuel Cappas, Highland, IN. Attorney for the State: Matthew D. Fisher, Indianapolis, IN.
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 Thursday, Nov. 29th:
1:15 PM - Lavern Baltimore v. State of Indiana - Jury trial found defendant guilty of Burglary Resulting in Bodily Injury, Class A felony and Sexual Battery, Class D felony. The Court is asked to decide four questions: Whether the trial court abused its discretion by permitting the deaf victim’s sign language interpreter to testify regarding the victim’s difficulty communicating; whether the evidence presented at trial was sufficient to sustain Mr. Baltimore’s burglary resulting in bodily injury conviction; whether Mr. Baltimore’s convictions for sexual battery and burglary resulting in bodily injury violate the Indiana Double Jeopardy Clause; and whether Mr. Baltimore’s fifty-three year sentence is inappropriate in light of the nature of the offenses and his character. Arguing for the appellant, Mr. Baltimore, will be Matthew McGovern of Evansville; Deputy Attorney General Monika Talbot will argue for the State of Indiana. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and May. [Where: Jasper High School, Jasper, Indiana]
This Friday, Nov. 30th:
1:00 PM - Jerry and Becky French vs. State Farm Fire & Casualty Insurance Company - Jerry and Becky French appeal the trial court's order granting summary judgment in favor of Jane Hodson on the Frenches' claim of negligent advice and procurement of insurance. In 2002 the Frenches purchased a manufactured home and obtained insurance from State Farm through Hodson. Thereafter, the Frenches' home was destroyed by a fire, and the Frenches filed suit against State Farm and Hodson. All parties moved for summary judgment, which the trial court granted in favor of Hodson. On appeal, the Frenches challenge the scope of their coverage under their insurance contract and whether the trial court erred in granting summary judgment to Hodson. The Scheduled Panel Members are: Judges Najam, Mathias and Bradford.
Sunday, November 25, 2007
Ind. Econ. Dev. - Distilling ethanol? Why not vodka?
"Farmyard Stills Quench a Thirst for Local Spirits" is the headline to a front-page story in today's NY Times reported by Susan Saulny. Some quotes from the lengthy story:
ATCHISON, Kan. — The main still of the High Plains liquor company here was scraped together from junked parts of an old food processing plant. The tubing for the bottling equipment had been used to milk cows, and one of the tanks was actually an industrial vacuum cleaner.From an accompanying story:
The whole clanking operation, headquartered on a farm northwest of Kansas City, looks like a patchwork contraption out of the imagination. And that is basically what it was two years ago when Seth Fox, a cattle rancher down on his luck, decided to get a license to distill some vodka and a little whiskey.
“I talked to banks, told them I wanted to make vodka on my farm here, and they said, ‘Yeah, right you are,’” recalled Mr. Fox, whose company went on to become the first distillery in Kansas since Prohibition. “Well, I had a million dollars in sales last year.”
“I’m the seventh generation to be in alcohol,” he said proudly. “Just the first to do it legally.”
On the heels of the microbrewing boom, new microdistilleries are thriving from coast to coast. And some of the latest and quirkiest entrants to the industry are in places like Iowa, Indiana, Illinois, Michigan and Mr. Fox’s barn. * * *
[S]ome of the states, increasingly aware of the power of agri-business to generate tourism and tax dollars, have gradually begun loosening some of the temperance-era laws that have lingered for decades, restricting who can distill what, and where.
With its abundance of grain and fruit, the Midwest stands poised to capitalize on the confluence of trends unlike any other region and could, in time, come to rival California, currently the leader in small-scale distilling, experts said.
Small, private distilleries are opening at a rate of about 10 to 20 a year. There are about 100 across the country. Some are attached to wineries, restaurants and breweries, or, increasingly, are located on farms. Though there is no precise definition for what the industry refers to as artisanal or craft distilleries, experts say they are distinguished from mass distillers by their small scale, their use of local and often organic ingredients, and the experimental quality of some of their products, like seasonal pumpkin-infused vodka. * * *
The heyday for small distillers was actually during Prohibition, which failed to deter extralegal production across the country. But after Prohibition’s repeal, each state was given broad powers to regulate the sale and distribution of alcohol, with an overlay of some standing federal requirements. Some states adopted stringent laws.
(Home distilling is still against the law, largely because of the safety hazards of working with flammable liquids. At minimum, distillers must be licensed by the federal government and a state.)
Over the past years, though, small steps have been taken toward loosening state regulation — moves that probably have as much to do with bringing in revenue as anything going on with consumer tastes.
“Distilled spirits are a bonanza from a tax standpoint,” said Kris A. Berglund, a professor at Michigan State University who is an expert on microdistilling. “I guess somebody sat down and looked at the math and said, Holy cow! We’re cutting ourselves out of the action, not to mention tourism dollars.”
Nebraska is the latest state to deregulate a part of the industry. A law went into effect Sept. 1 allowing brewpubs to operate stills. Indiana changed a part of its law in 2001 to allow wineries to operate stills. In the mid-90s, Michigan dropped the license fee to manufacture spirits to $1,000 from $10,000. Now it is home to at least 10 microdistilleries.
“There was no way for me to have an artisan distillery the way Indiana law was written after Prohibition,” said Ted Huber, who runs the Starlight Distillery on his farm in southern Indiana and who helped draft the law that was passed six years ago. “I can’t make whiskey, but can make anything that would come from raw ingredients for wine. I’m experimenting with grape vodka now.”
Mr. Huber also runs a winery, and it attracts a half-million tourists a year. But he finds that his copper pot still, imported from Germany, “is really a crowd pleaser, even when it’s not running.”
Speaking of rugged stuff, grappa, distilled from the residue of the winemaking process, generally has all the appeal of a flame-throwing punch to the stomach. Most are harsh and unpleasant, though there are significant exceptions. A grappa made by the Starlight Distillery in Borden, Ind., is one of them. It is smooth with a fruity, floral aroma, and would be highly enjoyable after a heavy meal.
Law - "Missouri high court to weigh the legality of at-home births" [Updated]
Kirsten Scharnberg of the Chicago Tribune reports today on midwifery in a long story datelined Kansas City, Mo. Here is a brief quote
[I]n Missouri, where the Kerr baby was born in a carefully planned home birth, the experienced midwife hired to oversee the delivery was committing a Class C felony.Readers may recall that several midwives were prosecuted in Indiana in 2006 and that Rep. Peggy Welch of Bloomington introduced legislation (which did not pass) "to recognize and regulate lay midwives." See the April 3, 2006 ILB entry here.
"Can you imagine that?" asked Jessica Kerr, the mother of the healthy newborn. "I make the personal choice to have my baby at home, assisted by a midwife of my choosing, and that is illegal?"
Even as midwifery grows increasingly popular nationwide, with an estimated 40,000 babies born outside hospitals last year, a handful of states remain severely restrictive of the profession. In nine states, including Illinois, Iowa and Indiana, some forms of midwifery are illegal, though not a felony. Missouri, the only state where midwives can be charged as felons, has long been the most hostile to the practice of midwifery, though hundreds of families like the Kerrs rely on an underground network of midwives who quietly operate outside the law.
Now Missouri finds itself in the national spotlight on the issue. A state lawmaker whose wife was aided by a midwife pushed through legislation this year that would allow midwives to practice freely in the state, and Gov. Matt Blunt signed the bill into law. But opponents quickly filed a lawsuit to overturn it, and state courts ordered an injunction. The law cannot go into effect until the Missouri Supreme Court rules on its legality, probably early next year.
[Updated 7:00 pm] Bloomington attorney Michael Ausbrook (of the blog INCourts.com) has emailed the ILB re the statement in the above story that "In nine states, including Illinois, Iowa and Indiana, some forms of midwifery are illegal, though not a felony." Ausbook writes:
That Tribune story you quoted in this post is just plain wrong. Practicing midwifery without a license [in Indiana] is a Class D felony. To make matters worse, the Court of Appeals held way back in 1982 that practicing midwifery without a license is per se practicing medicine without a license, and the latter is a Class C felony, which carries up to an eight-year sentence.
The reason I know all of this is that I am currently suing Steve Carter (and eventually the Nursing Board, I expect) over the midwifery statutes and regs. I've got 93 plaintiffs consisting of active lay midwives and current and past clients.
Environment - "Randolph County could zone 220,000 acres for CAFOs"
A story in Saturday's Muncie Star-Press, written by Seth Slabaugh, reports:
MUNCIE -- Concentrated animal feeding operations (CAFOs) would be allowed in a new intensive agricultural district covering about 220,000 acres of Randolph County if county commissioners adopt an ordinance proposed by the Area Planning Commission.The ILB took a look at this City-Data.com page and learned that Randolph County Indiana has a land area of 453 square miles.
The ordinance also would require anyone wanting to move into the new district to buy at least 40 acres on which to site a rural residence.
The commission spent more than two hours defending the proposal this past week at a meeting attended by dozens of opponents living in rural areas.
One of them, Rachel Carpenter, accused the commission of "choosing pigs over people." She also disputed commission chairman Mike Wickersham's portrayal of the proposal as a compromise. That is because CAFO owners support the ordinance while rural residents "don't feel protected" by it, Carpenter said. * * *
"This is backwards," complained rural resident David Johnson, whose farm land has been owned by his family since 1853. "We're finding ourselves in an industrial park," he said. "I want protection from industrial farming."
Instead of designating 75 percent of the county for CAFOs and 25 percent for people, the county should designate 25 percent of the land for CAFOs and 75 percent for people, Johnson said.
"I've never heard of an entire county being an industrial park," he said.
During an Indiana livestock summit this past summer, Ball State urban planning professor Eric Kelly called modern agriculture a light industry that was incompatible with rural residential use. A consultant to Randolph County, Kelly said the county needed an intensive agricultural district and then another district where hobby farms, row crops and rural residences could co-exist.
As a result, Randolph County is proposing the intensive agricultural district and a limited agricultural district.
The planning commission will vote on the proposed ordinance at 7 p.m. on Dec. 20. It will then be forwarded to county commissioners for final action. * * *
The ordinance would provide a buffer of one mile between CAFOs and cities and towns in Randolph County, as well as a buffer of half a mile between CAFOs and residents of unincorporated communities, subdivsions and heavily populated highways. That means more than 18,000 of Randolph County's population of 26,581 people would live no closer to a CAFO than half a mile or a mile.
The ordinance would allow CAFOs within 750 feet of the thousands of other rural residents of Randolph County.
Wickersham, the commission chairman, said the draft ordinance provided more protection than the county's existing zoning law, which permits CAFOs wtihin 300 feet of a residence anywhere in the county, which contains 289,813 acres.
The new ordinance also would require CAFO operators to inject, rather than spray, manure onto farm fields.
As there are 640 acres in a square mile, there are 289,920 acres in Randolph County. The proposed new "intensive agricultural district " would thus occupy 75.88 % of the county.
Saturday, November 24, 2007
Environment - An update on outdoor wood-fired boilers
The ILB's first entry on wood-fired boilers was nearly two years ago. (Here is a list of all entries.) IDEM had posted a notice in the Indiana Register asking for written comments on whether a new rule should be developed concerning regulation of emissions from outdoor furnaces and outdoor boilers.
Soon all hell broke lose. For example, Bedford's WBIW reported on Dec. 29, 2005:
Cities like Los Angeles might require air-quality control, however for environmentalists to claim [outdoor] wood-burning furnaces are a health problem in Indiana is ridiculous. State regulators asked for comments from Hoosiers on the subject, and they are on the receiving end from citizens that don't want the IDEM meddling in what method they use to heat their homes. Until State Senator Brent Steele became aware of the public comment period that ends January 3rd, the IDEM had more or less kept their comment period a secretOn Jan. 4, 2006 the Bedford Times-Mail editorialized against the Indiana Register:
Such rules are proposed in a publication called the Indiana Register. It's thick. There's no way a newspaper, for example, could print it all. The rules are complicated. And there's no easy way for ordinary Hoosiers to learn about all of the proposed rules that might affect them.In the end, IDEM never moved forward with its rulemaking. However, as the long list of ILB entries illustrates, issues raised by unregulated outdoor wood-fired boilers manifested themselves in communities all over the state. Because there are no federal guidelines and because the state has failed to act, each affected community has had to confront the problem on its own.
Consider the way Sen. Brent Steele, who burns wood for heat himself, learned of the proposed rule. Steele is a lawmaker and a lawyer. His research, though, proved fruitless until a legislative assistant mentioned that it might be a proposed rule change.
In addition, the current system plays favorites. Companies with deep pockets can pay lobbyists and lawyers to keep an eye on the Indiana Register. Ordinary citizens cannot.
Against those odds, Hoosiers don't stand a chance. We need to find a better way to keep up with, and become involved in, our own government.
Indiana is not unique in this regard. Here is an AP story by Stephanie Reitz, dateline Hampden, Mass. Some quotes:
Rob and Lynne Wallace jumped at the chance to install an outdoor wood boiler two years ago to heat their home and water supply.
For a year, they were immune to fluctuating fuel oil prices. Their family-owned tree service provided more than enough wood, stacked under a canopy near the furnace about 50 paces from their back patio.
But earlier this year, their small western Massachusetts town set limits on the outdoor boilers that forced the Wallaces to shut theirs down.
Concerned about air quality and neighborhood disputes, Hampden joined a growing number of communities nationwide setting their own rules on the increasingly popular wood boilers, which are not federally regulated. The U.S. Environmental Protection Agency recommends emissions and air quality standards, but does not regulate where and when the wood-fired burners can be installed or used.
Rules are patchy on the state level, too.
Some states, including Connecticut and Maine, have regulations and let their municipalities adopt even stricter limits or ban the boilers altogether. Massachusetts has considered statewide rules but has not enacted them, while Michigan offers a model ordinance that local governments can adopt in the absence of statewide standards.
The Northeast States for Coordinated Air Use Management, a government coalition, estimates more than 155,000 wood boilers have been sold since 1990 in the Northeast, upper Midwest states and other areas prone to cold winters.
For those with easy access to wood, the boilers could make their homes among the few that are not vulnerable to swings in fuel oil and natural gas prices. * * *
The boilers resemble small sheds and burn wood to heat water, which is piped underground to the nearby home or other structure to provide heat and hot water. Some owners also use them for hot tubs, greenhouses and businesses such as dairy barns.
Depending on their size, their purchase price can range from about $5,000 to $15,000. That does not include pouring the foundation on which they sit, installing underground piping, extending the unit’s smoke stack to exceed the height of any nearby roof, and other costs.
Their proliferation has prompted disputes over where they can be operated, the amount and smell of smoke emitted and other neighborhood issues. Many of those conflicts are being played out in town meetings and the offices of selectmen, mayors and health boards.
“You don’t realize what you’re dealing with until you get this haze all around your house and your back yard,” said Chris Anderson, who bought his home in East Longmeadow, Mass., last year before learning that his neighbor had one of the boilers. * * *
“We beg our customers to extend their chimneys higher up so the smoke disperses where their neighbors aren’t affected, and we beg our customers to burn only the right wood,” said Scott Bradley, owner of Mainline Heating & Supply of Ashford, Conn.
“We tell them you have the right to use a wood burner and stop using foreign oil, but you never have the right to smoke out your neighbor,” he said.
In an attempt to avert such problems, Connecticut requires the boilers to be at least 200 feet from the nearest home not served by the unit, and also mandates chimney heights and the quality of the wood to be burned.
But those rules apply only to burners installed after July 2005, and towns can set stricter regulations or refuse to “grandfather in” older units if they wish. Some communities have banned the outdoor boilers altogether, including several in western Massachusetts and the eastern Connecticut towns of Hebron and Tolland.
Robert Girard, assistant director of the Connecticut Department of Environmental Protection’s air enforcement division, said the department urges potential buyers to research whether their site is suitable before they make the purchase.
“Sometimes they’re just not put in the right place because of the topography, the closeness of neighbors, things like that,” he said. “There have been a number of cases where people have had to remove the units after they’ve spent a lot of money to put them in.”
Friday, November 23, 2007
Courts - More on "Where Have You Gone, Sherman Minton?"
On Dec. 12, 2006, the ILB posted an entry titled "Where have you gone, Sherman Minton?" , noting that: "The ILB took a look at the paper, given that Justice Minton was a Hoosier (New Albany) and a 7th Circuit judge from 1941-49 in addition to serving as a Supreme Court justice from 1949-56." The draft paper, by profs Justin Crowe of Pomona College and Christopher F. Karpowitz of Brigham Young University, is available here via SSRN.
Today the ILB was pleased to receive via the U.S. Mail a copy of the published version of the paper, "Where have you gone, Sharman Minton? The decline of the short-term Supreme Court justice," which appeared in the latest (Sept. 2007) issue of Perspectives in Politics.
Courts - "North Dakota should require proper findings by judges before sealing court records"
From a press release dated Nov. 20th by The Reporters Committee for Freedom of the Press:
Court records should not be sealed unless a judge makes specific findings of fact, as required by the U.S. Supreme Court and the Supreme Court of North Dakota, The Reporters Committee for Freedom of the Press argued today.The case is Forum Communications v. Jahnke (N.D.); the amicus brief argues that court records related to a lawsuit between the NCAA and University of South Dakota should not be sealed.
In a friend-of-the-court brief to the North Dakota Supreme Court, the Reporters Committee urged the court to issue a directive requiring lower courts in the state to follow specific procedures set forth both in case law and in the court's own rules before sealing records. The closure issue arose in a lawsuit brought by the National Collegiate Athletics Association against the University of North Dakota alleging the school's "Sioux" logo is racially insensitive and demanding it stop using the name and Indian image in association with the school's athletic teams.
Trial court judge Lawrence Jahnke closed off access to documents filed in connection with the court case to encourage a settlement between the parties, which was reached Oct. 26. However, the sealing order was not accompanied by the required findings of fact, set forth under North Dakota court rules as well as case law.
"Despite the settlement, the court has yet to reopen the court files," said Reporters Committee Executive Director Lucy A. Dalglish, a 1980 graduate of the University of North Dakota. "While the judge clearly was annoyed by media attention to the case, that does not justify violating the law to close public access to information about the lawsuit and its settlement. "
The settlement with the NCAA apparently requires the university to stop using the Sioux image and name in association with its athletic teams if it does not get approval from the state's Sioux tribes within three years.
The Reporters Committee asked the North Dakota Supreme Court to issue a ruling requiring all courts in the state to follow the law when determining whether to seal court records. It pointed out the public interest in access to court records, as well as the strong case law supporting such access.
The brief is available on the Reporters Committee Web site.
Law - A good Friday story, 18-year-old easily passes dreaded California bar
The WSJ Blog had this entry earlier this week, about 18-Year-Old Kathleen Holtz passing the California Bar. By now there are plenty of reader comments, many of them asking why someone that smart would jump immediately into law firm practice:
Two years ago, the WSJ broke news that Kathleen Sullivan, the noted constitutional scholar and former dean of Stanford Law School, failed the California bar, notorious for being the hardest in the nation. (Sullivan passed the second time around.)Here is an earlier feature on Kathleen Holtz from the Oct. 19th LA Times, headed "Young law school grad skips the bars and tries to pass the bar instead: Eighteen-year-old Kathleen Holtz has already been hired by a Century City firm. If she doesn't fail the exam, she'll be the youngest licensed lawyer in the nation."
Today we have happier bar-exam news about another Kathleen — 18-year-old Kathleen Holtz (pictured). Last month we introduced you to Holtz, a first-year associate at TroyGould in Los Angeles who was awating her bar results.
On Friday night at 6 p.m., Holtz found out that she passed — the first time around. Once sworn in and admitted to the Calfornia bar, she’ll be the youngest lawyer in the Golden State, and quite possibly the nation. Holtz started at Cal State L.A. at age 10 and entered UCLA Law at 15, earning a spot on the law review.
Environment - Still more on: "BP wastewater permit: 'We already have the technology'"
WHITING, Ind. -- Every day, 20 million gallons of industrial waste carrying thick globs of oil and other unsavory effluents flow from BP's Indiana refinery to its last stop before Lake Michigan -- a 30-acre wastewater treatment plant.
Three months ago, the London-based oil company said it would scrap the Whiting refinery's planned $3.8 billion expansion if it could not find ways to cut the amount of additional waste that project would send into the lake.
Now, as the clock ticks toward a decision on whether the project can proceed, BP PLC says it has not yet figured out how to cut its expected higher discharges. * * *
Under a wastewater permit issued in June, the refinery could boost its average daily discharges of ammonia into the lake by 54 percent and increase the amount of suspended solids by 35 percent.
Environmentalists contend the higher pollutant levels would harm the lake's health at a time when it's still recovering from decades of virtually unregulated industries. They also said the added discharges by the refinery would threaten the source of drinking water in Illinois and Indiana.
"We've made decades of progress and invested billions of dollars in reducing industrial pollution to help the Great Lakes get healthier. We can't take a step backward," said Cameron Davis, executive director of the Chicago-based Alliance for the Great Lakes. * * *
The refinery is already the nation's fourth-largest, covering 1,400 acres. And it's also one of the top industrial polluters along Lake Michigan, particularly in terms of its ammonia discharges, said Peter Swenson, chief of the water permits section in the EPA's Chicago office.
Indiana environmental officials say, however, that several municipal wastewater treatment plants on Lake Michigan or the other Great Lakes discharge either considerably higher levels of suspended solids and ammonia, or comparable amounts.
The Indiana Department of Environmental Management, despite BP's promise, will still hold the refinery to the new permit's higher limits, agency a spokeswoman said.
BP does plan to stick with the new permit's provision giving it until 2012 to cut mercury discharges to levels previously mandated by the EPA.
The expanded refinery would be the nation's top processor of the growing supply of heavy high-sulfur Canadian crude, boosting its production of gasoline, diesel fuel and jet fuel by 15 percent to about 4.7 billion gallons annually, Dean said.
It would also add about 2,000 construction or related jobs and 80 permanent jobs to the 118-year-old refinery's current 1,700-employee work force. * * *
Davis, of the Alliance for the Great Lakes, believes a solution will be found, because a multibillion-dollar plan rides on the outcome.
"It's not a question of whether or not it can be done. It's a question of whether BP is willing to make the investment," he said.
Ind. Courts - Constitutionality of a federal sex offender registry law challenged
Bob Kasarda of the NWI Times reports today on a suit filed in federal court:
The Sex Offender Registration and Notification Act, which requires sex offenders to keep their registration current no matter where they live, is invalid under the 10th Amendment because it has not been adopted by most states, including Indiana, Truitt said.
The requirements also have nothing to do with interstate commerce and thus Congress has no power to require the rules be implemented by the states, he said.
Truitt further accused Congress of improperly delegating to the attorney general the power to decide how to apply the law to defendants accused of violating the requirements before they took effect. This is the case with his client, who is accused of violating the registry law before it took effect July 27, 2006.
"These are decisions of Congress," he wrote.
Truitt filed the challenge before U.S. District Court Chief Judge Robert Miller Jr. on behalf Marcus Dixon, who is accused of failing to register as a sex offender when he cut an electronic monitoring bracelet off his ankle and moved from South Carolina to Michigan City during May 2006. He now faces up to 10 years behind bars, as compared to 90 days under South Carolina law and up to one year under the former federal law.
A bench trial is scheduled in the case Dec. 20, which means Miller should rule on the motion to dismiss before that time, Truitt said.
In addition to challenging the overall Constitutionality of the law, Truitt argues the case against his client should be dismissed because Dixon was never made aware of the new registration requirements. The requirements have also never been adopted by either Indiana or South Carolina and it was "therefore impossible for Dixon to have registered."
Environment - The state of groundwater in Louisville
The ILB has recently begun taking note of stories relating to water resources management or the lack thereof: continued pollution of Lake Michigan; efforts to draw down and divert the water resources represented by the Great Lakes; the mining of Indiana aquifers for out-of-state sales; big water consumption by ethanol plants; etc.
Today this story about Louisville groundwater levels falling, reported by James Bruggers of the Louisville Courier Journal, caught the ILB's eye:
Water deep under downtown Louisville provides an inexpensive source of heating and cooling for many buildings.Once the water has been withdrawn from the aquifer and circulated through the system, "The water is then released into the Ohio River, where hydrologists say it's lost to the downtown aquifer." More from the story:
But new demands have drained more than 18 feet from the underground reservoir in the past two years, raising concerns about whether a natural resource is being wasted.
Federal scientists point to the Galt House East, which has increased fourfold the amount of water it pumps for a geothermal cooling and heating system that it shares with the neighboring Waterfront Plaza office towers.
The diminished aquifer does not pose an immediate threat to groundwater supplies, and is only in the downtown area, said officials with the U.S. Geological Survey.
But if the level drops much more, the Galt House system could begin to draw air through some of its wells, hindering its operation, a senior Galt House official said. And it could be harder for other buildings to tap into an energy source that's increasingly viewed as economical and better for the environment, experts cautioned.
"Future development … could be impacted if planners and architects do not understand the (groundwater) system, its potential and its limitations," said Mike Unthank, a Geological Survey hydrologist.
While "plenty of water" remains underground, he said, the situation also shows the need for better monitoring of the aquifer, which contains as much as 100 billion gallons beneath northern and western Jefferson County.
Such issues need to be resolved as geothermal energy becomes more popular, said Donald Greulich, president of Kerr Greulich Engineers, which designed a geothermal system for St. Francis High School downtown and for RiverPark Place on River Road.
"People are looking to ways to use less fossil fuel," he said, and with competition, questions are bound to come up.
"Who owns the water rights? How much water is there? How much can they use?"
Doug Zettwoch, a Geological Survey technician, acknowledged that hydrologists aren't closely monitoring the aquifer.
A network of dozens of Jefferson County monitoring wells was largely dismantled in the 1990s with federal and local budget cuts, he said, so state regulators don't have as clear an idea of how much water is available when they issue permits for tapping groundwater.
Permits are required for anyone taking more than 10,000 gallons a day, and the state has issued 700 of them.
"It presents a challenge when you don't have eyes into the aquifer," acknowledged Bill Caldwell, who oversees water supply and planning for the Kentucky Division of Water.
While the state has a network of wells and surface water stations that sample water for pollutants, it does not have the budget to routinely track groundwater levels, said Peter Goodmann, who heads the agency's groundwater branch.
Thursday, November 22, 2007
Law - Arizona ruling involving move to Indiana may derail grandparents' visitation rights in that state
Howard Fischer of the Arizona Business Gazette reports:
A new court ruling could set back more than two decades of efforts by grandparents to secure visitation rights in divorce cases.The 13-page decision, Sheehan v. Flower (11/13/07), is available here. Here is more from the story:
In a unanimous decision, the state Court of Appeals acknowledged that a 1983 law gives grandparents the ability to intercede in these cases to secure the right to continued contact with their grandchildren.
But the judges said state law is worded in such a way that they may be unable to enforce that right if the custodial parent decides to move out of state.
Stanley Murray, an attorney who specializes in grandparent visitation-rights cases, said the ruling effectively undermines a 1983 law that first gave grandparents the right to see their grandchildren even after a divorce.
Murray said he expects to ask the state Supreme Court to review the decision. But he conceded it may take legislative action to guarantee grandparents can demand the rights lawmakers first granted them 24 years ago.
This case involves Kiley Sheehan, who was awarded sole custody of her child following a divorce. The original decree granted the child's father four hours of parenting time every other week, supervised by Lou Ann Flower, his mother.
Flower subsequently sought her own visitation time, which a trial judge awarded over the mother's objections.
Two years ago, though, Sheehan announced that she would be going to Indiana to care for an ailing relative. Flower asked a Maricopa County Superior Court judge to prevent the move, saying the sole purpose of Sheehan's actions was to prevent visitation.
By the time the judge held a hearing, Sheehan had permanently moved to Indiana.
Murray, representing the grandmother, pointed out that divorce laws spell out that a custodial parent who wants to relocate has to give notice. More to the point, it permits a judge to forbid relocation, using the test of the child's best interests.
But appellate Judge Patricia Norris pointed out that statute refers only to "parents." That, Norris said, means grandparents have no such rights.
Murray said the ruling could make the 1983 law meaningless, saying parents who don't like grandparent-visitation orders will just leave the state.
"The court's already determined it's in the best interests of the child to have access to the grandparents," he said. "How can the parent just take off and not have to worry about it anymore?"
Norris said there are other laws, beyond the one dealing with leaving the state, that deal with violation of visitation orders. But Murray said the ruling probably makes them useless for grandparents as they, too, refer only to parents.
Law - As the volume of e-mail to Congress skyrockets, questions arise about computer generated messages
A long story in the Washington Post today by Jeffrey H. Birnbaum and Kim Hart begins by looking at e-mails sent "to the Federal Communications Commission opposing the proposed merger between the satellite radio networks XM and Sirius":
A check by The Washington Post of 60 people whose names were attached to identical, anti-merger e-mails instigated by the National Association of Broadcasters, a major opponent of the merger, produced mostly unanswered phone calls and recordings saying the phones were disconnected. Of the 10 people reached, nine said they never sent anything to the FCC, and only one said she remembered filling out something about Sirius but did not recall taking a position on a merger.
The responses raise questions debated a lot in Congress and at federal agencies lately: Are the hundreds of millions of narrow-interest e-mails that deluge official Washington each year a useful measure of public sentiment? Are they even being sent by real people?
The torrent, made possible by Web lobbying techniques, is subverting the process it was meant to influence, some experts said.
"It's a problem," said Stuart W. Shulman, a political scientist at the University of Pittsburgh. "If someone sends a meaningful comment, which is what the agencies are seeking, it becomes difficult to find." The e-mail volume is so massive, he said, that agencies have begun to pay less attention to the comments.
Congress is also wary of the trend. A poll of 350 congressional staffers conducted by the Congressional Management Institute in 2005 indicated that half of them did not believe that form-letter messages were sent with the knowledge or approval of constituents. * * *
A large number of those e-mails were produced through interest group Web sites, a standard lobbying practice. Lawmakers are so frustrated with the volume of missives thrown off by those sites that many are placing obstacles in the way of e-mails not written personally by constituents. Barriers include requiring e-mailers to fill out a special form on lawmakers' Web sites and to complete a simple math problem to get their e-mails through.
Federal agencies have also experienced a gigantic increase in computer-generated e-mail. This year, the Fish and Wildlife Service received more than 300,000 form-letter e-mails from members of the Natural Resources Defense Council urging that polar bears be placed on the endangered species list, according to the eRulemaking Research Group, which tracks e-mails dealing with regulations.
Ind. Courts - "James J. Krajewski, a former Lake Superior Court judge, died Tuesday night after a brief illness"
The NWI Times reports today, in a story by Bill Dolan headlined "Well-known attorney dies":
CROWN POINT | James J. Krajewski, a former Lake Superior Court judge, died Tuesday night after a brief illness.
"He was a gentleman judge, and when he undeservedly left the bench, he remained a gentleman lawyer," Highland attorney J. Michael Katz said.
Others praised Krajewski's intelligence upon learning of his death Wednesday.
"He was the smartest lawyer I knew," Munster attorney Jim Padula said, adding Krajewski, who suffered from cancer, "accepted it courageously. There was no self pity." * * *
Krajewski, 50, had practiced law since 1983.
He came to public prominence when Gov. Robert Orr named him to the Superior Court County Division seat left vacant by the federal conviction of former Judge Orval Anderson on obstruction of justice charges. * * *
Krajewski stood for election in 1990 and was defeated by Gary attorney Bernard Carter, who is now county prosecutor.
Ind. Decisions - "Appeal struck down in Starke urine swap case"
The Indiana Court of Appeals has upheld the felony conviction of a Knox woman who falsified a friend's urine sample in the wake of a fatal 2005 sledding accident.
In an 18-page decision released last week, appellate court officials upheld a jury's decision that 34-year-old Christina Roush had been guilty of assisting a criminal, a Class D felony, in conjunction with her role in the aftermath of a Jan. 23, 2005, accident that claimed the lives of 6-year-old Jade Craft and her brother, Camdin Craft-Haddin, 2.
According to court records, Roush was working as a laboratory technician at Starke Memorial Hospital on the night when Bobbie Rowe, 44, had been towing the children on a sled behind an ATV along County Road 250 West near Knox.
Rowe saw an approaching van driven by Lester Hensley coming toward her on the road, and slowed the ATV to a stop. However, the sled moved into the path of Hensley's van, which drove over the two children and Rowe's daughter, Charity Minix, who were on the sled.
The two younger children were killed instantly, and Charity Minix suffered serious injuries. Rowe left the scene of the accident after emergency crews arrived, then telephoned her sister, Patricia Minix, 47, to ask her to supply a urine sample.
Rowe knew that police would take a urine sample from her, and she was concerned that marijuana she had smoked in the days before the accident would be detected if she provided her own sample.
Rowe gave Roush a sample from Patricia Minix, which was labeled as Rowe's and submitted to authorities. But the swap was discovered later, when a sample of blood taken from Rowe revealed the presence of chemicals resulting from smoking marijuana.
Patricia Minix pleaded guilty to a Class D felony charge of obstruction of justice in July 2007 and received an 18-month sentence, which was suspended, for her role in the case.
Rowe was subsequently convicted on several felony counts, and sentenced to serve more than 15 years in prison. Roush was also arrested, and charged with one count each of obstruction of justice and assisting a criminal, both Class D felonies.
Roush's first trial, conducted in April 2006, was declared a mistrial after the jury was unable to reach a verdict. In response, the state moved to amend the charging information nearly one year after the omnibus date.
In the new charging information, prosecutors claimed that Roush "made a false record" by labeling the urine sample as Rowe's. In the earlier charge, the allegation had been that Rowe "altered a record." Roush had argued against the earlier allegation, stating that she did not know the urine was from Patricia Minix, and therefore did not knowingly alter the record.
The new charges stuck, and Roush was found guilty on both charges. However, Starke County Circuit Court Judge Kim Hall decided against entering a judgment of conviction on the obstruction of justice charge.
Wednesday, November 21, 2007
Ind. Decisions - Transfer list for week ending November 21, 2007
Here is the Indiana Supreme Court's transfer list for the week ending November 21, 2007. Be sure to view all 4 pages.
There was one transfer granted this week, Cooper Industries, LLC. v. The City of South Bend. See this ILB entry from yesterday for details, quoting the COA's conclusion that "the City’s claims under the common law tort theories of negligence, trespass, public and private nuisance, as well as its statutory claim under the ELA are all barred by the six-year statute of limitations."
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 - 7th Circuit decides one Indiana case today
In USA v. Parker (ND Ind., Judge Sharp), a 15-page opinion, Judge Sykes writes:
Jesse James Parker was convicted of making a false statement on a federal firearms form, being a felon in possession of a firearm, and being an illegal drug user in possession of a firearm. He raises four challenges to his convictions and sentence: that his trial violated the Speedy Trial Act, that his firearm possession convictions are multiplicitous, that he received ineffective assistance of counsel, and that his term of supervised release was imposed in violation of United States v. Booker, 543 U.S. 220 (2005).
We reject all but the multiplicity challenge. We agree that the two firearm possession convictions—under 18 U.S.C. § 922(g)(1) and (3)—are multiplicitous, as they arise from a single incident of firearm possession. Parker did not raise the multiplicity objection in the district court, however, so our review is for plain error. Parker was sentenced to concurrent prison terms on these counts but was subjected to an additional $100 special assessment for the second firearm possession conviction; we held in United States v. McCarter, 406 F.3d 460, 464 (7th Cir. 2005), that this is not a sufficiently serious error to warrant correction under the plain-error standard. See also United States v. Baldwin, 414 F.3d 791, 796 (7th Cir. 2005) (following McCarter). We now conclude that this holding is inconsistent with Supreme Court precedent and out of step with other circuits that have addressed the question. We therefore overrule this aspect of McCarter and Baldwin. The case is remanded with instructions to vacate the sentence on one of the firearm possession counts and merge the two convictions.
Law - "Georgia's top court overturned a state law Wednesday that banned registered sex offenders from living within 1,000 feet of schools, churches and other areas where children congregate" [Updated]
The AP report this afternoon by Greg Bluestein continues:
"It is apparent that there is no place in Georgia where a registered sex offender can live without being continually at risk of being ejected," read the unanimous opinion, written by presiding Justice Carol Hunstein.Access the 17-page Georgia Supreme Court opinion in the case of Mann v. Georgia Dept, of Corrections, here.
The law had been targeted by civil rights groups who argued it would render vast residential areas off-limits to Georgia's roughly 11,000 registered sex offenders and could backfire by encouraging offenders to stop reporting their whereabouts to authorities. * * *
Georgia's law, which took effect last year, prohibited them from living, working or loitering within 1,000 feet of just about anywhere children gather - schools, churches, parks, gyms, swimming pools or one of the state's 150,000 school bus stops. * * *
Twenty-two states have distance restrictions varying from 500 feet to 2,000 feet, according to researchers. But most impose the offender-free zones only around schools, and several apply only to child molesters, not all sex offenders.
The Georgia Supreme Court ruling said even sex offenders who comply with the law "face the possibility of being repeatedly uprooted and forced to abandon homes." It noted that the offender would be in violation of the law whenever someone opts to open a school, church or other facility serving children near the offender's home.
The court also said the statute looms over every location that a sex offender chooses to call home and notes while the case in question particularly involves a day care center, "next time it could be a playground, a school bus stop, a skating rink or a church."
Provisions that also ban sex offenders from loitering and working within 1,000 feet of those places were not reversed.
Indiana has at least one similar case pending at the trial level. See this August 19th ILB entry for the most recent info the ILB has.
[Updated 11/22/07] Today's Washington Post has this report, that begins:
One of the nation's most aggressive attempts to limit the mobility of convicted sex offenders was struck down yesterday, as the Georgia Supreme Court declared unconstitutional the state's law restricting where they may live.
The roughly 10,000 sex offenders residing in Georgia had been forbidden to live within 1,000 feet of a school, playground, church, school-bus stop or other places where children might assemble. Taken together, the prohibitions placed nearly all the homes in some counties off-limits -- amounting, in a practical sense, to banishment.
"It is apparent that there is no place in Georgia where a registered sex offender can live without continually being at risk of being ejected," the ruling said.
Ind. Decisions - Court of Appeals issues 4 today (and 16 NFP)
For publication opinions today (4):
In Name Change of H.M.C., F.S.C., and S.A.C., b/n/f Tricia Gracey Tominack v. William Archie Curtis, a 7-page opinion, Judge May writes:
Tricia Gracey Tominack (“Mother”) appeals the denial of her motion to change her children’s last names to Tominack. We affirm. * * *In Norman and Eileen Wendt v. State of Indiana , a 7-page opinion, Judge May writes:
Because Mother has not demonstrated the court erred in finding the children’s best interests did not require a name change, we affirm the denial of the petition.
["Mother" is an attorney representing herself in this case Of particular interest are the COA's ftnotes.]
In this consolidated appeal, Norman and Eileen Wendt challenge the admission of evidence seized at their home pursuant to a search warrant. The Wendts first assert there is no good faith exception to the exclusionary rule under the Indiana Constitution. They also argue the good faith exception is unavailable because the officer who sought the warrant acted in reckless disregard of the truth and misled the issuing magistrate regarding the reliability of his informant. We reaffirm the good faith exception under the Indiana Constitution, and we find the officer acted in good faith. The trial court therefore did not abuse its discretion by admitting the evidence, and we affirm.In Casey Levenduski v. State of Indiana , a 12-page, 2-1 opinion, Judge May writes:
Casey Levenduski asserts the trial court should have suppressed evidence of methamphetamine production found in his home because police conducted an unlawful warrantless search of his property and then improperly obtained a search warrant based on that warrantless search. As the evidence was obtained pursuant to an overly broad “catch-all” provision of the warrant, it should have been suppressed even if the warrant was properly obtained. We therefore reverse and remand. * * *In Kenneth Monjar v. State of Indiana , a 10-page opinion, Judge Darden concludes:
The State has not demonstrated the evidence obtained pursuant to the illegal “catch-all” provision of the search warrant was found in plain view. It therefore should have been suppressed, * * *
SHARPNACK, J., concurs.
BAILEY, J., dissenting with separate opinion [which begins] I agree with my colleagues that the “catch-all” provision of the warrant is overly broad. But I disagree with their conclusion that all the methamphetamine-related evidence Levenduski sought to suppress was obtained pursuant to that provision of the warrant and, thus, should have been suppressed. In my view, the officers were proceeding under the valid portion of the warrant when they found the items at issue in plain view.
Here, Thorton testified that Monjar “was trembling”; had “a strong odor of urine”; “was wet from his bottom down”; and “his eyes were bloodshot.” (Tr. 38). Thorton also testified that she observed Monjar “stumbling to his vehicle.” (Tr. 39). Thorton further testified that as Monjar backed out of his parking space, he “almost hit [a] semi,” and when he pulled his vehicle forward, “the front of the vehicle came up on [t]he curb . . . .” (Tr. 40). Officer Pritchard testified that he observed a “partially consumed” (Tr. 78) bottle of alcohol on the passenger’s seat of Monjar’s vehicle and that Monjar “was having [a] hard time standing on his own.” (Tr. 75-76). Officer Kitts testified that he could smell alcohol emanating from Monjar’s person and that Monjar’s eyes were “red [and] glassy . . . .” (Tr. 49). Officer Kitts also testified that he observed an open bottle of alcohol in Monjar’s vehicle. Finally, Officer Kitts testified that Monjar failed a field-sobriety test.NFP civil opinions today (7):
The evidence is sufficient for the trial court to have found that Monjar operated a vehicle while intoxicated. Monjar’s argument to the contrary amounts to an invitation to reweigh the evidence, which we will not do. Accordingly, we find that the evidence supports Monjar’s conviction for operating while intoxicated.
Kenneth E. Gentry v. Pen Products, Herb Newkirk, Floyd Burton, Ed Jones (NFP) - "Gentry did not meet his burden to present a prima facie case of disability discrimination and overcome summary judgment, and the trial court properly granted summary judgment in favor of Defendants on all Gentry’s claims. The trial court did not abuse its discretion in denying Gentry’s motion for change of venue from the judge and both motions for default judgment. We affirm."
JP Morgan Chase Bank, as Trustee for Equity One ABS, Inc., Mortgage Pass-Through Certified Series #2003-1 v. Curtis M. Howell, et al. (NFP) - "“Equitable subrogation is a remedy to avoid an unearned windfall.” Id. at 653. Allowing Bank One’s lien to take priority over Equity One’s lien would result in an unearned windfall to Bank One, which had notice of the possible existence of a senior lien when it executed and recorded its mortgage. Based on the foregoing, we find that Equity One is entitled to equitable subrogation and that the trial court erred in denying Equity One’s request for entry of summary judgment in its favor. We reverse the trial court’s grant of Bank One’s summary judgment motion and remand with instructions to enter summary judgment in Equity One’s favor and for further proceedings consistent with this opinion. Reversed and remanded."
Terri L. (Snider) Irons v. Michael H. Snider (NFP) - "If she felt that the current parenting time order was not appropriate, Terri’s remedy was to seek a modification of that order, not defy it. Id. Yet Terri waited approximately two months after DCS filed the CHINS petitions before initiating any action to modify the parenting time. DCS’s involvement did not come as a surprise to Terri; rather, she personally contacted them to initiate an investigation into Michael. The findings of facts and conclusions thereon issued by the trial court were not clearly erroneous, and the trial court did not abuse its discretion when it found Terri in contempt of court."
Mary Ann Brown, et al. v. Gregory L. Wasson and Wasson Pioneer Realty (NFP) is a 2-1 opinion where the dissent begins: "I concur in the majority’s decision with regard to Brown’s negligence claim and claims for breach of the implied warranty of fitness for habitation, fraud, and deception. However, I respectfully part ways with the majority’s application of Indiana Code section 32-27-2-8.
"In the present case, Brown purchased and moved into her family’s new home in April of 1994. Thus, nearly ten years passed between the warranty date and the filing of her Complaint. See I.C. § 32-27-2-7. Accordingly, any claim related to the construction of the home must fall under I.C. § 32-27-28(a)(4) and must be considered a “major structural defect.” “Major structural defect” is defined by I.C. § 32-27-2-3 as “actual damage to the load bearing part of a new home, including actual damage due to: (1) subsidence; (2) expansion; or (3) lateral movement; of the soil affecting the load bearing function.” However, as Brown points out, beyond this statute there is virtually no case law to further help define what constitutes a major structural defect."
Jacqueline K. Poole v. Finley A. Rennacker (NFP) - "Jacqueline K. Poole appeals an order modifying child support to include college expenses. Poole asserts no change in circumstances justified modification, the effective date of the modification is erroneous, and the court miscalculated both child support and her arrearage. We affirm in part and reverse in part."
Paternity of S.A.S.G., Natalie A. Sprague v. James R. Green (NFP) - "Natalie A. Sprague (“Mother”) appeals the trial court’s order to change the surname of her minor child, S.A.S. We affirm. Issue: Mother questions whether the trial court abused its discretion by granting the petition for name change1 filed by S.A.S.’s biological father, James R. Green (“Father”)."
Termination of the Parent-Child Relationship of K.B.; Michael Black v. Marion County Department of Child Services and Child Advocates (NFP) - "Following remand, the trial court issued written findings of fact and conclusions thereon regarding its involuntary termination of Black’s parent-child relationship with his minor daughter, K.B. In this appeal, Black raises the following issue: whether the Marion County Department of Child Services (“DCS”) established that Black’s drug use, if it existed, posed a threat to K.B.’s well-being. We affirm. * * * Based on the record before us, sufficient evidence existed to support the trial court’s findings that the conditions that resulted in K.B.’s removal would not be remedied and that the continuation of Black’s parent-child relationship posed a threat to K.B.’s well-being."
NFP criminal opinions today (9):
Tuesday, November 20, 2007
Ind. Decisions - Court grants transfer in South Bend environmental case
The formal transfer list will follow later this week, but the ILB has received notice of one case having been granted transfer:
Cooper Industries, LLC. v. The City of South Bend (see ILB COA entry here) is a COA opinion issued April 11th, that concluded:
In light of the evidence presented, summary judgment is appropriate as to the City’s claim under ELA statute [Environmental Legal Action Statute, IC 13-30-9-1 ]. Pursuant to the general purpose of a statute of limitations, we hold that the discovery of an injury, not the development of a new statute, commences the running of the statute of limitations. Here, the City began to acquire portions of the property and to assess the environmental condition of the site as early as 1986. This is not disputed by the City. Applying the six-year statute of limitations found in Indiana Code section 34-11-2-7 bars the City’s March 19, 2003 ELA claim.
Conclusion Concluding that the City’s claims under the common law tort theories of negligence, trespass, public and private nuisance, as well as its statutory claim under the ELA are all barred by the six-year statute of limitations, we reverse the order of the trial court, and remand for proceedings consistent with this opinion.
Environment - "Indiana Utility Regulatory Commission Gives Duke Energy Indiana Approval to Build Integrated Gasification Combined Cycle Plant"
The IURC has today issued a 63-page order approving Duke Energy's application to build a coal gasification plant in Edwardsport. Here is the IURC release:
Today in Cause No. 43114, the Indiana Utility Regulatory Commission (Commission, IURC) issued a Certificate of Public Convenience and Necessity and Clean Coal Technology to Duke Energy Indiana (DEI) for its $1.985 billion, 630 M W Integrated Gasification Combined Cycle (IGCC) baseload project in Edwardsport, Indiana. This is the first basetoad capacity to be built to supply Duke Energy Indiana since 1982, and will be the cleanest baseload plant in operation in the State.Govenor Daniels also issued a statement this afternoon:
The Commissioners found the company appropriately documented the need for additional generation capacity and met the statutory requirements necessary for approval. The C:omrnission allowed the incentive of timely recovery of costs but denied the incentive of an enhanced return on equity, finding the cost recovery incentive adequate to compensate the company. The Commission established a mechanism for continuing oversight of project costs. Cost recovery will be phased in throughout construction by the use of semi-annual reviews by the Commission. Evidence presented by Duke Energy Indiana estimates that rate payers will see an overalt increase in rates of approximately 16%.
In addition, DEI will have to justify and seek approval in ,a separate proceeding to recover any costs above the approved $1.985 billion.
DEI is also directed to move forward with its plans to develop carbon capture and storage studies and to file a proceeding with the Commission to establish that process in six months.
“I’m delighted with this outcome. Edwardsport will be the state’s first new baseload plant in almost 20 years and the first plant on this scale to be built in America using this new clean coal technology. It will bring jobs to Southwest Indiana and badly needed homegrown power to catch us up with the needs of a growing economy.”Here is the 64-page IURC order.
Courts - SCOTUS will hear 2nd amendment case
The SCOTUSBlog is reporting this afternoon, in an entry that begins:
After a hiatus of 68 years, the Supreme Court on Tuesday agreed to rule on the meaning of the Second Amendment — the hotly contested part of the Constitution that guarantees “a right to keep and bear arms.” Not since 1939 has the Court heard a case directly testing the Amendment’s scope — and there is a debate about whether it actually decided anything in that earlier ruling. In a sense, the Court may well be writing on a clean slate if, in the end, it decides the ultimate question: does the Second Amendment guarantee an individual right to have a gun for private use, or does it only guarantee a collective right to have guns in an organized military force such as a state National Guard unit?This is a bigee.
Law - "Women Lawyers to Watch"
The woman at the very top, we’re pleased to point out, is one of our own. Angela Braly, prez and CEO of Wellpoint, got the job from the GC’s office of that company earlier this year. Her “public-relations savvy and ability to court legislators and regulators — not to mention her hands-on experience running a health plan — made it clear to the board that she was ‘what WellPoint needed going forward,’” the article said, quoting a person close to the selection process.So that is two "women to watch" from the list, Braly and Mahoney, who are not only lawyers, but have Indiana connections.
It’s the fairytale ending for every on-the-fence potential law student — become a lawyer and you keep those proverbial options open, perhaps eventually becoming CEO some day. Of course, the GC’s office — with some notable exceptions like Braly and Jeff Kindler at Pfizer — is not a sure launching point for corner-office careers. But law can be a rewarding career in itself, for some. Maureen Mahoney, the appellate litigator at Latham, also made the Journal’s list.
Ind. Decisions - Court of Appeals issues 3 today (and 18 NFP)
For publication opinions today (3):
In Karen S. (Topper) Spivey v. Charles E. Topper , a 12-page opinion, Chief Judge Baker writes:
Karen Spivey is disabled to an extent that she cannot support herself. Consequently, the trial court ordered Charles Topper, Karen’s ex-husband, to pay spousal maintenance for a finite period of time—six months. Karen’s treating physician, however, provided undisputed testimony that he could not say that the new medications she had recently begun taking would enable her to be employed in six months. Under these circumstances, we find, among other things, that the trial court abused its discretion by awarding spousal maintenance for a predetermined, finite period of time.In Gerry Ray Rogers v. Laura Lynn Rogers , a 21-page, 2-1 opinion, Chief Judge Baker writes:
Appellant-petitioner Karen S. (Topper) Spivey appeals from the trial court’s decree of dissolution of her marriage to appellee-respondent Charles E. Topper. Karen argues that the trial court erroneously (1) found that she was incapacitated but capped the length of the spousal maintenance award at six months and awarded her an insufficient amount of maintenance, (2) credited Charles for the parties’ debts to his parents and uncle, (3) valued the marital residence at $72,000, and (4) awarded Karen only 54% of the marital estate. Finding that the trial court abused its discretion in awarding spousal maintenance for a finite amount of time and finding no other error, we affirm in part, reverse in part, and remand with instructions consistent with this opinion.
Today we are asked to decide whether the trial court properly exercised its discretion in permitting a mother to move from Lafayette to Texas and retain physical custody of her two children in accordance with our Relocation Statute. Under the circumstances here, we hold that the trial court correctly determined that the mother complied with the provisions of the Relocation Statute and properly found that the children’s father failed to establish that the move was not in the children’s best interests.In William Pete Casper v. L.E. Isley & Sons, Inc. , a 9-page opinion, Judge Sharpnack writes:
Appellant-respondent Gerry Ray Rogers (Gerry) appeals the trial court’s modification of a custody order that was entered in favor of his former wife, appellee-petitioner Laura Lynn Rogers (Laura), which permitted the relocation of the parties’ minor children to Texas. Specifically, Gerry argues that the order approving the relocation was erroneous because Laura purportedly failed to comply with the requirements of the Relocation Statute. Moreover, Gerry claims that the evidence established that relocation was not in the best interests of the children. Finding no error, we affirm the judgment of the trial court. * * *
BAILEY, J., concurs.
KIRSCH, J., dissents with opinion. [which concludes] The preamble to the Indiana Parenting Guidelines states that the Guidelines “are based on the premise that it is usually in a child’s best interest to have frequent, meaningful and continuing contact with each parent. It is assumed that both parents nurture their child in important ways, significant to the development and well being of the child.” Mother’s move to Texas will make such contact and such nurturing impossible.
Janet Casper, on behalf of the estate of William Pete Casper (“the Estate”), appeals the order of the Full Worker’s Compensation Board of Indiana (“the Board”) dismissing the Estate’s claim against Casper’s former employer, L.E. Isley & Sons, Inc. (“Isley”). The Estate raises one issue, which we revise and restate as whether the Board’s dismissal of the Estate’s application for worker’s compensation pursuant to Ind. Code § 22-3-7-36(b) was premature. We affirm.NFP civil opinions today (4):
Roy Sinko and Grace Sinko v. Indy Power Coatings, LLC & Sherman Park, LP (NFP) - "This incident does not amount to an assumption of a duty on the part of Indy Powder. First and foremost, it does not involve the area in which Sinko allegedly fell. Additionally, it was a single incident of a tenant informing a landlord of work that needed to be done and then aiding the landlord in obtaining people to make the repair. Based upon the foregoing discussion and authorities, we conclude, as did the trial court, that Indy Powder owed no duty to Sinko. Thus, the trial court properly entered summary judgment in favor of Indy Powder."
Donald "Jeff" Scott v. Chronicle Tribune (NFP) - "Based on the foregoing, we conclude the trial court did not err in granting Chronicle’s Motion for Summary Judgment, thereby determining as a matter of law Scott’s discharge from Chronicle was not retaliatory in nature. Affirmed."
Christopher Wilson v. Chronicle Tribune (NFP) - "Based on the foregoing, we conclude the trial court did not err in granting Chronicle’s Motion for Summary Judgment, thereby determining as a matter of law Wilson’s discharge from Chronicle was not retaliatory in nature."
Termination of the Parent-Child Relationship of C.B., I.B., S.B.; Charlene Burns v. Marion County Office of Family & Children and Child Advocates (NFP) - "For the foregoing reasons, we affirm the trial court’s termination of Mother’s parental rights to C.B. and S.B."
NFP criminal opinions today (14):
Ind. Decisions - More on: Federal Judge Tinder rules for plainitiifs in Indiana wine shipping suit
Updating this ILB entry from August 29, 2007, the wine shipping opinion issued by Judge John D. Tinder in the case of Baude v. Heath is now on appeal to the 7th Circuit. The State of Indiana is appealing the decision ("Heath" is David L. Heath, chairman of the Indiana Alcohol and Tobacco Commission), and is represented by the Indiana Attorney General. The Wine & Spirit Wholesalers of Indiana are intervenor/appellant. The State's brief has been filed, you may access it here.
Ind. Decisions - "Pabey wins latest round in casino cash bout"
Patrick Guinane reports today in the NWI Times, in a story that begins:
INDIANAPOLIS | East Chicago Mayor George Pabey's administration scored a tremendous -- but perhaps temporary -- victory Monday in a long-simmering legal feud with three Pastrick-era groups that control millions in local casino cash.A story by Christin Nance Lazerus of the Gary Post-Tribune focuses on other aspect of the case:
Marion County Superior Court Judge S.K. Reid dismissed a request by the Foundations of East Chicago for a permanent injunction against a new state law stripping the nonprofit of a $6 million annual subsidy it has received for more than a decade.
Former Mayor Robert Pastrick brokered the economic development deal, as well as another $2 million annual subsidy to a for-profit firm known as East Chicago Second Century, as part of a 1994 agreement to bring riverboat gambling to the lakefront city.
Pabey, who ousted Pastrick at the polls three years ago, persuaded the General Assembly this spring to pass legislation giving city government control of the $8 million in yearly payments if the East Chicago casino changed hands. Ameristar Casinos closed its $675 million acquisition of the casino two months ago, but the court battle prevented the community development cash from flowing to the city. * * *
It's unclear whether the development cash will change hands anytime soon. An Ameristar spokeswoman didn't immediately return a phone call seeking comment Monday evening. And Russell Taylor, the foundations' executive director, vowed to challenge Reid's 53-page opinion.
"We firmly believe that the court's decision today is mistaken, and the special legislation that the Pabey administration snuck through in the final hours of this year's General Assembly violated numerous provisions of the Indiana and United States Constitutions," Taylor said in a written statement. "We will promptly appeal and are confident that this unconstitutional legislation will be struck down."
Reid wrote that her decision does not override any aspect of a preceding court battle between the Pabey administration, Foundations and Second Century, which now is before the Indiana Court of Appeals.
But Reid declared, for the first time, that the casino subsidies are "public funds" intended for the benefit of the citizens of East Chicago and not contractual obligations to the foundations and Second Century.
Reid further ruled Foundations of East Chicago lacks standing to claim the casino cash because the 1994 agreement Pastrick brokered promised the funds to a pair of nonprofits -- East Chicago Community Development Foundation and Twin City Education Foundation -- and not the consolidated entity the foundations formed earlier this year. The 1994 agreement gave the city appointments to the nonprofits' advisory boards, while the consolidation froze out the city, Reid noted.
While ruling that Foundations of East Chicago lacked the authority to sue, Reid still went on to dismiss all of the various legal arguments the nonprofit made against the new law -- signed by the governor in May -- that gave the city control of the casino cash.
EAST CHICAGO -- The Foundations of East Chicago Inc. lost a legal challenge on a state budgetary provision that would end its lucrative agreement with the Resorts Casino.Here is a link to an ILB posting of the 53-page opinion. Be warned that it is a scanned document and is nearly 3 MB in size.
On Monday, Judge S.K. Reid of Marion Superior court dismissed the foundation's claims that a line item is not appropriate in the state budget. The decision is subject to appeal.
Attorney Carmen Fernandez, representing the city, said budget bills commonly include provisions specific to individual communities.
Observations. The ILB was particularly interested in the fact that the legislation which was the subject of this opinion is found in SECTION 302 of the state budget bill. One of the challenges posed to the legislation is the "Single Subject Challenge," which is discussed in the opinion beginning on p. 29, para. 73.
However, this discussion falls victim to the same failings as have some decisions of higher Indiana Courts - treating the same subject limitation of Art. 4, Sec. 19 has if it has always read the same.
In fact, the provision has been changed several times over the years, included fairly recently. For instance, from 1960 to 1974, the Indiana Constitution provided:
Sec. 19. Every act, amendatory act, or amendment of a code shall embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title. But if any subject shall be expressed in an act, amendatory act, or amendment of a code, which shall not be expressed in the title, such act, amendatory act, or amendment of a code shall be void only as to so much thereof as shall not be expressed in the title. The requirements of this paragraph shall not apply to original enactments of codifications of law.With the constitutional amendment ratified in 1974, the provision now reads:
Every amendatory act and every amendment of a code shall identify the original act or code, as last amended, and the sections or subsections amended shall be set forth and published at full length. The identification required by this paragraph may be made by citation reference.
Sec. 19. An act, except an act for the codification, revision or rearrangement of laws, shall be confined to one subject and matters properly connected therewith.What is most important to note is that there is no longer a requirement that the subject of the act be expressed in the title, and thus the test to be applied is of necessity different that that relied upon pre-1974. However, this change is not noted in Indiana's higher court decisions, which continue to cite cases where the decision turned on the title of the act.
And yesterday's trial court opinion continues this -- paragraph 73 cites Dague v. Piper Aircraft Corp. ((I981), a post-1974 opinion, which relied on earlier opinions that turned on the title of the act at issue.
As I wrote at p. 21 of "Enforcing Indiana's Constitutional Requirement that Laws be Limited to One Subject," 44 Res Gestae 9 (2001), discussing Dague: "In its analysis, as exemplified in the following quotation, the Court used the title-body and notice-of-content rationale relevant before the 1974 amendment to the Constitution."
Ind. Gov't. - More on: "Terre Haute Mayor Kevin Burke has thrown opponent Duke Bennett’s eligibility to be mayor into question"
TERRE HAUTE — Terre Haute Mayor Kevin Burke officially challenged the Nov. 6 election results Monday, less than a week after attorneys sent Mayor-elect Duke Bennett a letter questioning his eligibility for the office.The story includes links to the 3-page petition - these follow the story itself - but the ILB did not have any success in efforts to access any of the 3 pages.
The petition, filed Monday morning in Vigo County Superior Court Division 3, questions whether Bennett was qualified to be a candidate, since he worked at a not-for-profit agency that receives federal funds, including money for a Head Start program. The petition references the Little (or “Mini”) Hatch Act, a federal law that limits political actions of certain government employees.
The Hatch Act, a similar federal law, provides similar limitations to employees of certain government agencies.
In another Trib-Star story today, Arthur E. Foulkes has a report that begins:
Arguments about the reach of the Hatch Act are nothing new.
“It’s not one of those three-paragraph laws,” said Jim Mitchell, a spokesman for the U.S. Office of Special Counsel, the federal agency in Washington that investigates and prosecutes complaints involving the Hatch Act.
The Hatch Act “has got a lot of ins and outs and that’s why it takes some time for us to investigate the circumstances [of a complaint] to find out what’s really going on,” Mitchell said.
Terre Haute looks set to become the scene of an important Hatch Act legal case.
Monday, November 19, 2007
Law - "Even as symbolism, legal notice advertising in newspapers smells of another era, of telegrams and carbon paper"
A quote from Adam Liptak's "Sidebar" column today in the NY Times:
Even the lawyer who placed the ad concedes that Ms. Johnson will never see it. No one reads legal notice ads, first of all, and Ms. Johnson, presumably, does not read The Observer, period.More from the column:
“I do not think legal notices published in newspapers are an effective way of providing notice to individuals of certain court proceedings,” the lawyer, John R. Eyerman, said in an e-mail message.
“However,” Mr. Eyerman continued, “it may be the ‘best’ alternative or only alternative to providing notice of legal proceedings to individuals we cannot locate through diligent search. Typically these individuals do not have steady residences, may be homeless, do not have roots in the community and do not have a viable address.”
Since the legal system cannot find Ms. Johnson — or Shamieka Deans, or Savita Sindha or Rosie Sabater, for that matter, judging from other ads last week — it will pretend to have tried.
The symbolism is empty and expensive. A spokesman for The Observer said a typical ad cost around $350.
There are only two solutions, she said: “Either make a meaningful attempt to find people where fundamental rights are at stake, or dispense with what is truly form over substance.”
Even as symbolism, legal notice advertising in newspapers smells of another era, of telegrams and carbon paper. As far back as 1950, the Supreme Court acknowledged that “chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper.”
“We are unable to regard this as more than a feint,” Justice Robert H. Jackson wrote for the majority.
And that was when people still read newspapers. These days there is, of course, a newfangled substitute available. It’s called the Internet.
Last year, the Washington Supreme Court gave the newspaper industry a collective heart attack when it recognized that “posting on a public Web site is at least as likely to provide the community with notice” as an ad in a newspaper.
A dissenting justice said the case represented a turning point. “No case, until this majority, has held Web posting notice sufficient,” the justice wrote.
Newspapers have already lost much of their regular classified advertising to the Internet, but their lobbyists are fighting hard to hang on to legal notice advertising, which is often required by law. That is why all kinds of newspapers, including this one, still carry notices for restaurants seeking liquor licenses, government agencies seeking bids on contracts, zoning board meetings, foreclosure sales and corporate name changes.
In 2006 alone, at least 30 states introduced legislation concerning public notice advertising, according to the Public Notice Resource Center, a newspaper industry group. The industry has so far been largely successful in defeating efforts to move such advertising to the Internet.
Tonda Rush, the National Newspaper Association’s director of public policy, had a list of reasons explaining why putting legal notices in newspapers remained a good idea. Newspapers are reliable, Ms. Rush said. The text they publish is stable and can be found in archives years later. These days, newspapers usually put their print advertisements online as well. And not everyone has Internet access
Law - "Lawyer Groups to Flag Cases Needing Review"
John Solomon reports in the Washington Post today:
Two umbrella groups for criminal defense lawyers announced yesterday that they will independently review cases nationwide where the FBI used a discredited bullet-matching science and will try to assist defendants who might have been wrongly convicted.See other Post stories here ("FBI's Forensic Test Full of Holes") and here ("A Murder Conviction Torn Apart by a Bullet"). See Wash. Post/60 Minutes 14-minute video here.
The National Association of Criminal Defense Lawyers (NACDL) and the Innocence Network said they were creating a task force of lawyers in response to a joint investigation by The Washington Post and "60 Minutes." That investigation, published yesterday and today, found that the FBI has not taken steps to alert hundreds of defendants that they may have been convicted through the use of comparative bullet-lead analysis, a forensic tool that was discarded two years ago.
Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)
NFP civil opinions today (0):
NFP criminal opinions today (1):
Termination of the Parent-Child of W.A.; Sarah Anders v. St. Joseph County Department of Child Services (NFP) - "Sarah Anders (“Mother”) appeals the involuntary termination of her parental rights to her son, W.A.1 Concluding that the St. Joseph County Department of Child Services (“DCS”) proved by clear and convincing evidence that the continuation of the parent-child relationship poses a threat to W.A.’s well-being, that termination of Mother’s parental rights is in the best interests of W.A., and that the DCS has a satisfactory plan for the care and treatment of W.A., we affirm the termination of Mother’s parental rights."
NFP criminal opinions today (0)
Courts - Cell phones in courtrooms
The ILB has had a number of entries on bans on cell phones and cameras in Indiana courtrooms and courthouses. Today, this National Law Journal report from Massachusetts that begins:
The Massachusetts Appeals Court upheld a lower court's witness intimidation jury verdict by ruling that pointing a cellular telephone camera at a witness in a criminal case is witness intimidation.
"It is irrelevant whether any photographs were taken, as the police officer was made to believe that the defendant was taking pictures of him and could disseminate his likeness, an act intended to intimidate," wrote Associate Justice R. Marc Kantrowitz.
The defendant was found guilty of intimidating a witness last year in a case that arose from a 2004 trial for drug-related offenses. While in a courthouse during his 2004 drug trial, the defendant acted as if he were taking cell phone photos of an undercover police officer who was scheduled to testify against him.
Ind. Courts - "Sometimes you feel like a nut! Sometimes you don't!"
The Indianapolis Star website this morning carries this brief AP report:
Hershey, the largest candy maker in the U.S., has filed suit in Indianapolis, charging a Pennsylvania apparel-maker with infringing on its trademark.
Bloomberg News reports today that the suit against X-it! Activewear Inc. accuses the company of selling counterfeit products and, under Indiana's Crime Victims Act, Hershey is seeking triple damages.
Hershey claimed X-it! made a derogatory parody of Hershey's famous slogan for its Almond Joy candy bar: "Sometimes you feel like a nut! Sometimes you don't!" Hershey was issued a registered trademark for those words in 1990.
In the suit, Hershey says X-it! changed the word "nut" to a derogatory term used to describe a sexually promiscuous person, and sold that saying for use on T-shirts.
Hershey is being represented by the intellectual property specialists at the Indianapolis law firm Sommer Barnard.
Ind. Courts - Clark County's deputy prosecutor featured
Harold J. Adams of the Louisville Courier Journal has a feature today on Shelley Marble, a prosecutor with a very difficult job. Some quotes:
Shelley Marble's job as Clark County's deputy prosecutor in charge of sex crimes and crimes against children gives her a detailed look at "the horrible things that people can think of to do to our children," she said. * * *
Marble took over the sex-crime and child-abuse job almost four years ago, after four years of handling child-support and juvenile-prosecution cases.
A 36-year-old Gibson County native, she now has a caseload that routinely includes rape, child molesting, incest, neglect of a dependent and similar crimes.
As soon as she sees something that she is convinced is more horrific than everything she's seen before, "something worse comes along," Marble said. "The depravity is disturbing." * * *
Her boss, Prosecutor Steve Stewart, said that of the dozens of deputy prosecutors he has hired since taking office in 1989, "I don't think I've had a more dedicated or hardworking deputy than Shelley."
Crimes against children are some of the most difficult a prosecutor can have, Stewart said. "There's a very high burnout rate for that and she's been able to survive for four years," he said.
Jeffrey Stonebraker, who as chief public defender for Clark County often defends clients against charges brought by Marble, agreed that her job is a difficult one.
"It's just a lot more hands-on with the victim and the victim's family," Stonebraker said.
Marble said the victims usually have been abused repeatedly over a long period of time before something, often the presence a younger relative they believe is at risk of the same abuse, prompts them to report it.
"There's another sister, a cousin … (and) they say, 'I don't want that to happen to them.' And that's when they step forward," she said.
Marble's husband, David Marble, is a shift commander in the Jeffersonville Police Department, and she said both of them are careful about the emotional toll their jobs can take.
"You can't take it home with you or it will just destroy you. Sometimes you do, but you can't do that on a daily basis," said Marble, who has spent her entire legal career in the prosecutor's office since graduating from Indiana University Law School at Indianapolis in 1999.
When asked whether she has considered moving on to something else, Marble noted that three of Clark County's four Circuit and Superior Court judges will leave office in the next year.
"There are openings (and) I am interested," she said.
Candidates will file for those offices in January.
Environment - More on: "BP wastewater permit: 'We already have the technology'"
Gitte Laasby of the Gary Post-Tribune reported on Nov. 11th, per this ILB entry of that date:
BP representatives say they haven't found a way to reduce the Whiting refinery's discharges of ammonia and suspended solids. But potential contractors, who say they can solve the problem with technology used at other refineries, say BP shut them out.Today Michael Hawthorne of the Chicago Tribune reports:
The company pledged [last month] to abide by the more stringent limits in its old water permit even as it undertakes a $3.8 billion expansion to process more heavy Canadian crude oil.
Yet during a tour last week of the sprawling lakefront refinery, built in 1889 by John D. Rockefeller's Standard Oil Co., officials said figuring out how to keep that promise is proving difficult.
"If there's a breakthrough out there, we don't know about it," said Dan Sajkowski, the refinery's manager. "We've literally looked at all of these proposed solutions and more. If there was an easy fix, don't you think we would have done that and saved ourselves from going through the past few months?"
Sajkowski said officials are actively reviewing dozens of potential strategies and cautioned that BP will scuttle the expansion project if solutions are not found. But signs that BP is still planning the overhaul are everywhere at the refinery, from video screens in the executive offices to the "Project Canadian Crude" labels painted on company vehicles winding through the maze of towers and pipes outside. * * *
They repeated arguments that limited space along the lakefront -- the water treatment plant is sandwiched on a D-shaped peninsula between the lake and the refinery -- prevents them from making more aggressive improvements.
"It just isn't practical to engineer something else that would work effectively at this site," Morrison said from a grated walkway suspended above a giant clarification tank coated with sandy brown foam. The Chicago skyline rises above the horizon 15 miles away.
Closer by, just across a set of railroad tracks that separates the treatment plant from the refinery, workers are erecting a 10-million-gallon tank to hold storm runoff. The consultants hired by the City of Chicago suggested that this tank could be divided to make room for more treatment equipment, though BP officials aren't sure that would work.
Finding a solution is critical for BP. The Whiting refinery already is the nation's fourth largest, with the ability to process more than 400,000 barrels of crude oil a day at peak capacity, and production is expected to grow by 15 percent when the expansion project is finished in 2011.
Critics say excuses are weak. Critics note that it's common for industry to insist it cannot comply with tougher environmental regulations. Faced with deadlines and firm limits, though, companies usually find something that works.
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This Tuesday, Nov. 20th:
9:00 AM - Victor Herron v. Anthony Anigbo - In Herron’s medical malpractice case, the Lake Circuit Court granted summary judgment to Dr. Anigbo after concluding that the Indiana Medical Malpractice Act’s two-year, occurrence-based statute of limitations bars Herron’s claim. The Court of Appeals reversed, concluding that it would be unconstitutional to apply the statute of limitations to Herron’s claim. Herron v. Anigbo, 866 N.E.2d 842 (Ind. Ct. App. May, 23, 2007) [see ILB entry here]. Dr. Anigbo has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorney for Herron: Anthony DeBonis, Jr., Highland, IN. Attorneys for Dr. Anigbo: Robert F. Parker, Chad J. Melchi, Merrillville, IN.
9:45 AM - Mitchell Roob v. Jannis Fisher - In this 42 U.S.C. § 1983 action by providers and recipients of Medicaid-provided transportation, the Marion Superior Court ordered that transportation reimbursement rates be increased. The Court of Appeals initially reversed, holding neither providers nor recipients have a private right of action under § 1983. On rehearing, however, the Court of Appeals affirmed in part, finding the State had conceded that recipients have a private right of action. Roob v. Fisher, 856 N.E.2d 723 (Nov. 8, 2006) [see ILB entry here - 5th case], on rehearing, 866 N.E.2d 781 (Ind. Ct. App. May 21, 2007) [see ILB entry here]. The defendants have petitioned the Supreme Court to accept jurisdiction over the appeal. For Appellants: Steve Carter, Thomas M. Fisher, Frances Barrow, Matthew D. Lawless. For Appellees: Thomas R. Ruge, Steven W. Griesemer, David F. McNamar.
10:30 AM - Henry Adkins v. State - At trial on charges of pointing a firearm as a class D felony, see Ind. Code § 35-47-4-3 (2004), Adkins objected to an instruction on grounds it shifted to him the burden of proving the gun was unloaded. The Elkhart Superior Court gave the instruction, and the jury found Adkins guilty. The Court of Appeals affirmed in Adkins v. State, 870 N.E.2d 465 (Ind. Ct. App. July 19, 2007) [see ILB entry here], vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Adkins: Nancy McCaslin, Elkhart, IN. Attorney for State: George Sherman, Indianapolis, IN.
Webcasts will be available here.
This week's oral arguments before the Court of Appeals:
Sunday, November 18, 2007
Law - "Legal champion for the middle class"
The LA Times today has a "Sunday profile" by Kathy M. Kristof of "Ralph 'Jake' Warner [who] took the mystery out of the law for the masses when he co-founded Nolo Press 36 years ago.." Some quotes:
In 1971 Warner and fellow Legal Aid lawyer Ed Sherman pooled their resources and published a book written by Sherman titled "How to Do Your Own Divorce." It cost them a relative fortune: $3,000. They kept the books, which retailed for $4.95, under the bed and carted them around to bookstores until they found a small, family-owned book distributor that agreed to represent them.
Now Nolo publishes about 80 titles a year, totaling about 800,000 books annually. Some of the titles: "A Busy Family's Guide to Estate Planning," "8 Ways to Avoid Probate," "Tenant's Rights" and "The California Landlord's Law Book: Evictions." There's "Fight Your Ticket and Win," "Credit Repair," "Surviving an IRS Tax Audit" and "Every Dog's Legal Guide." The company also produces software, such as its bestselling program "Willmaker," and is launching an aggressive bid to peddle legal forms and products over the Web.
In the meantime, Nolo has helped make self-help law so commonplace that many courthouses have entire sections dedicated to those who want to handle their own divorce or bankruptcy or file a claim against their landlord, boss, neighbor or dry cleaner. In Los Angeles, almost 30% of bankruptcies are now filed "pro se" -- sans attorney -- and an estimated 80% of divorces are handled the same way, according to the court clerk's office. * * *
Nolo has been blasted at one point or another by virtually every bar association in the country. The most serious challenge arose when the Texas Unauthorized Practice of Law Committee, which is affiliated with the State Bar of Texas and appointed by the state Supreme Court, informed the company in 1998 that it was being prosecuted for practicing law without a license. The committee intended to ban Nolo's books from the great state of Texas.
Ind. Law - How well does the provisional ballot work in real life?
The Kokomo Tribune column "Public Eye" by Scott Smith and Ken de la Bastide, has this item, of interest particularly in light of some of the close mayoral races . . . and the Voter ID provisional ballot "solution." The item is titled "Sorry, your vote didn’t count."
And a special note to IU students - all "photo IDs" apparently are not the same.
Officials at the Howard County Clerk’s Office confirmed this week that two provisional ballots cast in the Nov. 6 election were declared invalid because they weren’t initialed by poll clerks, as required by law.
It seems each provisional must be initialed by a poll worker to be counted. Of the 11 provisional ballots cast, six voters had not bothered to come to the clerk’s office to show the necessary ID as of the noon Friday deadline. Howard County Clerk Mona Myers said five of those voters were actually registered to vote.
Of the remaining provisional ballots, three counted and two were rejected because of the clerk’s error. Despite the fact the two uncounted ballots are thought to be valid, the lack of initials means the chain of custody couldn’t be verified, Myers said.
One of the ballots was a straight ticket Democrat vote, and the other was a straight ticket Republican vote.
Interestingly, one of the provisional voters was not allowed to cast a regular ballot, despite the fact they showed an Indiana University picture ID to poll workers. Myers said the IU student should have been allowed to cast a regular ballot, but poll workers made a mistake.
Myers also apologized for the mistake which led to two voters becoming disenfranchised.
“It is a big deal,” Myers said. “I tell [poll workers] that it is a big deal. But [working at a poll] is something people do twice a year, and they forget things.”
Saturday, November 17, 2007
Law - "In mass torts, who but the plaintiffs' lawyers really win?"
The NY Times business columnist, Joe Nocera, today has written a very interesting column on "the Vioxx litigation, which the drug’s manufacturer, Merck, settled late last week for the tidy sum of $4.85 billion." Here are a few quotes:
When the litigation got under way in 2004, Kenneth C. Frazier, then Merck’s general counsel, vowed to defend every case. But that was never a believable statement. When you are a corporation facing 27,000 lawsuits, the question is never whether you’re going to settle. The only questions are when and for how much.Here is a list of a number of earlier ILB entries referencing Vioxx.
Well, actually, there is one other question, though in a society as litigious as ours, it is rarely raised. Is a mass tort really the right mechanism to settle disputes about product safety, or to punish corporate wrongdoing? * * *
There are many problems with viewing product liability lawsuits as a means to right wrongs, which is how we see them in this country. They often make lawyers rich while the people who say they were hurt wind up with very little. The legal system gives corporations zero incentive to step forward if there is evidence that a drug might have a harmful side effect — because, after all, they’ll get sued as soon as they make such an admission. Third, even the smartest lawyers aren’t the Food and Drug Administration, which is charged with making decisions about which drugs should be allowed on the market and how their risks should be disclosed. Mass torts have become a rogue form of regulation, and not necessarily in the public interest. And finally, when you get right down to it, litigation is a crapshoot, and it can be cruelly unfair.
Friday, November 16, 2007
Ind. Decisions - Transfer list for week ending November 16, 2007
Here is the Indiana Supreme Court's transfer list for the week ending November 16, 2007.
There was one transfer granted this week, referenced 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.
Environment - More on: Wabash Environmental trial in federal court concludes
The former president of a company that once treated liquid industrial wastes was sentenced to five years in prison after he was convicted of concealing elevated levels of chemical discharges into the Wabash River.Check here for a number of earlier ILB entries.
A federal judge also ordered Derrik Hagerman and Wabash Environmental Technologies Inc., to pay nearly $238,000 in restitution.
Judge David F. Hamilton called the 53-year-old Hagerman's behavior "cold-blooded deception for profit" during a sentencing hearing Thursday in U.S. District Court in Indianapolis.
Ind. Decisions - Supreme Court grants transfer in case argued Thursday
The Supreme Court has now granted transfer in the case of Speedway Superamerica LLC v. Gerald Holmes. Oral arguments on the petition to transfer were held Nov. 15th - see this ILB entry.
The complete transfer list will be posted later today.
Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)
For publication opinions today (3):
In Lilia Castel v. State of Indiana , a 6-page opinion, Judge Najam writes:
Lilia Castel appeals from her conviction for Driving While Intoxicated (“DWI”), as a Class A misdemeanor; Disorderly Conduct, as a Class B misdemeanor; and Disobeying a Traffic Control Device, an infraction. Castel raises a single issue on appeal, namely, whether the trial court erred when it failed to inform her of her right to counsel before trial. We reverse and remand. * * *In State of Indiana v. Jason A. O'Grady, a 9-page opinion, Judge Najam writes:
Castel contends that the trial court committed reversible error when it failed to inform her of her right to counsel at the misdemeanor trial. In essence, she argues that her self-representation at trial constituted a waiver of trial counsel that was not knowingly and intelligently made. We must agree. * * *
The State contends that “Castel did not actively safeguard her right to counsel,” Appellee’s Brief at 8, as if that were her burden. However, State also acknowledges that the trial court neither advised Castel at trial about her right to counsel nor warned her about the disadvantages of self-representation. Indeed, the trial court made no inquiries into Castel’s decision, and the record is devoid of any evidence showing Castel’s understanding of the disadvantages of self-representation, her background and experience, or the context of her decision to proceed pro se. As the State notes, Castel enjoys every presumption against the waiver of her right to counsel. Thus, we must conclude that Castel did not waive her right to counsel and that her convictions cannot stand. See Atkinson v. State, 810 N.E.2d 1190, 1192 (Ind. Ct. App. 2004) (reversing convictions where defendant at trial was apprised and waived the rights to cross-examine, present evidence, and subpoena witnesses but was not apprised of his right to counsel or dangers of self-representation).
We reverse Castel’s convictions and the judgment on the infraction and remand for a new trial in accordance with this opinion.
The State appeals a reserved question of law, pursuant to Indiana Code Section 35-38-4-2(4). Specifically, the State challenges the trial court’s ruling on the State’s request to amend the charging information to a lesser-included offense in response to the defendant’s motion for directed verdict. The State raises a single issue for our review, namely, whether the trial court erred in denying that request. We reverse. * * *In Deborah Bacon v. Jeffrey Bacon , a 7-page opinion, Judge Robb writes:
The trial court erred in determining that the State’s proposed amendment to the information was an amendment to a matter of substance. The amendment neither satisfies the prerequisite definition of a matter of substance nor is it prejudicial to O’Grady’s substantial rights. See McIntyre, 717 N.E.2d at 125-26. Accordingly, we reverse the court’s ruling. Nonetheless, while we hold that the trial court erred, we may not remand for a retrial in that doing so would violate O’Grady’s rights under the Double Jeopardy Clause. See Gradison, 758 N.E.2d at 1013-14.
Deborah Bacon asserts that she is appealing from a January 31, 2007, trial court order appointing a parenting coordinator for her and her former husband, Jeffrey Bacon. She raises two issues for our review: whether the trial court had the authority to unilaterally appoint a parenting coordinator; and whether the trial court’s appointment of a parenting coordinator without providing notice or a hearing was a violation of Deborah’s due process rights. Concluding that the order appointing a parenting coordinator is not a final judgment; that the order is not an interlocutory order appealable by right; and that Deborah did not take the steps required to have the order certified for interlocutory appeal, we dismiss.NFP civil opinions today (3):
Termination the Parent-Child Relationship of D.H., R.W., and T.W.; Sabrina Smith v. Lake County Office of Family & Children (NFP) - "Appellant-respondent Sabrina Smith appeals from the involuntary termination of her parental rights with respect to her minor children, D.H., R.W., and T.W. Specifically, Smith maintains that the evidence was insufficient in that appellee-petitioner Lake County Office of Family and Children (“OFC”) failed to show that the conditions resulting in the children’s removal would not be remedied or that the continuation of the parent-child relationship posed a threat to the well-being of the children. We affirm."
M. Doed, LLC v. Marlan B. Harris and Mary Esther Harris (NFP) - "Appellant-Petitioner M. Doed, LLC, (“Doed”) appeals the denial of its petition to issue a tax deed based on a tax sale of property owned by the Appellees-Respondents Marlan B. and Mary Esther Harris (“Harrises”). We affirm."
In Matter of the Estate of Harry L. Dunn; Star Wealth Management v. Randy L. Dunn, et al. (NFP), a 22-page opinion, Senior Judge Hoffman writes:
Appellant-Personal Representative Star Wealth Management (a/k/a Star Financial Bank) (“Star Bank”), as personal representative for the supervised Estate of Harry L. Dunn (“the Estate”), appeals the trial court’s order—entered following a hearing on the Appellees-Heirs’ objection to Star Bank’s payment of $20,600 in personal representative fees and $20,600 in attorney fees without prior court approval—that determined that the reasonable value for personal representative fees was $2,500 and the reasonable value for attorney fees was $5,000, ordered the personal representative and his attorney to reimburse the remainder of the fee to the Estate, and ordered the personal representative to distribute certain commercial property to the Heirs. We affirm.NFP criminal opinions today (9):
Star Bank raises two issues, which we restate as: I. Whether the trial court abused its discretion in its determination of fees for the Estate’s personal representative and attorney; and II. Whether the trial court erred by allowing the Heirs to keep the rental income collected from the commercial property for the period prior to the trial court’s order to distribute the commercial property to the Heirs.
Ind. Decisions - Date now set for voter ID oral arguments before the SCOTUS
See "January arguments, day by day" at the SCOTUSBlog.
Not law but interesting - Soon the ILB will be linking to WSJ stories
"Web Sites Tear Down That Wall" is the headline to a story by Frank Ahrens today in the Washington Post. Some quotes:
Rupert Murdoch's announcement this week that he expects to stop charging for access to the Wall Street Journal's Web site is the latest example of a publisher giving up on the subscription-based business model -- a significant shift in the evolution of online content.Subscription news sites are unpopular with reporters whose stories are "behind the wall" because, in the case of Slate.com, for instance, which tried the subscription model for a year in 1997-98, "the wall lowered the spirits of Slate writers" :
In recent months, the Economist, the New York Times and the Financial Times have all moved content out from "behind the wall," an industry metaphor for the location of paid online content. * * *
All online content providers face the Google factor.
For example, viewership of the home page of washingtonpost.com accounts for 20 percent less of the site's overall traffic than it did two years ago, editor James Brady said. Increasingly, users arrive at the site "sideways," from other sites, he said.
"That meant the theoretical ceiling on people who would read anything you wrote was 20,000," [Slate editor Jacob Weisberg] said. "The whole point of the Web was that if something you wrote caught on, it would be read by hundreds of thousands of people in a few hours. It was a drag for writers."This leaves the Bloomington Herald-Times ...
Environment - "Havens | Indiana Dunes: An Exclusive Beachfront, Far From the Coast"
The NY Times' Friday Escapes Section today has an interesting feature by Eugene L. Meyer on private beach communities along Lake Michigan in the area between Gary and Michigan City.
Ind. Gov't. - "Terre Haute Mayor Kevin Burke has thrown opponent Duke Bennett’s eligibility to be mayor into question"
Austin Arceeo of the Terre Haute Tribune Star reports today in a story that begins:
Terre Haute Mayor Kevin Burke has thrown opponent Duke Bennett’s eligibility to be mayor into question.The TribStar also posts the full text of the letter from Ann DeLaney, counsel for Burke.
If supported, the challenge could mean the incumbent retains his seat.
Bennett on Thursday hired an attorney in response to a letter sent from an Indianapolis law firm that questioned his eligibility for the office based upon a federal statute called the Hatch Act.
The letter, dated Tuesday, asks whether the Hamilton Center’s director of operations was qualified to run for mayor because the Hamilton Center receives federal funds.
If Bennett were to be disqualified, said one of Burke’s attorneys, Ed DeLaney, state law indicates that Burke would become mayor.
In I.C. 3-12-8-17(c), which DeLaney referenced, the statute states: “After hearing and determining a petition alleging that a candidate is ineligible, the court shall declare as elected or nominated the qualified candidate who received the highest number of votes and render judgment accordingly.”
Environment - "Indiana should OK compact to protect the Great Lakes"
From an editorial in the NWI Times yesterday:
With so much attention to Lake Michigan water quality brought by scrutiny of the BP and U.S. Steel emission permits, the Indiana General Assembly should approve the Great Lakes Basin Water Resources Compact.
This document sets policies governing the five Great Lakes. It protects the greatest natural resource shared by eight states and two provinces.
Wisconsin Gov. Jim Doyle last week made a major push for protection of the Great Lakes to become a national issue. Indiana Gov. Mitch Daniels should join this effort.
Doyle is asking not just the Wisconsin legislature but those in five other states as well to ratify the compact. Local environmentalists are making this one of their major goals as well.
People in Northwest Indiana who drink water from Lake Michigan tend to take that resource for granted. The lake, which is about half the size of Tennessee and has an average depth of 279 feet, has a lot of water in it.
But start diverting that water to areas suffering severe droughts, like Georgia, and or to the Southwest, and a precedent will have been set for consuming this important resource. That's why it's so important to make sure it's very difficult to divert water outside the Great Lakes basin.
Tom Anderson, executive director of the Save the Dunes Council, expects an increasing number of requests to divert water from the Great Lakes, which adds urgency to approving the Great Lakes Compact.
Environmentalists and industry have been meeting since 2005 to discuss issues like this and in 2006 agreed Indiana should move forward on the compact and include implementation language, which other states don't have yet.
"The draft language that came out does not cause serious heartburn for industry," said Kay Nelson, the Northwest Indiana Forum's environmental expert. That makes it easier to approve -- environmentalists and industry already agree.
Indiana should endorse this important agreement, including the implementation language agreed up by industrial and environmental groups.
Once it's ratified by the states and provinces bordering the Great Lakes, the compact goes before Congress. Speed it along its way.
Ind. Courts - More on "Terre Haute Attorney Arrested"
A former Vigo County deputy prosecutor has pleaded guilty to operating a vehicle while intoxicated and failure to stop after an accident resulting in non-vehicle damage.
William W. Earls, 39, pleaded guilty to both counts on Wednesday under terms of a plea agreement in Putnam County Circuit Court. The case is in Vigo Superior Court Division 5, but because Earls is a former Vigo County prosecutor, Special Judge Matthew Headly was appointed after Judge Barbara Brugnaux recused herself.
As part of the plea agreement, Earls’ jail time will be suspended and he will be placed on formal probation. * * *
On Wednesday, Earls pleaded guilty to Count 1, operating a vehicle while intoxicated, a class-A misdemeanor, and Count 3, failure to stop after an accident resulting in non-vehicle damage, a class-B misdemeanor, according to the plea agreement.
The prosecution recommended Earls serve 365 days in the Vigo County Jail for Count 1 and 180 days for Count 3, to be served concurrent with one another, but the sentence will be suspended and he’ll be put on probation instead.
According to the plea agreement, Earls must also report to the Robert Howard Brown Alcohol and Drug Program where he may be subject to random drug screens. He also must abide by all recommendations the Judges and Lawyers Assistance Program makes; perform 180 hours of community service; and provide proof of insurance at the time of the incident and make restitution to Duke Energy and Verizon.
Earls was given the option of attending an intensive recovery program in Atlanta, Ga., which costs $14,000 a month to attend, according to Chief Deputy Prosecutor Rob Roberts. If he is unable to attend the program, an ignition interlock device will be installed on his vehicle for 180 days after the completion of his 90-day license suspension program, the plea agreement stated.
He also agreed to random urinalysis through the Adult Probation Department and pay $200 to the court clerk for an alcohol countermeasure fee.
Earls, who runs his own private law practice in Terre Haute, worked in the prosecutor’s office starting Jan. 1, 2006. He resigned in September.
Thursday, November 15, 2007
Ind. Courts - More on "The Perry Circuit Court has an immediate opening for a Magistrate"
On Thursday, Nov. 1, the ILB posted this entry, pointing to a notice on the Indiana Courts web site that the Perry Circuit Court "has an immediate opening for a Magistrate."
On Monday, Nov. 5th the ILB posted this entry, pointing to a story in the Perry County News that began:
TELL CITY - A dramatic clash Tuesday [Oct. 30th] 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.Today the Perry County News reports, in a story by Kevin Koelling:
Goffinet, Perry County's elected circuit-court judge, confirmed Thursday she had terminated Parkhurst's employment as of 4 p.m. Wednesday [Oct. 31].
TELL CITY - "I think this is a great opportunity to do something different, to use my legal skills in a different way than I have been for the past eight years," attorney Karen Werner said of her selection as the next Perry County magistrate.
Perry Circuit Judge Lucy Goffinet notified The News Monday she had appointed Werner to replace Jonathan Parkhurst. As The News reported Nov. 5, Goffinet fired the former magistrate the preceding week in response to what she called unprofessional words and actions on his part during a discussion on how to ease jail overcrowding.
Parkhurst called the interchange simply "a disagreement."
Werner gained experience in criminal, family, juvenile, collections, estate-planning, zoning and guardianship areas since she began working at the Waldschmidt and Werner law practice in 1999. Her father, John, is a longtime Perry County attorney. * * *
Goffinet said she appointed Werner "because she's capable, professional, local and she gets along with everyone."
Werner will begin working in her new job after a swearing-in ceremony scheduled for 8 a.m. Monday in the main courtroom at the Perry County Courthouse.
The public is welcome to attend, Goffinet said.
Ind. Law - Still more on golf carts in Greene County; Bainbridge to ban ATVs but allow golf carts
Updating this ILB entry from Oct. 12, 2007, which quoted a Greencastle Banner Graphic story that began: "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.."
Today Josie Bode of the Banner writes:
The Bainbridge Town Council met Wednesday to discuss issues ranging from tornado sirens to snow emergency parking, but confusion over potential ATV restrictions took center stage for the council and local residents.
"There will never be a four-wheeler driving up and down the streets of Bainbridge if it's up to me," said council president Mike Smith in a dissenting opinion.
Despite concerns expressed by all board members, the council agreed to restrict but not ban ATVs on town streets and compiled a list of possible restrictions to be placed in a future ordinance. Possible restrictions included but were not limited to requirements that all drivers of ATVs must have a valid driver's license, must have proof of insurance, and must be registered with the Department of Natural Resources.
The board reiterated that all vehicles must be deemed roadworthy by state standards and drivers must abide by all state laws.
Furthermore, until a Bainbridge ordinance regarding ATVs is drafted and accepted, Bainbridge will be observing state law regarding ATVs. State laws expressly forbid driving ATVs on public roadways. In addition, the council members clearly stated that the future ordinance regarding ATVs does not deal with golf carts or lawnmowers.
Ind. Courts - Yet 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"
The 31-year-old Indianapolis man sat in a courtroom Wednesday after receiving a new summons threatening to hold him in contempt. Similar notices went out to 325 people who failed to appear for jury duty during one week in October after a new crackdown by Marion Superior Court.
Nearly 100 were there Wednesday to face a judge and choose between further contempt proceedings or a new assignment between Thanksgiving and Christmas.
All chose a second shot at jury duty, except for a handful who were excused because they are not U.S. citizens or don’t speak English.
The get-tough policy comes after years of lax enforcement and dwindling turnout. Fewer than half of those called show up on a typical day. Wednesday’s hearing was the first en-masse summoning of scofflaws in memory. * * *
Court administrators are keeping lists of jury no-shows, with the possibility for a repeat of today’s hearings if attendance doesn’t improve. So far, after an initial uptick last month, it hasn’t.
Arrest warrants could go out next week for dozens of people who didn’t show up to Wednesday’s hearing.
Preliminary tallies show 94 attended, and another three dozen called in advance to arrange a new assignment. Still unknown was how many summonses — sent through certified mail — were undeliverable or had incorrect addresses. About 200 have been confirmed delivered, Stoner said.
Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)
For publication opinions today (3):
In Lora Wilson Brown v. Brian S. Alexander and Richmond Power and Light, a 16-page, 2-1 opinion, Judge Kirsch writes:
Lora Wilson Brown (“Brown”) appeals from the trial court’s grant of summary judgment in favor of Richmond Power and Light (“P&L”) and Brian S. Alexander (“Alexander”). The sole issue presented for our review is whether the trial court erred as a matter of law in holding that Brown failed to substantially comply with the notice provisions under the Indiana Tort Claims Act, IC 34-13-3-1 to -25 (the “ITCA”). We affirm. * * *In Indiana Dept. of Environmental Management v. Raybestos Products Co., a 7-page opinion, Judge Mathias writes:
Our courts have consistently held that knowledge of claimant’s injury, and even an opportunity to investigate, are insufficient to satisfy the requirement of notice. Fowler, 773 N.E.2d at 865. Here, Brown failed to provide P&L with notice of damages for her personal injury within 180 days of the accident. Under the facts of this case, Brown makes no showing that she initiated any contact with P&L to alert them to her claim. Brown did not substantially comply with the notice provisions of the ITCA.5 We affirm the trial court’s grant of summary judgment. Affirmed.
MATHIAS, J., concurs.
DARDEN, J., dissents with separate opinion. [which begins] I respectfully dissent. I recognize that there may be a “general rule” whereby we consider whether a claimant has substantially complied with the notice requirement of the ITCA by looking at “the efforts made by the claimant to notify the governmental entity of the claim.” Slip Op. at 10. I also recognize that the facts indeed show that both Brown and her first attorney failed to make such efforts. However, given the purpose of the notice statute, I believe that the application of the general rule unfairly elevates form over substance in this case. I further believe that to affirm the grant of summary judgment to P&L on Brown’s complaint would result in a miscarriage of justice under the circumstances presented.
The Indiana Department of Environmental Management (“IDEM”) appeals the judgment of the Marion Superior Court in favor of Raybestos Products Company (“Raybestos”) in Raybestos’s breach of contract claim. IDEM raises three issues upon appeal, one of which we find dispositive: whether the trial court erred in granting partial summary judgment on the issue of whether IDEM breached an agreed order entered into by the parties thus giving rise to a breach of contract claim. We reverse. * * *Anthony Hayes v. State of Indiana - "We do not reweigh evidence or judge the credibility of witnesses. A reasonable fact-finder could infer from these facts and circumstances that Hayes actually possessed the cocaine. Sufficient evidence supports Hayes’s conviction."
Thus, the 238 ppm cleanup proposed by Raybestos and based on the IDEM-approved risk assessment did not meet the applicable federal standards. We fail to see how IDEM had any authority to approve a cleanup which did not comply with these standards. Again, such compliance was contemplated in the Agreed Order itself, which provided that, in the case of a conflict in the applicable laws, rules, or ordinances, that the most stringent standard would apply.
Based upon public policy grounds, we will not enforce agreements that contravene statute, that clearly tend to injure the public in some way, or that are otherwise contrary to the declared public policy of Indiana. Ahuja v. Lynco Ltd. Med. Research, 675 N.E.2d 704, 707 (Ind. Ct. App. 1996), trans. denied. Clearly, an agreement which would permit cleanup levels over twenty times that of the applicable federal regulations would be contrary to public policy, and Raybestos may not rely upon such an agreement or recover for any breach thereof by IDEM. We therefore reverse the judgment of the trial court.
NFP civil opinions today (2):
Marla K. Young v. Timothy S. Young (NFP) - "Appellant-respondent Marla K. Young appeals the trial court’s calculation of the child support obligation of appellee-petitioner Timothy S. Young. In particular, Marla argues that the trial court erroneously calculated the parties’ respective incomes, gave Timothy a credit for the payment of the children’s healthcare insurance premium, and gave Timothy a parenting time credit that is excessive. Finding that the trial court erroneously calculated the amount of income to be imputed to Marla and that it erroneously calculated Timothy’s Weekly Gross Income, but finding no other error, we affirm in part, reverse in part, and remand with instructions to (1) recalculate the amount of income to be imputed to Marla; (2) add $100 to Timothy’s Weekly Gross Income; and (3) taking (1) and (2) into account, recalculate Timothy’s child support obligation."
First Investment Group Corp. v. Charles P. Hacker (NFP) - "First Investment Group Corporation (FIG) appeals a judgment in favor of Charles P. Hacker in what began as competing lawsuits filed by FIG and Hacker regarding a real estate contract between them for the purchase of real estate in Marion County, Indiana. Although the parties present multiple issues, one is dispositive. That issue, restated, is: does the evidence support the trial court’s conclusion that Hacker fully satisfied the terms of the land sale contract with FIG? We affirm."
NFP criminal opinions today (6):
Ind. Decisions - More on: Supreme Court issues private reprimand to attorney in matter involving "his wife's misappropriations"
The Indiana Supreme Court issued a private reprimand to local attorney Steve Shine for misconduct related to financial oversight at his law firm.
The court issued a private reprimand Tuesday for an anonymous Indiana attorney. Shine declined to comment on the case, or even verify it was related to him, but the original complaint containing the same set of facts and same case number names Shine as the attorney in question.
The reprimand was issued because for five months beginning in May 2005, Beth Shine, Steve Shine’s wife, wrote approximately 11 checks to herself or to accounts to which she had access from the law firm’s trust account, according to the court documents. This amounted to misappropriating $22,257 in client money without the knowledge of anyone at the firm, Shine & Hardin.
Steve Shine, who also is Allen County Republican Party chairman, was the partner in charge of the firm’s finances, but much of the work was left to Beth Shine without supervision, according to the complaint.
The court unanimously determined a private reprimand was warranted for not providing proper oversight to the firm’s finances. * * *
By November 2005, Beth Shine had repaid all the money to the firm, according to the court documents. Beth Shine could not be reached for comment.
The Shines began divorce proceedings in December 2006.
Wednesday, November 14, 2007
Ind. Decisions - Still more on: Merits briefs due today in Indiana voter ID cases
The Indiana voter ID case is the most important voting rights case since Bush v. Gore. Due to be heard by the U.S. Supreme Court this winter, Crawford v. Marion County Election Board will determine which American citizens are able to exercise their right to vote and which Americans are not. The Indiana law is the most restrictive ID law in America and will exclude many eligible voters from participating in our democratic process.The page includes the numerous amicus briefs filed in support of petitioner, most within the past few days. A most helpful feature is that the birefs have been arranged under categories such as "Briefs Demonstrating the Absence of In-Person Voter Fraud," and each brief is summarized.
Adding to the wealth of available resources is this Moritz College of Law (specializing in election law issues) web page, which contains all legal documents related to the case.
Election law expert Rick Hasen wrote this morning about the filings at his Election Law Blog, in an entry titled "At Least 23 Amicus Briefs Filed in Support of Petitioners in the Indiana Voter ID Case, Crawford."
See also this entry from Richard Winger's Ballot Access News.
Ind. Decisions - In Illinois decision today, "Easterbrook Chews Out Tax Protestor’s Attorney"
Robert Loblaw has a report this afternoon in his blog, Decision of the Day, including:
After devoting six pages to the merits of the defendant’s appeal, Chief Judge Easterbrook devotes another four pages to berating the attorney and concludes by ordering him to show cause why he should not be sanctioned $10,000.The case is U.S. v. Partridge.
Ind. Decisions - Yet more on: 7th Circuit decides legislative prayer case, dismissing for lack of standing
Updating earlier ILB entries on the 7th Circuit's legislative prayer decision (start here for recent ILB entries) in the case of Hindrichs v. Bosma, Bill Ruthhart of the Indianapolis Star reports this afternoon that the plainitffs' representative, ACLU of Indiana, has filed a motion for rehearing. A quote:
Ken Falk, an attorney for the ACLU of Indiana, said this afternoon that his group filed a petition for rehearing with the 7th Circuit. He said he's unsure how long it would take for the court to decide whether it would reconsider the case.
The court, Falk said, could either dismiss the request or ask the state to file a legal brief arguing why the case should not be reheard and then make a decision.
Ind. Decisions - COA "rules students can sue IHSAA in home counties" [Updated]
The Indiana Court of Appeals ruled today that students who go to court to fight an Indiana High School Athletic Association ruling do not have to do so in Marion County.[Updated 11/15/07] Patrick Guinane of the NWI Times reports today:
The IHSAA in April passed a rule that any litigation brought by a student must be filed in Marion County.
Today's court ruling -- the first on the IHSAA's attempt to dictate venue -- means any high school student who disagrees with an IHSAA ruling may take legal action where he or she lives.
Among the significant elements of the ruling, the court said it views the IHSAA as a governmental organization for the purposes of deciding the venue of legal action. * * *
The court wrote, in part, "Further, because the case before us today involves a student's claim against the IHSAA, and not a claim of a member school, we agree with Garcia that it would be unfair to force students to litigate adverse rulings of the IHSAA in Marion County."
INDIANAPOLIS | Student athletes don't have to travel to Indianapolis to litigate disputes with the Indiana High School Athletic Association, the Indiana Court of Appeals ruled Wednesday in a precedent-setting case involving East Chicago basketball phenom Angel Garcia. * * *For background, see this April 5th ILB erntry, headed Ind. Courts - "IHSAA taking back home-court advantage".
"Essentially, the Court of Appeals has agreed with our position that students should not be forced to litigate their cases in Marion County," said Michael Jasaitis, a Hammond attorney representing Garcia. "Instead, they should be able to file suit in the district where they go to school or reside."
The appellate court declared the IHSAA a governmental organization, which under state trial court rules can be sued in the counties in which the people bringing suits live.
The IHSAA had argued it should be treated as a not-for-profit organization, which, in most instances, can be sued only in the organizations' home counties. But the court ruled that because public school athletes are required to join the IHSAA, the association should be treated as a government body. * * *
After the Garcia dispute this spring, the IHSAA added a clause to its physical release form stating that all disputes with the association must be litigated in Marion County. Student athletes must sign the form in order to play.
Ind. Courts - Nominating Commission Selects Seven Semi-Finalists for Court of Appeals Vacancy
From a press release issued this afternoon:
The Indiana Judicial Nominating Commission announced Tuesday that it selected seven of the fifteen applicants for the upcoming vacancy on the Indiana Court of Appeals to return on December 12, 2007 for second interviews. The decision was made after a day of public interviews. The seven semi-finalists are:See the original list of 15 applicants here.* Hon. Elaine B. Brown, Dubois Superior CourtThe interviews on December 12, 2007 will be open to the public, after which the Commission will nominate to the Governor the three most highly qualified candidates. Within sixty days after the formal nomination, the Governor will appoint one of the nominees to succeed Judge John Sharpnack, who is retiring May 3, 2008 after nearly 17 years on the Court of Appeals.
* Hon. Jane Spencer Craney, Morgan Superior Court 3
* Mr. Stephen J. Johnson, Executive Director, Indiana Prosecuting Attorneys Council
* Mr. Leslie C. Shively, Evansville
* Hon. P. Thomas Snow, Wayne Superior Court 1
* Sen. Brent E. Steele, Bedford
* Hon. G. Michael Witte, Dearborn Superior Court
Ind. Decisions - "Justices hear police oath dispute"
Jon Murray of the Indianapolis Star reports on this morning's oral arguments before the Indiana Supreme Court in the case of State v. Cheryl Oddi-Smith. Here are some quotes from the story:
Prosecutors and state attorneys argue the officers' sworn status carried over through the merger.Watch the entire oral argument online here.
Even so, said Cynthia Ploughe, a deputy attorney general, "there is no law that requires officers of the IMPD to be sworn." Indiana law requires an oath only of officers who train others at the law enforcement academy, she said, making the oath ceremonial for others.
Attorney James Voyles disputed that. He and his co-counsel, Annie Fierek, had asked Hill to suppress any evidence gathered as the result of Oddi-Smith's arrest.
"It's not a simple matter," Voyles said. "It's a matter involving our constitutional protections when we put officers on the street."
The justices challenged both sides, with several pressing Voyles to explain the importance of re-taking the oath after the merger when the officers had taken it before.
"Why does the prior oath evaporate?" Justice Brent E. Dickson said.
Voyles said anytime a police officer begins work for a new agency, the oath should [be] administered.
Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)
For publication opinions today (3):
In Hamilton County Plan Commission, et al. v. Dr. Jerry Nieten & Sheila Nieten , a 13-page opinion, Judge Darden writes:
Issue. Whether the existence of a building used as a guesthouse for occasional, temporary visitors was not prohibited by the Ordinance, and, therefore, the BZA’s actions forbidding the Nietens to use it as such were erroneous as a matter of law. * * *In Estate of Raymond Lee v. Lee & Urbahns Company, et al., a 20-page opinion, Judge Bradford writes:
[A]s the trial court concluded, the Ordinance does not prohibit the existence of the guesthouse.
The BZA “was mistaken as a matter of law because the undisputed facts” establish that the existence of the guesthouse does not violate the Ordinance. Metropolitan Bd. of Zoning Appeals v. Avis Rent-a-Car System, Inc., 575 N.E.2d 33, 36 (Ind. Ct. App. 1991). Therefore, the judgment of the BZA “was illegal and the trial court properly reversed that decision.” Id. Affirmed.
Appellant-Plaintiff the estate of Raymond O. Lee (“the Estate”) appeals from the trial court’s entry of judgment in favor of Lee & Urbahns Company and John B. Urbahns, individually and in his capacity as general partner in Lee & Urbahns, and several other named defendants (collectively, “Defendants”). The Estate contends that the trial court abused its discretion in refusing discovery of Urbahns’s personal information, in refusing to admit a November 10, 2006, deposition of Rick Martin (a former employee of Lee & Urbahns), and in refusing to allow it to recall a witness in the second part of the bifurcated bench trial. The Estate further challenges the trial court’s finding that it never informed Urbahns prior to trial that it needed to review additional documents. We affirm.In Indiana High School Athletic Association, Inc. v. Angel Garcia , a 10-page opinion, the "Indiana High School Athletic Association, Inc., (“IHSAA”) appeals the trial court’s denial of its motion to transfer venue from Lake County to Marion County. * * * The IHSAA raises one issue, which we restate as whether the trial court properly denied its motion to transfer to a county of preferred venue." Note that this is a case involving a student suing the IHSAA. Judge Barnes writes:
The parties dispute whether the IHSAA is a “defendant organization” or a “governmental organization” for purposes of Indiana Trial Rule 75(A). The IHSAA asserts that because it is a Marion County-based not-for-profit corporation, preferred venue lies in Marion County pursuant to Indiana Trial Rule 75(A)(4). Garcia argues, and the trial court concluded, that the IHSAA should be considered a “governmental organization” pursuant to Indiana Trial Rule 75(A)(5), rendering Lake County a county of preferred venue. * * *NFP civil opinions today (4):
Conclusion. The trial court properly denied the IHSAA’s motion to transfer venue to Marion County. We affirm.
Julie A. King Farley v. Review Board (NFP) - "The only basis for Farley’s argument that the Board should have considered the merits of her appeal is an assertion that her attorney somehow caused her to miss the deadline. But she offers no authority to support an argument that the Board is somehow vested with jurisdiction—when it otherwise would not be—to hear an untimely appeal because of an attorney error. We can only conclude, therefore, that the Board properly dismissed Farley’s untimely appeal of the ALJ’s decision. The judgment of the Board is affirmed."
Patricia J. Miller v. Janet Ann Looney (NFP) - "The law is clear and well established that it is the appellant’s burden to demonstrate that the judgment or ruling complained of is erroneous. She must do so by the record presented to us. * * * Before reversal may be obtained, she must affirmatively show that the error has prejudiced her substantial rights. Furthermore, this court will not search the record to find grounds for reversal. Prejudicial error must be clearly shown. * * * Miller has not established clear error either by the appendices filed or otherwise, and the arguments in her brief do not demonstrate prima facie error. In the latter respect, we are cognizant that when, as here, the appellees have not filed a brief, we need not develop an argument on their behalf."
NFP criminal opinions today (9):
Ind. Courts - Still more on: Evansville attorney cleared in meth case
In a valuable continuing series of stories on young Evansville attorneys with methamphetamine addictions, Kate Braser of the Evansville Courier & Press has two reports today.
A jury has found Evansville attorney Brad Happe not guilty of two methamphetamine-related charges, but the question of whether his license will be reinstated is far from solved.The ILB has had a number of entries on the two young Evansville attorneys charged separately with meth violations. The most recent entry on the second attorney, Teresa Perry, is this one from Oct. 27th, quoting a C&P story that begins: "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."
The Indiana Supreme Court Disciplinary Commission has the exclusive power to take action against a lawyer's license and is responsible for investigating and prosecuting claims of misconduct against lawyers licensed to practice in Indiana. * * *
While Evansville attorney Teresa Perry's license was not suspended by the commission over meth-related charges, Perry said she agreed not to practice law at least until her case is finished.
But Happe was issued an interim suspension of his license in June, "until further order of the court."
That decision came after two-thirds of the Indiana Supreme Court Disciplinary Commission voted Happe could pose a threat to his clients based upon his involvement with meth.
[Donald Lundberg, executive secretary of the Indiana Supreme Court Disciplinary Commission] explained while the standard of proof juries must consider in a criminal case is "beyond a reasonable doubt," the disciplinary commission's standard in a discipline case is "clear and convincing evidence."
"It is relatively uncommon for a lawyer to have an interim suspension from practice in the absence of conviction of a felony," he said.
"Whether there is a case to be made for disciplinary action by our standard of clear and convincing evidence is still a matter to be taken up in the future," he said of Happe's case.
Lundberg said there are currently no disciplinary commission hearings scheduled involving Happe's license.
Reached by phone Tuesday, Happe said he previously chose not to fight his suspension while his criminal case proceeded.
Happe said he talked to his Indianapolis-based attorney regarding his license suspension on Monday.
"He said he's never represented a lawyer without a felony conviction who did not get their license back," he said.
Today Kate Braser reports in a lengthy story that begins:
Teresa Perry's relatives said she was the kind of child who always earned straight A's, kept her room spotless and never failed to remember a loved one's birthday. As an adult, she would call to check on her cancer-stricken grandmother several times a day.
Her home was tidy, and she volunteered at her church.
Those are some of the reasons why relatives say they were shocked by the 33-year-old lawyer's arrest in May. Perry was addicted to methamphetamine and faces eighty felony charges related to the drug.
Perry's arrest came one month after the arrest of another Evansville lawyer, Brad Happe. He, too, admitted to a methamphetamine addiction, but contested his arrest on meth-making charges. Last week, a jury found him not guilty of manufacturing the drug.
The back-to-back arrests of two local professionals forced some to re-evaluate stereotypes about the drug, which can be manufactured using over-the-counter ingredients.
Now deep into an intensive addiction recovery program, Perry said she is proof positive that meth's grip extends beyond the rural and poor.
"Meth affects everyone," she said. "There are a lot of types of users. I am familiar with a number of professionals who use. It's definitely a drug that is affecting all classes of people."
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This Wednesday, Nov. 14th:
9:30 AM - State v. Cheryl Oddi-Smith - The Marion Superior Court dismissed charges against Oddi-Smith on grounds the arresting officer, who had been sworn as an officer in the former Indianapolis Police Department, had not been re-sworn as a police officer for the newly-formed Indianapolis Metropolitan Police Department. The Supreme Court has granted a motion to consider the case on an expedited basis pursuant to Appellate Rule 56(A), and has assumed jurisdiction over the appeal. Attorney for State: Cynthia Ploughe, Indianapolis, IN. Attorneys for Oddi-Smith: James Voyles, Indianapolis, IN; Annie Fierek, Brownsburg, IN. Attorney for Amicus CuriaeIndianapolis Metro. Police Dep’t. : Lakshmi Hasanadka, Indianapolis, IN .
10:15 AM - Michelle Gauvin v. State - Appellant pleaded guilty to the murder of a four-year-old child, among other offenses, and was sentenced by the Tippecanoe Superior Court to life imprisonment without parole. In this direct appeal, Appellant raises issues with respect to the aggravating and mitigating circumstances and the sentence. Attorney for Gauvin: Kevin O’Reilly, Lafayette, IN. Attorney for State: Stephen Creason, Indianapolis, IN.
This Thursday, Nov. 15th:
9:00 AM - Speedway Superamerica LLC v. Gerald Holmes - Holmes filed a complaint for damages against Speedway Superamerica, alleging he slipped and fell in diesel fuel. The Lake Circuit Court entered judgment on a jury verdict for Holmes. Thereafter, Speedway filed several post-trial motions relating to a belatedly disclosed pair of jeans that was admitted in evidence. The trial court denied all of Speedway's motions. The Court of Appeals affirmed. Speedway Superamerica LLC v. Holmes, 866 N.E.2d 304 (Ind. Ct. App. May 14, 2007) [See ILB summary of the 2-1 COA opinion here - 2nd case]. Speedway has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorneys for Speedway Superamerica: Peter J. Rusthoven, Joseph G. Easton, Paul L. Jefferson, Indianapolis, IN. Attorneys for Amicus Curiae Defense Trial Counsel of Indiana: Kevin C. Schiferl, Lucy R. Dollens, Indianapolis, IN. James D. Johnson, Evansville, IN. Attorneys for Gerald and Madeline Holmes: Robert J. Palmer, Mishawaka, IN; Steven T. Parkman, South Bend, IN; Richard L. LaSalvia. South Bend, IN.
9:45 AM - Theron Hunter v. State - The terms of Hunter’s probation specified that he was never to be alone with or have contact with any person under a certain age. The Ripley Circuit Court found that Hunter violated the terms of probation and ordered him to serve the entire suspended sentence. The Court of Appeals affirmed in an unpublished memorandum decision, Hunter v. State, No. 69A01-0702-CR-61, slip op. (Ind. Ct. App. June 21, 2007), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Hunter: Leanne Weissmann, Lawrenceburg, IN. Attorney for State: Cynthia L. Ploughe, Indianapolis, IN.
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, Nov. 16th:
3:00 PM - Cynthia Ogle vs. East Allen Community Schools - Cynthia Ogle was treated for Common Variable Immune Disease (CVID) using intravenous immunoglobulin replacement therapy. Her employer, the School, paid for the treatments through its self-funded benefit plan. The plan administrator's independent medical reviewers determined the treatment was not medically necessary, and the plan stopped paying. Ogle sued and the trial court granted summary judgment for the School. On appeal, Ogle argues there are fact questions as to whether the plan's definition of medical necessity is ambiguous, whether the reviewers found the treatments medically unnecessary, whether the reviewers had a conflict of interest, whether the use of the independent reviewers violates the School's duty of good faith, and whether the policy language allows the School too much discretion in denying claims. The Scheduled Panel Members are: Chief Judge Baker, Judges May and Robb. [Where: French Lick Resort, French Lick, Indiana]
Tuesday, November 13, 2007
Ind. Decisions - Supreme Court issues private reprimand to attorney in matter involving "his wife's misappropriations"
In In the Matter of: Anonymous, a per curium, 3-page attorney discipline action, the Court writes:
Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a "Statement of Circumstances and Conditional Agreement for Discipline" stipulating agreed facts and proposed discipline. The Court approves the agreement and finds that Respondent engaged in attorney misconduct by failing to make reasonable efforts to ensure that the conduct of a nonlawyer employee of his law firm was compatible with his professional obligations, which failure resulted in theft from the firm's client trust fund.
The Respondent's 1978 admission to this state's bar subjects him to this Court's disciplinary jurisdiction. See IND. CONST. art. 7, § 4. For his misconduct, we find that Respondent should receive a private reprimand. * * *
Although Respondent was negligent in supervising the firm's trust account, he took immediate and effective action to protect clients and rectify the situation once his wife's misappropriations came to his attention, and he cooperated fully with the Commission. Under these circumstances, the Court concludes that a private reprimand is an appropriate sanction.
Conclusion. The Court, having considered the submission of the parties, now APPROVES and ORDERS the agreed discipline. For Respondent's professional misconduct, the Court imposes a private reprimand. The costs of this proceeding are assessed against Respondent.
The Court directs the Clerk to forward a copy of this Opinion to the hearing officer, to Respondent or Respondent's attorney, and to the Indiana Supreme Court Disciplinary Commission.
Ind. Decisions - Still more on: 7th Circuit dismisses challenge to Indiana canons of judicial ethics
On Friday, Oct. 26th, the 7th Circuit issued a significant decision in the case of Right to Life v. Randall T. Shepard. (For background, start with this ILB entry from Nov. 2nd.) Today, James Bopp Jr., attorney for Right to Life, has issued a press release headed "Indiana Right to Life Seeks En Banc Review of Judicial Canons Challenge". Some quotes:
Last Friday, Indiana Right to Life requested the Seventh Circuit to review the panel decision in Indiana Right to Life v. Shepard, which dismissed Indiana Right to Life's claims against a judicial canon, stating that no judicial candidate want to answer Right to Life's questionnaire and that only judicial candidates who had violated the rule could bring such a challenge. The rule Indiana Right to Life had challenged prohibited judicial candidates from making "pledges and promises" and from "committing or appearing to commit" on a case, controversy, or issue likely to come before them. * * *
According to James Bopp, Jr., lead counsel for the plaintiffs, "the Seventh Circuit's decision is contrary to precedent in the Seventh Circuit, other circuits, and even the United States Supreme Court; it allows these rules to stand unchallenged unless a candidate expressly violates them and ignores clear evidence showing that judicial candidates are interested in answering the questionnaire.” Bopp argued the case challenging the Minnesota judicial rule struck down by the U.S. Supreme Court in Republican Party of Minnesota v. White, 536 U.S. 765 (2002).
Ind. Gov't. - "Government e-mails going private" What about Indiana?
From a story today in the St. Louis Post-Dispatch reported by Jo Mannies:
Public officials can end up in trouble if they're caught using government equipment to conduct personal or political business. Some, in fact, have landed in jail for the practice.There is much more to today's story. But what about Indiana?
But in an age of e-mails and hand-held computer devices, the reverse practice is taking hold: conducting government business on personal or political accounts and computers.
Gov. Matt Blunt admits using private and political e-mail accounts for official communications. So do some members of the Missouri Legislature.
"It's growing exponentially," said Charles Davis, executive director of the National Freedom of Information Coalition, a nonprofit group based in Columbia, Mo.
Although the federal government frowns on the practice, it is legal in Missouri and many other states. Open-records experts, however, say public officials could be playing loose with the rules.
They fear that government e-mails sent on private accounts may be beyond the reach of the public, despite laws that spell out what records are open and how long they should be retained.
The issue is open government — making sure citizens know what their elected officials are doing. But technology is testing well-worn rules about what counts as a public record and how documents should be saved.
"There are public officials in Missouri and elsewhere who use private e-mail accounts to avoid public-records and open-meetings laws," Davis asserted. "They think, 'It's on my EarthLink account, not my mo.gov account, so it's OK.'"
Such e-mails, if they're not retained in government archives, represent "lost history," Davis said.
The ILB does not have the answer. But here is a quote of interest from a March 2006 AP story reported by Keith Robinson:
[I]n April 2001 [the Indiana General Assembly] passed a bill to exempt themselves from the state’s Access to Public Records Act in a dispute over whether their correspondence with constituents should be confidential. Open-records advocates said the bill went too far in allowing the legislature to set its own rules for releasing public records.
Gov. Frank O’Bannon, who owned a newspaper and was an advocate of open government, vetoed the bill, setting the stage for an override vote in the next legislative session. News organizations and other open-government advocates heavily lobbied their legislators to thwart an override.
Their campaign helped to persuade legislators in March 2002 to sustain the veto, killing the bill.
Ind. Decisions - One Indiana case today from 7th Circuit, re filing of an Anders brief
In USA v. King (SD Ind., Judge Hamilton), an 8-page per curiam decision, the Court writes:
King filed a notice of appeal; perhaps anticipating our opinion in United States v. Gammicchia, 498 F.3d 467 (7th Cir. 2007) (when a criminal appeal is frivolous, the defendant’s attorneys should file an Anders motion), his appointed counsel moved to withdraw because he cannot discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967). * * *
Most frivolous criminal appeals are offered by the attorney because the defendant wanted the lawyer to appeal. We have pointed out that no one has the right to file a frivolous appeal and that an attorney has a duty to file an Anders brief rather than argue silly grounds for reversals. United States v. Bullion, 466 F.3d 574 (7th Cir. 2006). We commend attorney James McKinley for his handling of this appeal. We recognize that tension exists between our directions and the need to faithfully represent one’s clients. Here the matter was handled with exactly the proper balance.
The motion to withdraw is GRANTED and the ruling of the District Court is AFFIRMED.
Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)
For publication opinions today (0):
NFP civil opinions today (0):
NFP criminal opinions today (1):
Ind. Law - More on "Argos Town Board Discusses Golf Cart Ordinance"
11/10/07 The Argos Town Council passed on the second and third readings the Golf Cart Ordinance. This ordinance will not go into effect until January 1, 2008.
Court - More on: Reduced crack cocaine federal sentencing guidelines effective Niov. 1
An independent panel is considering reducing the sentences of inmates incarcerated in federal prisons for crack cocaine offenses, which would make thousands of people immediately eligible to be freed.See also this entry and update from the Sentencing Law Blog.
The U.S. Sentencing Commission, which sets guidelines for federal prison sentences, established more lenient guidelines this spring for future crack cocaine offenders. The panel is scheduled to consider today a proposal to make the new guidelines retroactive.
Should the panel adopt the new policy, the sentences of 19,500 inmates would be reduced by an average of 27 months. About 3,800 inmates now imprisoned for possession and distribution of crack cocaine could be freed within the next year, according to the commission's analysis. The proposal would cover only inmates in federal prisons and not those in state correctional facilities, where the vast majority of people convicted of drug offenses are held.
Ind. Law - Evansville lawyer sets up shop in old downtown jail
This is a neat story. Katie Braser reports today:
For two decades, Evansville attorney Mike Woods' former law office window offered a clear view of the deterioration of Vanderburgh County's Old Jail and sheriff's residence.The story includes a well-worth viewing photo gallery od the old jail.
"I was catty-corner to it for 20 years and always thought it was a pretty building," said Woods, founder of Woods and Woods law firm. "It made me sick to watch it in bad shape for so long."
That's why, shortly after the century-old building went up for auction, Woods secured the keys.
Located at 208 NW Fourth Street in Downtown Evansville, the building is owned by Vanderburgh County, but Woods and Woods bought the lease from the Old Courthouse Foundation in 2003 for $205,000. They'll hold the rights to the lease until 2067.
After a year of cleanup and renovation, Woods and Woods moved their office into the building in November 2004.
At 11 a.m. today, their renovation and restoration will be honored as the Indiana Historical Bureau officially dedicates a historical marker outside the building.
The marker notes that the building was the focal point of a race riot in July 1903 that lasted several days. When it was over, 12 were dead and many more were injured.
"Through the years, the Old Jail has received minor repairs and updates, a few new coats of paint, and thousands of visitors, but it hasn't lost its intrigue," Woods said in a news release announcing the dedication. "Preserving this history is important because it allows community members to reflect on the past, to learn from and appreciate those who came before us."
Built in 1890, the turreted building is modeled after the Castle of Lichtenstein in Germany. A picture of that castle is now framed inside Mike Woods' personal law office on the second floor of the building.
The Old Jail and Old Courthouse were both designed by architect Henry A. Wolters in the late 19th century.
Mike Woods said the Old Jail sat empty from 1967 until 1994. When he got the keys to the place, it was filled with weeds and trash — 44 trash bins worth, to be exact.
"We'd come over here every night after work and fill one Dumpster, then the garbage truck drivers would haul it off and we'd fill another," Woods said. "And that doesn't even include the stuff we'd give away."
Much of the layout separating the Old Jail from the connecting sheriff's residence remains intact today. Woods said about 30 employees of his law firm share office space inside the barred windows of the historical building.
"They are always joking they can't get away, or saying we're slave drivers," he said.
Monday, November 12, 2007
Law - "Report urges open access to records for adult adoptees"
Bonnie Miller Rubin of the Chicago Tribune writes today in a lengthy story that begins:
Few issues are more heatedly debated in child-welfare circles than whether adopted citizens should have access to their original birth certificates and other legal documents.Here is the link to the Evan B. Donaldson Institute website; as of this writing the new report does not yet appear to have been posted.
In most states, including Illinois, adoptees are legally prohibited from obtaining those records, based on the belief that such practices best serve both the birth parents who relinquished their children and their new families.
But a report scheduled to be released Monday by the Evan B. Donaldson Institute challenges those assumptions, suggesting that all adult adoptees should have unfettered access to their court files and that barring them from such personal information raises significant civil rights concerns.
Currently, only eight states fully open such records, reflecting the nation's long tradition of shrouding adoption in secrecy. The report, considered the most exhaustive on the topic to date, examined individual states' experiences in restoring access and analyzed current research and policy.
It concludes that the rest of the nation should move to share such information -- and the sooner, the better.
Moreover, there is no evidence that the states that do allow such transparency have caused undue hardship to biological parents' lives by revealing their names.
"Good public policy is not based on anecdote or stereotypes but on real knowledge and research," said Adam Pertman, executive director of the New York-based independent non-profit organization. "We hope by providing that research, we can inform the national conversation, leading to laws that are responsible and humane."
In states that have amended their statutes, none of the negative consequences predicted by opponents has come to pass, the study concluded. Chief among the concerns: Without the assurance of anonymity, pregnant women would be more likely to choose abortion.
"It's just not accurate, it doesn't happen," Pertman said. "Sealed records are a symbol of a time when adoption was an embarrassment ... and that time has gone by."
Ind. Courts - More on: Evansville attorney cleared in meth case
Speaking Sunday, Happe said, despite his exoneration by the jury, he believes his reputation has yet to make a complete recovery.
"I wouldn't say I've been publicly exonerated yet," he said. "I was villainized by the press. By the court, I was exonerated, but I still need to publicly be put in a better light."
During the trial, Brinson said police targeted Happe leading up to his March arrest because he was a defense attorney and a drug user. He said police entrapped Happe by using an informant to lead him into helping manufacture meth at his law office/apartment.
"Because I was a criminal defense attorney, the police had it out for me," Happe said Sunday. "But the jurors saw the truth. It was entrapment."
Today, Happe will resume his physical recovery when he returns to an addiction treatment center in the Chicago area, where he has been for about eight months.
Happe said the center discharged him in July, but he has continued treatment.
The center specializes in treating the addictions of doctors, lawyers and pharmacists, Happe said, explaining staff there will help him get his license to practice law, which was suspended after his arrest in March.
"I need to go back and get some things right," he said. "The anxiety of this was overwhelming. Now, I feel like I can go out in public again. It's a sense of freedom I haven't had in a long time. When I was home for visits before, I would lay low, but now I feel free to roam about the city, so to speak."
The bumpy road Happe has been down began at a party years ago, where he said he first tried methamphetamine.
Happe describes his first high on the drug as "euphoric."
"Meth is something you try one time, and your first experience is so overwhelming and feels so good that you are going to become addicted," he said.
Happe was hooked for almost the next two years.
"Coming down, even from my first high, was atrocious," he said.
He said his back ached, he couldn't sleep, felt irritable and was in "agonizing pain."
"It was torture," he said.
Happe said a 2006 conviction on a misdemeanor charge of visiting a common nuisance led to his ongoing recovery effort. In that case, he pleaded guilty after being accused of leaving a place where meth was manufactured.
Happe believes if his addiction had gone unchecked for another 30 to 60 days, he would have died.
"Most people don't make it out of a meth addiction," he said. "They die or go to jail. If you don't go to a recovery center, you don't get better."
Happe said his cravings are completely gone.
"This is a lifelong process," he said of his recovery.
Happe says his plans are to resume his career in criminal defense when he returns to Evansville in several months.
"I'll be able to identify with my clients much more now," he said. "I'll understand where they are coming from because I went through the whole process. A client who comes to me will get someone with a unique perspective."
Even so, Happe concedes his relationship with some in the local law enforcement and legal community is now strained.
"I think this has been a learning experience for everyone," he said. "I think the Police Department and prosecutors have learned that you can't plant evidence on someone, and I hope the community has learned that I am not a villain. I am an addict in recovery."
Ind. Courts - Jails not hotels, but "inmates who contract preventable infectious diseases could claim they were subjected to cruel or unusual punishment"
Joe Carlson reports today in the NWI Times:
Although the Constitution does not require prisons to have the comforts of a hotel, inmates who contract preventable infectious diseases could claim they were subjected to cruel or unusual punishment.
That's the early lesson emerging from several judges' opinions in the 25 lawsuits that prisoners in Lake and Porter county jails have filed in U.S. District Court since Aug. 23.
All of the prisoner-rights lawsuits are handwritten, and complain of the same conditions, often in word-for-word identical language. The inmates say they are exposed to staph infections, forced to use dirty showers and clothes, and viewed by female corrections officers on security cameras.
And in the cases where judges have made rulings already, nearly all of the complaints have been dismissed.
"The Constitution doesn't mandate comfortable prisons or jails," wrote U.S. District Court Chief Judge Robert Miller Jr. on Nov. 2 in a complaint brought by Porter County inmate Corey Taylor.
Taylor complained that the jail's showers and lavatories were "filthy and nasty." The conditions contributed to what he called a widespread pattern of bacterial staph infections among inmates at the jail.
Miller ruled that Taylor's complaints did not meet the high bar for substandard care outlined in a 1981 U.S. Supreme Court decision that said inmates can sue only if they are denied "the minimal civilized measure of life's necessities."
Taylor, who faces eight counts of violent crime and drug distribution, was not actually harmed by the exposure to dirty conditions because he did not contract staph, Miller wrote.
Not so with Jackie Hernandez, who was the first of the 25 inmates to sue after he was incarcerated at Porter County Jail on a heroin distribution charge.
Hernandez did contract staph, after his cellmate had it, and neither man was properly treated, he said.
U.S. District Judge Theresa Springmann ruled Oct. 16 that Hernandez's case could go forward without immediate dismissal because contracting the disease could be considered cruel and unusual punishment, which is forbidden by the Eighth Amendment.
In all, only four of the 25 suing inmates claim to have gotten the disease -- two each in Porter and Lake county jails.
Sunday, November 11, 2007
Courts - "Desegregation Rulings Cause Confusion"
There is a long and very interesting article in the Washington Post today, written by Allen G. Breed of the AP. Some quotes:
Hasn't the U.S. Supreme Court consistently moved away from using race as a factor in deciding where kids should go to school?See also this ILB entry from June 29th headed "5-4 ruling limits use of race by district." that includes quotes on the reaction of Indianapolis Public Schools to the SCOTUS ruling in June.
Didn't the high court recently put an exclamation point on that trend, ruling that two districts' heavy reliance on race in student assignment policies violated the Constitution's guarantee of equal protection?
Yes, and yes. But there are still hundreds of districts across the country, from the Northeast to the Southwest, that operate under federal court desegregation orders _ some more than four decades old.
These districts are in a unique and sharply debated position with respect to the Supreme Court's rulings. They exist in what critics consider a historical Twilight Zone, where federal judges can make seemingly contradictory decisions.
"So which ruling do I violate?" asks a perplexed Bobby Webb, superintendent of schools in Shelby County, where Memphis is located. "The judge's ruling now, or the earlier rulings that we can't discriminate against people on the basis of the color of their skin?"
Front-page court battles over integration are mostly a thing of the past. But according to the U.S. Department of Justice's Civil Rights Division, there are at least 253 school districts still under federal court supervision in racial inequality cases _ and those are just the ones in which Justice intervened.
Many of the more infamous names _ Boston, Little Rock, Charlotte, N.C. _ are gone from the list, having satisfied judges with their desegregation efforts and being granted what's called "unitary status." In the last two years alone, at least 75 districts have won such status.
Of those that remain, most are in the South. Georgia leads with 61, followed by Mississippi with 51, Alabama with 50 and Louisiana with 30. But long-standing cases are still pending in places like Arizona, Connecticut, Indiana and Illinois.
The question of these districts came up this past year as the Supreme Court heard arguments involving voluntary diversity plans in Seattle and Louisville, Ky.
Ind. Decisions - "Court overturns Speybroeck's conviction"
A story today in the South Bend Tribune written by Nancy J. Sulok reports on the COA decision Friiday in the case of William J. Speybroeck v. State of Indiana. (see ILB summary here - 4th case), where the Court reversed the trial court ruling, and remanded for a new trial, on the basis of evidence erroneously admitted. From today"s story:
The appeals court ruled that the trial court erred in allowing the admission of documents that were not properly authenticated and did not satisfy the requirements for exception to the hearsay rule.
An affidavit authenticating the documents was signed and dated on Oct. 23, 2006, but computer printouts that were part of the evidence were not created until Oct. 24, 2006, the appeals court noted.
The hearsay stems from the inclusion of paperwork from Kawasaki that was included in a file compiled by HSBC, the bank that handled the credit card. The court ruled that Speybroeck "had met his burden showing that no one at HSBC had the personal knowledge required for the business records exception to apply.''
The appeals court has sent the case back to Elkhart Superior Court for retrial.
Environment - "BP wastewater permit: 'We already have the technology'"
Gitte Laasby of the Gary Post-Tribune reports today:
BP representatives say they haven't found a way to reduce the Whiting refinery's discharges of ammonia and suspended solids. But potential contractors, who say they can solve the problem with technology used at other refineries, say BP shut them out.See also this Sept. 4, 2007 ILB entry headed "Study shows how BP could likely could expand its refinery without the added pollution."
This pending water discharge permit for the Whiting refinery caused the initial outcry from environmentalists and others. The refinery's proposed air permit and permits for the BP Whiting Refinery's new asphalt plant are also under review.
Ind. Law - "Should the Indiana General Assembly order a return to the 'certificate of need' program for hospitals?"
So asks this editorial today in the NWI Times. Some quotes:
The question of how many hospitals Porter County needs -- and how many it can support -- is one that needs to be asked before the county's health care suffers from even more upheaval than it already faces.This is not an issue limited to Lake County of course. Here is a list of some earlier ILB entries, two relating to Lake County, and two relating to recent federal court decisions denying communities the right to restrict new medical centers on their own, one involving St. Francis in Mooresville, and the other "two groups of Kentucky-based investors who want to build hospitals in Southern Indiana." See also these ILB entries from Jan. 31, 2006 and Jan. 19, 2006.
Maybe the General Assembly needs to examine whether to return to the "certificate of need" program that carefully controlled the health care industry in Indiana. The idea was to make sure new structures and equipment were truly necessary rather than simply inflating the cost of health care.
Since the certificate program was discontinued, specialty hospitals have eroded the financial base supporting general hospitals, snatching away customers who can afford special treatment and leaving the general hospitals (a) to care for people who cannot pay and (b) to provide less profitable services that have traditionally been subsidized by other operations.
Ordinarily, we're reluctant to urge government to get this heavily involved in an industry, but health care is a necessity. This is not just a quality-of-life issue but one of life and death.
Ind. Gov't. - "State takes action on foreclosures"
Niki Kelly of the Fort Wayne Journal Gazette writes today that the State of Indiana has set up a toll-free number and web site to advise borrowers facing foreclosure. Some quotes:
Problems linked to mortgage fraud and high foreclosures have plagued the nation, with Indiana leading the pack.For background, I recommend this ILB entry from August 25th, headed "Hoosier homeowners hit by perfect storm."
A study by the Mortgage Bankers Association indicated that 2.98 percent of all loans in Indiana are in foreclosure, compared with 1.28 percent nationally.
This puts Indiana behind only Ohio in terms of foreclosure rate.
The Center for Urban Policy and the Environment also studied Indiana’s foreclosures from 2002 through 2005 and found a higher concentration in urban areas. These areas are also spreading each year. * * *
To reduce the number of home foreclosures in Indiana, the state launched an initiative to assist Hoosiers.
It includes a Web site and telephone hotline for free mortgage foreclosure counseling and offers education for at-risk homeowners. The address for the Web site is www.877gethope.org and the hotline number is 877-GET-HOPE.
The Indiana Housing and Community Development Authority also will start a public awareness campaign, “Don’t Let the Walls Foreclose in on You.” Brochures and posters are being distributed to encourage Hoosiers to call the help line or visit the Web site.
A media campaign is expected to roll out early next year with targeted outdoor advertising, newspaper advertising and 60-second radio commercials in areas of the state experiencing higher rates of foreclosure.
Ind. Courts - Ind. Death Row Inmate Norman Timberlake Found Dead in Cell
From a Sept. 28th ILB entry about the U.S. Supreme Court granting cert to a Kentucky lethal injection case and what that might portent for others awaiting execution:
Regular ILB readers may recall this May 1, 2007 entry headed "Judge Young denies challenge to Indiana's lethal-injection procedures," perhaps worth rereading.Today the AP reports:
Three Indiana Death Row inmates had joined the request for a preliminary injunction. Subsequently, David Leon Woods and Michael A. Lambert have been executed by lethal injection. Norman Timberlake, who filed the original suit last December in U.S. District Court in Indianapolis, remains on Death Row. For more, see this list of ILB entries.
MICHIGAN CITY, Ind. (AP) — A death row inmate convicted of fatally shooting a state trooper during a traffic stop was found dead in his cell on Saturday, 10 months after being spared execution.
An Indiana State Prison guard found Norman Timberlake, 60, of New Albany, unresponsive in his cell during a head count shortly after midnight, prison spokesman Barry Nothstine said. Attempts to revive him failed.
"Timberlake was sitting upright watching television but did not respond to verbal communication from an officer," Nothstine said in a news release.
Timberlake appeared to have died from natural causes, and an autopsy was planned for Tuesday, Nothstine said. * * *
Timberlake was scheduled to die by chemical injection last Jan. 19, but two days ahead of the execution date, the Indiana Supreme Court blocked the sentence because a similar case from Texas also involving a mentally ill prisoner had come under review by the U.S. Supreme Court. The high court ultimately blocked the Texas execution.
During an appearance before the Indiana Parole Board on his request for clemency ahead of his scheduled execution, Timberlake said he has been hearing voices since 1997 from someone who identified himself as Satan.
Dr. George F. Parker, a psychiatrist who examined Timberlake for the state last year, said he suffered from chronic paranoid schizophrenia and believed he was tortured by a computer-driven machine operated by prison officials.
Saturday, November 10, 2007
Ind. Courts - Evansville attorney cleared in meth case
Evansville attorney Brad Happe, facing two felony counts of methamphetamine-related charges, was found not guilty on all charges at the end of a two-day trial Friday.
Vanderburgh Superior Court jurors deliberated a little more than four hours before declaring Happe, 30, not guilty of charges of possession of precursors and conspiracy to deal methamphetamine. * * *
With the case over, Happe said Friday night he hopes to get his license back and resume his practice. Happe said he was relieved.
Ind. Decisions - More on: Tax Court dismisses property tax challenge
Charles Wilson of the AP reports today on yesterday's Indiana Tax Court decision in the case of Mel Goldstein, et al. v. Indiana Department of Local Government Finance, et al. (see ILB entry here). Some quotes:
A judge on Friday dismissed a lawsuit challenging the constitutionality of the state's property tax system, ruling that homeowners who filed the case had not exhausted administrative remedies.
The lawsuit filed in Indiana Tax Court questioned statewide assessment methods, the use of tax abatements and claimed that the system does not comply with the state constitutional requirement of a "uniform and equal rate of property tax assessment and taxation." It also challenged Daniels' authority to extend a statutory deadline for counties to adopt higher local income taxes to offset property taxes. * * *
"This court is acutely aware of the public's discontent with the purported inadequacies of Indiana's property assessment and taxation system," Indiana Tax Court Judge Thomas Fisher wrote in the 11-page ruling. "What the petitioners are asking the court to do, however, is to create and confer upon itself subject matter jurisdiction where subject matter jurisdiction does not exist. This the court cannot do."
The tax court's jurisdiction is limited by state law and higher court rulings to cases arising from decisions of the Indiana Department of State Revenue and the Indiana Board of Tax Review, Fisher wrote. He also wrote that he lacked standing to rule on constitutional issues under current law.
Ind. Courts - "New Albany lawyer charged "
Harold J. Adams reports today in the Louisville Courier Journal in a story that begins:
A New Albany lawyer faces charges in Harrison County of criminal deviate conduct and sexual battery in an alleged attack on a 16-year-old Elizabeth girl.
Anthony J. Wallingford, 38, was jailed yesterday in the case involving an April 14 incident at the girl's home. Her father had invited Wallingford to attend a social event at the home that night, according to an affidavit filed by a Harrison County police detective.
Law - Stll more on: Lawyer in Kentucky schools case seeks fees, bonus
Louisville attorney Ted Gordon will receive $210,000 for leading the five-year legal fight to overturn Jefferson County Public Schools' racial integration policy -- less than a third of what he requested.
Gordon sustained the case "more upon a conviction than skill," U.S. District Judge John Heyburn wrote yesterday in his ruling awarding the money for fees, expenses and a bonus, but "the undeniable truth is that counsel pursued an epic case against considerable odds and vehement opposition to an astonishing success."
Friday, November 09, 2007
Ind. Decisions - Tax Court dismisses property tax challenge
In Mel Goldstein, et al. v. Indiana Department of Local Government Finance, et al., an 11-page opinion issued today, Judge Fisher rules:
For the aforementioned reasons, this Court does not have subject matter jurisdiction over the Petitioners’ case. As a result, the case is now DISMISSED.[More] Here is the press release put out early this evening by John Price, attorney for the plantiffs:
INDIANAPOLIS, IN ---- “The battle for a uniform and equal tax system in Indiana will now move from the courts to the General Assembly.” Thus said, John R. Price, Counsel for taxpayers from across the State, whose case testing the constitutionality of Indiana’s property tax system was today dismissed by the Indiana Tax Court, on jurisdictional grounds.
“The State of Indiana and the County Defendants today prevailed on their Motions to dismiss the claims brought by ten taxpayer organizations and several taxpayers on a class action basis. The Court said it based its order on ‘the current statutory framework limits which limit access to the Tax Court’. The taxpayers certainly respect Judge Thomas Fisher, who essentially held that his hands were tied by the law as it stands today. The ‘statutory framework’ to which the Judge referred would appear to require the taxpayers to present their constitutional claims to State agencies who clearly have no authority to take any action on claims that the agencies themselves violate the Indiana Constitution. The requirement for taxpayers to jump through bureaucratic hoops cries out for legislative revision. The taxpayers are committed to working in the upcoming session of the General Assembly to change Indiana law and make it more taxpayer friendly, when challenges are brought in the judicial system. In addition, the taxpayers will pursue the administrative hurdles set up in the current law, though it is unknown at this time how many months or years the process will take.
“In addition, the various taxpayer organizations who came together as co-Plaintiffs in this case have concluded that by working together they can accomplish a great deal more than operating separately in their own areas of the State. Accordingly, next week an alliance of taxpayer organizations from across the State of Indiana, from Lake Michigan to the Ohio River, will be formally launched and details publicly announced. The new organization will take an active public role in the unfolding debate in the Legislature on the repeal of property taxes.”
Law - The life of a temp attorney
Ind. Decisions - Transfer list for week ending November 9, 2007
Here is the Indiana Supreme Court's transfer list for the week ending November 9, 2007.
There were five transfers granted this week, summarized in this entry (immediately below) from earlier today.
Ind. Decisions - Court grants five transfers this week
The formal transfer list will follow later today, but five cases have been granted transfer this week:
Nicole Huss v. David Huss (see ILB COA entry here) is a NFP COA opinion issued July 26, that concluded: "In sum, the record does not support a conclusion that the evidentiary hearing was fundamentally unfair and violated Wife’s due process rights. We therefore affirm the Adams Circuit Court’s award of custody of the parties’ three biological children to Husband."
In 600 Land, Inc. v. Metropolitan Bd. of Zoning, a March 27, 2007 COA opinion (see ILB entry here), the COA rules: "We conclude that the IZO does not allow the operation of a waste transfer station without a special exception. However, we reverse, as we also conclude that the BZA’s denial of the petition was not based on sufficient evidence."
Tonda Nichols v. Rex Minnick is an April 13, 2007 COA decision (see ILB entry here) : "The sole issue for our review is whether the trial court erred in entering judgment in favor of Minnick in Nichols’ action seeking the return of Minnick’s commission. * * * Affirmed."
Rosalio Pedraza v. State is a Sept. 24, 2007 COA opinion (see ILB entry here) re sentencing.
In Dawn McDowell v. State, an August 31, 2007 COA opinion (see ILB entry here), the COA ruled: "The court did not abuse its discretion by admitting evidence or by prohibiting the re-opening of McDowell’s case. Neither did the court abuse its discretion by giving the jury an instruction regarding intent to kill. The evidence was sufficient to support McDowell’s conviction, and the court did not err in sentencing her. For all these reasons, we affirm."
Ind. Decisions - Court of Appeals issues 4 today (and 14 NFP)
For publication opinions today (4):
In State Farm Mutual Automobile Insurance Company v. Jelana Hobbs D'Angelo , a 21-page, 2-1 opinion, Judge Darden writes:
State Farm Mutual Automobile Insurance Company (“State Farm”) appeals the trial court’s entry of summary judgment in favor of Jelana Hobbs D’Angelo and against State Farm. We reverse and remand.Christina Roush v. State of Indiana - "In sum, we cannot say that the trial court abused its discretion in permitting the State to amend the charging information after the omnibus date. Nor did the court err in admitting into evidence out-of-court statements from Roush’s co-conspirators. Further, the State presented sufficient evidence to support Roush’s conviction. And we cannot say either that the court abused its discretion in ordering Roush to serve the presumptive sentence for her conviction or that that sentence is inappropriate in light of the nature of Roush’s offense and her character."
Issues. 1. Whether coverage for all claims due to bodily injury under State Farm’s policy has been exhausted under the limits of liability. 2. Whether State Farm’s policy is in violation of Indiana Code section 27-7-5-2. * * *
 The Tozer court determined that under Indiana law, “the question of whether the siblings’ claims fall under the ‘each person’ limit of liability . . . is an issue of contract interpretation,” and therefore looked to the “terms of the policy to ascertain the scope of its coverage.” * * *
D’Angelo’s claim for emotional distress arises from the fact that she witnessed Joshua’s injuries. Clearly, D’Angelo’s damages resulted from Joshua’s bodily injury, and her claim therefore is subject to the $100,000 limit applicable to Joshua’s injuries, the limits of which have been exhausted. * * *
In this case, D’Angelo came upon the scene after the accident and was not in the accident. Therefore, coverage under the limits for “Each Accident” is not available for D’Angelo.
 State Farm’s policy does not limit D’Angelo’s underinsured-motorist coverage in a manner greater than the limits of her liability coverage. Accordingly, we find that the policy does not violate Indiana Code section 27-7-5-2.
MATHIAS, J., concurs.
KIRSCH, J., dissents with separate opinion:
As a parent, I can imagine few nightmares worse that than that which Jelana Hobbs D’Angelo lived through on May 23, 2001. Coming upon an accident scene where her fourteen year-old son Joshua lay trapped beneath an automobile, trying in vain to free him, and watching him die in front of her, she sustained emotional distress which was every bit as much of a natural and direct consequence of the accident as Joshua’s death. That distress, with its attendant shock, and mortification, was a visceral reaction far beyond grief at the loss of a child and far beyond what any of us should ever have to endure. * * *
Courts have long struggled with issues relating to the negligent infliction of emotional distress because of concerns over frivolous or false claims, a proliferation of litigation and issues of forseeability. None of such concerns is present here. Goldey’s negligence in causing the accident is undisputed as is Jelana’s emotional distress. Jelana is Joshua’s mother. She was at the accident scene immediately after the collision occurred and directly involved in trying to free Joshua from the crushing weight of the Goldey’s car. Her emotional distress is severe, verifiable and goes far beyond the grief that any parent would experience at the loss of her child and far beyond the reaction that would be sustained by an unrelated bystander.
I respectfully dissent and would affirm the trial court’s decision in all respects.
Lamar D. Allen v. State of Indiana - "After a jury trial, Lamar D. Allen was convicted of Class C felony Battery, four counts of Class B felony Criminal Confinement, Class B felony Carjacking, and Class A misdemeanor Battery, and subsequently sentenced to an aggregate sentence of sixteen years of incarceration. Allen contends that the State produced insufficient evidence to sustain his convictions for carjacking and one count of criminal confinement, the trial court abused its discretion in allowing three witnesses to testify, and the trial court abused its discretion in sentencing him. We affirm."
In William J. Speybroeck v. State of Indiana , a 16-page opinion, Judge Najam writes:
William J. Speybroeck (“William”) appeals his convictions for Fraud on a Financial Institution, a Class C felony, and Identity Deception, as a Class D felony, following a jury trial. He presents two issues for our review, which we restate as follows: 1. Whether the State properly authenticated business documents pursuant to Indiana Evidence Rule 902(9). 2. Whether the trial court abused its discretion by admitting documents into evidence under Indiana Evidence Rule 803(6), the business records exception to the hearsay rule. 3. Whether a retrial is appropriate. We reverse and remand for a new trial. * * *NFP civil opinions today (5):
In sum, the circumstances associated with the preparation of the Affidavit and Exhibit 11 indicate a lack of trustworthiness. As such, the Affidavit fails to satisfy Rule 902(9)’s requirements for self-authentication, and the underlying documents must be excluded. In addition, the Kawasaki documents and the letters cannot satisfy Rule 803(6)’s requirements of reliability. No one at HSBC had personal knowledge of the creation of those documents, and HSBC made none of those documents in its regular course of business. Thus, we hold that the trial court abused its discretion when it admitted Exhibit 11 into evidence. But because all the evidence presented at William’s trial, even that erroneously admitted, is sufficient to support the jury verdict, double jeopardy does not bar a retrial on the same charges.
In the Matter of the Commitment of L.R. v. Clarian Health Partners (NFP) - "The evidence presented by Clarian is sufficient to establish that L.R. is a danger to herself when she does not take medicine. Accordingly, we find that the evidence is sufficient to support the trial court’s commitment order."
Teresa Armstrong v. Jeffrey Armstrong (NFP) - "Based on the foregoing, we conclude that the trial court abused its discretion by excluding Father’s overtime income when calculating his weekly gross income for the purpose of apportioning his contributions to A.A.’s higher education expenses without explanation. The trial court did not abuse its discretion in ordering that Father pay no child support for A.A. above and beyond his responsibilities for her higher education expense. Affirmed in part, reversed in part, and remanded with instructions."
Sharon Dickerson, et al. v. Lake County, Indiana, et al. (NFP) - Here Lake County taxpayers challenged on constitutional grounds the transfer of money out of the Common School Fund: "The Taxpayers requested that the trial court order Lake County and the State to cease diminishing the funds held in the Fund; declare Indiana Code sections 35-33-8-7 and 35-33-8-8 unconstitutional; order the State “to develop accounting and auditing procedures which adequately protect the [Fund]”; and award the Taxpayers costs and fees pursuant to Indiana Code section 34-14-1-10. * * *
"Given the reasons cited above, we find that the Taxpayers lack standing to pursue their action. Accordingly, we find no error in dismissing their complaint."
Charles Russell Adams, et al. v. Chester, Inc. d/b/a Chester, Inc. Construction Services, G. William Walker Construction Company, et al. (NFP) - "With the Strongbow having failed to establish that a genuine issue of material fact exists with regard to a relationship that would give rise to an implied right of indemnity, we affirm the trial court’s grant of partial summary judgment in favor of Chester."
Susan Peach (Boothby) and Renee Boothby v. Jon Mauller and Robin Mauller (NFP) - "The trial court had discretion to disbelieve the Boothbys’ counsel’s self-serving statements regarding his absence from the dismissal hearing and alleged efforts toprosecute the claim in December 2006. And the Boothbys do not offer any explanation for their lack of action from May 2005 until January 2007. We hold that the trial court did not abuse its discretion when it denied the Boothbys’ motion to reinstate. Affirmed."
NFP criminal opinions today (9):
Ind. Courts - "Judges defend hiring politicians' relatives"
Bill Dolan reports today in the NWI Times, in a story that begins:
CROWN POINT | Lake County judges defended their hiring practices Thursday in the wake of concern about political patronage in local courts.
Lake Superior Court County Division Judge Julie Cantrell said the only reason she recently hired Marissa McDermott as a public defender is because McDermott is qualified, not because she is the wife of Hammond Mayor Thomas McDermott Jr.
Lake Superior Court County Division Judge Nicholas Schiralli said politics played no role in his recent employment of Alex Dominguez, a nephew of Sheriff Rogelio "Roy" Dominguez, as a public defender in his court.
Their comments come as the Lake County Bar Association released a survey Thursday of 124 judges and lawyers about ways to make local courts more efficient.
Almost two-thirds of those surveyed said they believe "patronage is an issue with regard to the hiring and firing of court support personnel."
Ind. Courts - "Fort Wayne man convicted of molesting leaps off courthouse balcony"
Some quotes from a longish story today by Rebecca S. Green of the Fort Wayne Journal Gazette:
Moments after he was convicted of child molesting Thursday, a 30-year-old Fort Wayne man jumped headfirst over the third-floor railing in the Allen County Courthouse rotunda.
He was taken to a hospital in critical condition with what appeared to be head injuries. The Courthouse had already closed for business for the day.
At 4:50 p.m., a 12-person jury announced a guilty verdict after the daylong trial for Cicero Offerle, facing a single charge of child molesting. Because of the conviction – and because prosecutors said he had tried to kill himself after his initial interview with police – Allen Superior Court Judge Fran Gull ordered him taken into custody until sentencing, which she set for Nov. 19. Offerle had been out on bond while his case progressed through the courts.
Ind. Courts - More on "Jurors will be selected today in the case of an Evansville attorney accused of having a meth lab in his home and law office"
Updating this ILB entry from Wednesday, Kate Braser of the Evansville Courier & Press has a long story today headed "Jury may get Happe case today:Meth charges, but no meth lab, says defense." Some quotes:
In court documents, prosecutors allege Happe made an agreement with a confidential informant to manufacture meth and procured the necessary ingredients.
"This is a case about how the police exploited Brad Happe's addiction to meth, to turn him from a user to a cook and prosecuted him for it," defense attorney John Brinson said.
Brinson conceded Happe was a meth addict, and said before Happe's arrest and suspension from practice, he even represented meth users in their criminal cases.
"He wasn't proud, he was addicted," Brinson said.
But Brinson said Happe did not know how to make meth, and said investigators provided the ingredients and the cook in order to arrest Happe. Brinson said when Happe was arrested, there "wasn't a particle of meth on him, or in his car."
"There was no meth lab, ladies and gentleman," Brinson said. "There wasn't. There was a blender with some ground up, over-the-counter cold medication, and that's their meth lab."
Vanderburgh County Deputy Prosecutor Matt Keppler told jurors that Happe "had the means, the motive and the opportunity," to make meth.
"And he planned to cook it with a police informant, Jim Mattingly," Keppler said, explaining Mattingly secretly wore a recording and transmitting device when he met with Happe.
Law - Trusts for pets, and other pet law information
"Lawyer Makes It Easier to Provide for Pets After Death" is the headline to an AP story dated Nov. 8th by Mike Nolan. Some quotes:
As a lawyer concentrating in estate planning, Peter Canalia was frequently was asked by clients to set up trusts for their pets.Here is a list of state pet trust statutes, compiled by Gerry W. Beyer, a Texas law prof who also has a page on estate planning for pet owners.
He's established trusts for dogs and champion racehorses and recently launched a service he hopes will make pet trusts affordable for just about anyone who wants to make sure their dog, cat, parakeet or whatever is cared for after they're gone.
"For many people, a pet becomes a part of your life," said Canalia, who set up a trust fund for his own pet poodle. "The pet becomes as important to you as a child."
The Crete, Ill., resident who practices in Lansing describes Peace of Mind Pet Trust as "the nation's most competitively priced, bona fide pet trust" set up by a licensed trust attorney.
The name was inspired by an unmarried Chicago man who hired Canalia to set up a trust for his dog.
"He said it gave him peace of mind knowing that his pet would be taken care of," the lawyer said.
There are lots of stories about people leaving money in their will for a pet after they're gone and designating a caregiver. The only problem is there's no guarantee that person won't turn around and euthanize Fido, then spend the money on a big-screen TV.
With a pet trust, a caregiver is named, as well as a trustee who'll keep an eye on how the money earmarked for the pet is being spent, Canalia said. The trust can spell out any detail the pet owner thinks is important, from the type of food the pet should be fed to how frequently it should be walked. * * *
Illinois is one of 38 states that allow pet owners to set up trusts, but they're not a need for every pet owner. Often, other family members will step up and care for a pet after the owner dies. * * *
"People have the perception that trusts are just for rich people," he said.
Pet owners don't have to set aside tens of thousands of dollars for their pet, and one option is to buy a fairly inexpensive life insurance policy that names their pet's trust fund as beneficiary, Canalia said.
"How much you set aside in the trust is going to depend on the type of animal it is, its expected life span and estimating how much would be needed annually to care for the pet," he said.
The cost of simply setting up a trust might scare off some pet owners, he said, noting some lawyers charge $1,000 or more for the service. Peace of Mind trusts cost $89 and can be downloaded at www.peaceofmindpettrust.com.
"If you go on to the Internet, you can find pet trusts out there," Canalia said. "The only one I found comparable [with Peace] is five times the cost."
Indiana has a statute at IC 30-4-2-18.
The Canalia article cites a May 22, 2005 NY Times story titled "And to My Dog, I Leave a $10,000 Trust Fund." And of course there is the recent story, "Helmsley's Dog Gets $12 Million in Will," reported in this August 29th, 2007 AP story.
Ind. Decisions - More on "Life without parole off table for killer"
Updating this ILB entry from yesterday on Wednesday's Supreme Court decision in the case of State of Indiana v. Zolo Agona Azania, on the Lake County case which was relocated initially to Allen County because of pretrial publicity, Lori Caldwell of the Gary Post-Tribune has a story today headlined "Cop killer eligible for death -- or freedom."
Ind. Courts - "No verdict in courtroom cameras test"
Keith Robinson of the AP attended the Access Boot Camp seminar yesterday and reported on the cameras in the courtroom session. Some quotes:
“In lawyer terms, I guess you could say ’insufficient evidence,”’ said Kevin Finch, news director of Indianapolis television station WISH. He noted there has been television coverage of only one trial in the state since the program began in July 2006, although there has been coverage of a few other proceedings, such as sentencings. The project ends Dec. 31.
Finch was among panelists who debated the merits of cameras in the courtroom today at a conference on access to public information. The forum, sponsored by the Indiana Coalition for Open Government, the Indiana State Bar Association and the Hoosier State Press Association, attracted lawyers, journalists and other members of the public.
Indiana law prohibits cameras in courtrooms. But under the pilot program, journalists can bring recording equipment into a courtroom with consent from all parties involved in a case. Defendants and their lawyers typically have not consented.
Marion County criminal court Judge Robert R. Altice Jr. said the solution might be to “take all parties out of the mix and let the judge decide.”
The broadcast news industry in Indiana tried that. The Indiana Broadcasters Association in January asked the Indiana Supreme Court to loosen the rules to give trial court judges sole discretion on whether to permit cameras in their courtrooms, but the justices declined.
Defense lawyers object because they do not want their clients shown on television “on perhaps the worst day of their life,” said David E. Cook, chief public defender of Marion County. “I find no common ground when it comes to the best interests of my client.”
He said his responsibility is only to his client — not to the community, journalists or even the judge.
“The defense bar answers to no one except what is in the best interests of the client,” he said. “You’re never going to get us to agree.”
Finch noted that a documentary film crew was permitted to record courtroom proceedings involving a juvenile case in 1999. He also said Indiana is one of only a few states in the nation that does not allow cameras in the courtroom.
“It is not an impossibility that this kind of thing can work,” Finch said. “Because it has worked. Somehow the rest of the country manages to get this done just fine.”
Ind. Law - Yet more on golf carts in Greene County
Golf carts on the streets of Bloomfield once again dominated much of the discussion during the Bloomfield Town Council's meeting on Wednesday night.Check here for a long list of ILB entries detailing how golf cart issues are being addressed in communities around the State. As the population ages and the use of golf carts as "around town" transportation continues to expand, this issue may need a state-wide solution.
The town of Bloomfield currently has an ordinance that prohibits golf carts from being driven in town.
Town attorney John Rowe was called on by Council President Eric Harrah to explain the legalities of the golf cart issue.
Rowe said, "Golf carts do not appear to qualify as vehicles that can be operated on public streets."
He added that state statute allows low-speed vehicles to be driven on streets if they meet certain criteria such as speed and safety and are licensed and titled but golf carts do not fall under these guidelines.
"The town has the power to regulate or prohibit low-speed vehicles but a golf cart is not a low-speed vehicle," Rowe stressed.
In attendance was newly-elected Council member Jo Ann Carmichael, who noted other communities in the county permit golf carts to be driven on the streets.
She also asked if there was anyway to make golf carts legal in the town of Bloomfield.
Rowe replied, "I don't think that's an option."
Low-speed statutes specifically say that golf carts do not qualify and it may be that some communities look the other way, Rowe added. But, these laws are recent and are evolving.
Harrah joined the discussion by noting that some communities may have permitted golf carts to be driven in town prior to the passing of such statutes.
"It's frustrating," he added--noting that scooters can legally be driven on the streets by 15 year-olds, but golf carts cannot be driven on the streets by anyone.
Ind. Law - Floyd County passes ATV ordinance
Updating this ILB entry from Oct. 15th, concerning reconsideration of an ordinance allowing all-terrain vehicles operated by farmers to use Floyd County roads, WVHF-TV News out of Jeffersonville reports:
Floyd County commissioners say the ATV ordinance they approved last night is strictly to help local farmers. The ordinance allows ATV travel on country roads for agricultural purposes only.
Drivers must be licensed and have liability insurance. Vehicles must also have lights on at all times, and must travel as close to the shoulder of the road as possible.
Commissioner Mark Seabrook tells Indiana 9 he hopes people will comply with, and not abuse, the ordinance. Seabrook says the commissioners had a discussion with the Floyd County Sheriff to make sure law enforcement is on the lookout for people violating the ordinance. A similar ATV ordinance passed in Clark County this past June.
Thursday, November 08, 2007
Ind. Decisions - More on: Merits briefs due today in Indiana voter ID cases
Those following the voter ID case will not want to miss the amicus brief filed today by Rick Hasen of the Election Law Blog. Read his accompanying blog entry here.
Not law but interesting - "Reagan library can't fully account for 80,000 artifacts"
C-SPAN has been running a wonderful series every Friday evening on hidden treasures in the Presidential Libraries. My favorite so far has been home movies Lady Bird Johnson took on the ranch in Texas. Many shots are of carefully dressed U.S. Senate members visiting the ranch, talking in the hot sun to an LBJ naked from the waist up. The series starts with the Hoover Library and will continue through the Clinton Library. This Friday will feature the Reagan Library.
If you missed any of the two-hour features, you can watch them here, along with many hundreds of hours of other material from the libraries.
The live presentation from the Reagan Library tomorrow night may be particularly interesting because of this story today in the LA Times, headlined "Reagan library can't fully account for 80,000 artifacts." Some quotes:
WASHINGTON -- The Ronald Reagan Presidential Library is unable to find or account for tens of thousands of valuable mementos of Reagan's White House years because a "near universal" security breakdown left the artifacts vulnerable to pilfering by insiders, an audit by the National Archives inspector general has concluded.The story links to a 21-page Executive Summary of the OIG Audit Report.
Inspector General Paul Brachfeld said that his office was investigating allegations that a former employee stole Reagan memorabilia but that the probe had been hampered by the facility's sloppy record-keeping.
"We have been told by sources that a person who had access capability removed holdings," Brachfeld said in an interview. "But we can't lock in as to what those may be."
The hilltop complex near Simi Valley that houses Reagan's papers -- as well as the Air Force One that served as the "Flying White House" for seven presidents -- is the most visited of the nation's 12 presidential libraries. Many of those facilities are understaffed. And many are struggling to keep track of hundreds of thousands of presidential gifts, including valuable objects bestowed by foreign leaders, American folk crafts, and T-shirts and political buttons.
But, investigators said, they encountered the most serious problems at the Reagan library, a finding that may mortify fans of the late president, who often inveighed against government inefficiency.
About six months ago, an archivist was accused of stealing from the collections and was fired, said a longtime volunteer at the library who asked not to be named for fear of reprisal. "It's just awful," she said. "He was someone in a position of trust." * * *
The audit found that the Reagan library was unable to properly account for more than 80,000 artifacts out of its collection of some 100,000 such items, and "may have experienced loss or pilferage the scope of which will likely never be known."
Courts - "Aren’t we also behind the technology curve on this?"
The WSJ Blog asks that question this afternoon, with respect to a need for easy electronic access by the public to federal and state court documents. The ILB heartily agrees.
Ind. Courts - "Andrea McCord has been appointed to fill in as temporary judge in Lawrence Circuit Court"
This from a report by Diana Wires in the Bedford Times-Mail:
McCord, of Mitchell, was appointed judge pro tem by the Indiana Supreme Court and sworn into office Monday. She will succeed the late Judge Richard McIntyre.For background, start with this ILB entry from Nov. 1st.
“It was with extreme honor, but with a heavy heart, that I accepted the appointment,” McCord wrote in an e-mail to the Times-Mail. “I will do my best to continue to run this court with the integrity and compassion that Judge McIntyre did. I can follow him but never replace him.”
McCord will bring experience to the local bench.
McCord previously served as the court’s judge pro tem while McIntyre served on active duty with the Indiana National Guard from March 2003 through March 2006.
Her latest appointment will continue until Gov. Mitch Daniels appoints a new judge.
“We have not established a timeline for a replacement for Judge McIntyre,” said Daniels’ press secretary, Jane Jankowski. “However, we will go through an application process and seek applicants to fill the vacancy.”
McCord plans to be among those applying for the position.
In the meantime, she also will continue to act as the court’s juvenile referee until a new one is appointed in about a week.
Ind. Decisions - Court of Appeals issues 2 today (and 12 NFP)
For publication opinions today (1):
In State of Indiana v. Charlene Davis , a 7-page opinion, Judge Baily writes:
The State appeals the trial court’s grant of the pre-trial motion to dismiss the pending charge against Appellee-Defendant Charlene Davis (“Davis”). We reverse and remand.NFP civil opinions today (3):
The State raises the issue of whether the trial court erred in dismissing the charge against Davis due to Davis being found incompetent to stand trial and her involuntarily commitment to a mental health facility for longer than the maximum sentence for the charged offense.
On February 21, 2004, the State charged Davis in Marion County with one count of Criminal Recklessness, as a Class D felony. * * *
On March 1, 2007, Dr. Beth Pfau, Chief Medical Officer at Larue Carter Memorial Hospital, wrote to inform the Marion County trial court that it was her opinion that Davis could not be restored to competency. Subsequently, Davis’s counsel filed a motion to dismiss the charge on the basis that Davis had been involuntarily committed for longer than the maximum sentence for the charged crime. On April 26, 2007, the trial court granted the motion to dismiss, agreeing with the argument of Davis’s counsel. The State appeals pursuant to Indiana Code Section 35-38-4-2(1).
The State contends that the trial court did not have the legal authority to dismiss the charge against Davis. This issue is a question of law. We therefore review the matter de novo. * * *
The statutes for commitment during a criminal proceeding do not speak to any procedure regarding the pending criminal charges once a defendant is committed under the civil statutory scheme.
The State argues that the absence of statutory instruction does not provide the trial court with the authority to dismiss the charges over the State’s objection. Davis’s counsel argues that Jackson v. Indiana is instructive, alleging that the analysis suggests that charges similar to those in the present case should be dismissed. * * *
Davis’s counsel argues that the U.S. Supreme Court’s analysis on due process and the right to a speedy trial suggests that permitting charges to remain pending against a defendant who has been declared incurably incompetent is a violation of due process. We cannot agree, because the Court specifically refused to address the question. Furthermore, the basis for requesting dismissal in this case was not that of violations of the constitutional rights to due process and a speedy trial. Rather, the foundation was that Davis had been committed, in total under the pretrial and civil commitment statutes, for longer than the maximum sentence for the charged crime.
Davis’s counsel argues but we find no authority for equating time in civil involuntary commitment to credit for time served for pending criminal charges. Involuntary civil commitment is not punishment. Rather, its dual purpose is to protect the public and ensure the rights of the person whose liberty is at stake. [cites omitted] Although civil commitment proceedings may be commenced based on a defendant’s inability to stand trial within the prescribed amount of time, civil commitment is separate and distinct from the criminal proceedings. [cites omitted] Therefore, the trial court erred in dismissing the charge against Davis on the basis of the length of time she has been subject to a civil commitment to a mental health institution. Reversed and remanded.
Ervin Mark Ball v. Kelli T. Ball (NFP) - "Ervin Mark Ball (“Husband”) appeals the distribution of marital assets ordered in the dissolution proceeding filed by his former wife, Kelli T. Ball (“Wife”). Husband presents two issues for review, which we consolidate and restate as whether the trial court erred when it construed the parties’ prenuptial agreement. We affirm. * * * We conclude that the trial court did not err in its construction of “Marital Residence” as used in the Agreement. Thus, the trial court did not err when it granted summary judgment to Wife, finding that the Club Estates house was not the Marital Residence but was, instead her Separate Property, and the trial court did not err in finding in the Decree that there was no Marital Residence."
NFP criminal opinions today (9):
Ind. Decisions - 7th Circuit issues one Indiana decision today
In USA v. Weathington (SD Ind., Judge Hamilton), an 11-page opinion, Judge Ripple writes:
Jerome Weathington pleaded guilty to five counts of armed robbery, in violation of 18 U.S.C. § 1951(a), and one count of brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). After the district court accepted his guilty plea, Mr. Weathington moved at the sentencing hearing to withdraw it. The court denied the motion and sentenced Mr. Weathington to 22 years’ imprisonment. On appeal, Mr. Weathington contests the district court’s denial of his motion to withdraw his guilty plea. For the reasons set forth in this opinion, we affirm the judgment of the district court.
Ind. Decisions - Supreme Court decides one today
In Benjamin Ritchie v. State of Indiana, a 26-page, 5-0 opinion, Justice Rucker begins with this summary of the opinion:
Benjamin Ritchie was convicted of murder, possession of a handgun by a serious violent felon, auto theft, and resisting law enforcement in connection with the 2000 shooting death of Beech Grove police officer William Toney. The trial court accepted the jury’s recommendation for a sentence of death for the murder conviction and sentenced Ritchie to a total executed term of twenty years for the remaining convictions. On direct appeal, we affirmed Ritchie’s conviction and sentence of death. Thereafter Ritchie filed a petition for post-conviction relief, which the post-conviction court denied after a hearing. He now appeals that denial raising several issues for our review, some of which are waived. We address the remaining issues, which we rephrase as follows: (1) whether Ritchie was denied the effective assistance of trial counsel; (2) whether Ritchie was denied the effective assistance of appellate counsel; and (3) whether he received a fair post-conviction hearing. We affirm the post-conviction court.
 Ritchie complains the mandatory procedures for capital sentencing and independent appellate review were violated. Br. of Appellant at 88. Under these general headings he alleges: (1) the trial court improperly instructed the jury that he was eligible for a sentence ranging between forty-five and seventy-five years, but the actual range was forty-five to ninety-four years; (2) the trial court erroneously gave the jury a special verdict form on the weighing element; and (3) the trial court failed to issue a written sentencing order. Id. at 88-92. The purpose of a petition for post-conviction relief is to raise issues unknown or unavailable to a defendant at the time of the original trial or appeal. Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006). These issues were known and available at the time of Ritchie’s direct appeal. An issue known but not raised on direct appeal is waived. Williams v. State, 808 N.E.2d 652, 659 (Ind. 2004).
Ind. Courts - Initial interview schedule for filling COA vacancy [Updated]
The schedule has been posted for the Tuesday, Nov. 13th interviews by the Judicial Nominating Commission of the 15 applicants for the Court of Appeals seat to be vacated in May of 2008 by Judge John Sharpnack.
The interviews are open to the public. Unfortunately, the schedule does not state where the interviews will take place.
[Updated] The posted interview schedule was updated without comment at 8:38 AM this morning (Nov. 8) to add the location: "Room 319, State House."
Ind. Decisions - "Life without parole off table for killer"
The Indiana Supreme Court ruled Wednesday that convicted police killer Zolo Agona Azania will not be eligible for life in prison without parole when an Allen County jury decides his fate again.
The justices had previously decided that prosecutors could seek the death penalty for the third time against Azania, who killed Gary police officer George Yaros during a botched bank robbery in 1981.
But Wednesday’s ruling further clarified which death penalty statute applied – the current scheme or the one that existed in 1981.
Ind. Decisions - All is not over in the Clerk County probation fees dispute
The most recent ILB entry in the case of Clark County Council and Clark County Auditor v. Daniel F. Donahue, Cecile A. Blau, Vicki Carmichael, and Steven M. Fleece, the probation fees decision, was Sept. 29th.
Ben Zion Hershberg of the Louisville Courier Journal reports today about the long-standing dispute under the headline: "Dispute over fees continues in Clark: Council's lawyers ask court to rehear case." Some quotes:
A court filing by lawyers for the Clark County Council seeks an Indiana Supreme Court rehearing of the council's probation fee dispute with the county's judges, a move that angered the judges and surprised some council members.
"In my opinion, the Clark County Council's decision to seek a reconsideration of the unanimous decision of the Indiana Supreme Court was another in a series of mistakes that have delayed the resolution of the issue," Superior Court Judge Steven Fleece said. * * *
The dispute is over the council's appropriation of hundreds of thousands of dollars collected from probationers by county courts since 2004.
During a fiscal crisis three years ago, the council used the probation user fees, which help pay for probation services, to cover other court expenses that previously had been paid from the general fund.
The judges argued successfully before a special judge and later before the Supreme Court that the council overstepped its authority in saying how the funds were to be used.
The fees, the Supreme Court said, are to be budgeted by the county judges within guidelines set by state law, which says the funds are to be used to supplement probation officer salaries and to enhance probation programs.
The council can determine how much of the user fees to appropriate from year to year but must follow the judges' decision on how the money is to be used, the Supreme Court said. * * *
The judges have ordered a financial analysis of how much of the probation user fees have been spent improperly, Abbott said. The council and the judges are waiting for the analysis to decide how much should be repaid so they can settle the case, he said.
[Council President Dave Abbott] said the council's lawyers told him the petition for a rehearing was filed because the deadline was approaching for such a step. The petition asks the Supreme Court to make its order "prospective," taking effect in the future, rather than requiring the council -- and other county councils that may have acted the same way -- to repay their courts for improperly taking authority in the past over probation fees.
The petition argues that requiring such repayments would be too disruptive for county governments.
Wednesday, November 07, 2007
Ind. Courts - More repairs may be needed for the Adams County courthouse
From the Berne TriWeekly News, reported by Bob Admas:
The Adams County Courthouse may be in for some more renovations, thanks to action taken by the Adams County Commissioners during their regular Monday meeting.
Steve Krull, the head of building and grounds, had discovered some deterioration in the clock tower, which he brought to the attention of the Commissioners a few weeks back. The Commissioners on Monday approved the expenditure of up to $4,800 for a structural engineer to check out the extent of the deterioration due to age and water and wind damage in the clock tower.
Jim McClain of Structural Engineering Services out of Fort Wayne will evaluate the clock tower for the county.
Ind. Courts - Gov. Daniels appoints judges in Jackson, Miami, and Monroe counties
INDIANAPOLIS (November 7, 2007) - Governor Mitch Daniels announced today the appointment of three judges throughout the state. Two appointments will fill vacancies in new courts recently created by the Indiana General Assembly. These judges will be the first to preside over their respective courts. The third appointment fills a vacancy created by the resignation of an elected judge in Miami County.Here is more on the Jackson County appointment from the Seymour Tribune:
Bruce MacTavish of Brownstown has been appointed judge of Jackson Superior Court. He is currently a partner at Markel, Markel, Lambring & MacTavish and has practiced law in Jackson County for 18 years. MacTavish received his undergraduate degree from Indiana University - Bloomington and his law degree from Indiana University - Indianapolis.
Christine Talley Haseman of Bloomington has been appointed judge of Monroe Circuit Court IX. Presently, she is a sole practitioner at Haseman Law Office and regularly serves as a legal advocate for children involved in the court system. She received her undergraduate, master's and law degrees from Indiana University - Bloomington.
An appointment was also made to fill a vacancy created by the resignation of an elected judge in Miami County:
Robert Spahr of Peru has been appointed judge of Miami Circuit Court. He succeeds Judge Rosemary Higgins Burke, who is retiring effective January 1. Spahr is currently a sole practitioner and public defender in the Miami Superior Court. He has previously served as a deputy prosecutor and contract attorney for the Miami County Office of Family and Children. Spahr received his undergraduate degree from Indiana University - Bloomington and his law degree from Indiana University - Indianapolis.
All appointments will be effective January 1, 2008.
Governor Mitch Daniels has selected Bruce MacTavish of rural Seymour as the first judge to preside over Jackson Superior Court 2 when it opens for business Jan. 2.
“I’m very happy and appreciate the opportunity to work with the people who serve Jackson County through the courts,” MacTavish said Wednesday afternoon. “I look forward to getting the court up and running.”
MacTavish said he expects to meet next week with Jackson County Board of Commissioners, Jackson Circuit Judge Bill Vance and Jackson Superior Court 1 Judge Bruce Markel III to start working on the logistics of opening the court.
That work will include hiring of staff and figuring out the logistics of handling people going through the court in terms of coexisting with other offices in the courthouse annex. That’s where commissioners have decided to at least temporarily house the court.
MacTavish, a Republican, was selected from among six applicants for the job. The others were Republican Stephanie Mellenbruch of Freetown and Democrats Susan Darlage and Joseph M. Robertson of Seymour, Loren Reuter of Nashville and Joseph Todd Spurgeon of New Albany. Reuter withdrew his application before the interview process started.
MacTavish will have two years on the bench and then face election to a six-year term in 2010. MacTavish has said he stand for election if appointed.
Ind. Courts - Supreme Court clarifies which iteration of Indiana’s death penalty statute applies to a new sentencing phase
In State of Indiana v. Zolo Agona Azania, an 8-page opinion on a petition for rehearing, Justice Sullivan writes:
Azania was sentenced to death in 1982 and re-sentenced to death in 1996. * * * It is sufficient for purposes of this opinion to say that Azania’s conviction for murder stands, but the death sentence has been twice overturned. Most recently, we reversed a trial court order that prohibited the State from seeking the death penalty against Azania for the third time. We now grant and address the State’s petition for rehearing of that decision, in order to clarify which iteration of Indiana’s death penalty statute applies to a new sentencing phase.
The State reads our most recent opinion as holding that the new sentencing phase is subject to the version of the death penalty statute in effect at the time of Azania’s crime. It contends that Azania should instead be sentenced under the current version of the death penalty statute. Azania responds that our opinion was correct on this point, although he contests other aspects of our opinion in his own petition for rehearing. Azania’s petition for rehearing is denied.
The State’s argument does not discuss another relevant change in Indiana’s capital sentencing regime: the addition of life without parole (“LWOP”) to the jury’s options when recommending sentences for certain murders. * * *
We grant the State’s petition for rehearing and hold that Azania should be re-sentenced under the post-2002 death penalty statute, but without the availability of LWOP. Azania’s petition for rehearing is denied.
Shepard, C.J., and Dickson, J., concur. Boehm, J., concurs in part and dissents in part with separate opinion. Rucker, J., concurs in part and dissents in part with separate opinion.
Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)
For publication opinions today (4):
In Vectren Energy Marketing and Service, Inc., et al. v. Executive Risk Specialty Insurance Company , a 9-page opinion, Cheif Judge Baker writes:
Appellants-plaintiffs Vectren Energy Marketing & Services, Inc. (Vectren), and Citizens By-Products Coal Company (Citizens) (collectively, the appellants) appeal from the trial court’s order granting appellee-defendant Executive Risk Specialty Insurance Company’s (ERSIC) motion to dismiss the appellants’ complaint pursuant to Indiana Trial Rule 12(B)(6). In particular, the appellants contend that they have standing to pursue the complaint, their claim is not barred by collateral estoppel, and they sufficiently pleaded a breach of contract claim against ERSIC to withstand a motion to dismiss. Finding that the appellants do not have standing to raise these claims inasmuch as they are trying to redress an alleged wrong done to appellee-defendant ProLiance Energy, LLC (ProLiance), rather than to themselves, we affirm the judgment of the trial court.In Odessa Benaugh v. Dennis Garner, et al. , a 9-page opinion, Chief Judge Baker writes:
Appellant-plaintiff Odessa Benaugh appeals the trial court’s calculation of attorney fees owed to her by appellees-defendants Dennis Garner d/b/a Blade Runner Auto Sales, et al. (collectively, the appellees), after a jury found the appellees liable for criminal conversion pursuant to the Indiana Crime Victim’s Relief Act.1 In particular, Benaugh argues that the trial court abused its discretion by awarding her only $1,000 of her requested $18,325 in fees because the amount of the judgment she collected from the appellees was only $1,950 plus costs. Finding that Benaugh is entitled to more than $1,000 but less than $18,325 in fees and that she is entitled to reasonable appellate attorney fees, we reverse and remand with instructions that the trial court calculate the amount of reasonable trial and appellate attorney fees to which she is entitled.In Virgil Lee Haywood, Jr. v. State of Indiana , a 7-page opinion, Chief Judge Baker writes:
Appellant-defendant Virgil Lee Haywood, Jr., brings this interlocutory appeal, claiming that the trial court erred in denying his motion to dismiss. Specifically, Haywood argues that the dismissal of criminal charges was warranted because he was improperly subjected to successive prosecutions that are prohibited under Indiana Code section 35-41-4-4 (Successive Prosecution Statute). Concluding that prosecuting Haywood on subsequent charges after he had already pleaded guilty to other charges is barred under the Successive Prosecution Statute, we reverse the trial court’s judgment denying Haywood’s motion to dismiss.Martin Sargent v. State of Indiana - "Defendant-Appellant Martin Sargent (“Sargent”) appeals from his convictions after a bench trial of two counts of incest. Ind. Code §35-46-1-3. We affirm."
NFP civil opinions today (3):
NFP criminal opinions today (6):
Environment - Governor's review of Great Lakes water-quality laws drags on
The AP's Rick Callahan has an interesting story today that begins:
INDIANAPOLIS -- A review of Great Lakes water-quality laws that Gov. Mitch Daniels ordered in August amid a public uproar over a BP discharge permit has taken twice as long as anticipated and still is not complete.For background, see this August 13th ILB entry, headed "Governor Daniels asks former dean of SPEA to conduct 6 weeks study of Indiana's IDEM's BP permit".
When Daniels announced the review on Aug. 13, he asked a former Indiana University dean leading the effort to complete it within six weeks. But 12 weeks later, project leader James Barnes said he could not predict when the study would be finished.
Barnes, who led IU's School of Public and Environmental Affairs, said yesterday that the complexity of federal and state laws that govern Great Lakes water quality and permits -- and the breadth of the review requested by Daniels -- made the project daunting.
"It's taken longer than any of us had expected, but I hope it won't be too much longer," Barnes said. "There's a lot of complexity, and I need to make sure that what conclusions get drawn are well supported."
In requesting the review amid criticism of the BP permit, Daniels said a "credible, independent evaluation of the permitting decision and outcome" was needed.
Ind. Courts - "Jurors will be selected today in the case of an Evansville attorney accused of having a meth lab in his home and law office"
So begins this story by Kate Braser in today's Evansville courier & Press:
Brad Happe, 30, faces charges for conspiracy to commit dealing in methamphetamine and dealing in methamphetamine, both Class B felonies.For background, see this ILB entry from June 17th.
The case began March 29 after police reportedly confiscated anhydrous ammonia, pseudoephedrine tablets, lithium batteries, sulfuric acid and other items that are commonly associated with manufacturing meth from Happe's office and apartment at 4619 Harmony Way.
In court documents, prosecutors allege Happe made an agreement with a confidential informant to manufacture meth and procured the necessary ingredients.
Reached by phone late Tuesday, Happe's defense attorney, John Brinson, declined to comment.
The trial will likely last until Friday, with prosecutors expected to begin presenting their evidence in the case early Thursday.
Deputy Prosecutor Matt Keppler is prosecuting the case. Reached at his office Tuesday, Keppler declined to comment, citing concerns about discussing the case as it goes to trial.
Happe has a lot at stake in the trial: He was suspended from practicing law in June by the Indiana Supreme Court, and if he is convicted, the Class B felonies carry a range of six to 20 years in prison.
He rejected a plea agreement in May, and his attorney at that time withdrew from the case.
Happe has been enrolled at a drug treatment facility in the Chicago area throughout much of the case.
A judge ordered the treatment after Happe was charged with a misdemeanor in April 2006 for visiting a home where police said a working meth lab was discovered.
Law - Bankruptcy law changes and mortgage servicing fraud may heighten impact of mortgage crisis
"Bankruptcy Reform Bites Back:For consumers, debt relief is harder to come by. And that's adding to housing woes," is the headline to a Business Week story that begins:
Score one for the law of unintended consequences.Yesterday the NY Times has a well-worth-reading front-page story by noted business writer Gretchen Morenson headlined "Dubious Fees Hit Borrowers in Foreclosures." Some quotes from the lengthy article:
In past periods of economic turbulence, American households were able to escape mountains of bad debt—and keep their homes—by declaring bankruptcy. During the weak growth years from 2001 to 2003, for example, nonbusiness bankruptcy petitions averaged roughly 1.5 million per year. Lenders complained bitterly that bankruptcy was too easy, but because financially stressed Americans could write off their credit card and other consumer debt, they had more money available to pay their mortgages.
But today's growing problem in the housing market is different—foreclosures are soaring, while bankruptcies, though clearly on the upswing, are running roughly at half the 2001-2003 pace. The reason: A new bankruptcy law, approved by Congress in 2005 after years of debate, makes it much harder for households to get out from under their consumer debt. The result: More people being forced to walk away from their homes, leaving lenders holding the bag. Perversely, a law intended to help the financial industry may be damaging the housing sector, creditors and borrowers alike. "It doesn't matter what you think of the purpose of the new bankruptcy law. The timing is bad," says Susan M. Wachter, professor of real estate at the Wharton School of Business.
As record numbers of homeowners default on their mortgages, questionable practices among lenders are coming to light in bankruptcy courts, leading some legal specialists to contend that companies instigating foreclosures may be taking advantage of imperiled borrowers.
Because there is little oversight of foreclosure practices and the fees that are charged, bankruptcy specialists fear that some consumers may be losing their homes unnecessarily or that mortgage servicers, who collect loan payments, are profiting from foreclosures.
Bankruptcy specialists say lenders and loan servicers often do not comply with even the most basic legal requirements, like correctly computing the amount a borrower owes on a foreclosed loan or providing proof of holding the mortgage note in question.
“Regulators need to look beyond their current, myopic focus on loan origination and consider how servicers’ calculation and collection practices leave families vulnerable to foreclosure,” said Katherine M. Porter, associate professor of law at the University of Iowa. * * *
Questionable practices by loan servicers appear to be enough of a problem that the Office of the United States Trustee, a division of the Justice Department that monitors the bankruptcy system, is getting involved. Last month, It announced plans to move against mortgage servicing companies that file false or inaccurate claims, assess unreasonable fees or fail to account properly for loan payments after a bankruptcy has been discharged.
On Oct. 9, the Chapter 13 trustee in Pittsburgh asked the court to sanction Countrywide, the nation’s largest loan servicer, saying that the company had lost or destroyed more than $500,000 in checks paid by homeowners in foreclosure from December 2005 to April 2007.
The trustee, Ronda J. Winnecour, said in court filings that she was concerned that even as Countrywide misplaced or destroyed the checks, it levied charges on the borrowers, including late fees and legal costs.
“The integrity of the bankruptcy process is threatened when a single creditor dishonors its obligation to provide a truthful and accurate account of the funds it has received,” Ms. Winnecour said in requesting sanctions. * * *
Loan servicing is extremely lucrative. Servicers, which collect payments from borrowers and pass them on to investors who own the loans, generally receive a percentage of income from a loan, often 0.25 percent on a prime mortgage and 0.50 percent on a subprime loan. Servicers typically generate profit margins of about 20 percent.
Now that big lenders are originating fewer mortgages, servicing revenues make up a greater percentage of earnings. Because servicers typically keep late fees and certain other charges assessed on delinquent or defaulted loans, “a borrower’s default can present a servicer with an opportunity for additional profit,” Ms. Porter said.
The amounts can be significant. Late fees accounted for 11.5 percent of servicing revenues in 2006 at Ocwen Financial, a big servicing company. At Countrywide, $285 million came from late fees last year, up 20 percent from 2005. Late fees accounted for 7.5 percent of Countrywide’s servicing revenue last year.
But these are not the only charges borrowers face. Others include $145 in something called “demand fees,” $137 in overnight delivery fees, fax fees of $50 and payoff statement charges of $60. Property inspection fees can be levied every month or so, and fees can be imposed every two months to cover assessments of a home’s worth.
“We’re talking about millions and millions of dollars that mortgage servicers are extracting from debtors that I think are totally unlawful and illegal,” said O. Max Gardner III, a lawyer in Shelby, N.C., specializing in consumer bankruptcies. “Somebody files a Chapter 13 bankruptcy, they make all their payments, get their discharge and then three months later, they get a statement from their servicer for $7,000 in fees and charges incurred in bankruptcy but that were never applied for in court and never approved.” * * *
Fees for legal services in foreclosure are also under scrutiny.
Ind. Decisions - Still more on: COA issues ruling in Smith and Wesson case
Ind. Courts - Even more on: Fifteen Apply for 2008 Court of Appeals Vacancy
A Greenwood attorney wants to serve in the state court that hears appeals.
Bill Barrett, who also works as the county's litigation attorney, is one of 15 candidates who have applied for a seat on the Indiana Court of Appeals.
He joins candidates from the southern part of the state, including judges and attorneys from Evansville, Vincennes and Bedford.
Ind. Decisions - "Court rules 18 years not excessive for running over man with SUV"
The Indiana Court of Appeals ruled Wednesday that an 18-year sentence given to a La Porte man for driving over a man with an SUV was not excessive.
Juan Castro Sr. had appealed the sentence handed down by La Porte Circuit Court Judge Robert Gilmore on the grounds that Gilmore, in sentencing Castro, improperly weighed the aggravating and mitigating circumstances.
Tuesday, November 06, 2007
Ind. Courts - "We understand this may exceed your expectation"
The estimate is in on renovating the Randolph County Courthouse, reports Bill Richmond of the Winchester News-Gazette:
Martin Riley architects Monday told the County Board of Commissioners the courthouse renovation and court annex will likely cost the county more than $7.5 million. The figure includes construction costs only.
"We understand this may exceed your expectation," said MR architect Jack Daniel. "If this won't work, we could sit down and decide what should remain in the project and what shouldn't."
Daniel said the price quote of $7,513,864 includes the mansard roof and clock tower, as well as reconfiguring offices in the courthouse and building two new court facilities. The figure does not include furnishings for the new courts and soft costs such as bonding, accounting, engineering and legal fees. It is basically a bricks and mortar only price.
Commissioner David Lenkensdofer estimated the soft costs incurred in this project will likely be another $1.2 million, making the total project cost approximately $8.7 million.
Daniel said he will investigate an accurate cost for furnishings and provide the figure for commissioners at their next meeting.
He said the project is still on schedule to be let for bid in March, 2008 and begin construction when the weather breaks approximately 30 days later.
MR architect Ron Ross said the project will also include some site improvements to the north side courthouse lawn. Ross said the "civic improvements" will make the courthouse lawn more inviting to the public.
Ind. Courts - Still more on: Fifteen Apply for 2008 Court of Appeals Vacancy [Updated]
The Bedford Times-Mail reports today:
Two Lawrence County attorneys are among 15 candidates to fill an upcoming vacancy on the Indiana Court of Appeals.See information on two Evansville-area candidates here; see the entire list of 15 applicants here.
State Sen. Brent Steele, R-Bedford, and William H. Mullis of Mitchell have applied to fill the shoes of Judge John Sharpnack, who is retiring effective May 3 after nearly 17 years of service.
Judge John T. Sharpnack's resignation will leave a vacancy in the 5th Judicial District.. The 1st District encompasses approximately the lower third of the state, the 2nd District the center third, and the 3rd District, the northern third. The 4th and 5th Districts, however, encompass the entire state. See more about the COA's districts here.
Although Judge Sharpnack retires from the Fifth District, the press release put out by the Court on August 20th, 2007 requires that applicants to fill the vacancy "must live in one of the 53 counties in the first geographic district of the Court of Appeals." In other words, the southern third of the state. Here is the application.
The ILB is inquiring into why this is the case.
[Updated 2:30 PM] A reader writes to provide an explaination:
Here's the statute that sets residency requirements:The reader conitnues:
Residency requirements for judges
Sec. 3. (a) Judges of the First, Second, and Third Districts of the court of appeals must have resided in their respective districts before appointment to the court. However, judges of the court of appeals appointed before July 1, 1993, must reside in the district from which they are appointed.
(b) The following requirements apply to judges of the Fourth and Fifth Districts of the court of appeals:(1) One (1) judge must have resided in the First District before appointment to the court.(c) When a vacancy is created in the court of appeals, the individual who is appointed by the governor to fill the vacancy must be a resident of the district in which the vacancy occurred.
(2) One (1) judge must have resided in the Second District before appointment to the court.
(3) One (1) judge must have resided in the Third District before appointment to the court.
Judge Sharpnack is from the counties that comprise the First District, and so his replacement must come from there. (The other two members of the Fifth District are from the Second and Third.)
Now that the court of appeals decides cases in randomly assigned panels, I see no reason why the Nominating Commission and Governor should not be free to appoint the best person from the entire state. I think the current system gives a significant advantage to lawyers/trial court judges in the First and Third District when it comes to appellate appointments. Although the districts may be equal in terms of population, there are many more cases and lawyers/trial court judges in the Second District.
Ind. Courts - Further on "Lawrence County Judge Found Dead In Home"
Soon after Lawrence Circuit Judge Richard D. McIntyre was found dead in his garage last week from carbon monoxide poisoning the coroner ruled suicide, rumors swirled about an investigation into possible improprieties involving the highly respected judge and former state representative, who also was a colonel in the U.S. Army National Guard.
Then on Saturday morning, those attending McIntyre’s funeral in the auditorium at Bedford Middle School heard about the investigation from McIntyre’s children, who spoke of it and read excerpts referring to the investigation from a suicide note their father left behind.
They defended their father from what his oldest son, Richard D. McIntyre Jr., called an overzealous investigation into the purchase or use of furniture obtained through military contracts. The son said he wanted to set the record straight. * * *
McIntyre’s wife of 27 years, Bedford attorney Meredith McIntyre, found her husband dead when she arrived home at 5:45 p.m. last Tuesday. He was in the front seat of his 2007 GMC Yukon, which was parked inside the garage of the couple’s Bedford home.
McIntyre was among 3,400 Indiana National Guard members from the 76th Infantry Brigade Combat Team preparing to deploy to Iraq early next year. He was scheduled to serve as a judicial advocate.
His suicide shocked people of Lawrence County and those in the legal world who knew and respected him.
“Rick and I were about as far apart politically as they come — he’s a Republican and big in the military and I’m a liberal Democrat,” said Owen Circuit Judge Frank Nardi. “But he was such a great guy. If I am upset about anything it’s that I did not notice anything was wrong, that he did not feel like he could come to me and say, ‘How would you deal with this?’ It’s so sad, for everyone.”
McIntyre, a Republican, served as a member of the Indiana House of Representatives from 1981 through 1984. In 1984, he lost by four votes in his bid to unseat 8th District Congressman Democratic Frank McCloskey.
He was appointed judge of the Lawrence Circuit Court in November 1988. He was popular, and was re-elected for three six-year terms without ever facing an opponent.
Ind. Courts - "Filing dates key in death suit"
As noted here in the ILB, oral arguments were heard yesterday before a panal of the Court of Appeals in the case of Estate of Martha O'Neal v. Bethlehem Woods Nursing and Rehab. Center.
Niki Kelly of the Fort Wayne Journal Gazette reports today on the arguments, in a story that begins:
The Indiana Court of Appeals heard arguments Monday on conflicting laws that may decide whether the estate of an Allen County woman can sue a Fort Wayne nursing home on grounds of negligence in her death.
Martha O’Neal, 68, was living in the Bethlehem Woods Nursing & Rehabilitation Center, 4430 Elsdale Drive, where workers at the facility allegedly left her on a bedpan for at least six hours in September 2001.
According to court records, O’Neal developed serious pressure sores and was transferred to an area hospital the next day. She died a few months later, on Nov. 6, 2001.
Her estate filed a wrongful-death claim against Bethlehem Woods in October 2003.
The case was moved to Wells County, where a trial judge granted summary judgment to the nursing home.
The issue before the appellate court Monday was whether the estate must abide by the medical malpractice statute of limitations, which is two years from the occurrence of the alleged malpractice, or the wrongful death statute of limitations, which is two years from the date of death.
In this case, the estate met the limitation for wrongful death but filed a month late for medical malpractice.
Ind. Courts - More on: Fifteen Apply for 2008 Court of Appeals Vacancy
Kate Braser of the Evansville Courier & Press writes today on the applicants to fill the Indiana Court of Appeals upcoming vacancy:
Two Evansville attorneys are among 15 who have applied for an upcoming vacancy for the Indiana Court of Appeals 5th District.
Vanderburgh County Deputy Prosecutor Daniel R. Miller and experienced local attorney Les C. Shively are both vying for the spot, which will be vacated after judge John Sharpnack's retirement in 2008. * * *
A native of Columbus, Sharpnack was appointed to the Court of Appeals by Gov. Evan Bayh in 1991. He served as the Chief Judge of the Court of Appeals from September 1992 to December 2001.
Reached at his office on Monday, Shively declined to comment, citing application guidelines and procedures.
Miller — who has been a Vanderburgh County deputy prosecutor since 1990 — could not be reached for comment.
According to the Vanderburgh County Prosecutor's Web site, Miller earned his bachelors' degrees in economics and management and German in 1985 from DePauw University. In 1989, he earned his law degree from Indiana University School of Law at Bloomington, and was admitted into practice the same year.
Shively is co-host of local political commentary show "Shively and Shoulders," on WNIN-PBS9. He has practiced law for more than two decades, and was appointed to the 10-member State Board of Law Examiners in 2001. Shively earned his bachelor's, master's and law degrees from Indiana University.
The Indiana Judicial Nominating Commission will conduct first-round interviews on Nov. 13 and second interviews on Dec. 12.
After that, the names of three nominees will be sent to the governor.
Ind. Gov't. - "Lawyers doing work for West Lafayette must now file their bills each month"
From this report by Michael Malik in today's Lafayette Journal & Courier:
West Lafayette City Council members Monday voted 7-0 in favor of a resolution requiring Bob Bauman, city attorney, and others to file bills monthly in an effort to remain informed about the city's legal costs. * * *
The resolution requiring monthly legal fees included language added by council member Patti O'Callaghan, D-At Large, that stated the city is for code enforcement because it benefits the health and safety of West Lafayette's residents.
West Lafayette resident Sam Haynes submitted the resolution about monthly legal bills because the clerk-treasurer's office hasn't received a bill from Bauman since May on code-enforcement cases.
Mills said several bills have been submitted to Allen Grady, assistant director of development, who checks each bill before it can be paid. Mills, a Democrat, defended Grady by saying he's been busy lately and hasn't checked the bills yet.
The city has spent nearly $71,000 on code enforcement cases so far this year, which is about $30,000 more than the city has spent for any entire year dating back to 2002, according to the clerk-treasurer's office.
Bauman charges the city $120 per hour for work on code-enforcement cases and $125 per hour on any other work.
Ind. Decisions - "Court upholds ruling against Whirlpool: Manufacturer found to have retaliated against worker over lawsuit"
Reporting on Monday's COA decision in the case of Whirlpool Corporation v. Vanderburgh County, City of Evansville Human Relations Commission and Harriett Layne (see ILB entry here - 2nd decision), Bryan Corbin of the Evansville Courier & Press reports: in a lengthy story that begins:
INDIANAPOLIS - The Indiana Court of Appeals has sided with an ex-employee of Whirlpool Corp. who said the company's Evansville plant fired her in retaliation for filing a racial-discrimination complaint.
In a 19-page decision Monday, the appeals court affirmed the earlier rulings of the Vanderburgh County-Evansville Human Relations Commission and Circuit Court Judge Carl Heldt, who both had found that Whirlpool's termination of employee Harriett Layne was retaliatory.
The commission previously had ordered Layne be reinstated and reimbursed $113,137 in lost wages. Debby Castrale, Whirlpool's manager of employee relations said the company has not decided whether to reinstate Layne or appeal the case to the Indiana Supreme Court.
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.
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.
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.
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.NFP civil opinions today (3):
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.
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):
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.Hopefully, this NCSC report will be made available before the end of the year to Indiana practitioners for review and comment.
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.
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.More from the story:
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.
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.
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:
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]
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.From a story last Wednesday by Sylvia A. Smith, Washington editor of the Fort Wayne Journal Gazette:
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.
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.Watch it live. You can watch the award ceremony live this morning on C-SPAN at 10:05 AM.
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.
Sunday, November 04, 2007
Courts - "UCLA Law School and the Rand Corp. launched an alliance Friday to study secrecy in the nation's civil justice system"
From a story by Henry Weinstein in the Nov. 3rd Los Angeles Times:
Michael Rich, Rand's executive vice president, expressed dismay that in recent years the civil justice system has seemed to be moving away from public scrutiny, with fewer trials being held, more private judges operating outside the normal court system and a proliferation of cases settled with confidentiality agreements.
"If the system is more opaque, it makes policy analysis more difficult and makes the system more susceptible to ideology," Rich said.
Los Angeles plaintiffs' lawyer Tom Girardi talked at length about the difficulties of deciding whether to settle cases confidentially.
Girardi said he is troubled by a confidentiality agreement he signed 25 years ago on behalf of a boy who alleged he was molested by a Catholic priest. As a Catholic who attended Catholic schools for his entire education, Girardi said he had doubts about the client's claims at the time.
Then when the massive pedophilia scandal in the Catholic Church came to public light, Girardi said he learned that the priest had molested 17 kids. "My confidentiality agreement" probably had negative consequences for all of these kids, Girardi acknowledged.
The rate of resolution by trial for federal court cases in 2002 was less than a sixth of what it was in 1962, according to an initial description of the project handed out at the conference.
Speakers also discussed just how big an effect private judging, also known as alternative dispute resolution, is having.
Kenneth R. Feinberg, who served as the special master of the federal September 11 Victim Compensation Fund, scoffed at the idea that private judging "is going to replace the civil justice system."
But U.S. District Judge Terry J. Hatter Jr., who has been on the federal bench in Los Angeles for nearly 30 years, said, "I do worry. I see a two-tier system," in which well-heeled litigants opt for private judging rather than waiting for their cases to be heard in federal courts.
Girardi said he uses public trials as well as private judges. But Hatter countered: "Most people can't get to you. Most people who use Danny are not economically deprived," he said referring to Daniel Weinstein, a highly regarded private judge with JAMS in San Francisco, who also was a panelist Friday.
Cynthia Lebow, who practices law in Westwood, urged representatives of Rand and the law school to come to grips with the problems ordinary consumers face when they get involved in a dispute with a large corporation.
"Virtually every time you go to a doctor now in California, you are asked to sign a mandatory arbitration agreement" when you go in for services, Lebow said. "Most of the time you don't even know it. You are signing a bunch of papers on a clipboard and you are being put into a system with no transparency and tremendous ethical issues."
California Chief Justice Ronald George delivered the keynote address at lunch. He said "courts increasingly have recognized that secrecy should be kept to a minimum."
In the past decade, the state Judicial Council has adopted rules that "expressly presume that the press and the public are entitled to court records," he said. "Any sealing of court records must be narrowly defined."
Saturday, November 03, 2007
Ind. Courts - "Deputy prosecutor quit 2 weeks after he asked defendant to do push-ups in court"
From a story in the Indianapolis Star, dated Oct. 6th:
A defendant dropped down and performed 50 push-ups in court Friday, and a prosecutor dropped the charges against him.From a story in the Star dated Oct. 9th:
The dismissal of Chase C. Allen's misdemeanor trespassing and disorderly conduct charges apparently helped smooth the way for the 20-year-old Marine recruit to report to boot camp.
The unusual resolution during a morning session in Marion Superior Court prompted applause from the gallery, Judge Barbara Collins said later.
But the judge was quick to point out that she had taken no part in the informal deal.
"It was an agreement between the prosecutor and the defendant," Collins said.
In Allen's case, she said, she simply accepted the dismissal form submitted to her by Deputy Prosecutor Daniel Cavallini.
An internal investigation by the Marion County prosecutor's office has found that a deputy prosecutor lacked approval from his bosses when he asked a defendant to pump out 50 push-ups in court.From a story by Jon Murray in the Star this morning:
But Prosecutor Carl Brizzi would not say Tuesday whether Daniel Cavallini, the deputy prosecutor, would face any discipline.
The courtroom spectacle was greeted with applause from the gallery Friday, according to observers, as Chase C. Allen completed the push-ups with encouragement from a uniformed Marine recruiter.
The 20-year-old had planned to enlist, but the criminal case stood in his way.
Cavallini dismissed misdemeanor trespassing and disorderly conduct charges in return for the push-ups, said Matthew Symons, spokesman for Prosecutor Carl Brizzi.
Brizzi said late Tuesday that Cavallini was right to dismiss the charges to give Allen a chance to serve his country.
"We can debate whether having him do push-ups in court was appropriate or not," Brizzi said. "I don't feel strongly enough about it one way or the other. I will deal with that part internally."
A deputy prosecutor quit two weeks after he asked a defendant to perform 50 push-ups in court, the Marion County prosecutor's office confirmed Friday.
Daniel Cavallini came under fire last month after an internal investigation found he had lacked supervisors' approval to ask a 20-year-old man for the push-ups in exchange for dismissing misdemeanor charges. The man fulfilled the request Oct. 5 in front of a judge, prompting applause in the gallery.
That dismissal removed a hurdle for Chase C. Allen, who had told a recruiter he wanted to join the Marines. The trespassing and disorderly conduct charges stood in his way.
It's not clear whether the incident had any connection with Cavallini's departure. Prosecutor Carl Brizzi has said he supported the dismissal of the minor charges to smooth the way for enlistment.
"Cavallini resigned on or about October 19th," said Matthew Symons, Brizzi's spokesman. "We did not ask for his resignation."
The prosecutor's office hired Cavallini in June. The 39-year-old Army veteran was a former deputy Indiana attorney general. Cavallini did not return a phone message left Friday.
Brizzi had declined to say whether Cavallini would be disciplined after The Indianapolis Star published a story about the incident. Symons said the office was still considering a public-records request submitted Tuesday for information relating to any disciplinary action.
Ind. Courts - West Lafayette City Judge race
From the Lafayette Journal and Courier today, a story that begins:
In the race for West Lafayette City Judge Tuesday, incumbent Democrat Lori Stein Sabol will face political newcomer Linda Naimi, a Republican.
The Journal & Courier asked each candidate three questions. Here are their answers.
Question: Do you have any goals for the office?
Stein Sabol: Work to clarify the parking ordinance by encouraging more publicity on parking laws and more informative signage. Discuss with legislators a change in the law so that judges are elected on a nonpartisan basis (such as the school board). Continue to run an efficient and fair court.
Naimi: Review, revise and update city ordinances. Improve court efficiency and effectiveness. Offer Night Court and online ticket disputes and payments. Hold community meetings to discuss concerns. Work collaboratively with police, city officials and constituents. Provide competent, consistent and fair judgments.
Law - Still more on: Does Avowal of Fatherhood Impose an 'Equitable Paternity'
This lengthy ILB entry from March 18th began:
Last month the ILB had an entry on this issue, noting that there had cases in New York and Illinois where a "father" who has been paying child support later learns he is not the biological father, and now Kentucky was looking at the issue.The entry included this quote from the Louisville Courier Journal:
Courts around the country are struggling with those questions, including in two emotional cases from Jefferson County.Today Andrew Wolfson of the LCJ reports on the outcome of that case, in a story titled "Man who was deceived about paternity retains custody: State high court upholds ruling." Some quotes:
In one, Ren Hinshaw, 58, is fighting to retain joint custody of a child he helped raised and loves as his own, even after finding out the boy is not his biological child. "He is my son, and I am his dad," Hinshaw said in an e-mail to the newspaper.
The child's mother says Hinshaw should have no right to custody.
The Kentucky Supreme Court has ruled that people who deceive their spouses into thinking that a child is theirs cannot later contest their right to custody -- even if DNA tests show they are not the parent.Here is a copy of the opinion.
The court unanimously upheld a lower court ruling granting primary custody to Ren Ricky Hinshaw, whose wife led him to believe he was the father of their child until they divorced and she produced genetic testing showing the child wasn't his.
In an opinion issued Thursday, the court said that the "acts, language and silence" of Hinshaw's ex-wife, Jacqueline Lenarz, "were aimed at misleading Ren into believing he was Asher's biological father." The court also said that while they were married, she intended for him and the child to develop a strong father-son relationship. * * *
The Supreme Court, in an opinion written by Justice Bill Cunningham, described how Hinshaw was in the delivery room when the boy he thought was his son was born in 1999.
Hinshaw, a technology consultant at the University of Louisville's Kornhauser Health Sciences Library, cut the umbilical cord and later taught the boy to talk and volunteered at his school, according to court records.
But when Lenarz, also a librarian, divorced Hinshaw in 2003, she disclosed he wasn't the biological father and asked Jefferson Family Court to deny him custody, citing DNA tests which showed he couldn't be the father.
A court-appointed psychologist who met with the child concluded he had bonded with Hinshaw and that severing the relationship would cause the boy "severe emotional and psychological harm," the Supreme Court noted.
It also said that a family court judge, awarding principal custody to Hinshaw, said that his wife had "always represented, both to Ren and the world," that he was the child's father.
The Court of Appeals last year affirmed the decision, but Lenarz appealed.
The Supreme Court said that if Hinshaw had known that he wasn't the father when the child was born, he could have tried to adopt him.
Ind. Decisions - "Big-time attorneys argue adult plaza case"
Oral arguments took place Friday before a panel of the COA (Chief Judge Baker, Judges May and Crone) in the case of Plaza Group Properties v. Spencer County Plan Commission.
The ILB has had quite a number of entries on this dispute, summarized in this entry from July 5th, and including links to the trial court opinions. The first entry, from Jan. 16, 2006, was headed "Adult business dispute draws top lawyers to fight in Spencer."
Today Bryan Corbin of the Evansville Courier & Press reports on Friday's oral arguments, under the headline "Big-time attorneys argue adult plaza case":
INDIANAPOLIS — An adult business penalized for violating a Spencer County ordinance is appealing, claiming the county's attempts to regulate it out of existence are unconstitutional.
The dispute between 231 Adult Plaza and Spencer County officials has made its way to the Indiana Court of Appeals. On Friday, a three-judge panel heard arguments from nationally known lawyers on each side of the case.
The adult plaza is appealing a preliminary ruling by Spencer Circuit Court Judge Wayne Roell, who concluded in March the business had violated a county ordinance regulating sexually oriented businesses. Roell had sharply limited the amount of sex-related merchandise that 231 Adult Plaza could sell in its retail area to no more than 35 percent of inventory, although he allowed the business to continue operating.
Louis Sirkin, a Cincinnati attorney who has represented clients including Hustler publisher Larry Flynt in obscenity cases, argued on 231 Adult Plaza's behalf. Sirkin told the appeals court that Roell's earlier ruling granting summary judgment to the county should be reversed so the dispute can proceed to a trial.
Sirkin said Spencer County didn't adopt the ordinances until after the adult business opened in October 2005 at Indiana 231 and Interstate 64. He contended the ordinances did not apply and, in any event, they violated the First Amendment right of free expression. He argued Spencer County officials failed to prove any secondary negative effects, such as crime, were created by the business.
"The burden of proof is on the government; they have to show their studies are relevant to where the store is," Sirkin said. "All those studies are not relevant because of the rural nature of this particular community."
An attorney from Chattanooga, Tenn., who has helped municipalities write anti-obscenity ordinances, Scott Bergthold, represented Spencer County. He argued the county's zoning ordinance limiting the location of an adult business (no less than 1,000 feet from a residence, school or church) is constitutional. Bergthold said the adult business committed a violation when it made more than $5,000 worth of remodeling improvements to the former truck stop without seeking a building permit. It remained in violation because one of its buildings is 89 feet from a residence, Bergthold said.
The attorneys delivered their arguments from a podium inside the ornate, cavernous courtroom of the Indiana Supreme Court, which the appeals court panel used for the day. Limited to 30 minutes per side, neither lawyer got far into his argument before a judge would interrupt with a question — forcing the attorney to scramble for an answer and then try to pick up the thread of his argument before time ran out. The judges did not decide the dispute Friday, but will rule at a later date.
The long-running legal dispute began when Spencer County officials in late 2005 sought an injunction to stop 231 Adult Plaza from operating. The adult business moved out of its main building, but continued operating in an adjacent convenience store, with a gift shop selling adult novelties and a stage for exotic dancers.
Roell ruled in March the adult plaza had violated the county ordinance outlawing sexually oriented businesses within 1,000 feet of a home, church or school. In June, he found the adult plaza in contempt of court for violating his earlier ruling and ordered them to pay a $30,000 fine.
Friday, November 02, 2007
Law - Two interesting Wal-Mart stories for a Friday afternoon [Updated]
Both from the WSJ Blog:
"Wal-Mart Strikes Back at Associate Salary Increases" - an entry this afternoon that begins:
Before any more law firms match the latest bump in associate compensation, they may want to take stock of this memo issued yesterday by Wal-Mart. Addressed to the “relationship partners” at its outside counsel, the memo raises concerns about the recent increase in associate starting pay to $160,000."Wal-Mart Asks Court To Seal Documents In Tax Dispute" - an entry yesterday that began:
“The salaries that law firms choose to pay their junior associates are none of our concern,” writes Miguel Rivera Sr., associate general counsel for the retail chain. [However ...]
Last week, Law Blog colleague Jesse Drucker had a Page-One WSJ story detailing how Wal-Mart paid Ernst & Young to design complex strategies to cut its state-tax bills. Intrigued? Click here for E&Y’s proposal, which was part of a court filing in North Carolina state court as part of a legal battle between Wal-Mart and the Tar Heel state over a controversial tax-cutting structure employed by the retail giant.[Updated at 3:40 PM] The ever-vigilant Ed Feigenbaum writes to point out that the Miguel R. Rivera, Sr. quoted in the first story is a Hoosier: From the Wal-Mart bio:
Now all you corporate-tax geeks out there are saying, “Cool, maybe the Law Blog can track this lawsuit to see if any other cool documents emerge from the case.”
Well, if Wal-Mart has it’s way, not a chance. It has asked the court Tuesday to have a range of future filings in the case sealed from public view. Here’s the motion for a protective order, filed by Wal-Mart’s lawyer Jasper L. Cummings, Jr. at Alston & Bird in Raleigh.
Miguel R. Rivera, Sr., is an Attorney with 16 years experience practicing law in the State of Indiana. Miguel joined the Wal-Mart Legal Department in October 2006. Miguel serves as the Assistant General Counsel for Outside Counsel Management working in the Legal Department Administration Office of Wal-Mart Stores, Inc.
Miguel came to Wal-Mart from the State of Indiana where he was Commissioner of Labor, appointed by Governor Mitchell E. Daniels, Jr. As Commissioner of Labor, Miguel was responsible for managing the Indiana Department of Labor, which includes the Indiana Occupational Safety and Health Administration (IOSHA), the state Wage & Hour and Child Labor divisions and underground mine safety and mine rescue.
Miguel served as Senior Counsel for Global Litigation at Cummins Inc., in Columbus, IN., as a Deputy Attorney General for the State of Indiana and has practiced law in the private sector, government and corporate legal departments.
Mr. Rivera earned a Juris Doctorate degree from the University of Illinois, a Bachelor of Arts degree from the University of Illinois, and an Associate in Arts and Sciences degree from Illinois Central College.
Ind. Decisions - Transfer list for week ending November 2, 2007
Here is the Indiana Supreme Court's transfer list for the week ending November 2, 2007. Be sure to view all 5 pages.
There were no transfers granted this week.
Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
Larry Carlin v. Review Board of the Department of Workforce Development, et al. (NFP) - "In Carlin v. Review Bd. of the Dep’t of Workforce Dev., (Ind. Ct. App., June 25, 2007), we affirmed the decision of the Review Board that Larry Carlin had voluntarily quit his job at J & J Packaging Company without good cause. Slip op. at 4. Carlin has filed a petition for rehearing, which we grant for the purpose of addressing several issues raised therein. We affirm our original opinion in all respects, however."
NFP criminal opinions today (1):
Ind. Courts - Fifteen Apply for 2008 Court of Appeals Vacancy
The Indiana Courts site has posted this release:
The Indiana Judicial Nominating Commission has received fifteen applications for the upcoming vacancy on the Court of Appeals (Fifth District) occasioned by the May 2008 retirement of Judge John Sharpnack. The Nominating Commission will conduct first-round interviews on November 13th and second interviews on December 12, 2007, after which the Commission will send the names of three nominees to the Governor.
The fifteen applicants are:
* Mr. William W. Barrett, Greenwood
* Hon. Elaine B. Brown, Dubois Superior Court
* Hon. Christopher L. Burnham, Morgan Superior Court 2
* Mr. Kit C. Dean Crane, Henry County Prosecutor
* Hon. Jane Spencer Craney, Morgan Superior Court 3
* Mr. Richard R. Fox, Floyds Knobs
* Mr. Stephen J. Johnson, Executive Director, Indiana Prosecuting Attorneys Council
* Mr. Jeffrey B. Kolb, Vincennes
* Hon. Rebecca S. McClure, Boone Superior Court 2
* Mr. Daniel R. Miller, Evansville
* Mr. William H. Mullis, Mitchell
* Mr. Leslie C. Shively, Evansville
* Hon. P. Thomas Snow, Wayne Superior Court 1
* Sen. Brent E. Steele, Bedford
* Hon. G. Michael Witte, Dearborn Superior Court
Environment - "Sixth Gives Green Light to Environmental Tort Suit"
The blog Decision of the Day has this interesting post, that begins:
In a big decision at the intersection of tort law and environmental law, the Sixth Circuit is allowing a group of Kentucky homeowners to proceed with their claims that a nearby uranium enrichment plant brought down their property values.The decision is Smith v. Union Carbide Corp.
The plant has been operating in Paducah since 1952, although both the ownership and the level of safety measures have varied over the years. In recent years, testing showed that the plant’s operations had contaminated the local groundwater, surface water, and soil. Cleanup efforts have been ongoing since 1988.
The plaintiffs are sixteen homeowners who live within ten miles of the plant. They filed suit in 1997, claiming that the radiological contamination of the area had interfered with the use and enjoyment of their homes and had lowered their property values. They alleged that the plant’s various owners are liable for contaminating their land under intentional trespass and private nuisance theories. They also claimed strict liability.
Not law - Consider voting for an Indiana blog, The Bilerico Project, for best LGBT Blog
Sadly, the ILB was not nominated for the national 2007 Weblog Awards as Best Law Blog (although it is consistently listed as one of the top ten on this site).
Voting opened today.
However, another Indiana blog is in the running in another category, Best LGBT Blog. The ILB received this communication this morning from Bil Browning:
Our blog, The Bilerico Project, is a finalist for the Weblog Awards - the Academy Award of blogging. Obviously, we were nominated for the Best LGBT Blog.
To win, we need votes! Since we're the only Indiana LGBT blog nominated, we'd appreciate the home state support! Let's show that Indiana IS a force in the LGBT world. We're up against some really stiff competition, so we'd appreciate your vote!
There are over 176 million blogs now - and we're listed as one of the top ten. This is a REALLY big deal - and we'd really like to win. After our re-launch as a national blog, we've gotten tons of attention and visitors from around the country, but Indiana is still home to several of our contributors.
Will you help us out by voting? You can vote once per day!
Ind. Gov't. - More on: "Paige Grable's release delayed: Correction department says earliest release is now Feb. 11"
Updating the entry immediately below, the ILB has received this information from a reader:
I was reading your blog this morning and noted with interest the article on Ms. Grable and her reduction in sentence. I used to be a deputy state public defender. Credit time was the most frequent question asked about from my clients, so I've dealt with the D.O.C. somewhat on these issues.Another reader cites the same statute:
The applicable statute is I.C. 35-50-6-3.3.
When I read it, it appears to be up to the D.O.C. to decide whether it will give credit time for both a G.E.D. and a high school diploma. My understanding from past experience dealing with the D.O.C. is that you only get credit for one, but not both. Therefore, I would think she would be entitled to credit for the high school diploma, since the credit is for a full year, but not for an additional six months for the G.E.D.
Having said that, I've never had much luck figuring out where these "internal policies" are written down or otherwise accessible.
I would really hate to see the legislature remove this credit, though. Many of my clients had no education until they went to the D.O.C., and education made a difference in some of their lives.
I think I.C. 35-50-6-3.3 provides the answers to the questions you posed, particularly subsections (d) and (k). I have not seen a copy of the DOC's guidelines though as referenced under subsection (k).
Ind. Gov't. - "Paige Grable's release delayed: Correction department says earliest release is now Feb. 11"
Here is a story from the Jeffersonville/New Albany News & Tribune that the ILB found troubling on several levels. Some quotes (emphasis added by ILB):
Paige Grable won’t be released on Friday from the Madison Correctional Facility, as reported Tuesday.A story yesterday, from WAVE 3 Louisville by Mark Schnyder, reports in part:
The Indiana Department of Correction in a late-Wednesday press release said it reviewed the specifics of the 19-year-old Floyds Knobs woman’s pending release and determined she will remain in jail until at least Feb. 11.
The DOC said the mistake came in giving Grable — who earlier this year admitted her drunken driving in October 2006 led to the death of fellow Providence High School student John Gatz, 16 — 284 days of credit for completing her high school diploma while incarcerated. The DOC says she first completed her General Equivalency Diploma, and should only receive credit for that degree. That credit totals 183 days.
“Our own internal policy states that an offender is only eligible to earn education credit time for the completion of either a GED or high school diploma in the order of completion,” said DOC Commissioner J. David Donahue in the release. “In this case, Ms. Grable completed her GED several days before the completion of her high school diploma,” he said.
Grable began serving a 30-month prison sentence in May, but credit for time served and the then-284 day credit meant Grable was expecting to leave prison and return home Friday. That angered Gatz’s family and Floyd County Prosecutor Keith Henderson, who called a joint press conference Tuesday to voice frustration.
“Who in the world gets a GED and a high school diploma back to back unless they were hoping to skirt the system?” wondered Henderson at a news conference Tuesday afternoon.
At that time, Henderson and the Gatz family believed Grable was receiving credit for both diplomas after e-mails to the family from DOC indicated as much. Henderson had expected Grable to be released in August 2008, 15 months after her May 16 sentencing. Having believed that Grable completed her diploma through the correspondence courses before entering prison, Henderson did not expect her to earn any further time off.
The family used the news of the release delay to emphasize a point they made at the Tuesday press conference — something is wrong with a system which awards hundreds of days of credit to prisoners for completing diplomas.
“This should not have been an ordeal to begin with and we will press legislators to consider amending the law regarding educational credit, especially for short-term prisoners,” a statement released to the media reads.
State Sen. Connie Sipes, D-New Albany, said she and colleague Steve Stemler, D-Jeffersonville — both of whom the Gatz family called for assistance — will investigate the language of the state’s educational-credit program before the new legislative session begins in January. * * *
After her release, Henderson said, Grable will be subject to prison parole for two years and Floyd County probation for 18 months. Her driving privileges were suspended for two years in May.
After the Floyd County prosecutor argued for a month with the Indiana Department of Correction over Grable's early release, the DOC decided less than two days before she was to be let out that they had made a mistake. They admit they should not have given Grable credit for earning her high school diploma while in prison. Now that credit -- in the form of 101 days served -- has been taken back. * * *Harold J. Adams of the Louisville Courier Journal has this story Oct. 31st. Some quotes:
For the Gatz's, this is not over. This bitter bureaucratic battle has turned them into activists. They are trying to get Indiana lawmakers to abolish the educational credit for short sentences so those who reach a plea deal actually serve the time they agree to serve.
The Floyd County prosecutor wants the Department of Correction to do an internal review. He says he's still bothered by the fact Grable came so close to getting out so early. He also says he'll work with the Gatz's and lawmakers on some new legislation regarding educational credit in Indiana prisons next session.
The Indiana Department of Correction cut time off Paige Grable's sentence because of education credits she had received since going to prison. But the basis for the sentence reduction is in dispute. * * *Statutes, administrative rules, "internal policies" -- the ILB is confused and a quick search of the first two revealed nothing. What is the policy, where is it written, and how has it been applied in the past?
The plea agreement called for a four-year sentence with 11/2 years suspended. The 30-month balance was automatically reduced to 15 months under Indiana's policy of cutting a sentence in half if the inmate has good behavior in prison.
Jennifer Saroka, spokeswoman for the Madison Correctional Facility where Grable is being held, said yesterday that nine months were cut from that 15-month term because Grable finished her high school education through a correspondence course.
Grable also earned a General Educational Development certificate while in prison "to enhance her chances of receiving college scholarships, all of which she lost when convicted," Saroka wrote in a statement in response to questions about the reduced prison time.
Saroka said Department of Correction policy allows credits of one year for getting a high school diploma and six months for getting a GED. But Saroka said that the agency's policy does not allow an inmate to get credit for both and that Grable was receiving time off her sentence only for the diploma.
Grable got both certifications in September.
Henderson, however, said the prison warden sent him computations that showed that the department was giving Grable time off for both the diploma and the GED.
"They said by statute they were allowed. That was the disagreement," Henderson said. He said Jim Wynn, the department's director of classification, repeated that claim in a conversation Thursday.
Kathy Gatz forwarded to The Courier-Journal copies of two e-mails received the same day from Katie O'Bryan, supervisor of the Victim/Witness Program for the Department of Correction. The e-mails confirm the Nov. 2 release date and said Grable "received 183 days for her GED and 101 days for her high school diploma."
"I don't know what kind of revelation they've had since then," Henderson said.
Saroka, asked about the e-mails and what Henderson said he was told, said, "It was inadvertently listed that way originally, but it was put under review and corrected."
The corrected computation assigned the entire 284-day sentence reduction to the diploma. Saroka said she did not know when the correction was made.
Henderson and the Gatzes said they had not been told about the correction.
Law - "Lobbying rule changes have companies thinking twice about interaction with public officials"
Sonia P. Fois of Legal Times writes today under the headline "Companies, Beware! Taking a Congressman to Lunch Can Land You in a Heap of Trouble: Lobbying rule changes have companies thinking twice about interaction with public officials." The story begins:
Recent changes in lobbying and ethics rules have caused companies to face an important fact: Managing the political and legal risks that accompany interaction with public officials now has as high a priority as other business risks.
With the enactment of the Honest Leadership and Open Government Act of 2007 (and new House ethics rules shortly before that), the stakes have been raised. For the first time, the private sector is subject to legal liability under the federal lobbying law for violations of internal congressional ethics rules.
Law - "Law Firms Backing Away From Affiliate Businesses: A strategy that started in the '80s and '90s begins to fade with sell-offs"
An interesting article by Lynne Marek from The National Law Journal begins:
Law firms once dreamed of owning separate businesses to bring in new streams of revenue, and while some achieved that goal, the industry is now largely backing away from a strategy that provided little economic benefit.
While some firms still own the stand-alone affiliates that mainly came into being in the 1980s and 1990s, many are selling the entities, and few new ones have popped up in recent years.
Ind. Decisions - More on: 7th Circuit dismisses challenge to Indiana canons of judicial ethics
Last Friday, Oct. 26th, the 7th Circuit issued a significant decision in the case of Right to Life v. Randall T. Shepard. The ILB covered it here. Like the legislative prayer decision issued the following Monday, Oct. 29th, the panel here dismissed the case for lack of standing. The basis here was: "[T]he 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 ILB has seen no press coverage of the decision until today, with a story by Joe Carlson of the NWI Times:
CHICAGO | Following a national trend, federal appeals judges last week ruled that special interest groups cannot force judicial candidates in Indiana to promise how they will rule on controversial issues that come before their courts.
Indiana Right to Life Inc. sued Indiana Chief Justice Randall Shepard in 2004, saying the judge had infringed First Amendment rights by blocking candidates and advocacy groups from telling voters how judge candidates would rule on issues including abortion and assisted suicide.
"We're quite surprised at the decision," said James Bopp, a Terre Haute, Ind., attorney who successfully argued a similar case before the U.S. Supreme Court in 2002. "Judicial candidates are being severely restrained in their ability to comment on their judicial philosophies."
On the contrary, Shepard said, forcing judges to "promise" on the campaign trail how they would rule on certain issues goes against the fundamental concept of impartial justice.
"What's really at stake here is whether you get an even shake when you walk into an American courtroom," Shepard said in an interview. "We believe that it's better to have an impartial judge, not a partial judge."
Bopp and Shepard agreed it was unfortunate that the 7th Circuit Court of Appeals, which covers Indiana, made its ruling on technical grounds rather than addressing the philosophical debate.
Last November, U.S. District Judge Allen Sharp ruled in favor of Indiana Right to Life, saying the state's code of conduct for judges was unconstitutional because it broadly forbade judicial candidates from stating their views on legal issues.
On Oct. 26, the 7th Circuit threw out that ruling. But rather than analyze Sharp's logic on the issue, the appeals judges said Indiana Right to Life did not have standing to bring the case to court because it had not been directly damaged by the judicial code.
Ind. Decisions - Yet more on: 7th Circuit decides legislative prayer case, dismissing for lack of standing
Thursday, November 01, 2007
Ind. Courts - "Tim Roberts and Jim Vice are running for the postition of Wabash City Court judge"
From the Wabash Plain Dealer:
Tim Roberts and Jim Vice are running for the postition of Wabash City Court judge in the Nov. 6 Municipal Election.
Roberts, a Republican, is the incumbent. Vice is a Democrat.
The Wabash Plain Dealer asked the candidates questions and their responses appear here. Answers will appear on an alphabetical, rotating basis.
No.1. Why is it important for a city to have a City Court?
Roberts: City Court provides an informal, efficient, and legal forum for businesses and individuals to have their financial disputes resolved.
City Court also provides an invaluable service to the City of Wabash itself. The Court hears city ordinance violations such as: curfew, loud noise, junk vehicles, animals at large, parking violations, littering and discharging firearms restrictions.
The court also serves the city by collecting delinquent ambulance and sewage charges. In 2006, the City Court recovered over $60,000 for the city. Over $40,000 was recovered from ambulance and sewage judgments alone. Operational expenses for the court were under $55,000.
For the first nine months of 2007, the court recovered over $30,000 in ambulance and sewage judgments and approximately $50,000 in total for the city. In addition the court collected over $97,000 in small claims judgments for local businesses and citizens.
Vice: My opponent Tim Roberts gave a very informative and persuasive response in his report to the Mayor and Council, "City Court Costs: Proposed budget for 2007," detailing the costs, income and users of the City Court. The City Court saves the City and our citizens in both costs and time by resolving disputes that might otherwise have to go to the Superior Court. It provides the added benefit of a personal approach in resolving problems, free of the many technical formalities of the higher judicial system.
Ind. Courts - "Charlestown judge candidates differ on crime"
Stephanie Mojica of the Jeffersonville/New Albany News & Tribune reports today in a story that begins:
For 20 years, Charlestown City Court Judge George Waters has sat on the bench — and his opponent, Fred Krenke, thinks it is time for a change.
Waters, 82, and schoolteacher Krenke, 62, are on the ballot for the Nov. 6 election to sit as judge of Charlestown Court — which hears misdemeanors such as driving while intoxicated charges that happen in the community.
Both men have lived in Charlestown for more than 30 years, and each is married with children and grandchildren. But the ways they would like to approach the office differ and do not heavily relate to partisan politics. Waters is a Democrat; Krenke is Republican.
When Waters tries cases in his court — which meets two nights a month — he says he thinks not only of the law, but how to help both the defendant’s finances and freedom when possible.
That’s what Waters is doing wrong and why it is time to change, Krenke says.
“I sat in his court several times and thought he was way too soft on crime,” Krenke said. “There was one man who committed about four crimes who got off with $13 in court costs. That doesn’t help anyone.”
Waters said he feels the city court’s duty is to do more than just put residents in jail and earn money for its government.
“I have a pretty big responsibility,” Waters said. “I have always used the power of the suspended sentence for a first-time defendant.”
Krenke said that’s not always an appropriate response, especially where drunken driving is concerned.
Environment. - BioTown, USA. Remember little Reynolds, Indiana? Population 500
The most recent ILB entry on BioTown USA is dated Oct. 6, 2005 -- two years ago. It quoted from a story headed "Questions linger over BioTown project".
Today the WSJ bring us up to date in a story on page B-1 ($$$) headlined "An Ethanol Glut Hits Home In BioTown, USA." It begins:
Two years ago, Indiana Governor Mitch Daniels came to the small farm town of Reynolds in northwestern Indiana corn country to christen it BioTown, USA. The goal: to attract bioenergy companies and set an example by fueling the town's cars, homes and businesses with cheap, environmentally friendly energy.Two related stories of interest from the Journal:
"This is America's first BioTown in the making," Gov. Daniels declared in front of about 300 people at Reynolds's fairgrounds. But like dozens of U.S. farm towns counting on bioenergy to revitalize their economies, Reynolds is now learning a tough lesson about the difficulties alternative fuels face. Last month, VeraSun Energy Corp. announced it was stopping construction on an ethanol plant nearby.
An Oct. 1 story that begins:
Ethanol's frenzied growth over the past year is coming to a halt -- at least for now.An Oct. 17 column titled "Ethanol's Water Shortage" that echos concerns the ILB has posted recently. Some quotes:
The price of ethanol has fallen by 30% over the past few months as a glut of the corn-based fuel looms, while the price of ethanol's primary component, corn, had risen. That is squeezing ethanol companies' profits and pushing some ethanol plants to the brink of bankruptcy.
If the Senate's new "renewable fuels" mandate becomes law, get ready for a giant slurping sound as Midwest water supplies are siphoned off to slake Big Ethanol. * * *
Ethanol plants consume roughly four gallons of water to produce each gallon of fuel, but that's only a fraction of ethanol's total water habit. Cornell ecology professor David Pimentel says that when you count the water needed to grow the corn, one gallon of ethanol requires a staggering 1,700 gallons of H2O. Backers of the Senate bill say that less-thirsty technologies are just around the corner, which is what we've been hearing for years.
Some corn-producing regions are already scrapping over dwindling supply. The Journal's Joe Barrett recently reported that Kansas is threatening to sue neighboring Nebraska for consuming more than its share of the Republican River. The Grand Forks Herald reports local opposition to a proposed ethanol plant in Erskine, Minnesota, with anti-refinery yard signs sprouting up and residents concerned about well water. Backers of a proposed plant in Jamestown, North Dakota, recently withdrew their application when it became clear that the plant's million-gallon-a-day appetite would drain too much from a local aquifer. In Wisconsin, new ethanol plants are encountering opposition in Sparta and Milton.
"There are going to be conflicts," says Iowa State hydrogeologist Bill Simpkins, "and there are going to be lawsuits." Even in Iowa, which enjoys abundant rainfall, there are no guarantees that supply can meet the new demand. "The problem is we don't know enough about some of these areas to say whether people can pump out a lot more water," Mr. Simpkins says.
Law - "Woman to appeal decision against Muslim marriage contract"
Emily Zeugner of the AP reports, in a story that begins:
COLUMBUS, Ohio (AP) — A woman plans to challenge Ohio's first court ruling involving a traditional Muslim marriage agreement in a case that could set a precedent about how such religious contracts are handled in the state.See also this ABA Journal Blog entry by Martha Nell, which cites the AP story and provides several other links.
The ruling says Mohammed Zawahiri does not have to pay his former wife, Raghad Alwattar, the $25,000 he promised as part of a Muslim pre-marriage agreement — called a mahr — because the payment is part of a religious pact, not a legal contract. Alwattar plans to appeal, her lawyer said.
The decision was a departure from rulings in other states, which have enforced such contracts, similar to dowries, by citing precedents set by civil rulings that enforced Orthodox Jewish marriage contracts.
The ruling sets a dangerous precedent for Muslim women because the contract serves as a protection and safeguard for women who often marry young and do not earn salaries, Alwattar's attorney, Noure Alo, said Wednesday. After a divorce, it can be difficult for a Muslim woman to marry again, he said.
The issue is especially pertinent as Muslim couples increasingly turn to the secular court system for disputes that traditionally would have been resolved by a religious leader, said Jennifer Nimer, legal director for Council on American-Islamic Relations Ohio.
Alwattar, 21, said the mahr should be considered a prenuptial agreement under Ohio law.
Zawahiri, 29, argued that he didn't fully realize the terms of the agreement at the time he signed it, just minutes before the wedding. Zawahiri thought the contract was just a formality before marriage, said James Adair, his attorney.
Franklin County Common Pleas Judge Dana Priesse agreed, ruling Oct. 10 that the contract could not be considered a prenuptial agreement, designed to protect a person's assets in a divorce, because Zawahiri did not have time to consult an attorney.
Other states have dealt differently with the issue: in 2002, a New Jersey Court ruled that a man owed his wife her $10,000 dowry after their divorce because the secular parts of the marriage contract could be enforced, and a New York court made a similar ruling in 1985.
Until a legal precedent is set, Muslim couples should draft mahrs so they meet the legal requirements of prenuptial agreements, Nimer said. Mouhamed Tarazi, a Columbus imam who brokers mahr agreements, has said he will make grooms sign a promissory note to ensure the contract is enforceable in civil court.
Ind. Decisions - No COA opinions today
No opinions have been issued and posted on the COA website for this, the first day of November, 2007. Just speculation, but perhaps it is the result of a big effort to get them in before the end of October, to count in that month's statistics. During the first three days of this week (Oct. 29-31), the COA posted a total of 48 FP and NFP opinions. Looking back, I see that no opinions were posted Oct. 1st or Sept. 3rd either.
Court - Reduced crack cocaine federal sentencing guidelines effective today
Erik Potter of the Gary Post-Tribune has the only Indiana story the ILB has seen on this. It begins:
New federal sentencing guidelines are set to go into effect today that will reduce the average sentence for a crack cocaine offense by 15 months.For comprehensive coverage, see this Sentencing Law and Policy Blog entry from Oct. 31, including its many valuable links.
The change, put in place by the U.S. Sentencing Commission, could be applied retroactively, which would mean an early release for more than 260 prisoners in Northern Indiana, and 19,500 nationwide.
"This is a clear recognition by Congress that the penalties imposed (for crack) were unfair," said Kerry Collins, a community defender at the federal courthouse in Hammond.
The reason for the sentence reduction is to address a disparity created in the 1980s when Congress established mandatory minimum sentences for drug crimes.
The law set up a system where crack cocaine -- which is made from powder cocaine -- carried much stiffer penalties than its powdered derivative.
A crime involving five grams of crack cocaine carries a mandatory sentence of five years in prison, and 50 grams carries a 10-year penalty. However, it takes 500 and 1,000 grams of powdered cocaine to trigger the same five and 10 year sentences.
That disparity has earned particular criticism because of the racial overtones it carries, as crack offenders are more likely to be black and powder cocaine offenders are more likely to be white or Hispanic.
Ind. Courts - "The Perry Circuit Court has an immediate opening for a Magistrate"
Posted on the Indiana Courts website today is this announcement that begins:
The Perry Circuit County [sic.] has an immediate opening for a Magistrate. Perry County is a small, primarily rural county. The Court is located in beautiful Tell City on the Ohio River. The entire county is served solely by the Circuit Court, so the Judge and her Magistrate oversee every type of litigation. Compensation is $96,400 annually with excellent state benefits.
Applicants must have a current Indiana license in good standing. Applicants must have excellent verbal and written skills, able to make evidentiary rulings quickly, have a judicial temperament, with high energy. Applicants do not need to be residents of Perry County, but must be willing to relocate if the position is accepted.
Ind. Courts - Senate Judiciary committee approves Tinder nomination to 7th Circuit
Maureen Groppe of the Star Washington Bureau reports this afternoon:
WASHINGTON - The Senate Judiciary Committee today unanimously approved U.S. District Judge John Daniel Tinder's nomination to the federal appeals court.For background, start with this Sept. 30th ILB entry, or see this list of all ILB entries including the name "Tinder."
The Indianapolis native must still be voted on by the full Senate.
Tinder was unanimously confirmed for his current position, which he's held since 1987, and when he was nominated to be U.S. attorney for Indiana's southern district in 1984. * * *
Tinder's nomination had the bipartisan support of Indiana senators Richard Lugar, a Republican, and Evan Bayh, a Democrat.
If approved by the Senate, Tinder would replace retiring Judge Daniel A. Manion on the 7th U.S . Circuit Court of Appeals.
Ind. Courts - "Malpractice complaint filed against Muncie attorney"
Rick Yencer of the Muncie Star-Press reports today:
MUNCIE -- A well-known Muncie attorney has been sued for malpractice over how he handled a local woman's estate.
Sharon Green, who retained attorney Bruce Munson to handle her late mother's estate, filed suit in Delaware County Circuit Court 3, seeking more than $40,000 in legal fees and other damages from Munson.
The suit claims that Munson, a former state lawmaker, advised Green and her siblings that there was no need to open a formal estate after her mother, Marjorie Conquest, died in 2001.
Munson proceeded to advise that a trust, managed by Green, could handle her mother's assets, consisting of real estate and other personal property valued at more than $300,000.
Green claims that Munson did not advise her to account for her activities, or keep her mother's assets separate from her own. That led to disputes between Green and her sister and brother, causing other litigation requiring more attorney fees, according to the suit.
Indianapolis attorney Lance Wonderlin, representing Green, said the assets should have been managed under a court-supervised estate. The suit claims Munson's advice was incorrect and constituted malpractice.
During an interview Wednesday, Munson disagreed with the complaint and said Green "was put through the wringer" by members of her own family.
"I have become a scapegoat for things that simply are not correct," said Munson, adding that the trust was properly organized and funded.
Ind. Courts - More on "Lawrence County Judge Found Dead In Home"
BEDFORD — The manner of Lawrence Circuit Court Judge Richard D. McIntyre’s death is “most consistent with self-induced,” according to the county coroner.Here is the obituary.
McIntyre, 51, Bedford, who has been Lawrence Circuit Court judge since 1988, was found unresponsive by his wife, Meredith, in the front seat of a 2007 GMC Yukon parked inside a detached garage at his home Tuesday evening.
“Judge Richard McIntyre’s cause of death is carbon monoxide poisoning,” Lawrence County Coroner John Sherrill stated in a formal statement issued this morning. “The manner of death is most consistent with self-induced.”
Sherrill declined to say how he reached that conclusion.
“Judge McIntyre’s death is a shock felt throughout the Indiana judiciary,” Indiana Supreme Court Chief Justice Randall T. Shepard said in an e-mail message sent to the Times-Mail Wednesday afternoon. “His integrity and energy made all the rest of us feel good about working in the courts. He lived in a way that offered an example to us all. Judges all around our state will keep Meredith and the McIntyre children in our prayers.”
What’s next. The Indiana Supreme Court will appoint a judge pro-tem to handle any pressing court matters in McIntyre’s court, said Supreme Court staff member Dave Remondini.
He expects that decision to be made soon, likely within the next week.
Lawrence Circuit Court is closed until Monday.
The judge pro-tem will hold the office until Gov. Mitch Daniels appoints someone to permanently fill the vacancy.
“It sort of varies (on how the pro-tem appointment is made),” Remondini said. “It depends on the size of the county and who is available and for how long the appointment might last. So if it’s, let’s say, only going to be a couple of days, in theory the court might appoint a judge from another court.”
Remondini said he was saddened to learn of McIntyre’s death. As a reporter for The Indianapolis Star, Remondini covered one of McIntyre’s campaigns for Congress. He specifically remembered a trip with McIntyre on a plane from Bedford to Evansville.
“Judge McIntyre has been a judge for a number of years, and was very well thought of,” Remondini said. “It was really shocking for us to get the news today, and we were just very saddened to learn about his passing. We’re just very concerned about his family.”
McIntyre was a member of the Indiana State Bar Association, Indiana Judges Association, Indiana National Guard, American Legion Gillen Post No. 33, F.O.P. and St. John’s Episcopal Church. He also was a State Judge Advocate and a former state representative.
He was appointed judge on Nov. 19, 1988, to complete the term of Linda Chezem, who resigned. He was elected to the bench in 1990 and re-elected in 1996 and 2002, each time running without opposition.
McIntyre is survived by his wife, Meredith McIntyre, of Bedford; two sons, Richard D. McIntyre Jr. of Vine Grove, Ky. and Robert David McIntyre of Richmond, Va.; one daughter, Emily Turner of Indianapolis; and one sister, Emily Hawkins of Bedford.
Arrangements. Visitation will be from 10 a.m. to 3 p.m. Friday in the Lawrence County Courthouse Rotunda and from 5 to 8 p.m. Friday at Ferguson-Lee Funeral Home.
Funeral services will begin at 10 a.m. Saturday in the Schafer Auditorium.
Ind. Courts - Still more on the property tax challenge in Tax Court
Updating this ILB entry from Oct. 26th, the Evansville Courier & Press and the Louisville Courier Journal sent their reporters to cover the oral arguments yesterday before Tax Court Judge Thomas G. Fisher in a suit challenging the property tax, but the Indianapolis Star apparently did not.
Bryan Corbin of the C&P reports:
INDIANAPOLIS — A group of homeowners and taxpayer groups are challenging the constitutionality of Indiana's property tax system, but whether they get to argue the merits of their case depends on its first clearing a procedural hurdle.Lesley Stedman Weidenbener of the LCJ reports:
The plaintiffs' attorney for the group of homeowners and taxpayer associations is asking Indiana Tax Court Judge Thomas G. Fisher to keep the lawsuit alive.
Attorneys for the state government, city of Indianapolis and Marion County are asking him to dismiss the case on procedural grounds. They contend the plaintiffs did not exhaust all the administrative remedies available to them before taking their case to court.
Wednesday, Fisher heard lengthy arguments on the government's motion to dismiss the case. He will issue a ruling within 10 days. If the judge decides to keep the lawsuit alive, then the plaintiffs plan to call witnesses at a hearing Nov. 16. * * *
The plaintiffs are asking Fisher to:
n Void the deadline extensions Gov. Mitch Daniels previously ordered that gave counties more time to adopt local-option income taxes to reduce their property taxes. The plaintiffs contend Daniels could not extend those deadlines administratively, that only the Legislature could.
n Overturn a recent 1.65 percent income tax increase in Indianapolis, because one of the Indianapolis City-County Council members who voted to adopt it should have been disqualified over his residency. That council member, Patrice Abduallah, later resigned.
The suit raises broader questions over the legality of statewide assessment methods and the use of tax abatement. It contends the current tax structure does not comply with the state constitution's requirement for a "uniform and equal rate of property assessment and taxation."
Fisher must decide whether to dismiss the case first.
Government attorneys Jon Laramore, Fred Biesecker and Andrew Swain argued the plaintiffs filed the constitutional challenge without trying to resolve their dispute by appealing to state agencies first. They contended the Indiana Tax Court does not have jurisdiction to hear the case, at least not yet.
Price, the plaintiffs' attorney, countered the constitutional issues are too broad to be decided by local tax boards or state agencies.
Attorneys representing the state asked a judge yesterday to dismiss a lawsuit challenging the constitutionality of Indiana's property tax system, saying the plaintiffs must first pursue their claims through state and local agencies.
Attorney Jon Laramore told Judge Thomas Fisher that state law requires residents to exhaust all administrative remedies -- such as appeals and petitions through agencies -- before they can come to the state tax court for help.
"Administrative agencies are fully capable of adjudicating complicated issues," Laramore said.
Attorney John Price, who represents the taxpayers as well as taxpayer groups from across the state, said, however, that those agencies don't have the authority to declare a law unconstitutional and are therefore not the correct venue for his clients' complaints. Requiring them to exhaust those remedies first would be expensive, time-consuming and foolish, he said. * * *
The arguments yesterday focused largely on Laramore's contention that Fisher doesn't have the authority to hear the case until the plaintiffs exhaust all their administrative options.
For example, he said, before the taxpayers can challenge the property tax system in court, they must first appeal their assessments to county boards and then to the Indiana Board of Tax Review. Only when that process is finished can they appeal to the tax court, Laramore said.
Also, he said, the taxpayers challenging an income tax increase in Marion County -- on the grounds that a deciding vote was cast by someone who shouldn't have been a member of the City-County Council -- should have first petitioned the Department of Revenue for relief.
The General Assembly set up those administrative remedies as first steps, Laramore said, because they allow for the settling of some claims without coming to court.
But Price said state agencies can only decide whether an assessment or a tax rate comports with state law. Overturning state laws as unconstitutional is only for a court to decide, he said.