Monday, December 31, 2007
Ind. Decisions - Court of Appeals issues 9 today (and 29 NFP)
Additional summaries may follow
For publication opinions today (9):
James and Lisa Deaton v. Justin Robison and Knight Rifles, Inc. - "That evidence shows that Knight reasonably believed that Robison would realize the danger of unloading the rifle while pointing it at someone, regardless of whether one or both safeties were engaged. Thus, we conclude that Knight is not liable for failure to warn. The trial court did not err when it entered judgment on the evidence on this issue."
Thomas Keller and Shirley Rohrs v. Daniel Keller - "Defendants-Appellants Thomas Keller (“Tom”) and Shirley Rohrs (“Shirley”) appeal the trial court’s order finding that the family farm (“the Farm”) could not be partitioned and should be sold at a public auction. We affirm."
Debbie Pflederer v. Kesslerwood Lake Association, Inc. - "Case Summary: Debbie Pflederer, as personal representative of the estate of her brother, Douglas Schmidt, appeals from the denial of Schmidt’s motion to correct error following the denial of his motion for attorney’s fees and costs pursuant to Indiana Trial Rule 65(C). We reverse and remand for a hearing to determine the amount of fees and costs to which Schmidt is entitled for defending against a wrongfully issued injunction.
"Issue: Was Schmidt’s Trial Rule 65(C) motion properly before the trial court?"
American Family Mutual Insurance v. Louis and Susan Matusiak - [ILB - Unbeknownst to the parties, hail damaged the house's roof after the home inspection and before the closing.]
"At some point in September of 2005, the Martins noticed that several of their neighbors were having their roofs replaced and soon learned that their roof had sustained hail damage as well. The Martins contacted the Matusiaks regarding the roof, and received assurances that the Matusiaks would file a claim with their insurance company and pay the $1000 deductible required by the policy. The Martins subsequently received two estimates for the repair of the roof, one for $7834 and the other for $8643. In the end, American Family denied the Matusiaks’ claim, on the basis, inter alia, that they had suffered no loss resulting from the hail storm."
NFP civil opinions today (9):
NFP criminal opinions today (20):
Law - Does anyone else find this off-putting?
On Dec. 14, 2007, I received a letter from LexisNexis headed "Martindale-Hubbell Institutes a Peer Review Ratings Administration Fee." About half-way into the letter about its "database of rated lawyers," the letter announces:
In order to provide this same level of service to the Bar, we have found that it is necessary to institute an annual nominal administration fee to cover these costs. The $50 administration fee will be billed annually to all our rated lawyers. * * *"Say what?" I asked myself. After more than 30 years M-H is hoping to charge me $50 a year for my AV rating? And they seem to be trying to catch this on the downslide, I reflected to myself -- there are many more ways to find out about lawyers nowadays than there ever have been in the past. Why do they think I am going to pay them $50 a year? I filed the letter away.
This administration fee has no impact in the actual rating received by a lawyer. Martindale-Hubbell Peer Review Ratings are established by lawyers. The legal community respects the accuracy of a rating because it knows that its own members are directly involved in the process. Martindale-Hubbell facilitates this process and does not determine the actual attorney rating.
We have provided you with easy payment options.
Today, Dec. 31st, 2007, I received another letter from LexisNexis, this one headed "Martindale-Hubbell Peer Review Ratings Administration Fee -- 2nd Notice." This one, which is less pleasant that the first letter, begins:
Dear Marcia J. OddiConclusion? The M-H list in the future will no longer be a comprehensive list of rated lawyers, but a less useful list of those lawyers who are rated and who have elected to pay a minimum of $50 a year to LexisNexis for the privilege of having their rating published by M-H.
We recently notified you of an annual $50 administration fee associated with the maintenance and upkeep of your Martindale-Hubbell Peer Review Ratings listing displayed throughout the Martindale-Hubbell Legal Network. While we assume this nominal fee remains unpaid through an oversight, you should know that if it is not paid by 1/11/08, your rating will no longer be displayed in our online and print resources, This would not eliminate your coveted rating; however, it would exclude your rating from being seen by over 1 million visitors that reference Martindale-Hubbell when evaluating and selecting a legal resource.
[ILB - emphasis added]
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This Thursday, Jan.. 3rd:
9:00 AM - Tonda Nichols v. Rex Minnick - In this action by a seller to recover a commission she had paid to a broker, the trial court entered judgment for the broker. The Court of Appeals affirmed in an unpublished memorandum decision, holding the broker's failure to disclose to the seller that he lent money to the buyer to complete the transaction was not a serious breach of his duty to the seller. Nichols v. Minnick, 53A01-0606-CV-268 (Ind. Ct. App. April 13, 2007), vacated. [See ILB entry here - 5th case] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorneys for Nichols; William Jenner and Darrell Auxier both of Madison, IN. Attorney for Minnick; Robert Price of Bloomington, IN.
9:45 AM - Dawn E. McDowell v. State - Over McDowell's objection, the Howard Circuit Court gave a jury instruction regarding intent to kill. The jury found McDowell guilty of voluntary manslaughter, and she was sentenced to forty years. The Court of Appeals affirmed the conviction and sentence in McDowell v. State, 872 N.E.2d 689 (Ind. Ct. App. Aug. 31, 2007), vacated. [See ILB entry here - 5th case] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorneys for McDowell: Brent R. Dechert, Kokomo, IN. Attorney for State: Justin F. Roebel, 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:
Ind. Courts - "Lake Judges, lawyers look to improve system's efficiency"
Bill Dolan writes today in the NWI Times:
CROWN POINT | Lake County judges and lawyers are discussing ways to make local courts more efficient, thorough and less time-consuming before efficiency is thrust upon them by downstate officials.
"Committees of judges and attorneys are meeting to discuss what we do good and what we can do better," said Michael Pagano, a Lake Superior Court magistrate and president of the Lake County Bar Association. "It's something we have to do if we want to be masters of our own fate."
Pagano said court officials have little taste for suggestions to shrink or centralize the county's system of 27 criminal, civil, juvenile, family and municipal courts. But all officials know better efficiency is needed, he said.
State and county records indicate it costs the public more than $24 million to operate all county courts annually.
The National Center for State Courts of Williamsburg, Va., said in a study a year ago the courts' overlapping jurisdictions result in confusion and duplication of public cost.
It suggested abolishing city and town courts in Crown Point, Gary, Hammond, East Chicago, Hobart, Lake Station, Lowell, Merrillville, Schererville and Whiting and creating a centralized county court system.
The center's plan would create a chief judge with the power to move other judges and court personnel to wherever they are needed. Currently, judges remain in specific courts through their careers. The study states that system is too inflexible and results in unfair caseload burdens. * * *
The bar held an all-day seminar this fall on the topic and surveyed 124 judges and attorneys who participated.
Three out of four are opposed to abolishing city and town courts, and more than half are opposed to consolidating city and town courts into the Superior/Circuit Court system.
Some 56 of the participants said they favored closing the less frequently used Superior Courts in Gary, Hammond and East Chicago. More than half favored creating specialized courts for the collection of bad debt and the resolution of inheritance, child support and custody disputes.
Sunday, December 30, 2007
Ind. Gov't. - Still more on: Lake County printing contracts questioned
CROWN POINT -- Lake County officials are investigating whether two bidders for government printing contracts illegally joined forces in an effort to freeze out a third company vying for the work.
County Prosecutor Bernard Carter said Thursday he had been notified of allegations that Hammond printing companies A-1 Union Graphics and Sheffield Press Printers & Lithographers had colluded in their bids for 2007 contracts.
"Right now the information we have is incomplete," Carter said. "The situation definitely deserves further investigation. We have been in contact with the Attorney General's Office to determine which agency will proceed with that investigation."
Officials from A-1 and Sheffield could face civil or criminal charges if it is determined they violated Lake County's non-collusion agreement, Carter said.
Between them, Sheffield and A-1 won three classes of printing contracts in 2007, deals worth a total of $140,795.
In each case, they underbid Haywood Graphics of Lafayette.
This fall, Haywood officials presented the county copies of the bid packets submitted by A-1 and Sheffield last year.
It appears the same person filled out each bid, according to county attorney John Dull.
"If the same person filled out the Form 5 for A1 Union Graphics and for Sheffield, then there was collusion," Dull wrote in a letter to company officials.
The A-1 and Sheffield bids were also notarized on the same date, by the same Illinois notary. * * *
The printing bids have been contentious in recent years.
In late 2005, Shonk complained the county's bid proposals were obsolete, asking bidders to estimate costs to print forms the county had not used in years.
Shonk argued the out-of-date proposals gave Haywood, which had won the printing contracts several years running, an unfair advantage, because Haywood officials could submit artificially low estimates for products they knew they would never be asked to produce.
County purchasing officials undertook an audit of all bid forms, and A-1 became much more competitive in winning printing contracts thereafter.
Saturday, December 29, 2007
Ind. Courts - "Four lawyers seeking two Clark judicial seats"
Larry Thomas reports today in the Clark/Floyd County News & Tribune in a story that begins:
Four candidates already have announced they will seek the judgeships in a pair of Clark County courts where judges are retiring at the end of next year.
Judge Cecile Blau had already started campaigning for a third six-year term in Clark Superior Court 2 when she surprised supporters in October by announcing that she was withdrawing her candidacy and would retire at the end of next year.
Clark Superior Court 3 Judge Steve Fleece, who has served on the bench since 1985, announced several years ago that he would not seek another term.
The old Clark County Court was created in 1976 and Fleece and Sam Gwin were the only judges to preside there. In 1995, the Indiana General Assembly elevated County Court to Superior Court 3.
Senior Judge Jerry Jacobi and attorneys Andrew Adams and Dan Moore all have announced that they are running for the seat Blau will vacate in Superior Court 2. Clarksville Town Court Judge Joe Weber is the only candidate to announce his intention to run for the seat Fleece is leaving.
The filing period for candidates begins Jan. 23 and concludes at noon Feb. 22.
Both retiring judges and all four candidates are Democrats.
Ind. Courts - "Carroll County judge charged with public intoxication"
The Lafayette Journal & Courier reported on Dec. 26th:
A misdemeanor charge of public intoxication was filed today against a Carroll County judge.A more comprehensive story appeared in yesterday's Lebanon Reporter, under the headline "Boone County officer arrests Carroll County judge: A Carroll County judge had his initial hearing for public intoxication Wednesday." Drew Stone reports:
Judge Donald E. Currie of Carroll Circuit Court appeared for an initial hearing this afternoon in Boone Superior Court 2, where he is charged with a Class B misdemeanor, according to court staff.
A Boone County sheriff's deputy arrested Currie about 9:20 p.m. Sunday on Interstate 65 near Boone County Road 400 East. Further details of the arrest were not available today.
A Carroll County judge had his initial hearing for public intoxication Wednesday.A Letter to the Editor from Judge Currie appears in today's Journal & Courier:
Circuit court judge for Carroll County Donald E. Currie, 49, Delphi, is charged in Boone County for a Class B misdemeanor of public intoxication. His case is in Boone County Superior Court II.
According to his case file, Currie was arrested by the Boone County Sheriff’s Department Sunday evening.
BCSD Deputy Scott Rolston reported he was driving onto Interstate 65 northbound from Indiana 267 when he noticed a black Volkswagen parked on the shoulder of the ramp and a man behind the car, appearing to be vomiting over the guardrail.
Rolston approached Currie, who said he was sick.
Rolston reported that Currie carried a strong odor of alcohol, and had red and blood shot eyes and spoke with a slur.
When Rolston asked Currie how much he had to drink, the Carroll County judge reportedly replied, “Too much.” Rolston reported Currie went on to say he was driving from Indianapolis and pulled over because he realized he should not be driving and that he had been parked on I-65 for awhile.
Rolston reported he then tried to have Currie perform a field sobriety test, but Rolston said he was unable to see the pen Rolston was holding which he was using for a field of vision test. Rolston then retrieved his blood-alcohol test kit, but Currie refused to take it.
Currie was then placed under arrest for public intoxication and taken to Boone County Jail. It was reported that on the ride to jail, Currie asked if they could stop to get some coffee. Currie also reportedly asked to get some coffee so he could “sober up” once they arrived at the jail.
If Currie is found guilty on the misdemeanor charge, he could face up to 180 in prison and fines of $1,000. His bench trial is set for March 28, 2008.
Currie: I take full responsibilitySee this Dec. 18th ILB entry and the links re judges' arrests for drunken driving in Illinois and Marion County.
It is with regret and great embarrassment that I write this letter.
On Dec. 23 I was arrested for public intoxication in Boone County, Ind. It is an offense and conduct for which I take full responsibility. I offer no mitigation or extenuation.
There is no way to make it better or to make it go away; nor is there any reason to offer up any excuses. I made a big mistake, and for that, I am truly sorry. My conduct was shameful, and I am fully prepared to accept the consequences of my actions.
While I am embarrassed personally and professionally, I am most embarrassed and regret the pain and agony that I have brought upon my family. I also deeply regret that my conduct may reflect poorly on my community, a community that I have come to love, a community that deserves nothing but the best from those who serve it.
So, my one and only request is that any ill feelings and/or resentment be reserved for me, and me alone.
I hope and pray that this very hard lesson, one that I believe has purpose in my life, will make me a better, stronger and wiser person. I doubt that this will be the last error I make in this life, but I am confident that I will not repeat the same mistake.
Again, I am truly sorry for my behavior.
Judge Don Currie
Law - "Attorneys often avoid medical malpractice suits because California limits 'pain and suffering' awards to $250,000"
The caption under the photo or a doctor in surgical gear on today's LA Times front-page reads:
Once an advocate of the California medical malpractice law, Dave Stewart, an anesthesiologist, now opposes it. His 72-year-old mother died after a double knee-replacement surgery last April, he and his sisters decided to sue. But no one would take the case, saying it wasn't worth the money.From the lengthy story, reported by Daniel Costello:
Stewart and his two sisters decided to sue, and they approached two dozen lawyers. One after another declined to take the case, always for the same reason: It wasn't worth the money.
In 1975, California enacted legislation capping malpractice payments after an outcry from doctors and insurers that oversized awards and skyrocketing insurance rates were driving physicians out of the state.
The law limited the amount of money for "pain and suffering" -- usually the physical and emotional stress caused from an injury -- to $250,000. There is no limit on what patients can collect for loss of future wages or other expenses.
Over the years, it has been easy to quantify the effects of the law, known as the Medical Injury Compensation Reform Act, or MICRA. In the years since the law was enacted, malpractice premiums in California have risen by just a third of the national average, and doctors say the law now helps attract physicians to the state. Proponents also say it discourages frivolous lawsuits.
Thirty states have enacted similar legislation. Two Republican presidential candidates -- Mitt Romney and Rudolph W. Giuliani -- have recently endorsed the approach as a possible national model.
It's been harder to tally the law's costs. Critics say it is increasingly preventing victims and their families from getting their day in court, especially low-income workers, children and the elderly. Their reasoning: The cap on pain and suffering has never been raised nor tied to inflation.
Meanwhile, the costs of putting on trials are often paid by attorneys and continue to rise each year. That means those who rely mainly on pain and suffering awards -- typically people who didn't make much money at the time of their injury -- are increasingly unattractive to lawyers.
Several states have set their malpractice caps considerably higher than California's because of worries that they affected poorer patients the most. Some state courts have begun to examine the fairness of their malpractice laws, especially those not tied to inflation. California lawmakers have rarely reconsidered the state's malpractice legislation.
Yet a Times analysis of state court records, physician payment data and insurer financial records suggests that the cap is increasingly preventing families such as the Stewarts from getting their day in court. * * *
Some state courts have struck down malpractice caps that didn't rise over time. Last month, an Illinois circuit court judge ruled unconstitutional a 2005 state law that caps noneconomic damages in medical liability cases. The case is on appeal.
In 2006, a Louisiana appeals court ruled that its state malpractice cap, established in 1975, did not adequately compensate patients and needed to be raised to $1.6 million. The ruling was overturned this year by the state's Supreme Court.
Some families who succeed at trial in California are often surprised at how little money they see in the end.
Ind. Courts - And another mayorial election contest? It seems so
First it was Terre Haute. Then yesterday Muncie. Today it is Anderson, according to this report by Justin Schneider in the Herald Bulletin. Some quotes:
Opponents of Kris Ockomon have mounted a legal challenge to his eligibility as mayor just four days before he’s set to take office.
On Friday, a temporary restraining order and a request for permanent injunction were filed against Ockomon, challenging his eligibility as a candidate. Ockomon is scheduled to be sworn-in on Tuesday, but the Madison County courts will be closed until Jan. 2. * * *
Lisa Patton, director of public relations for Ockomon’s transition team, issued a statement Friday, on Ockomon’s behalf, concerning the challenge.
“Today’s attempt by some members of the outgoing administration to stop the inauguration of the city of Anderson’s new mayor is frivolous and embarrassing to the community,” the statement read.
“This is evident by Judge Anderson’s immediate decision to deny the attempt to file a last-minute court action before the inauguration. Mayor-elect Ockomon is competent he has met the necessary residency requirements and is fully eligible to serve as the mayor of Anderson.”
State Sen. Tim Lanane, D-District 25, who was appointed city attorney by Ockomon, agreed that the judge’s decision was correct.
“The court denied what I think is the most important part of the case, which is to prevent Kris from being sworn in next Tuesday,” Lanane said Friday. “The court ruled correctly in denying that temporary restraining order. It was a last-minute attempt to subvert the will of the people of the city of Anderson.”
Lanane said the injunction could not stop the swearing in and will be decided through the courts, should the plaintiffs elect to proceed.
The complaints, based on Ockomon’s residency, were brought by Carol Auker, Nick Vores, Doug Zook, Larry Davis and John Suko, identifying themselves as “registered voters.” Auker is a longtime member of the Republican party; Vores is the outgoing Anderson street commissioner; Zook is outgoing parks department superintendent; Davis is director of the Anderson Animal Shelter and reportedly, though no official word has been given, will be replaced by an Ockomon appointee; and Suko‘s wife, Gracie, is a Smith administration employee.
Ockomon’s residency was brought into question early and often during the election cycle that ended Nov. 6. The Anderson Police Department detective was living outside the city limits at 4669 Woodscliff Circle, but says he rented a house at 420 E. 36th St. in Anderson in order to meet eligibility requirements. Under code, a candidate for mayor must reside in the city at least one year prior to the election.
Ind. Gov't. - "Four lawyers will do city work for Jeffersonville"
Ben Zion Hershberg reports today in the Louisville Courier Journal:
In an effort to control the city's legal costs, Jeffersonville Mayor-elect Tom Galligan is appointing four lawyers to handle municipal business rather than rely primarily on the services of one city attorney.
"They will work as a team," Galligan said of his plans for the city's law department. Each lawyer will work from five to 15 hours a month on city business, he said. * * *
He said he hopes the new structure will save the city money. There have been high costs recently for what is supposed to be a part-time job. The city attorney also maintains a private practice.This year, for example, the city law department spent more than $90,000 for lawyers, including city attorney Les Merkley, who has a $45,000-a-year base salary. The city also has paid $32,000 for the law department's paralegal.
The four lawyers who will make up the new law department will be paid $100 per hour. They're expected to provide their own secretaries and offices. * * *
If one of the lawyers needs extra hours for city work, he must get approval from a three-member litigation committee to be appointed by Galligan. If all of a lawyer's hours aren't used in a month, the unused time will be added to what's available the next month.
Galligan said the lawyers' work will be coordinated in periodic meetings he will have with them.
Friday, December 28, 2007
Ind. Decisions - Transfer list for week ending December 28, 2007
Here is the Indiana Supreme Court's transfer list for the week ending December 28, 2007.
There were no transfers granted this week.
Nearing four years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
Ind. Decisions - Court of Appeals issues 13 today (and 21 NFP)
Additional summaries may follow.
For publication opinions today (13):
In Paul McMurray v. Nationwide Mutual Insurance Co. , a 12-page opinion, Judge Mathias writes:
At issue in this appeal is whether “other insurance” clauses in the polices of both Nationwide and GuideOne Elite Insurance Company (“GuideOne”) are mutually repugnant, requiring each insurer to be liable for a prorated amount of the damages. We reverse and remand for proceedings consistent with this opinion. * * *In Mark White v. Carol White , an 11-page opinion, Judge Bailey writes:
If this court were to attempt to harmonize and give effect to both Nationwide’s escape clause and GuideOne’s excess liability clause, then McMurray would have no coverage under Nationwide’s policy and only excess liability under GuideOne’s policy.5 Indiana law is clear that when insurance coverage provisions are mutually repugnant, they should be ignored, and each insurer should be liable for a prorated amount of the resultant damage not to exceed its policy limits. Id. As in Indiana Ins. Co., Nationwide’s escape clause and GuideOne’s excess liability clause are irreconcilable. Therefore, the Lamb-Weston rule must be applied, and both clauses should be disregarded, making both GuideOne and Nationwide primarily liable on a prorated basis for McMurray’s proven damages at issue. Reversed and remanded for proceedings consistent with this opinion.
[ILB note: See footnote 5 on p. 12]
Case Summary: Appellant-Respondent Mark White (“Mark”) appeals the denial of his Motion to Correct Error, which challenged the denial of his motion to set aside an income withholding order for child support receivable by Appellee-Petitioner Carol White (“Carol”) and the State of Indiana. We reverse and remand.Pierre Fisher v. State of Indiana
Issue: Mark presents five issues for review, which we consolidate and restate as a single issue: whether he is entitled to equitable relief from a child support withholding order when clerical error caused claimed deductions in excess of that legally allowable. * * *
Neither the Guidelines nor statutory authority contemplate the tender of virtually all of one parent’s income as child support, regardless of the number of children.
Moreover, an income withholding order is not to be utilized to deprive an obligor of his or her means of self-support. * * *
Finally, the trial court’s determination that Mark knew he was ordered to pay $266.00 weekly is contrary to the evidence of record. Mark testified that he did not receive a copy of the wage withholding order. Carol testified that she never objected that she was receiving less than the court-ordered amount of child support. It defies logic to infer that had Mark known he was ordered to pay virtually all his disposable salary as child support, he would have merely acquiesced.
In light of the foregoing, the trial court is instructed on remand to correct the child support withholding order to reflect that the deduction was to be $266.00 bi-weekly (from the date of the order until modified on January 13, 2005), and to calculate the child support arrearage, if any, consistent with this opinion.
In Dreaded, Inc. v. St. Paul Guardian Insurance, et al , a 12-page opinion, Judge Kirsch writes:
Dreaded, Inc. (“Dreaded”) appeals the trial court’s grant of summary judgment in favor of St. Paul Guardian Insurance Company, St. Paul Protective Insurance Company, and St. Paul Fire and Marine Insurance Company (collectively “St. Paul”) holding that St. Paul is not liable for environmental cleanup defense costs incurred prior to receiving notice of potential liability. Dreaded contends that the trial court erred in holding that its delay in notifying St. Paul of its claim was a material breach of Dreaded’s comprehensive general liability policy (“policy”) with St. Paul. Dreaded raises two issues, which we consolidate and restate as: whether the trial court erred in entering summary judgment finding that Dreaded cannot recover defense costs that it incurred prior to notifying St. Paul. Affirmed in part, reversed in part, and remanded for further proceedings.Travis Marlett v. State of Indiana
Heather Parmeter v. Cass Co. Dept. of Child Services - "However, we conclude that the trial court’s findings do not support the judgment. In support of the CHINS determinations, the trial court listed only one fact-specific finding, namely, the court’s observation of Mother’s expert witness as he viewed a video tape of Mother “hysterically” questioning the children and referring to Father as a “bad daddy.” That factual finding, without more, is insufficient to support the CHINS determinations. Thus, we remand for the trial court to make proper findings and conclusions in support of its judgment."
In Filter Specialists, Inc. v. Dawn Brooks, Charmaine Weathers, and Michigan City Human Rights Commission , a 55-page, 2-1 opinion (including a 16-page dissent by Judge Vaidik beginning on p. 40), Judge Robb writes:
Filter Specialists, Inc., appeals from the trial court’s order affirming the decision of the Michigan City Human Rights Commission (the “Commission”), which found Filter took adverse employment action against two employees, Dawn Brooks and Charmaine Weathers (referred to collectively as the “Employees”), based on their race.1 Filter raises five issues, which we restate as: (1) whether Filter was subject to the Commission’s jurisdiction; (2) whether the Commission’s decision cannot stand based on the Employees’ failure to introduce the local ordinance proscribing racial discrimination by employers; (3) whether the trial court abused its discretion in granting the Commission’s motion to be joined as a party; (4) whether sufficient evidence supports the Commission’s decision; and (5) whether the evidence supports the Commission’s award of back pay. We conclude Filter has waived its jurisdictional argument, the Employee’s failure to introduce the applicable ordinance is not fatal, and the trial court properly joined the Commission as a party. However, concluding the Commission’s decision was not supported by sufficient evidence, we reverse. * * *In The State Group Industrial (USA) Unlimited v. Murphy & Associates Industrial Services , a 12-page opinion, Judge Robb writes:
We conclude that Filter was subject to the Commission’s jurisdiction and that the Employees’ failure to introduce the local ordinance into evidence is not fatal, as we take judicial notice of it at this time. We further conclude that the trial court properly joined the Commission. Finally, we reverse, concluding that the Commission’s decision was not supported by substantial evidence.
BRADFORD, J., concurs.
VAIDIK, J., dissents with opinion. [which begins] I respectfully dissent from the majority’s decision to reverse the trial court’s order affirming the Michigan City Human Rights Commission’s (“Commission”) determination that Filter Specialists, Inc. (“Filter”) unlawfully terminated the employments of Dawn Brooks (“Brooks”) and Charmaine Weathers (“Weathers”). I disagree with the majority’s conclusion that the Commission’s decision was not supported by sufficient evidence, and I believe that the majority’s burden-shifting analysis requires clarification. In addition, I write to express my position on one preliminary matter addressed by the majority. Specifically, I believe that the majority’s resolution of Filter’s challenge to the Commission’s recognition of local law, while reaching the correct result, is problematic.
The State Group Industrial (USA) Limited (“State Group”) appeals from the trial court’s judgment awarding State Group actual damages but denying State Group’s request for relief under Indiana Code section 34-24-3-1. State Group raises the sole issue of whether the trial court improperly denied it relief under this statute based on a contract provision. Concluding the Contract does not proscribe the relief sought by State Group, we remand with instructions that the trial court determine whether and to what extent damages under this statute are warranted. * * *In In the Matter of the Adoption of Z.D., an 8-page opinion concerning grandparent visitation, Judge Mathias writes:
Recovery under the Crime Victims Statute is not based on a breach of contract, but must be predicated on an independent tort. * * *
The indemnification clause in this case lacks the requisite specificity, as it in no way refers to criminal or fraudulent conduct on the part of M&A. In this sense, it “contains no clear statement that would give [State Group] notice of the harsh burden that complete indemnification imposes.” Exide Corp. v. Millwright Riggers, Inc., 727 N.E.2d 473, 480 (Ind. Ct. App. 2000), trans. denied. We hold that the Contract did not protect M&A from liability under the Crime Victims Statute stemming from M&A’s intentional misrepresentations.
Conclusion: We conclude that the Contract did not explicitly protect M&A from liability for damages stemming from its own fraudulent representations. Having found that the Contract did not preclude damages under the Crime Victims Statute, we remand to the trial court with instructions that it exercise its discretion in determining whether to award damages and the amount of any damages.6 See MCS LaserTec, Inc. v. Kaminski, 829 N.E.2d 29, 35 (Ind. Ct. App. 2005) (“[T]he award of damages above the actual damages is within the discretion of the trial court.”). 5 Even in the absence of a specific and explicit indemnification statement, we have upheld release clauses where the damages “are inherent in the nature of the activity.” Anderson v. Four Seasons Equestrian Ctr., Inc., 852 N.E.2d 576, 585 (Ind. Ct. App. 2006), trans. denied. We are not willing to hold that the risk that a party to a contract will commit the crime of deception is inherent in the nature of business transactions. 6 As the trial court has already heard all the relevant evidence, the trial court should make this determination without holding any additional hearings.
Karen Dawson (“Dawson”) filed a petition to adopt her grandchild, Z.D., in Benton Circuit Court. Before her petition was adjudicated, the Tippecanoe Circuit Court granted Z.D.’s foster parent’s adoption petition. Dawson then filed a motion to correct error and a petition to intervene in the Tippecanoe Circuit Court, but her motions were denied. Dawson appeals and argues that the Benton Circuit Court had exclusive jurisdiction over the adoption of Z.D., and therefore, the Tippecanoe Circuit Court’s decree of adoption is void. We affirm. * * *Jeffrey Douglas v. State of Indiana
From the record before us, it appears that the TCDFC was acting in Z.D.’s best interests when it refused to consent to the adoption of Z.D. by Dawson. Dawson’s son and Z.D.’s father is a convicted child molester whose parental rights have been terminated, yet Dawson indicated that she would allow her son to maintain contact with Z.D. Appellant’s App. pp. 43-44, 47. For this reason, the Benton County Department of Child Services also opposed Dawson’s petition to adopt Z.D. Appellant’s App. p. 51.
We find further support for our conclusion in the following well-settled principles of Indiana law. Grandparent visitation rights survive the adoption of the child by a stepparent or a “person who is biologically related to the child as” a grandparent, a sibling, an aunt or uncle, or a niece or nephew. Ind. Code § 31-17-5-9 (1998). However, “[i]f a person not included in this list adopts a grandchild, the grandparent no longer has a right to seek visitation.” In re Guardianship of J.E.M., 870 N.E.2d 517, 521 (Ind. Ct. App. 2007). Therefore, Dawson no longer has a right to seek visitation with Z.D.
For all of these reasons, we conclude that Dawson was not entitled to notice of Z.D.’s foster parent’s adoption petition and the Tippecanoe Circuit Court properly denied Dawson’s motion to correct error and motion to intervene. Furthermore, the Benton Circuit Court did not err when it dismissed Dawson’s petition to adopt Z.D. Affirmed.
In Donald L. Garriott, et al v. Edward L. Peters, et al , a 20-page opinion, Judge Robb writes:
Case Summary and Issues: Donald, Larry, Mark, and Dennis Garriott appeal the trial court’s denial of their motion for summary judgment and its subsequent judgment following trial denying their claim for title by adverse possession and resolving a boundary dispute between them and Edward Peters and Patsy Christian (referred to collectively as “the Appellees”). The Garriotts raise four issues, but we need address only two: whether the trial court improperly denied the Garriotts’ motion for summary judgment and whether the trial court erred in finding that the Garriotts failed to prove the elements of their adverse possession claim. Although we conclude the trial court properly denied the Garriotts’ motion for summary judgment, we also conclude the trial court improperly found that the Garriotts failed to establish title by adverse possession. We therefore reverse. * * *NFP civil opinions today (9):
Conclusion: Although we conclude the trial court properly denied the Garriotts’ motion for summary judgment, we also conclude that the trial court’s judgment following trial was clearly erroneous. Reversed.
NFP criminal opinions today (12):
Ind. Decisions - "The Pros and Perils of Pro Se"
Remember this ILB entry from Dec. 24th? "Dress code suit costs couple $40,931.50: Anderson plaintiffs' predicament illustrates the risks of being your own lawyer"
The ruling by Judge Tinder, and the discussion of it -- including the ILB's contributions -- are highlighted in this just-posted WSJ Law Blog entry today, headed "Open Thread — the Pros and Perils of Pro Se." It will be interesting to follow the blog readers' comments.
Ind. Courts - Another mayorial election contest? It seems so
The Muncie Star-Press reports today, in a story by Douglas Walker, that "It's not over." Some quotes:
Democratic mayoral nominee James Mansfield announced late Thursday afternoon he was filing a petition seeking a "special election" in Muncie's Precinct 46, where a recount commission last week disallowed 19 ballots, making Republican Sharon McShurley the next mayor.Indianapolis attorney Bill Groth, who represents the plaintiffs in the voter ID suit to be argued before the SCOTUS in early January, and who begins his note to the ILB this morning by disclosing "I have provided informal assistance to the attorneys representing Mansfield", has sent the following:
The recount commission had discovered 19 absentee ballot cards in Precinct 46 that were not endorsed with the initials of both a Republican and a Democratic election worker, as required by Indiana law. The ballots were missing the Republican initials.
The three-member recount commission on Dec. 20 officially certified McShurley as the winner in the Muncie mayoral race, reversing earlier results that had Mansfield winning by nine (and later 11) votes. * * *
Mans-field said the special election he's calling for -- only involving registered voters in Precinct 46 -- would be conducted at the former Claypool Elementary School, the eastside precinct's usual polling place.
"The voters in Precinct 46 exercised their constitutional rights to cast a ballot in this election only to be disenfranchised by the commission based on an error made by a Republican appointee in the Republican controlled county clerk's office," the Democrat said in the press release. "All voters in Precinct 46 deserve to have their votes counted."
The really interesting aspect of this from a lawyer’s perspective is whether the contest petition will be considered timely, since it clearly was filed outside the statutory time limits. On the other hand, Mansfield had no reason or grounds to file a contest after the election since he was 11 votes ahead and was certified by the clerk to be the winner. It wasn’t until the recount had been completed last week that his Republican opponent was declared the winner, based entirely on the disallowance of some 19 absentee ballots due to the missing initial, and only then did he learn of the problems with the absentee ballots from one precinct.
One of the arguments Mansfield’s attorneys will likely make is that the Court has jurisdiction under these circumstances to decide the issues raised by the contest petition, notwithstanding its facial untimeliness, based on equitable principles. The Supreme Court held in Pabey v. Pastrick that the time limits in the election contest and recount statutes can be extended under unusual or extraordinary circumstances, and it will be interesting to see if the court buys into that argument and finds that it has jurisdiction. This is a case that could well be on its way to our supreme court.
Ind. Decisions - 7th Circuit issues one Indiana decision today
In U.S. v. Fernando Figueroa-Espana (SD Ind., Judge Hamilton), a 15-page opinion, Judge Bauer writes:
After the district court denied his motion to suppress evidence, Fernando Figueroa- Espana pleaded guilty to one count of possession with intent to distribute five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii). He reserved the right to appeal the district court’s denial of his motion to suppress and his sentence. For the following reasons, we affirm. * * *
Figueroa-Espana argues that the district court (1) erred in denying his motion to suppress evidence uncovered after an unconstitutional search; and (2) improperly considered the fact that he made a motion to suppress in calculating his sentence. We address these issues in turn.
Ind. Courts - Fulton Circuit Court Judge Morton to retire
The ILB has received word that Judge Douglas B. Morton has announced today that he will retire at the end of 2008. Morton has been judge of the Fulton Circuit Court since 1978.
Environment - More on "Randolph County could zone 220,000 acres for CAFOs"
WINCHESTER -- The Area Planning Commission approved a controversial ordinance Thursday night to allow concentrated animal feeding operations (CAFOs) in a new intensive agricultural district covering about 220,000 acres of Randolph County.
Last month, the commission spent more than two hours defending the proposed ordinance at a meeting attended by dozens of opponents living in rural areas.
The opponents, concerned about air and water pollution and loss of property values, accused the commission of "choosing pigs over people" and turning 75 percent of the 289,813-acre county into an industrial park for CAFOs.
On Thursday night, the meeting room at the Randolph Center for Family Opportunity quickly filled with 50 spectators, mostly opponents of the ordinance. About fifty others waiting in the hallway presented a petition asking for the meeting to be postponed because they couldn't hear the proceedings. * * *
Fred Luddington argued unsuccessfully to include odor-control "best management practices" in the ordinance. He then suggested that Randolph County just get rid of CAFOs, to which farmer Drew Cleveland responded, "We should get rid of gun shops, too."
Luddington owns a gun shop in Parker City.
Union City Mayor-elect Bryan Conklin convinced fellow commission members to increase the minimum distance between CAFOs and dwellings to 1,324 feet and distance between CAFOs and schools to a half-mile.
He was unsuccessful in convincing the commission to increase the distance between communities and CAFOs beyond the 1-mile limit set in the draft ordinance.
The proposed ordinance will be forwarded to county commissioners for final action.
Courts - "Ohio Supreme Court upholds cap on damages"
From a story by Kimball Perry in the Cincinnati Enquirer:
The Ohio Supreme Court upheld a state law Thursday that limits how much a person injured by a defective product can collect in pain-and-suffering damages - a nationally watched case that pitted an Anderson Township woman against a New Jersey drug company.
The law's authors said the case would help improve Ohio's reputation as a pro-business state.
But critics said the ruling would make it harder for ordinary Ohioans to hold big companies accountable. * * *
The majority opinion in the 5-2 ruling, written by Chief Justice Thomas J. Moyer, said the Ohio law as revised did not violate the constitutional rights of injured parties to trial by jury, to a remedy for their injuries or to due process and equal protection. * * *
[Plaintiff] challenged the law change in court, saying a jury - not Ohio lawmakers - should determine how much someone should be awarded for pain and suffering and that the law that caps the monetary damages violates Ohio's law allowing a jury to hear the case.
The court ruled that the law that caps those damages doesn't violate citizens' rights to have the issues decided by a jury.
Ohio's "General Assembly is responsible for weighing those concerns and making policy decisions; we are charged with evaluating the constitutionality of their choices," Chief Justice Thomas Moyer wrote in the opinion. * * *
The case is being watched throughout the country because Ohio's law change that caps the "pain and suffering" damages is being considered by other states. Some already have adopted caps.
The U.S. Chamber of Commerce, National Association of Manufacturers and the National Federation of Independent Business Legal Foundation joined in urging the court to uphold the law.
Groups urging the court to overturn it included the Ohio Academy of Trial Lawyers, the Ohio Conference of the National Association for the Advancement of Colored People and Mothers Against Drunk Driving. * * *
In his dissent, Justice Paul Pfeifer blasted the majority.
"If the damage cap of $250,000 is constitutional, why can't the General Assembly limit damages for claims they do not favor to $100,000? Or $1,000? Or $10?" Pfeifer wrote. "Under this court's reasoning, there is nothing in the Ohio Constitution to restrain the General Assembly from limiting noneconomic damages to $1."
Ind. Decisions - More on "Church’s admission of abuse not enough, accuser says"
Updating this ILB entry from Dec. 18th, which included this quote from a story by Robert King in the Indianapolis Star:
The scene today in Marion Superior Court could become increasingly common: the archdiocese squaring off in court against a former parishioner who claims the church knew the Rev. Harry Monroe was a danger to children but did nothing to spare them from harm.Today Jon Murray of the Star reports:
In addition to John Doe NM, 12 men who claim to have been abused by Monroe as boys have sued the archdiocese. Today, attorney Jay Mercer asked Judge David A. Shaheed to rule in favor of the archdiocese on the basis that the claim was filed too late. He said it should have been made by the time John Doe NM, now in his early 40s, turned 20.
Before making that case, Mercer did what the archdiocese had denied in its initial responses to the lawsuits — he acknowledged the former priest’s abuse. * * *
Today, [John Doe NM’s attorney, Pat Noaker] argued that the case should go forward because the six-year time limit on fraud cases should have begun ticking only after John Doe NM learned, in 2005, that the archdiocese knew of Monroe’s abusive tendencies before assigning him to St. Catherine’s Parish.
For the archdiocese to assign Monroe a position in a parish where he had free access to children, Noaker said, was akin to actively representing that Monroe was a person of good character and of no threat to children. That, he said, is the essence of fraud.
A judge has refused to throw out a lawsuit claiming the Archdiocese of Indianapolis covered up abuse by a former Catholic priest three decades ago.The ILB would be pleased to post a copy of Marion Superior Court Judge David A. Shaheed's Dec. 20th opinion, if someone is able to email or fax it to me.
The ruling by Marion Superior Court Judge David A. Shaheed means the suit could be the first of 13 against the archdiocese to move forward to trial. It alleges fraud, arguing the archdiocese knew of previous abuse by the Rev. Harry Monroe when it moved him in 1976 to St. Catherine's Parish in Indianapolis.
No one disputes that the plaintiff suffered abuse, Shaheed wrote. The former altar boy at the Southside parish is called John Doe NM in court documents.
His abuse-related claims have been withdrawn, since the statute of limitations ran out long ago. But the judge ruled Dec. 20 against the archdiocese's motion for summary judgment, which sought dismissal of the suit, writing that the six-year statute of limitations on fraud began running only in 2005, when the plaintiff learned that the archdiocese had known of other abuse before Monroe's transfer.
"The court has recognized that placing a priest in a parish and giving him responsibility for kids is a representation that that priest is safe around children," said Pat Noaker, a St. Paul, Minn., attorney representing all 13 plaintiffs. "What we won is the right of the plaintiff to press his case." * * *
Noaker said 10 other cases involve similar fraud claims that could be affected favorably by Shaheed's ruling. The John Doe NM case is the first to survive a summary judgment challenge; no trial date is set, but Noaker anticipates going to trial by late 2008.
Thursday, December 27, 2007
Ind. Courts - Allen Circuit Court Hearing Officer Appointed
According to a release just received:
John D. Kitch III, has been appointed as the new Allen Circuit Court Hearing Officer, Circuit Court Judge Thomas J. Felts recently announced. Kitch will be taking over the duties presently being fulfilled by former Allen Circuit Court Judge Tom Ryan. Those duties include presiding over the Circuit Court’s IV-D child support enforcement cases. Kitch’s duties may also be expanded to include assisting with the Circuit Court’s criminal calendar, and the Court’s domestic relations calendar, as well. The appointment was made pursuant to I.C. 33-33-2-4(b), and is effective January 1, 2008.
When asked about his selection of Kitch, Judge Felts declared: “We were very fortunate to have several outstanding candidates for the position from which to choose. John’s experience, demeanor and commitment made him the best candidate. I expect great things from him.”
Kitch, age 34 was admitted to practice after graduating from law school at Valparaiso University in 1998. His undergraduate degree is from DePauw University. John was, a deputy prosecuting attorney in Marion County and Allen County, Indiana, from 1998-2005. Since 2006, he has been in private criminal defense practice with the Arata Law firm in Fort Wayne. Kitch was born in Fort Wayne, on April 11, 1973.
Judge Ryan is hanging up his gavel after 24 years on the full time bench. First appointed to the office in 1983, he decided not to seek reelection in 2002, paving the way for long time Circuit Court Magistrate Felts to become his successor. Judge Ryan will continue to serve in the capacity of Senior Judge.
Law - "Documents of Library in Boston to Go on Web"
John Markoff reports today in the NY Times:
The historical record of the United States government will soon be more accessible.ILB readers may recall an entry from Aug. 20th, quoting from another John Markoff NYT article titled "A Quest to Get More Court Rulings Online, and Free."
A digital library partnership, including two nonprofit organizations and the Boston Public Library, is preparing to begin making digital copies of the library’s paper-based government documents collection, which will then be made available on the Internet.
The project, which will take two years and require the hand scanning of millions of pages of government hearings and related publications, will cost an estimated $6 million, according to the project’s sponsors.
Boston Public Library librarians said they planned to begin by digitizing the House Committee on Un-American Activities hearings from the 1950s, which is regularly sought after by its patrons.
The project is being undertaken by Public.Resource.Org, a nonprofit group seeking to open public access to government records, and the Internet Archive, a San Francisco-based digital library.
The project is the brainchild of founders of the two organizations, Carl Malamud and Brewster Kahle, and it is initially being financed by a $250,000 grant from a foundation established by Mr. Kahle and his wife, Mary Austin, and a matching grant from the Omidyar Network, a support organization created by Pierre Omidyar, the founder of eBay.
Mr. Malamud said his goal is to digitize the entire United States government documents collection, which has been estimated to include up to 100 million pages of publications ranging from the Congressional Record to the Federal Register. * * *
This summer Mr. Malamud embarked on a separate effort to digitize all federal case law, and he said he was now negotiating with two private companies to purchase existing digital collections, which would drastically shorten the time required for the undertaking.
He had originally planned to use optical character recognition equipment to collect the data, which is now made available from private companies for a fee. The government documents scanning project might also be accelerated if a private online company agrees to sell data to the project, he said.
His motivation is to make the workings of the government more accessible at no cost: “This is society’s operating system,” he said.
Ind. Courts- More on "Greene County Prosecutor Jarrod Holtsclaw has initiated a ‘no refusal’ blood test program"
Thanks to Morgan County Chief Deputy Prosecutor Bob Cline for sending this note in response to the ILB posting immediately below:
Morgan County and a lot of other prosecutor's offices have a blood draw search warrant program in place, where a refusal will result in a request for a search warrant for blood evidence. Ours was made possible by ICJI and is done by fax at this time.
Ind. Courts - "Greene County Prosecutor Jarrod Holtsclaw has initiated a ‘no refusal’ blood test program"
From an unattributed story in the Bloomfield Free Press:
BLOOMFIELD - In an effort to stem the tide of drunken drivers on the county’s highways over the New Year’s holiday weekend, Greene County Prosecutor Jarrod Holtsclaw has initiated a ‘no refusal’ blood test program.Here is the story from the Dec. 25th Greene County Daily World, reported by Anna Rochelle:
Last year, nine motorists were taken to jail between Dec. 29 and Jan. 1 as a result of drinking and driving.
According to Indiana law, a motorist who is suspected of driving while intoxicated may refuse to take any of the tests.
Doing so will result in a mandatory one-year suspension of all driving privileges - unless the driver has a prior drunken driving conviction, in which case the suspension is for a period of two years.
For a number of years, attorneys have advised their clients never to take the breath test - as it is another way for lawmen to gather evidence against suspected drunken drivers.
In a special program initiated by Holtsclaw and both judges in Greene County, a motorist will still be able to refuse the breath test, but they are still likely to be charged with the full boat of operating a vehicle while intoxicated charges - thanks to search warrants. [ILB emphasis]
“The purpose of this program is to reduce the number of impaired drivers during the holiday season, and therefore hopefully eliminate serious or fatal vehicle crashes that all too often occur after impaired motorists take to the roads in Greene County,” Holtsclaw said in a press release issued for release Wednesday morning.
Holtsclaw explained the program by saying that while a motorist may refuse the breath test - and take the automatic license suspension - if there is probable cause to suspect that they are drunk, his office will obtain a search warrant and the alleged offender must submit to a blood test for intoxication.
“Thus, in all OVWI investigations during the New Year’s holiday, officers will be collecting chemical evidence of motorists’ levels of impairment,” Holtsclaw said. “In addition, the mandatory license suspension still applies to any motorist who refused the offer of a chemical (breath) test, but is subject to a blood draw.”
Holtsclaw explained that it is not the intention of his office, or of any of the police departments participating in the ‘No Refusal’ program to simply increase the number of OVWI arrests over the New Year’s holiday.
“Though, that may occur,” he said. “Instead, it is to notify all those who operate vehicles on our roadways that law enforcement does take seriously the dangers posed by impaired drivers.”
He said that it is the hope of all the agencies involved that “citizens will take notice of this new program and avoid operating vehicles after consuming drugs or alcohol.”
Holtsclaw also said that he realizes that the holiday season is a time of great joy and celebration, “but there is simply no excuse for endangering the lives of others as a result of driving while impaired.”
“Find a designated driver, call a friend or family member for a ride, spend the night or have a party at home,” he said. “But, please don’t drive impaired this holiday season.”
A number of local law enforcement agencies will have extra patrols on during the New Year’s period - which runs from Dec. 29 through New Year’s Day.
All local law enforcers have agreed to participate in the program, including Bloomfield Police, Linton Police, Greene County Sheriff’s Department, Worthington Police, Lyons Police, Indiana State Police and Jasonville Police.
“I think Jarrod has a great idea,” said Bloomfield Town Marshal Ken Tharp. “And I’m impressed that the judges are supporting it.”
Under the "No Refusal" Program in effect from Saturday through New Year's Day, extra officers will be working the roads across Greene County looking for drivers who are operating vehicles while intoxicated or under the influence of other substances. Facts about the program, according to Greene County Prosecutor Jarrod Holtsclaw, are listed below.
No Refusal Program
Any motorist who exhibits signs of impairment will be stopped and transported to the Greene County Sheriff's Department for standardized field sobriety testing.
In those cases where there is probable cause to believe that the motorist has operated a vehicle while intoxicated, the motorist will be offered a chemical test to determine the amount of alcohol in the motorist's blood or breath pursuant to law.
For those motorists who exercise their right to refuse the offer of a chemical test, their driver's license shall be suspended for one year if they have no prior convictions for OVWI, or for two years if they do have a prior conviction for OVWI, pursuant to Indiana Code 9-30-6-9.
During the "No Refusal" program, in all cases where probable cause exists that a motorist operated a vehicle while intoxicated and the motorist refuses a chemical test, officers will request a search warrant from a judge for a sample of the motorist's blood for chemical analysis to determine the motorist's blood alcohol content.
Thus, in all OVWI investigations during the New Year's holiday, officers will be collecting chemical evidence of motorist's level of impairment.
In addition, the mandatory license suspension still applies to any motorist who refuses the offer of a chemical test but is subjected to a blood draw pursuant to a search warrant.
Ind. Courts - New honors for Don Lundberg and Mark Rutherford
From press releases issued today by the Indiana Courts:
Indiana Supreme Court Disciplinary Commission Executive Secretary Donald R. Lundberg, has been elected president of the National Organization of Bar Counsel and appointed to the editorial board of the ABA/BNA Lawyers’ Manual on Professional Conduct.When the releases are posted online,. the ILB will add links.
Mark W. Rutherford has been elected president of the Indiana Public Defender Commission. An attorney at Thrasher Buschmann Griffith & Voelkel, P.C. in Indianapolis, he is a graduate of Wabash College and the Valparaiso University School of Law.
Ind. Decisions - Court of Appeals issues 5 today (and 12 NFP)
For publication opinions today (5):
In Hopper Resources Inc., Construction Div. v. Wendell Webster , a 13-page opinion, Judge Darden writes:
Hopper Resources, Inc., Construction Division (“Hopper”), appeals the trial court’s order denying judgment to Hopper on its claim asserted against Wendell Webster in a complaint seeking the foreclosure of a mechanic’s lien and additional damages. We affirm.In Joyce Carlson, et al v. Ernest and Anita Warren , a 17-page opinion, Judge Vaidik writes:
Joyce Carlson (“Carlson”), the administrator of Noel Mangus’s (“Mangus”) estate, and Elizabeth Alderson (“Alderson”), Mangus’s sister, challenge Mangus’s inter vivos conveyance of his farmland to his caretakers, Ernest and Anita Warren (the “Warrens” or “Ernest” or “Anita,” respectively). We find that, by designating deposition testimony in support of their motion for summary judgment that relates to the deed transfer at issue in this case, Carlson and Alderson waived the applicability of Indiana Code § 34-45-2-4 (“Dead Man’s Statute”). Further, the Warrens’ attorney’s testimony regarding his preparation of the warranty deed in question was relevant to show that he executed the deed in conformity with his habit and was therefore admissible. Finally, we conclude that summary judgment in favor of the Warrens was appropriate because Carlson and Alderson failed to show that the Warrens and Mangus had a confidential relationship by operation of law and otherwise failed to meet their initial burdens of proof on their tort claims against the Warrens. We affirm.In In the Matter of L.H. v. State of Indiana , an 11-page, 2-1 opinion, Judge Robb writes:
L.H. was found by the juvenile court to have committed child molesting, a Class C felony if committed by an adult, and battery, a Class B misdemeanor if committed by an adult. L.H. appeals the true findings, contending that he was denied a fair trial when the juvenile court, at the State’s request and over his objection, incorporated testimony, evidence, and exhibits from a child hearsay hearing into the fact-finding hearing. Concluding that the juvenile court improperly incorporated the record of the child hearsay hearing, we reverse and remand. * * *In Jeannine Porod v. State of Indiana , a 5-page opinion, Judge Najam writes:
BARNES, J., concurs.
KIRSCH, J., dissents with separate opinion. [which begins] I believe that L.H. has failed to show prejudice resulting from the trial court’s incorporation of the evidence from the child hearsay hearing into the fact-finding hearing. In the absence of such prejudice, I believe that the trial court acted within its discretion, and, accordingly, I respectfully dissent.
Jeannine Porod appeals her conviction for Acquiring Possession of a Legend Drug by Fraud, a Class D felony, following a jury trial. She presents a single issue for our review, namely, whether the State presented sufficient evidence to support her conviction. We affirm. * * *In Bryon Uylaki v. Town of Griffith, et al , a 6-page opinion, Judge Bradford writes:
Porod’s sole contention on appeal is that the State did not present sufficient evidence to prove that Ritalin is a legend drug as defined by statute. * * *
[ILB - The Court cites the definition of legend drug in IC 16-18-2-199, which includes a drug "(2) listed in the Prescription Drug List as: (A) *** Tenth Edition, (1990); and (B) revised in * * * Cumulative Supplement to the Tenth Edition, Number 10 (1990)."]
The publication referred to in subsection (2) is commonly known as the “Orange Book.” The list of drugs contained in the Orange Book includes Ritalin.
During trial, the State presented testimony that Ritalin is a legend drug, but the State did not introduce into evidence the Orange Book or a copy of 21 U.S.C. § 353(b)(1). On appeal, Porod argues that had the State “provided the judge with a copy of I.C. 16-18-2-199 and 21 U.S.C. [§] 353(b)[,]” that would have been sufficient to prove the legend drug element. Brief of Appellant at 8. In the alternative, Porod contends, the State “could have produced, and requested the judge take judicial notice of, [the Orange Book].” Id. But, Porod asserts, because the State did not pursue either manner of proof during trial, the evidence is insufficient to support her conviction. We cannot agree. * * *
Here, the statute defining “legend drug” incorporates by reference 21 U.S.C. § 353(b)(1), which does not include a list of drugs, and the Orange Book, which expressly includes Ritalin in its list of drugs. While not a statute, the Orange Book is promulgated by a federal agency, and we hold that the statute properly incorporates the Orange Book by reference. Because of that incorporation, Ritalin is, as a matter of law, specifically listed as a legend drug under Indiana Code Section 16-1-8-2-199. See White, 316 N.E.2d at 704. Accordingly, here, the trial court need only refer to the statutory definition and determine that Ritalin is a legend drug as a matter of law. See id. at 702; Barnett, 579 N.E.2d at 86. The State presented sufficient evidence to support Porod’s conviction.
[ILB note: Some questions remain for the ILB. IC 16-18-2-199 was enacted in 1993 and has not been amended since. It incorporated the 1990 (10th) edition of the Prescription Drug Product List. A general rule is that a statute cannot incorporate by reference a law or rule of another jurisdiction as it may be amended in the future, it must identify a specific version. So questions unanswered for the ILB because the evidence was not introduced at trial include (1) is Ritalin listed in the 1990 edition? (2) does Ritalin have more than one formulation? (3) where is it stated that the "Orange Book" is the equivalent of the 1990 Prescription Drug Product List?
Appellant-plaintiff Bryon Uylaki appeals from the trial court’s dismissal of his wrongful termination claim against appellees-defendants the Town of Griffith, Town Councilmen of Griffith, the Department of Public Works, and the Chief Executive Officer, political subdivision of Indiana (collectively, “the Town”). We affirm. * * *NFP civil opinions today (5):
We believe that Uylaki had a fair opportunity to fully litigate the issues, even if he may not have fully exploited that opportunity. We conclude that administrative collateral estoppel applies, and the trial court, therefore, correctly dismissed Uylaki’s claim.
In Mainsource Bank v. Calvin E. Brenneman, Leo N. Stenz, et al (NFP), a 7-page opinion, Senior Judge Barteau writes:
The sole issue presented for our review in this appeal is whether the trial court erred by entering summary judgment in this cause of action involving liability on personal guaranties for a business loan. * * *Invol. Term. of Parent-Child Rel. of A.P., M.P., and S.P., and Mary Palmero v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. (NFP) - Similar to yesterday's ruling out of the same court, Judge Sharpnack remands this ruling of a magistrate to Marion Superior Court Judge Moores on the basis that: "Because the record does not establish judicial approval of the magistrate’s findings in this case, we remand to the juvenile court for its consideration and further action consistent with this opinion. We retain jurisdiction of this appeal pending action by the juvenile court."
The trial court erred by granting the Appellees’ motion for summary judgment. A genuine issue of material fact exists regarding Unger’s authority to sign for some or all of the Appellees. Resolution of those conflicting facts bears directly on the issue of the validity of the personal guaranties. Therefore, we remand this matter to the trial court for further proceedings consistent with this opinion. Reversed and remanded.
William R. Pinner v. Patrick S. Skidmore and American Family Insurance Co. (NFP) - Citing IC 34-9-3-3 and Trial Rule 25(A)(1), Judge Sharpnack writes:
Thus, for Pinner to continue his action against Skidmore after Skidmore passed away, Pinner, the court, or Skidmore’s counsel had to move to substitute Skidmore’s personal representatives. Because neither the court, nor the parties, including Pinner, moved to substitute Skidmore’s personal representative, Pinner could not continue his action against Skidmore. Thus, we cannot say that the trial court erred when it dismissed Pinner’s case. See McCalment v. Eli Lilly & Co., 860 N.E.2d 884, 896 (Ind. Ct. App. 2007) (concluding that the trial court did not err by granting defendant’s motion to dismiss). For the foregoing reasons, we affirm the trial court’s grant of Skidmore’s motion to dismiss. Affirmed.Mark S. Priest v. Denise Priest (NFP) - "The appeal by Mark Priest is hereby dismissed and the judgment of the trial court is in all respects affirmed."
Christina M. Graham v. Terry A. Graham (NFP) - "STATEMENT OF THE CASE. Christina M. Graham (“Mother”) appeals the trial court’s granting of the motion to correct error filed by Terry A. Graham (“Father”). We reverse and remand.
"ISSUE. Whether the trial court abused its discretion in granting Father’s motion to correct error."
NFP criminal opinions today (7):
Ind. Courts - "Angie's List is suing a rival over unfair use of its well-known logo"
From this Indianapolis Star story by Tom Spalding:
Angie's List, well known for its cartoon-character logo of a servicewoman giving a thumbs-up, is giving a thumbs-down to a publishing rival.The ILB has obtained and posted a copy of the 17-page complaint, dated and filed Dec. 19, 2007.
Brownstone Publishing, parent company of the Indianapolis-based online directory of local businesses, filed a trademark infringement lawsuit against Ameritech Publishing, alleging Ameritech violated the Angie's List copyright.
The suit was filed Dec. 10 [ILB- sic.] in U.S. District Court for the Southern District of Indiana.
Brownstone alleges Ameritech published Angie's List ratings in the yellow-page telephone directory listings of the businesses.
Angie's List calls its five logos "service marks" - which include the servicewoman giving a thumbs-up.
Angie's List executives say that in the first half of 2007, they repeatedly brought to Ameritech's attention that a version of its logos appeared in ads for companies that do gutter repair, glass installation and plumbing.
"Ameritech assured plaintiff that it would cease," the lawsuit states. "However, these promises were mere lip service. In fact ... when Ameritech released its 2007-08 Yellow Pages ... it continued to infringe."
Among the remedies requested, on p. 16:
#3 That Ameritech be required to deliver to Plaintiff proof of destruction or all Yellow Pages directories possessed, used or distributed by Ameritech, or on their behalf, which refer to or are at all similar to Plaintiff's Marks;
#4. That Ameritech be required to account to Plaintiff for any and all profits gained by Ameritech through the conduct complained of herein and to pay all such profits over to Plaintiff.
Ind. Decisions - "Court says registry violated offender's constitutional rights"
The Indiana Court of Appeals 2-1 opinion yesterday in Todd L. Jensen v. State of Indiana (See ILB entry immediately below, or check here) is the subject of an AP story published by a number of papers today. Some quotes:
A legal change that forced a convicted sex offender to register for life as a sexually violent predator even though he was not originally determined to be one violated his constitutional protection against retroactive laws, the Indiana Court of Appeals ruled today.
The law was amended to require lifetime registration for certain offenses in 2006, two years after Todd L. Jensen was released from probation. Applying that requirement to Jensen violated prohibitions against ex post facto laws in the state and federal constitutions, the court said in a 2-1 ruling.
The ruling, which reversed a lower court decision, said that the retroactive lifetime registration requirement violated the constitution "as applied to him." It was not immediately clear whether the ruling might have wider impact. * * *
When Jensen was sentenced, the law required consultation with two experts to determine if someone was a predator who might be a repeat offender. The General Assembly later changed the law so that anyone convicted of certain offenses was defined as a sexually violent predator. One of those offenses was vicarious sexual gratification.
"Therefore, the 2006 version of the statute has changed the elements or ultimate facts and evidence necessary to prove that a defendant is a sexually violent predator," the court found. "Consequently, the 2006 version, which the trial court clearly used at Jensen's status determination hearing, is ex post facto law as applied to him."
The Court of Appeals also noted that it had found that courts have the power to review sexually violent predator status if an offender violates probation - but Jensen had not done so.
In a dissenting opinion, Judge Cale J. Bradford wrote that the lifetime registration requirement did not violate the clause against retroactive laws because it was intended to monitor the whereabouts of the offender, not as punishment.
Wednesday, December 26, 2007
Ind. Decisions - Court of Appeals issues 4 today (and 15 NFP)
For publication opinions today (4):
In Todd L. Jensen v. State of Indiana , a 10-page, 2-1 opinion, the Court rules that "the amendments to Indiana’s Sex Offender Registry as applied to Jensen violate the ex post facto clauses of the federal and state constitutions." Senior Judge Robertson writes:
Defendant-Appellant Todd L. Jensen (“Jensen”) appeals from the trial court’s order classifying him as a sexually violent predator and requiring Jensen to register as such for the remainder of his life. We reverse and remand.In Harvey N. Berman v. James Cannon and Rhonda Cannon, a 12-page opinion, Judge Sharpnack writes:
ISSUES. Jensen’s appeal presents the following dispositive issue for our review: whether the amendments to Indiana’s Sex Offender Registry as applied to Jensen violate the ex post facto clauses of the federal and state constitutions.
FACTS. On January 18, 2000, Jensen pled guilty to vicarious sexual gratification, a Class C felony, and child molesting, a Class C felony. Jensen was sentenced on February 18, 2000, to three years executed with three years suspended on each count. The sentences were ordered to be served concurrently. Pursuant to Ind. Code §5-2-12-13 (repealed by P.L. 140-2006, SEC. 41 and P.L. 173-2006, SEC. 55), Jensen was to report as a sex offender for a period of ten years.
Jensen was released from prison, began the probationary period of his sentence on July 12, 2001, and was formally released from probation on July 12, 2004. Since his release from prison, Jensen has annually reported and registered as a convicted sex offender. On September 20, 2006, the Allen CCounty Sheriff Department’s Sexual Offender Registry Coordinator informed Jensen that he would have to register for life as a sexually violent predator and as an offender against children. Jensen filed a motion to determine registration status with the trial court, and a hearing was set on that motion for February 12, 2007. Ultimately, the trial court found Jensen to be a sexually violent predator, and determined that Jensen must register for life. This appeal arises from the trial court’s ruling. * * *
We hold that imposition of a lifetime registration requirement in Jensen’s case violates ex post facto considerations. We reverse the trial court’s order determining that Jensen is a sexually violent predator, and instruct the trial court to enter an order determining Jensen’s registration requirement to be for ten years’ duration. * * *
SHARPNACK, J., concurs.
BRADFORD, J., dissenting with separate opinion. [which concludes] Given the public interest in certain informational filings, it is my opinion that requiring a sexually violent predator to maintain his current address in the registry, even for a lifetime, does not rise to the level of being so punitive as to overcome its non-punitive legislative intent, that is, to monitor the whereabouts of a violent sexual predator, the necessity of which does not diminish over time. I would affirm the trial court on this issue.
Harvey N. Berman appeals the judgment against him in favor of James and Rhonda Cannon. Berman raises three issues, which we consolidate and restate as: I. Whether the trial court abused its discretion when it refused to allow Berman’s counsel to explain the medical reasons behind Berman’s absence from the trial; and II. Whether the jury’s damage awards to Rhonda and James Cannon were excessive and unreasonable in light of the evidence. We affirm.In State of Indiana v. Michael A. Cozart , a 10-page opinion, Chief Judge Baker writes:
When Michael Cozart agreed to plead guilty, he did not understand that the trial court was without discretion to suspend any of the minimum sentence he faced because of his prior felony convictions. After Cozart fully understood the trial court’s sentencing authority, he moved to withdraw his guilty plea, but the trial court refused to permit the withdrawal. On post-conviction, the court found that Cozart had not knowingly and voluntarily pleaded guilty because the trial court had not adequately advised him regarding the potential length of the sentence it was about to impose.Trenyon R. Page v. State of Indiana - "Trenyon Page appeals his sentence for three counts of robbery as class C felonies.1 Page raises two issues, which we revise and restate as: I. Whether the trial court abused its discretion in sentencing Page; and II. Whether Page’s sentence is inappropriate in light of the nature of the offense and the character of the offender. We affirm."
Appellant-respondent State of Indiana appeals from the post-conviction court’s order granting appellee-petitioner Michael A. Cozart’s petition for post-conviction relief. The State argues that the trial court was not required to advise Cozart regarding the effect his prior felony convictions would have on its authority to suspend any portion of the minimum sentence he faced following a guilty plea to a class A felony. Finding that Cozart did not plead guilty knowingly and voluntarily, we affirm the judgment of the post-conviction court.
NFP civil opinions today (4):
Aubrey Anderson v. Patricia Anderson (NFP) - "Appellant-Respondent Aubrey Anderson (“Father”) appeals parenting time and child support orders concerning L.A. and B.A., his children with Appellee-Petitioner Patricia Anderson (“Mother”). We affirm."
In Invol. Term. of Parent-Child Rel. of A.G., K.G., A.R., and K.N., and Debra Gillard v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. (NFP), a 3-page opinion out of Marion Superior Court, Judge Sharpnack writes:
This case comes to us on appeal from an order terminating the parental rights of Debra Gillard to A.G., A.R., Z.N., and K.G. The order included in the record reflects that it was signed by the magistrate presiding over the case but does not indicate that the juvenile court judge approved entry of the order. The docket indicates that the order was approved on April 5, 2007, but there is no indication as to how this approval was accomplished.Eric D. Smith v. Dept. of Correction, Westville Control Unit, et al (NFP) - "Appellant-plaintiff Eric D. Smith appeals the trial court’s orders entering summary judgment in favor of appellees-defendants Indiana Department of Correction, Westville Control Unit, Correctional Lieutenant Brooks, Correctional Officer Jason Jacob, Correctional Officer Marty Sexton, and Counselor Steve Euler (collectively, the DOC) on Smith’s complaint against the DOC, denying his motion for appointment of an attorney, and denying his motion to amend the complaint. Finding no error, we affirm the judgment of the trial court."
The authority of magistrates to act is determined by statute. As provided in Ind. Code §§ 33-23-5-5(14) and 33-23-5-9(b), a magistrate presiding at a criminal trial may enter a final order, conduct a sentencing hearing, and impose a sentence on a person convicted of a criminal offense. There is no such provision for magistrates to act in termination of parental rights cases. Rather, Ind. Code § 33-23-5-9(a) provides that, except in criminal proceedings, a magistrate “shall report findings” in an evidentiary hearing or a trial and that “the court shall enter the final order.” Because the record does not establish judicial approval of the magistrate’s findings in this case, we remand to the juvenile court for its consideration and further action consistent with this opinion. We retain jurisdiction of this appeal pending action by the juvenile court. Remanded.
Wal-Mart Stores v. Timothy Kinnison, et al (NFP) - "Wal-Mart’s principal place of business is in Bentonville, Arkansas, and it is licensed to operate in Indiana. Its registered agent for service of process in Indiana is CT Corporation, which is located in Indianapolis. When a lawsuit is filed against Wal-Mart in Indiana, CT Corporation forwards the complaint and summons to the legal department in Bentonville. At that time, the case is assigned to one of Wal-Mart’s in-house attorneys.
"On September 21, 2006, the Kinnisons filed a complaint against Wal-Mart in Noble County, seeking damages stemming from an allegedly negligent oil change performed by Wal-Mart employees in Perris, California. Despite the facts that the alleged tort occurred in California and that CT Corporation is Wal-Mart’s registered agent in Indiana, the Kinnisons attempted to serve the complaint and summons by sending them via certified mail to a Wal-Mart Store in Kendallville. The envelope was addressed to “Wal-Mart Stores, Inc. * * *
"In sum, because service of process was inadequate, the trial court did not have personal jurisdiction over Wal-Mart and the default judgment is void. Therefore, the trial court abused its discretion when it refused to grant Wal-Mart’s motion for relief from the default judgment. The judgment of the trial court is reversed and remanded for further proceedings on the Kinnisons’ complaint."
NFP criminal opinions today (11):
Ind. Decisions - 7th Circuit issues one Indiana ruling today
In U.S. v. Haskins (ND Ind., Judge Lozano), a 13-page opinion, Judge Rovner writes:
A wild night at Dena’s Pub, a local nightclub in Gary, Indiana, ended prematurely when police arrived on the scene and confiscated drugs and firearms from Dena’s patrons and employees. One employee was Dwayne Haskins, who worked as a security guard at Dena’s. Police took Haskins’ firearm but later returned it because he lawfully possessed it. Police also inadvertently gave Haskins a Beretta .40- caliber pistol. Not one to “look a gift horse in the mouth” (as he later put it), Haskins accepted the weapon, although it was not his. He later sold the Beretta to Darryl Eller, his friend and fellow security guard at Dena’s. Unfortunately for Haskins, Eller was not only a convicted felon, he was also cooperating with federal agents. Consequently, Haskins was convicted of violating 18 U.S.C. § 922(d), which makes it a crime to sell a firearm to an individual known or reasonably believed to be a felon. Haskins appeals, and we affirm.
Ind. Law - "Electronic signs stir debate"
James D. Wolf Jr. reports today for the Gary Post-Tribune:
VALPARAISO -- Battles are brewing over electronic signs in rural Porter County as rules get more restrictive toward signs that flash, scroll messages or simulate movement.On Aug. 2, 2007 the ILB had this entry, headed "High-tech billboards targeted: Kentucky officials want them gone." A Cincinnati Enquirer story is quoted:
Sometime in January or February, the Porter County Commissioners will vote whether to restrict electronic signs -- even those that tell time and temperature. The Board of Zoning Appeals has tabled requests for three electronic signs.
The restrictions have received a favorable recommendation from the Porter County Plan Commission at its Dec. 12 meeting.
"We're trying to keep the rural atmosphere, and you can't have that with signs for gentlemen's clubs and fireworks," said Robert Harper, county commissioner and plan commission member.
This would amend the Unified Development Ordinance passed this summer, which allowed for "static message" electronic signs, as well as "semi-static," but doesn't define them.
Manually placed text would be allowed, Harper said.
The plan commission has a vision for Porter County where "we'll see trees and grass and deer," Harper said.
Banks would need a variance from the Board of Zoning Appeals to have a temperature sign, county planner Robert Thompson said earlier in December.
However, owners of sign requests that are on hold at the BZA, and under current restrictions, say that they're being mistreated while board members review a flood of paperwork regarding the safety of electronic signs.
Kentucky's Transportation Cabinet has told outdoor advertising companies operating in Northern Kentucky that the digital boards should be torn down, turned off or converted back to static displays. No state law specifically permits electronic billboards, and their changing messages may violate other state and federal highway rules, the cabinet says.The entry goes on to ask "What about Indiana," pointing to HEA 1373, passed last year, which allows, according to a story by Patrick Guiane of the NWI Times dated Feb. 13, 2007, "moving interstate billboards into the digital age."
Meanwhile, today, the Kenton County Planning Commission is to consider a ban on any more high-tech signs at least through Dec. 31, when a consultant can recommend new sign regulations.
Twelve electronic billboards have been planted in Greater Cincinnati and Northern Kentucky along Interstates 75, 71, 275 and 471. At night, they're often the brightest objects in the landscape.
Some motorists love the sharp color and rotating ads. Critics say they're a neighborhood nuisance and perhaps unsafe. * * *
Ohio permits the digital signs, provided each commercial message remains fixed for at least 8 seconds, and that the sign itself is at least 1,000 feet from another multiple-message board.
Some 156 electronic displays already line the state's interstates and highways, according to the Ohio Department of Transportation. Another 13 are in the pipeline.
Tuesday, December 25, 2007
Ind. Courts - Yet more on: "St. Joseph County judge has stopped sending female offenders to the Indianapolis Juvenile Correctional Facility"
A Tippecanoe County judge says she shares concerns about a state-run juvenile center in Indianapolis that was accused last week of lack ing services and being understaffed.
Juvenile court Judge Loretta Rush said she tries to send only serious, violent offenders to the Indianapolis Juvenile Correctional Facility, which is run by the Indiana Department of Corrections.
Parents have brought forth complaints about the facility in her courtroom.
"I've been tracking (parents') concerns and can say I'm not happy with it," Rush said. "I would love to not send offenders there, but unfortunately there are not a lot of other options."
Last week, St. Joseph County Judge Peter Nemeth sent a letter to Gov. Mitch Daniels explaining that he has stopped sending female offenders to the center because "I have decided it is neither safe nor productive."
He said the center doesn't have adequate rehabilitative and educational services and that he's also received reports of sexual activity between inmates and between inmates and staff.
Daniels said Thursday that he would read Nemeth's letter and seriously weigh his concerns.
"The Girls School had a very positive audit," Daniels said. "His opinion appears to be a very isolated one."
DOC Chief of Staff Randall Koester said the department will review the judge's concerns. But he questioned the accuracy of the accounts provided by the juveniles in the review.
Koester said the department hired a new superintendent, Robert B. Rivenburg, in August to head the center, where 258 youths were housed as of Wednesday.
Rush said one of her concerns about the center is that once a juvenile offender is sent there, the county has no ability to pull the child out.
Ind. Law - "Bill: Hold accused abusers 8 hours "
Lesley Stedman Weidenbener reports today in the Louisville Courier Journal. Some quotes:
Accused batterers would have to remain in custody for at least eight hours to help cool off domestic violence situations under legislation filed by a state senator for next year's General Assembly session.
Senate Bill 27 would give victims time to find help or go to shelters while their accused abusers were settling down in jail rather seeking retribution, said Sen. Jim Arnold, D-LaPorte.
"We're calling it a cooling-off period," said Arnold, a former two-term sheriff. "Right now, we have too many officers going back to these situations on a repetitive basis. So we're trying to look at this in a little different light." * * *
Some Indiana judges already impose similar restrictions, but there's no statewide requirement.
In Harrison County, for example, accused batterers face a court-ordered 24-hour hold, said Corydon Police Chief Jim Kendall.
"It works great," Kendall said. "It gives the batterer time to calm down … and it lets us get the victim to a safe house."
In Clark County, judges have a standing order that people arrested on domestic violence charges aren't released until they see a judge, said Sheriff Danny Rodden. That typically takes 24 to 72 hours, he said.
"Everybody has cooled down a little bit by then," Rodden said.
But in some places, alleged batterers can get out of jail on bond or be released without bail soon after they are charged.
"There's county-by-county discretion," said Barb Miller, executive director of the Albion Fellows Bacon Center, an Evansville-based organization that serves domestic violence victims in 11 counties, including Orange, Crawford and Harrison.
For example, "You can be arrested and be bonded out in a matter of a couple hours" in Vanderburgh County, Miller said.
That's often not enough time for victims to be able to find help, pack their belongings and get their children to a safe location, she said. "The time is so critical," she said.
Arnold introduced the legislation after meeting with the LaPorte County Domestic Violence Task Force, whose members were concerned that accused abusers were leaving jail too quickly.
The bill has been assigned to the Judiciary Committee. Chairman Sen. Richard Bray, R-Martinsville, has not set the bill for a hearing and did not return a call yesterday seeking comment.
The Indiana Coalition Against Domestic Violence plans to endorse the bill, said Kerry Hyatt Blomquist, the group's legal counsel.
Ind. Decisions - Voter ID to be argued Wed., Jan. 9th
The Washington Post today has a good overview of the "Partisan Fissures Over Voter ID". Robert Barnes writes in a lengthy report:
The Supreme Court will open the new year with its most politically divisive case since Bush v. Gore decided the 2000 presidential election, and its decision could force a major reinterpretation of the rules of the 2008 contest.
The case presents what seems to be a straightforward and even unremarkable question: Does a state requirement that voters show a specific kind of photo identification before casting a ballot violate the Constitution?
The answer so far has depended greatly on whether you are a Democratic or Republican politician -- or even, some believe, judge.
"It is exceedingly difficult to maneuver in today's America without a photo ID (try flying, or even entering a tall building such as the courthouse in which we sit, without one)," Circuit Judge Richard A. Posner, a Ronald Reagan appointee, wrote in deciding that Indiana's strictest-in-the-nation law is not burdensome enough to violate constitutional protections.
His colleague on the U.S. Court of Appeals for the 7th Circuit, Bill Clinton appointee Terence T. Evans, was equally frank in dissent. "Let's not beat around the bush: The Indiana voter photo ID law is a not-too-thinly veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic," Evans wrote. * * *
The state's Republican-led legislature passed the law in 2005 requiring voters to have ID, even though the state had never prosecuted a case of voter impersonation.
Democrats there challenged the requirement as unconstitutional, although they have not produced a person who wanted to vote but was unable to do so because of the law.
Monday, December 24, 2007
Ind. Courts - Second candidate files for Clinton Superior Court
Martha O'Brien reports in the Frankfort Times:
May's primary election is still several months away, but one race is already getting attention.
Friday, Frankfort attorney Michael E. Douglas announced he will seek the Republican nomination for Clinton Superior Court judge. He is the second candidate to file for the position.
"I have had the privilege and honor to be a part of the legal profession for many years," Douglas said. "It is my desire to continue with my passion, the law, and to continue my legal career as judge of Clinton Superior Court."
Kathy Smith, the presiding Superior Court judge, told The Times earlier this month that she will not seek another term at the end of 2008.
The impending vacancy has fueled interest among Frankfort's lawyers. On Dec. 6, attorney Justin Hunter announced his intention to pursue the Republican nomination for the seat.
Ind. Gov't. - Hamilton County Prosecutor and County Council at odds
Tania E. Lopez of the Indianapolis Star reports:
NOBLESVILLE -- Hamilton County Prosecutor Sonia Leerkamp has accused the County Council of extortion after it cut her salary for not submitting employee performance evaluations.
"Quite frankly, I believe what they have done is not permitted by law," she said. "They can't use (the stipend) as leverage. It's called extortion or blackmail."
In a special meeting Thursday, four members of the council voted unanimously to take away the $5,000 stipend typically added to Leerkamp's annual salary of $110,500 paid by the state.
Council members Brad Beaver, Meredith Carter, Judith Levine and Steve Schwartz cut the stipend because Leerkamp failed to submit employee evaluations of her staff, according to Beaver and Schwartz. * * *
"Back at the budget hearings, she was asked to do all the performance appraisals of all her employees and to sign the (employee) handbook," Schwartz said after Thursday's special meeting. "She didn't do it."
Even though county taxes are used to fund the salaries of employees in the prosecutor's office, Leerkamp said, the council cannot dictate how she runs the office. She interprets constitutional case law as giving prosecutors the ability to operate their offices independently.
"My employees are not county employees because of that unique status," she said. "The responsibility of the county (council) is for them to fund my office, and that's the only statutory authority they have over me."
Leerkamp said she never signed the county's handbook because she had objections over revisions that were made to the documents in 2006.
Ind. Decisions - New election called in Rome City
Mitch Harper of Fort Wayne Observed as an interesting entry today that begins:
Sometimes an election recount results in a winner different than the one announced on election night. (Note the Muncie mayoral election.) More rarely does a new election get called as the result of petition filed for a recount and contest.
However, northeast Indiana will see a new town election being held as the result of a petition filed by losing candidates in town board of trustees (town council) election.
Late Friday, Noble County Circuit Judge G. David Laur issued a ruling calling for a new election in Rome City. The November 6th election was called into question due to several voters being turned away when told that they were not registered to vote in the town's precincts.
There was an error in the voting lists as prepared by the Secretary of State's office.
The voters were turned away rather than being provided a provisional ballot. A decision whether to count a provisional ballot is made after a reexamination of the reasons for the voter's disqualification. A provisional ballot preserves the right of the voter to cast a vote in the event of an error.
Ind. Courts - Yet more on: Marion County juvenile court orders release of the juvenile court file and the much larger DCS case file in TaJanay Bailey case
Updating four previous ILB entries headed "Marion County juvenile court orders release of the juvenile court file and the much larger DCS case file in TaJanay Bailey case" (dated Dec. 11, 9, 7 an6 6 - see ILB list here), Jon Murray reports today in the Indianapolis Star:
Even before TaJanay's death Nov. 27, juvenile court Judge Marilyn Moores had begun recruiting members for the CHINS Task Force. It will work to improve everything involving Child in Need of Services cases, Moores said, which could include increasing the frequency of state Department of Child Services reports to the court, reducing the time it takes to resolve a case and creating risk-assessment tools for parents and children.
"Our system now is too ponderous, too pokey, too cookie-cutter," said Moores, who presides over the juvenile court. "It's just too slow. Cases stay open too long. We can do better, and we have to do better."
In January, the court will add one docket, or court session, to each magistrate's schedule, which will give them more time to handle each case.
"We've kind of been accused of having the rocket docket," said Cynthia Booth, executive director of Child Advocates, an agency that oversees volunteers appointed to represent the interests of children in child welfare cases. After the change, "there will be more meaningful hearings."
In another step to reform the system, Moores called a meeting earlier this month to discuss communications gaps revealed by TaJanay's death. The meeting produced a new countywide system for notifying police about families involved in the child welfare system and whether they are heading to an address under scrutiny by DCS. * * *
"The system doesn't give us crystal balls," Moores said, "but we have to know that we've done everything we can."
After TaJanay's death, Moores opened up the DCS case file to public scrutiny. She also gave the media copies of the juvenile court's own file.
She could rule this week on The Indianapolis Star's requests for more records and to listen to a recording or see a transcript of the Aug. 30 hearing.
The task force's work is part of a model courts program run by the National Council of Juvenile and Family Court Judges. There are 31 such courts across the country, all working with the council to improve the way they handle child welfare cases.
In Marion County, Moores and six magistrates handle DCS-initiated cases either full time or part time.
They face full dockets, handling one-quarter of the state's child welfare caseload. Last year, 1,392 abuse or neglect petitions were filed; the average case takes two years to reach closure.
The magistrates rely on DCS reports and ask questions of social services workers who attend court hearings every two or three months.
Booth, one of about 30 task force members, said the magistrates are devoted, despite the heavy caseloads.But the volume can be daunting.
In smaller courts, a judge is more likely to know all the social workers, lawyers and advocates involved in a case, said Leslie Rogers Dunn, who heads the state Guardian Ad Litem/Court Appointed Special Advocate program.
"They may know them on a first-name basis and even have their cell phone number. In fact, they probably know the family before they come into the system. That's the way small towns work."
Moores said the task force will look for ways to make the Marion County court's work with each case more meaningful. Booth is hopeful that the docket change will result in more hearings that start on time, making it easier for more players in a case to attend.
Their input is crucial, Dunn said, because the magistrates rely on their viewpoints to make decisions.
Those decisions are not easy. It's not always obvious whether a parent will care for a child properly once the child is returned.
"A lot of times, we make tough calls," Dunn said. "That's clear about the TaJanay Bailey case."
Ind. Courts - "Dress code suit costs couple $40,931.50: Anderson plaintiffs' predicament illustrates the risks of being your own lawyer"
So reads the headline to this Indianapolis Star story today by Jon Murray. A few quotes from the story:
Laura and Scott Bell took on their school district's new dress code, but their lawsuit was booted from court after they missed critical deadlines and pressed claims that a judge deemed frivolous.From a side-bar:
Four months later, the judge has ordered them to pay up for the trouble.
The Bells now are on the hook for $40,931.50, the amount Anderson Community Schools said its law firm charged for fending off the couple's lawsuit in July and August. The couple represented themselves in court.
U.S. District Judge John D. Tinder's decision underlines the risk of wading into legal waters without a lawyer. The danger is higher in litigation, where paying the winning side's attorney fees is common.
"What in the hell are we supposed to do?" Laura Bell asked, noting that the amount is more than the family's annual income. "It's flat ridiculous."
The case at a glanceNote that the U.S. Supreme Court made a narrow exception to the general rule that parents may not represent their children in court in last term's decision in Winkelman v. Parma School District, where, according to SCOTUSBlog, "the Court decided that parents of a disabled child have an independent right to enforce the federal law on public education of children with disabilities. Thus, they do not have to have an attorney. The rights of the parents, the Court found, are independent of those of their child." [See 5/21/07 ILB entry here]
Scott and Laura Bell filed their lawsuit in July. It challenged a strict dress code adopted by Anderson Community Schools, citing violations of Indiana's guarantee of a free public education and their children's rights to free expression.
A U.S. District Court judge granted summary judgment to the school district in August because the Bells had not met deadlines to detail evidence. He also wrote that the Bells, as nonlawyers, could not represent their five school-age children and stepchildren in court and that other claims were frivolous.
The judge sent the remaining state claims back to Madison Circuit Court, where the case is still open but has been dormant. The Bells say they now want it dismissed. [ILB emphasis added]
The ILB has been unable to find Judge Tinder's decision online, assuming it has been issued recently. There is the 25-page opinion from August 7th, linked to in this ILB entry from that date.
Sunday, December 23, 2007
Law - Where do the presidential candidates stand on signing statements?
Charlie Savage of the Boston Globe has written an article on where the candidates stand on signing statements, based on a Globe survey. The article is titled "Candidates on executive power: a full spectrum - They assess use of signing statements."
Saturday, December 22, 2007
Ind. Courts - "Delaware County ahead of the curve in addressing child abuse cases"
"Delaware County ahead of the curve in addressing child abuse cases: County's Child Advocacy Center improves communication among local agencies representing victims of child abuse," is the headline to this story by Gail Koch in today's Muncie Star-Press. A quote from the lengthy story:
Child abuse advocates say no matter how hard they try, cases of child abuse can fall through the cracks. But local officials say Delaware County is "ahead of the curve" in combating child abuse and neglect with the county's new Child Advocacy Center (CAC). Statewide, there are about 10 to 12 fully developed centers, according to McKinney, with about 400 child advocacy centers in place nationwide.
Located inside the former Morrison-Mock Elementary School, Delaware County's CAC is a component of Meridian Service's Suzanne Gresham Center. Its major focus is to offer a safe environment for law enforcement and Child Protective Services to interview children involved in child abuse investigations.
Environment - More on: Hearing in Edwardsville today on proposed Duke Energy power plant
Updating this ILB entry from Dec. 20th, here are further reports on the hearing.
Mark Wilson reported in the Evansville Courier & Press later the morning of the 20th:
Opponents of a 630 megawatt power plant proposed for Knox County say they will boycott a state hearing on its proposed air pollution permit today to protest environmental officials' refusal to extend the time for public comment. * * *The following day, Dec. 21st, Wilson reported in a lengthy story:
The Indiana Department of Environmental Management denied a request to extend the public comment period beyond its Dec. 31 deadline. However, when it set the comment period the agency made it 45 days. Typically, the public is given only 30 days to comment on pollution permits. Such comments must be answered in written document included with the final permit.
Dave Menzer, of the Citizens Action Coalition of Indiana, said the timing of the hearing during the holiday season was problematic because it made it difficult for concerned citizens to research and file informed comments.
BICKNELL, Ind. ---- Opponents of a new $2 billion coal-fired power plant Duke Energy is proposing to be built at Edwardsport, Ind., cite concerns of higher electricity rates and in increased pollution from the plant.
But those weren't concerns expressed by the more than 600 Knox County residents attending a public hearing Thursday evening on the plant's air pollution permit.
Miles of signs supporting the project lined the road leading to North Knox High School where the Indiana Department of Environmental Management held the three-hour hearing on the air pollution permit for the proposed 630-megawatt power plant.
"IGCC Yes!" the signs declared in bold red letters from almost every yard along the route.
Instead of burning coal directly, it would be designed to use a new, largely untried "clean coal" technology called integrated gasification combined cycle, or IGCC.
The process converts coal into a synthetic gas used to power the turbines that generate electricity.
Duke is proposing to create the new power plant by modifying its existing, conventional plant.
Edwardsport Town Councilman James Newkirk recalled the black spots on the snow from that power plant when he was a child.
"Edwardsport wants this power plant," he said.
Newkirk was one of dozens of speakers who said they favored not only the jobs the revamped power plant would provide but also its lower pollution levels. When former State Rep. John Gregg asked for a show of support for the plant from those in the auditorium, nearly every hand went up.
Ind. Decisions - "Judges uphold twins' adoption"
Reporting on yesterday's COA opinion in the case of Adoption of Infants H., Marion Co. Div. of Indiana Dept. of Child Services v. Stephen Melinger [see ILB entry here], Keith Manning of the Indianapolis Star writes:
The Indiana Court of Appeals on Friday rejected an effort by state child welfare officials to block a New Jersey man's controversial adoption of twins born in Indianapolis.
At the heart of the case was the state's contention that the children were ineligible for an out-of-state adoption and that the rules governing such adoptions were broken.
But on a 3-0 decision, the Court of Appeals rejected those arguments by the Department of Child Services and affirmed the adoption of Kathy Zee and Karen Zaria Melinger. Stephen F. Melinger hired a surrogate mother more than two years ago, when he was 58. * * *
Melinger filed an adoption petition April 13, 2005. There were numerous court hearings and motions by the state during the next 18 months. The adoption was finalized in October 2006.
In the ruling, appeals court judges said many of the doubts raised by DCS attorneys were the result of mistakes by the agency itself.
For example, DCS attorneys said in their appeal that Indiana courts could not grant the adoption because the girls were not residents of the state. But the agency failed to make that claim during the initial adoption hearing, which the judges ruled made the point moot for appeal.
Indiana law says children must be considered "hard to place" before they can be adopted by someone from outside the state. DCS attorneys argued that the twins did not meet those criteria, which include such factors as race, ethnic background, disability or being siblings.
The court found "remarkable DCS' allegation the twins are not a 'sibling group that should be placed in the same home.' . . . Twins are siblings from birth."
The department also argued that the adoption did not meet the requirements of the Interstate Compact on the Placement of Children, which governs adoptions across state lines.
But the appeals court judges ruled that it was up to DCS to raise such concerns during the initial court proceedings. Failing to do so is a mistake the appeals court cannot reverse.
"DCS . . . is responsible for any error in the trial court's failure to comply," the judges wrote. "DCS cannot now be heard to complain about the trial court's noncompliance."
Friday, December 21, 2007
Ind. Decisions - Transfer list for week ending December 21, 2007
Here is the Indiana Supreme Court's transfer list for the week ending December 21, 2007. Be sure to view all 4 pages.
There was one granted this week: Travelers Casualty and Surety Co., et al. v. United States Filter Corp., et al. See this ILB entry from earlier today for more 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.
Ind. Decisions - "Appeals court stymies EC in cash bout" [Updated]
Today's 38-page COA opinion in the case of City of East Chicago, Indiana v. East Chicago Second Century, Inc., RIH Acquisitions, et al (see ILB entry here, 2nd case) is already the subject of a brief NWI Times story:
INDIANAPOLIS | The Indiana Court of Appeals dealt East Chicago a setback today in its two-year legal battle to win control of millions in casino-funded community development dollars.[Updated 12/22/07] Patrick Guinane has the full story here in the NWI Times. And here is coverage from Christin Nance Lazerus of the Gary Post-Tribune.
The city, led by Mayor George Pabey, wants the courts to void a pair of agreements that steer $8 million a year to the Foundations of East Chicago, a nonprofit, and East Chicago Second Century, a for-profit developer. Until recently, both groups received the casino subsidies under a 1994 deal former Mayor Robert Pastrick brokered to bring riverboat gambling to the lakefront city.
The appeals court denied the Pabey administration's motion for summary judgment, upholding the ruling Marion County Judge Cale Bradford made in June 2006. The ruling sets the stage for a trial on the merits of the case, though the city could instead ask for a rehearing or appeal to the Indiana Supreme Court.
The Pabey administration argues the Foundations and Second Century, both of which are run by former Pastrick allies, have squandered huge chunks of the casino cash on salaries and overhead. Indiana Attorney General Steve Carter has backed up those allegation in financial investigations of both groups.
The Pabey administration contends the people of East Chicago would be better served if the casino subsidies are turned over to the city. It has found success before the General Assembly and the Indiana Gaming Commission, but the court battle has prevented the money from flowing to the city.
For more, read The Times on Saturday.
Ind. Decisions - More on: Judge rules in Terre Haute mayoral Hatch Act challenge [Updated]
[Updated 12/22/07] Austin Arceo of the Terre Haute Trib-Star reports on the ruling today:
Though a Vigo County judge agreed that Mayor-elect Duke Bennett was affected by a law limiting political activity, a challenge came too late to overturn his election victory.
Judge David Bolk, of Vigo County Superior Court Division 3, ruled that Bennett is eligible to take the city’s top executive office. Mayor Kevin Burke, who lost by 110 votes to Bennett last month, contested the election results by challenging Bennett’s eligibility due to the Hatch Act, a federal law that limits the political activity of employees of some not-for-profits receiving federal money, such as Head Start funding. * * *
Bennett’s attorneys contended that the mayor-elect’s role with the Hamilton Center’s Head Start funding was so insignificant that Bennett was not subject to the Hatch Act.
Burke’s side said that Indiana law prevented Bennett from taking office if he was subject to the federal act.
But Bolk ruled that, since Bennett was now the mayor-elect and not a candidate, which is written in the state law, he is not affected by the Indiana statute.
He also stated that Bennett cannot be disqualified under the state law because he has not taken office.
“At the time of taking mayoral office, Bennett will no longer be employed at the Hamilton Center,” Bolk stated in the ruling. “Thus, when he is assuming office, he will no longer be employed by the Hamilton Center and, consequently, will not be subject to the” Hatch Act.
Bolk cited a previous Indiana case in which the court “held that ineligibility must exist at the time the term of the office begins.” * * *
“The ruling itself begs for an appeal,” Burke said during a phone interview Friday, “but I have to tell you, I’m running out of gas.” * * *
Burke attorney Ed DeLaney said this case has been the most unusual he’s seen. He also said the issue of a candidate’s qualification rarely comes up “because people don’t normally do what Mr. Bennett did.”
Bennett attorney James Bopp Jr. said that Burke had a claim, but failed to act. Bopp also said that Burke thought this challenge was his trump card to win another term if he lost the election, “and instead the trump card came up a joker.”
Burke’s lawyers on Thursday also filed paperwork in which they indicated they won’t appeal the recount, DeLaney said.
Burke said that the recount won’t be challenged because it “would be counter-productive to what actually needs to be done,” which is improve how elections are administered.
Bopp said that everything is final and Bennett will take office. The attorney also said that he was pleased that voters “get their choice for the new mayor” based on Bolk’s ruling.
“It’s a pretty complex question that he’s been dealing with, and I thought it was thoughtful and well-reasoned,” Bopp said, “and … I’m confident it would be sustained on appeal.”
Burke said that he understands that people are growing weary of the situation, and he’ll decide on a potential appeal soon, though it was not determined Friday.
“So like I said, today’s not the day to make that important of a decision,” Burke said. “Emotions are a little raw, and you don’t make your best decision when you’re feeling that way.”
Ind. Courts - "Insanity defense forces courts to ask for more money"
Aleasha Sandley of the Crawfordsville Journal Review reported this lengthy and interesting story yesterday that began:
In the past few months, Montgomery County Circuit Court has seen an outbreak in the number of criminal defendants using the insanity defense, and it’s costing the county money.You may want to read the rest of this long article.
At a recent county council meeting, Circuit Court Judge Thomas Milligan appeared before the council to request that money from other areas of the court’s budget be transferred to psychiatric services to cover the expenses of dealing with those who claim they are not responsible for their actions due to mental disease or defect.
Milligan’s court usually sees one or two defendants a year who use the insanity defense, but he has seen five or six cases since summer, he said.
“It’s a rare thing, traditionally, that we have had any,” Milligan said.
When an attorney, either a public defender or private counsel, enters an insanity defense, the court is obligated to provide two psychiatric evaluations, which cost $1,200-$2,400 each, he said.
“That’s $3,000-5,000 per person, which really gets expensive,” he said.
Montgomery County has a contract with Wabash Valley Mental Health for psychiatric services, but since summer, the hospital has been unwilling to do the evaluations, citing understaffing as the reason. This has made the evaluations far more expensive for the county, Milligan said.
“This is sort of like the stars all aligned and it’s raining on us all at once,” he said.
Ind. Decisions - "Briefing complete in Indiana voter id case"
Prof. Rick Hasen of Election Law Blog has sent a note headed "Briefing complete in Indiana voter id case," plus a pointer to this entry, reminding us that the oral argument is January 9, 2008.
Check this Nov. 14th ILB entry for links to sources of all briefs and all legal documents in the Indiana voter ID cases.
Ind. Decisions - 7th Circuit issues Indiana decision today
In Elizabeth A. Bright v. Hill's Pet Nutrition and Colgate-Palmolive (SD Ind., Judge Hamilton), a 9-page opinion, Chief Judge Easterbrook writes, beginning on p. 6:
All of this is so straightforward that the reader must be wondering why we have bothered to recap it in a published opinion. The fact that the district judge balked, in mid-trial, at implementing the Morgan rule is one reason. That Hill’s Pet Nutrition has stoutly defended the district court’s decision, when it should have confessed error in light of Isaacs (released after this case was tried), is another.
According to the employer, Isaacs is irrelevant because the facts at the trial of Bright’s suit differ from the facts in the summary-judgment record of Isaacs’s claim. That the proof differs is true enough; that’s inevitable even when two claims arise from the same workplace at roughly the same time. But what has this to do with rules of law? Counsel for Hill’s Pet Nutrition appears to believe that rules of law shift from case to case, so that anyone who “ought” to win (as Hill’s Pet Nutrition is sure that it should) must have the benefit of some favorable legal rule. That approach is nothing less than a challenge to the proposition that there are rules of law at all; it is a claim that every case should be tried “on its own facts” in a kind of law-free zone. We doubt that the employer would be so ready to jettison rules that favored its position; no more can it avoid legal rules that favor the plaintiff. Every case will have its own factual pattern, but the law does not change with the facts. * * *
The judgment in favor of Colgate-Palmolive is affirmed. The judgment in favor of Hill’s Pet Nutrition is reversed, and the case is remanded for a new trial.
Law - More on "Louisville panel opposes panhandling ordinance"
"Metro Council OKs restrictions on panhandling" is the headline to a story today in the Louisville Courier Journal reported by Dan Klepal. An earlier story was reported in this Dec. 11th ILB entry. From today's story:
The ordinance, approved 18-8, will take effect with Louisville Mayor Jerry Abramson's signature. Spokesman Chad Carlton said the mayor supports the ordinance and will sign it.
It will replace an existing panhandling ordinance that bars begging everywhere. But the current ordinance is seldom enforced because it is overly broad, and could apply to things such as charities or Girl Scout cookie sales, said Bill O'Brien, an assistant county attorney.
Convictions can bring up to a $250 fine and 90 days in jail, the same as in the current ordinance.
Council members David Tandy, D-4th District, and George Unseld, D-6th, sponsored the ordinance, which originally outlawed so-called "aggressive" panhandling. It went through several changes in the past three months.
Most notably, "aggressive" was dropped in favor of "menacing" behavior while begging.
The type of begging that could bring arrest includes approaching or following pedestrians; repetitively soliciting despite refusals; the use of abusive or profane language; unwanted physical contact; and the intentional blocking of vehicular or foot traffic.
"Menacing" behavior already is illegal under state law, and is defined as any activity that makes a "reasonable" person fear for his or her safety.
Two provisions were struck from the original ordinance: Panhandlers will still be allowed to ask for money after dark and within six feet of an entrance to a public building.
Ind. Decisions - Judge rules in Terre Haute mayoral Hatch Act challenge
Austin Arceo reports today in the Terre Haute Trib-Star that:
A local judge this morning ruled that Mayor-elect Duke Bennett is eligible to take office Jan. 1.See the most recent (Dec. 17th) ILB entry on this case here.
Judge David Bolk, of Vigo County Superior Court Div. 3, ruled in Bennett's favor in a case challenging his candidacy.
Mayor Kevin Burke, who lost to Bennett by 110 votes in the election last month, contended that the Hatch Act disqualified Bennett.
The Hatch Act is a federal law that limits the political activity of employees of some not-for-profits receiving federal money, such as Head Start funding.
Bennett is the director of operations at Hamilton Center Inc., which operates an Early Head Start program.
Bolk stated in his ruling that no evidence indicates Bennett "willfully flouted" the Hatch Act.
"Although the Court finds Bennett was subject to the Hatch Act, it is clear that the violation was not willful or intentional," Bolk wrote in the ruling.
Bolk also wrote in the ruling that Bennett could not be disqualified under the Indiana law that Burke's attorneys contended would prevent the mayor-elect from taking office.
Ind. Courts - "Gary judge loses consulting contract with county"
Bill Dolan reports in the NWI Times today:
CROWN POINT | Gary attorney Deidre Monroe became the latest lawyer to lose a consulting contract in Lake County government in a crackdown on double dipping.
The Lake County Board of Commissioners voted this week to refuse Monroe a contract that would have paid her as much as $12,000 in 2008 to provide legal advice for county Recorder Michael Brown.
Brown said Friday he will talk with commissioners to see if they will reconsider funding Monroe, who has worked in his office for several years.
"She has been working with me to investigate people who are filing bogus deeds to get homestead credits," Brown said. "This is a very serious problem, and I need her help."
Commissioner Fran DuPey, D-Hammond, said commissioners are cracking down on county employees who get extra pay by becoming consultants in addition to their county jobs.
Commissioners also refused to renew consulting contracts for four Lake Criminal Court public defenders recently who also work as public defenders in different county courts.
Monroe is listed as a public defender in the county's juvenile court, earning a salary of $28,000 per year. She also serves as Gary city judge.
Brown said he previously had an agreement with commissioners that he would pay Monroe out of user fees he charges those who record documents in his office.
Ind. Decisions - Court of Appeals issues 4 today (and 5 NFP)
For publication opinions today (4):
In a much reported adoption case [see ILB entry - "State appeals twin girls' adoption by N.J. man" from Jan. 21, 2007], Adoption of Infants H., Marion Co. Div. of Indiana Dept. of Child Services v. Stephen Melinger, the COA today issued a 23-page opinion written by Judge May:
The Marion County Department of Child Services (“DCS”) appeals the adoption granted to Stephen Melinger.In City of East Chicago, Indiana v. East Chicago Second Century, Inc., RIH Acquisitions, et al , a 38-page opinion with a partial dissent, Judge May writes:
DCS raises the following restated issues: 1. The court erroneously granted the adoption without a period of placement and supervision; 2. The court lacked jurisdiction over the children because they were not Indiana residents; 3. The court lacked authority to grant the adoption to a non-resident because the children were not “hard to place” pursuant to Ind. Code § 31-9-2-51; and 4. The court failed to comply with the Interstate Compact on the Placement of Children, Ind. Code ch. 31-28-4.
Melinger raises two issues on cross-appeal: 1. DCS has no standing to appeal because it did not appeal the court’s July 18, 2006 entry that ordered DCS’s “responsibility for the placement of these children is terminated effective today.” (Tr. at 281); and 2. The court erred in denying Melinger’s motion to dismiss the CHINS case.
The City of East Chicago (“East Chicago”) appeals the denial of its motion for summary judgment and the dismissal of most of its counterclaims and cross-claims against the East Chicago Community Development Foundation and the Twin City Education Foundation (collectively “the Foundations”) and East Chicago Second Century, Inc. (“Second Century”). It also asserts the trial court should not have consolidated the contract action with the review, in another branch of the same court, of an administrative action involving the same parties. We affirm in part, reverse in part and remand. * * *In Andrew H. Miller v. Indiana Dept. of Workforce Development, et al, a 17-page opinion, Judge Robb writes:
CONCLUSION. East Chicago was not prejudiced by the consolidation of the civil court review of the administrative action and the summary judgment and dismissal action. East Chicago’s summary judgment motion was properly denied, and Counts I through VIII of its cross-claims and counterclaims were properly dismissed. However, the trial court should also have dismissed Count IX. We accordingly affirm in part, reverse in part, and remand.
SHARPNACK, J., concurs.
BAILEY, J., concurring in part, concurring in result in part with separate opinion. [which begins] I concur in result, but write separately in light of the majority’s conclusion that the letter agreements do not terminate until revocation of the gaming license. On all other issues, I concur.
As an initial matter I must note that, incredibly, East Chicago argues that the letter agreements are not enforceable, yet asks to receive increased payments through their enforcement.
Andrew Miller appeals from the decision of the Indiana Department of Workforce Development Review Board (the “Board”) affirming the decision of the Administrative Law Judge (“ALJ”), who found Miller ineligible for unemployment compensation benefits. Miller raises two issues, which we restate as whether Miller was denied due process based on inadequate notice of the issues to be decided at his hearing before the ALJ and whether the Board’s decision was unsupported by its findings. Concluding that Miller was denied due process and that the Board’s findings do not support its decision, we reverse.Billy J. Lemond v. State of Indiana - "Billy J. Lemond appeals his convictions of and sentences for attempted murder, a Class A felony,1 and criminal recklessness, a Class D felony.2 We affirm. * * *
"Lemond raises several issues, which we restate as follows: (1) whether the failure to give instructions on lesser included offenses was fundamental error; (2) whether the jury verdicts were inconsistent; (3) whether the trial court abused its discretion by disallowing questions submitted by the jury; (4) whether counsel was ineffective; (5) whether the trial judge was biased; and (6) whether his sentence is inappropriate."
NFP civil opinions today (3):
John E. Lewchanin v. Madeleine M. Lewchanin (NFP) - "John E. Lewchanin (“John”) challenges the trial court’s interpretation of his father’s will and trust. * * * CONCLUSION. Settlor intended to permit Madeleine and her children to receive the Trust’s net income, and corpus as necessary, and to gradually distribute the corpus of the Trust to his other beneficiaries. The distribution to the beneficiaries was to begin at Settlor’s death. Separate trusts would frustrate Settlor’s intent to provide for Madeleine and her children. We accordingly affirm in part, reverse in part, and remand."
William Lee Pallett v. Indiana Parole Board (NFP) - "William Lee Pallett appeals the dismissal of his petition for writ of habeas corpus. Pallett alleges his parole was revoked after he was discharged. Finding his petition is not frivolous, we reverse and remand. * * *
"Pallett’s petition alleges the Department of Correction “turned him over” to the Monroe County Jail, thus discharging his life sentence. He further alleges, because he was discharged from the Monroe County Jail in January 2003, there was no parole to revoke in October 2003. These allegations create an arguable basis in law and fact that he is entitled to release, and there is no suggestion his petition is made to harass a person. While the documentary evidence Pallett submitted to the trial court does not entirely support his allegations, Pallett did not have a burden at this stage of the proceeding to present all possible evidence. His only burden was to show an “arguable basis” in law and fact. See I.C. § 35-58-1-2. Accordingly, he should be permitted to proceed."
Borovilos Restaurant Corporation, II v. Lutheran University Association, Inc. (NFP) - "Broadway Café raises the issue of whether the trial court abused its discretion in granting a preliminary injunction that did not enforce the entire scope of its easements for ingress, egress, and parking. * * *
The arguments and cases proffered by Broadway Café relate to a permanent injunction. That is not the situation before us. Here, a preliminary injunction was ordered to temporarily freeze all actions regarding the Kelsey parcel in order to protect both parties’ interests while the merits of the case were tried. The trial court concluded that removal of the fencing that enclosed the parking spaces east of the demolition area would adversely affect the public safety. Thus, the scope of the preliminary injunction was narrowly tailored to protect the interests of all parties involved. Broadway Café has not demonstrated that the trial court abused its discretion by narrowing the scope of the preliminary injunction in order to protect the public interest. Affirmed."
NFP criminal opinions today (2):
Ind. Decisions - Court grants transfer in Wheelabrator case
The formal transfer list will follow later today, but the ILB has received notice that the case of Travelers Casualty and Surety Co., et al. v. United States Filter Corp., et al. has been granted transfer.
According to a story in Business Insurance.com, quoted in this July 27th ILB entry:
Companies that acquire liabilities through mergers or acquisitions have the right to seek coverage under the acquired companies’ occurrence-based insurance policies for losses that occurred before the transaction, an Indiana appellate court has ruled."Insured's coverage passes to acquirer, court rules" was the heading to a July 25th Indy Star story, cited here.
The Indiana Court of Appeals also found in Travelers Casualty and Surety Co. et. al vs. United States Filter Corp. that the insurance company doesn’t have to approve the transfer of coverage to the acquiring company for it to have the right to tap the policies when necessary.
See the ILB entry on the July 24th COA opinion here.
Ind. Law - What about "The Year 2007 in Review as seen from the Indiana Law Blog"?
The ILB ended last year with a 13-page "Indiana Law Year 2006 in Review."
And here is the link to the 9-page review for law year 2005, titled "The Year in Review as seen from the Indiana Law Blog."
The Review takes quite a bit of time to put together each year. The question is, is it worth doing? Let me know.
Ind. Courts - "A Hamilton County judge on Thursday threw out a plea agreement made with an Indiana National Guard sergeant" [Updated]
James A. Gillaspy reports in today's Indianapolis Star. The story begins:
A Hamilton County judge on Thursday threw out a plea agreement made with an Indiana National Guard sergeant after learning three of his alleged victims thought the deal was too lenient.[Updated 12/22/07] An AP story today on a somewhat similar case, headlined "Man who admitted sexual misconduct gets probation." The story begins:
Judge Steven R. Nation said the case against former recruiter Eric P. Vetesy, who had admitted sexually assaulting seven young women, would be reset for trial.
The judge rendered his decision after County Prosecutor Sonia Leerkamp disclosed that three of the women disagreed with her plan to punish Vetesy with community corrections, which could include work release or home detention, and probation.
After she read Nation letters from the two women and addressed her recent contact with a third, Leerkamp said all three asked "that the plea not be accepted" under the current conditions.
Vetesy, 39, Westfield, was indicted in 2005 and charged with a pattern of sexual assaults involving mostly high school girls he recruited. Among the 39 counts he faced was one charge of rape.
Although he went before Nation last month and pleaded guilty to 10 counts -- including sexual assault charges involving each of the women named in the case -- Nation told Vetesy and Leerkamp in a hearing Thursday that the proposed punishment did not fit the crime.
"The court cannot accept the plea agreement in that it's not giving the court proper sentencing alternatives," Nation said.
No trial date was set.
NEW CASTLE, Ind. -- A foster father who pleaded guilty to sexual misconduct after he impregnated a 15-year-old girl who had been placed in his home was sentenced to five years of probation.[Updated again 12/22/07] Just ran across this story by Stephanie Mojica in the New Albany News & Tribune, reporting on the COA Dec. 13th opinion in Lavern Baltimore v. State of Indiana :
Darrin K. Reid, 37, will spend three of those years on electronic monitoring under terms of the plea agreement approved this week by Henry Circuit Judge Mary Willis.
The 53-year sentence of a New Albany man convicted of sexually assaulting a deaf woman was upheld by the Indiana Court of Appeals, according to court records.
Lavern Baltimore, 47, unsuccessfully appealed a ruling by Floyd County Superior Court Judge Susan L. Orth on the convictions for class A felony burglary resulting in bodily injury and class D felony sexual battery. * * *
Baltimore was convicted of breaking into his neighbors’ apartment in 2006 and assaulting a deaf woman who lived there by grabbing her neck, dragging her into the hallway and putting his hands under her shorts and also onto her breasts, according to a probable-cause affidavit filed in Floyd Superior Court.
“To victimize someone so vulnerable, as was the victim in this case, is an example of the ultimate predator,” Floyd County Prosecutor Keith Henderson said in a telephone interview Thursday.
After a jury found Baltimore guilty, Orth levied the maximum sentence on both charges.
Ind. Courts - Still more on: "St. Joseph County judge has stopped sending female offenders to the Indianapolis Juvenile Correctional Facility"
The Indianapolis Star editorial this morning is headed "Governor must act now on juvenile justice." Some quotes:
Gov. Mitch Daniels and Department of Correction administrators need to swiftly answer the alarm sounded this week by a St. Joseph County judge over conditions at the Indianapolis Juvenile Correctional Facility.And, as reported by WISH TV yesterday (see the ILB entry directly below):
Judge Peter Nemeth says the juvenile prison doesn't have enough staff members to keep inmates safe and lacks sufficient educational and rehabilitative programs. The judge also has raised concerns about sexual activity involving inmates and staff. He won't send additional female inmates to the facility until conditions improve.
Nemeth's allegations merit Daniels' personal attention for two reasons. The first is Indiana's poor history in operating juvenile prisons. The state and the U.S. Department of Justice reached an agreement last year on a plan to confront rampant violence and sexual activity at juvenile facilities. The judge's new accusations mirror some of the DOJ's concerns.
The second reason for Daniels' involvement is the judge's complaint that he was unable to receive a satisfactory response from DOC Commissioner J. David Donahue. "(Donahue) basically said he thought they were doing a good job and said you can't believe anything the girls say,'' Nemeth told The Star's Tim Evans.
I-Team 8 caught up with the Governor and asked him what he plans to do. "Well, we'll read the letter. [We also got] a very positive audit. His [the judge's] opinion appears to be a very isolated one. And I asked this morning, has there been any serious injury? And the answer to that was "no." But, we'll take his letter seriously," said Gov. Daniels.The Star editorial concludes:
At the very least, the governor needs to call together the judge, the review panel and DOC officials to address the issues raised in Nemeth's letter. There then needs to be a public explanation of how DOC will correct any problems that are documented.
Indiana has failed too often in how it treats juvenile inmates to brush aside Nemeth's accusations. An aggressive review is needed.
Thursday, December 20, 2007
Ind. Courts - More on: "St. Joseph County judge has stopped sending female offenders to the Indianapolis Juvenile Correctional Facility"
WISH TV has an interesting story this evening by Karen Hensel on the St. Joseph County judge's letter re the Indianapolis Juvenile Correctional Facility, blogged earlier today in this ILB entry. Some quotes:
In a letter to Gov. Daniels, St. Joseph Probate Judge Peter Nemeth calls Indianapolis Juvenile Correctional Facility "neither safe nor productive."
Judge Nemeth is refusing to send girls to the Indianapolis Juvenile Correctional Facility until problems there are corrected.
The I-Team 8 investigation "Juvenile Justice" exposed the same problems more than two years ago, the lack of safety for the girls, and the lack of education and appropriate mental health care.
Over the course of those two years, teachers and mental health counselors at the former Indiana girls' school have spoken with and sent letters to state legislators about the problems.
The legislators did nothing to help solve them.
Now the judge is asking Indiana's Governor for action.
"I would like to see the Governor take the leadership role in seeing that the matter is corrected, to examine closely what's going on, not only in the girls' school, but perhaps the whole department, and taking steps to ensure that it is adequately staffed, adequately funded, that there are positive programs in effect which will help children get rehabilitated," said Judge Nemeth.
I-Team 8 caught up with the Governor and asked him what he plans to do.
"Well, we'll read the letter, girls school for a very positive audit. His opinion appears to be a very isolated one. And I asked this morning, has there been any serious injury? And the answer to that was "no." But, we'll take his letter seriously," said Gov. Daniels.
Indianapolis Juvenile has had four Superintendents since David Donahue was named Commissioner of the Department of Correction.
Since then, I-Team 8 has documented a mass exodus of teachers and mental health counselors who devoted their careers to helping the troubled girls at the facility.
Many of the professionals who left the facility told I-Team 8 they left because of poor management and decision making from the DOC central office.
Indianapolis Juvenile Correctional Facility now houses 177 teenage girls and 81 teenage boys.
Courts - Still more on: Florida "Lawyer may lose license for blog entry on Broward judge"
Today Jordana Mishory of the Daily Business Review has an interesting article titled "Attorney Whose Blog Post Blasted Controversial Judge Fights Bar Investigation." The lengthy article begins:
Do lawyers check their free speech rights at the courthouse steps?
That's exactly what some are wondering after it was disclosed that a criminal defense attorney is facing Florida Bar ethics charges for critical comments he posted on a Web log about a controversial Broward, Fla., judge.
A number of constitutional experts claim attorneys give up the full force of the First Amendment when they join the Bar, but other lawyers say they have every right to speak their mind.
The debate resurfaced after the Bar found probable cause against Fort Lauderdale, Fla., criminal defense attorney Sean Conway for calling Broward Circuit Judge Cheryl Aleman an "evil, unfair witch" who is "seemingly mentally ill" on a blog about the courthouse. Formal charges against Conway are pending.
Ind. Law - Continuing with: Do the changes to the sex offender law mean longtime homeowners must move?
VALPARAISO | A sex offender was sentenced Wednesday to six months behind bars after pleading guilty to violating the law by living within 1,000 feet of Myers Elementary School in Portage.Several interesting NWI Times reader comments follow the story.
Jerry Coates, 31, and other sex offenders were not in violation of the state law until a tougher version took effect July 1, 2006.
Police said they told Coates of the change Sept. 12, 2006, but he had not moved as of Jan. 11. He was arrested on a sex offender registry offense, which is a felony.
Porter Superior Court Judge Julia Jent, who was sitting in Wednesday for Porter Circuit Court Judge Mary Harper, accepted the sentence prosecutors and defense attorney Ken Elwood had agreed to.
Several sex offenders who had been allowed to live near elementary schools, parks and youth centers in Porter County were told they had to move after Indiana revised its sex offender laws.
Because of the hardship involved in uprooting people whose living arrangements suddenly changed in status from legal to illegal, offenders in Porter County were given six months to comply.
Prior to the change in sex offender laws, a condition -- not dictated by law -- of some people's probation or parole prevented some offenders from living within 1,000 feet of a school, park or youth center.
Ind. Decisions - More on: 7th Circuit issues Indiana-based meth sentencing decision today
Today's 7th Circuit opinion in the ND Indiana case, U.S. v. Mendoza [see ILB summary from earlier today] is referenced in Prof. Douglas Berman's frequently cited Sentencing Law and Policy blog in this entry today, headed "Circuits continue to have no trouble finding within-guideline sentences reasonable."
Environment - More on: Hearing on Great Lakes Compact today at 1 pm
Today's AP story on the SB 45, the Great Lakes Compact, points out what the ILB should have picked up on in this entry yesterday -- the main author of the bill is the highly respected Senator Beverly Gard, long-time chair of the Senate Energy and Environmental Affairs Committee. Gard's committee held a public hearing on the bill yesterday. From the AP story:
A state lawmaker is pushing legislation that calls for Indiana to join a regional compact intended to prevent arid Sun Belt states from tapping the Great Lakes' waters.See also this comprehensive coverage of yesterday's hearing from the Gary Post Tribune.
Sen. Beverly Gard, R-Greenfield, said her bill is supported by business and environmental groups that want Indiana to sign onto the Great Lakes Water Resources Compact.
She said it's "extremely important" for Indiana to protect the Great Lakes waters it now uses for business and recreational purposes from drought-stricken states in the West and South.
"We don't want to be in the situation that New Mexico is in or that Georgia is in, so it's something that deeply concerns all of us," she said.
Among the eight Great Lakes states, only Minnesota and Illinois have ratified the agreement, but legislation is being discussed in Indiana, Michigan, New York, Ohio, Pennsylvania and Wisconsin.
Congress also must give its approval to the compact, which the Great Lakes states' governors and the premiers of Ontario and Quebec agreed to in December 2005, pending legislative approval.
With limited exceptions, the compact would prohibit diverting water from the lakes and the rivers linking them, which hold nearly 20 percent of the world's supply of surface fresh water.
The compact instructs the Great Lakes states to regulate water use and adopt conservation plans.
Gard said there are real "immediate threats" to the Great Lakes -- Erie, Huron, Michigan, Ontario and Superior -- some of which are facing drops in water levels. * * *
On Monday, more than a dozen business and environmental groups testified in favor of Gard's bill before the Indiana Senate's environmental affairs committee, which she chairs.
Indiana Courts - More on "New computerized courts case management system went live in Monroe County Monday"
Updating these ILB entries from Dec. 18th and Dec. 17th, the Indiana Courts JTAC Commitee has issued a release, available here, titled "Odyssey CMS Live in Monroe County & Washington Township, Marion County." Some quotes:
“The eight Circuit Courts in Monroe County and the Washington Township Small Claims Court in Marion County have begun using the Indiana Supreme Court’s ‘Odyssey’ computer system to manage their cases,” Chief Justice Randall T. Shepard said today. “This is a major step forward in the Supreme Court’s goal to equip all Indiana courts with 21st century case management technology.” Washington Township began using the system on December 14 and the Monroe County courts on December 17.The ILB has added emphasis because these statements raise questions; there seems to be little transparency re details of the state-wide system and how it will operate. For instance:
Public information on cases in these courts is available at no charge via the Supreme Court’s website (www.courts.in.gov). This information will expand each time a new court begins to use Odyssey. Public access and connections between Odyssey and law enforcement and other government agencies furthers the Supreme Court’s companion goal to connect Indiana courts’ case management system to those who need and use court information.
Chief Justice Shepard said the pioneering work of the nine pilot courts in Monroe and Marion Counties will benefit the entire state. “Being first can be a point of pride, but it also requires a special commitment. Monroe Circuit Court Presiding Judge Kenneth G. Todd, Monroe Circuit Court Clerk Jim Fielder, and Washington Township Judge Kimberly Brown, and their colleagues and staff gave us the full measure of their input and expertise,” said Shepard. “They have been great partners in this endeavor.” * * *
“A significant upgrade to Odyssey is scheduled to be released in late winter,” Sullivan said, “adding even more features to help Indiana courts and court clerks – and we hope to have many additional courts using Odyssey by next year’s end.” Statewide rollout will follow over the next several years.
Although the Odyssey system is and will be used by local Indiana courts, Sullivan said that the Supreme Court will be responsible for all costs associated with the licensing, maintenance, and further upgrading of the system. “The General Assembly has directed that a portion of court filing fees underwrite the cost of this project,” Sullivan said, “and we are deeply grateful for the Legislature’s confidence in this effort.”
“With more than 1.5 million cases filed in Indiana courts each year, Hoosier courts and court clerks need 21st century case management systems and Hoosier law enforcement officers, lawyers, government agencies, and citizens need timely and accurate court information,” Shepard concluded. “With nine Indiana courts using Odyssey, free public access to their records, and aggressive rollout plans for 2008 and beyond, we are well underway toward meeting those needs.” [emphasis added by ILB]
- Right now there does not seem to be a way to do across-the-board searches on, for instance, "John Doe." Although only Monroe County courts and Washington Twp. of Marion County small claims courts are online, it looks like one would have to run three searches: Washington Twp., Monroe County Criminal, and Monroe County Civil, and then manually combine the results. Will there be a way to run an across-the-board search as more courts come online?
- The options for public searches are extremely narrow right now. As the ILB said in an earlier entry, there is no way to search for something as elemental as "new cases filed." Will this change? "Even more features" are promised. What are they?
Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
In Re the Matter of J.A.R.; Karen Reynolds v. Kimberly & Raj Lohani (NFP) - "Karen Reynolds appeals the trial court’s grant of an adoption petition filed by Kimberly and Raj Lohani (the “Lohanis”) regarding Reynolds’s son, J.A.R. Reynolds raises one issue, which we restate as whether the trial court’s order granting the Lohanis’ adoption petition is clearly erroneous. We affirm."
NFP criminal opinions today (3):
Ind. Decisions - 7th Circuit issues Indiana-based meth sentencing decision today
Although the Circuit Court is in recess until Jan. 7th, opinions are still being issued.
In U.S. v. Mendoza (ND Ind., Judge Sharp), an 11-page opinion, Judge Rovner writes:
A jury found José Mendoza guilty of distributing amphetamine in violation of 21 U.S.C. § 841(a)(1). Mendoza challenges the sufficiency of the government’s evidence against him and the district court’s procedure for identifying alternate jurors. He also argues that the district court erroneously presumed that a sentence within the guidelines range would be reasonable. We affirm. * * *
Mendoza’s final contention is that the district court erroneously presumed that it should impose a sentence within the guidelines range. Whether the district court followed the proper procedures after United States v. Booker, 543 U.S. 220 (2005), in imposing sentence is a question of law we review de novo. United States v. Tyra, 454 F.3d 686, 687 (7th Cir. 2006). * * *
As there is no indication in the sentencing memorandum that the district court presumed that a sentence within the guidelines range would be reasonable, we find no error in the district court’s imposition of sentence.
Environment - Hearing in Edwardsville today on proposed Duke Energy power plant
Updating this ILB entry from Nov, 20th, headed "Indiana Utility Regulatory Commission Gives Duke Energy Indiana Approval to Build Integrated Gasification Combined Cycle Plant", Bryan Corbin of the Evansville Courier & Press reports today:
A public hearing on an air-pollution permit for the proposed new Duke Energy power plant in Edwardsport, Ind., is scheduled for today in Knox County.The story includes a link to the 378-page Duke Energy draft air-pollution permit.
The Indiana [Department of Environmental Management] will conduct the hearing on the draft operating permit today at North Knox High School Auditorium, 10890 North Indiana 159, Bicknell, Ind.
The meeting starts at 5:30 p.m. Eastern Time - EST; (4:30 p.m. Central time) with the Indiana Department of Environmental Management staff explaining the draft permit. At 6:30 p.m. Eastern, [IDEM staff] will open the hearing to formal public comments on the permit. The hearing is scheduled to last until 10 p.m Eastern
Last month, the Indiana Utility Regulatory Commission unanimously approved Duke Energy's plan for the 630-megawatt baseload plant at Edwardsport.
Intended to replace an aging traditional coal-fired plant that generates about 130 megawatts, the new plant would convert high-sulfur Indiana coal into synthetic natural gas and then burn the gas to produce electricity.
According to the state, the proposed plant would result in a net reduction of more than 262 tons per year of ozone-causing nitrogen oxide pollution and a net reduction of nearly 10,000 tons per year of sulfur dioxide pollution. But it would emit an estimated 4.3 million tons per year of carbon dioxide, believed to be the primary man-made cause of global warming.
Ind. Decisions - Wrongful death suit against a Fort Wayne nursing home reinstated
Reporting on yesterday's COA ruling in the case of In The Estate of Martha O'Neal by Personal Representative Therese Newkirk v. Bethlehem Woods Nursing & Rehabilitation Center, LLC, (see ILB entry here - 2nd case), Niki Kelly of the Fort Wayne Journal Gazette writes today:
The estate of an Allen County woman can move forward with a wrongful death suit against a Fort Wayne nursing home, the Indiana Court of Appeals ruled Wednesday.
Martha O’Neal fractured her femur in August 2001. After surgery she was transferred to Bethlehem Woods Nursing and Rehabilitation Center, 4430 Elsdale Drive. A few days later, O’Neal’s surgical incision was torn because the wheelchair Bethlehem gave her was too small, according to the court ruling.
O’Neal also was left on a bed pan for six hours at some point during her stay, resulting in O’Neal contracting severe ulcers. Then on Sept. 22, after a dialysis treatment, a Bethlehem employee discovered O’Neal lying in a pool of her own blood, the ruling said.
O’Neal was transferred to the hospital on the same day, but she died Nov. 6.
Her estate filed a wrongful death claim against Bethlehem Woods in October 2003.
But Bethlehem argued that O’Neal’s case should be handled under the medical malpractice law, which has a statute of limitations of two years from the occurrence of the malpractice.
The trial court agreed and originally dismissed the case.
But attorneys for the estate appealed and argued the case should be handled under 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.
The appellate court ruled Wednesday that the wrongful death law controls in the case, which was remanded to the trial court for further proceedings, including a possible trial.
Ind. Courts - "St. Joseph County judge has stopped sending female offenders to the Indianapolis Juvenile Correctional Facility" [Updated]
Tim Evans of the Indianapolis Star reports in the main story today on the front-page of the paper:
A St. Joseph County judge has stopped sending female offenders to the Indianapolis Juvenile Correctional Facility, claiming the state-run detention center is understaffed and lacks adequate rehabilitative and educational services.[Updated 12 PM] Jeff Parrott of the South Bend Tribune now has a story, based on interviews this morning. Some quotes:
"I have decided it is neither safe nor productive" to continue sending female juveniles to the Department of Correction facility on Girls School Road, Nemeth said in a letter he sent Monday to Gov. Mitch Daniels.
Nemeth said he was appealing directly to the governor after attempts to work out problems with DOC Commissioner J. David Donahue were unsuccessful.
The judge said his decision to stop placing youths at the state facility was the result of his court-ordered review of the facility conducted in October. His letter said that review turned up numerous deficiencies, including:
• Inadequate staffing to maintain a safe environment.
• Classroom settings that "can only be described as nonproductive at best."
• The lack of vocational programs.
• The failure by the facility psychiatrist in many cases to adequately explain to inmates why they have been placed on psychotropic drugs, to justify their continued use and to provide a monthly follow-up.
St. Joseph County’s juvenile judge says he is so concerned about conditions at the Indiana Girls School that he won’t send any more girls there until changes are made.
In a pointed letter he sent this week to Gov. Mitch Daniels, Judge Peter Nemeth said the Indianapolis facility, along with the so-called Indiana Boys School in Pendleton, must stop treating children as "adult prisoners" instead of training and rehabilitating them to re-enter the community.
"There’s no requirement that anybody achieve anything," Nemeth told The Tribune today. "It’s like how they warehouse them in the adult system. You do your time and you’re gone." * * *
Nemeth said his staff has learned through interviews with St. Joseph County girls at the facility that many are having frequent sex with each other there because staff levels are too low for adequate supervision. Some staff know it’s happening but don’t care, some girls have told Nemeth’s personnel.
The girls also complained that male staff members, men they identify by name, often make sexual advances toward them, speaking and touching them inappropriately.
Speaking with The Tribune, Nemeth called homosexual sex "aberrant" and "not normal," but said heterosexual sex also has no place in a juvenile rehabilitative setting, where the juvenile needs to instead focus on changing thinking and behavior.
More importantly, the rampant sex, if true, is symptomatic of the underlying lack of supervision and staffing, the judge told The Tribune.
"My staff has attempted to work through (Department of Correction) Commissioner (J. David) Donahue’s office, but I suspect that he is inhibited by fiscal restraints placed upon his department, so that is why I am appealing directly to you to ‘fix’ the Department of Correction as it applies to juveniles," Nemeth wrote to Daniels.
Wednesday, December 19, 2007
Ind. Decisions - Court of Appeals issues 4 today (and 10 NFP)
For publication opinions today (4):
In Johnny H. Tigner v. Linda Tigner, a 12-page, 2-1 opinion, Judge Robb writes for the majority:
Johnny Tigner (“Father”) appeals the trial court’s judgment ordering him to pay Linda Tigner (“Mother”) $17,434.44 toward the cost of drug and alcohol treatment for their daughter, seventeen-year-old J. Father raises three issues for our review, which we consolidate and restate as whether the trial court properly ordered Father to pay these expenses. Concluding that the trial court erroneously required Father to prove the expenses were not reasonable and necessary, we reverse and remand. * * *In The Estate of Martha O'Neal by Personal Representative Therese Newkirk v. Bethlehem Woods Nursing & Rehabilitation Center, LLC, a 20-page opinion, Judge Robb writes:
Conclusion. The trial court erred in concluding that Father had the burden to prove J.’s medical and counseling expenses were neither reasonable nor necessary and erred in its calculation of the amount of Father’s obligation. The trial court’s judgment is, therefore, reversed, and we remand to the trial court for further proceedings consistent with this opinion.
BARNES, J., concurs.
KIRSCH, J., dissents with opinion. [which begins] I respectfully dissent because I believe there is an important issue in the case that the majority does not address: Namely, what is the effect of Mother’s breach of the provisions of the Decree of Dissolution regarding shared custody?
Here, the essential facts are undisputed. Mother acted unilaterally in placing the parties’ daughter at a facility that was not covered by the parties’ medical insurance. Such unilateral action was a breach of Mother’s obligations under the shared custody order of the court and the parties’ own settlement agreement. Mother has not offered any justification for taking such unilateral action. Had Mother complied with her obligations, the tremendous costs of the placement at an uninsured facility may have been avoided. Father was never afforded the opportunity to participate in the decision-making that may have avoided such placement and such costs.
I believe it is not only unfair, but also bad policy to allocate any of the expenses of the placement to Father.
The Estate of Martha O’Neal (the “Estate”), by its personal representative, Therese Newkirk, appeals from the trial court’s grant of summary judgment in favor of Bethlehem Woods Nursing and Rehabilitation Center, LLC (“Bethlehem”). On appeal, the Estate raises one issue, which we restate as whether the trial court properly granted summary judgment in favor of Bethlehem. We reverse and remand, concluding that although the trial court properly concluded the professional services statute of limitation applies to Bethlehem, that statute does not control over the Indiana Wrongful Death Act’s (the “WDA”) statute of limitation. * * *Brian Southern v. State of Indiana - "In summary, we find that there was no error in admitting Southern’s statements from a second interview, permitting the jury to view the polygraph video which depicted Southern in his jail uniform, or in the admission of evidence of subsequent acts. Finally, the trial court did not abuse its discretion in sentencing Southern to forty years imprisonment. Affirmed."
Consistent with the court’s holding in Holmes, we conclude that the professional services statute of limitation is less comprehensive than the MMA and therefore does not control over the WDA’s statute of limitation. Thus, it follows that the WDA’s statute of limitation controls, the Estate’s wrongful death claim was timely filed, and the trial court erred when it concluded that the Estate’s wrongful death claim was time-barred based on the professional services statute of limitation.
Conclusion. Although the trial court properly concluded the professional services statute of limitation applies to Bethlehem, that statute does not control over the WDA’s statute of limitation. Therefore, because the Estate’s wrongful death claim was filed within two years from the date of O’Neal’s death, it is timely.
In Nicole R. Spacey v. State Farm Fire & Casualty Company , an 8-page opinion, Judge Mathias writes:
The issue before us is whether State Farm complied with the cancellation process as set forth in Indiana Code section 27-7-12-3 and the Huckstep insurance policy such that the June 27, 2002 cancellation notice was effective. The parties concede that notice of policy cancellation was received but disagree whether the notice was received more than ten days before the policy’s cancellation date. * * *NFP civil opinions today (0):
State Farm contends that the term “days” as used in the statute refers to calendar days. Spacey disagrees and argues the term “days” must mean business days. The statute provides no definition for this term nor does the insurance policy. The trial court determined that it was more likely than not that the Hucksteps received the cancellation notice more than ten days before the June 27, 2002 cancellation date but did not address the issue of whether “days” means calendar or business days. * * *
[H]olidays would not interfere with use of insurance as most major insurers offer customers various opportunities to maintain contact with their insurer as well as to purchase and maintain coverage. As can be seen in advertisements on television, radio, and the internet, insurers seek to impress upon the consumer the ease with which a person can obtain insurance. The realities of the insurance business allow consumers to purchase coverage in minutes during any day of the week. Pursuant to Indiana Code section 27-7-12-3(b), a consumer is entitled to ten days notice before cancellation of a residential policy. We conclude that ten calendar days is sufficient to give a consumer notice of cancellation and to obtain other insurance if he so chooses.
Based on the trial court’s finding that the notice was sent on June 12, 2002, we conclude that the trial court could reasonably infer, based on the evidence and testimony adduced at trial, that the notice arrived at Huckstep’s residence more than ten calendar days before the June 27, 2002 date of cancellation. Therefore, the trial court’s findings are not clearly erroneous and we affirm the trial court’s judgment in favor of State Farm. Affirmed.
[ILB - Here is a 2002 calendar.]
NFP criminal opinions today (10):
Law - "Ave Maria Law Wants To Sell Its Naming Rights"
Here are links to some earlier ILB entries on Ave Maria Law School. Today it looks like there is chance the school will be renamed. If, that is, someone with $20 million picks up the naming rights, according to this entry yesterday in the WSJ Law Blog.
Ind. Decisions - More on: Appeal of wine shipping case to 7th Circuit
Updating this ILB entry from Dec. 13th, several more amicus briefs have been filed in the appeal of Baude v. Heath to the 7th Circuit, these on behalf of the Appellees, including members of the General Assembly who support the district court opinion, and a number of wine growers groups. Access them here.
The group, Family Winemakers of California, has issued a press release that begins:
SACRAMENTO, Calif.--(BUSINESS WIRE)--Stressing the need to preserve Indiana adult consumers’ choice in wine and maintain the integrity of the landmark Granholm v. Heald direct shipping decision, Family Winemakers of California (FWC) filed an amicus curiae brief in the 7th Circuit Court of Appeal on December 14 asking the court to sustain the U.S. District Court’s decision in Baude v. Heath. “Indiana consumers were granted unfettered choice in wine by the lower court, which invalidated portions of Indiana’s direct shipping statute,” said Paul Kronenberg, FWC President. “Even when the U.S. Supreme Court told Michigan and New York to stop discriminating against out-of-state wineries, efforts to protect in-state interests has continued elsewhere to the detriment of consumers. We argue that the state laws that were invalidated fail on constitutional grounds and are clearly designed as economic protection for Indiana wholesalers.”Here is a direct link to the Family Winemakers brief. Note that Kenneth W. Starr, Kirkland & Ellis, is the first name on the brief.
The friend-of-the-court brief argues that the provision of Indiana law that prohibits wine producers in states producing over 90% of all the Nation’s wine (chiefly, California, Oregon and Washington) from obtaining a direct shipping permit because their home states extend wholesaling privileges violates the Dormant Commerce Clause. Indiana cannot seek to influence the laws of other sovereign states or punish wineries for benefits conferred by other states.
“The struggle to secure a national union for wine sales continues as we approach the 3rd anniversary of the Granholm decision. States like Indiana need to understand that pressure from wholesaler interests cannot survive the Supreme Court’s ruling on fostering interstate commerce. Freedom to conduct commerce across state boundaries without undue restrictions was a fundamental principle of the framers of the Constitution,” noted Kenneth W. Starr, former Solicitor General and Of Counsel to Kirkland & Ellis.
Ind. Courts - Monroe County domestic violence court will consolidate cases
According to this story by Andy Graham in the Bloomington Herald Times ($$$), "as of Jan. 1, a new court led by Monroe Circuit Judge Marc Kellams will be dedicated solely to ... such cases. " Some quotes:
Kellams will hear all felony domestic violence and new misdemeanor cases in the new court.For background, see this Oct. 15th ILB entry, and this one from Nov. 7th.
The court is one of two new ones, the county’s eighth and ninth, authorized by state law in 2005 based on the county’s case load.
The need is even greater now. As of the first half of 2007, statistics indicated the county actually needs 10.7 judges.
A new judge, Christine Talley Haseman, was appointed by Gov. Mitch Daniels in November. She will handle the former civil case workload of Monroe Circuit Judge Teresa Harper, who will take over Kellams’s current criminal court. That will free him to develop the domestic violence court, something he and colleagues have long discussed.
“Other judges who have worked on this issue — Steve Galvin, Mary Ellen Diekhoff, Teresa Harper — are assisting me with this effort,” Kellams said. “Presently, with this first step, the goal is consolidation of criminal cases. I think, then, the development of the court will be ongoing.
“It is altogether possible that, in the future, all civil cases involving protective orders, divorces, child custody cases, paternity disputes and the like can also be consolidated in one of the civil jurisdictions so that we can work together.”
Ind. Courts - More on: Senate Judiciary committee approves Tinder nomination to 7th Circuit
Updating this ILB entry from Nov. 1, which quoted Maureen Groppe of the Star Washington Bureau reporting that:
The Senate Judiciary Committee today unanimously approved U.S. District Judge John Daniel Tinder's nomination to the federal appeals court. The Indianapolis native must still be voted on by the full Senate., This morning Groppe reports:
WASHINGTON - The Senate has confirmed U.S. District Judge John Daniel Tinder of Indianapolis to a seat on the 7th U.S. Circuit Court of Appeals.From a press release from Seantor Evan Bayh:
The vote, held late Tuesday, was 93-0.
President Bush nominated Tinder to replace Judge Daniel A. Manion, a former Indiana state senator. Manion is moving to "senior status" on the court, giving him a lighter caseload.
The 7th Circuit, based in Chicago, is the last stop before the U.S. Supreme Court for cases from Indiana, Illinois and Wisconsin.
Tinder's nomination was supported by Indiana senators Richard Lugar, a Republican, and Evan Bayh, a Democrat. The American Bar Association gave Tinder its highest rating of "well qualified."
The Senate's votes on Tinder's earlier promotions -- to the district court seat and to U.S. attorney for Indiana's southern district in 1984 -- also were unanimous. He has held the district court seat since 1987.
John Tinder is the embodiment of good judicial temperament, intellect and even-handedness. He has been praised from both sides of the political spectrum for his service in the Southern District of Indiana, and I am confident he will receive those kinds of reviews, as well, on the 7th Circuit.
I have known John for 20 years. Judge Tinder was born in Indiana, went to law school in Indiana, and has spent his entire legal career in Indiana, where he and his wife Jan currently reside. Judge Tinder is a Hoosier through and through.
At only 57, Judge Tinder has had a distinguished legal career that would make most lawyers envious. Judge Tinder has served as a federal district court judge, federal and local prosecutor, public defender, adjunct professor, and private practitioner. In 1984 at 34 years of age, he was nominated by President Reagan to become the U.S. Attorney for the Southern District of Indiana. Three years later, Reagan nominated him to become a federal judge. With over thirty years of experience, Judge Tinder has already practiced on both sides of the bench in the Seventh Circuit, arguing cases before it as an Assistant U.S. Attorney and presiding by designation in twelve cases. Overall, he has presided over 750 trials and has published over 700 opinions.
By all accounts, Judge Tinder is a good, smart, honest judge, who is highly experienced and capable. Judge Tinder has received the highest possible rating from the ABA.
Tuesday, December 18, 2007
Ind. Courts - "Church’s admission of abuse not enough, accuser says"
The ILB has had several entries about former priest Harry E. Monroe, including this one from June 3, 2006, headed "Lawsuit against church dismissed : Statute of limitations expired, judge rules; General Assembly partially blamed"; this one from June 5, 2006, and this one from Aug. 21, 2006, headed "Lawyers in Indianapolis Archdiocese sex abuse cases featured."
A story posted late yesterday by Robert King of the Indianapolis Star reports:
A man who was an altar boy at a Southside parish 30 years ago finally heard the Archdiocese of Indianapolis publicly acknowledge today that his former priest was a molester.From a story by Ken Kusmer of the AP:
As much like a victory as that felt, the man who alleges he was abused and is known in court records as John Doe NM still says there is much more the archdiocese can do to come clean. For starters, he said, it can stop trying to quash his fraud lawsuit based on the technical argument that it was filed after the statute of limitations. “I can’t believe that they are even trying to fight it,” he said. “What does the church really stand for?”
The scene today in Marion Superior Court could become increasingly common: the archdiocese squaring off in court against a former parishioner who claims the church knew the Rev. Harry Monroe was a danger to children but did nothing to spare them from harm.
In addition to John Doe NM, 12 men who claim to have been abused by Monroe as boys have sued the archdiocese. Today, attorney Jay Mercer asked Judge David A. Shaheed to rule in favor of the archdiocese on the basis that the claim was filed too late. He said it should have been made by the time John Doe NM, now in his early 40s, turned 20.
Before making that case, Mercer did what the archdiocese had denied in its initial responses to the lawsuits — he acknowledged the former priest’s abuse. * * *
Today, [John Doe NM’s attorney, Pat Noaker] argued that the case should go forward because the six-year time limit on fraud cases should have begun ticking only after John Doe NM learned, in 2005, that the archdiocese knew of Monroe’s abusive tendencies before assigning him to St. Catherine’s Parish.
For the archdiocese to assign Monroe a position in a parish where he had free access to children, Noaker said, was akin to actively representing that Monroe was a person of good character and of no threat to children. That, he said, is the essence of fraud.
The charge of fraud is the only count remaining in a lawsuit in which a plaintiff identified only as John Doe said he was 10 when Monroe began molesting him in 1977 at the now closed St. Catherine Parish in Indianapolis.
At stake in most of the lawsuits is the contention by plaintiffs' attorney Patrick Noaker that the Archdiocese of Indianapolis should be held liable for fraud for reassigning Monroe to different parishes after it learned of the molesting allegations against him. The statute of limitations for child molestation has run out in the cases.
"This case is a case where they found out he was molesting kids at one parish and transferred him to another parish, and we have documentary proof of that," Noaker told reporters after the hearing.
"The archdiocese claims in open court it has no duty to tell parents when their priest is a child molester," he said.
Noaker has introduced as evidence a letter from a former priest personnel director for the archdiocese to a House of Affirmation psychological treatment center for priests written before Monroe was assigned to St. Catherine.
The letter, which has been sealed in court files, described complaints against Monroe by parents of boys at two other Indianapolis parishes, including one that said Monroe had spread peanut butter on the bare buttocks of one boy. The letter also expressed concerns over the attention Monroe was giving to sixth-grade boys, Noaker said.
"The archdiocese defrauded this family and all the families in this parish because they represented Father Monroe to be safe around kids and in fact even gave him assignments. He was head of the altar servers. He was head of the CYO, the Catholic Youth Organization," Noaker said.
The six-year Indiana statute of limitations for fraud has not run out, Noaker asserted, because the plaintiff and his parents only learned in 2005 that the archdiocese was aware of complaints against Monroe before assigning him to St. Catherine.
"How was this family to know the archdiocese had put a child molester in their church?" Noaker said in court.
The Wisconsin Supreme Court has upheld a ruling in a similar fraud case against the Archdiocese of Milwaukee in which it assigned a priest who had been accused of molesting to work in a setting with children, Noaker said.
Mercer, however, argued that archdiocesan silence about a priest's past did not constitute misrepresentation to future parishioners. * * *
Indianapolis archdiocesan representatives have said Monroe was removed from ministry in 1984, but in his deposition, Monroe said that he was never laicized, or formally removed from the priesthood by the Vatican.
Indiana Courts - "New computerized courts case management system went live in Monroe County Monday"
Updating this ILB entry from yesterday, Bethany Nolan of the Bloomington Herald Times reports today:
A new computerized courts case management system went live in Monroe County Monday.
The county is a test site for the new Web-based system, called Odyssey, which the state Supreme Court’s Judicial Technology and Automation Committee [JTAC] hopes will be used in all 92 counties within five years.
The mood was a bit frantic at the Justice Building Monday as county workers worked with the new system for the first time. Support staff spent much of the afternoon going from office to office, answering questions and figuring out problems.
“I think we’re holding our own,” county Clerk Jim Fielder said. He said staffers in his office came in for several hours Sunday afternoon to “test drive” the system and work out some of the kinks prior to using it for the first time Monday.
The state is footing the bill for the system, developed by Texas-based Tyler Technology. The system enables courts to automate functions such as imaging, accounting, docketing and creating calendars and reports. It also allows citizens to check the status of a case through the Internet for free, creates a statewide registry of protective orders and allows law enforcement to issue paperless “e-tickets” that will transmit directly into the system. It also connects with the state Bureau of Motor Vehicles, the Indiana State Police, the Department of Correction and the Family and Social Services Administration.
State officials are paying for the system through user fees — of the fee people pay to file a civil case, $7 is dedicated to the project. That’s raised enough to pay the expected $7 million to $8 million licensing fees for the program. The state also expects to pay for updates, maintenance and to keep up a central server system in Indianapolis.
Marion County’s small-claims court is serving as a test site as well.
Courts - Still more on: Illinois Judge Refused Post-Wreck DUI Test While Another Judge Ditched Beer
Remember this Illinois story from 2006, which coincided with reports here of "Marion Superior Court judge accused of drunken driving."
An update today from the St. Louis Post Dispatch, reported by Nicholas J.C. Pistor:
CHICAGO — Two St. Clair County judges involved in a drunken-driving accident last year won't be stripped of their black robes.And the Indiana incident? This May 31st ILB entry relates that: "The [Indiana] Supreme Court has issued a 2-page public reprimand of John F. Hanley, Judge of the Marion Superior Court, who was arrested for DUI on Dec. 4, 2006."
The two, Jan V. Fiss and Patrick M. Young, stood before a seven-member judicial discipline board Monday afternoon and apologized for their roles in a drunken-driving case that threatened their jobs and reputations.
The Illinois Courts Commission reprimanded the judges at a hearing in Chicago. The reprimands carry no consequences other than public embarrassment. The two will be allowed to remain on the bench, receive their salaries and, when they retire, their pensions. They could have been censured, suspended without pay, removed from office or not penalized at all.
According to a complaint filed by the Illinois Judicial Inquiry Board, Young drank eight beers and two Bloody Marys before getting behind the wheel and crashing head-on with another man's pickup.
Fiss sat in the passenger seat and was spotted by a police officer hiding a beer can in his coat after the wreck. According to the complaint, Fiss had six beers and two Bloody Marys that day. * * *
Young, 59, was charged with driving under the influence. In a plea agreement, Young was given two years of court supervision and a $1,500 fine.
Fiss, 65, pleaded guilty to a charge of illegal transportation of alcohol and was fined $500.
In the wake of the accident, Fiss stepped down as chief judge of the 20th judicial circuit.
Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)
For publication opinions today (1):
In Franklin Turner v. State of Indiana, an 18-page opinion, Chief Judge Baker writes:
This case is before us again following a remand to the trial court after we determined that appellant-defendant Franklin D. Turner should have been permitted to withdraw his guilty plea. Following remand, Turner was tried and convicted of Dealing in Cocaine, a class A felony, Possession of Cocaine, a class A felony, Possession of Marijuana, a class A misdemeanor, Possession of Paraphernalia, a class A misdemeanor, Maintaining a Common Nuisance, a class D felony, and Possession of a Schedule IV Controlled Substance, a class C felony.NFP civil opinions today (3):
In this appeal, Turner argues that his convictions must be reversed because: (1) the trial court failed to follow this court’s instructions on remand in conducting a suppression hearing; (2) the police officers improperly searched Turner’s trash; (3) cocaine was improperly admitted into evidence at trial; (4) the evidence was insufficient to support the conviction for dealing in cocaine;7 and (5) he was improperly sentenced. Concluding that Turner’s trash was properly seized in accordance with the standard announced by our Supreme Court in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), and finding no other error, we affirm the judgment of the trial court.
Paternity of C.K., Kelli R. York v. Joseph Alan Keesling (NFP) - "Kelli York (“Mother”) appeals the trial court’s grant of a petition for modification of child custody filed by Joseph Keesling (“Father”). Mother raises five issues, which we revise and restate as: I. Whether the trial court had authority to amend its order modifying custody; and II. Whether the trial court abused its discretion by modifying custody. We affirm."
Jon and Sandra Schmoll v. James and Dawn Dines, Town of Porter, Indiana, et al (NFP) - "The owners whose property abuts Glenwood Beach Trail certainly have a common interest in using it to gain access to their homes. Thus, in a limited sense, the Glenwood Beach Trail homeowners, including the Dines and the Schmolls, fit within an accepted definition of “public.” The BZA’s use of the term “easement” is therefore consistent with dictionary definitions for “right-of-way” and “public,” within the parameters discussed above. The Schmolls offer their own interpretation, but we need not consider it because we find the BZA’s interpretation to be reasonable. We therefore conclude that the BZA acted reasonably in upholding the Dineses’ building permit. Affirmed."
Invol. Term. of M.G., and Jerry Gordon v. Marion Co. Dept. of Child Services, and Child Advocates (NFP) - "Appellant-respondent Jerry Gordon appeals the order terminating his parental rights with respect to his daughter, M.G. Jerry contends that the trial court erroneously concluded that appellee-petitioner Marion County Department of Child Services (DCS) met its burden of proving the requisite statutory elements. Finding no error, we affirm the judgment of the trial court."
NFP criminal opinions today (7):
Ind. Decisions - Probation sentencing subject of Supreme Court opinion today
In Russell Prewitt v. State of Indiana, a 7-page, 5-0 opinion, Chief Justice Shepard writes:
The question here is whether the provisions of the Indiana Code governing probation violations permit a trial judge to order execution of one portion of a previously suspended sentence and continuation of another portion as probation under modified terms. We hold that such a disposition is within a court’s statutory authority. The appropriate standard to apply when reviewing a sentence imposed for a probation violation is abuse of discretion. * * *
After the trial court found that Prewitt had violated his probation, it ordered that he serve two years of his previously suspended sentence and that he receive post-incarceration treatment at Richmond State Hospital as a new condition of probation.
On appeal, Prewitt argues that the trial court did not have authority both to execute a portion of his previously suspended sentence and to modify the conditions of probation. The Court of Appeals agreed and reversed, directing that Prewitt be resentenced. Prewitt v. State, 865 N.E.2d 669 (Ind. Ct. App. 2007). We granted transfer. * * *
Given Prewitt’s multiple probation violations, past criminal history, and unwillingness or inability to complete the halfway house program, the trial court acted well within its discretion to order him to serve two years of his previously suspended sentence and to receive treatment at Richmond State Hospital.
Conclusion. For the above reasons, we affirm the decision of the trial court.
Ind. Law - Continuing with: Do the changes to the sex offender law mean longtime homeowners must move?
Following up on this ILB entry from Aug. 19th, re three John Doe cases in Tippecanoe County, and this one from Nov. 29th headed "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", Sophia Voravong of the Lafayette Journal Courier has two new reports today.
From the first, headlined "John B. Doe challenges law," some quotes:
A Tippecanoe County judge must decide whether a state law that ordered a sex offender to move from his Lafayette home provides protection for neighborhood children or punishes the offender.In a second story, Voravong reports:
It will be the key factor in whether a lawsuit filed by the man, a registered sex offender known only as John B. Doe in court documents, can proceed in Tippecanoe Superior Court 2.
Attorneys for the defendants, Tippecanoe County Prosecutor Pat Harrington and Sheriff Tracy Brown, requested a hearing to dismiss the complaint. The hearing was Monday morning.
The attorneys argued that a recent Indiana statute prohibiting those convicted of sex offenses against children from living within 1,000 feet of a school, youth program center or public park is in the community's best interest.
"If the law saves one, two or three children from being molested in a year, then that's rational," said Deputy State Attorney General Robert Wente, who represents Harrington. * * *
[Doe's] lawsuit is one of three complaints filed in Tippecanoe County questioning the law that forced 28 offenders here to move or be charged with a Class D felony. Deputy Prosecutor Laura Zeman said Monday that all the offenders have relocated.
A hearing for one of the other Tippecanoe County lawsuits, this one filed by the Indiana Civil Liberties Union under the alias John Doe, also was held Monday in Tippecanoe Circuit Court.
John B. Doe's attorney, Earl McCoy of Lafayette, questioned the logic of the law, which took effect July 1, 2006. His client is allowed to visit his home, where he had lived with his wife and stepchildren for about six years, any time of day.
That includes daytime hours when children are headed to school, and afternoon when they are coming home.
"He can be there all day. He just can't sleep there," McCoy said. "Nothing about this law is protecting the children."
He also argued that the law constitutes punishment because, if John B. Doe settles in a new home, nothing in Indiana's statute would prevent neighbors from hosting youth programs such as Boy Scout or Girl Scout meetings.
"They can create a situation to oust a neighbor if they want to," McCoy said. "There's no guarantee. That's our concern."
Judge Thomas Busch, who is presiding over the complaint, also questioned whether the law is a step too far.
"Of course, there's extreme punishment where we could banish all of them to Australia or if you were to cut off the hands of a thief," he said. "But isn't there some point where even though the motive is protection of children, the action is punishment?"
Another hearing is scheduled in January.
The Indiana Civil Liberties Union is arguing on behalf of a registered sex offender in Tippecanoe County who had to move out of the childhood home he shared with his mother.
The Lafayette man was one of 28 people forced to move under a recent Indiana law that prohibits those convicted of sex offenses against children from living with 1,000 feet of a school, youth program center or public park.
His lawyer is questioning whether officials here correctly interpreted the statute and whether the man, identified only as John Doe in court documents, is being punished again for a crime committed years ago.
"Even if there is not a punitive purpose behind the statute, it does have a punitive effect," ICLU attorney Kenneth Falk said during a summary judgment hearing Monday before Judge Don Daniel of Tippecanoe Circuit Court.
"He's now a transient, subject to moving from place to place. Mr. Doe has no plans of being able to settle down."
The anonymous lawsuit is one of three filed in Tippecanoe County -- making up a handful of similar complaints filed in Indiana since the legislation took effect July 1, 2006. * * *
Falk's argument is that the law should not apply to anyone convicted of a child sex crime before that date. Confusion comes from the statute's legislative history, which says it applies "only to crimes committed after June 30, 2006."
But if the intent of state legislators was to apply the legislation to all, Falk contends that it's a matter of "ex post facto," or aggravated punishment.
Ind. Decisons - Supreme Court answers a question of first impression: how should an Indiana court analyze a request to protect a trade secret from pre-trial discovery?
In Bridgestone Americas Holding, Inc., et al v. Violet Mayberry, et al, an 11-page, 5-0 opinion, Chief Justice Shepard writes:
We encounter here a question of first impression: how should an Indiana court analyze a request to protect a trade secret from pre-trial discovery? We conclude that the test prevailing in other jurisdictions is suitable for application under Indiana Trial Rule 26(C).This case has been the subject of several ILB entries, including this one from March 13, 2007, which inlcuded this quote from a Jon Ketzenberger Indianapolis Star column:
In this case, the demanding party did not demonstrate the necessity of disclosing the secret. Hence, the trial court erred in ordering it produced. * * *
The issue in this case centers on the burden each party bears and the analysis the trial court must follow when one party seeks discovery of a trade secret. Bridgestone advocates a multi-part, burden-shifting analysis for applying Trial Rule 26(C), which governs discovery protective orders. (Appellants’ Br. at 9-19; Amicus Br. at 10-15.) Using its proposed analysis, Bridgestone argues the appellees have not demonstrated sufficient need for the skim stock formula to outweigh the harm of disclosure to Bridgestone. (Appellants’ Br. at 17-19.) Appellees contend that the trial court’s analysis was adequate and that it properly followed the rubric of Rule 26(C). (Appellees’ Br. at 15-28.) * * *
Because appellees did not meet their burden for showing necessity, a final balancing of the interests is unnecessary to the outcome of this case. Bridgestone demonstrated that the skim stock formula is a trade secret, but appellees could not demonstrate that they needed the formula in presenting their product liability action. Disclosure was therefore inappropriately ordered.
Conclusion. We reverse the trial court’s protective order directing disclosure of Bridgestone’s skim stock formula, and we remand for further proceedings on the merits.
The question to be decided by Indiana's top court: whether Bridgestone can protect the formula for a rubber compound as a trade secret.
Amid the lawyers arguing the case are two for the Indiana Legal Foundation, a pro- business group established by Harry Ice nearly 30 years ago. It's typical of the foundation's cases, said Jon Laramore, one of the attorneys in the case. "This is not a glamorous case that would make the front page," Laramore said. "But the issue is of importance to business and the community at large."
Laramore worked closely with Eli Lilly and Co. and Zimmer Holdings, which have many trade secrets they want to shelter.
Indiana law protects trade secrets, but the companies worry the information-gathering process during lawsuits could give away those secrets.
Monday, December 17, 2007
Ind. Courts - Further update on: "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"
The ILB had several entries early this month under the heading Ind. Courts - "State court plan to link county courts by 2015 may not permit interfaces by long-existing private company that already links more than 40 counties" Access them here: Dec. 3; Dec. 4; and Dec. 7.
The crux was that, effective Dec. 17th, which is today, Phase 1 in the state court (JTAC) plan to install their own case management system in all local courts, and to link the courts, would go into operation. The first courts, or "pilot" courts, are the Monroe County courts, and the Marion-Washington Twp. Courts.
A private company, Dox-Pop, currently is able to access the CMS systems of 44 counties, and provides a service which links this information and makes it available, some free to the public, and some to subscribers for a fee.
Dox-Pop reportedly has been unable to obtain authorization from JTAC to access the new CMS installed in Monroe County. Today Dox-Pop President, Ray Ontko, issued this release:
As of December 17, 2007, court case information from Monroe County is no longer being updated in the Doxpop System. All other county and municipal courts that have partnered with Doxpop are unaffected by this change. Doxpop will continue to provide up-to-date case information in 132 courts in 43 other counties.An inquiry to Mr. Ontko as to how communications were proceeding with JTAC led to this further information:
The courts of Monroe County have switched to a new case management system (CMS) provided by the State Court's Judicial Technology and Automation Committee (JTAC). In anticipation of this change, Doxpop made its first written request to begin work on an interface with the JTAC system on January 29, 2007. On October 25 we formally requested access to Monroe County case information via the new system. We are waiting for the Division of State Court Administration to act on our request. Until Doxpop is granted access to public information in the JTAC system, Doxpop is unable to provide up-to-date information for Monroe County court cases.
Doxpop will continue to provide access to historical Monroe County case information, but new cases filed in Monroe County and new information about existing Monroe County cases will no longer be available via the Doxpop website. Cases filed in Monroe County on or after 12/17/2007 will not be available on Doxpop. Cases filed in Monroe County prior to this date will not be updated in Doxpop to reflect additional minute entries, nor changes to parties, attorneys, hearings, or case dispositions. Similarly, Doxpop is unable to provide e-mail notification for new or changed case information for Monroe County cases as of this date. Basically, the information available in Doxpop about Monroe County court cases will be "frozen" as of December 17, 2007.
We inquired about the status of our request before Thanksgiving and received word that Executive Director of the Division of State Court Administration, Lilia Judson, would bring this matter before the Court but not before December 3. On Friday, December 7, we received a letter from Ms. Judson seeking clarification on a number of matters, and on Monday December 10, we responded. I followed up later in the week to offer to meet with Ms. Judson to answer any further questions that she or the Court may have. Ms. Judson replied that the Court required no further information at this time.An ILB inquiry to David J. Remondini, Chief Deputy Executive Director, Supreme Court, Division of State Court Administration, referencing the DoxPop release, led to this response:
This change is due to the Supreme Court's rollout of what is expected to be a statewide case management system. Monroe County is the first county to "go live" with the Odyssey case management system. That happened today and really represents a great step forward for court technology. The Marion County Washington Township Small Claims Court went live earlier.Here is the new State Court Administration case records inquiry page. Right now the records of two courts are available: Monroe County courts, and Marion - Washington Twp. courts. Here is the Help page.
Now, Monroe County case information (and information on the Marion County Washington Township Small Claims Court) is available at no charge at www.courts.in.gov. Click the "Court Case Public Records Search" in the upper right hand corner.
Doxpop's request that this information be transmitted electronically to it for its use is under advisement with Supreme Court.
What does one see? Try Robert M. Knight v. IU, a civil case. One accesses a docket-type document titled "events and orders of the court."
The ILB is unable to figure out how to use the new system to find, for instance, new cases filed after 12/1/07. And no documents are available.
Ind. Courts - Terre Haute mayoral battle now heads to trial court, redeux
This ILB entry from Saturday was headed "Terre Haute mayoral battle now heads to trial court." That was after its brief sojourn to the Ind. Supreme Court.
But it was not to be, at least not as scheduled for today, Monday. Maybe Tuesday. Maybe not. The Terre Haute Trib-Star reports this afternoon:
A new hearing has been set for 8:30 a.m. Tuesday in the petition challenging the candidacy of Mayor-elect Duke Bennett.
The U.S. District Court today remanded Mayor Kevin Burke’s challenge of Bennett’s candidacy back to Vigo County Circuit Court.
The federal court’s decision came the same day after Bennett’s attorney, James Bopp Jr., filed a “notice of removal” to move the case to the federal court from the state court. Burke’s attorneys then filed an emergency motion to remand the case back to the state court. * * *
Circuit Court Judge David Bolk conducted a conference with legal representatives of both parties this afternoon, at which time the new hearing was set.
Courts - More on "Sentencing Commission Votes to Allow Retroactive Easing of Crack Cocaine Sentences"
Updating this ILB entry from Dec. 12th, Adam Litpak, NYT law columnist, writes today that the changes of the last week: (1) the two Supreme Courts opinions, and (2) the changes by the U.S. Sentencing Commission, will make little total difference:
Neither the commission nor judges can do anything about the mandatory minimum sentences that retain the same disparities. The sentences are required by a 1986 law, enacted when crack was new, terrifying and seemingly unstoppable. Only Congress can change it. * * *
There are several bills kicking around Congress meant to harmonize cocaine sentencing laws. But, perhaps perversely, the Supreme Court’s decisions last Monday may make Congressional action less likely. Letting judges have too much discretion does not sit well with some legislators, and that discretion can be controlled through mandatory minimums.
Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)
For publication opinions today (2):
In Chuck W. Adams v. Mauro Chavez, M.D., et al., a 5-page opinion on rehearing, Judge Robb writes:
In Adams v. Chavez, 874 N.E.2d 1038, 1043 (Ind. Ct. App. 2007) (“Adams II”), we held that Indiana Code section 34-18-10-14 permits a trial court to grant relief when two conditions have been met: 1) a party, attorney, or panelist has failed to act as required by Indiana Code chapter 34-18-10; and 2) good cause has not been shown for the failure to act. Applying this holding, we concluded the trial court abused its discretion when it dismissed Adams’s proposed medical malpractice complaint because neither its findings of facts and conclusions of law nor our review of the record indicated that Adams had failed to act as required by Indiana Code chapter 34-18-10. Id. at 1043-44. Appellees Mauro Chavez, M.D., and Prison Health Services of Indiana, LLC, (collectively, “Petitioners”) have filed a petition for rehearing, which we grant for the limited purpose of clarifying several issues. However, we affirm our original opinion in its entirety.
Miller's Turnkey Transport, Inc. v. Cybertek, Inc. and Paradox a/k/a Paradox Technologies, Inc. - "The trial court did not err in concluding that Miller’s enforcement of its warehouseman’s lien did not comply with the UCC. The trial court did not clearly err in finding that the value of the goods sold was $93,500. Because the sale proceeds remain in escrow, we affirm and remand this matter to the trial court so that it may fashion an appropriate order to account for Miller’s judgment, Cybertek’s judgment, and the escrowed sale proceeds. Affirmed."
NFP civil opinions today (5):
Clear Channel Outdoor v. Duane McCorkle (NFP) - "Under these facts and circumstances, we conclude that the Board’s finding that McCorkle is permanently and totally disabled as a result of the September 26, 2001 injury is supported by the evidence. Affirmed."
Termination of the Parent-Child Relationship of R.B.; Brandi and Raymon Browning v. Delaware County Division of Family & Children (NFP) - "Concluding that there was sufficient evidence to support termination, we affirm."
Term. of Parental Rights of I.C. and J.F. v. Gibson Co. Dept. of Child Services (NFP) - "Concluding that the trial court’s judgment terminating Mother’s parental rights is not clearly erroneous, we affirm."
In Mary S. Sumeracki v. Jill and James Hitz (NFP), an 11-page opinion, Senior Judge Hoffman concludes:
We conclude that the jury could have properly determined that Hitz was fifty percent at fault for the accident because sufficient evidence was presented to permit the jury to find that Hitz’ speed was not reasonable and prudent given the existing conditions and that she should have yielded the right of way to Sumeracki. Therefore, the trial court abused its discretion when it entered judgment notwithstanding the verdict on the issue of Hitz’ fault. Reversed.In Re: The Matter of J.A.S. and Z.S.; Harry Spicer v. Dearborn County Division of Children Services (NFP) "Harry Spicer appeals the trial court’s adjudication of his two children, Z.S. and J.S., as children in need of services (“CHINS”). Spicer raises the sole issue of whether the trial court’s adjudication is supported by sufficient evidence. Concluding sufficient evidence exists, we affirm."
BAKER, C.J., concurs.
KIRSCH, J., dissenting with separate opinion
NFP criminal opinions today (3):
Environment - Hearing on Great Lakes Compact today at 1 pm
Bob Kasarda of the NWI Times reports:
PORTAGE | The Northwestern Indiana Regional Planning Commission called on lawmakers last week to support legislation aimed at protecting the use of water from the Great Lakes.Today's Senate Commitee schedule indicates that the Energy and Environmental Affirms Committee will meet at 1 pm in the Senate Chamber to hear:
A couple of years ago Gov. Mitch Daniels accepted the Great Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement, which now requires adoption by state lawmakers, said state Sen. Karen Tallian, D-Ogden Dunes.
Tallian co-sponsored the proposed legislation to both ratify and implement the agreement. She said a hearing on the bill is scheduled today in Indianapolis.
The agreement, which is also being adopted by other Great Lakes states, prohibits new or increased diversions from the Great Lakes, with limited exceptions for nearby communities, Tallian said. This is aimed at preventing other states or users from coming in and taking lake water.
There was one company that proposed shipping water from the Great Lakes for use in another country, she said.
The agreement also calls for voluntary water conservation, she said.
The Great Lakes contain 18 percent of the world's supply of fresh water, according to NIRPC's resolution. Lake Michigan water is the source of 97 percent of all publicly supplied drinking water across Northwest Indiana.
Informational hearing on SB 45: Great Lakes Compact. (testimony only) Presenters: David Naftzger, Executive Director, Council of Great Lakes Governors Peter Johnson, Program Director, Council of Great Lakes Governors Michael McCabe, Office Director, Council of State Governments, Midwest RegionSee earlier ILB entries on the Great Lakes Compact here.
Ind. Decisions - 7th Circuit in recess
The court is in recess until Monday, January 7, 2008.
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This Thursday, Dec. 20th:
9:00 AM - Rosalio Pedraza v. State - Following a jury trial, Pedraza was convicted of several offenses related to his operating a vehicle while intoxicated (causing the death of two people and injuring another), which were raised to more serious felony classes because Pedraza had previously been convicted of offenses involving operating a vehicle while intoxicated. Pedraza was found to be an habitual substance offender. The Marion Superior Court imposed an aggregate sentence of fifty-two years, which included consecutive sentences and terms above the advisory sentence. The Court of Appeals affirmed in Pedraza v. State, 873 N.E.2d 1083 (Ind. Ct. App. Sept. 24, 2007), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorneys: For Pedraza:: Michael R. Fisher, Indianapolis, IN. For the State of Indiana: Nicole M. Schuster, Indianapolis, IN.
9:45 AM - 600 Land, Inc. v. Metropolitan Bd. of Zoning Appeals - 600 Land, Inc., sought a special exception to the Marion County Industrial Zoning Ordinance in order to operate a solid waste transfer station and recycling facility on property in northwest Indianapolis. The Board of Zoning Appeals denied the request for a special exception, and the trial court affirmed. On appeal, the Court of Appeals reversed in part, holding that a special exception was required but that the Board’s decision denying the special exception was not supported by substantial evidence. 600 Land, Inc. v. Metro. Bd. of Zoning Appeals of Marion County, 863 N.E.2d 339 (Ind. Ct. App. Nov. 9, 2007), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorneys for 600 Land, Inc: Robert Frye, Indianapolis, IN; Scott Sikkenga, Kalamazoo, MI. Attorneys for Bd. of Zoning Appeals: James Osborn , Ian Stewart, Indianapolis, IN. Attorneys for Intervenor Kite Realty: Michael Wukmer, Melanie Harris, Brian Bailey, Indianapolis, IN. Attorneys for Intervenor Sybaris Club: Offer Korin, Linda Vitone, 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 Tuesday, Dec. 18th:
1:30 PM - Dietrich Industries v. Scot A. Clark & Department of Workforce Development - Dietrich Industries seeks a reversal of the Unemployment Insurance Review Board's ruling that its union workers were entitled to unemployment benefits during a lockout. Dietrich raises two issues: (1) whether the company and the union were at an impasse in their collective bargaining negotiations at the time of the lockout; and (2) whether Dietrich had resumed normal operations during the period for which the workers were granted unemployment benefits. The Scheduled Panel Members are: Judges Darden, Barnes and May.
Law - Proposal would give the administration veto power over any JAG promotion or appointment
Fort Wayne native and Pulitzer prize-winning Boston Globe reporter Charlie Savage (presidential signing statements), wrote Sunday that the Bush administration is seeking control over JAG lawyers. Some quotes:
WASHINGTON - The Bush administration is pushing to take control of the promotions of military lawyers, escalating a conflict over the independence of uniformed attorneys who have repeatedly raised objections to the White House's policies toward prisoners in the war on terrorism.
The administration has proposed a regulation requiring "coordination" with politically appointed Pentagon lawyers before any member of the Judge Advocate General corps - the military's 4,000-member uniformed legal force - can be promoted.
A Pentagon spokeswoman did not respond to questions about the reasoning behind the proposed regulations. But the requirement of coordination - which many former JAGs say would give the administration veto power over any JAG promotion or appointment - is consistent with past administration efforts to impose greater control over the military lawyers.
The former JAG officers say the regulation would end the uniformed lawyers' role as a check-and-balance on presidential power, because politically appointed lawyers could block the promotion of JAGs who they believe would speak up if they think a White House policy is illegal. * * *
Key members of the Bush administration legal team have pushed to subject the JAGs to greater political control for years.
In the early 1990s, both Haynes and Vice President Cheney's top aide, David Addington, were politically appointed lawyers in the Pentagon during the Bush-Quayle administration. On their advice, Cheney, who was then the defense secretary, proposed making each service's general counsel the boss of his JAG counterpart, but the Senate Armed Services Committee forced the administration to back down.
In 2001, Haynes [the Pentagon's general counsel, William "Jim" Haynes, who was appointed by Presiden] and Addington were restored to power in the Bush-Cheney administration, and the conflict over JAG independence resumed amid the fights over such war on terrorism policies as harsh interrogations.
Responding to the conflicts, in 2004 Congress enacted a law forbidding Defense Department employees from interfering with the ability of JAGs to "give independent legal advice" directly to military leaders. But when President Bush signed the law, he issued a signing statement decreeing that the legal opinions of his political appointees would still "bind" the JAGs.
And throughout the past several years, the administration has repeatedly proposed changes that would impose greater control over the JAGs, such as letting political appointees decide who should be the top service JAGs. Each previous proposal has died amid controversy in the Pentagon or Congress.
Sunday, December 16, 2007
Ind. Gov't. - "Bayh says wife's corporate roles hold no sway over his votes"
Sylvia A. Smith, Washington editor of the Fort Wayne Journal Gazette, has a long story today on Indiana attorney ("inactive in good standing", as are Evan and Birch) Susan Bayh's career as a professional board member. Some quotes:
Since leaving Indiana as a first lady, Susan Bayh has become a professional board member, earning more than $1 million a year in director fees for advice she gives to companies that make pharmaceuticals, operate radio stations, sell health insurance policies, offer online banking and distribute ingredients to fast-food restaurants.In a very brief editorial today, the Journal Gazette writes:
In the past four years, Bayh collected more than $1.7 million in pre-tax income when she exercised stock options from two of the corporations. Her actual income from exercising stock options is higher, but the details of one transaction were not publicly reported.
During the same time, her husband, Sen. Evan Bayh, D-Ind., cast more than 3,000 votes, including some on issues of keen interest to the pharmaceutical, broadcast, insurance, food-distribution and finance industries.
Bayh said his wife’s business interests never influence how he votes, the bills he introduces or the positions he takes. * * *
The intersection of the Bayhs’ professional lives illustrates the touchy ethical situation some couples face when one spouse is employed by the taxpayers to watch out for their interests and the other is duty-bound to work for the financial interests of only a small group of people – the shareholders of the companies they direct. ” * * *
Last year, Susan Bayh served on the boards of six publicly traded and two privately held companies, putting her into a class described as “professional board member.”
For her work attending meetings and serving on board committees of six of the businesses in 2006, Bayh received $94,591 in cash payments and $816,436 in stock or stock options, the companies reported. A conscientious board member would have spent at least 32 weeks of full-time work on the business of serving on six publicly traded boards, according to an organization that trains directors and advocates for responsible boards.
Publicly traded companies must file annual reports with the Securities and Exchange Commission that disclose the compensation paid to board members. Privately held companies file no such publicly available reports.
Senators are required to file annual reports that list – in broad ranges – the financial holdings of themselves and their spouses. According to Sen. Bayh’s report for 2006, his wife’s stock and stock options in the eight companies were valued at $1.3 million to $2.7 million.
Susan Bayh’s income and assets from the boards are a major portion of the Bayh family’s net worth, according to her husband’s report. He said he and his wife have assets worth between $4.3 million and $15.1 million, not counting the couple’s $1 million Washington home, which is in Susan Bayh’s name.
Senators are paid $165,200 a year.
Susan Bayh’s position as a director for eight businesses puts her in the league of “professional directors,” a term used to refer to people who sit on multiple corporate boards and are not otherwise employed. * * *
Susan Bayh’s advice on how to direct businesses has been sought especially by pharmaceutical companies. She was a lawyer for Eli Lilly & Co., the Indianapolis-based pharmaceutical company, for five years while her husband was Indiana’s governor. Since 2000, she has served on the boards of eight companies that develop drugs.
She was first appointed to a public board seat in June 1994 when she was named to the Emmis Broadcasting board. Since then, she has been named to the boards of 14 businesses, primarily in the insurance or pharmaceutical industries. As of last year, she sat on the governing bodies of eight companies: Indianapolis-based Emmis Broadcasting and WellPoint Inc., the second-largest U.S. health insurance company; four pharmaceutical companies: Curis Inc., Dyax Corp., Nastech Pharmaceuticals and Dendreon Corp.; and privately held Golden State Foods of California and E-Trade Bank of Virginia.
Bayh previously served on the boards of Cubist Pharmaceuticals, Esperion Therapeutics, Novavax and LWWI Broadcasting.
While it’s not out of the ordinary for Washington power couples, the arrangement posed by Sen. Evan Bayh and his wife, Susan, warrants full transparency.Here are details on six of Bayh's board memberships.
Sylvia A. Smith details Susan Bayh’s work as a member of eight corporate boards in a package of stories published today. The senator’s wife earned more than $1 million last year.
Melanie Sloan of Citizens for Responsibility and Ethics in Washington points out that even though there are no Senate rules barring a spouse from serving on a corporate board, there is still an appearance that the elected official could be voting to benefit a spouse’s employer.
Barring limits on spouses’ job opportunities, members of Congress should note that an upfront acknowledgment of the potential conflict and full disclosure is the best way to ensure that the public’s interests are not ill-served.
Here is another longish Smith story today, this one headed "Stock options pile up, pay off for Susan Bayh." This one begins: "Without billing any clients or cashing a paycheck, Susan Bayh collected $248,700 so far this year in income from one corporation."
In this story today, Smith compares the Bayh situation with other Washington two-career couples. Some quotes:
Washington is dotted with couples who pair a lawmaker and a lobbyist or a lawmaker and a board member.
For instance, Jackie Clegg, wife of Sen. Chris Dodd, D-Conn., is on the boards of Blockbuster, the Chicago Board of Trade and two pharmaceutical firms. Ruth Raduenez, wife of Sen. Tom Harkin, D-Iowa, serves on the boards of Conoco Phillips, United Technologies and Bowater. Joan Levy, wife of Sen. Arlen Specter, R-Pa., serves on Bancorp’s board. Sharon Percy Rockefeller, wife of Sen. Jay Rockefeller, D-W.Va., is on the board of PepsiCo.
“People put people on boards for a lot of different purposes,” said Diane Denis, senior associate dean at Purdue University’s business school. “Certainly one such thing would be connections.”
The spouse of a senator “could be a very valuable contact” for a corporate board, said Warran Batts, a University of Chicago adjunct professor of business and a retired corporate executive who has served on the boards of several major businesses.
But “there’s almost an inherent conflict of interest there, so the board and the individual need to police that relationship very carefully,” he said. “A lot of spouses are just as bright; one is just as competent as the other. They shouldn’t be penalized. But on the other hand, their position shouldn’t have the appearance of opening up doors that shouldn’t be opened up.” * * *
Bayh said his wife is an accomplished lawyer, having worked for prestigious law firms in California and Indianapolis. Susan Bayh declined to be interviewed about her corporate work.
Bayh described his wife’s professional career has having sometimes been thwarted by his political activities. For instance, he said, Susan Bayh had to change her practice area of corporate and security law when he became Indiana’s secretary of state and oversaw the state’s private securities industry. He said his wife then switched her specialty to utility law, which she had to give up when Bayh became governor.
Asked why the couple didn’t decide to ensure that questions of possible conflicts could never be raised, Bayh said, “The only way to avoid that would be to ask my wife to have no career.”
No matter what kind of law Susan Bayh would practice, he said, it would raise the same kind of questions.
“It’s sort of an avoidable part of being in the year 2007 with two-career couples. In my case, I just don’t think it would be fair to ask her to give up her career,” he said. “We tried to set up a system that can answer those questions, and I think that it does.”
Ind. Decisions - Challenge to jury "made up of four whites, four Hispanics and four blacks"
A Chicago man sentenced to life in prison without parole in the shooting death of a state trooper did not receive a fair trial because of racism, his attorney told the Indiana Supreme Court.
Daryl Jeter is challenging his sentence, arguing that he was denied due process and a jury of his peers.
Defense attorney Jeffrey Schlesinger argued Thursday before the justices that a Lake County Criminal Court judge unfairly denied the defense's attempt to exclude two potential jurors. Peremptory jury challenges allow each side in a trial to remove potential jurors.
Deputy Attorney General Kelly Miklos said the judge refused to allow the removal of those jurors because he believed Schlesinger was needlessly excluding potential white jurors.
Jeter was convicted last year of killing Trooper Scott Patrick, who came to his aid about 4 a.m. Dec. 22, 2003, on Interstate 80/94 in Gary. Patrick was responding to a trucker's call about a vehicle in distress.
Ind. Gov't. - "Vast government reform proposals raise prickly issue"
In her Sunday column today, Lesley Stedman Weidenbener of the LCJ reports:
The moment came in the middle of the press conference during which the governor's Commission on Local Government Reform was presenting its bold recommendations for change.* * *What is missing is a "Part II" to the Commission's report, a blueprint for staging the implementation of its recommendations over the next few years, one step at a time, taking into account the real-world problems each of the various recommended changes will address, and the targeted opposition each one will face.
This was a sweeping set of proposals.
And then the question was in front of them, compliments of expressive Indianapolis radio and newspaper reporter Amos Brown:
"Who sells this after today, knowing the special interests will stop at nothing to stop this?" he asked the group, somewhat incredulously. "Who is going to go out and educate Hoosiers?"
Long pause. Long.
For an overview of the Indiana Commission on Local Government Reform's report, see this Dec. 12th story by Niki Kelly of the Fort Wayne Journal Gazette.
Ind. Courts - Terre Haute mayoral battle now heads to trial court
Austin Arceo reports in the Terre Haute Trib-Star:
Both candidates and their attorneys head to court Monday to argue Burke’s challenge of Bennett’s eligibility for candidacy based on the Hatch Act.
Burke alleges that Bennett violated the federal act, which limits the political activity of employees of some not-for-profits receiving federal money.
Bennett is the director of operations at Hamilton Center, Inc., which runs an Early Head Start program, a program that gets federal money.
Judge David Bolk, of Vigo Superior Court Division 3, will be the person to determine the merits of the challenge.
Ind. Decisions - More on "Judge says Spencer County can control adult business"
More on Thursday's COA ruling in In Plaza Group Properties, LLC, et al. v. Spencer County Plan Commission, et al. [see ILB entry here - 2nd case] -- Bryan Corbin of the Evansville Courier & Press reported yesterday on the impact of the COA ruling:
Now that an appeals court has ruled it was constitutional for Spencer County to try to restrict an adult business, county officials intend to monitor activities inside the 231 Adult Plaza and take further action if they witness any violations, their attorney said.For background, check this ILB entry from Nov. 3rd.
Deciding a long-running legal dispute, the Indiana Court of Appeals ruled Thursday against the owners of 231 Adult Plaza, who had contended the county's ordinances restricting adult businesses violated their First Amendment free-expression rights.
Whether the adult plaza will appeal is undetermined. Scott Nazzarine, one of its attorneys, said the appeals court decision reinforces the status quo — meaning the plaza can remain open as a commercial business as long as the adult-oriented merchandise it displays does not exceed 35 percent of inventory and restrictions on nude dancing are followed.
"All the ruling did is affirm what the trial court did a long time ago," Nazzarine said.
"We are not there to padlock the doors and say they can't do anything on that site," said Scott Wetherill, attorney for the Spencer County plan commission. "If they want to operate a convenience store, gas station or restaurant, they can do that, but it must be in conformity with the zoning ordinance." * * *
Plaza Group Properties has several options. It could appeal to the state Supreme Court. It could continue operating at the I-64 exit within the current ordinance, meaning its display of adult-themed merchandise would have to be less than 35 percent of its inventory. Or it could relocate to one of the other Spencer County zones that aren't within the 1,000-foot restriction.
"It's a pretty significant investment to move the store after it is set up," said Nazzarine.. "It's more of an economics issue, whether it is in their best interests to move where they could sell a higher percentage of (adult) products where they could make more money, or stay in their present location and sell a smaller percentage."
For the time being, Nazzarine said, adult plaza likely will stay put and abide by the ordinance. He did not know if it would appeal Thursday's ruling. It is appealing the earlier $30,000 fine, however, he said.
Saturday, December 15, 2007
Ind. Decisions - Still more on "Ruling supports Carmel annexation"
A Hamilton County judge ruled today that Fishers could pursue the annexation of 2,200 Geist homes.Today Tuohy reports, in a story headed "Geist girds to battle annexation by Fishers," that:
"Fishers has the exclusive jurisdiction to proceed to an ultimate determination on its annexation,” Superior Court Judge Steven Nation wrote in an 11-page opinion.
Lawyers for Geist had asked Nation during a 90-minute hearing Thursday to stop Fishers from annexing the homes. The residents want to form their own towns, East and West Geist.
The ruling means the Hamilton County Commissioners cannot hold hearings on Geist’s incorporation petitions and that Fishers can proceed next week with an annexation hearings.
“In sum, Indiana Courts have established a clear rule in annexation versus incorporation territorial disputes,” Nation wrote. “The first to initiate the proceedings acquires jurisdiction to the exclusion of the other.”
The courts have said the rule was intended to “avoid the conflicts and confusion which would result separate jurisdictional authorities proceeding at the same time,” Nation said.
In the hearing Thursday, attorneys asked the judge to decide whether Fishers took the proper legal action to annex Geist before Geist submitted its own plans to incorporate.
Geist filed two petitions for incorporation with the Hamilton County Commissioners four days after Fishers introduced three ordinances Sept. 17 to annex Geist.
The county alone decides whether to allow new towns while Fishers has sole authority over annexation.
Geist attorneys argued that the mere introduction of an annexation ordinance was not enough to give Fishers jurisdiction. But Nation disagreed, saying their argument “does not find support in Indiana case law or in decisional law from other jurisdictions that have considered this issue.”
Geist also argued that Fisher improperly introduced the ordinances, but Nation said they had “not identified a defect in Fishers’ annexation proceeding that would preclude Fishers from exercising its exclusive jurisdiction,”
With their plans to form two towns derailed Friday by a Hamilton County judge, Geist homeowners quickly fixed their gaze on a long annexation battle with Fishers.
In an 11-page ruling, Hamilton Superior Court Judge Steven Nation said Fishers could pursue the annexation of 2,200 Geist homes. The ruling prevents the homeowners from advancing their plans to incorporate as East Geist and West Geist.
"We will now concentrate on fighting Fishers' forcible annexation of us in court," said Rachel Quade, a member of Geist United Opposition.
Nation's ruling means the Hamilton County Commissioners cannot hold hearings on Geist's incorporation petitions and that Fishers can proceed Wednesday with a public hearing on its annexation proposal.
That meeting will start the clock ticking toward what could be a years-long legal battle. The Geist residents will have time to gather protest petitions and challenge annexation in court. If they were to win, they could try again to incorporate.
Ind. Courts - "Governor appoints Lawrence Circuit Court Judge"
From a Governor's press release dated Dec. 12th:
Governor Mitch Daniels announced today the appointment of Andrea McCord as judge of the Lawrence Circuit Court. She succeeds Judge Richard McIntyre, who died on October 30.From an editorial in today's Bedford Times-Mail:
McCord, a Mitchell native, has served as Lawrence Circuit Court judge pro tem since November 5 and previously filled the same position while Judge McIntyre was on active duty with the Indiana National Guard. She currently serves as the juvenile court referee for Lawrence County and has worked in private practice. McCord received her undergraduate degree from Franklin College and her law degree from Indiana University School of Law - Indianapolis.
Her appointment is effective immediately.
The natural choice is often the best one. That has happened with the appointment of Andrea McCord as Lawrence Circuit Court judge.
She was the natural choice.
Gov. Mitch Daniel made it official Thursday, naming McCord to replace the late Richard McIntyre.
There is no doubt she is capable of taking her place behind the bench. In a way, she’s been preparing for this since her days in college, when she spent time with former Lawrence Circuit Court Judge Linda Chezem. She also served as a clerk to Chezem when the latter moved to the Indiana Court of Appeals.
“Gov. Daniels has made a decision that will promote justice in Lawrence County by appointing Andrea to the circuit court bench,” Chezem said.
McCord also spent years learning from McIntyre, a man she has called “a great judge and a good friend.”
She has, indeed, filled in ably for McIntyre when military duties called him away from the bench. And she served as a temporary judge again after McIntyre’s tragic death.
With the appointment to the full-time role, McCord joins Lawrence Superior Court I Judge Michael Robbins and Lawrence Superior Court II Judge William Sleva on the local bench.
They form a trio of jurists who have, and will, serve county residents and the state’s legal system with distinction.
Not Law - "The National Press Club has elected The Journal Gazette’s Sylvia Smith as its next president"
Pretty prestigious! And we can expect to see a lot of her on C-SPAN now. Read the story here.
Ind. Courts - Upcoming judicial races in Tippecanoe County
At least one judicial race in Tippecanoe County will be contested in the upcoming May primary elections.
Lafayette attorney Bruce Graham, a Republican, filed initial paperwork Friday with the Tippecanoe County Board of Election and Registration to run for judge of Tippecanoe Superior Court 5 -- the seat that Republican Les Meade has held since 2003.
Meade has said that he will run for re-election, with a formal announcement planned for January. * * *
Graham's formal announcement is the first made thus far by candidates who plan to run for five Tippecanoe County judicial offices with current terms that end on Dec. 31, 2008.
Those seats are for Circuit Court, Superior Court 1, Superior Court 2, Superior Court 4 and Superior Court 5, according to information from the election board.
In Indiana, candidates can begin filing formal declarations on Jan. 23 for the May 6 primary election. The deadline to file is at noon on Feb. 22. * * *
Circuit Court Judge Don Daniel, a Republican, said this week that he plans to run for re-election of that seat. Judge Thomas Busch of Superior Court 2, a Democrat, also confirmed that he will run again.
Both judges said they will formally announce in January.
No one has filed for the Tippecanoe Superior Court 4 seat held by Judge Gregory Donat.
Lafayette attorney Randy Williams said Friday that he is forming a committee now and plans to run for judge of Superior Court 1, a seat that will be vacated by longtime Judge Don Johnson. * * *
Bob Hicks, chairman of the Tippecanoe County Republican Party, said he has heard rumors of some attorneys who might run. But no one, other than Graham, has officially contacted him.
"It wouldn't surprise me to see some Republican candidates for judgeship," Hicks said.
Perry Brown, chairman of the Tippecanoe County Democratic Party, said he knows of no Democratic candidates for the open seats. It typically is hard for the party to find seekers, he said Friday.
Ind. Courts - "Michigan City attorney Michael Bergerson announced his candidacy Friday for Superior Court 1 judge"
From the Michigan City News-Dispatch:
"As deputy prosecuting attorney, I've tried and won countless cases in Superior Court 1," Bergerson said. "Management of a private law practice and service on numerous boards and commissions will be tremendous assets to me in the effective administration of justice in this court. I will be ready for the job on Day One."
The current Superior Court 1 judge is Republican Kathleen Lang, who was appointed by Gov. Mitch Daniels when Walter Chapala resigned in 2006, two years before his term was to end. Last month, Lang announced her candidacy to retain the bench.
Ind. Decisions - "Ex-Colts QB Trudeau, wife to pay $5,000 fine in teen party case"
Robert Annis reports today in the Indianapolis Star:
Former Colts quarterback Jack Trudeau avoided a prosecutor’s blitz and a possible criminal conviction Friday by striking a deal.See related ILB entries under the heading "Justice Is Unequal for Parents Who Host Teen Drinking Parties" from July 4, 2007 and Dec. 7, 2007.
Trudeau and his wife each will pay a $2,500 fine. As part of the deal, they admitted to “knowingly or intentionally encouraging, aiding or inducing a minor to unlawfully possess an alcoholic beverage,” an infraction punishable by a maximum $10,000 fine.
Lisa Trudeau’s attorney, John Tompkins, said he and Boone County Prosecutor Todd Meyer were “looking for a fair outcome, not one that was overly punitive or dismissive. Diversion would have been nice; that would have been a complete dismissal, but no criminal conviction is a very good position to be in.” * * *
The charges against the couple stemmed from a June 2 graduation party at the Trudeaus’ Timberwolf Lane home for daughter Danielle Trudeau and other Park Tudor graduates. Police said that 35 to 50 teenagers attended the party.
After a search warrant was obtained, people were given breath tests. Eleven teenage partygoers were arrested on charges of underage drinking or possession of alcohol. Five of them found hiding in the woods around the home also were charged with resisting law enforcement. One person younger than 18 tested positive for alcohol and was turned over to parents.
The Trudeaus first were charged with two misdemeanor counts of contributing to the delinquency of a minor and furnishing alcohol to a minor. Jack Trudeau also was charged with a felony, obstructing justice.
Jack Trudeau’s misdemeanor charges were changed last month to aiding, inducing or causing contributing to the delinquency of a minor; aiding, inducing or causing furnishing alcohol to a minor; and aiding, inducing or causing illegal possession or consumption of alcohol by a minor.
Friday, December 14, 2007
Ind. Decisions - "Judge says Spencer County can control adult business"
Local officials' attempts to block a Spencer County adult business from operating were constitutional, the Indiana Court of Appeals has ruled.
Deciding a long-running legal dispute, the appeals court Thursday ruled against the owners of 231 Adult Plaza and in favor of Spencer County officials, who sought to block the plaza from operating as a sexually-themed business. The adult business had appealed on First Amendment free-expression grounds.
Ordinances that Spencer County officials passed that restricted adult businesses to operating no less than 1,000 feet from a home, church or school were constitutional, the appeals court found, as was a court order and permanent injunction that a Spencer County judge issued that sharply limited what activities could take place at the adult plaza.
"The evidence shows that there are at least 34 alternative sites in the Spencer County on which Plaza could operate a sexually-oriented business and comply with the 1,000-foot restriction. Therefore, because the ordinances are designed to serve a substantial government interest while allowing for reasonable alternative avenues of communication, the dictates of the First Amendment are satisfied and Plaza's challenge fails," appeals court Chief Judge John G. Baker wrote in the unanimous, 32-page decision.
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.
The appeals court Wednesday noted that Spencer Circuit Court Judge Wayne Roell's earlier ruling does not prevent adult plaza from operating a non-sexually-oriented commercial business on the site. The adult plaza also could attempt to appeal Wednesday's decision up to the Indiana Supreme Court.
Ind. Decisions - "The Seventh Trashes Another Attorney (and Rightly So)"
Not to worry. This does not directly involve an Indiana case or attorney.
I’ve blogged on many past occasions about the prolific use of the Seventh Circuit’s sanction power, at least by a handful of judges. Often, I end up feeling badly for the hapless lawyers whose careers get trashed simply because they drew the wrong panel. But not today.
Ind. Decisions - Transfer list for week ending December 14, 2007
Here is the Indiana Supreme Court's transfer list for the week ending December 14, 2007. Be sure to view all 4 pages.
There were no transfers granted this week.
Nearing four years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)
For publication opinions today (3):
Paternity of M.M.B. and A.W.T., State of Indiana v. McKinzie M. Black, Jr. - This opinion may be of interest to anyone practicing in the family law area. Twice in 1990 Angela Tucker (“Mother”) and McKinzie M. Black, Jr., jointly filed petitions to establish the paternity of M.M.B. and A.W.T. When he signed the petitions, Black also signed an accompanying form in which he waived “now and forever” his right to counsel and his right to request blood testing to establish paternity (“Waiver Form”). In both cases the court also ordered Black to pay child support. From the opinion by Judge Najam:
In 1991, Black moved to Tennessee. While there, Black had three children with Melissa Black, whom he subsequently married. Between 1991 and 1996, M.M.B. and A.W.T. spent summers with Black in Tennessee, and Black returned to Indiana to visit them over Christmas. But in 1996, Black was incarcerated for involuntary manslaughter, “drug sales,” and aggravated assault. Black remained in prison until 2002.James Leonard v. Karen Leonard - "To the extent the MQCO appears to divide any veterans’ disability benefits James may be entitled to, the trial court erred. Therefore, we reverse and remand this matter to the trial court on this issue. Affirmed in part, reversed and remanded in part."
In the winter of 2002, after Black was released from prison, he picked up M.M.B. and A.W.T. from their Indiana home and took them to his home in Tennessee. M.M.B. and A.W.T. lived with Black for the next thirteen months. However, at the end of that time period, Black’s three children with Melissa overheard A.W.T. tell M.M.B. that M.M.B.’s biological “daddy was dead.” In response, M.M.B. said to A.W.T., “well you don’t even look like dad.” Black’s children with Melissa informed Black of what M.M.B. and A.W.T. had said, and Black subsequently sought DNA confirmation of his paternity of M.M.B. and A.W.T.
Those genetic tests disclosed a “0.00%” probability that Black was the father of either M.M.B. or A.W.T. Black contacted Mother about the tests, and Mother told Black that she knew Black was not the father of either M.M.B. or A.W.T. Mother then asked Black to send the children back to her. On the way back to Indiana, Black talked to M.M.B. and A.W.T. about the genetic test results. M.M.B. told Black that M.M.B. knew who his biological father was, and that the biological father “had been buying [M.M.B.] stuff . . . and had spent time with them.” Black subsequently lost contact with M.M.B. and A.W.T. because of Mother’s transient status.
On January 31, 2005, Black filed a motion to vacate the M.M.B.-Paternity Petition, the A.W.T.-Paternity Petition, and the accompanying orders for him to pay child support for M.M.B. and A.W.T. The trial court held a hearing on February 9, 2007, at which Black testified that he was illiterate and mentally unstable when he signed the original paternity petitions and the Waiver Forms. Black also testified that he was living with Mother when she gave birth to M.M.B. and A.W.T., that Mother had testified at the original paternity proceedings both that Black was the father of M.M.B. and A.W.T., and that no one else could be their father.
On March 19, 2007, the court entered its Order Granting Motion to Vacate Orders (“Order”). * * * This appeal ensured. [ILB Note: Black is not represented by a counsel and "did not timely file an appellee’s brief."] * * *
Here, the trial court proffered three reasons in support of granting Black’s request. First, the court stated that Black was not competent when he signed the paternity affidavits because he “was not able to read or understand the documents.” Appellant’s App. at 16. Second, the court found that Black’s “admissions were based upon the false statements [M]other made in court.” Id. at 15. And third, the court concluded “that it would be unfair that he support children that are not his biological children to the economic detriment of his younger children.” Id.
The State [ILB - i.e. Appellant] responds that the trial court acted outside of its equitable discretion in granting Black relief under Trial Rule 60(B)(8). Specifically, the State contends [ftnote 1] that the trial court abused its discretion in granting Black’s request because “Black did not inadvertently obtain medical proof of non-paternity through ordinary medical care.” Appellant’s Brief at 11. We must agree. * * *
[The Court then cites a number of cases where evidence establishing non-paternity was accepted by the court, but points out in each case that the evidence establishing non-paternity was not actively sought by the putative father, but was discovered almost inadvertently in a manner that was unrelated to child support proceedings.]
Here, the trial court, in its Order, expressly recognized that Black actively sought the genetic evidence of his nonpaternity after being told of the discussion between M.M.B. and A.W.T. That finding is supported by the record. The court then exercised its equitable discretion to provide Black relief under Rule 60(B)(8). But the court’s finding that Black actively sought the DNA evidence to confirm or deny his suspicions of nonpaternity removed Black’s requested relief from the court’s equitable discretion. See K.M., 651 N.E.2d at 276. As such, the court clearly erred in vacating its prior judgments establishing Black’s paternity over M.M.B. and A.W.T. * * *
Again, under established Indiana law, it is clear that Black’s request for relief under Trial Rule 60(B) was “outside the equitable discretion of the trial court.” K.M., 651 N.E.2d at 276. We are therefore constrained to hold that the State has satisfied its prima facie burden of demonstrating that the trial court clearly erred in vacating Black’s paternity of M.M.B. and A.W.T. and the accompanying support orders. Reversed.
In Stephen Leek v. State of Indiana , a 7-page opinion, Judge Najam writes:
Stephen Leek appeals from the trial court’s denial of his motion for discharge under Criminal Rule 4(C). Leek presents a single dispositive issue for our review, namely, whether the trial court erred when it found that the State had brought Leek to trial within the time allotted under Criminal Rule 4(C). We reverse. * * *NFP civil opinions today (1):
In this case, likewise, the State could have requested that a trial date be set during the plea negotiations, but chose not to. We find no authority for the proposition that a defendant abandons his right to be tried within one year simply because he engages in informal plea negotiations with the State. See Smith, 495 N.E.2d at 542. “If this were the law, virtually every defendant would sacrifice his right to be tried within a year.” Id. Almost every criminal case involves a simultaneous two-track process—a negotiation track and a litigation track—and Criminal Rule 4(C) requires the State to be ever mindful of the one-year deadline.
The State did not fulfill its affirmative duty to bring Leek to trial within one year. Like the proceedings in Smith, here, “there is nothing [in the record] from which it could be determined how much of the [eleven-month delay] was consumed by plea negotiations or how much of this time, if any, should be charged to [Leek], much less that there was any actual delay.” Id. at 541. Following our reasoning in Smith, Leek’s statement of his intent to enter into a plea agreement did nothing to relieve the State of its duty. Here, the trial court concluded that “defendant waived his right to a speedy trial” when he requested a change of plea hearing. But a defendant does not abandon his right to a speedy trial when he engages in plea negotiations. See id. This is not a case where the trial court, within the one-year period, set a trial date outside of the one-year period. Because the State did not bring Leek to trial within one year of his arrest, the trial court erred when it denied Leek’s motion for discharge under Criminal Rule 4(C). Reversed.
In John Lane-El v. Michael Spears, in his offical capacity as Chief of Police, and the Indianapolis Police Department (NFP), a 7-page opinion, Judge Bailey writes:
John Lane-El (“Lane-El”) appeals the trial court’s dismissal without prejudice of his complaint for lack of proper summons. We reverse and remand.NFP criminal opinions today (7):
Lane-El presents one issue for appeal, which we restate as whether the trial court properly dismissed his complaint for lack of personal jurisdiction. * * *
Lane-El is an incarcerated prisoner. On January 9, 2006, and May 1, 2006, Lane-El requested public records by filing a Public Records Request with the Indianapolis Police Department (“IPD”). After Lane-El did not receive a response to the requests, he filed a complaint with the Office of the Public Access Counselor. Karen Davis (“Davis”), the Public Access Counselor, requested a formal response from the IPD by June 21, 2006. On July 5, 2006, Davis, after not receiving a response from IPD, issued a finding that the IPD “violated the Access to Public Records Act in failing to respond to [Lane-El’s] request for records.”
On July 27, 2006, Lane-El, acting pro se, filed suit against Chief Michael Spears in his official capacity as the Chief of IPD (“Chief Spears”) and the IPD (collectively “the Police”) to compel Lane-El’s access to the records requested. On October 11, 2006, the trial court issued an order directing the clerk of the court to cause service of the summons upon the Police. Lane-El requested the clerk to serve both Chief Spears and the IPD, and the clerk certified that one of the summons was mailed, without certifying that it was received or providing identifying information of which summons was mailed.
On December 15, 2006, Lane-El filed a motion for default judgment. Counsel for the Police filed its appearance along with a notice of automatic extension of time in response to Lane-El’s motion for default judgment on December 20, 2006. The next day, the trial court denied Lane-El’s motion for default judgment, because the Police had not been served.
On January 25, 2007, the Police filed their motion to dismiss in response to Lane-El’s motion for default judgment citing Lane-El’s failure to serve them. On February 12, 2007, the trial court granted Lane-El until March 1, 2007, to serve the Police. On February 19, 2007, Lane-El requested that the clerk cause the summons to be served upon the attorney of the Police by certified mail, return receipt requested. There is no evidence in the record that these summons were ever mailed or received.
On March 5, 2007, the trial court dismissed Lane-El’s complaint without prejudice because “no proper summons have been issued.” Lane-El now appeals. * * *
Overall, we find that Lane-El substantially complied with the requirements of service in Indiana Trial Rule 4.6. Lane-El delivered all necessary documents to the clerk of the court for proper summons to be delivered. As an incarcerated prisoner, he was forced to rely on the clerk to ensure the return receipts were delivered. Whether these receipts were ever returned may not be clear from the record, but the summons was apparently effective because counsel for the Police appeared before the trial court.
We find that Lane-El’s attempts at service were reasonably calculated to inform the Police that a suit had been instigated against them. Reversed and remanded.
Courts - More on: Florida "Lawyer may lose license for blog entry on Broward judge"
The WSJ Law Blog has now picked up on the Florida story cited by the ILB earlier this morning. The WSJ post, headed "Should Lawyer Be Disbarred For Harsh Criticism Of a Judge," is available here. It will be interesting to follow the comments.
This ILB entry from May 7, 2007, cites an Adam Liptak NYT column, including references to two much milder (IMHO) local instances: from Kentucky in 2005, and Indiana in 2003. The latter, the Wilkins case, is detailed in this ILB entry from July 27, 2003. (Although most of the links no longer work, those to the Indiana Supreme Court documents are still good.)
A distinction is that all the instances in the Liptak column include statements made in court documents; the Florida statements were published by an attorney in a blog.
Ind. Decisions - 7th Circuit rules in IUPUI women's tennis coach discimiination suit
In Debbie A. Peirick v. IUPUI (SD Ind., Judge McKinney), a 28-page opinion, Judge Williams writes:
During Debbie Peirick’s thirteenth and final year as head coach of the women’s tennis team at Indiana University-Purdue University Indianapolis (IUPUI), her team maintained the highest grade point average of all athletic teams, achieved its best season in history, and, for the first time, qualified for the NCAA tournament. Despite this record, Peirick, then age fifty-three, was fired when the season ended. Within a month of her termination, IUPUI hired the twenty-three year old sister of the men’s tennis coach to coach the women’s tennis team.On the second point, the opinion cites Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000) on p. 23. Note that Kimel was also cited in a recent COA opinion, Michael B. Montgomery v. The Board of Trustees of Purdue University (4/7/05 IndCtApp), summarized in this April 7, 2005 ILB entry (3rd case).
Peirick sued IUPUI, the IUPUI Athletics Department, and the Board of Trustees of Indiana University, claiming that her termination was motivated by gender and age. The district court granted summary judgment for the defendants on both claims. Material questions of fact exist as to whether Peirick was treated less favorably than her similarly situated male counterparts, so we vacate the grant of summary judgment on her gender discrimination claim. However, because IUPUI and the Board of Trustees of Indiana University are immune from suit under the Age Discrimination in Employment Act (and the athletic department is not a suable entity separate from the university), we affirm the grant of summary judgment on Peirick’s age discrimination claim. * * *
For the foregoing reasons, we VACATE the award of summary judgment in favor of IUPUI and the Board of Trustees of Indiana University on Peirick’s gender discrimination claim. However, in light of IUPUI’s and the Board’s Eleventh Amendment immunity, we AFFIRM the grant of summary judgment in their favor on Peirick’s claim of age discrimination.
Law - "Misclassification of Independent Contractors and Employees Can Be Expensive"
This is a useful article by Carla J. Rozycki and Darren M. Mungerson of Jenner & Block, setting out the tests and recent cases about an issue many of us run into frequently, where there are many misconceptions. One I have run into recently as a contractor is - "We can't do direct deposits of your payments; it might make you an employee." Other companies may insist on utilizing direct deposit.
Law - "GPS Privacy Concerns Hard to Navigate"
NPR's Talk of the Nation had a very interesting 30 minute segment earlier this week titled "GPS Privacy Concerns Hard to Navigate." The blurb:
The Global Positioning System is a great tool for traveling through a maze of unfamiliar city streets — but it can also serve as an effective tracking device. As employers, government officials and even parents adopt GPS technology, critics worry that it will lead to violations of privacy.Check here for more info plus the MP3 link.
Ind. Courts - "Appeals list pared to three"
Oddly, this is the only newspaper account the ILB has seen on this. The Evansville Courier & Press has this brief report today:
Two finalists from Southwestern Indiana remain in the running to fill a judicial vacancy on the Indiana Court of Appeals for the 5th District.Start here for ILB background entries.
After 17 years on the appeals court, Judge John Sharpnack is retiring in May 2008, triggering the selection process by the Indiana Judicial Nominating Commission.
Fifteen applied, and after a first round of interviews Nov. 13, seven semifinalists advanced to a second round Wednesday. Of those, the commission is recommending three names to Gov. Mitch Daniels, who will appoint one.
Two of the three are from Southwestern Indiana:
o Judge Elaine Brown of Dubois Superior Court in Jasper, Ind.
o Attorney Les Shively of Evansville.
The third candidate is Judge Michael G. Witte of Dearborn Superior Court in Lawrenceburg, Ind.
Shively practices in business and real estate law, and is well-known locally as the conservative co-host of the political talk show "Shively and Shoulders" on WNIN-PBS9 in Evansville.
Law - 4th Amendment Roadmap Podcasts
Ind. Gov't. - “We do not have a crisis today of taxing religious property,” said Sen. Patricia Miller, the author of SJR 2. “My concern is for the future.”
Niki Kelly of the Fort Wayne Journal Gazette had a great story yesterday:
State lawmakers learned Wednesday there isn’t really a problem with churches being taxed illegally.
But they considered amending the constitution to prohibit the practice anyway.
“We do not have a crisis today of taxing religious property,” said Sen. Patricia Miller, R-Indianapolis, the author of Senate Joint Resolution 2. “My concern is for the future.”
Statewide, about $24 billion worth of assessed value – or 6.3 percent of the state’s gross assessed value – is exempted from property taxes because of various exceptions including religious purposes.
But speaker after speaker testified Wednesday before the Senate Judiciary Committee that the current system is working well.
“We have a fairly good system that sorts these things out,” said Indianapolis attorney John Price, who has taken these types of tax issues to court before. “What we have now works.”
So why is the state considering a constitutional amendment, asked Sen. David Ford, R-Hartford City.
“Are we muddying the waters further?” he wondered.
And Sen. Tim Lanane, D-Anderson, asked whether there is some dire threat against tax-exempt property that he is unaware of.
In 2003, the legislature even widened the state law, saying all land owned by churches was free from property tax so long as it was used for tax-exempt purposes. Before that, there was a 15-acre limitation that few assessors enforced.
In addition to the acreage issue, the legislature in 2003 clarified provisions in the law in which churches and non-profit organizations might be taxed if their land or buildings are used for profit-making ventures.
But some have scrutinized tax-exempt property as part of the property tax debate because it shifts the burden to other taxpayers.
And at least one House member has considered filing a bill to make non-profit organizations pay a fee in lieu of taxes for public services. But the bill would not affect churches.
The proposed constitutional amendment affects only the religious tax exemption and is narrower than the current law. For instance, it exempts buildings and personal property regularly used for religious worship, while current law uses the term religious purpose.
Any amendment would have to pass two General Assemblies in 2008 and 2009 before a public vote in 2010.
Eric Miller, founder of Advance American, an organization advocating religious freedoms, said unless the amendment is changed he can’t support it because it would pre-empt the law and take away benefits.
Many of the questions revolved around definitions. What is a church? What counts as ministry? What is a religious purpose? What if the church owns land for future projects that isn’t in use? What if the land and buildings produce income?
“It’s very difficult to know where to draw the line,” Sen. Miller said. “It sounds easy, but it’s not.”
Indianapolis Pastor Mark Miller reminded the panel that churches use property for good works in communities, which usually is an offset for property tax exemptions.
He said that his church allows the local police to conduct interviews there and fire departments to conduct training, and the church also serves as a polling place.
“There is a reciprocal value,” Mark Miller said.
Law - "Dealing With the Legal Profession's Generation Gaps"
Here are some quotes from an enlightening article by Douglas B. Richardson of the Law Firm Partnership & Benefits Report newsletter:
The generation gap is nothing new. In a pattern as old as time, the successor generation has always viewed its forebears as stodgy and unduly authoritarian, while the "old folks" have tended to view the energy and impulsiveness of youth with suspicion, if not derision.
It now appears, however, as if the accelerated rate of social change has also wrought profound and fundamental changes in how members of different generations relate, collaborate (or don't) and communicate (or not). Not only are we not in Kansas, Toto, but there may not even be a Kansas once today's emerging young leaders take the controls.
In the lingo of the social scientists, folks born between 1925 and 1945 are often called the "matures," "traditionalists," "builders," "seniors" or "veterans." They comprise about 20 percent of the U.S. population but less than 10 percent of practicing lawyers. They are in or entering their emeritus years, and to young lawyers they embody "the old days."
The "boomers" born during the baby boom of 1946 to 1964 make up about 30 percent of the U.S. population and a little under half of today's lawyers. Their careers are now peaking, and a lot of them will be retiring in the next decade. They drive the power structure of most firms, and although they think of themselves as more individualistic, more optimistic and more committed to personal integrity than their predecessors, younger associates tend to view them as defenders of the power structure and status quo.
The Gen-X'ers, originally labeled the "slackers," were born between 1965 and 1979 and now sometimes are called the "busters" or the "e-generation." They presently represent about 25 percent of this country's population, but almost half of its lawyers. Temperamentally, they are probably not all that different from the boomers, except that they tend to be more skeptical of authority, less self-centered and more inclusive and collaborative.
The Gen-Y'ers, born after 1980, are sometimes called the "nexters," "whys" or "echoes." The youngest subset of the Gen-Y'ers, the "millenials," is becoming a dominant force in reshaping how our society buys, sells, learns and works. Their worldview is so different from the boomers that many wonder if productive communication will be possible once the younger Y'ers (the Kaiser Family Foundation has dubbed them "Generation M," and soon they will be going to law school) come of age. "They revere youth and change, and our age and experience are of little practical use to them," says one senior partner in her 60s. "I suspect that like Inuits, when their time comes they will simply put their elders outside the igloo to freeze. In fact, it's getting chilly already."
Some social researchers claim differences among generations are illusory and that every generation becomes more conservative and more resistant to change as it ages. Others, myself included, see generational differences -- particularly between the X'ers and Y'ers -- as very pronounced and very fundamental.
Courts - Florida "Lawyer may lose license for blog entry on Broward judge"
Tonya Alanez reported yesterday in the South Florida Sun-Sentinel:
A defense attorney's law license is at risk because he posted an angry description on the Internet of embattled Broward Circuit Judge Cheryl Alemán, calling her an "evil, unfair witch."Last week, as Alemán was on trial for alleged misconduct before the Judicial Qualifications Commission, The Florida Bar signed off on its finding that Sean Conway may have violated five bar rules, including impugning the judge's qualifications or integrity.Here is a link to the Nov. 30, 2006 entry in the Florida blog, Jaablog, which is described in the above story as "a courthouse weblog created a year ago to examine Broward County judges' performances and legal issues."
In the Halloween 2006 posting on a blog, Conway denounced Alemán for what he said was an "ugly, condescending attitude" and questioned her mental stability after, he says, she unlawfully forced attorneys to choose between unreasonable trial dates or waiving their clients' rights to a speedy trial.
Conway, a former Broward assistant public defender now in private practice, said Wednesday he feels justified in his comments.
"She was giving people one week to prepare for trial and as soon as the blog exposed it through powerful words she stopped it," he said. "And that's why I stand by what I did. Sometimes the language the bar approves of doesn't get the job done."
Conway, 36, also filed a complaint against Alemán with the Judicial Qualifications Commission, the state agency that polices judicial conduct, citing her "deliberate refusal" to follow the law and insolent behavior. Conway says he hasn't heard from the commission since a May 29 letter acknowledging his complaint.
Alemán was unavailable for comment Wednesday.
In the meantime, the judge awaits the outcome of her three-day trial for allegedly threatening to hold defense attorneys in contempt and refusing to remove herself from cases in which she had an acrimonious relationship with the defense attorney.
If she's found guilty, she could face anything from a public reprimand to removal from the bench. Likewise, if Conway is found guilty of violating bar rules, he could face discipline ranging from a reprimand to disbarment.
"She is clearly unfit for her position and knows not what it means to be a neutral arbiter," Conway wrote in his commentary.
That posting on Jaablog, a courthouse weblog created a year ago to examine Broward County judges' performances and legal issues, is protected speech, says Conway's attorney, Fred Haddad.
"There's absolutely no reason that politicians, and that's all judges are here in Broward County, aren't open to criticism," Haddad said. "We've got a [Florida Bar] grievance committee that can't even conceptualize the First Amendment. You're dealing with a group of people that are entrenched in protecting each other."
In a Nov. 21 letter to the bar, Haddad cited a federal case, which found that Michigan bar rules restricting attorneys' criticism of judges to be overly broad and vague and unconstitutional.
In that opinion, U.S. District Judge Arthur J. Tarnow, of the Eastern District of Michigan, wrote: "Limiting an attorney's extrajudicial criticism of a branch of government in the name of preserving the judiciary's integrity is likely to have an unintended, deleterious effect upon the public's perception, since attorneys are often the best suited to assess the performance of judges."
That case is on appeal.
Bruce Rogow, a constitutional lawyer and professor at Nova Southeastern University, agrees that bar rules are overly broad and vague but thinks Conway may have overstepped boundaries.
"I don't think there's any excuse for that kind of crude and cruel language," he said. "The trouble with blogs is that people get carried away and sometimes go over the top. There's just some good judgment that needs to be used in criticizing a judge."
The Florida Bar will now write a formal complaint and submit it to the Florida Supreme Court, which will assign a judge to referee Conway's case.
Thursday, December 13, 2007
Ind. Courts - More on: Oral arguments today include whether a student's myspace.com postings are protected political speech
Presumably later this evening the report(s) aired at 5 and 6 pm will be posted. I caught the 5 pm report, it included a clip of Chief Justice Shepard commenting during the oral arguments.
Start here for ILB background entries.
Ind. Decisions - Appeal of wine shipping case to 7th Circuit
In this entry from Nov. 20, 2007, the ILB pointed to the brief of the State of Indiana, in its appeal of the wine shipping case:
The wine shipping opinion issued by Judge John D. Tinder the end of August 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.Tuesday, Dec. 11th, the Appelles' brief was filed. Access it here.
Amicus briefs have been filed in support of Appellants by the following: Wine and Spirits Wholesalers; the Indiana Coalition to Reduce Underage Drinking; twenty states; "Members of the Indiana General Assembly" (apparently three members, Rep. Dobis, Senator Nugent, Rep. Bell). Access them here.
Ind. Gov't. - "Lake County officials cracking down on 'double dippers'"
CROWN POINT, Ind. (AP) — Lake County officials are looking to crack down on county employees who also are paid as after-hours consultants or attorneys.
"This is double dipping," county Commissioner Gerry Scheub said.
Commissioner Roosevelt Allen said the practice is similar to why Dozier Allen Jr., the former longtime Calumet Township trustee in Gary, and three former deputy trustees were indicted in September. They were charged with illegally paying themselves $143,000 out of more than $170,000 in grants intended to help train employees in the township during 2000-02.
Ind. Decisions - Still more on: Supreme Court denies Bopp motion for an emergency writ regarding the middle initial issue in the recount
TERRE HAUTE — The Indiana Supreme Court today denied the mandate actions filed by attorney James Bopp Jr., to dismiss the recount and election challenge filed by attorneys for Mayor Kevin Burke, an Indiana clerk of courts Internet docket summary reports.
Burke petitioned for the recount and challenged the election he lost last month to mayor-elect Duke Bennett by 107 votes.
Bopp had filed the mandate actions with the Indiana Supreme Court after Judge David Bolk of Vigo County Superior Court Division 3 denied Bopp’s motions to dismiss the recount and election challenge because Burke’s petitions failed to list Bennett’s middle initial, which was included on the ballot.
The recount commission completed the paper ballots Thursday. A court date is scheduled Monday for Burke’s petition on a separate matter in which he challenges Bennett’s eligibility based on the Hatch Act.
Ind. Decisions - More on: Suggestions to improve COA postings
Updating this ILB entry from yesterday, another suggestion, again simple to implment. Add RSS feeds to the COA and Supreme Court opinions sites.
Ind. Courts - Magistrate Judge John Paul Godich has retired, effective December 6, 2007
See SD Indiana press release here.
Ind. Decisions - Court of Appeals issues 6 today (and 16 NFP)
For publication opinions today (6):
In Lavern Baltimore v. State of Indiana , a 15-page opinion, Chief Judge Baker writes:
Appellant-defendant Lavern Baltimore appeals his convictions for Burglary Resulting in Bodily Injury, a class A felony, and Sexual Battery,2 a class D felony. Specifically, Baltimore argues that (1) the trial court committed fundamental error when it permitted the victim’s sign language interpreter to testify as a witness for the prosecution; (2) insufficient evidence was presented at trial to sustain his burglary resulting in bodily injury conviction; (3) his convictions violate the Indiana Double Jeopardy Clause because there is a reasonable likelihood that the jury used the same evidence to sustain both convictions; and (4) the trial court’s imposition of a fifty-three-year sentence is inappropriate in light of the nature of the offenses and Baltimore’s character. Finding no error, we affirm the judgment of the trial court.In Plaza Group Properties, LLC, et al. v. Spencer County Plan Commission, et al. , [see 11/3/07 ILB entry headed "Big-time attorneys argue adult plaza case" for background], a 32-page opinion, Chief Judge Baker writes:
The parties’ dispute requires us to determine the constitutionality of portions of Spencer County’s sexually oriented business ordinances. While there is an abundance of caselaw addressing the constitutionality of similar ordinances, discerning the relevant precedent has been compared to “reading the tea leaves.” Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 134 (6th Cir. 1994).Steven Rogers v. State of Indiana - "Based on the nature of the offense and Rogers’s character, we conclude that the trial court’s imposition of a sixty-year sentence for the commission of murder is not inappropriate."
Appellants-defendants Plaza Group Properties, LLC, Robert W. Allen, and Fuel in Dale, LLC (collectively, Plaza), appeal the trial court’s grant of summary judgment in favor of appellees-plaintiffs Spencer County Plan Commission and Spencer County Board of Commissioners (collectively, the County). Plaza first argues that it was lawfully using the property when the County enacted the sexually oriented business ordinances; thus, it is entitled to continue its lawful use even though the newly enacted ordinances prohibit it from operating a sexually oriented business on the property. Alternatively, if we find that Plaza’s use was nonconforming at the time the ordinances were enacted, Plaza urges us to find the sexually oriented business ordinances unconstitutional pursuant to the First Amendment to the United States Constitution.
Because we conclude that there is not a genuine issue of material fact that Plaza made more than $5,000 of renovations to the property without receiving a building permit, Plaza is not entitled to lawful nonconforming use status on the property. And because we determine that the portions of the sexually oriented business ordinances at issue do not unconstitutionally burden protected speech, we reject Plaza’s argument that the challenged ordinances are unconstitutional. Therefore, we conclude that the trial court properly granted summary judgment in favor of the County and it was within the trial court’s discretion to enter a permanent injunction prohibiting Plaza from operating a sexually oriented business on the property. Thus, we affirm the judgment of the trial court. * * *
As previously noted, the trial court issued an order on June 18, 2007, emphasizing that while the permanent injunction enjoins Plaza from unlawfully operating a sexually oriented business on the property, Plaza is free to operate a commercial establishment that complies with the County’s ordinances. We find the injunction to be narrowly tailored and conclude that the trial court’s entry of injunctive relief in favor of the County was not an abuse of discretion.
Shon M. Leroy v. Michelle Kucharski - "Shon M. Leroy appeals the trial court’s grant of a motion to correct error in favor of Michelle Kucharski. Leroy raises one issue, which we revise and restate as whether the trial court abused its discretion by setting aside the jury verdict and ordering a new trial in Kucharski’s negligence action against Leroy. We affirm."
Allen Montgomery v. State of Indiana - "Finding that sufficient evidence exists to support his two Intimidation convictions, that his constitutional argument is precluded from review, and that the trial court did not err in imposing a four-and-one-half-year habitual offender enhancement, we affirm the judgment of the trial court."
In Wayne Jewell v. State of Indiana , a 20-page opinion, Judge Vaidik writes:
Wayne Jewell (“Jewell”) appeals his convictions for two counts of Child Molesting as a Class A felony and one count of Sexual Misconduct with a Minor as a Class D felony. Addressing Jewell’s arguments with respect to each count, we find that the Class D felony Sexual Misconduct with a Minor conviction is barred by the applicable statute of limitations and that one of the Class A felony Child Molesting convictions is not supported by sufficient evidence. We therefore reverse those convictions. With regard to the remaining Class A felony conviction, we find that the State’s amendment of the charging information changing the location of the offense from the victim’s house to the nearby Jewell house was an amendment of form, not substance. Further, with regard to this conviction, we treat Jewell’s arguments of fundamental error for failure to cross-examine and to impeach, failure to investigate, and failure to file a notice of alibi as ineffective assistance of trial counsel arguments. Finding no ineffective assistance of counsel, we affirm this Class A felony conviction. * * * Reversed in part, affirmed in part.
NFP civil opinions today (6):
Progressive Max Insurance Co. v. Bradley Campbell (NFP) - "Based upon the foregoing discussion and authorities, we conclude that the trial court did not err by relying upon Geiger in its dismissal order and that it was well within its discretion when it dismissed Progressive’s lawsuit pursuant to T.R. 41(E). Affirmed."
Maverick Musser, by his next friends, Mischelle Musser and Michael Musser v. Daniel A. Roby, David J. Stach and Roby & Hood Law Firm (NFP) - "Maverick Musser, by his parents and next friends, Mischelle and Michael Musser (the Mussers), filed a legal malpractice action against Daniel A. Roby, David J. Stach, and Roby & Hood Law Firm (collectively referred to as the Law Firm). The Mussers based their claim, in relevant part, upon the Law Firm’s failure to properly disclose expert medical witnesses in a federal malpractice suit, which resulted in the exclusion of said expert testimony and the grant of summary judgment against the Mussers. In the instant legal malpractice action, the trial court granted summary judgment in favor of the Law Firm on the basis of proximate cause. On appeal, the Mussers present the following restated and consolidated issue for review: Did the trial court properly enter summary judgment in favor of the Law Firm? We affirm."
Judith Dallman v. Brent R. McIntosh, M.D. (NFP) - "Judith Dallman appeals the trial court’s grant of summary judgment to Brent R. McIntosh, M.D., on her medical malpractice claim. Dallman raises one issue, which we restate as whether the trial court erred by granting Dr. McIntosh’s motion for summary judgment. Dr. McIntosh raises one issue on cross appeal, which we restate as whether the trial court erred by denying his motion to strike Dallman’s untimely summary judgment designation. We affirm."
Grubb Excavating Inc. v. Winterwood Properties, James M. Landwerlen, et al (NFP) - "Appellant-plaintiff Don Grubb Excavating, Inc. (DGE), appeals the trial court’s order granting partial summary judgment in favor of appellee-defendants Winterwood Properties, LLC (Winterwood), James M. Landwerlen, Irving Materials, Inc., Wickes Lumber, Inc., and Bloomfield State Bank (collectively, the appellees) on DGE’s complaint against the appellees for, among other things, breach of contract and foreclosure on a mechanic’s lien. DGE argues that the trial court erroneously found that it waived its right to pursue these claims and that a promissory note executed by a nonparty adequately compensates DGE. Finding a genuine issue of material fact regarding DGE’s installation of a septic system and that the promissory note is irrelevant to determining the appellees’ potential liability for DGE’s services on the septic system project, and finding no other error, we affirm in part, reverse in part, and remand with instructions."
David Warpenburg v. Cathy Warpenburg (NFP) - "In this dissolution action, appellant-respondent David Warpenburg appeals the trial court’s denial of his request that his former wife—appellee-petitioner Cathy Warpenburg—pay spousal maintenance. David also contends that the trial court abused its discretion in effecting an equal division of the marital property. Finding no error, we affirm the judgment of the trial court."
In Daniel E. Novak v. Credit Bureau Collection Service (NFP), a 6-page opinion, Senior Judge Garrard writes:
In entering its judgment the [trial] court made several findings. It determined that Novak has impliedly consented to the presentation to the court of Novak’s liability under equity as well as under law. The court found that “[t]he Defendant was brought to the hospital by ambulance after suffering a brain aneurysm. He was unconscious; it was not possible to secure his consent to treatment. Treatment was necessary to prevent serious injury, if not death. Upon regaining consciousness, Defendant did not voice objection to the treatment he received, did not attempt to leave the hospital and actively participated in applications for financial assistance with the cost of treatment. Under these facts, the Plaintiff is entitled to recovery of a reasonable fee for the services provided. The only evidence as to a reasonable fee is that presented by Plaintiff.” Accordingly, the court entered judgment for the plaintiff. * * *NFP criminal opinions today (10):
In Kovak’s case, as in Galloway, a benefit was rendered to Kovak to prevent serious bodily injury or death under circumstances where equity demands compensation in order to prevent unjust enrichment. The trial court correctly so found.
Ind. Courts - Lafayette Attorney Running for Superior Court Judge
A Lafayette attorney is announcing his candidacy for Tippecanoe Superior Court 5 Judge. Republican Bruce Graham has been an attorney for more than 25 years. He said his experience in criminal and civil litigation is a good match for Superior Court 5. * * *
Tippecanoe Superior Court 5 Judge Les Meade, also a Republican, said he intends to run for re-election. He said he will make an announcement in January.
Ind. Courts - Oral arguments today include whether a student's myspace.com postings are protected political speech;
A.B. v. State of Indiana will be argued before the Supreme Court at 9:45 this morning. See this ILB entry from Monday for the details. Watch the webcast broadcast live at 9:45 AM, or watch the archived webcast later, via this link.
Wednesday, December 12, 2007
Ind. Courts - Three names submitted to Governor Daniels [Updated]
Dearborn Superior Court Judge Michael G. Witte
Evansville attorney Les Shively
Dubois Superior Court Judge Elaine Brown
See this entry from earlier today for more.
[Updated 12/13/07] Here is the Court's Dec. 13th press release.
Courts - "Sentencing Commission Votes to Allow Retroactive Easing of Crack Cocaine Sentences"
Mark Sherman of the AP reported earlier today in a story that begins:
The U.S. Sentencing Commission voted unanimously Tuesday to allow some 19,500 federal prison inmates, most of them black, to seek reductions in their crack cocaine sentences.
The commission, which sets guidelines for federal prison sentences, decided to make retroactive its recent easing of recommended sentences for crack offenses.
Most of those eligible could receive no more than a two-year cut in their prison terms, but roughly 3,800 inmates could be released from prison within a year after the March 3 effective date of Tuesday's decision. Federal judges will have the final say whether to reduce sentences.
The commissioners said the delay until March would give judges and prison officials time to deal with public safety and other issues. * * *
Several commissioners said they expect judges will use their power to deny sentence reductions in some case. "I fully expect that a number of individuals who are a danger to the community will not in fact receive any reduction in sentence," said commission member Michael Horowitz, a former federal prosecutor.
Tuesday's vote follows two Supreme Court rulings Monday [see ILB entry] that upheld judges who rejected federal sentencing guidelines as too harsh and imposed more lenient prison terms, including one for crack offenses.
Ind. Courts - More on: Greene Superior Court Judge J. David Holt will not seek reelection
David N. Powell, former Greene County prosecutor, has announced that he will run as a candidate for judge for the Greene Superior Court to replace retiring Judge David Holt.
As many may know, nearly 20 years ago, the Greene Superior Court replaced the old County Court that was shared between Greene and Sullivan Counties. The Honorable Donald Dean, who was State Representative at the time, submitted legislation that created the Greene Superior Court. Judge David Holt was appointed by the governor as the first Greene Superior Court Judge. Judge Holt has been a dedicated and hard-working judge who's nearly two decades of service will be missed by the community.
"Twenty years as your prosecutor (during the initial 10 years, he operated a part-time private civil practice in Worthington) and 26 years of active/reserve military service as an Air Force Judge Advocate have provided me with wonderful experiences and knowledge. I certainly understand the duties and responsibilities of the judge of the Greene Superior Court. As judge, I will do my very best to continue the good work provided by Judge Holt. I will serve faithfully and impartially all persons and parties that appear in Court," Powell said.
Ind. Courts - More on race for Jefferson County Superior judge
Updating this ILB entry from yesterday, the Madison Courier reports today:
Local attorney Alison T. Frazier announced Tuesday that she will run for Superior Court judge of Jefferson County in next year's election. Current judge Fred Hoying will retire after next year.
Frazier, 45, has been an attorney for 18 years, with seven of those years working for judges in the Indiana Court of Appeals in Indianapolis. She moved to the area in 2000 with her husband, Jeff, who is a Jefferson County native. The Fraziers live with their three sons in Dupont.
Ind. Courts - "Lake court system needs stronger chief"
Here is an editorial that appears in today's Gary Post Tribune:
Lake County Commissioner Roosevelt Allen Jr. last week proposed changes in the Lake Superior Court system that bear further scrutiny.
The focus of his analysis is the chief judge, who is elected annually by the 16 judges in the system. He or she serves for just one year.
Because the chief judge's term is so short, Allen believes that the person holding the position doesn't have ample time to improve the operation of the court system. He's absolutely right. In fact, the chief judge position has become largely ceremonial.
There is work to be done, mainly because the court system of 16 judges is so splintered. For example, there are four criminal division judges, seven civil division judges, four county division judges and the juvenile division judge.
In addition to the chief judge of the Superior Court system, each of the divisions has its own chief judge. And the divisions pretty much operate autonomously, rather than as a part of the greater court system.
Electing a chief judge for a term of at least three years would give the person the time to make the court system more efficient -- a move that would result in a savings for taxpayers.
The courts pretty much have had their way with county government, always holding the threat of a judicial mandate if they don't get what they request.
As the court system has grown, so has the number of personnel. It has been suggested in some circles that the courts could pool bailiffs and public defenders as a way of saving money.
But if there is no one looking at the efficiency of the system -- and that clearly is the case at present -- nothing is going to be accomplished. The court should make the change and have the chief judge answerable to Indiana Chief Justice.
Ind. Courts - Three names that will be submitted to Governor Daniels
Seven semi-finalists were interviewed for the final time this morning by the Judicial Nominating Commission:
* 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 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.
The three finalists have now been announced. They are: Dearborn Superior Court Judge Michael G. Witte; Evansville attorney Les Shively; Dubois Superior Court Judge Elaine Brown
Ind. Decisions - Suggestions to improve COA postings [Updated]
Readers will notice there are two sets of Court of Appeals decisions this afternoon. When the ILB checked at noontime, there were a number of opinions dated 12/12/07, which the ILB duly posted with summaries. A few minutes ago the ILB checked the COA site again, and it appeared that more cases dated 12/12/07 had been added.
The problem is, there is no easy way, from the way the COA site is set up, to distinguish between additions to the list, other than by date. When additional cases are added in the same day, they are intermingled with the cases already posted, rather than being added to the top or bottom of the list, or otherwise identified.
Someone looking at the list at the wrong time of a day may miss important opinions and not realize it, or may look a second time and see that the list for the day looks longer, but have to open each opinion again to see which ones are new.
The ILB has corresponded with a COA representative about this problem twice, suggesting possible resolutions. Here is the message, sent Sept. 7th and Oct. 26th:
Here is two small things the Court of Appeals could do to improve its reporting of opinions on the court website.[More] Within a few minutes of this posting, the ILB received the following email:
Most days it appears that the opinions go to the clerk for posting in batches. What that means is that when the public checks the site it can tell all the cases posted for a certain date, but it cannot distinguish between what was added first thing in the morning and what was added later. So, especially on busy days, if you look at 10 there is a long list of cases, and if you look at 2 the list may be even longer, but no way to determine what has been newly added.
This could be easily remedied by, for instance, having DP somehow separate this first batch from the second, rather than intermingling them.
A second improvement, that I suggested to the Clerk's office several years ago, has to do with corrected opinions. It appears that when an opinion is corrected for typos, etc. a new version is posted in place of the old with nothing said. So different people may be reading different versions, depending on when they accessed the opinion. Why not append a correction sheet to the revised version?
I think your suggestions/criticisms are spot on. Moreover, I'd like to see them have two separate lists: published and unpublished--or at a minimum group the published opinions at the top of that day's opinions.
Another point: I'm not sure what happens now when the COA grants a motion to publish. [ILB: i.e. to change a NFP to a FP; is the new "FP", presumably now available to be cited as precedent under Apprellate Rule 65 (if anyone knew it), reposted?]
Ind. Decisions - Court of Appeals issues 2nd batch this afternoon; 9 FP (and 4 NFP)
For publication opinions today (9):
NFP civil opinions today (2):
NFP criminal opinions today (2):
Ind. Decisions - Supreme Court decides one today
In Guardianship of E.N., Adult, a 9-page, 5-0 opinion, Justice Boehm writes:
We hold that the guardianship estate planning statute does not authorize dispositions of the protected person’s entire estate. * * *
Conclusion. The guardianship court’s October 14, 2003, Order approving the guardian’s modified estate plan is reversed. This case is remanded with instructions to close the guardianship by reason of E.N.’s death. The disposition of his estate remains a matter for the probate court to consider.
Ind. Decisions - Court of Appeals issues 0 today (and 13 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
Southwest Ohio General Contractors, Inc. v. Plan Commission of the Town of St. Leon (NFP) - "Issue. Whether the trial court abused its discretion when it denied Southwest’s motion to correct error and affirmed the decision of the Commission to deny primary approval of Southwest’s plat for the Equestrian Estates subdivision. * * *
Southwest’s appeal must fail because it has failed to demonstrate the invalidity of the Commission’s denial of primary approval to its plat. See Equicor Dev., 758 N.E.2d at 36. Given the reception of evidence concerning existing roadways for access to Estate, and the provisions of the ordinance as to both the standards in this regard and the mandate for consideration of such access, the Commission’s denial of primary approval to the plat submitted by Southwest based upon the inadequacy of existing roadways was not erroneous as a matter of law. Inasmuch as the denial on this basis was not incorrect, the trial court did not err in affirming the Commission’s decision. Accordingly, the trial court did not abuse its discretion when it denied Southwest’s motion to correct error."
NFP criminal opinions today (11):
Ind. Courts - Events today
This is the day the Judicial Nominating Commssion interviews the seven remaining candidates for the COA seat of retiring Judge Sharpnack. The day will end with the Commission nominating three finalists to Governor Daniels. See this Nov. 30th ILB entry for all the details, including the interview schedule. The interviews are open to the public.
At 1:30 PM before a panel of the COA, sitting in the Supreme Court courtroom - Joseph and Latanya Bonner, et al vs. Mitch Daniels, et al - Appellants present the question, as an issue of first impression, whether Indiana's Constitution imposes an enforceable duty on the State to provide a quality education to its public school students and whether that duty is satisfied. See details in this Dec. 10th ILB entry. The arguments will be webcast here.
Tuesday, December 11, 2007
Ind. Courts - Hensley to run for Jefferson County Superior judge
Justin Helfrich of the Madison Courier reports:
Madison attorney Michael Hensley, 52, has announced that he intends to run for Superior Court judge in Jefferson County in next year's election. Hensley wishes to replace Fred Hoying, who will retire at the end of his term in 2008.
"This has been something I've always wanted to do toward the end of my legal career," Hensley said.
Hensley's father, Joe Hensley, served as Circuit Court judge in Jefferson County from 1977 to 1989.
Hensley was born in Madison and is currently a partner at Collins, Hensley & Wynn law firm in Madison. Hensley is also a director for River Valley Financial Bank.
Ind. Courts - Greene Superior Court Judge J. David Holt will not seek reelection
From the Greene County Daily News, breaking news from Nick Schneider, Assistant Editor. The lengthy report begins:
Greene Superior Court Judge J. David Holt announced Tuesday that he will not seek re-election when his term ends more than a year from now on Dec. 31, 2008.
Holt has served as Superior Court Judge for 20 years. Previously, he was prosecuting attorney from 1975-1983.
He is the first Judge of the Greene Superior Court, which was created Jan. 1, 1989.
The Bloomfield resident said his decision not to seek another six-year term was not a quick decision. But rather, it's been something he's been thinking about for some time.
Ind. Decisions - More on "Cert. Granted in Indiana v. Edwards"
"Protecting defendants in spite of themselves" is the title to this column by Daniel Leddy, who writes the weekly On the Law series for the Staten Island Advance. Here are some quotes from the end of the long column:
It's obvious that the trial court tried its best to insure that Edwards, a man with serious mental deficits, was treated fairly. It twice deemed him incapable of standing trial and, when the case finally did proceed to trial, assigned an attorney to protect his rights.See the Friday, Dec. 7th ILB entry, announcing the cert grant, here.
It is also a safe bet that had Edwards been allowed to represent himself and nevertheless been convicted, he would have been arguing on appeal that the trial judge should have denied his request and accorded him legal representation. In fact, that precise type of flip-flop is common among criminal defendants who, in reality, want it both ways.
In reversing Edwards' conviction, the Indiana Supreme Court acknowledged that the trial court's decision to assign him an attorney "was, at a minimum, reasonable." It also conceded that such determinations might indeed be better made by trial judges who are "closer to the firing line".
Still, in granting a new trial for Edwards, the appellate court felt itself bound by a 1993 ruling of the U.S. Supreme Court in the case of Godinez v. Moran. In that matter, the court held that once a defendant is found capable of standing trial, he is thereby automatically deemed capable of deciding whether to represent himself. In reality, however, the two issues are markedly different.
In 1960, the Supreme Court held that a defendant is capable of standing trial when he has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and has a "rational as well as factual understanding of the proceedings against him."
However, a person could meet that rather low standard and yet be incapable of adequately representing himself at trial. This becomes obvious when one considers that even the brightest, most savvy defendant would be at a distinct disadvantage trying to hold his own against a skilled prosecutor.
By agreeing to entertain the prosecution's appeal in the Edwards case, the U.S. Supreme Court has indicated a willingness to revaluate the standard that a defendant must meet before he can be deemed capable of representing himself. That's a good thing because the Indiana trial court diligently tried to protect Edwards' rights, only to get reversed for its efforts and ordered to accord him a new trial that he really doesn't deserve.
Law - "Bankruptcy Lawyers Behaving Badly"
Bankruptcy attorneys complained, arguing that the certification clause put them in the awkward position of having to investigate their clients, which in turn would raise the legal costs associated with filing for bankruptcy – costs that a debtor facing bankruptcy can ill afford to pay.
This development has led to a new cottage industry: bankruptcy attorneys who avoid the certification requirement by providing only pre-filing services to debtors, who then file their own petitions and represent themselves in the bankruptcy proceedings. These lawyers charge a few hundred dollars, as opposed to a few thousand dollars and they avoid legal liability for petitions that turn out to be fraudulent.
But this sort of limited representation is legally and ethically suspect, as this Ninth Circuit decision shows.
Ind. Decisions - Court of Appeals issues 5 today (and 12 NFP)
For publication opinions today (5):
In William Wesley Ross v. State of Indiana , a 17-page opinion, Judge Barnes concludes:
Ross has not convinced us that he received ineffective assistance of trial counsel. All of his other claims of error are either waived or not proper issues for a PCR proceeding. We affirm the denial of post-conviction relief. Affirmed.In Kenneth Scott King v. State of Indiana , a 12-page opinion, Chief Judge Baker writes:
KIRSCH, J., concurs.
ROBB, J., concurs in result with separate opinion. [which begins] I concur in the result reached by the majority, but write separately to clarify why I think the post-conviction court properly concluded that Ross’s counsel was not deficient based on counsel’s failure to object to the trial court’s instruction on voluntary manslaughter.
Here, we reach an age old conclusion—a worthy end does not necessarily justify unreasonable means. Ohio County police officers responded to a party in progress at a rural residence. The officers broke up the party and then required partygoers to pass through two checkpoints—a portable breath test administered to all drivers by officers while still on private property, and a checkpoint set up at the base of the driveway through which all vehicles were required to pass, giving the officers a second chance to observe the drivers to ensure that they were not intoxicated. The State has failed to provide evidence from which we can conclude that these checkpoints are reasonable under Article 1, section 11 of the Indiana Constitution.In Re the Paternity of S.J.J.; Patrick Burns v. Lesia Johnson - "Burns’ first child support payment was due October 31, 1986. Accordingly, any unpaid child support may still be collected. The trial court did not err in so finding. As Burns alleges no other error in the court’s calculation of his arrearage, we affirm in all respects."
Appellant-defendant Kenneth Scott King brings this interlocutory appeal of the trial court’s denial of his motion to suppress evidence relating to charges brought against King by the State for class A misdemeanor operating a vehicle while intoxicated and class C misdemeanor operating a motor vehicle with a blood alcohol content of .08 or higher. Finding that the checkpoints at issue were unconstitutional, we reverse the judgment of the trial court.
Debra A. Barnett v. Camille Clark, Trustee of Pleasant Township - "Debra A. Barnett asserts Camelia Clark, as Pleasant Township Trustee, is vicariously liable for the sexual misconduct of her employee, Donald Clark. Barnett appeals from summary judgment for Camelia. Finding an issue of fact exists, we reverse and remand. * * *
"Like the equipment manager, Donald used his official duties to create an opportunity to be alone with the object of his sexual misconduct. Donald did more than create a pretext for being alone with Debra; he was performing his duties before and after his misconduct. Therefore, whether Donald was acting in the scope of his employment is an issue of fact, and it was error to grant summary judgment for Camelia. Reversed and remanded."
In Rusell N. Carey and Lisa Carey v. Susan J. Haddock, a 5-page opinion, Judge Najam writes:
Russell N. Carey (“Russell”) and Lisa Carey (“Lisa”) (collectively, “the Careys”) bring this appeal after they received a favorable verdict on their complaint against Susan J. Haddock following a jury trial. The Careys raise three issues for our review, but we address only the following dispositive issue: whether the Careys’ appeal is moot because they have accepted Haddock’s payment in satisfaction of the judgment. We dismiss. * * *NFP civil opinions today (7):
In her responsive brief on appeal, Haddock asserts that this court is without jurisdiction to hear the Careys’ appeal because the Careys released her of the judgment. We agree. We therefore do not reach the issues raised by the Careys in their appeal. * * *
Here ... the record unambiguously shows that Haddock fully satisfied the judgment against her. And the Careys have not raised an issue relating to costs or attorney’s fees that might be preserved notwithstanding the release of judgment. See, e.g., id. at 974-75. Accordingly, Haddock’s payment satisfied and extinguished the judgment. The Careys’ appeal is therefore moot. Dismissed.
Tina Cale, et al v. Lunsford Realty (NFP) - "Tina Cale (“Tina”), on behalf of her children, Olivia and Cecily Cale, appeals from the Worker’s Compensation Board’s (“the Board’s”) dismissal of her Application for Adjustment of Claim (“Claim”). Tina presents a single issue for our review, namely, whether the Board erred when it determined that the fatal injuries sustained by her deceased husband, Michael Cale (“Michael”), did not occur in the course of his employment with Lunsford Realty. We affirm."
Term. of the Parent-Child Rel. of D.P., Jr., and Daniel Pallick, Sr. v. Indiana Dept. of Child Services, State of Indiana (NFP) - "Daniel Pallick, Sr., (“Father”) appeals the termination of his parental rights to D.P. Because the evidence supports the judgment, we affirm."
Khaled Jamal Abu-Taqa v. Jessica Lee Abu-Taqa (NFP) - "Khaled Jamal Abu-Taqa (“Father”) appeals the dissolution court’s final decree granting physical custody of his two children to Jessica Lee Abu-Taqa (“Mother”). Father presents the following issues for our review: 1. Whether the trial court abused its discretion when it awarded sole legal and physical custody of the parties’ children to Mother. 2. Whether the trial court erred when it did not include in the final decree any provision for Father and Mother to alternate claiming the children as tax exemptions. We affirm and remand with instructions."
Kent Lankford v. Clyde McPhail (NFP) - "Appellant-plaintiff Kent Lankford appeals from a judgment entered for appellee-defendant Clyde McPhail regarding his action against McPhail “for effecting an invalid mechanic’s lien and then foreclosing on that lien.” Appellant’s Br. p. 1. Specifically, Lankford argues that the judgment must be set aside because the evidence established that McPhail had no right to acquire a mechanic’s lien on Lankford’s vehicle, which had been left on McPhail’s property. Concluding that the trial court correctly determined that McPhail’s lien was valid and that McPhail properly obtained title to the vehicle, we affirm. * * *
"[T]he evidence established that Lankford abandoned the vehicle in the building that McPhail had leased to Thomas. Hence, McPhail held a valid possessory lien over the vehicle, and the trial court properly entered judgment for McPhail. I.C. § 9-22-1-4."
Belinda D. Pedersen v. Roger C. Pedersen (NFP) - "We affirm the trial court’s finding Mother and Father were in contempt, its parenting time order, and its clarification and limitation of Father’s college expense obligation. We must remand for additional fact finding regarding Mother’s income, Father’s arrearage, and Father’s child support obligation to the extent it might duplicate their son’s living expenses that are also included in Father’s college expense obligation. Affirmed in part, reversed in part, and remanded."
City of Richmond, Indiana v. Christopher Todd Sticco (NFP) - "Appellant-plaintiff City of Richmond, Indiana (the City), appeals the trial court’s order reversing the discipline imposed on appellee-defendant Christopher Todd Sticco by the Board of Public Works and Safety (the Board). The City argues that the trial court improperly reweighed evidence and judged witness credibility. We agree, and reverse the judgment of the trial court. * * *
"In sum, we conclude that although the Board erroneously found that Sticco’s failure to return the Battalion Chief’s call on September 12 violated Article X, Section 12 of the Book of Rules, its remaining findings are supported by substantial evidence and not otherwise improper. We are confident that the Board would have imposed the same disciplinary sanction on Sticco—thirty-day suspension without pay and a physical and psychological evaluation—even without the violation regarding the failure to return the phone call. We also find that in reversing the Board, the trial court improperly reweighed the evidence and judged the credibility of witnesses. The judgment of the trial court is reversed."
Bobbie Sellers v. House Doctors Handyman Services and Paul O'Shaughnessy, et al (NFP) - "Considering the evidence before the small claims court, we cannot conclude that it was clear error to find for the Defendants. On appeal, Sellers does not present any cogent argument to demonstrate why the small claims court should have decided otherwise.
"Conclusion. Sellers did not demonstrate he was entitled to damages, and the small claims court properly entered judgment for Defendants. We affirm."
NFP criminal opinions today (5):
Ind. Gov't. - "Governor’s statement about Commission on Local Government Reform report" [Updated]
Here is the Governor's statement:
INDIANAPOLIS (December 11, 2007) – Governor Mitch Daniels today joined members of the Indiana Commission on Local Government Reform for the Commission’s presentation of its report Streamlining Local Government: We’ve got to stop governing like this. Former Governor Joe Kernan and Indiana Supreme Court Justice Randall Shepard presented the Commission’s 27 recommendations.[Updated] Mary Beth Schneider of the Indianapolis Star has posted a comprehesive story on the proposal, available here on the Star website.
Daniels created the Commission in July to examine and make recommendations on reforming and restructuring local government. The governor thanked commission members for their work and for producing a report for all Indiana citizens. Daniels said he would reserve specific reaction about recommendations until Hoosiers have had opportunity to review the report. Here are the governor’s comments:“First of all, in terms of local government structure, Indiana skipped the 20th Century. We are dealing with a system that is a century and a half old, and it is in need of modernization. We have too many of everything and they all cost money.The governor also commented about next steps for the report:“
“I support the thrust of this very much. You want to know why property taxes are too high, here’s the answer. You want to know how we’re going to get property taxes down and keep them that way, here’s the roadmap.
“You’ve given us clarity and boldness and courageous recommendations that I know every Hoosier will want to take very seriously.”The only way we ever make change is when the public demands it. I think the days ahead are for the public to digest these ideas, consider the credibility and sincerity of the people who have brought them to us and then we’ll all talk about which ones and in which order.Electronic copies of the commission’s report are posted here. Audio of today’s news conference is posted here on the governor’s Web site.
“Governor Kernan has said it well, ‘if not now, when.’...This is a tremendous contribution by a group of people who ought to be long remembered in our state. It’ll be the job of a lot of us to advocate for the general interest against the special interest objections that we’re going to hear. There’s a huge opportunity for legislative leadership here. There’s a chance for some legislators to write their names in the Indiana history books by championing some of these recommendations. I’m very hopeful that people in both parties will see that opportunity and seize it.”
Environment - "Timber industry needs best management practices"
There is an interesting discussion in the Lafayette Journal & Courier today about forest management in Indiana and the possible implementation of best management practices.
Ind. Courts - More on: Federal Judge Hamilton hears arguments on I-69 route; important information about the state rules
Updating this September 15, 2007 ILB entry, quoting a story from the Evansville Courier & Press that began:
Opponents of the route for Interstate 69 from Evansville to Indianapolis want the state to consider a route using existing roads — U.S. 41 to Interstate 70 near Terre Haute. They are asking a federal judge to order the state to re-evaluate its route options and reconsider the indirect route it previously rejected.Bryan Corbin of the C&P today reports:
INDIANAPOLIS — A federal judge late Monday ruled against environmentalist plaintiffs and in favor of state and federal officials in deciding the new-terrain route of Interstate 69 from Evansville to Indianapolis can proceed.The C&P provides a link to Judge Hamilton's Dec. 10th 58-page opinion.
U.S. District Court Judge David Hamilton has found summary judgment in favor of the Indiana Department of Transportation and other state and federal officials and against the Hoosier Environmental Council and several individuals and business owners who filed the suit in October 2006.
The plaintiffs contended the state and federal governments violated several federal laws, including the National Environmental Policy Act and Endangered Species Act, in routing the I-69 extension through Evansville, Princeton, Crane, Bloomington, Martinsville and Indianapolis. They wanted the federal judge to roll back the clock so that an earlier route proposal that was rejected — Evansville to Terre Haute along U.S. 41 and then Terre Haute to Indianapolis along Interstate 70 — would be reconsidered.
In a 58-page decision, however, Hamilton denied the plaintiffs’ motions.
The decision appears to clear a significant hurdle to groundbreaking on the Evansville-to-Oakland City first section of I-69 in late summer 2008.
One last obstacle is for the Federal Highway Administration to issue its “record of decision,” a final regulatory hurdle.
At issue in this case was compliance with the requirements of the National Environmental Policy Act (“NEPA”). That is because federal money is involved.
The State of Indiana also has its own law, found at IC 13-12-4, This act requires state agencies to prepare detailed Environmental Impacts Statements (EIS) with "every recommendation or report on proposals for legislation and other major state actions significantly affecting the quality of the human environment." [See IC 13-12-4-5(2)(C)]
The law goes on to provide, at the end of IC 13-12-4-5(2)(C), that:
The air pollution control board, water pollution control board, and solid waste management board shall by rule define the actions that constitute a major state action significantly affecting the quality of the human environment.Each of the environmental boards has promulgated such definitions by rule. This was done by the APCB in 1988; the rules are found at 326 IAC 16. The WPCB rules, first promulated in 1988, are found at 327 IAC 11. The SWMB are found at 329 IAC 5.
Here is the interesting part. Under the Sunset Law adopted by the General Assembly some years ago, agency rules expire unless they are readopted every seven years. This was the year for readoption of the environmental policy rules. The SWMB rules were readopted. But my understanding is that was by accident.
The APCB and WPCB rules defining what is a major state actions significantly affecting the quality of the human environment, the language upon which implementation of the state's environmental policy act turns, was not readopted, leaving the EIS statute effectively inoperative with respect to air and water. The Air and Water rules will expire the end of this year, unless the Governor orders an emergency extension.
It is the ILB's understanding that the decision to kill the EIS rules was an internal IDEM policy decision, and that the members of the environmental boards were not alerted that this was happening. Neither, of course, was the public.
Ind. Courts - Schedule set for COA Second Round Interviews
Don't forget, tomorrow is the day the Judicial Nominating Commssion interviews the seven remaining candidates for the COA seat of retiring Judge Sharpnack. The day will end with the Commission nominating three finalists to Governor Daniels. See this Nov. 30th ILB entry for all the details.
Law - "Louisville panel opposes panhandling ordinance"
Dan Klepal of the Louisville Courier Journal has a story today about a proposed ordinance in Louisville:
which aims to outlaw so-called aggressive panhandling by making it illegal for people to ask for money within 20 feet of an automated teller machine, public restroom, school, bus stop or parking garage. The ordinance also would prohibit people from asking for money after dark, in front of any public building or on a bus.
Ind. Courts - Even more on: Marion County juvenile court orders release of the juvenile court file and the much larger DCS case file in TaJanay Bailey case
Updating this ILB entry from Dec. 9th, regarding Marion County juvenile court Judge Marilyn Moores' orders last week for the release of Department of Child Services and Marion County juvenile court records in the TaJanay Bailey's case, and her decision to convene a meeting Monday, Dec. 10th to discuss making critical child protection information directly available to police on the street, Tim Evans of the Indianapolis Star has this encouraging story today headed "Child-alert system will start in days: Police responding to calls will know about DCS cases." Here is the summary from the side-bar:
What's next?Today's story concludes:
The Department of Child Services will immediately begin compiling information on about 650 children who have recently been reunited with their families or are about to be reunited.
The Department will forward that information to the Marion County Sheriff's Department, where workers will enter the data into the computer system used to dispatch police officers. To complete that within a week, officials expect the workers will be putting in overtime.
Once the system is in place, a police officer headed to an address under DCS scrutiny would see a note to call a caseworker about the incident.
-- Star report
The group at Monday's meeting -- which included representatives from IMPD, the Sheriff's Department, DCS, Indianapolis Mayor-elect Greg Ballard, the court and child advocates -- will meet again in about a week, [Judge] Moores said, to see how to move forward with other short- and long-term initiatives.
"No one in this city who knew about what happened to this little girl went untouched," Moores said.
"The only thing any of us can do is take that energy and make it work for the positive. And I think that's what the people here today are committed to doing."
Monday, December 10, 2007
Courts - Two big federal sentencing decisions today from the SCOTUS
WASHINGTON (AP) -- The Supreme Court on Monday said judges may impose shorter prison terms for crack cocaine crimes, enhancing judicial discretion to reduce the disparity between sentences for crack and cocaine powder.
By a 7-2 vote, the court said that a 15-year sentence given to Derrick Kimbrough, a black veteran of the 1991 war with Iraq, was acceptable, even though federal sentencing guidelines called for Kimbrough to receive 19 to 22 years.
"In making that determination, the judge may consider the disparity between the guidelines' treatment of crack and powder cocaine offenses," Justice Ruth Bader Ginsburg said in her majority opinion.
The decision was announced ahead of a vote scheduled for Tuesday by the U.S. Sentencing Commission, which sets the guidelines, that could cut prison time for up to an estimated 19,500 federal inmates convicted of crack crimes.
The Sentencing Commission recently changed the guidelines to reduce the disparity in prison time for the two crimes. New guidelines took effect Nov. 1 after Congress took no action to overturn the change. Tuesday's vote is whether to apply the guidelines retroactively.
In a separate sentencing case that did not involve crack cocaine, the court also said judges have discretion to impose more lenient sentences than federal guidelines recommend. * * *
In [that] case, the court, also by a 7-2 vote, upheld a sentence of probation for Brian Gall for his role in a conspiracy to sell 10,000 pills of ecstasy. U.S. District Judge Robert Pratt of Des Moines, Iowa, determined that Gall had voluntarily quit selling drugs several years before he was implicated, stopped drinking, graduated from college and built a successful business. The guidelines said Gall should have been sent to prison for 30 to 37 months.
"The sentence imposed by the experienced district judge in this case was reasonable," Justice John Paul Stevens said in his majority opinion.
Ind. Decisions - Court of Appeals issues 4 today (and 6 NFP)
For publication opinions today (4):
Rageing Warr v. State of Indiana - "Rageing Warr (“Warr”) was convicted in Marion Superior Court of Class D felony battery by body waste and Class B misdemeanor disorderly conduct. The trial court also found Warr to be in direct contempt of court. * * * In summary, Warr has not demonstrated that she was denied a fair trial because some jurors may have seen her in handcuffs in the courtroom hallway; Warr has not shown any error in the trial court’s exclusion of evidence; because she represented herself at trial, Warr may not now claim ineffective assistance of standby trial counsel; the evidence is sufficient to support Warr’s convictions and the trial court’s contempt findings; and the sentences imposed by the trial court are not inappropriate. Affirmed."
Charles Robertson v. State of Indiana - "Here, as in Bush, there was no finished methamphetamine product found. Robertson’s possession of precursors—pseudoephedrine hydrochloride and hydrogen peroxide—is necessarily included in his conviction for dealing in methamphetamine. Robertson could not have been in the process of manufacturing methamphetamine without possessing the precursors. In accordance with Indiana Code § 35-38-1-6, Robertson’s conviction for possession of precursors must be reversed. See Bush, 772 N.E.2d at 1024-25; see also Moore, 869 N.E.2d at 493. Therefore, we remand this case to the trial court with instructions to vacate Robertson’s conviction for possession of chemical reagents or precursors with intent to manufacture. Affirmed in part, reversed in part, and remanded."
In Washington County Health Department and Mike Haddon v. Jeff and Robin White , an 11-page opinion, Senior Judge Hoffman writes:
In July of 2006, Mike Haddon, a Washington County Health Officer and employee of WCHD, noticed that two mobile homes had been placed on property owned by the Whites that is located in an unincorporated portion of Washington County. Haddon could see that people were living in the mobile homes and that there was a discharge pipe extending from the bottom of one of the mobile homes to the ground. As an employee of WCHD, Haddon knew that a permit for a septic system had not been obtained for either of the mobile homes. Haddon went onto the property and spoke with the Whites’ son, Kelly White (“Kelly”). Haddon asked Kelly if he could look at the end of the discharge pipe, and Kelly told him no. Kelly then told Haddon to leave the property, which he did.Matter of A.J., E.J., and J.J., Children in Need of Services; Marlos & Maya J. v. Marion County Department of Child Services - Termination of parental rights; affirmed.
On July 26, 2006, Haddon sent the Whites a letter stating that the WCHD, pursuant to Indiana Code § 16-20-1-23 and 410 Indiana Administrative Code 6-8.1-33, wanted to inspect their property “for conditions that transmit, generate, or promote disease . . . .” In the letter, Haddon stated that he had observed a discharge pipe extending “from one trailer to the ground surface . . . .” I By a letter dated August 2, 2006, the Whites informed Haddon that they refused to allow WCHD to inspect their property.
Thereafter, on August 3, 2006, the Whites filed a petition for injunctive relief, in which they requested that WCHD not be allowed on their property without a valid search warrant. The Whites also argued that pursuant to Indiana Code § 36-7-8-3(d) and our decision in Robinson v. Monroe County, 658 N.E.2d 647 (Ind. Ct. App. 1995), trans. denied, they were not required to obtain any sort of permit for their mobile homes.
Haddon then sent a Notice and Order to Comply letter to the Whites on August 4, 2006. In the letter, Haddon stated that the Whites had committed three health code violations. * * *
WCHD argues that the trial court erred when it concluded that the Whites fell under the exception created by Indiana Code § 36-7-8-3(d) (“Subsection (d)”). * * *
In a way, the question whether the Subsection (d) exception applies is a sidetrack to the fundamental issue here, which is whether the Whites must comply with the requirements of Indiana’s Health Code (“Health Code”) contained in Title 16 of the Indiana Code. We have already determined that the Whites do not fall within the Subsection (d) exception, and because of this, we conclude that they are bound to comply with the Health Code regulations, specifically, 410 IAC 6-8.1-33, which required them to obtain a permit for a sewage disposal system prior to placing the mobile homes on their property. As such, the trial court abused its discretion by denying WCHD’s petition for injunctive relief.
However, even if we had determined that the Whites satisfied the Subsection (d) exception, they still would have been required to comply with the Health Code regulations. The trial court took a contrary position. It viewed the Subsection (d) exception as a global exception that exempts individuals not only from the requirements set out in Indiana Code § 36-7-8-3, but also the requirements of the Health Code. The trial court’s view of the scope of the Subsection (d) exception is too broad. * * *
The trial court erred in concluding that an individual who satisfies the Subsection (d) exception is exempt from the Health Code requirements. The Whites were required to obtain a permit for a sewage disposal system prior to placing the mobile homes on their property. See 410 IAC 6-8.1-33(a)(1). Therefore, the trial court abused its discretion when it denied WCHD’s petition for injunctive relief. We remand this case to the trial court for action consistent with this opinion. Reversed and remanded.
NFP civil opinions today (1):
Neil Beck v. Annette Beck (NFP) - "Neil Beck (“Husband”) appeals a 2007 trial court order requiring him to pay his ex-wife, Annette Beck (“Wife”), a sum representing one-half the enhanced value of his pension as part of the trial court’s 2001 property disposition order. He also appeals the court’s imposition of a ten-percent interest rate on sums owed to Wife pursuant to the 2007 order and a 2002 property settlement judgment. We affirm in part, reverse in part, and remand."
NFP criminal opinions today (5):
Ind. Courts - "McKinney vs. Duplain case might be postponed"
Seth Slabaugh reports today in the Muncie Star-Press:
Well-known Michigan attorney Geoffrey Fieger is the lead counsel in a wrongful-death lawsuit brought by the estate of Michael McKinney, a Ball State University senior who was shot to death four years ago by a rookie Ball State police officer.Don't miss this June 11th ILB entry headed "So far "McKinney lawsuit costs BSU $650,000."
The lawsuit is scheduled to be tried in federal court in Indianapolis starting Jan. 22. The court has set aside two weeks for the trial.
But on Jan. 15, Fieger, 56, is scheduled to stand trial in Detroit on federal criminal charges that he conspired to make more than $125,000 in illegal campaign contributions to the 2004 presidential campaign of U.S. Sen. John Edwards. That trial is expected to last 4-6 weeks.
As a result, Fieger is asking U.S. District Judge Richard Young to delay trying the lawsuit against Robert Duplain, the former Ball State officer who shot McKinney four times. Responding to a call of a burglary in progress, Duplain shot McKinney at 3:27 a.m. on Sunday, Nov. 8, 2003. The highly intoxicated student allegedly lunged or ran toward the officer in a residential backyard near campus.
Judge Young plans to conduct a status conference this afternoon on Fieger's motion to delay the trial, a move opposed by the university's attorneys. * * *
Fieger and his law partner, Ven Johnson, face trial on criminal charges of using straw donors -- employees, relatives of employees, friends and business associates -- to make campaign donations to Sen. Edwards that were actually paid for by Fieger's firm, not the named donors.
Fieger has claimed he is the target of a conspiracy perpetrated by a Republican administration. He was the Democratic nominee for governor of Michigan in 1998. His clients have included Dr. Jack Kevorkian, champion of physician-assisted suicide. Fieger has been a commentator on CNN, Fox and Court TV.
Duplain's attorneys, including Scott Shockley of Muncie, object to delaying Duplain's day in court.
Ind. Decisions - Upcoming oral arguments this week include the questions of: whether a student's myspace.com postings are protected political speech; whether Indiana's school finance system is unconstitutional
This week's oral arguments before the Supreme Court:
This Thursday, Dec. 13th:
9:00 AM - Darryl Jeter v. State - Jeter was convicted of a 2003 murder and sentenced to life without the possibility of parole in the Lake Superior Court. In this direct appeal, Jeter raises issues relating to jury selection, witness identification at trial, and the admission of other evidence. Attorney for Jeter: P. Jeffrey Schlesinger, Crown Point, IN. Attorney for State: Kelly A. Miklos, Indianapolis, IN.
9:45 AM - A.B. v. State of Indiana - The Putnam Circuit Court adjudicated a juvenile delinquent for harassing a school official. The Court of Appeals reversed after concluding that the computer message the trial court relied on in adjudicating juvenile delinquent was constitutionally protected speech, namely, the juvenile’s criticism of a school policy regarding decorative body piercings. A.B. v. State, 863 N.E.2d 1212 (Ind. Ct. App. 4/9/2007), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for A.B.: James R. Recker, Indianapolis. Attorneys for the State: Steve Carter, Michael Gene Worden, Indianapolis. [Note: The ILB has had a number of entires on this case, involving whether a student's myspace.com postings are protected political speech.]
Webcasts will be available here.
This week's oral arguments before the Court of Appeals that will be webcast:
This Wednesday, Dec. 12th:
1:30 PM - Joseph and Latanya Bonner, et al vs. Mitch Daniels, et al - Appellants present the question, as an issue of first impression, whether Indiana's Constitution imposes an enforceable duty on the State to provide a quality education to its public school students and whether that duty is satisfied. This matter comes before us as an appeal to the trial court's grant of appellees' Motion to Dismiss Appellants' Class Action Complaint, which asserts that Indiana's system of financing elementary and secondary public school education violates the Education Clause, the Due Process Clause, and the Equal Protection Clause of the Indiana Constitution. The National ACCESS Network, the Education Law Center, and the Rural School and Community Trust, Inc., have requested to appear as Amici Curiae. The Scheduled Panel Members are: Judges Sharpnack, Friedlander and Riley. [Where: Supreme Court Courtroom] [Note: this is the much-heralded Indiana school finance case, which then-Marion Superior Court Judge Cale Bradford (now COA judge) dismissed Jan. 29, 2007. See this 1/30/07 ILB entry for details, includng a link to the trial court opinion.]
This week's oral arguments before the Court of Appeals that will NOT be webcast:
Sunday, December 09, 2007
Law - Another take on massive suits against lead paint manufacturers
NY Times business columnist Joe Nocera's Saturday column in the NY Times is headed "The Pursuit of Justice, or Money?" Some quotes:
Although lead was outlawed in paint in 1978 — and though many industry players had removed it even earlier than that — the lawsuits began in 1987. These were not, however, Motley Rice lawsuits. Most were product liability suits that claimed the pigment manufacturers knew that lead was dangerous and had therefore knowingly harmed the consumer.See also this list of earlier ILB entries on lead paint litiations.
The cases went nowhere, for two primary reasons. First, it was hard to make the case in court that the companies had done anything wrong. Yes, there were “bad documents”— there are always bad documents — but most of them were a half a century old, as the science around lead was emerging in this country. They mainly showed that the Lead Industries Association was less than keen about embracing the emerging consensus about the dangers of lead to small children. But the industry didn’t try to cover up the science, and as the science became clearer in the 1950s, the industry voluntarily took lead out of interior paint. I realize that many people think companies should rush to abandon legal products at the first whiff of a problem, but if that were really the standard, the shelves would be bare.
The second problem is that it was impossible to know which manufacturer’s paint had been used on a particular house. For most judges, that was the real deal-breaker. For as long as there has been product liability law, it has been rooted in the notion that in order to sue a wrongdoer, you have to know who the wrongdoer is. Plaintiffs’ lawyers tried to argue that since all the manufacturers used lead pigment, they were all guilty — and their guilt should be proportional to their market share. But aside from Wisconsin, this was universally rejected by the courts.
And there things stood until Motley Rice arrived on the scene. In Rhode Island, where Motley Rice has an office — and lots of political ties — the firm agreed to join forces with the attorney general’s office, just as it had in the tobacco case, and take 16.7 percent of the proceeds if its side won. A lawyer named Fidelma Fitzpatrick came up with the most novel theory yet: the state should sue the companies on the ground that lead paint was a “public nuisance.” It was so far-fetched that another lawyer in the office would later tell a reporter that, at first, they called it Fidelma’s Wacky Idea.
Ms. Fitzpatrick explained to me that since the substance was still so prevalent, it was a public nuisance and therefore all the companies were guilty of creating that nuisance. See how easy that was? Suddenly, the case was no longer about an individual who had been harmed by lead — or an absentee landlord who hadn’t maintained his property. It was about those dastardly pigment makers who had put lead in paint.
Armed with this new theory, Motley Rice went to trial in Rhode Island in 2002. Hung jury. Then, in 2006, the case was retried — and Motley Rice won. “Evidence?” laughed Jane Genova, a blogger who has followed the case closely. “There was no evidence. The judge’s instructions said you didn’t need evidence.” If the jurors found that lead paint created a public nuisance, then they should find for the plaintiffs. Sure enough, they did. (It didn’t help that the companies didn’t put on a defense, so sure were they of victory.)
In the last year, it’s gotten even worse for the defendants, at least in Rhode Island. The state, with the help of its friends at Motley Rice, recently unveiled an abatement plan that would require the companies to pay for the inspection of a staggering 240,000 homes as well as thousands of other structures like hospitals and day care centers, and remove lead from most of them. The estimated cost for doing this — almost surely understated — is $2.4 billion, with a hefty chunk of that going to the lawyers, of course. Never mind that for the vast majority of homes, the far better and cheaper solution is simply to keep them maintained. Or that this plan has been ginned up even though the case is still on appeal.
Meanwhile, to capitalize on its success in Rhode Island, Motley Rice and other big-time plaintiffs’ lawyers have raced all over the country, trying to get other jurisdictions interested in suing the same defendants on the same grounds. Fortunately, they have had less luck. This past summer, the public nuisance theory was rejected by high courts in New Jersey and Missouri. In Wisconsin, two high-profile trials were held this year; the plaintiffs lost them both.
Still, Motley Rice has cases going in Ohio, California and Wisconsin.
Law - Lawyers Probed in ‘Pretext’ ID Theft
Martha Neil reports in the ABA Journal blog:
Lawyers throughout the country reportedly may be investigated as part of a Washington state-based probe of an alleged scheme in which a local firm, BNT Investigations, was hired by private detectives all over the U.S. to obtain confidential personal information by pretext.
A federal grand jury in Seattle has indicted 10 people in the case, as an investigation continues to determine who else may be criminally involved, reports the Seattle Times. Many of the private investigators who retained BNT worked for law firms, the article continues, and Assistant U.S. Attorney Kathryn Frierson says agents are "actively investigating" whether attorneys at these law firms, among others who were involved in seeking information from BNT, also committed crimes. "How far does the knowledge go up?" she says. "That is the critical question."
Key workers at BNT, which is based in Belfair, in Mason County, may have tried to obtain confidential information for as many as 12,000 individuals involved in bankruptcies, lawsuits, divorces and collection efforts, among other matters, according to U.S. Attorney Jeff Sullivan. [Emphasis added by ILB]
Suspects in the case who worked for BNT would pretend in telephone calls to be the individuals about whom they were trying to obtain information. Claiming make-believe hardships or emergencies, they sought—and often obtained—confidential medical, social security and tax return information from agencies such as the Internal Revenue Service and the Social Security Administration, the newspaper reports.
The unusual "pretexting" case is only the second of its kind nationwide, according to Sullivan. The first was the Hewlett-Packard boardroom spying scandal.
Ind. Decisions - More on: Supreme Court denies Bopp motion for an emergency writ regarding the middle initial issue in the recount
Updating this ILB entry from Nov. 30th, where the Supreme Court denied the request for an emergency writ., but determined that the "this original action warrants additional briefing", Austin Arceo of the Terre Haute Trib-Star reports:
TERRE HAUTE — A century of Indiana case law supports Mayor Kevin Burke’s position in an issue before the state Supreme Court, Burke’s attorneys wrote in a brief filed Friday.
Burke attorney Ed DeLaney filed a brief opposing those filed by James Bopp Jr., the attorney for Mayor-elect Duke Bennett. Bopp on Nov. 29 filed mandate actions with the Indiana Supreme Court to overrule Judge David Bolk, of Vigo County Superior Court Division 3. Bolk had earlier denied Bopp’s motions to dismiss Burke’s request for a recount and to challenge petitions the incumbent filed after he lost the election to Bennett last month.
Since Burke’s petitions failed to mention Bennett’s middle initial, Bopp argues, they do not comply with state law to list candidates as they appear on the ballot.
“Such a reading is not unreasonable and is consistent with prior Supreme Court rulings addressing name requirements in petitions for contests and recounts,” two of Bopp’s Supreme Court briefs state.
DeLaney, in his brief, cites a 1908 case in which the Supreme Court stated that an absent middle initial, or even a wrong one inserted in someone’s name would not “‘create a misnomer.’”
“The recount and the contest are worthy of being decided on their merits,” the DeLaney brief states, “instead of being dismissed over a trivial technicality.”
Bopp had the chance to review the DeLaney filing, which he said is “a lot of creative legal arguments trying to avoid the letter of the law.”
“So they’re citing cases that involve other statutes and other legal issues,” Bopp said, “so this doesn’t have anything to do with the statute at hand.”
DeLaney said that the filing meets the requirements of the statute, and that the situation is not about “gotcha,” but who is qualified to be the next mayor.
“We think that’s what ought to be discussed,” DeLaney said. “Mr. Bennett and his lawyer don’t want to talk about whether he is” qualified.
DeLaney’s filing also claims that Bopp had filed the wrong type of motion for the dismissal.
The final deadline to file a brief with the Indiana Supreme Court was noon Friday. Bopp said the court will likely rule on his motions this week.
Ind. Courts - "Managing evidence vital to law and order"
Megan Hubartt of the Fort Wayne Journal Gazette reports today on managing the evidence room for the Fort Wayne Police Department. Some quotes:
Among rows of shelves stacked with ordinary brown cardboard boxes reaching the ceiling, Diane Spiller spends her workday.
Spiller is in charge of organizing, documenting and storing evidence and property collected by the Fort Wayne Police Department.
Within the ordinary-looking boxes are contents of critical importance to victims of crimes, detectives, prosecutors and defense attorneys.
Every piece of evidence collected at a crime scene – clothing items, shell casings, fingerprints – is stored in these boxes until it is needed.
Detectives build cases on the evidence. Prosecutors need the evidence to make their case to a jury. And defense attorneys try to refute the evidence of their client’s wrongdoing.
Spiller, 49, has worked in the department’s property and evidence management for nine years. She maintains the thousands of pieces of evidence collected from every crime investigated – as well as lost or stolen property gathered by officers on a daily basis – with the help of two other employees and one officer who maintains firearms.
“We are dealing with everyone’s worst day, whether it is a robbery, burglary, rape, child molesting,” Spiller said. “And we talk to the victims. We deal with victims of homicide. Try to deal with the families. There is a lot involved that people don’t think about.”
There is a lot of putting items in order, finding room to store them, checking and double-checking numbers on evidence to make sure it matches case numbers, entering information into a computer database and dealing with citizens’ questions about their property.
But Spiller believes she has found her calling and has created an efficient method for properly maintaining important pieces of evidence.
“It’s like I found where I belong,” she said. “With the organization and everything, I absolutely love my job.” * * *
Capt. Paul Shrawder, a supervisor in the police department’s investigative and support division, said Spiller’s job is essential in investigations.
“The whole process of showing where that evidence has been, where it has been to a lab for testing, or just in our property room, is her responsibility,” he said. “The whole process is essential to most of our cases, or at least cases that have physical evidence involved with them.”
She’s also been a major player in implementing a bar-coding system to track evidence, helping create a purging policy to get rid of old evidence and consolidating DNA evidence in the department’s new refrigerator, Shrawder said.
“It has to be organized,” Spiller said. “You definitely don’t want to risk losing something from court cases because we didn’t do our job.”
She sorts every piece of evidence dating back to 1996. She also maintains evidence from homicide cases dating back to the 1970s, any unsolved crimes, and evidence from child molesting cases until the victim is 31 years old, she said.
In addition to all the old evidence, she has to record and store new items collected every day. * * *
Days, weeks, months or even years can pass before a criminal investigation reaches court.
Attorneys on both sides know how important evidence is for their cases and depend upon it being properly handled while in police possession.
To ensure all evidence stored by the department is handled correctly, access to the property and evidence room is restricted, Spiller said.
She gets from 15 to 20 requests a day from detectives and the prosecutor’s office to pull certain evidence. And each time that evidence is touched, it is documented, she said.
“I take it very seriously,” she said. “I treat everything that comes through here as the piece of evidence that’s going to make or break that case.”
The stringent documentation is important to both prosecuting and defense attorneys when reviewing evidence.
Allen County Prosecutor Karen Richards said the storage of criminal evidence is critical to the cases her office prosecutes.
“There are all kinds of prerequisites for admitting evidence into court proceeding,” Richards said. “They look at the chain of custody, has it been properly stored, can you even find it? There are all those kind of issues. If your property isn’t managed appropriately, then you don’t get to admit those things into evidence.”
Ind. Courts - "Judge's name pops up in expanded jury pool"
From a brief story today by Sophia Voravong in the Lafayette Journal Courier:
A Tippecanoe County judge will attend a trial this week -- but as a potential juror.One wonders that this doesn't happen much more often. Perhaps it does, and is not considered newsworthy.
Judge Michael Morrissey of Tippecanoe Superior Court 6, who mostly hears traffic-related cases including infractions and drunken driving, is scheduled to report for jury duty Thursday morning in Tippecanoe Superior Court 2.
And he's thrilled.
"I've always wanted an opportunity to serve on a jury. I truly think it would be interesting and fun," Morrissey said. "Everyone should fulfill their civic duty. I'm no exception."
Ind. Law - "My Big Break" features Parr Richey attorney
The Indianapolis Star's occasional Sunday feature, "My Big Break," today focuses on Tony Patterson, partner at Parr Richey Obremskey & Morton in Lebanon. Patterson relates that upon graduation from law school he did not land "one of the coveted big-firm jobs" and that, in fact, was his big break:
I went to work at Parr Richey Obremskey & Morton in Lebanon. The firm had 11 lawyers, and because of its relatively small size, I was given the opportunity to gain immediate access to the courtroom. In fact, within months of starting, I was trying my first jury trial. I am now in my 15th year of practice and have tried numerous cases and have been fortunate enough to do what I love while helping hundreds of accident and injury victims across Indiana and throughout the Midwest.Patterson "was named the 2007 Indiana Trial Lawyer of the Year by the Indiana Trial Lawyers Association."
Many of my classmates who landed those coveted positions with the big firms took much longer to find their way to the courtroom and very seldom, if ever, were given the opportunity to work with their own clients.
Ind. Courts - Still more on: Marion County juvenile court orders release of the juvenile court file and the much larger DCS case file in TaJanay Bailey case
Updating this ILB entry from Dec. 7th, regarding Marion County juvenile court Judge Marilyn Moores' orders last week for the release of Department of Child Services and Marion County juvenile court records in the TaJanay Bailey's case, today's Indianapolis Star has a story by Tim Evans and Jon Murray that reports:
Judge Marilyn Moores, reacting to communication gaps revealed after the death of TaJanay Bailey, will convene a meeting Monday to discuss making critical child protection information directly available to police on the street.
Police currently have no way of knowing whether children at homes where they respond to calls are involved with the Department of Child Services and need special attention.
Moores has organized the meeting of court, child welfare and police leaders to discuss the process and challenges involved in making such information available to police as they respond to domestic disputes and other incidents. * * *
Moores thinks part of the solution may be close at hand. By using a mechanism that already exists in the county's emergency response computer system, she said, it could be possible to alert police when a family has an open child welfare case.
The system used by the Metropolitan Emergency Communications Agency allows for special messages to be stored by address and called up whenever authorities are sent there.
That is used now to alert police or fire units about hazards at certain addresses, Moores said, so why not allow DCS to store messages in the computer asking officers to contact a family's case manager after any police run to the home?
Moores learned about the possibility Friday from her nephew, an Indianapolis Metropolitan Police Department officer, the judge said. In her mind, she said, only the logistics remain to be worked out.
So Friday afternoon, Moores fired off an e-mail inviting key police and DCS officials to meet with her Monday. Within an hour, several told the judge they would be there or send representatives.
Friday, December 07, 2007
Ind. Decisions - " Cert. Granted in Indiana v. Edwards" [Updated]
The U.S. Supreme Court granted the State's cert. petition in Indiana v. Edwards Case No. 07-208.[Updated] The AP is now reporting, under the headline "Court to Rule on Acting As Own Lawyer," that:
The issue in the case is whether someone who is competent to stand trial is therefore competent to represent themselves. The Indiana Supreme Court said, "yes." Does anyone think that cert. was granted to affirm?
The decision of the Indiana Supreme Court from last May in Edwards v. State is here (written by Justice Boehm). The Court of Appeals decision (written by now-Chief Judge Baker), which the Indiana Supreme Court vacated is here. But this is a case in which the ISC granted transfer to make the holding its own. It did not disagree with Judge Baker.
The Supreme Court said Friday it will review whether a defendant who is judged competent to stand trial has the right to be his own lawyer, even if he has a history of serious mental illness.
Ahmad Edwards was convicted of attempted murder and other charges in 2005 following a shooting at an Indianapolis department store in 1999.
He was initially found to be schizophrenic and suffering from delusions and spent most of the five years following the shooting in state psychiatric facilities. But by 2005, he was judged competent to stand trial.
Edwards asked to represent himself, but a judge denied the request because he was concerned that Edwards' trial would not be fair. Edwards, represented by a lawyer, was convicted anyway and sentenced to 30 years in prison.
He appealed and Indiana courts agreed that his right to represent himself had been violated, citing a U.S. high court decision from 1993. The courts overturned his conviction and ordered a new trial.
State Supreme Court Justice Theodore Boehm said the judge's determination that Edwards' schizophrenia made him incapable of defending himself seemed "at a minimum, reasonable." But, Boehm said, the U.S. Supreme Court has held that "competency to represent oneself at trial is measured by competency to stand trial."
Criminal defendants may be ruled competent to stand trial if they understand the proceedings and are capable of assisting their lawyer. The justices said they will consider in the Edwards case whether states may impose a higher standard for measuring a defendant's competency to be his own lawyer than when determining he is competent to stand trial.
Arguments probably will take place in March.
The court recently saw an aspect of this dilemma in the case of Scott Panetti, a mentally ill killer from Texas who was nonetheless judged competent to stand trial and allowed to represent himself.
Panetti was convicted and sentenced to death after personally arguing that only an insane person could prove the insanity defense. He dressed in cowboy clothing and submitted an initial witness list that included Jesus Christ and John F. Kennedy.
The court blocked his execution in June, in a ruling that did not address his role in his own defense.
Ind. Decisions - More on: Where is D.L. v. State of Indiana?
D.L. v. State is now accessible via the Court's list of COA decisions granted today.
In D.L. v. State, a must read 14-page opinion, Judge Bradford writes:
In this case of first impression, we balance the privacy rights of students and citizens against our schools’ need to identify individuals on school property in this post-Columbine world. More specifically, we are asked to determine whether a school police officer may conduct a pat-down search of a student on school grounds for the sole purpose of finding the student’s identification card if he fails to produce it when asked to do so. Balancing the student’s rights against the interests of school safety, we conclude that a pat-down search for identification of a student on school grounds when the student fails to produce such identification does not violate the student’s rights against unreasonable searches and seizures under the Fourth Amendment to the United States Constitution. * * *
Having found that the search in this case was reasonable at its inception and reasonably related in scope to the circumstances justifying it, we hereby decline D.L.’s claim that the juvenile court abused its discretion in admitting the evidence at his denial hearing. The judgment of the juvenile court is affirmed.
NAJAM, J., concurs.
BAKER, C.J., concurs with opinion. [including this statement] I write separately to further comment on the application of the T.L.O. test announced in Myers v. State, 839 N.E.2d 1154, 1160 (Ind. 2005), which involves student searches that are conducted by school resource officers.
Ind. Decisions - Transfer list for week ending December 7, 2007
Here is the Indiana Supreme Court's transfer list for the week ending December 7, 2007. Be sure to view all 3 pages.
There were three transfers granted this week. See this ILB entry from yesterday for two of them. a third, granted today, is Jose Humberto Arevalo v. State of Indiana, a May 22, 2007 NFP sentencing opinion.
In addition, the Court has vacated its 10/18/07 order that granted transfer in the case of David M. Green v. State of Indiana. Oral arguments were heard in Green on Nov. 29th.
Ind. Decisions - Where is D.L. v. State of Indiana?
Oddly, the ILB has received information of another COA opinion issued this afternoon, but it is not currently available on the list of opinions issued. The opinion is identified as D.L. v. State and may be accessed via this link. It is not clear at this time if the Court posted it and then withdrew it, by removing it from the list, or not. The ILB has sent an inquiry to the Clerks Office.
[More] A reader writes:
D.L. was listed this morning as a published case on the court’s website. Oddly though, it referenced C.J. Baker’s concurring opinion, but did not include it the written decision. The case was later removed from the website. I was puzzled as well. Although its speculation, I presume that it was removed in order to add C.J. Baker’s contribution.
Ind. Courts - Further update on: "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"
Today the Indiana Courts' Judicial Technology and Automation Committee (JTAC) has posted a progress report, announcing that the "Statewide system [is] to launch in Monroe County and Washington Township, Marion County." By now of course this is not news, there have been reports in the Bloomington paper and in the Indianapolis Star. See this Sept. 30, 2007, ILB entry, headed "Two courts set to test records system," which begins:
The ILB has a long list of entries, beginning with this one on March 8, 2005, on the Indiana Supreme Court's efforts to implement a state-wide case management system.The JTAC announcement today says nothing about the issue the ILB has addressed in several recent entries, under the heading "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," posted Oct. 26th and Dec. 3rd. However, the announcement links to a "Project Overview - Case Management System: Project Overview & Benefits," which states:
Most Indiana courts maintain their dockets using a computer program called a “case management system” or “CMS.” But there are at least four major problems with existing case management systems:Given the issues JTAC has stated it has with Indiana county court's existing CMS systems, reported assurances that "Counties won't be forced to make the switch" may appear to be problematic. The question of whether counties will be able to continue to use their own CMSs, or will be forced to scrap what they are using and switch over, has been, and continues to be, a matter of much concern in some of the counties.
- Lack of consistency: existing CMS products differ from court to court;
- Outdated technology;
- Inability to manage information: while the existing CMS products store information, many do not manage it—for example, they do not automatically send out notices, set hearing schedules, or create reports.
- Current CMS products exist only for the courts: they are not connected to law enforcement agencies; state agencies like the Bureau of Motor Vehicles (BMV); courts in other counties (or cities, towns, and townships); lawyers or the public.
The answers to two questions raised in this Oct. 26th ILB entry appear equally problematic:(1) If a county, such as Marion County, does not switch to the JTAC case management system (CMS) for its own court records, but instead continues using its own system, will the county be included in the state web of linked courts? (2) If a county, such as Monroe, does switch over to the JTAC CMS, can it still be a part of the DoxPop Network?As reported at the end of this Dec. 3rd ILB entry, the answer to the second question appears to be a clear "no."
In this entry Tuesday, Dec. 4th, the ILB noted that another Indiana blogger, Richmond attorney E. Thomas Kemp, had also posted an entry on the Bloomington situation. As noted in this ILB entry from March 10, 2005, "Kemp does some legal work for Doxpop and is also a user of the service, so he knows whereof he speaks."
Kemp's Dec. 4th post resulted in a long reader comment from "Kevin," who turns out to be Kevin Cook, the president of CSI, a company which he reports has installed CMS systems in 48 Indiana counties.
Recall that the "CMS" is the case management system the court's use, while separate company, Dox-Pop, has a system that accesses and links the output of the various courts' CMSs. Cook writes that "At no charge to the county, CSI supplies Doxpop its information from those counties wishing to post their public case information to the Doxpop system every ten minutes."
The problem in Monroe County is that the new JTAC system will not allow Dox-Pop to link to it, so that users who have been relying on Dox-Pop for years to obtain information from Monroe County are now out of luck. JTAC has not addressed this issue or its decision in anything the ILB has seen.
As the JTAC plan is to install its CMS into local courts over a period of perhaps 8 years, it could be that the Dox-Pop system will go off line, one court at a time, with little or nothing replacing the existing connectively for some period of time.
Attorney Kemp had another related post yesterday, access it here. He references yet another blog which has now picked up the issue, Pin the Tail, a Bloomington-based blog ("Sophia Travis’ partisan take on local politics"), which posted this entry on Nov. 26th, which was simply a press release from the Monroe County Circuit Court, announcing "Justice Sullivan to brief Monroe County on Implementation of Court Management System."
The post resulted in 16 responses, including a number worth reading.
Law - More on "Justice Is Unequal for Parents Who Host Teen Drinking Parties"
Updating this ILB entry from July 4th, which quoted stories about cases in Virginia and Maryland, here is a story from the Providence Rhode Island Journal, dated Dec. 6th and headlined "Law intended to curb teen drinking not working". Amanda Milkovits' lengthy report begins:
Barbara O’Neil said she wanted to surprise her 15-year-old daughter and her friends at their birthday sleepover by arriving home early with pizzas. She was the one surprised that night last December, she said, when she found her Lincoln house and backyard filled with teenagers and beer.
Her daughter told her that many of the guests had invited themselves. “She was afraid because of peer pressure to tell them to leave,” O’Neil said. “She should have had said ‘this is out of control, you’re wrecking our house, get out of here.’ [But] she’d be blackballed at school.”
The neighbors had already called the police, who arrived shortly after O’Neil did. According to a police report, teens scaled the fence and ran. O’Neil, the report said, tried to hide the beer cans and kept asking the officers if they needed to report the incident.
“I said that out of fear,” O’Neil said this week. “It was a nightmare. If it was in your home, your daughter, wouldn’t you want to protect your daughter and discipline your daughter yourself? Wouldn’t you want to handle it yourself?”
In the end, O’Neil was the only one charged, after teenagers there told the police that she’d given them permission to stay. She was fined $350, the minimum under the so-called “social host law,” passed by the General Assembly last year to punish adults who allow underage drinking at their residences.
It took three years to get the law through the General Assembly — and the final version was weaker than its original draft. Still, it was praised by law enforcement as a step toward curbing teen drinking. The penalty for a first offense is a maximum fine of $1,000 with a possibility of up to six months in prison; a third offense is a felony.
And yet, after all the promise, a Journal review of District Court records found that just three people have been charged under the new law. No one has been charged this year.
Several teenagers have died this year in alcohol-related accidents, focusing renewed attention on underage drinking.
Ind. Decisions - 7th Circuit decides one Indiana appeal today
In U.S. v. Taylor (ND Ind., Judge Norgle, Sr.), a 20-page opinion, Judge Rovner writes:
Styles Taylor and Keon Thomas, both African-American, were jointly tried for the armed robbery of a gun store and the murder of its elderly owner, who was Caucasian. The government sought the death penalty for both men, but ultimately they were sentenced to life imprisonment after the jury found them guilty. Taylor and Thomas contend that their convictions are tainted by the government’s use of peremptory challenges to strike African Americans from the jury pool, in violation of Batson v. Kentucky, 476 U.S. 79 (1986). Additionally, Taylor alone argues that his rights under the Confrontation Clause were violated at trial. For the reasons set forth in the following opinion, we conclude that the district court did not commit clear error in resolving the bulk of the defendants’ challenges under Batson. However, we are unable to draw this conclusion with respect to potential juror Heshla Watson because the district court did not put factual findings on the record regarding the credibility of the government’s reason for striking her. For that reason we will remand to the district court for supplemental factfinding on this point. Finally, we reject Taylor’s Confrontation Clause argument because it does not implicate the improper admission of testimonial evidence.
Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)
For publication opinions today (1):
In David M. Peters v. Julie Perry, Elzie D. Hale and Theresa A. Hale, a 4-page opinion by Judge Barnes, the panel grants David Peters’s petition for rehearing, and affirms.
NFP civil opinions today (1):
In Term. of Parent-Child Rel. of D.D., and Tabitha Dent v. Dept. of Child Services of Allen County (NFP), a 5-page opinion, Judge Barnes writes:
Tabitha Dent appeals the termination of her parental rights to D.D. We reverse.NFP criminal opinions today (3):
Dent raises one issue, which we restate as whether there is sufficient evidence to support the termination of her parental rights. * * *
Tabitha Dent appeals the termination of her parental rights to D.D. We reverse. Issue Dent raises one issue, which we restate as whether there is sufficient evidence to support the termination of her parental rights. We reverse.
Ind. Courts - "Marion County's chief public defender stepping down"
Jon Murray is reporting on the Indianapolis Star website, in a story that begins:
Marion County Chief Public Defender David E. Cook will leave his post in February after 12 years in charge of the agency that represents indigent defendants in Marion Superior Court, he confirmed this morning.
Cook resigned this week, but he won't step down until Feb. 15 to give county leaders time to appoint a successor.
The former deputy prosecutor and defense attorney took over the fledgling agency in 1995, just two years after it was up and running, and he has overseen rapid growth.
But it's time to move on, Cook said. He had sought an appointment to the Indiana Court of Appeals last year, and he said he is now considering opportunities in the private sector.
Ind. Courts - "One of three incumbent Delaware County judges announcing a bid for re-election"
From a report in the Muncie Star-Press by Rick Yencer:
The 2008 election began Thursday with one of three incumbent Delaware County judges announcing a bid for re-election.
Delaware County Circuit Court Judge 5 Judge Wayne L. Lennington, a Democrat who was elected by only 56 votes in 2002, might face a challenge in the May 6 primary from deputy prosecutor Ron Henderson.
"I don't think he [Henderson] will run," Lennington said after announcing his re-election campaign, before nearly 100 people at local Democratic Party headquarters on Thursday.
Lennington, 77, reminded supporters that the Democratic Party was the base of the community, as he promised fair and impartial justice on the bench. * * *
Henderson, 42, said he was contemplating a campaign for judge, but had not decided.
Democratic Circuit Court 3 Judge Robert Barnet Jr. and Republican Circuit Court 4 Judge John Feick also face re-election next year.
Feick was first elected in 2002, beating Muncie City Court Judge Linda Wolf. Barnet was unopposed in that election; he would be seeking a sixth term as Circuit 3 judge if he runs next year.
Filing for the May 6 primary begins Jan. 23.
Ind. Courts - "Cost of renovating the Vigo County Courthouse hits $13M"
On Aug. 3, 2006, an ILB entry began: "The Terre Haute Tribune-Star reports, in a story by Howard Greninger: 'The Vigo County Courthouse will close its doors to the public Friday as workers move the county clerk’s office to a new location as part of the building’s $10.5 million interior renovation.'"
Today Greninger reports, in a lengthy story that begins:
Originally estimated at $8 million to $8.5 million in 2002, the final cost for the interior renovation of the historic Vigo County Courthouse will be $13 million when work is completed in the first half of next year.
The Vigo County Building Corp. meets today to give its approval for the closing on the sale of $3.1 million in bonds to finish the project. The bond sale closing is expected next week.
The additional money is needed to complete renovations after some initial funds were diverted to other costs, which county commissioners say were unforeseen. The county paid $553,592 to have a temporary Superior Court Division 2 courtroom built in the county’s Community Corrections facility at the corner of First and Ohio streets, which opened in 2006.
That move allowed five other courtrooms to be rotated in the courthouse while renovation is completed.
In addition, the county spent $523,996 from April 2004 to the end of 2006 for WK2 & Associates to scan and transfer county records into an electronic data base. That cost includes $9,145 the county paid the IRS after the federal agency in August 2006 filed liens against that company for failing to pay federal withholding taxes. The county then searched for another firm to perform that work.
The county also has been paying $5,208 per month in rent for office space at Sixth Street and Wabash Avenue, plus nearly $5,000 in utilities. The space is used to store court documents, which were to be scanned, and is temporarily housing the county’s voter registration and public defender offices.
The County Council has budgeted $60,000 for 2008, enough to pay for six months of that rental space.
County Auditor Jim Bramble said he thinks “there are all kinds of costs that nobody planned for initially in the project, that I think could reasonably have been foreseen. Moving the offices around was not calculated in the initial bond issue and the county had to pay for all the rent and extra help at Sixth and Wabash for storage of the records.”
Courts - Still more on "Motion suggests guardian to oversee dogs seized from Vick home"
A Valparaiso University law professor has recommended that the remaining 47 pit bulls seized from suspended NFL star Michael Vick's dogfighting operation be placed with rescue organizations
Rebecca J. Huss, an animal law expert and court-appointed guardian for the dogs, submitted a summary report to the U.S. attorney for the Eastern District of Virginia this week, as the latest step in the process of overseeing the placement or euthanasia of dogs from Vick's Bad Newz Kennels operation.
One dog was recently euthanized for medical reasons, according to a news release from Valparaiso University School of Law.
"With the experienced care they will provide these dogs, I foresee that many will eventually be able to be adopted by members of the public," Huss said.
Huss recommended the dogs be placed with eight organizations, including 22 to Best Friends Animal Society in Utah and 10 to Bay Area Doglovers Responsible About Pit Bulls in California. The animals have been held in shelters in Virginia since April, when they were seized in a raid on Vick's property in Surry County, Va.
On Tuesday, federal prosecutors filed a motion urging U.S. District Judge Henry E. Hudson to adopt Huss' recommendations. The motion includes a report from Huss detailing her work, which included trips to Virginia to interact with the dogs and their caretakers and speak with animal control officers and rescue groups.
Ind. Courts - Hamilton County spent $1 million on pauper attorneys
Tania E. Lopez of the Indianapolis Star reports today that begins:
NOBLESVILLE -- Hamilton County may change the way it handles assigning court-appointed attorneys if an ongoing evaluation proves criminal defendants lie about their incomes to avoid shelling out money for legal fees.
Court administrator Ollie Schierholz said the county paid about $1 million last year to provide court-appointed attorneys to defendants, and he wants to make sure the money was well spent.
The county does not currently screen defendants for income level.
When defendants claim to be indigent, the court hires private attorneys for them because the county doesn't employ a public defender.
The state would reimburse the county for the cost of a full-time public defender, Schierholz said, but not for the private attorneys. Caseloads of people claiming to be indigent have steadily risen along with the county's population, he said.
County officials have discussed creating a public defender position, said County Councilman Meredith Carter.
"We've talked about it, but it's too expensive," Carter said, noting that besides the cost of paying the defender, there would be additional expenses, such as benefits and office space.
And, he said, there's apprehension about the reimbursement program. "Sometimes when (the state) runs out of money, they don't pay anything."
Ind. Decisions - More on: Marion County juvenile court orders release of the juvenile court file and the much larger DCS case file in TaJanay Bailey case
A Marion County juvenile court judge this afternoon released hundreds of pages from the Department of Child Services case file on TaJanay Bailey. * * *This morning a side-bar to this Star story by Tim Evans and Jon Murray gives more details on the records release:
DCS lawyers argued in favor of releasing the records, and Judge Marilyn Moores agreed Friday over opposition from Charity Bailey’s attorneys. She reviewed the documents this week to make redactions of information protected by privacy laws before releasing them to the media today.
STAR'S REQUEST BEGAN PROCESS OF FILE'S RELEASE
Thursday's release of about 1,500 pages from the state Department of Child Services case file on TaJanay Bailey was unprecedented in its quickness.
The 3-year-old girl died Nov. 27 after she had been physically abused, prosecutors say. In previous cases in which a child died while under DCS guardianship, it has taken months or longer to gain access to the confidential case file.
But after The Indianapolis Star requested the release of DCS and Marion County juvenile court records last week, DCS officials also lobbied Judge Marilyn Moores to make them public.
Public defenders representing TaJanay's mother, Charity Bailey, objected to the release over concerns for privacy and the potential for harm in Bailey's criminal case.
In ordering the release Friday, Moores said transparency and government accountability drove her decision. The court immediately provided copies of its own record, and the judge spent much of this week redacting the much larger DCS file to comply with federal and state privacy laws.
The public defender's office was among those lining up for a copy of the case file Thursday at a FedEx Kinko's store. Ray Casanova, who is representing Bailey in the criminal case, said he still had worries.
"Our concern is about the ability of the story to be told through these records alone," he said. "The best place for this story to be told is in a courtroom."
-- Jon Murray
Thursday, December 06, 2007
Ind. Decisions - Court grants transfer in two cases
The formal transfer list will follow tomorrow, but the ILB has received notice of two cases having been granted transfer this week:
Brenwick Associates, LLC. v. Boone County Redevelopment Comm'n. - According to a story in the Indianapolis Star, the COA opinion "resolves a land dispute betweeen the Whitestown Town Council and the Boone County Commissioners over a prime corridor in the county." See the ILB entry on the July 20th COA opinion here.
Jeffrey Pearson v. State - This was a NFP July 27th COA opinion where the issue was "whether the trial court erred in ordering restitution without determining his ability to pay." The COA reversed and remanded.
Courts - State trial court information online
The WSJ Law Blog has just posted an interesting entry about accessing a NY trial court complaint online:
Here we were thinking how valiant we were for trudging over to the New York state courthouse to find the answer to the lawyer bride’s complaint against her florist. Valiant sure, but stupid too! Wrote one reader called “Check online, Law Blog!”:And of course this is confusing if you don't know, or it has slipped your mind, that "Supreme Courts" in NY are trial courts.
“No idea why the Law Blog walked across Lower Manhattan to 60 Centre when the answer is available online in its entirety.
Silly Law Blog! We had no idea that you can access the docket for New York State Supreme Court cases if you have the index number.
Most state's appellate court opinions are now online. But the briefs and other appellate documents mostly are not. And at the county or trial court level, online availability of trial court opinions, especially without cost, is very rare, in the ILB's experience. The public online availability of the complaint and other filings is virtually non-existent.
But for New York! Here is the NY webpage, which provides:
WebCivil provides online access to information about cases in Civil Supreme Court in all 62 counties of New York State. You may search for cases by Index Number or the name of the Plaintiff or Defendant, look up cases by Attorney/Firm name, and view Calendars for each court. With our eTrack case tracking service you can receive email updates and appearance reminders for Civil Supreme Court cases.The WSJ Law Blog provides the link to the answer filed in the wedding flower case.
Environment - "Coalition sues Land Office over wind farms"; energy alternatives, each with proponents and opponents
Wind Farms. The Austin American-Statesman had a story Wed. headed: "Coalition sues Land Office over wind farms: Groups, including King Ranch, want to require extensive environmental review of wind projects." The NY Times had a story by Felicity Barringer on June 6, 2006 headed "Debate Over Wind Power Creates Environmental Rift." A quote: "Wind farms on the empty prairies of North Dakota? Fine. But not, Mr. Boone insists, in the mountainous terrain of southwestern Pennsylvania, western Maryland or West Virginia, areas where 15 new projects have been proposed." In 2003 the Chesapeake Bay Journal had a story headed "Wind turbine proposals for Atlantic Coast face challenges".
Coal Plants. "Committed to Coal, and in a Hurry, Too" was the headline to this story in the Nov. 7th, 2006 NY Times. "Midwest Has 'Coal Rush,' Seeing No Alternative" was the headline to a story March 10th, 2007 on the front-page of the Washington Post.
"Indiana Utility Regulatory Commission Gives Duke Energy Indiana Approval to Build Integrated Gasification Combined Cycle Plant" was the headline to this ILB entry from Nov. 20th, 2007.
Nuclear Energy. "Some rethinking nuke opposition" was the headline to this March 22nd, 2007 story by William M. Welch USA Today. Some quotes:
With global warming a rising concern, some environmentalists are rethinking nuclear power because it emits zero greenhouse gases.
"You can't just write nuclear off," says Judi Greenwald, director of innovative solutions with the Pew Center on Global Climate Change, an environmental research and advocacy group. "I think everybody feels you have to at least look again" at nuclear power.
That attitude is markedly different from the revulsion that environmental groups have directed toward nukes for most of the past three decades.
That opposition is one of a number of factors that nuclear advocates say put in place a virtual ban on new nuclear plants since the late 1970s. * * *
Some environmentalists aren't buying. "We remain steadfastly opposed to nuclear power," Sierra Club spokesman Josh Dorner said. "We're not willing to believe they are as safe as the industry is willing to portray them."
The Sierra Club says it has not wavered in its stand against nuclear power. Greenpeace USA also says it finds nuclear power unacceptable.
Both organizations cite the unresolved debate over long-term storage of radioactive wastes and economic viability because of huge construction costs. They also worry about the possibility of spent fuel getting into the wrong hands and being used for weapons.
"I think there are a lot better carbon-free alternatives for producing electricity," says Christopher Flavin, president of Worldwatch Institute, an environmental research group. * * *
Nuclear already plays a big role in the USA. There are 104 nuclear reactors operating at 66 plants in the country, producing one-fifth of the nation's electricity, according to the Department of Energy. The highest user is Vermont, which gets 72.5% of its electricity from nuclear.
Coal provides far more electricity in the USA and creates greenhouse gases when burned.
Patrick Moore — a founder of Greenpeace who is now co-chairman of the industry-funded Clean and Safe Energy Coalition, which advocates for nuclear power — says coal-fired power plants pose a greater threat to the environment. He says environmental groups recognize that, even those not yet officially embracing nuclear power.
Courts - "Time for Cameras: Those who are interested shouldn't have to line up overnight to watch Supreme Court debates"
The Washington Post published this editorial this morning:<
SOME 70 members of the public queued up in frigid conditions early yesterday -- some camping out overnight -- for a chance to witness the historic Supreme Court argument on the rights of detainees held at Guantanamo Bay. Thanks to more progressive thinking of late from the justices, those who couldn't squeeze into the courtroom could listen to the proceedings on C-SPAN or read the transcript released that afternoon. But no one outside the courtroom could watch, because the justices prohibit television cameras in the court.
This is a travesty, especially in a case of such importance. The justices have argued that cameras in the court could lead to grandstanding by lawyers and increase the threat to their own privacy and possibly their security by making them more recognizable. Justice Anthony M. Kennedy, in testimony before Congress last year, obliquely suggested that separation-of-powers concerns could be triggered if Congress tried to require cameras in the court.
These arguments ignore the fact that the court is a public institution, funded with taxpayer money and charged with dispensing legal judgments that can affect everyone. Televising Supreme Court oral arguments could help inform the public how the court functions and might help dispel dangerous and incorrect assumptions about the court. And the justices have already proved that they're perfectly capable of reining in legal histrionics. There's an argument to be made that having cameras in the court makes more sense than allowing an audience in the courtroom; cameras, after all, can't engage in outbursts, but they would allow millions of people, rather than mere dozens, to observe the proceedings.
The Senate Judiciary Committee today once again takes up legislation to allow television cameras in oral arguments at the Supreme Court. The legislation, sponsored in the Senate by Arlen Specter (R-Pa.), calls for the justices to permit coverage of "all open sessions of the Court unless the Court decides, by a vote of the majority of the justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of one or more of the parties." This would provide the justices flexibility of action while giving citizens a glimpse into a marbled world most of them will never be able to experience firsthand.
Ind. Decisions - Marion County juvenile court orders release of the juvenile court file and the much larger DCS case file in TaJanay Bailey case
Jon Murray of the Indianapolis Star reports today:
About 1,500 pages from the state Department of Child Services case file on TaJanay Bailey are expected to be released this morning by Marion County juvenile court.Earlier this year, efforts by the Indianapolis Star to access adoption records were unsuccessful, in a case where, according to a Star story, "a Hamilton County judge decided in closed court to allow an unmarried New Jersey man to adopt twin girls over the objection of child welfare officials." Here is a list of ILB entries in the adoption records case.
The records could shed more light on the decision to send TaJanay home for a 30-day trial visit with her mother, Charity Bailey, and Bailey's boyfriend, Lawrence Green, both 20. Both face murder and neglect charges in TaJanay's Nov. 27 death.
On Friday, Judge Marilyn Moores ordered the release of both the juvenile court file and the much larger DCS case file.
The state agency's lawyers argued in favor of the release. But Charity Bailey's attorneys vigorously opposed it, and this week they have filed motions with Moores and the Indiana Court of Appeals seeking to reverse the decision or halt the remaining documents' release temporarily.
The Indianapolis Star is among the media outlets seeking the records.
The court's file was given to the media immediately Friday, but the judge delayed the DCS case file's release so she could redact portions to comply with state and federal privacy laws.
On Monday, the appeals court denied Bailey's request for an emergency stay. Public defenders representing Bailey have asked the court to consider an expedited appeal of Moores' original ruling.
Separately, Moores already denied their request for a stay from the bench Friday. But the attorneys drafted another request Tuesday to reconsider her order and again asked for a stay.
The judge had not ruled Wednesday.
Bailey's attorneys argue that making the records public would violate her rights to privacy and due process in her criminal case. Some documents include information protected by law from release, the filings say, and any release to the media can't be reversed.
A new hearing has been set for Dec. 18 in juvenile court to consider requests to open documents from other child-welfare cases involving TaJanay and her 6-month-old brother, as well as Charity Bailey's juvenile record.
Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)
For publication opinions today (2):
Matter of the Paternity of J.R.W.; Kevin L. Jemerson & Mamie Darlene Jemerson v. Jack Watterson & Nathanial Green - In this case, an 8-page opinion by Judge Darden, the issue is "Whether the Jemersons had standing as next friends to bring a paternity action on behalf of their maternal nephew, J.W., as his next friends when a panel of this court had previously held that their guardianship rights with respect to J.W. should be dissolved."
Tammy McKay (“Tammy”) and Jack began a romantic relationship when Tammy was already pregnant with another man’s child. Tammy gave birth to J.W. on December 25, 1995. Two days later, Jack executed a paternity affidavit, wherein he averred that he was J.W.’s father. Tammy and Jack married on April 28, 1996. Their union produced a daughter, B.W. The marriage ended in divorce on October 28, 2002, and the dissolution decree identified J.W. and B.W. as children of the marriage. The matter of J.W.’s paternity was not litigated during the divorce proceedings. The divorce court awarded Tammy custody of J.W. and B.W., granted Jack visitation rights, and ordered him to pay child support.In Terrance Hood v. State of Indiana , a 10-page opinion, Judge Bailey writes:
Subsequently, Tammy and Jack each remarried. In the fall of 2005, Tammy was diagnosed with terminal cancer. Tammy wrote a will in which she expressed her “strongest desire that no other relative of [her] children, including their non-custodial parent and natural father, be appointed guardian of [her] said children.” See Watterson v. Jemerson, No. 39A01-0609-CV-403, (Ind. Ct. App. April 16, 2007). She requested that her sister, Mamie Darlene Jemerson, be the guardian of J.W. and B.W. Soon thereafter, Mamie and Kevin Jemerson filed a petition for guardianship and a motion to appoint a guardian ad litem (“GAL”) for the children. The trial court granted the Jemersons’ motion to appoint a GAL. On March 22, 2006, the GAL recommended that the Jemersons be named guardians of J.W. and B.W. Tammy died four days later.
On April 6, 2006, the Jemersons filed an amended petition for guardianship. On the following day, the trial court granted temporary guardianship to the Jemersons, ordered visitation for Jack, and took the matter of permanent guardianship under advisement. On June 2, 2006, the trial court awarded the Jemersons permanent guardianship of B.W. and J.W., and imposed a visitation and child support order for Jack. On June 30, 2006, Jack filed a motion to correct error, challenging the trial court’s grant of guardianship to the Jemersons. The trial court conducted a hearing on Jack’s motion on July 31, 2006. On August 21, 2006, the trial court entered an order stating its reasons for awarding guardianship rights to the Jemersons and denied Jack’s motion. Jack appealed to this court. * * *
Because both Jack and Green – as the legal father and biological father, respectively – bear the duty of acting on behalf of J.W., no proper basis exists upon which the Jemersons may assert standing as J.W.’s next friends. The trial court properly granted Jack’s motion to dismiss for lack of standing because the Jemersons cannot be granted relief under any set of facts.
Hood’s conviction for Voluntary Manslaughter must be reversed because evidence corroborative of his self-defense claim was erroneously excluded. However, there is sufficient evidence to permit his retrial on that charge. Because of the necessity of the reversal and retrial, we do not reach Hood’s claim of sentencing error.NFP civil opinions today (0):
NFP criminal opinions today (5):
Ind. Courts - Announcement from Clerk of Courts re filing in the Statehouse
Kevin Smith, Clerk of Courts, announced Dec. 5th that:
During the period of construction that is occurring at the east entrance to the State House (which is expected to last through the end of December at least), rotunda filing will be available "the old way," meaning that papers may be left with a State Police officer stationed at a desk just inside the north entrance to the State House. The north entrance will remain "swipe card access only"; therefore, those wishing to "rotunda file" between 5 p.m. and midnight will need to knock on the glass door at the north entrance and the State Police officer stationed there will have to let the person in. If the officer is temporarily absent, then the person wishing to rotunda file will have to wait until the officer returns.
The forms we currently use at the rotunda filing drop box will be placed at the guard desk for the person tendering the document to fill out once he/she is allowed inside. Instead of using a time clock to place a time/date stamp on the form, however, the State Police officer will place the time and date on the form after the person fills it out. The person tendering the document for filing will still need to attach the top copy of the form to the inside cover of the original document being filed, but instead of then dropping the bundle into the drop box, he/she will leave it with the officer.
Ind. Courts - Supreme Court to host summit on children
A release today from the Indiana Courts begins:
INDIANAPOLIS – Michigan Supreme Court Justice Maura Corrigan, a noted national expert on child protection, foster care, and adoption, will be the keynote speaker at a special Indiana Summit on Children to be held Friday, December 14, at the Indianapolis Convention Center. More than 300 court officials, judges, legislators, mental health professionals, foster parents, educators, service providers, and state caseworkers serving abused and neglected children are expected to attend the Summit which is titled “Partners Planning for Permanency.”
Environment - "Former IU SPEA dean completes IDEM permit process review"
On Aug. 13th, the ILB posted en entry titeld "Environment - Governor Daniels asks former dean of SPEA to conduct 6 weeks study of Indiana's IDEM's BP permit." On Nov. 7th, the ILB posted an entry titled "Environment - Governor's review of Great Lakes water-quality laws drags on." Today, Dec. 6th, the Governor's Office has issued a press release headed "Former IU SPEA dean completes IDEM permit process review."
The ILB has not yet had a chance to review the 38-page report and cover letter in detail, but the press release puts a very positive spin on it.
[More] Patrick Guianane and Christine Kraly of the NWI Times have reviewed the report and written this story.
Wednesday, December 05, 2007
Law - "Other countries have done away with the felony murder rule"
I remember how amazed many of us in Dean Cleon Faust's first-year Wrongs class in the 60s were to learn about the felony murder rule. This was, of course, before shows like Law and Order.
Yesterday Adam Liptak of the NY Times had a lengthy front-page story about the "American legal doctrine [that] makes accomplices as liable as the killer for murders committed during felonies." Other counies have done away with the felony murder rule:
Most scholars trace the doctrine, which is an aspect of the felony murder rule, to English common law, but Parliament abolished it in 1957. The felony murder rule, which has many variations, generally broadens murder liability for participants in violent felonies in two ways. An unintended killing during a felony is considered murder under the rule. So is ... a killing by an accomplice.A side-bar notes that this article, headed "Amercian Exception: Murder Once Removed," is "the second in an occasional series of articles that will examine commonplace aspects of the American justice system that are actually unique in the world." An earlier article, published Oct. 17, was titled "Lifers as Teenagers, Now Seeking Second Chance," and reported that "the U.S. stands alone in the world in convicting adolescents as adults and sentencing them to life."
India and other common law countries have followed England in abolishing the doctrine. In 1990, the Canadian Supreme Court did away with felony murder liability for accomplices, saying it violated “the principle that punishment must be proportionate to the moral blameworthiness of the offender.”
Countries outside the common law tradition agree. “The view in Europe,” said James Q. Whitman, a professor of comparative law at Yale, “is that we hold people responsible for their own acts and not the acts of others.”
But prosecutors and victims’ rights groups in the United States say that punishing accomplices as though they had been the actual killers is perfectly appropriate.
Ind. Decisions - Upcoming oral arguments tomorrow include: Attractive nuisance case involving trampoline; statute of limitations for bringing UST claims
See Monday's weekly survey of upcoming oral arguments here.
Ind. Decisions - Court of Appeals issues 0 today (and 12 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
Matter of the Guardianship of B.D. and L.D., Michelle Doll v. Kevin Doll and Pamela Doll (NFP) - "Appellant-Respondent Michelle Doll (“Mother”) appeals the trial court’s order naming Appellees-Petitioners Kevin and Pamela Doll (“Maternal Grandparents”) permanent co-guardians of minor children B.D. and L.D. (the “children”). On appeal, Mother claims that the evidence was insufficient to support the court’s factual findings and that the court’s legal conclusions were not adequately supported by the facts. We affirm. * * * Although the trial court appropriately refrained from labeling Mother as an “unfit” parent, there is clear and convincing evidence that the children’s best interests are substantially served by placement with their Maternal Grandparents."
Matter of the Commitment of N.B. v. State of Indiana (NFP) - "N.B. appeals his involuntary commitment to Columbus Regional Hospital Mental Health Center (“Columbus Regional”). Specifically, he contends that the evidence is insufficient to support the trial court’s findings that he is dangerous and gravely disabled. Because there is clear and convincing evidence that N.B. is dangerous, we affirm the trial court’s commitment order."
NFP criminal opinions today (10):
Ind. Decisions - Supreme Court issues one today
In Steven Hollin v. State of Indiana, a 7-page opinion, Justice Rucker writes:
The defendant was convicted of conspiracy to commit burglary, a Class B felony, and found to be a habitual offender. The trial court sentenced him to twenty years for the conspiracy offense, enhanced by twenty years for the habitual offender adjudication. Under our constitutional authority we revise the sentence to a total aggregate term of twenty years. * * *
Conclusion. We remand this cause to the trial court with instructions to enter a sentence of ten years for conspiracy to commit burglary as a Class B felony, enhanced by ten years for the habitual offender adjudication.
Shepard, C.J., and Sullivan and Boehm, JJ., concur.
Dickson, J., concurs and dissents with separate opinion. [which begins] I dissent as to the revision of the sentence selected by the trial court. As to the remainder of the Court's opinion, I concur.
Ind. Decisions - 7th Circuit issues three Indiana opinions today
In U.S. v. Amaral-Estrada (SD Ind., Judge Barker), a 16-page opinion, Judge Bauer concludes:
For the reasons stated above, the district court did not err in denying both Amaral-Estrada’s and Lira-Esquivel’s Motions to Suppress Evidence. The district court’s orders are AFFIRMED.In White v. Gerardot (ND Ind., Magistrate Judge Cosbey), a 16-page opinion, Judge Ripple writes:
Arlinthia White, individually and as personal representative of the Estate of Derrick Ford, filed this action under 42 U.S.C. § 1983. Ms. White alleges that Mark Gerardot, a Fort Wayne, Indiana police officer, violated Ford’s Fourth and Fourteenth Amendment rights when he used excessive force to seize Ford. The district court denied Detective Gerardot’s motion for summary judgment based on qualified immunity. Detective Gerardot then appealed this denial under Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). For the reasons set forth in this opinion, we dismiss the appeal for lack of jurisdiction. * * *In CSX Transportation v. Appalachian Railcar (SD Ind., Judge Hamilton), an 8-page opinion, Judge Rovner writes:
Conclusion. The district court denied Detective Gerardot’s motion for summary judgment because there were genuine issues of material fact as to whether Ford was a threat to Detective Gerardot. Because Detective Gerardot has not raised any legal arguments based upon the facts that the district court assumed in denying him qualified immunity or on the facts alleged by Ms. White, we lack jurisdiction under the Supreme Court’s holding in Johnson to review the district court’s decision. Accordingly, we dismiss the appeal for lack of jurisdiction.
In April 2004, for reasons still unknown, thirteen railcars derailed in Evansville, Indiana. CSX Transportation determined that the railcars, which belonged to Appalachian Railcar Services (“ARS”), had derailed on CSX-owned track and, therefore, that CSX was liable for the damage. Some time after paying ARS for the damaged railcars, CSX concluded that the derailment had actually occurred on track that it did not own. Believing that its payment to ARS was based on a mistake, CSX brought this suit to recover the payment. The district court granted summary judgment to ARS based on the voluntary-payment doctrine, which precludes a claim for restitution on a voluntary payment made with full knowledge of the relevant facts. Because we believe that the voluntary-payment doctrine does not apply to the facts of this case, we vacate and remand for further proceedings. * * *
For the reasons stated above, the judgment of the district court is VACATED and the case REMANDED for proceedings consistent with this opinion.
Ind. Courts - More on: Porter County Courthouse cell phone ban begins
VALPARAISO | The cell phone ban at the county's three court buildings may have brought some peace of mind to judges and staff since taking effect four months ago, but it continues to create headaches for the public.
Despite numerous news articles and colorful signs posted at the entrance to the buildings, visitors are still being turned away with their phones, said Dennis Replin, who heads up court security.
Many simply return their phones to their cars, he said.
But returning to a car can be a hardship for individuals running late for court or for those who parked several blocks away from the Valparaiso courthouse to avoid the two-hour parking limit in the downtown area.
A visitor dropped off at juvenile court this week found himself in a jam by not having a car in which to store his cell phone.
Replin said some visitors are resorting to hiding their phones in the bushes outside of the court buildings.
Porter Superior Judge David Chidester said he saw someone picking up their phone from beneath the bushes outside his office, yet he believes the benefits of the ban outweigh the inconveniences.
"This is an issue of security," he said.
When the ban took effect Aug. 1, Chidester voiced concern about the availability of devices that look like cell phones capable of shooting bullets.
The phones also pose problems at the courts because they can be used to take photographs, record hearings, interrupt the proceedings or be used to access the Internet, he said Tuesday.
An exception in the ban allowing attorneys, judges and officers of the court to carry cell phones in the buildings was criticized this week by Valparaiso City Councilman Robert McCasland, who proposed a resolution requiring those same individuals to wear hot pink lip gloss when visiting buildings owned by the city of Valparaiso.
Chidester was not amused by McCasland's proposal, but he does plan to suggest a change involving attorneys.
He has heard of cases where attorneys have carried their clients phones into the court buildings. He wants to prohibit that practice.
While courthouse security will not hold on to cell phones, the officers are willing to hold knives until a visitor leaves or hold on to guns for police officers visiting for reasons other than work, Replin said.
There has been talk about offering lockers or other options to store phones at the buildings, but Chidester said a private venture along those lines in Allen County failed.
Ind. Gov't - Vanderburgh County recorder's office records now online, for a fee
Jimmy Nesbitt of the Evansville Courier & Press reports today:
Digital records of documents at the Vanderburgh County recorder's office are now available online.Note that this is different from the Vanderburgh County assessor's records, which have been online since 2004 - see ILB entry here.
County Recorder Betty Knight Smith has planned a seminar from 10 a.m. to noon Thursday in Room 301 of the Civic Center to discuss software used to download the documents. Representatives from Fidlar Software and the county recorder's office will demonstrate two remote access products, Laredo and Tapestry.
Laredo allows remote Internet access to county recorder records for a monthly subscription cost, which begins at $50 a month for up to 250 minutes of use to $250 a month for unlimited usage. It is the same software used at the public terminals in the recorder's office. Documents can be printed for a fee of $1 a page. A downloadable version of Laredo Software is available at www.fidlar.com.
Tapestry is a pay-as-you-go program that also allows remote Internet access. It is best suited for people who only occasionally need a document from the recorder's office. A quick search using Tapestry will cost $3.99 and an advanced search will cost $6.99. The user will pay 50 cents for each page viewed.
And this is different from the Vanderburgh County court records, which are not online. See this ILB entry from Sept. 24, 2006, headed "Vanderburgh County seeks to put court records online at no cost to public."
Ind. Law - Still more on: New Albany lawsuit seeks new council districts
The New Albany City Council made "a good-faith effort" but failed to comply with an agreement to settle a lawsuit seeking to realign the city's voting districts to make their populations more equal, a federal judge said yesterday.
U.S. District Judge John Tinder in New Albany, ruling from the bench, extended the period for council compliance by 60 days. By then, Tinder said, the council should file notice of what it had done to meet the agreement's terms.
The plaintiffs in the lawsuit, filed in May 2006 demanding that boundaries of the city's six voting districts be redrawn, would then have 15 days to indicate whether they were "satisfied, or the effort fell short," Tinder said.
A new nine-member council elected last month will take office next month, about midway into the 60-day period, and it wasn't clear yesterday whether the current or new council will try to meet the deadline.
The council's next regular meeting is Dec. 20, although a special session could be called. It would take three votes to pass a redistricting ordinance, but in emergencies the council has sometimes suspended its rules and given an ordinance three votes at a single meeting.
Larry Kochert, the council president whose term expires this month, said after yesterday's court hearing that his preference is not to wait.
"I would like to get it done," he said, adding that he will follow the wishes of the council majority.
Tuesday, December 04, 2007
Ind. Decisions - More on: Retired Grant Circuit Judge Thomas Hunt wins pay suit
Updating this ILB entry from earlier today, here is a copy of the order of John W. Forcum, Special Judge, Grant Superior Court I, in the case of Thomas R. Hunt v. Mike Scott, et al. Many thanks to the reader who promptly provided a copy.
Ind. Gov't. - "Some public records denied with no legal authority"
Seth Slabaugh of the Muncie Star-Press today looks at two recent opinions of the state Public Access Counselor dealing with Delaware County. The story begins:
MUNCIE — One of the most common violations of Indiana’s Access to Public Records Act is when a government agency denies access with no statutory authority, according to Heather Willis Neal, the state’s public access counselor.You can read the actual PAC opinion in conjunction with today's story: 07-FC-190; Alleged Violation of the Access to Public Records Act by the Delaware County Jail is found here: 07-FC-129; Alleged Violation of the Access to Public Records Act by the Delaware County Assessor is found here.
For example, the Delaware County Jail this year denied prison inmate Larry Kuhn access to the dates an attorney visited the prisoner in jail.
And Delaware County Assessor James Carmichael in 2005 denied a taxpayer the identities of data collectors numbered 221, 224 and 226 and the name of an appraiser numbered 220 on a property record card.
In both cases, Neal’s office determined the denials violated the law.
Ind. Decisions - 7th Circuit tobacco trademark case out of Illinois turns on pictures
In Top Tobacco v. North Atlantic Operating Co. (ND Ill), a 7-page opinion, Chief Judge Easterbrook writes:
This case illustrates the power of pictures. One glance is enough to decide the appeal.
Top Tobacco, L.P., sells tobacco to people who want to roll cigarettes by hand or make them using a cranked machine. This is known as the roll-your-own, make-yourown or RYO/MYO business. Top Tobacco and its predecessors have been in this segment of the cigarette market for more than 100 years, and the mark TOP®, printed above a drawing of a spinning top, is well known among merchants and customers of cigarette tobacco. North Atlantic Operating Company and its predecessors also have been in the roll-your-own, make-your-own business for more than 100 years, though initially only as manufacturers of cigarette paper. Not until 1999 did North Atlantic bring its own tobacco to market. The redesigned can that it introduced in 2001 bears the phrase Fresh-Top™ Canister. Top Tobacco maintains in this suit under the Lanham Act that none of its rivals may use the word “top” as a trademark. * * *
But no one who saw these cans side by side could be confused about who makes which: [pp. 3-4 sets out pictures of tobacco containers] * * *
Top Tobacco insists that even if the amendment (and North Atlantic’s new packaging) preclude equitable relief, it is still entitled to damages under the old version of §1125. But what we have said is enough to show that the word “top” is not famously distinctive “as a designator of source” in any sensibly specified niche of tobacco products. AFFIRMED
Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)
For publication opinions today (2):
In Phyllis J. Wrogeman v. Mitch Robb, Secretary of the Indiana Family & Social Services Administration , an 8-page opinion, Judge Bradford writes:
Appellant-Petitioner, Phyllis Wrogeman, appeals the trial court’s order dismissing her petition for judicial review of a final order issued by Appellee-Respondent Indiana Family and Social Services Administration (“FSSA”). Upon appeal, Wrogeman claims that the trial court, which dismissed her claim on the basis that it lacked jurisdiction, erred in concluding that her failure to include the entire agency record divested the trial court of jurisdiction. Wrogeman additionally claims the trial court erred in concluding that even if it had jurisdiction, her failure to include certified, rather than verified, documents warranted dismissal. We affirm. * * *
Here, unlike in Izaak Walton League, Wrogeman failed to include even the transcript of the agency proceedings. In issuing its November 9 decision, FSSA indicated, “The Administrative Law Judge has carefully reviewed the testimony presented at the hearing, all evidence, Federal/State regulations, and policy transmittals in regard to this matter.” App. p. 18. With the exception of the Wrogeman Family Trust, Exhibit B, none of the above material apparently relied upon by the ALJ was included with the petition for judicial review.1 Regardless of whether Wrogeman disputed the ALJ’s findings of fact, such material was part of the agency record below and was specifically relied upon by the ALJ in making the ruling from which Wrogeman sought judicial review. As Wrogeman failed to include the agency record contemplated by Indiana Code sections 4-21.5-5-13 and 4-21.5-3-33, which, unlike in Izaak Walton League, directly concerned the sole decision she was appealing, the trial court properly determined it lacked jurisdiction in dismissing the case. * * *
While not necessary for the disposition of this case, we further observe, as the trial court did, that not only was the agency record in this case incomplete, it was neither original nor certified as required by Indiana Code section 4-21.5-5-13(a). Wrogeman argues that her petition and accompanying exhibits were “verified,” which in her view is adequate to fulfill the requirement that it be “certified.” Aside from offering arguably comparable dictionary definitions, Wrogeman presents no authority to support her position. Given the requirements that the agency maintain “official” records of all adjudicative proceedings and that, when petitioning for judicial review, the accompanying record must be either original or certified, it appears as a matter of common sense that certification must come from the agency creating the record, not from the petitioning party or her attorneys. Indeed, we have stated in the past that verified documents may be substituted for certified documents only where the record shows a good faith effort has been made to secure certified copies, and a petitioner is unable to obtain them due to circumstances beyond her control. * * *
In sum, we conclude that the trial court properly dismissed Wrogeman’s petition due to her failure to include a certified copy of the agency record with her petition for judicial review.
Matter of the Adoption of B.R.; Samuel Lee Shell v. William Brandon Rountree - "The trial court erred in concluding that William’s consent to the adoption was required. Reversed and remanded."
NFP civil opinions today (4):
Paternity of A.J.C.; Robert Crawley v. Andrea Moore (NFP) - "Appellant-Respondent Robert Crawley appeals from the trial court’s order denying his motion to set aside the paternity affidavit filed in response to Appellee-Petitioner Andrea Moore’s petition to establish paternity to provide support pursuant to the execution of the paternity affidavit. After reviewing the record, we conclude that this matter is not yet ripe for appeal and that we lack subject matter jurisdiction over this appeal because the trial court has yet to issue a final judgment. This matter is therefore dismissed."
Termination of the Parent-Child Relationship of M.P., S.F., D.F.; Leanna Fitzgerald and Daniel Fitzgerald v. Daviess County Department of Child Services (NFP) - "Appellants-respondents Leanna and Daniel Fitzgerald bring this consolidated appeal from the trial court’s order terminating their respective parental relationships with M.P., S.F., and D.F. The Fitzgeralds argue separately that there is insufficient evidence supporting the trial court’s termination order. Finding no error, we affirm the judgment of the trial court."
Termination of the Parent-Child Relationship of K.H.; Jessica Hartman v. Delaware County Office of Family & Children (NFP) - "Appellant-respondent Jessica Hartman appeals the trial court’s order terminating her parental rights with respect to her daughter, K.H. Hartman argues that the trial court erroneously admitted laboratory reports revealing the results of a number of Hartman’s drug screens and that the evidence is insufficient to support the termination of her parental rights. Finding no error, we affirm the judgment of the trial court."
James R. Recker, II v. Alley Cat Lounge (NFP) - "Since we have concluded that the trial court did not abuse its discretion by setting aside the default judgment or in denying Recker’s request to introduce additional evidence before the court, we hereby affirm the judgment of the trial court."
NFP criminal opinions today (3):
Ind. Decisions - Supreme Court decides contracts dispute
In Ronald D. Liggett, d/b/a Liggett Construction Co. v. Dean and Elisabeth Young, a 12-page opinion, Justice Dickson writes:
The plaintiff, Ronald Liggett, d/b/a Liggett Construction Company, brings this appeal to challenge a trial court summary judgment ruling in a contract dispute arising from Liggett's con-struction of a private residence for his attorney, defendant Dean Young, and Young's wife, Elisa-beth. To address whether the parties' attorney-client relationship affects the resolution of this dispute, we granted transfer, and now reverse the trial court. * * *
Having previously granted transfer, thereby automatically vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A), we now reverse both (a) the trial court's final judgment in favor of the Youngs and against Liggett as to all of Liggett's claims against the Youngs and (b) the grant of the Youngs' motion for partial summary judgment as to Liggett's claims. This cause is remanded to the trial court for resolution of the remaining claims of each party in a manner consistent with this opinion.
Shepard, C.J., and Sullivan and Rucker, JJ., concur.
Boehm, J., concurs in result with separate opinion. [that begins] The dispositive issue in this appeal is whether the contract provision bars Liggett’s claim to be compensated for unwritten change orders. I agree with the majority that summary judg-ment in favor of the Youngs must be reversed, and this case should be remanded for trial.
I think that despite its odd procedural posture, this case boils down to some familiar and relatively simple points. At a time when Dean Young was acting as Liggett’s attorney, the Youngs contracted for Liggett to build their home. Liggett had no separate attorney. Liggett claims that the parties agreed to oral change orders and that a variety of change orders added substantially to the cost of the project. He seeks compensation for those. The Youngs respond to Liggett’s claims by invoking the provision in their written contract that prohibited unwritten change orders.
Ind. Decisions - Retired Grant Circuit Judge Thomas Hunt wins pay suit [Updated]
Mishele Wright reports today in the Marion Chronicle-Tribune:
Former judge Thomas Hunt has won a lawsuit against Grant County in which he asked for back pay to make up for what he said was an illegal reduction in salary.Earlier ILB entries include this one from Dec. 23, 2006, headed "Grant Circuit Court Judge Thomas Hunt retiring," and this one from Nov. 10th, 2006 headed "Grant Circuit Court Judge R. Thomas Hunt sues over cut pay," which includes a link to the complaint.
According to the decision, the county will have to pay Hunt $5,000 from 2006, plus interest and court fees.
Mike Scott, president of the Grant County Council, said the county would more than likely appeal, and it has 30 days to do so. He said he wasn't surprised by the decision, which was made Nov. 21.
"From the beginning, I felt this would go much higher than the local level," he said.
Scott said the lawsuit probably would be discussed at the next council meeting, set for Dec. 12. He said he thinks the case will set a precedent for some county employees.
"I'm anxious to see it get to the appellate court," he said.
The decision was made in Grant Superior Court I by a judge from Blackford County, he said. The judges in Grant County refused to hear the case, Scott said.
"It's unfortunate we're even in this situation in the first place, but that's the kind of society we live in," he said. "Anybody and everybody has the opportunity to sue."
Hunt wouldn't comment on the decision, but his attorney Joe Certain said they were pleased with the outcome.
Hunt filed the lawsuit in November 2006 against Scott and other council members, county commissioners and the county auditor.
According to court documents, Hunt submitted to the council the proposed budget for his salary, and the council refused to appropriate the funds for the 2006 rate. Hunt said the council went against the state constitution, which says a circuit court judge's salary cannot be reduced while he is in office, and the Blackford judge ruled in Hunt's favor.
The ILB will attempt to obtain a copy of the trial court ruling.
[Updated] Access the Court's order here.
Ind. Law - "Glaspie said he asked several people in the Republican Party, who he declined to name, if his convictions for intimidation with a deadly weapon and criminal recklessness would make him ineligible"
Another story about a convicted felon and eligibility to public office today, this one in the Lafayette Courier & Journal. Brian Wallheimer reports:
OXFORD -- Two 1993 felony convictions are coming back to haunt David Glaspie.Here is a list of some of the earlier ILB entries on a convicted felon's eligibility to run for, or serve in, public office.
Glaspie will likely never take the seat he won on the Oxford Town Council last month, and now his job in the town's street and sewer department could be in jeopardy.
"The fact that he's a felon is a problem with me," said Lowell Gardner, a town councilman. "His employment will be seriously discussed."
Glaspie applied to run as an independent, at-large candidate for the council in this Benton County town. The application specifically asks if candidates are ineligible because of any criminal conviction.
Glaspie said he asked several people in the Republican Party, who he declined to name, if his convictions for intimidation with a deadly weapon and criminal recklessness would make him ineligible.
"When I asked about my criminal convictions, I was told they weren't pertinent on the local level," Glaspie said. "I sought out information to make sure it was on the up-and-up and I found out it's not."
Janet Hasser, Benton County Circuit Court clerk, said she is seeking advice from the Indiana Election Division on what to do. She said she's never had a case similar to this.
"There's no clear answer because it's an at-large seat and there are no state statutes for this and the deadline to contest the election has passed," Hasser said. "He's not eligible to assume office."
Glaspie said he's looking for an attorney to advise him on the matter. He said he wants his options, but isn't looking for a long legal battle.
Ind. Courts - More on: Oral arguments this afternoon before 7th Circuit in Joseph E. Corcoran’s death penalty case
Yesterday morning, Rebecca S. Green of the Fort Wayne Journal Gazette previewed the oral arguments to take place that afternoon before a panel of the 7th Circuit in the State's appeal to reinstate the death penalty in the case of Joseph E. Corcoran v. Buss.
Today Green reviews the arguments, in this story. A sample:
CHICAGO – Nothing was typical about the case of convicted quadruple-murderer Joseph E. Corcoran, but whether a plea offer made by the then-Allen County prosecutor was appropriate is now a matter to be decided by a federal appellate court.Listen to yesterday's oral arguments here.
Monday afternoon, Indiana Deputy Attorney General James Martin argued that Allen County Prosecutor Robert Gevers’ offer to withdraw the death penalty during plea negotiations was within his prosecutorial discretion.
Even if that offer came with the caveat that Corcoran give up his right to a jury trial and allow a judge to decide his fate.
A three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago took up the case after Indiana Attorney General Steve Carter appealed a ruling by a federal judge overturning the death penalty, saying Gevers’ offer violated Corcoran’s constitutional rights.
The federal judge’s ruling was the latest step in years of wrangling over Corcoran’s death sentence after he was convicted of murdering his brother, his sister’s fiancé and two of his brother’s friends in July 1997.
Both sides had 30 minutes to present their arguments Monday, and as they spoke, the three judges – William J. Bauer, Ann Claire Williams and Diane Sykes – questioned the lawyers on their interpretations of the law and their arguments.
Gevers’ offer to withdraw the death penalty in exchange for a bench trial instead of a jury trial was no different than any other negotiation common when both sides try to hammer out plea agreements, Martin argued.
Ind. Gov't. - Still more on "Storm Water Board resigns: Council criticized no-bid contract"
The New Albany City Council's court challenge to contracts awarded by the city's sewer and storm-water boards without competitive bids won't be considered until next year -- if at all.
Floyd Circuit Judge Terrence Cody decided yesterday to delay arguments because four new council members will be seated next month.
At the start of what had been scheduled as a hearing on motions to dismiss the lawsuit, Cody said it's possible that the new nine-member council could vote to drop the litigation.
Cody gave Jerry Ulrich, the lawyer who had filed the complaints, 40 days to submit written responses to the motions to dismiss. Those motions were made by Greg Fifer on behalf of the sewer board and by Mike Summers for the storm-water board.
By the time the 40-day period runs out, the new council will have met, giving members an opportunity to address the issue if they want to do so.
Earlier this year the sewer board voted 5-0 to renew its contract with Environmental Management Corp., which has been running the sewer system for $3.6 million a year. The new contract is for three more years at $3.3 million annually, starting next month.
The storm-water board later voted 2-1 to enter into an agreement with the company to run the storm-water system for $507,000 a year.
Both contracts were awarded without bids, with Fifer and Summers advising that the agreements were for the company to provide "professional services," so competitive bidding was not required.
The council subsequently voted 6-2 to file suit, asking Floyd Circuit Court to rule on the validity of the no-bid arrangements. Ulrich has contended that the contracts are for "public works" projects and must be bid under state law.
Ind. Courts - Another update on: "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"
Kudos to Marcia Oddi over at the Indiana Law Blog for bringing attention to the move by the Indiana Supreme Court’s administrative division to bring its plan to connect all county courts through a centralized computer network, and in the process, block out a private company that already links about half of Indiana county courts.
Monday, December 03, 2007
Courts - "There is no such thing as grandparents' rights. A right is something you're entitled to. Therefore, there can't be grandparents' visitation rights,"
That is a quote from the mother's attorney after a successful Illinois Supreme Court ruling involving the child's grandmother. Here are quotes from an editorial yesterday in the Sauk Valley Newspapers (serving Dixon, Sterling and Rock Falls, Illinois). From the editorial:
Fair-minded Illinois grandparents should not take Thursday's Illinois Supreme Court ruling as anything other than what it is - an affirmation that the rights of responsible parents can't be trumped by something called "grandparents' rights."The 7-page opinion, Flynn v. Henkel (Nov. 29, 2007) is available here. Thanks to How Appealing for the links.
The case pitted two Dixon women - Alice Henkel, the mother of a 4-year-old boy, and Cindy Flynn, the boy's paternal grandmother. Several factors complicated this relationship.
The boy's father, a convicted drug dealer, is serving a prison term for his second domestic battery case. The mother stated she is afraid of the father and was concerned about the environment her son would be subjected to while visiting the grandmother. Along with that, the mother stated the grandmother did not respect her religion and would not do things she asked with respect to the boy. As the disagreement developed, the mother chose not to allow her son to see his grandmother.
The grandmother, citing the state's grandparent visitation statute, petitioned the court two years ago seeking visitation rights. A local judge approved and then the appellate court upheld the grandmother's supposed right to have the grandson visit her in her home for three hours a month.
With Thursday's ruling, Supreme Court justices overturned those decisions. The court, which already had nullified the grandparent visitation law in 2002, reiterated parents' rights to raise their children as they see fit, except in the case of a child's physical, mental or emotional health being placed in jeopardy. * * *
As important as grandparent-grandchildren relationships are, they must meet with the parents' approval. They can't be forced upon unwilling parents by grandparents wielding a state law.
How did Illinois pass a grandparent visitation law in the first place? Perhaps the rise of irresponsible parents and the added responsibilities on grandparents' shoulders helped sway lawmakers' minds. It also might be a commentary on the age of certain legislators who passed the original law. Maybe there were more grandparents than parents in the bunch.
Regardless, Supreme Court justices made the right decision. The rights of responsible parents should be respected.
Ind. Courts - Update on: "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"
In this ILB entry from Oct. 26th, about the JTAC pilot project in Monroe County, the ILB quoted an Indianapolis Star story as stating "The computerized court system could expand across the state over six years, beginning in 2009, if later pilot counties are successful. Counties won't be forced to make the switch." Then the ILB continued:
In other words, counties will be able to continue to use their own CMSs. This has been, and continues to be, a matter of much concern in some of the counties.The entry went on to quote from a DoxPop memo that began "The Courts of Monroe County are planning changes that will affect your ability to access up-to-date Monroe County case information via the Doxpop system after December 17, 2007," and then continued by explaining that DoxPop was attempting to work out an interface between the JTAC and DoxPop systems.
This seems to leave two questions unanswered, however. (1) If a county, such as Marion County, does not switch to the JTAC case management system (CMS) for its own court records, will the county be included in the state web of linked courts? (2) If a county does switch over to the JTAC CMS, can it still be a part of the DoxPop Network?
The answer to the latter question, at least for now, appears to be "No", according to this memo sent out by DoxPop yesterday to all its users.
Apparently these efforts have thus far proven unsuccessful, according to a letter sent out today by Ray Ontko, President, which begins:
To all Doxpop users:It looks like JTAC's "pilot program" may not encompass any effort to interface the new CMS system with the long-term and wide-ranging existing networks upon which the legal community relies.
The Courts of Monroe County plan to stop sending case information to Doxpop on December 17, 2007. Doxpop plans to continue to provide access to historical case information, but new information about current cases will no longer be available via the Doxpop website.
The Monroe Courts are switching to a new case management system (CMS) provided by the State Court's Judicial Technology and Automation Committee (JTAC). On October 25 we formally requested access to Monroe County case information via the new system. We are waiting for the Division of State Court Administration to act on our request.
Ind. Decisions - Court of Appeals issues 3 today (and 14 NFP)
For publication opinions today (3):
In Andre Deshazier v. State of Indiana, a 23-page opinion, Judge Robb writes:
After a jury trial, Andre Deshazier was convicted of carrying a handgun without a license, a Class C felony; two counts of resisting law enforcement, one as a Class D felony and one as a Class A misdemeanor; and possession of marijuana, a Class A misdemeanor. The trial court sentenced Deshazier to eight years with two years suspended for carrying a handgun, three years for felony resisting arrest, one year for misdemeanor resisting arrest, and one year for possession of marijuana. The trial court ordered all sentences to run consecutively, except for the misdemeanor resisting arrest sentence, which it ordered to run concurrent to the felony resisting arrest sentence. Deshazier now appeals the handgun conviction, one of the resisting arrest convictions, and his sentence, raising the following issues:In Ashley N. Galvan v. State of Indiana, a 7-page opinion that criticizes the defendant's attorney's brief and orders him to return his fee for appellate services, Judge Friedlander writes:1. Whether sufficient evidence supports Deshazier’s conviction for carrying a handgun without a license;Concluding sufficient evidence exists to support his conviction, double jeopardy does not bar Deshazier’s two convictions for resisting arrest, and consecutive sentences are permitted, we affirm.
2. Whether the prohibition of double jeopardy precludes one of Deshazier’s convictions for resisting arrest; and
3. Whether the imposition of consecutive sentences violates Indiana Code section 35-50-1-2(c).
Ashley N. Galvan pleaded guilty to Possession of Cocaine, a class D felony, and Operating a Vehicle While Intoxicated (OWI), a class A misdemeanor. The trial court sentenced her to one and a half years for possession of cocaine, with all but ninety days suspended to probation. With respect to the OWI offense, the trial court imposed a concurrent sentence of one year, with all but six days suspended. On appeal, Galvan challenges her sentence as inappropriate. We dismiss. * * *In James H. Lindsey v. State of Indiana , a 15-page opinion, Judge Friedlander writes:
In the plea agreement, Galvan expressly waived her right to appeal her sentence. Despite this provision of the plea agreement (the existence of which Galvan never acknowledges in her argument to this court), Galvan appeals her sentence as inappropriate.
Due to flagrant violations of the appellate rules, we dismiss Galvan’s appeal. We have warned Galvan’s attorney, John G. Clifton, on at least three occasions regarding his inadequate appellate advocacy. * * * Therefore, we once again are compelled to address the glaring deficiencies in the appellate materials Clifton has submitted in the instant appeal.
Of particular note, we find the statement of facts wholly inadequate. As Clifton has been reminded several times, Indiana Appellate Rule 46(A)(6) requires the statement of facts section to describe in narrative form “the facts relevant to the issues presented for review” supported by citations to the record. In addition to providing no citations to the record, Clifton makes no attempt to provide us with the facts relevant to the issue presented for review. Rather, he merely offers a recitation of the charges filed against his client. This constitutes a flagrant violation of the appellate rules and is unacceptable appellate practice. * * *
The statement of the case is also incomplete and of little assistance to us in this appeal. Clifton provides no citations to the record and, as set forth above, does not even provide us with a correct statement of the sentence received by Galvan. * * *
Further, the summary of the argument section, though titled as such, cannot be considered a summary of Galvan’s appellate arguments. In this regard, the appellate rules provide: “The summary should contain a succinct, clear, and accurate statement of the arguments made in the body of the brief. It should not be a mere repetition of the argument headings.” App. R. 46(A)(7). Disregarding the rule, Clifton has simply cut and pasted into this section his previous statement of the issue, which also constitutes the argument heading in the brief. In sum, Clifton’s summary is: “I. Inappropriateness of sentence.” * * *
Finally, we observe that the argument advanced by Clifton in support of Galvan’s appeal is inadequate and not supported by cogent reasoning as required by App. R. 46(A)(8)(a). We have recently observed: “‘A brief is not to be a document thrown together without either organized thought or intelligent editing on the part of the brief-writer. Inadequate briefing is not, as any thoughtful lawyer knows, helpful to either a lawyer’s client or to the Court.’” * * * In sum, the argument presented by Clifton offers no assistance to us in addressing Galvan’s appeal. * * *
In light of the numerous and flagrant violations of our appellate rules, we must dismiss Galvan’s appeal. * * * Moreover, due to Clifton’s flagrant and repeated violations of the appellate rules, we conclude that Clifton is not entitled to a fee for his appellate services in this case, and we direct him to return to the payor any fee he may have already received. Finally, we caution Clifton that future violations such as this may result in additional consequences, such as referral to the Supreme Court Disciplinary Commission for investigation, as Indiana Professional Conduct Rule 1.1 requires attorneys to represent their clients competently. Dismissed.
James N. Lindsey was convicted of Operating a Vehicle with an Alcohol Concentration Equivalent (A.C.E.) of .15 or More, a class A misdemeanor, and was also found to be a Habitual Substance Offender (HSO). The trial court sentenced Lindsey to one year on the misdemeanor conviction and enhanced that sentence by an additional seven years for the HSO determination, resulting in a total sentence of eight years. Upon appeal, Lindsey presents five issues for our review:NFP civil opinions today (2):1. Was Lindsey denied due process of law when the State failed to disclose evidence relating to his status as an HSO in violation of a pre-trial discovery order?We affirm.
2. Does Lindsey’s HSO sentence enhancement violate the proportionality clause of the Indiana Constitution?
3. Is it cruel and unusual punishment for Lindsey to serve an eight-year sentence at the Orange County Jail?
4. Did the trial court improperly overlook as a mitigating circumstance Lindsey’s guilty plea to being an HSO when it imposed a seven-year sentencing enhancement?
5. Is Lindsey’s eight-year sentence inappropriate?
Matter of the Termination of the Parent-Child Relationship of M.O.H.; Michael Otis Hampton v. Tippecanoe County Department of Child Services (NFP) - "We conclude the Tippecanoe County Division of Family and Children proved by clear and convincing evidence that continuation of the parent-child relationship posed a threat to M.H.’s well-being and that termination of Hampton’s parental rights was in M.H.’s best interests. Therefore, we affirm the termination of Hampton’s parental rights."
Term. of Parent-Child Rel. of D.M., K.M., and J.M., and Nancy Moore v. Bartholomew Dept. of Child Services (NFP) - "In sum, we cannot say that the trial court abused its discretion in denying Moore’s motion to dismiss the termination proceedings. Although the trial court could have appointed counsel for Moore at an earlier stage of the CHINS proceedings, there is no statute or case law requiring such an appointment. Moreover, Moore has failed to show how the termination outcome would have differed had her request for the appointment of counsel been granted. Hence, Moore has failed to show that her right to due process was violated."
NFP criminal opinions today (12):
In the Matter of K.T. v. State of Indiana (NFP) - "K.T. was adjudicated a delinquent child for committing acts that would constitute Battery, a class A misdemeanor, and Disorderly Conduct, a class B misdemeanor, if committed by an adult. K.T. challenges the true finding of disorderly conduct, presenting two issues for review. We need not address those issues, however, because we find a different issue dispositive of the appeal. That issue is: did the true findings of both battery and disorderly conduct violate double jeopardy principles under the Indiana Constitution? We reverse and remand with instructions."
Ind. Courts - Oral arguments this afternoon before 7th Circuit in Joseph E. Corcoran’s death penalty case
Rebecca S. Green of the Fort Wayne Journal Gazette reports today in a story that begins:
The Indiana Attorney General’s Office will ask a federal appeals court today to reinstate quadruple-murderer Joseph E. Corcoran’s death penalty that was thrown out this year
In April, U.S. District Judge Allen Sharp overturned the death sentence imposed in 1999 after a jury convicted the then-22-year-old Corcoran of four counts of murder. In July 1997, Corcoran shot and killed his brother, James Corcoran, 30; his sister’s fiancé, Robert Scott Turner, 32; and two of his brother’s friends – Timothy G. Bricker, 30; and Douglas A. Stillwell, 30 – at a Bayer Avenue home.
Even though he found Corcoran’s habeas corpus request “seriously untimely,” Sharp’s 34-page ruling said that then-Allen County Prosecutor Robert Gevers inappropriately punished Corcoran by pursuing the death penalty against Corcoran after he declined to face a trial before a judge and chose to allow a jury decide his fate.
Though Sharp’s ruling did not grant Corcoran a new trial, it removed the death penalty and sent the case back to an Allen County judge to again pass sentence – this time to a term of life in prison without parole or to a set number of years.
“It is the holding of this court that the prosecution unconstitutionally penalized (Corcoran) by seeking the death penalty when (Corcoran) refused to consent to the prosecution’s offer to forgo the death penalty in exchange for (Corcoran’s) consent to waive a jury trial and proceed with a determination of guilty by the judge,” Sharp wrote.
Attorney General Steve Carter decided to appeal Sharp’s decision and the matter is now to be heard by the 7th Circuit of U.S. Court of Appeals in Chicago. Each side will get 30 minutes to present oral arguments before a panel of three judges this afternoon.
Ind. Law - "Wine-shipping ruling adds holiday cheer"
The practical implications of the wine-shipping ruling for the holiday shopper were the subject of Dan and Krista Stockman's "Uncorked" column in the Sunday Fort Wayne Jounral Gazette. A sample:
Of course, when the court struck down the parts of the shipping law that made it almost impossible to get wine from Indiana wineries, it also opened the door to out-of-state wineries. As long as those wineries follow the same rules – like getting a state permit – they can ship to you the same way an Indiana winery can. That doesn’t mean, however, that all of them will. Some won’t want to deal with the paperwork and the bother. But you won’t know until you ask. And here’s another hint: If you want them to get a $100 permit so you can order one bottle, they might not be too excited about it. If you’re ordering a case, though, they might be more inclined.
Still unsettled is what happens with wine stores. The law only addressed wineries. As it currently stands, it appears wine retailers can deliver wine to you themselves, but not ship it through a third-party carrier such as UPS. Kahn’s Fine Wines in Indianapolis, for example, will deliver anywhere in the state – if the order is big enough.
Ind. Courts - More on "Monroe courts picked as computer test site"
Supplementing, burt not adding anything new to this ILB entry from Nov. 27th is a story today in the Indiana Daily Student headlined "Monroe County first in state with ‘Odyssey’: Computerized system makes court cases electronic."
Ind. Gov't. - Law change means local government can add labor and overhead when calculating the cost for copies
Seth Slabaugh of the Muncie Star-Press reports today:
In January of 2006, the chief of police in New Castle told an attorney he would have to pay a copy charge of 35 cents a page to obtain police records.
Rod Crossland, owner of Wishbone Gifts in downtown Muncie, was charged 25 cents a page in July of 2006 for copies of records maintained by the city of Muncie building commissioner.
Karen Davis, Indiana Public Access Counselor at the time, determined that both cities had violated the state's Access to Public Records Act (APRA) by charging excessive copying fees.
"To me, that was just one more issue in a series of aggravations I was angry at the city about," recalled Crossland, who was involved in a legal dispute with the city over whether he was permitted to occupy an apartment above his store.
Crossland also alleged the city denied him access to public records. Davis found that the city might have done so.
New Castle illegally included labor costs in the setting of its copy fee, and it charged an excessive fee to supplement its fire department budget, according to Davis.
"I agree that at one time the city probably charged more than what state law calls for," said Dave Copenhaver, city attorney for New Castle. He identified the person who complained about the 35-cent copy fee as an attorney seeking traffic-accident reports so he could send letters to personal-injury victims.
State government agencies legally are allowed to charge only 10 cents a copy for most public records, and local government agencies can set a fee schedule not to exceed 10 cents a page for black and white copies.
But that was before July 1, when a change was made in the law by House Enrolled Act 1379. Until then, local government agencies by law could not include labor and overhead when calculating the cost for copies.
"The language excluding labor and overhead was inadvertently stricken from the statute, so, since July 1 of this year, local governing bodies can include those in their copy fees," said Heather Willis Neal, the current Indiana Public Access Counselor. "I expect this to be corrected in the 2008 Legislative session. I have heard that at least one legislator will move to amend the language back in."
Two months ago, Neal investigated a complaint that southern Indiana's Clarksville Town Council violated APRA by adopting a fee schedule of 25 cents a page for copies of public records. The town's planning commission conducted a study of how much it cost to retrieve and copy a document. The study found that the cost was $1.61 a document.
Considering the fact that the council set the copy fee well under $1.61 a page and given the change in state law, Neal found that Clarksville had not violated APRA by establishing a fee schedule of 25 cents a page.
APRA states that "providing persons with information is an essential function of a representative government and an integral part of the routine duties of public officials."
Environment. - More on: BioTown, USA. Remember little Reynolds, Indiana? Population 500
This ILB entry from Nov. 1st featured a Wall Street Journal story headed "An Ethanol Glut Hits Home In BioTown, USA.."
This story today in the Lafayette Journal & Courier, by Joe Larson, reports:
John Heimlich, president of the White County commissioners and president of the BioTown USA Development Authority, said many Reynolds residents are taking an approach similar to Wiese's.
"I think they're just waiting to see what happens," Heimlich said.
So far, there hasn't been much to see. Construction hasn't started on any of the bioenergy projects planned for the technology suite.
Those behind the BioTown project insist that progress will be made and that Reynolds residents and area farmers need to be patient.
Ind. Decisions - Upcoming oral arguments this week include: Attractive nuisance case involving trampoline; statute of limitations for bringing UST claims
This week's oral arguments before the Supreme Court:
This Thursday, Dec. 6th:
9:00 AM - Beth Kopczynski v. David Barger - The Washington Superior Court entered summary judgment for the Bargers on the complaint of Beth Kopczynski and her daughter, Alisha Palmer, arising out of injuries that Palmer sustained while jumping on a trampoline located in the Bargers' yard. The Court of Appeals affirmed based on conclusions that Palmer was a trespasser on the Bargers' property and the trampoline was not an attractive nuisance. Kopczynski v. Barger, 870 N.E.2d 1 (Ind. Ct. App. June 27, 2007), vacated. [See ILB entry here, 2nd case] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Kopczynski and Palmer, Daniel L. Brown, Salem, IN. Attorney for the Bargers, Thomas E. Scifres, Salem, IN.
9:45 AM - Richard Pflanz v. Merrill Foster - According to a complaint filed by the current owners of certain real property, they incurred costs in closing, removing, and cleaning up environmental contamination caused by, leaky underground storage tanks that a former owner had used as part of a gas station. When the current owners sued the former owner for, among other things, contribution toward the costs, the Jackson Superior Court dismissed the complaint after concluding the claims were barred by applicable statutes of limitations. The Court of Appeals affirmed. Pflanz v. Foster, 871 N.E.2d 971 (Ind. Ct. App. June 19, 2007), vacated. [See ILB entry here, 2nd case] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorneys for the Pflanzes, Donn H. Wray, Justin W. Leverton, Indianapolis. Attorneys for Foster, Rodney E. Farrow, Indianapolis. For Amici Curiae, the Indiana Petroleum Marketers and Convenience Store Association, George M. Plews, Christopher J. Braun, Jeffrey D. Featherstun, John D. Moriarty, Indianapolis. For Amici Curiae, the Insurance Institute of Indiana, Inc., and National Association of Mutual Insurance Companies, John C. Trimble, Richard K. Shoultz, Indianapolis. For Amici Curiae, the Indiana Association of Cities and Towns and Indiana Municipal Lawyers’ Association, Donald M. Snemis, Brent H. Huber, Freedom S.N. Smith, Indianapolis.
10:30 AM - Robert Bassett v. State - Following a retrial, Bassett was again convicted of four counts of murder and, upon the unanimous decision of the jury, he was sentenced to life without parole by the Dearborn Circuit Court. In this direct appeal, Bassett argues: the State’s interference with the attorney/client relationship warrants reversal of the convictions, the trial court erred in admitting certain evidence and excluding other evidence, and the sentence should be reversed. Attorney for Bassett, Joseph M. Cleary, Indianapolis, IN Attorney for the State, Kelly A. Miklos, 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, Dec. 6th:
12:30 PM - Willie G. Eaton v. State of Indiana - Willie Eaton appeals his convictions for Dealing in Cocaine, as a Class A felony, and Possession of Marijuana, as a Class A misdemeanor, following a jury trial. The Court is asked to decide whether the State provided the facts necessary to enable the trial court to find probable cause to issue a search warrant for Mr. Eaton’s residence. Arguing for the appellant, Mr. Eaton, will be David Jordan of Lafuze, Jordan & Cox in Richmond; Deputy Attorney General Scott Barnhart will argue for the State of Indiana. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Mathias. [Where: Rediger Auditorium, Taylor University, Upland, Indiana]
Sunday, December 02, 2007
Ind. Courts - Federal court issues ruling on Carmel efforts to regulate gravel mining
The ILB has posted a number of entries on Carmel and Martinsville's efforts to regulate sand and gravel pits within their jurisdiction. Oral arguments were held Jan. 18th of this year before the Indiana Supreme Court in the case of City of Carmel v. Martin Marietta Materials, Inc.; a decision is pending.
In a case pending in federal court, Martin Marietta Materials v. Brainard, Judge David Hamilton issued a 35-page ruling Nov. 28th on defendant's motion for partial summary judgment:
Martin Marietta Materials, Inc. has sued the City of Carmel, the City of Carmel and Clay Township Board of Zoning Appeals (“BZA”), Carmel Mayor James Brainard, and four members of the BZA on claims relating to Martin Marietta’s current and proposed stone, sand, and gravel mining operations within Carmel city limits. Martin Marietta has asserted claims for: (1) deprivations of constitutional rights actionable under 42 U.S.C. § 1983; (2) common law breach of contract; and (3) inverse condemnation under Indiana Code § 32-24-1-16. Martin Marietta has also (4) appealed the BZA’s denial of its special use application for limestone mining. Defendants have moved for summary judgment on the breach of contract and inverse condemnation claims. As explained below, defendants’ motion for summary judgment is denied on the breach of contract claim as it applies to land that Martin Marietta’s predecessor owned when the contract was signed. In exchange for valuable property and other consideration, Carmel extended a broad promise not to “take any action” to limit, prohibit, or restrict the predecessor’s mining operations on its real estate. Carmel has not offered any persuasive reason why it should not be held to that promise. Carmel is entitled to summary judgment on the contract claim in part, however, to the extent that the claim applies to land that the predecessor did not own at the time the contract was signed. Defendants’ motion is also denied as to the inverse condemnation claim.Discussion of the inverse condemnation claim begins at the bottom of page 25 of the opinion, and concludes on pp. 32-33:
Here, Martin Marietta had a commercial lease to mine Mueller South. It could use the land in a variety of ways, presumably including – at least in theory – as a golf course. But at the time the land was leased and Martin Marietta committed to paying millions of dollars in rent, Martin Marietta reasonably could have expected that mining Mueller South would qualify as a legal non-conforming use allowed as a matter of right. The later enactment of zoning regulations requiring Martin Marietta to apply for discretionary permits to mine Mueller South and the subsequent denial of the mining application could constitute a regulatory taking of Martin Marietta’s property rights as a lessee. The fact that Martin Marietta could still use the land to construct a golf course does not defeat the claim for inverse condemnation. The government has the authority to effect such a regulatory taking, but it also has the obligation to pay for the taking if it does.
While it is true that Martin Marietta has not been denied all income generating use of Mueller South, Martin Marietta offered evidence that the BZA has denied all profitable use of Mueller South. The court should not be understood as saying that all property owners or leaseholders are entitled either to make the most profitable use of property or to be paid compensation for the loss of such use. In this case, however, Martin Marietta has come forward with evidence that it committed millions of dollars to the mining of the Mueller South property at a time when it reasonably could have expected to be able to use the property for that purpose. The city later enacted provisions of law that have been applied thus far to prohibit that use. On this record, and as the issues have been framed, Martin Marietta has presented sufficient evidence to allow a reasonable trier of fact to conclude that the defendants have denied Martin Marietta all economically beneficial use of Mueller South. Defendants’ motion for summary judgment is therefore denied as to the inverse condemnation claim.
Not Law - "Concussions Put College Players in Murky World"
The NY Times had an important front-page story on college football and concussions last Thursday. According to the story, although both the pros and high schools have concussion protocols, the college level does not. (At least not in football. I remember that a Stanford womens' basketball player - a scrappy point guard - who suffered too many concussions to meet Stanford protocol transferred to Texas to successfully complete her collegiate career a few years back.)
Those of you who watched the Stanford-Notre Dame game last weekend may be particularly interested in the multimedia side-bar, which begins: "When football players sustain traumatic blows to the head, some television commentators see a great play while others take a more sober tone."
Ind. Courts - Vigo County drug court featured
Deb Kelly of the Terre Haute Trib-Star has two stories today on the Vigo County drug court. The first, headed "Much of Vigo Drug Court work plays out behind-the-scenes," begins:
Much of the behind-the-scenes work of the 11-year-old Vigo County Drug Court happens across the street from the courthouse — at the Community Corrections building — where lab technicians collect and process hundreds of drug screens each week.The second story, headed "Vigo County Drug Court participants work for improvement," begins:
Drug court participants attend regular one-on-one meetings with caseworkers, group meetings focused on addiction and their regular court appearances – but one of the primary elements of drug court is testing.
In addition to Judge Barbara Brugnaux, who presides over drug court each week, the staff includes Paul Southwick, coordinator of the drug court and case manager, and Eve Fears, a case manager.
Drug court participants complete the program in phases, which last from 18 to 36 months.
During Phase 1, participants are drug-tested twice weekly; in Phase 2, they are tested weekly; by Phase 3, participants are tested twice a month and in Phases 4 and 5, the drug and alcohol tests become random.
The testing is not cheap, and though participants pay various fees to cover drug tests, the drug court program has been supported in part by federal grant dollars and by the Indiana Criminal Justice Institute. Brugnaux said some funding also has come from the county Prosecutor’s Office and the County Council.
Drug court administrators hope to approach the Indiana Legislature in 2009 to ask for appropriations for the program.
The cost is part of the reason there are so few drug court participants – the program initially was set up for 100 people, according to Southwick. Now, there are about 130, compared with the county Alcohol and Drug program, which currently has more than 650 cases.
During a recent court proceeding, the judge asked an offender if she had anything else to report.
The young woman smiled shyly, saying, “I took my GED test.”
The judge, smiling, said, “My, you have had a lot of good news today — I think that deserves some popcorn.”
Several chuckles could be heard through the room, but Judge Barbara Brugnaux wasn’t kidding. Reaching across to her clerk, the judge took an unopened pack of microwave popcorn and handed it down from her platform to the young woman, saying, “Here you go. Keep up the good work. You’re free to go.”
The woman, returning to the gallery to retrieve her things before leaving the courtroom, smiled again as she made her way past the others waiting their turn.
The exchange took place during a recent session of Vigo County Drug Court; the woman, a participant in drug court, was checking in with the judge, who, along with a staff of case managers, coordinates the court.
Brugnaux presides over Vigo County Superior Court Division 5 – the court where most DUIs and drug offenses are heard. She spends each Wednesday morning calling up one by one her most recent flock of wayward drug addicts and alcoholics.
Brugnaux, who is often seen wearing a stern expression (and who is generally known in the courts for her strict adherence to courtroom decorum), breezes into the room for drug court each Wednesday with a cheery “Good morning!”
A chorus of voices returns her greeting; if they aren’t enthusiastic enough, she says again, “I said, good morning!”
It is a different atmosphere than found in most courtrooms – where victims, prosecuting attorneys, the accused, public defenders, and downtrodden family members usually sit quietly on hard benches waiting, with somber expressions, for any kind of news. Most criminal courtrooms are quiet, even when packed with people.
Saturday, December 01, 2007
Law - "High Stakes for Regulated Industry in Supreme Court Pre-emption Cases"
Marcia Coyle of the The National Law Journal wrote Friday on pre-emption cases before the Supreme Court this term:
A concerted effort by the business community to have federal law preclude, or "pre-empt," state personal injury laws and other regulations has arrived en masse at the U.S. Supreme Court this term.The ILB has had a long list of entries re pre-emption efforts, including this one from Sept. 16th headed "In Turnaround, Industries Seek U.S. Regulation" and this one from Sept. 11th headed "Regulatory Preemption: Are Federal Agencies Usurping Congressional and State Authority?"
The justices have agreed to decide five pre-emption cases that involve products liability, transportation of dangerous substances, labor and other areas, and they have asked the U.S. solicitor general for his views on a sixth case seeking review.
First out of the argument box will be Riegel v. Medtronic Inc., No. 06-179, on Dec. 3. It asks if a provision in the Medical Device Amendments to the federal Food, Drug and Cosmetic Act forecloses state law tort suits claiming injury from the design, manufacture and labeling of a medical device that was granted premarket approval by the Food and Drug Administration.
Environment - "Jacobus Tielen's lawyers are trying to resolve criminal and civil proceedings over manure management"
Seth Slabaugh reports in the Muncie Star-Press:
The Delaware County prosecutor's office and the Indiana attorney general's office have been negotiating the settlement of criminal and civil charges against a Delaware County pork producer since last year.The ILB has several related earlier entries.
Deputy Prosecutor Eric Hoffman advised Delaware Circuit Court 4 Judge John Feick in July 2006 that an agreement was being negotiated with Jacobus Tielen, 39, rural Eaton, who faces three class D felony counts of violating environmental laws.
Feick this week conducted a status conference at which Tielen and his attorney, Scott Shockley, did not appear. The judge rescheduled the conference for Dec. 12 after Hoffman reported that an agreement to end the criminal case was being held up by the lack of a resolution of the civil matter.
Tielen is accused of knowingly or intentionally failing to maintain the required minimum freeboard of two feet in a lagoon holding 12 million gallons of hog manure. Freeboard is the distance between the manure level in the lagoon and the top of the lagoon.
On June 8, 2005, the Indiana Department of Environmental Management filed a lawsuit against Tielen to restrain him from further swine breeding and to address his "brimming manure lagoon." The breeding ban was later lifted.
Criminal charges were filed Oct. 12, 2005, dismissed on April 4, 2006, and re-filed the next day.
Tielen's Indianapolis law firm, Plews, Shadley Racher and Braun, presented a settlement proposal to IDEM on Dec. 15, 2006. This past April 10, IDEM -- represented by the attorney general -- responded with a proposed agreed order.
Tielen's attorneys are reviewing the proposed agreed order and will provide comments to IDEM soon, Valerie Tachtiris, a deputy attorney general, told Delaware Circuit Court 1 Judge Marianne Vorhees.
The parties continue to negotiate in good faith, according to Tachtiris.
Since 1999, Tielen has been fined more than $21,000 for spilling manure, failing to report a manure spill, killing a small number of fish and other violations. Authorities claim Tielen has continually shown contempt for laws, rules and orders governing manure management.
In 2002, one of Tielen's ex-employees told The Star Press he was fired for blowing the whistle to IDEM on a manure spill at Tielen's farm. Tielen, a Dutch immigrant, reportedly told the worker that American inspectors were dumb. Tielen called the worker's story ridiculous and said he was fired for lack of attendance and poor job performance.
Ind. Gov't. - "Allen civil court documents to go online"
Benjamin Lanka reports today in the Fort Wayne Journal Gazette:
People will soon be able to access Allen County court documents online, for a fee.
The county commissioners Friday approved a contract with DoxPop of Richmond to place public court documents on the Internet.
Clerk Therese Brown said the service will give attorneys, researchers and the general public a way to access lawsuits and other filings from their homes.
The service doesn’t cost the county anything because the company charges a fee to people wanting to access the information.
The firm charges a monthly access fee from $25 to $450 based on how often someone plans to use the site.
Brown said she has an agreement with the civil court, but she hopes to have approval from the criminal court before the information goes live after the new year.
If the program is successful, Brown said it won’t only provide a convenience for people looking for information, but it also could cut down on some of the requests her staff receives to search for files. She said they will still be responsive to all requests.
The site will not offer access to restricted or confidential materials, Brown said, nor could someone use it to hack into the county’s system because that is a separate system.