Wednesday, January 30, 2008
About the ILB - Announcement
Announcement: The ILB will be on hiatus, temporarily. Watch for our return!
Ind. Courts - Indiana courthouses in the news
Courthouse Preservation. A press release from the office of Senator James Merritt announces: "Senate passes courthouse preservation legislation." Some quotes:
When members of the Farmland Ladies Bridge Club announced a bold plan to save the historic Randolph County Courthouse from demolition several years ago they created a media sensation – and inspired legislation to protect all Indiana courthouses which was unanimously passed today by the Indiana Senate.See also this Jan. 15th ILB entry on SB 176.
Senate Bill 176, authored by Sen. James Merritt Jr., (R-Indianapolis), would create a 12-member commission which would investigate the need for preservation, restoration and maintenance of historic courthouses as well as assist county officials with such projects. According to Merritt, the ladies’ fundraising project – a calendar in which they posed nude with strategically placed replicas of the courthouse – led him to author SB 176. * * *
“In recent years, we have seen an increase in interest to tear down courthouses across Indiana,” said Wayne Goodman, Director of the Eastern Regional Office of HLFI. “This will be a great service for local government.”
According to Goodman, the commission will ensure county officials are adequately prepared for renovation and preservation projects before final plans are developed and work begins. “Renovations to the Fayette County Courthouse in Connersville were underway when some long-forgotten murals were discovered. We have been working with local government to raise funds to preserve them. It would have been nice to know they were there before work began,” he said.
The bill now moves to the House of Representatives for consideration.
Grant County Courthouse. The Chronicle-Tribune reports today, in a story by Maribeth Holtz:
Renovations to the courthouse cannot wait, Commissioner Mark Bardsley said, and so the commissioners are considering using money from another fund to make improvements to the historic building soon.See earlier ILB Grant County Courthouse stories here.
Commissioners discussed the courthouse Tuesday at their regular weekly meeting. Jeremy Diller said that cumulative capital development funds can be used for renovations on items such as the building facade, roof, elevator and boiler. CCD funds are revenues set aside for the care and upkeep of capital equipment.
Morgan County Courthouse. "Courthouse roof, other properties heavily damaged by winds" is the headline to a story this morning by Keith Rhoades and Ronald Hawkins in the Martinsville Reporter-Times. Some quotes:
Strong winds and hail ripped through Martinsville at about 7:10 p.m. Tuesday damaging many buildings including blowing the roof off the north side of the Morgan County Courthouse.[Update] See this Order of the Supreme Court, dated 1//30/08, grating emergency relief.
Trees were down throughout areas of Morgan County and power outages were widespread.
Twisted and torn metal and other pieces of the roof lay on the north courthouse lawn. At least one tree on the courthouse was blown down as well. Crews were combing the building to determine other damage.
The lack of lights caused by the power outage on the east side of Main Street limited the ability to determine what and how much damage there was along the Public Square. Drivers circled the Square, trying to see the damage.
The courthouse will be closed Wednesday.
Ind. Decisions - "Court rejects Boney's appeal"
Reporting on yesterday's Court of Appeals decision in the case of Charles D. Boney v. State of Indiana [see ILB summary here - 2nd case], Harold J. Adams of the Louisville Courier Journal writes in a comprehensive story that begins:
The Indiana Court of Appeals ruled yesterday that the conviction of Charles Boney for his part in helping former Indiana State Trooper David Camm kill his wife and two children should stand.
A three-judge panel denied Boney's appeal in a unanimous 30-page opinion.
Floyd County Prosecutor Keith Henderson said the decision bodes well for the Indiana Supreme Court rejecting Camm's pending appeal.
Boney was convicted in Floyd Circuit Court in 2006 of three counts of murder, one count of conspiracy to commit murder and of being a habitual offender. Judge J. Terrence Cody sentenced him to 225 years in prison.
Ind. Courts - "Switzerland County might get own circuit court"
Justin Helfrich reports in the Madison Courier:
A bill advancing through the state legislature could give Switzerland County its own circuit court. If House Bill 1096 becomes law, the 91st judicial circuit would be created in Switzerland County, eliminating the joint circuit court now shared by Jefferson and Switzerland counties.
Jefferson Circuit Judge Ted Todd, who currently serves the Jefferson-Switzerland circuit, said the move is needed.
"The Circuit Court in Jefferson County is tremendously busy. It's doing the work of about one and two-thirds judges right now," he said. "That doesn't give me time to take care of Jefferson County as I would like, and it doesn't give me time to take care of Switzerland County as I would like."
Todd said he's optimistic that the bill will pass.
Switzerland and Jefferson counties also share Prosecutor Chad Lewis. Lewis said he also supports the bill.
The bill recently passed unanimously in the House Judiciary Committee and the House Ways and Means Committee.
Lewis said the bill most likely pass both houses and become law. If House Bill 1096 passes, the Switzerland superior court, which shares a judge with Ohio County, will cease to exist in its present form.
Ind. Courts - "Jarrette Seeks Sixth Term As Kosciusko Superior Court II Judge"
From the Warsaw Times-Union:
James C. Jarrette is running for a sixth term as Superior Court II judge in the Republican May 6 primary.
Jarrette, 60, has served as Superior Court II judge since Jan. 1, 1997.
He served as a Kosciusko County Court judge from Sept. 4, 1979, to Dec. 31, 1996.
Tuesday, January 29, 2008
Courts - More on: Montana Supreme Court too slow in issuing opinions; Ohio just right
Then there is Texas. Updating this ILB entry from yesterday, Janet Elliot of the San Antonio Express-News also had a Sunday story, headlined "Cases piling up before justices." Some quotes from the long story:
AUSTIN — At a time when the Texas Supreme Court's case backlog has reached record levels, Justice Paul Green was spending Friday driving to Corpus Christi to speak to a group of appeals lawyers.And what about Indiana? The ILB recalls that the school book fees decision, Frank Nagy, et al. v. Evansville-Vanderburgh School Corporation, see ILB entry here, was argued 11/23/04 and an opinion was issued 3/30/06. Nagy may be an outlier. Or others may have lengthier examples. Figures on all cases may exist, already compiled, in the Court's online reports. Or they could be readily derived using the oral argument dates available here.
"It's 40 (degrees) and raining and I'm driving four hours to Corpus Christi," Green said from his cell phone. "Yes, I've got stuff to do at the office, but some of us like to do this."
Green, who wrote the fewest opinions — four — of the high court's nine justices during the 2007 fiscal year, said he thinks it's important to get out of the office and talk about the court's work.
"If all of a sudden I said I'll just stay in my chambers and work on opinions, I don't think people would like that," Green said, adding that he has a "bunch of cases" that are ready to be issued.
Jim Jordan, a Democrat who is challenging Republican Chief Justice Wallace Jefferson, has a different opinion.
He said Green needs to take care of the court's business before he travels to "schmooze" with lawyers. When parties in a legal dispute get to the Supreme Court, they already have been through an expensive and time-consuming trial and appeals process, said Jordan, a Dallas County trial judge. * * *
At the end of 2007, the court left more cases pending than ever before. The court had heard arguments but not issued rulings in 111 cases, including 36 that were more than a year old and 13 others more than 2 years old.
Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)
For publication opinions today (2):
In Bank of America v. Kou Chin Ping, Waterwood of Carmel Homeowners Association, Inc., Bank One, N.A. f/k/a Bank One of Indiana, N.A., a 12-page decision, Judge Najam writes:
Bank of America, N.A. (“Bank of America”) appeals the trial court’s denial of its motion for summary judgment and Order on Trial (“Order”) following a bench trial on Bank of America’s claims against Bank One, N.A., n/k/a JPMorgan Chase Bank N.A. (“Bank One”). Bank of America raises two issues for our review,1 which we restate as follows: 1. Whether Bank of America was entitled as a matter of law to a release of Bank One’s mortgage after that mortgage, which secured a revolving line of credit, had been paid in full. 2. Whether Bank of America was entitled to relief under the doctrine of equitable subrogation. We affirm. * * *In Charles D. Boney v. State of Indiana , a 30-page opinion, Cheif Judge Baker writes:
Specifically, Ping withdrew, and Bank One advanced, funds against the line of credit after Bank of America had paid the account in full. Thus, merely to pay off the line of credit was insufficient in itself to terminate the Credit Agreement and trigger operation of Indiana Code Section 32-28-1-1. * * *
Here, Bank of America failed to take any affirmative steps to terminate the Bank One Mortgage after Bank of America had paid in full the line of credit. And, as a result, Bank One held open Ping’s line of credit, and Bank One continued to advance Ping funds from that account. Bank of America’s argument would result in an inequitable subrogation. Indeed, Bank One did not enjoy a windfall but advanced additional funds under the line of credit and acted properly under its Credit Agreement and mortgage. Given the plain meaning of the Credit Agreement and the mortgage that secured it, it was incumbent on Bank of America to secure release of the Bank One Mortgage as a condition of its new loan to Ping. That Bank of America failed to do so should not be allowed to prejudice Bank One. On these facts, Bank of America is not entitled to invoke the doctrine of equitable subrogation.
Appellant-defendant Charles Boney appeals his convictions for three counts of Murder, a felony, one count of Conspiracy to Commit Murder, a class A felony, and the finding that he was a habitual offender. Specifically, Boney argues that his convictions must be reversed because: (1) the trial court erred in permitting the State to exercise a peremptory challenge regarding a prospective juror who was African American; (2) certain pretrial statements that Boney gave to police officers were improperly admitted into evidence; (3) the trial court abused its discretion in denying a motion for a mistrial based on comments made by two of the State’s witnesses regarding Boney’s previous incarceration; (4) the trial court erred in refusing to give his proffered instruction on accomplice liability; and (5) the trial court should have granted his motion to correct error based on juror misconduct. Finding no reversible error, we affirm the judgment of the trial court.NFP civil opinions today (3):
In re the Marriage of: Sandra J. Byrd and Charles D. Pierce (NFP) - "The trial court’s decisions on the admission of evidence did not deny Sandra substantial justice. The evidence supports the findings and the findings support the judgment of the trial court. The trial court did not disregard relevant statutes, nor did the trial court abuse its discretion in the valuation or distribution of assets. Finally, the trial court did not abuse is discretion by disregarding claimed tax consequences. Affirmed."
William M. Felsher v. University of Evansville, University of Evansville Press and Dr. George C. Klinger (NFP) - "Felsher did not meet his burden of providing an adequate record on appeal nor did he meet his burden of establishing that summary judgment was improperly granted. We affirm."
In In the Matter of the Paternity of K.I., by Grandmother and Next Friend, Juanita Ivers v. Jeremy Hensley (NFP), an 8-page opinion, Judge Bailey writes:
The Crawford County Circuit Court modified custody of K.I. from Juanita Ivers (“Grandmother”) to Jeremy Hensley (“Father”) and awarded Grandmother visitation. Grandmother appeals and Father cross-appeals. We reverse and remand.NFP criminal opinions today (4):
Issues. Grandmother presents two issues for review: I. Whether the trial court applied an improper standard for custody modification from a third party to a natural parent; and II. Whether the trial court abused its discretion because the modification order is unsupported by sufficient evidence. * * *
III. Grandparent Visitation.
Because it may arise on remand, we briefly address the issue of visitation. Father requested that Grandmother be awarded alternate weekends, one week of summer vacation, and a portion of spring break. However, the trial court awarded Grandmother “visitation pursuant to the non-custodial parent’s visitation provided under the Indiana Parenting Time Guidelines.” (App. 12.) Father argues that the time ordered is overly expansive as he also permits K.I.’s Mother (via an informal agreement) to spend time with K.I. Implicitly, he contends that K.I.’s visitation with Grandmother should be at his discretion.
The record clearly discloses that Grandmother was K.I.’s long-term guardian and not her adoptive parent. Nevertheless, Grandmother clearly falls within the purview of the Grandparent Visitation statutes, Indiana Code Section 31-17-5-1 et seq., as she is the grandparent of a child born out of wedlock. Indiana Code Section 31-14-14-3 provides in relevant part: “An order granting or denying visitation rights to a noncustodial parent does not affect visitation rights granted to a grandparent[.]”
Grandmother also contends that she is a “De facto custodian” as defined in Indiana Code Section 31-9-2-35.5. The record discloses that Grandmother was a primary caregiver with whom K.I. resided for more than one year. Thus, the statutory critera are satisfied, and Grandmother may also be awarded visitation time as a de facto custodian. See Nunn v. Nunn, 791 N.E.2d 779, 785 (Ind. Ct. App. 2003) (finding that visitation with a third party may be in the child’s best interests where the third party acted as a custodian of the child).
On remand, should Father be awarded custody of K.I. and the parties do not agree upon Grandmother’s visitation, we instruct the trial court to determine if Grandmother should be granted grandparent or de facto custodian visitation regardless of Mother’s parenting time with K.I., if any.
Ind. Decisions - Supreme Court decides case on statute of limitations for negligence claims against an insurance agent
In Idan (John) Filip and Valaria Filip v. Carrie Block and 1st Choice Insurance Agency, a 13-page, 4-1 opinion, Justice Boehm writes:
Indiana Trial Rule 56(C) requires parties to designate the evidence in support of or opposition to a motion for summary judgment. We hold that this designation may be accomplished in any one of several places but must be done consistently. A court may resolve any inconsistencies in designations against the designating party. We also hold that the statute of limitations for negligence claims against an insurance agent for failure to obtain a desired form of coverage begins to run at the time the failure was first discoverable through ordinary diligence. * * *Oral arguments were held in this case on 5/30/07.
On December 9, 2005, the trial court struck the untimely designation of evidence, and limited the Filips’ evidence in opposition to summary judgment to the lines and paragraphs specified in the defendants’ memorandum. The same day, the trial court granted summary judgment in favor of the defendants, holding that the two-year statute of limitations for negligence started on the date of initial coverage in 1999. The Filips appealed. The Court of Appeals reversed on two grounds. First, the Court of Appeals held that the Filips could rely on the pages identified in the defendants’ motion, and were not limited to the lines and paragraphs specified in the memorandum. Filip v. Block, 858 N.E.2d 143, 150 (Ind. Ct. App. 2006). Second, the Court of Appeals held that the statute of limitations did not bar the Filips’ complaint because the statutory period for negligence against an insurance agent starts to run when the claim is denied. Id. at 152. We granted transfer. 869 N.E.2d 455 (Ind. 2007). * * *
Conclusion. The trial court’s grant of summary judgment is affirmed.
Shepard, C.J., and Sullivan and Rucker, JJ., concur.
Dickson, J., concurs in Part I but dissents as to Part II, believing that genuine issues of material fact preclude summary judgment.
Court - "Illegal Globally, Bail for Profit Remains Pillar of U.S. Justice"
Adam Liptak of the NY Times has a long, front-page article today on the American bail system, part of a series called "American Exception" that "will examine commonplace aspects of the American justice system that are actually unique in the world." Some quotes:
[P]osting bail for people accused of crimes in exchange for a fee, is all but unknown in the rest of the world. In England, Canada and other countries, agreeing to pay a defendant’s bond in exchange for money is a crime akin to witness tampering or bribing a juror — a form of obstruction of justice. * * *
“It’s a very American invention,” John Goldkamp, a professor of criminal justice at Temple University, said of the commercial bail bond system. “It’s really the only place in the criminal justice system where a liberty decision is governed by a profit-making businessman who will or will not take your business.”
Although the system is remarkably effective at what it does, four states — Illinois, Kentucky, Oregon and Wisconsin — have abolished commercial bail bonds, relying instead on systems that require deposits to courts instead of payments to private businesses, or that simply trust defendants to return for trial. * * *
Here as in many other areas of the law, the United States goes it alone. American law is, by international standards, a series of innovations and exceptions. From the central role played by juries in civil cases to the election of judges to punitive damages to the disproportionate number of people in prison, the United States has charted a distinctive and idiosyncratic legal path.
Bail is meant to make sure defendants show up for trial. It has ancient roots in English common law, which relied on sworn promises and on pledges of land or property from the defendants or their relatives to make sure they did not flee.
America’s open frontier and entrepreneurial spirit injected an innovation into the process: by the early 1800s, private businesses were allowed to post bail in exchange for payments from the defendants and the promise that they would hunt down the defendants and return them if they failed to appear.
Commercial bail bond companies dominate the pretrial release systems of only two nations, the United States and the Philippines.
The flaw in the system most often cited by critics is that defendants who have not been convicted of a crime and who turn up for every court appearance are nonetheless required to pay a nonrefundable fee to a private business, assuming they do not want to remain in jail. * * *
According to the Justice Department and academic studies, the clients of commercial bail bond agencies are more likely to appear for court in the first place and more likely to be captured if they flee than those released under other forms of supervision.
That may be because bail bond companies have financial incentives and choose their clients carefully. They also have more power. In many states, bond enforcement agents, sometimes called bounty hunters, may break into homes of defendants without a warrant, temporarily imprison them and move them across state lines without entering into the extradition process.
Still, critics say, efficiency and business considerations should not trump the evenhanded application of justice.
The experiences in states that have abolished commercial bail bonds, prosecutors say, have been mixed.
“The bail bond system is rife with corruption,” said Joshua Marquis, the district attorney in Clatsop County, Ore. Since bond companies do not compete on price, they have every incentive to collude with lawyers, the police, jail officials and even judges to make sure that bail is high and that attractive clients are funneled to them.
Mr. Kreins, the industry spokesman, acknowledged scandals in Illinois, where “basically all the agents were in collusion with the judges,” and in Louisiana, where sheriffs were also in the mix.
Legislative Benefits - More on: "Insulted" legislators; disrespected citizens
From the Fort Wayne Journal Gazette, this editorial titled "Waiting for Scandal" :
Pity the poor Indiana lawmakers whose feelings are so sensitive as to be hurt by the mere suggestion of conflicts of interest. Imagine how offended they will be when inevitable scandal rocks the Statehouse and voters point to the next example of broken public trust.From the Indianapolis Star, this editorial titled "'Offended' lawmakers defend insulting system":
Sen. Marvin Riegsecker, R-Goshen, might not know about an Indiana lobbyist scandal that rocked the General Assembly and sent two lawmakers to prison. He might have missed a later episode where a House Ways and Means Committee chairman was entangled in an ugly incident involving consulting fees and a riverboat contractor. Surely, he missed the lobbyist scandal in Alaska, where legislators on the take from an oil company jokingly claimed membership in the “Corrupt Bastards Club.”
How else to explain why Riegsecker, chairman of the Senate Public Policy Committee, refused to even call Senate Bill 165 for a vote? The legislation would require a reasonable one-year cooling-off period before former lawmakers are allowed to register as lobbyists before the General Assembly.
But testimony on behalf of the bill angered the chairman. Riegsecker said he and other committee members were offended by comments that “we’re taking money under the table.”
Sen. Vi Simpson, D-Bloomington, agreed.
“The testimony was so nasty and mean and personal that the committee members were furious,” she told the Indianapolis Star. “It was a very unpleasant confrontation. That’s not how you get legislation passed around here.”
Maybe not. It seems to be more effective to hire a former lawmaker, whose familiarity with the process and the legislators gives them advantage over members of the general public calling for higher ethical standards. Most other states have already enacted legislation to restrict lobbying by former lawmakers.
Fortunately, there are some legislators with thicker skins and a more realistic view of the public’s perception of elected officials. Reps. Phyllis Pond of New Haven and Win Moses of Fort Wayne were co-authors of House Bill 1063, which would restrict legislators from returning as lobbyists for two years after leaving office. Unfortunately, their bill died in committee. [ILB note: Rep. Day authored the House bill, it was assigned to Rules and Legislative Procedures (which the ILB would consider a graveyard for this type of legislation) by the Speaker. The Senate bill was authored by Senator Miller, Senators Charbonneau and Lubbers were also on the bill.]
Senate President Pro Tem David Long, R-Fort Wayne, also seems to get it.
“I do think we’re going to have to take a hard look at how Indiana compares to other states and ultimately address particularly the issue of how soon you can go out into the hall and lobby,” he told the Star.
There’s no reason the tighter restrictions couldn’t be approved immediately – before easily offended lawmakers have a real reason to be offended by legislative misbehavior.
A modest measure to restrict how fast state legislators can move into the lobbying business has been killed because legislators claim they're offended at the insinuation they have anything but the purest of intentions.
Very principled of them. No law should be considered that might implicitly impugn the motives of those covered. Let's extend the logic.
Certification of car insurance before receiving license plates? Why, who would be so negligent as to drive around without insurance?
Pollution regulation? Are we implying that any Hoosier industrialist, farmer or motorist would fail to protect the air and water?
Campaign finance reporting? Whose business is it where a candidate's money comes from? Surely he's good people.
You catch our drift. When Sen. Marvin Riegsecker, R-Goshen, deep-sixed a bill to make legislators wait a year after leaving office before becoming lobbyists, he huffed and puffed about offended dignity, with an effect as weak as the lobbying laws themselves.
Riegsecker, chairman of the Public Policy Committee, said the public's enthusiastic support for Indianapolis Republican Patricia Miller's bill "angered my fellow senators" -- and passage was unlikely anyway.
The latter statement is believable enough. Efforts to make the Indiana General Assembly less cozy for special-interest lobbyists, more than 30 of whom are former legislators, rarely find much traction. But the notion put forth by legislators and legislators-turned-lobbyists that self-interest and privileged access are just cynical myths is a true insult -- to the taxpayer's intelligence.
In case our indignant elected officials and former elected officials have not noticed, more than half the states have enacted one- or two-year cooling-off periods between jumps from legislator to lobbyist.
The executive branch of this state government, at the behest of Gov. Mitch Daniels, bars former employees from lobbying former colleagues for a year after entering the private sector. Senate President Pro Tempore David Long acknowledges the legislature is going to have to face the issue itself some day. But that day is not here.
Monday, January 28, 2008
Courts - More on "Ohio Court Debates Rights to Body Parts"
Updating this ILB entry from Jan. 23 about the case recently argued before the Ohio Supreme Court, Robert Barnes of the Washington Post reports today in a story headlined "Huge Lawsuit Could Change Handling of the Dead." Some quotes:
The Albrechts' discovery that they had buried their son without his brain has led to a federal class-action suit that could cost local governments millions of dollars, force changes in the way medical examiners perform their jobs and establish new rights for the next of kin.
The suit argues that the next of kin, not the state, should make decisions on how to dispose of organs no longer needed for testing, and that denial of such a right violates the Constitution's promise of due process. The federal lawsuit names 87 of Ohio's 88 counties; the other, Hamilton County, which encompasses Cincinnati, has already settled with families for $6 million.
Beyond that, the case has presented two separate courts with existential questions about death and burial rites, religion and grief, and the interests that loved ones have in the remains of the departed. * * *
U.S. District Judge Susan J. Dlott said last spring that before she could rule on whether the class-action lawsuit could go forward, she wanted the Ohio Supreme Court to determine whether the next of kin have a "protected right" under Ohio law to "the decedent's tissues, organs, blood or other body parts that have been removed and retained" by a coroner.
The issue moved last week to the state court's seven justices, who seemed equally skeptical of arguments on both sides. * * *
John H. Metz, who represents the Albrechts, said that families have no unrealistic expectation that every tissue sample or blood specimen will be returned to the body, but that something such as a brain is different.
The coroner had no more right to dispose of that, Metz argues, than to keep Christopher's "heart, head, leg or any other body part."
It is because of Metz, who acknowledges he has been called the "dead bodies lawyer," that Ohio is in the forefront of the issue. In 1991, he successfully represented a woman who discovered that the coroner had harvested her husband's corneas for transplantation without her permission.
The U.S. Court of Appeals for the 6th Circuit held that the woman had a "legitimate claim of entitlement" to her deceased husband's body, protected by the due process clause of the 14th Amendment.
After the successful suit against Hamilton County involving brains, the Ohio General Assembly stepped in.
It passed a law in 2006 stating that "retained tissues, organs, blood, other bodily fluids, gases, or any other specimens from an autopsy are medical waste," to be disposed of in accordance with state and federal law.
That law settles the issue, Landes argued, and shows that the current suit is not about preventing future wrongdoing but "collecting money for people who don't even know" the past practices until contacted by lawyers.
If settlements followed the pattern from Hamilton County, he said, the cost to local governments could be about $90 million.
Metz said that complaining of the possible cost is always the defense of the wrongdoer.
Ind. Decisions - Court of Appeals issues 4 today (and 12 NFP)
For publication opinions today (4):
In In the Matter of the Unsupervised Estate of Carl Deiwert; Wallace Richard Deiwert v. Judith McKinney , a 6-page opinion, Judge Bradford writes:
Appellant/Cross-Appellee Wallace Richard Deiwert (“Dick”) appeals from the probate court’s order concluding that he failed to timely exercise an option to purchase certain real estate from the estate of his father Carl Deiwert (“Carl”). Appellee/Cross-Appellant Judith McKinney contends that this court does not properly have jurisdiction over this interlocutory appeal. We affirm. * * *In Indiana Department of Transportation and State of Indiana v. Robert Howard and Lynn Howard, et al., a 12-page opinion on a petition for rehearing, Judge Robb writes:
Because the ultimate effect of the probate court’s ruling was to deliver possession of the McKinney Tracts to McKinney, Dick had a right to appeal that ruling under Rule 14(A)(4), and we therefore decline McKinney’s request to dismiss this appeal. * * *
The probate court properly concluded that Dick failed to properly preserve his right of first refusal as provided for in Carl’s will.
We grant the petition for rehearing, vacate our earlier decision, and consider the merits of the issue raised by INDOT’s appeal: whether the trial court properly set aside its prior entry of summary judgment. Concluding that the trial court did not abuse its discretion in granting the motions to correct error because a genuine issue of material fact kept INDOT from being entitled to summary judgment, we affirm.In Tornatta Investments, LLC v. Indiana Department of Transportation , an 8-page opinion, Judge Mathias writes:
Tornatta Investments (“Tornatta”) filed a complaint for declaratory judgment in Warrick Superior Court against the Indiana Department of Transportation (“INDOT”) alleging that INDOT’s purchase of an adjacent property caused a substantial diminution in value of Tornatta’s real estate, which resulted in a taking without just compensation. The trial court concluded that INDOT’s actions did not constitute a taking and entered judgment in favor of INDOT. Tornatta appeals and argues INDOT’s purchase of the adjacent real estate interfered with Tornatta’s right to assemblage, and the interference of such right resulted in a compensable taking. We affirm.In Samuel Lesjak v. New England Financial , a 10-page opinion, Chief Judge Baker writes:
Appellant-defendant Samuel Lesjak appeals the trial court’s order requiring that he arbitrate the claim filed against him by appellee-plaintiff New England Financial in a forum other than the National Association of Securities Dealers (NASD). We find that the substance of this appeal is moot, inasmuch as New England Financial began arbitration proceedings with the NASD during the pendency of this appeal, notwithstanding the fact that it had argued and represented to the trial court for months that the claim was not arbitrable by the NASD. We also find, however, that Lesjak has established that he is entitled to appellate attorney fees and costs for New England Financial’s bad faith during this appeal. Thus, we dismiss the appeal as moot and remand to the trial court with instructions to consider whether Lesjak is entitled to attorney fees and costs for the litigation that occurred prior to this appeal and to calculate the amount of appellate attorney fees and costs to which Lesjak is entitled.NFP civil opinions today (2):
Paul W. Grim v. Golden Rule Insurance Company and Gary Fry (NFP) - "In this appeal, Grim argues that the trial court erred in granting summary judgment for Golden Rule because the designated evidence established that Grim was entitled to seek damages for breach of Golden Rule’s implied covenant of good faith and fair dealing. Grim also asserts that the trial court erred in concluding that an intervening bankruptcy necessarily terminated his action against Golden Rule for breach of contract. Concluding that the trial court properly entered summary judgment for Golden Rule, we affirm."
Jack & Pam Miller v. Eugene Wedekind (NFP) is a 2-1 opinion. "The Cass Circuit Court entered judgment in favor of Eugene Wedekind d/b/a Associated Builders (“Wedekind”) in a breach of contract action brought against him by Jack Miller (“Jack”) and Pam Miller (“Pam”) (collectively “the Millers”). The Millers appeal and claim that the trial court’s judgment erroneous. Specifically, the Millers argue that the evidence supports their claim that Wedekind failed to construct a pole building in a workmanlike manner. We reverse and remand for proceedings consistent with this opinion."
From the dissent: "We review findings of fact for clear error. LinkAmerica Corp. v. Albert, 857 N.E.2d 961, 965 (Ind. 2006). Because the trial court’s findings and conclusions are not clearly erroneous, see Ind. Trial Rule 52(A), I must dissent."
NFP criminal opinions today (10):
Courts - Montana Supreme Court too slow in issuing opinions; Ohio just right
Supreme Court cases reportedly pile up in Montana. Yesterday the Billings Gazette had three stories on the problem. Some quotes from this lengthy story by Mike Dennison:
HELENA - In Butte, a dispute over building a road to the Our Lady of the Rockies statue has been before the Montana Supreme Court more than two-and-a-half years, with no decision in sight.The Montanna Court has seven justices.
In Billings, Peggy Jackson has been waiting more than two years for the high court to rule on the terms of her divorce, which her husband appealed in October 2005.
"I am 65 years old and would like to get my life in order for my kids," she wrote in a letter to the court clerk in December. "Would you please check and see if you can give me any idea when the court will decide my case?"
And in Kalispell, landowner Harry Blazer has been trying for months to sell a piece of property, but he cannot because of a pending court appeal affecting access to the land. The appeal, filed with the Montana Supreme Court by his neighbors, has been before the court since September 2005. * * *
Justices on the court say they're not happy about the long wait and realize it creates problems for those awaiting a decision. But they also say there's not much they can do about it.
"I would stack this court's work ethic against any court that has ever existed" in Montana, said Chief Justice Karla Gray. "I don't think we can do better by any means that any of us haven't thought of - and we have tried."
Gray also said lengthy cases are the exception rather than the rule, noting that the vast majority of decisions are processed in less than a year. About half the decisions also come in under a six-month goal the court sets in its own operating rules.
Nonetheless, attorneys who spoke to the Gazette State Bureau said the wait on some cases is unusually long, and that long waits seem more frequent than they used to be.
Most attorneys declined to speak for the record, saying they don't want their comments to affect cases they have pending before the Supreme Court.
Attorney General Mike McGrath, however, is not shy about giving his opinion on the delays.
McGrath, who is running to succeed Gray as chief justice of the Supreme Court, said the current situation is "unacceptable" and that streamlining the process would be a top priority for him as chief justice.
"There frankly is no excuse for keeping a case up there for more than a year," McGrath said. "It's not fair to the litigants, it's not fair to the public." * * *
Supreme Court justices say reasons for delays are many and that most are beyond their control.
For starters, Montana's Supreme Court has no control over the number of cases it considers, they point out. It must accept and consider any appeal, and Montana is one of only 11 states without an intermediate court of appeals, so appeals from state District Court go directly to the high court.
The court caseload increased dramatically from 1995 to 2004, rising from 580 to a peak of 882. Since then, the load has decreased to 676 cases in 2007, which is only slightly more than the average caseload of the early 1990s.
Meanwhile the "Ohio Supreme Court is writing opinions quicker," according to this story from the Cleveland Plain Dealier. Some quotes:
Ohio Supreme Court justices found their stride again in 2007, churning out written opinions on average in five months, a Plain Dealer analysis found.[Thanks to Howard Bashman's How Appealing for the links.]
That was a significant improvement over 2006, when the court slowed to a molasseslike pace, yet Chief Justice Thomas Moyer said he still expects better -- especially from some justices.
The new analysis follows a similar one last year in which The Plain Dealer found that the amount of time it took to turn out majority decisions had increased from an average of five months per case in 2004 to seven months in 2006. One case drew particular attention to the court's 2006 performance: It took nearly a year to release a ruling that freed two Portage County men who had been imprisoned 16 years for a rape and murder they said they did not commit.
Moyer points out that his court is not bound by any time standards for kicking out opinions after a case has been orally argued. But after taking longer each year since 2004 to issue rulings, the high court was earning a reputation for delaying justice.
"That is still a matter in which all of the justices are sensitive," said Moyer, who hopes to further improve the court's efficiency. "We have parties in cases waiting for our decisions. So the time it takes us to announce an opinion is a concern."
In 2007, the justices wrote 131 opinions from cases orally argued and took on average 151 days to return a decision, improving on its 2006 average of 214 days and returning to its 2004 pace of 157. * * *
Just a few state supreme courts around the country have time standards, which range from six weeks to a year. * * *
[Justice Paul Pfeifer] said he thinks last year's Plain Dealer analysis embarrassed the court into rethinking its procedures for releasing opinions.
After that story, the court shortened the period at the end of the process, when opinions are proofread and citations double-checked, from about six weeks to under two weeks.
"All of our numbers will drop" in 2008, Moyer predicted, because of that procedural change.
Ind. Gov't. - Is a public employee's history of internet usage subject to public records access?
Should a public employee's computer browser's list of previous internet sites visited be considered a "public record", required to be disclosed via a public records request?
That is the question addressed in this informal opinion dated Jan. 4, 2008, answering a question posed to the Indiana Public Access Counselor last July.
Of course, we have seen this on TV crime shows -- a check of the victim or suspect's computer discloses the last sites they were looking at before they disappeared -- restaurants, travels sites, porn, etc. These are stored in the web browser as "history," which can be wiped clean at will by the user, or can be automatically retained.
PAC Heather Willis Neal concludes her opinion:
[M]y opinion is that if an agency does somehow proactively create a record containing the internet history from a public employee’s computer (e.g. printing out or electronically saving a regular report), that would likely constitute a public record disclosable under the APRA [access to public records act] unless an exception to disclosure regarding the subject matter exists in section 4 of the APRA. It is further my opinion that as a general rule the internet history from a public employee’s, official’s, or agency’s computer is not a public record for purposes of the APRA. While a public official’s or employee’s usage of a public computer may be a public integrity question, such issues are not within the purview of this office.In sum, says the PAC, the information stored in the web browser is not a public record subject to the disclosure law, but if that information (of, for example, an agency's employees' history of browser usage) is regularly compiled into a report, the report itself would be a public document.
Environment - Section 303(d) List of Impaired Waters up for public comment through end of January [Updated]
Gitte Laasby of the Gary Post-Tribune reports today that:
Environmentalists are concerned about the lack of progress toward cleaning up Northwest Indiana's most contaminated waters.From later in the story:
They say the Indiana Department of Environmental Management has focused on completing studies of rivers and streams whose levels of E. coli bacteria are too high. Meanwhile, studies of Northwest Indiana waters that are impaired for mercury, polychlorinated biphenyls and other toxic pollutants are left unfinished, which means clean-up plans are delayed.
Tom Anderson, executive director of Save the Dunes Council, said the waters polluted by bioaccumulating chemicals should have priority.
"We drain into the largest collection of freshwater in this country. I understand you need to have TMDL (studies) on waters flowing out of this state. But these are waters that drain into people's drinking water and have a retention of 99 years," he said.
The proposed impaired waters list for 2008 is up for public comment until Thursday. It contains 1,877 stretches -- 805 fewer than the last list from 2006. IDEM said contrary to the previous list, the new one is only intended to show pollution hotspots.The IDEM webpage for information on "Indiana's Draft List of Impaired Waterbodies 2008" and information about submitting public comments is here
IDEM has proposed taking 900 stretches of Indiana waters off the list because the agency adopted a new method to determine what consists an impaired water body, not because sampling data shows the condition of the lake or river has improved.
Hoosier Environmental Council member Bryant Mitol questioned whether IDEM is trying to make the state's waters look better on paper than they really are. He said the change in methodology makes it hard to see whether Indiana's waters have actually improved.
"We have no score to say, are we better or worse?" Mitol said. "All of a sudden, I can slide up there in my canoe. I know that's not the case."
[Updated] The Alliance for the Great Lakes has posted a release that begins:
Indiana seeks to remove hundreds of mercury and PCB-tainted waterways from a statewide list of impaired waters -- including several Lake Michigan tributaries – in a move to free the state of a federal mandate to restore them.
Using new methodology, Indiana's Department of Environmental Management proposes to delete more than 800 stream and river segments from the list, even as state regulators warn the public that contamination makes fish from those waters unsafe to eat.
The proposed methodology would no longer determine a waterway's impairment based on the existence of fish consumption advisories, a measure the U.S. EPA has determined meets the intent of the federal Clean Water Act.
"The agency's decision to exclude water bodies that are impaired as a result of pollution from mercury or PCBs violates the Clean Water Act," said Lyman Welch, Alliance water quality manager.
The change leaves Indiana with no data on mercury and PCB contamination levels for many of the waters in question. As those waters would no longer be defined as impaired, the state wouldn't be required to develop plans to restore them.
Ind. Gov't. - Update on canned hunting
Proposed legislation that would have legalized the deplorable practice of canned hunting met a quick death, thankfully, in the legislature. But the hunts, sadly, continue at several high-fence game areas while the Indiana Department of Natural Resources continues its long legal battle to enforce state laws banning them and shut them down.
“Certainly, things stay simple in the litigation not having the new legislation enacted,” said DNR deputy director and chief legal counsel Adam Warnke.
House Bill 1351 died in the Indiana House of Representative Natural Resources Committee last week. The legislation would have allowed licensing of game preserves for hunting of privately owned deer and game birds. It’s unfortunate that while many states are closing down canned hunting operations and enacting bans, some Indiana legislators are still looking to legalize the operations.
The next step in the legal battle is a Feb. 14 hearing in Harrison County Circuit Court. The plaintiffs, owners of 10 high-fenced game preserves, want the court to enforce a proposal that was floated but never finalized during settlement talks between the state and the preserve owners in 2006. The proposed settlement would have allowed existing preserve owners to operate for 10 to 12 years to recoup their investment before ultimately ending canned hunting.
“That was a fluid set of discussions, and there was never a concrete agreement,” Warnke said.
The losing side is certain to appeal, and it’s not likely the court will be able to resolve the issue as quickly as sporting hunters, advocates for humane treatment of animals or the DNR would like. At least state natural resource officials won’t have to contend with new legislation confusing the legal case. It’s enough that they must contend with a handful of preserve owners who want to pass off the slaughter of fenced-in animals as hunting.
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court:
This Thursday, Jan. 31st:
9:00 AM - Genevieve York v. Citifinancial Mortgage Co., Inc. - In this foreclosure action, the trial court granted in rem summary judgment and a decree of foreclosure to Citifinancial. The Court of Appeals affirmed, holding that Citifinancial's designated evidence supported an entry of summary judgment, and York had failed to designate properly any evidence sufficient to create a genuine issue of material fact. York v. Citifinancial Mortgage Company, Inc., No. 03A01-0612-CV-543, slip op. (Ind. Ct. App. 7/25/2007). [See ILB summary here, 2nd case.] York has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorney for York; Michael Wallace of Indianapolis, IN. Attorney for Citifinancial Mortgage Co., Inc.; Matthew Love of Indianapolis, IN.
9:45 AM - Nicole Huss v. David Huss - In marital dissolution proceedings between Nicole and David Huss, the Adams Circuit Court entered a dissolution decree awarding David custody of the four children. On Nicole's appeal, the Court of Appeals affirmed as to three children, but vacated that portion of the dissolution decree pertaining to one child. Huss v. Huss, No. 01A04-0611-CV-680, slip op. (Ind. Ct. App. July 25, 2007), vacated. [See ILB summary here - 4th case.] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over this appeal. Attorney for Nicole Huss; Rick Myersof Bluffton, IN. Attorney for David Huss; Joseph Johnson, II of Decatur, IN.
10:30 AM - Brian Tyler v. State of Indiana - At a jury trial on charges of offenses against children, the Ripley Circuit Court admitted certain pre-trial interviews of the children and the children testified at trial. Following a guilty verdict, Tyler was sentenced to consecutive aggravated terms totaling 110 years. The Court of Appeals affirmed in an unpublished memorandum decision, Tyler v. State, No. 69A04-0702-CR-120, slip op. (Ind. Ct. App. Oct. 31, 2007), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Tyler; Leanna Weissmann of Lawrenceburg, IN. Attorney for the State; Zachary J. Stock of Indianapolis, IN.
Next week's (2/4/08 - 2/8/08) oral arguments before the Supreme Court: - None scheduled.
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, Jan. 29th:
2:00 PM - Northern Indiana Public Service Co. vs. U. S. Steel Group - Northern Indiana Public Service Company (NIPSCO) and U.S. Steel Group (US Steel) executed multiple agreements, two of which were approved by the Indiana Utility Regulatory Commission (IURC). Several years after execution of the documents, a dispute arose regarding the price of electricity. US Steel filed a complaint with the IURC, which later granted US Steel's Motion for Summary Judgment. NIPSCO now appeals. The Scheduled Panel Members are: Judges Najam, Bailey and Crone
This Thursday, Jan. 31st:
10:30 AM - Kevin W. Book vs. State of Indiana - Appellant, Kevin Book challenges his conviction and sentence for murder of a child. The Scheduled Panel Members are: Chief Judge Baker, Judges Darden and Bradford.
Next week's (2/4/08 - 2/8/08) oral arguments before the Court of Appeals - None scheduled.
Sunday, January 27, 2008
Ind. Decisions - Court of Appeals issues 3 on Jan. 25th (and 9 NFP)
The opinions issued by the Indiana Court of Appeals on Friday, Jan. 25th are now available online, via the Indiana Courts website.
For publication opinions Jan. 25th (3):
Erin Nicole Lighty v. Barry R. Lighty, Jr. - "The trial court improperly denied Erin’s motion to correct error and dismissed her child custody action. Although the Kansas court was issuing temporary custody orders, it expressly was deferring a final ruling on child custody jurisdiction until after the Indiana court heard the issue. We reverse and remand."
In David Paul Allen v. City of Hammond, a 10-page opinion, the plaintiff , an attorney with a law office in the scity, filed a complaint for declaratory judgment seeking to invalidate the city's business license fee. Judge Barnes writes:
Ordinance 8590 does not regulate who is licensed as an attorney in Indiana, nor does it place any professional requirements on individuals who practice law in the City. At the most, Ordinance 8590 regulates from where an attorney maintains his or her office. Should a licensed attorney decide not to obtain a business license, he or she cannot maintain a business in the City. However, nothing in Ordinance 8590 prohibits an attorney from representing clients within the City limits and maintaining an office outside of the City. These arguments are unavailing.In Tamara Johnson v. State of Indiana, a 20-page opinion, Judge Darden writes:
Conclusion. Allen has not established that Ordinance 8590 is invalid. Because there are no genuine issues of material fact and the City has established it is entitled to judgment as a matter of law, the trial court properly granted the City’s motion for summary judgment and denied Allen’s motion for summary judgment. We affirm.
Tamara Johnson (“Johnson”) challenges her convictions, after a jury trial, for operating a vehicle while intoxicated, as a class A misdemeanor; and operating a vehicle with an alcohol concentration equivalent to at least .08 grams of alcohol per 210 liters of her breath, as a class C misdemeanor. We affirm.NFP civil opinions Jan. 25th (2):
Issues: 1. Whether the trial court erred when it allowed the State the benefit of the presumption under Indiana Code section 9-30-6-15(b). 2. Whether the trial court improperly admitted the DataMaster certification into evidence.
Mary E. Knighten v. Review Board of the Ind. Dept. of Workforce Dev. and Red Roof Inns, Inc. (NFP) - "Mary E. Knighten appeals a decision by the Review Board of the Indiana Department of Workforce Development (“Board”) denying her unemployment benefits. Knighten raises one issue, which we restate as whether the Board’s determination that Knighten was terminated for good cause was reasonable. We affirm."
In Thelma Retz v. Robert Lee, Allen Co. Treas., and Therese Brown, Allen Co. Aud. (NFP), a 13-page opinion, Judge Sharpnack concludes:
We conclude that Swami’s claim that the notice provided by the auditor was in violation of his due process rights was available and could have been litigated during its earlier challenge.12 Accordingly, Swami is precluded by the doctrine of res judicata from claiming that the tax deed is void due to inadequate notice. See Shepherd v. Truex, 823 N.E.2d 320, 326 (Ind. Ct. App. 2005) (holding that appellant’s independent action for fraud on the court pursuant to Ind. Trial Rule 60(B), which in many circumstances is a collateral attack on a judgment, is subject to the doctrine of res judicata). In sum, the trial court erred in granting Swami’s motion for relief from judgment, and therefore we reverse.NFP criminal opinions Jan. 25th (7):
Ind. Decisions - Court of Appeals issues 3 on Jan. 24th (and 5 NFP)
The opinions issued by the Indiana Court of Appeals on Thursday, Jan. 24th are now, finally, available online, via the Indiana Courts website.
For publication opinions Jan. 24th (3):
Tina N. Grant v. Gregory M. Hager - "Based on the foregoing, we find the trial court did not abuse its discretion by not holding an additional hearing prior entering findings of fact and a judgment on remand, or by awarding child support to Father, the non-custodial parent. Affirmed."
In American Heritage Banco, Inc., Alan W. Sidel, and Sheila Schimmele v. Earl Ford McNaughton, Pamela S. McNaughton, George McNaughton, Parkway Mission Industrial, Accommodations LLC, Macneachdain, Inc. , a 13-page opinion, Judge Robb writes:
American Heritage Banco, Inc., (“AHB”) appeals the trial court’s partial dismissal of its claims against Fremont Plastics, Inc., and Lyndon Tucker, contending the trial court erred in determining that AHB had failed to state a claim upon which relief could be granted. Concluding that the trial court properly dismissed AHB’s claims for fraud and civil conspiracy to commit fraud, but improperly dismissed AHB’s claim for treble damages, we affirm in part and reverse in part.Jason D. Bunch v. Katherine R. Himm - "Based on the foregoing, we conclude that the trial court did not abuse its discretion by setting aside its default order entered against Himm increasing her child support payments."
NFP civil opinions Jan. 24th (2):
Patrice S. Traore v. Sherry Rightmyer and Preferred Professional, Inc. (NFP) - "Simply put, Defendants cannot have breached the purchase agreement with Traore because they were never parties to it. Consequently, the trial court correctly concluded that Defendants were not proper parties in interest. The judgment of the trial court is affirmed."
NFP criminal opinions Jan. 24th (3):
Ind. Courts - Neary Will Run For LaPorte Superior 3 Judge.
From the Michigan City News-Dispatch:
La Porte Attorney Greg Hofer announced Friday his Republican candidacy for judge of the La Porte Superior Court No. 3 in La Porte.
The current Superior Court 3 judge is Paul Baldoni, who recently announced his retirement.
Ind. Decisions - Court of Appeals issues 2 on Jan. 23rd (and 18 NFP)
The complete list of opinions issued by the Indiana Court of Appeals on Wed., Jan. 23 is now, finally, available online. This entry replaces the earlier, briefer ILB entry posted Jan. 23rd.
For publication opinions on Jan. 23rd (2):
In Jefferey L. Hiland, Administrator of the Estate of Aubra J. Hiland, deceased v. State of Indiana and Department of Transportation, a 10-page opinion reversing the trial court, Chief Judge Baker writes:
This appeal stems from a fatal car accident that occurred when a vehicle in which eighteen-year-old Aubra Hiland was a passenger left the roadway in Jackson County, overturned on a steep slope, landed in a ditch, and filled with water, killing Aubra and the driver of the vehicle. Aubra’s Estate sued the State for wrongful death and the State sought summary judgment, arguing that it was immune from liability pursuant to the Indiana Tort Claims Act (ITCA). 1 The trial court agreed and granted summary judgment in the State’s favor. Appellant-plaintiff Jeffery L. Hiland, Administrator of the Estate of Aubra J. Hiland, deceased (the Estate), appeals the trial court’s order granting summary judgment in favor of appellees-defendants State of Indiana and Indiana Department of Transportation (collectively, INDOT) on the Estate’s wrongful death action. Specifically, the Estate contends that (1) INDOT is not immune under the ITCA based on twenty-year design immunity or the temporary condition of a public thoroughfare that results from weather, and (2) there is a genuine issue of material fact as to whether INDOT had constructive notice of the dangerous conditions at the site of the accident.In David Gertz and Nichelle Gertz v. Douglas Estes and Susan Estes, an 8-page opinion, Judge Bailey affirms the lower court order that defendants remove their fence:
Although the ITCA grants the State immunity from claims based on defects in roadway designs when the design or redesign occurred over twenty years prior to the accident, the State still has a duty to provide reasonably safe public roadways. We find—and the State conceded as much at oral argument—that whether the roadway at issue was in a reasonably safe condition at the time of Aubra’s accident is a question of fact that must be answered by a factfinder. Thus, we conclude that the trial court erroneously granted summary judgment in the State’s favor and remand for trial. * * *
Therefore, we remand this matter for trial. We caution the trier of fact, however, that INDOT was not required to redesign or improve State Road 250 to a point at which it met 2004 safety standards. It was not required to straighten the road or to provide the “best” or “safest” road. Instead, what the factfinder must determine is whether State Road 250 was in a reasonably safe condition at the time of Aubra’s accident. If it was, then INDOT fulfilled its statutory duty. If it was not, then INDOT may be held liable if the Estate proves the other elements of its claim.
After a series of unpleasant events, David and Nichelle received a permit for and erected on their property an eight-foot wooden fence, running parallel to and eight inches away from the property line. David estimated the cost of building the fence to be $16,000. All along the three supporting horizontal slats, nail points protruded from the side of the fence facing Douglas and Susan’s property. The nails extended between a quarter- and a half-inch from the fence. * * *.NFP civil opinions Jan. 23rd (3):
David and Nichelle argue that the statute is inapplicable because they received a local permit for the fence. Having a local permit, however, is irrelevant to application of the statute.
Indiana Code Section 32-26-10-1, titled “Description of spite fence,” defines as a nuisance “a fence unnecessarily exceeding six (6) feet in height, maliciously erected . . . for the purpose of annoying the owners or occupants of adjoining property.” * * *
Conclusion The trial court correctly concluded that receiving a local permit was not a defense for purposes of the spite fence statute. Furthermore, evidence supported the trial court’s findings
Pike Lumber Co., Inc. v. Frances E. Burnett, Bruce L. Burnett, Trustee Harry Ivan Burnett Credit Trust (NFP) "Here, the Burnetts presented evidence that Frances Burnett and her husband used the Public Road and the Dedicated Roadway approximately four times a year beginning in 1938 to access their property. They continued to use the Public Road and Dedicated Roadway until Pike Lumber gated the Dedicated Roadway in approximately 2002. This evidence was sufficient to demonstrate that the Public Road had not been abandoned."
Antony Bibbs v. Madison County Clerk (NFP) - "Indiana Code section 3-12-6-2(a) requires that a candidate seeking a recount must file a verified petition within fourteen days of the election. Although Bibbs’s petitions were timely, they were not verified."
NFP criminal opinions Jan. 23rd (15):
Ind. Courts - "Lawyer guilty of attack on woman in wheelchair"
James D. Wolf Jr. of the Gary Post-Tribune reports, in a story that begins:
VALPARAISO -- A jury of six people found former attorney, Lake County prosecutor and Hebron Councilman Michael Haughee guilty of sexual battery, criminal confinement and interference with the reporting of a crime Friday night.The ILB has several earlier entries on Mr. Haughee and his legal troubles.
Haughee, who committed these offenses against a woman in a wheelchair, faces two to seven years in prison when he is sentenced on March 6.
The verdicts, returned about 9 p.m., followed Haughee's testimony on the witness stand.
Ind. Courts - Mediation of family court disputes
Deb Kelly of the Terre Haute Tribune Star reports today on the use of mediation in Vigo County family court disputes. The long story begins:
Some of the most contentious and time-consuming court proceedings in Vigo County are not high-profile criminal cases, but rather, the hundreds of custody, divorce and paternity battles that rage off the radar each year.
As the overwhelmed courts struggle to find time for family legal issues, a little-known resource is working hard to clear the court caseload and make the process less painful for the families involved.
The Family Court Project of Vigo County, which began in 2004 as part of a pilot program of the Indiana State Supreme Court, helps the courts identify families that can benefit from a more informal method of resolving disputes — namely, mediation.
Mediation is a method of nonbinding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution.
The neutral third party, the mediator, sits down with the family members – in a custody dispute, usually the two parents – and helps define the issues, needs and desires of each party. Sometimes attorneys are involved, but often the parties do not have representation.
Whatever agreement is reached has to be agreeable to both parties. The mediator is not a judge and cannot make a binding ruling, but if both parties in a mediation work through the process and compromise, the outcome is positive, according to family law mediator John Roach. Roach, who also serves as Terre Haute City Court judge, has been mediating family and civil cases since 2006.
Legislative Benefits - "Insulted" legislators; disrespected citizens
Updating these earlier ILB entries on SB 165, dated Jan. 17th and Jan. 20th, Mary Beth Schneider reports today in a front-page story in the Indianapolis Star headlined "Insulted, senators kill legislator-to-lobbyist bill":
State Sen. Patricia Miller started this legislative session with hopes of killing any perception that legislators are using their public jobs to win more lucrative positions as lobbyists.Disrespected citizens. Today's Star also publishes a powerful "My View" piece from Bruce K. Hetrick, relating the way a "public hearing" scheduled last week for a bill on smoke-free workplaces, HB 1057, was conducted. Some quotes:
The Indianapolis Republican's fellow lawmakers, however, were so offended by that perception that they killed her bill.
Senate Bill 165, which died after a contentious Senate hearing this month without getting a vote, would have required legislators to wait one year after leaving office before lobbying the Indiana General Assembly. * * *
Sen. Marvin Riegsecker, the Goshen Republican who controlled the bill's fate as chairman of the Senate Public Policy Committee, said * * * "I don't think the bill would have passed anyway."
It has elsewhere.
Twenty-six states have enacted one- or two-year cooling-off periods for lawmakers.
What's more, in 2005, Gov. Mitch Daniels sought and won passage of a law instituting a similar policy in his administration, barring his aides from lobbying their former colleagues for a year after taking private-sector jobs. * * *
In Indiana, more than 30 former lawmakers have registered as lobbyists, including four former speakers of the House.
Last summer, only a few months after starting new two-year terms in the legislature, two state representatives, Republican Matt Whetstone of Brownsburg and Democrat Bob Kuzman of Crown Point, resigned from office to become lobbyists.
It was those growing numbers that led Miller, R-Indianapolis, to file SB 165 this year, even though similar bills have failed in the past.
"There seem to be more and more legislators being hired away from the General Assembly to come back and lobby," Miller said. "I think we need to be sure that there's no appearance of impropriety" * * *
"To be honest, it almost seemed to me that they wanted to be offended so that they would have an excuse not to deal with the problem," said Patricia Wittberg, a sociology professor at Indiana University-Purdue University Indianapolis and a Catholic nun, who came to testify.
Wittberg said that throughout her 18 years of teaching, when she talks to her students about legislators representing them "in a fair and just way, and not influenced by special interests, the students laugh. They laugh."
It was those words that Sen. Vi Simpson, D-Ellettsville, found among the most offensive. "The testimony was so nasty and mean and personal that the committee members were furious," she said. "It was a very unpleasant confrontation. That's not how you get legislation passed around here."
Sandra Mowell, a member of the League of Women Voters who also testified, said it was lawmakers who were "rather nasty."
"I thought they just reacted rather violently without a whole lot of provocation toward us," she said. "People in elective office may say they want people to participate in this process, but I went away with the definite opinion that that's just talk."
But last week I experienced first hand the kind of government behavior that breeds cynicism, discourages public participation and leaves citizens outraged and at risk.
The occasion was a public hearing on statewide smoke-free workplace legislation. The bill in question emerged from the Indiana Health Finance Commission. But in one of those make-it-go-away maneuvers, it was assigned not to author Charlie Brown's Health Committee, but to the House Public Policy Committee.
Remarkably, the committee chairman scheduled the bill for a hearing.
On the appointed day, supporters and opponents from all over the state gathered to testify. The room was packed and sweltering.
I sat with a scientist who drove up from Bloomington to share results of a study on secondhand smoke and heart disease.
I talked with a Fort Wayne pediatrician who sacrificed a day of patient care so she could explain the impact of secondhand smoke on children.
I talked with a member of a statewide faith group who came to protect his flock.
The 9 a.m. meeting began late. As we sat and waited, committee members discussed lots of other bills.
Then they launched into a convoluted conversation about hands-free cell-phone legislation.
Finally, around 10:20, the chairman announced the bill we'd all come to address. He said there were many interested people in the room and he wanted to hear from supporters and opponents alike -- this was important legislation, after all.
Reporters readied notebooks. TV cameras zoomed in. Rep. Brown began a brief explanation of the legislation.
But someone wanted to talk some more about cell phones. So that went round and round again -- Rep. Brown waiting patiently at the podium.
Finally, at 10:28 or so, the chairman called my name -- the very first witness to support smoke-free workplaces.
I took the podium. I started to explain how my wife died of cancer. How she never smoked. How her doctors blamed secondhand smoke.
Then the chairman cut me off.
He explained to the scientists, the physicians, the lobbyists, the ministers and all the rest of us who'd come to testify that it was 10:30. He said they were out of time for this year. He said he was sorry.
With that, potentially life-saving legislation died a sudden death.
Rep. Brown shouted out that he would refile the bill next year. * * *
Dear legislators, if you want to earn the citizens' respect, start by respecting the citizens.
Don't tease us with dead-end committee assignments.
Don't manipulate agendas and run out the clock on a public hearing.
Don't ask us to bare our souls if you don't intend to listen.
And please, if you're not going to save lives through healthy public policy, then don't waste the time of doctors, scientists and other health professionals who could better spend their hours trying to address the consequences.
Ind. Courts - Reports on bills of interest to the Judiciary that were discussed this week
The Indiana Judicial Center has now posted its third installment of very useful reports for 2008 on bills of interest to the Judiciary. Access them here. This week's report begins:
The General Assembly has completed an extremely busy week of committee hearings. We are approaching the mid-point of the short session. The last day for third readings is Wednesday, January 30th for the Senate and Thursday, January 31st for the House. Below are the reports on the bills of interest.
Ind. Law - Last Week in Review at the Indiana General Assembly
The Evansville Courier & Press' Bryan Corbin's review of the past week in the General Assembly today is headlined "Time running out on Daniels plan." The story reports:
Now that the Indiana House has passed one version of the governor's property tax relief plan and the state Senate is in the process of passing a different version, the Indiana General Assembly is up against a deadline.
Wednesday is the last day for the House to pass its own bills and send them to the Senate and for the Senate to pass its own bills and send them to the House. Bills not approved in at least one chamber usually are dead for the session. Lawmakers likely will work late Wednesday to beat the deadline. * * *
After Wednesday, the House and Senate will trade bills. * * *
Differences between House and Senate versions must be hammered out before the March 14 adjournment deadline. While taxes have dominated the Legislature's 2008 short session, lawmakers have heard other issues as well:
A Senate vote Thursday on the so-called "pharmacist's conscience" bill deadlocked in a nonconclusive tie vote, 24-24. That means it is not defeated, and could be voted on again. The legislation, Senate Bill 3, says that pharmacists would have the option of refusing to fill prescriptions if they believed the drugs would be used to induce abortion, assisted suicide or euthanasia.
Pharmacies would have to have a backup plan for filling prescriptions if a pharmacist objected, however. Several senators complained the bill could be interpreted to deny customers access to contraceptive drugs.
All five of Southwestern Indiana's state senators — Republicans Vaneta Becker and John Waterman and Democrats Bob Deig, Lindel Hume and Richard Young — voted "no" on Senate Bill 3.
Saturday, January 26, 2008
Law - "Feeling Misled on Home Price, Buyers Are Suing Their Agent"
An interesting story reported by David Streitfeld in the Tuesday, Jan. 22nd NY Times. Are are some quotes:
CARLSBAD, Calif. — Marty Ummel feels she paid too much for her house. So do millions of other people who bought at the peak of the housing boom.
What makes Ms. Ummel different is that she is suing her agent, saying it was all his fault.
Ms. Ummel claims that the agent hid the information that similar homes in the neighborhood were selling for less because he feared she would back out and he would lose his $30,000 commission.
Real estate lawyers and brokers say the case, which goes to trial in the north county division of San Diego Superior Court on Monday, is likely to be the first of many in which regretful or resentful buyers seek redress from the agents who found them a home and arranged its purchase.
“When your house appreciates $100,000 in the first six months, you’re not quite as concerned that maybe the valuation was $25,000 or $50,000 off,” said Clifford Horner of the law firm Horner & Singer. “But when your house goes down, you ask: ‘Who might have led me astray here?’ ”
Agents representing buyers rarely had the opportunity to make mistakes during the last real estate boom, in the late 1980s, because the job hardly existed then. For decades, residential transactions almost always involved brokers who, whatever assistance they gave the buyer, legally represented only the seller.
The long boom that began in the late 1990s put an end to that one-sided world. As prices spiked, buyer’s agents and brokers became popular as sounding boards, advisers and negotiators. The National Association of Realtors estimates they are now involved in two-thirds of all residential purchases.
That makes this the first housing collapse in which large numbers of buyers had a real estate professional explicitly looking after their interests. The Ummel case poses the question: In a relationship built on trust, where promises are rarely written down and where — as in this case — there is no signed contract, what are the exact obligations of these representatives in guiding their clients through a sizzling market?
Environment - More on "Indiana Utility Regulatory Commission Gives Duke Energy Indiana Approval to Build Integrated Gasification Combined Cycle Plant"
Duke Energy won a state environmental air permit Friday for its proposed coal gasification power plant in southwest Indiana, clearing the way for construction to start on the $2 billion plant, even in the face of regulatory appeals by opponents.
Duke, the largest electricity supplier in Indiana and one of the largest in the nation, said the plant could "make history" by being one of the cleanest coal-fired power plants in the world. It would be the first major power plant built in Indiana in about 20 years.
Duke said it will have to raise electric rates for its 770,000 Indiana customers by 16 percent between 2008 and 2012 to pay for the Knox County plant.
The cost to build the plant will be offset by $450 million in local, state and federal tax incentives.
Opponents, including the Citizens Action Coalition of Indiana, have argued that the plant will spew significant amounts of carbon dioxide and other pollutants into the air and might cost much more if strict regulations are passed on carbon dioxide emissions, which are linked to a rise in global air temperatures.
"While this is certainly cleaner (than older coal plants), it is by no means clean," said Dave Menzer, utility campaign manager for Citizens Action Coalition.
He said the activist group will appeal the Indiana Department of Environmental Management's approval of the air permit.
"Clearly, IDEM is acting as a rubber-stamp here . . . in doing the Daniels' administration bidding," Menzer said. Gov. Mitch Daniels has been a supporter of the plant.
Ind. Courts - Filing for judicial positions in Marshall County primary
Anita Munson reports today in the South Bend Tribune, under the heading "Marshall County GOP fills slate for primary: No Democrats filed on first day":
PLYMOUTH -- Marshall County Republicans got a jump-start by filling the slate Wednesday with candidates for the May primary election.
Wednesday was the first day candidates could legally file their intention to run for office, and several GOP members did just that. No Democrat candidates filed that day, according to Voter Registration office records.
Marshall Superior Court II Judge Dean Colvin, Plymouth, filed to keep his position, as did incumbent Marshall County Commissioners Tom Chamberlin, District 2, Plymouth, and Kevin Overmyer, District 3, Culver. * * *
The only elected race at this point in which there are Republican challengers is the county coroner's position, which will be vacated by incumbent John Grolich. Former Argos Police Chief Ed Barcus and William Cleavenger of Culver, first deputy coroner, are both vying for the job.
But there could be other challengers within the party come the November general election.
That's because of the vacancy created by the resignation of Marshall Circuit Court Judge Michael Cook, effective Feb. 29. Technically speaking, the job is not an office up for election this year in Marshall County, but now there's a vacancy. [ILB - see resignation stories (from 1/23/08) here.]
Indiana Gov. Mitch Daniels will appoint an interim judge to serve until the first general election that follows the appointment. In this situation, that's the November election.
Where it gets a little "fuzzy," according to Patty Jones, Marshall County Voter Registration clerk, is that the Indiana Election Division allows the office to be placed on the May primary ballot. And that's what Marshall County officials have done.
Two Republicans, Joseph Morris and Edward Ruiz, both of Plymouth, have placed their names on the primary ballot for the job, and Curt Palmer, Marshall County prosecutor, also a Republican, announced this week his intention to do likewise.
Environment - "Grand Calumet River dredge job completed"
Gitte Laasby, environmental reporter for the Gary Post-Tribune, reported Friday in a story that began:
GARY -- U.S. Steel Gary Works has completed its dredging of the Grand Calumet River, removing an estimated 38,000 cubic yards of contaminated sediment from a 6,300-foot stretch of the river.The Grand Cal dredging was on the table over 20 years ago, when I worked briefly at IDEM, Here are a number of ILB entries going back to 2004 mentioning the Grand Cal cleanup.
Company representatives announced at a meeting Thursday night that a hydraulic dredging machine completed the job on Dec. 6. That date marked the end of the second part of a $30 million government-ordered dredging project of a 5-mile stretch of the river.
The company had already removed several hundred cubic yards of sediment containing PCBs, heavy metals, benzene, oil and grease, but the initial cleanup wasn't good enough.
The U.S. Department of Justice ordered the cleanup in 1998 because U.S. Steel Gary Works had violated the Clean Water Act and a court agreement by illegally discharging contaminated wastewater for years.
Although sampling reports have yet to be approved by the U.S. Environmental Protection Agency, U.S. Steel is sure it's done this time.
"Most surely, this time all the material has, indeed, been removed," said Rick Menozzi, U.S. Steel director of environmental remediation.
Courts - Yet more on "Motion suggests guardian to oversee dogs seized from Vick home"
Being the guardian of the pit bulls seized in the Michael Vick case was a test for Rebecca J. Huss.From the NWI Times, Heather Augustyn give a very thorough report:
"It was a very difficult process," Huss, a Valparaiso University law professor, said Friday. "I lost a lot of sleep. I knew it was going to be a challenging project."
Court-appointed, Huss made a recommendation leading to the placement of 47 American pit bull terriers with eight rescue organizations, none in the Midwest, she said.
Huss was previously unable to speak to journalists because of ongoing criminal proceedings, but on Friday could talk openly about her involvement and Vick, the football star at the center of a dogfighting and animal cruelty scandal that broke last year.
"I don't have really any impressions of him," she said.
"Quite frankly, he was not important to my process because my focus was on the dogs," Huss continued. "I'm very confident that these dogs will be successful with these organizations.
"First of all, I helped determine interim-care arrangements, and then, essentially, my mandate was to recommend the disposition of the dogs. My disposition, fortunately, was that these dogs could all be placed."
"We wanted to make sure that the dogs were placed with organizations that had the capacity to handle the dogs for the long term," the professor said. Best Friends Animal Society in Utah received 22 of the dogs.
VALPARAISO | A local law professor, who viewed the pit bull terriers involved in the Michael Vick dogfighting case, said Friday those that are still alive were spared because the case was a high-profile case.
Rebecca J. Huss, a professor at Valparaiso University who served as court-appointed guardian and special master of the dogs seized in the Vick case, finally spoke to members of the media Friday after the end of the case.
She told reporters that Oscar Allen, the man who attended dog fights and sold a female pit bull to former NFL quarterback Michael Vick, was sentenced Friday morning to three years of probation, a $500 fine and a $50 special assessment.
Allen was the final co-defendant sentenced in the case brought by the U.S. attorney for Northern Viriginia.
Huss said his sentence was light due to his cooperation with investigators.
An expert in animal law, Huss said the condition of the dogs was typical of what is found in dogfighting enterprises.
"It's pretty common that dogs for fighting are chained," Huss said. "All of these dogs were chained and kept outside. When I viewed the dogs last October, they were in pretty good physical condition, but some had scarring.
"Those who didn't we weren't sure if they had ever actually been used in the fights. But you have to remember, dogs were killed if they didn't perform the way they wanted them to."
Huss received 47 dogs that she placed with eight different rescue organizations. She said none has been adopted yet and the dogs are still undergoing evaluation and training. Some 53 dogs were found at the Vick property in Atlanta last July, but one was euthanized and a number of others died.
"They're going through a process of learning to live in the real world. Keep in mind, these dogs in this case have to be evaluated behaviorally continually, so it's more extensive than a typical case," Huss said.
She said the animals seized in this case were spared because they were in the spotlight.
"The reason why we had to have someone appointed guardian is because of all the attention. The attorney got many calls requesting these dogs. One issue in the past is many dogs seized in other cases don't go into placement but are euthanized," she said.
The placement process and the spaying, neutering and microchipping of each dog were part of Vick's agreement to plead guilty to federal conspiracy charges stemming from his involvement in the animal fighting venture.
"He had to make restitution so this process could be used," Huss said.
She stressed the importance of looking at each dog independently.
"Each dog needs to be individually considered and each dog's behavior considered" Huss said, adding that families who adopt the dogs in the future will sign a waiver to indemnify the adoption organization.
Environment - More on "House panel stiffens confined feed rules"
Add a handful of bills involving confined animal feeding operations to the list of dead issues to the sort session of the Legislature.[More] Purdue now has this website providing access to a number of CAFO-related papers
"It is a sad day for the rural citizens and the environment," said Barbara Cox, a CAFO opponent who owns a farm in Randolph County.
Tom Chalfant, president of the Randolph County Farm Bureau, said the state already had enough regulations over large livestock operations. "There is not a better fit with corn and soybean farmers than with livestock," said Chalfant, a grain farmer.
Sen. Beverly Gard, R-Greenfield, chairman of the Senate Energy and Environmental Affairs Committee, let a trio of CAFO bills die this week, including a CAFO moratorium bill filed by fellow Republican Sen. Allen Paul of Richmond. [ILB - that would be SB 61. ] Thursday was the deadline for bills to come out of committee during the short session.
"I will file this again next year," said Paul, whose district includes Wayne, Randolph and Jay counties, all of which have livestock CAFOs.
Gard said there was not enough time to give the issue a hearing, given all the debate on property tax relief during a short session that ends March 14.
In the House, a bill that established good character disclosure for livestock operations and establishes fees for construction and modifications got out of the House Agriculture and Rural Development Committee, but failed to get through the Ways and Means Committee by deadline. [ILB - that would be HB 1168. ]
Ind. Courts - Still more on "Revised law in play on Wilkes sentence"
Updating ILB entries from Jan. 25th and from Jan. 20th, Kate Braser of the Evansville Courier & Press reports today in a story headlined "Wilkes sentence sets up test case for 2002 death penalty change":
Vanderburgh Circuit Court Judge Carl Heldt's decision Friday to sentence convicted murderer Daniel Ray Wilkes to death marks the first time since Indiana law was changed in 2002 that a judge has had to determine the sentence in a capital murder case after a jury deadlocked over the penalty.
The 2002 amendment required a judge to follow a jury's sentencing recommendation in the case. Before that, judges needed only to consider the jury's recommendation, but could enter a different penalty in a capital murder case.
Last month, 12 jurors seated to hear the trial in Clark County, Ind., convicted Wilkes of three counts of murder in the April 2006 slayings, but in the penalty phase of the trial were deadlocked 11-1 regarding Wilkes' sentence.
Defense attorneys have said the law in some other states requires a judge to sentence a defendant to life in prison without parole when a jury cannot reach a unanimous decision regarding the death penalty. But in Indiana laws require that if a jury cannot reach a unanimous verdict about the penalty in a capital murder case, the trial judge alone determine the sentence.
During and after Friday's sentencing hearing, defense attorneys said repeatedly that a death penalty ruling in the case could open the door to years of appeals, possibly leading all the way to the U.S. Supreme Court.
Addressing their assertions that any penalty other than a prison term would be unconstitutional, Heldt said the laws are clear.
"The law in Indiana clearly states the indecision of a jury cannot be considered by the court," Heldt said.
He set Wilkes' execution date for Jan. 25, 2009, but that will likely be delayed, as defendants issued the death penalty are guaranteed an automatic appeal.
After the sentencing, defense attorney Barbara Williams said Wilkes' case had exposed a "clear flaw in the statute."
"That portion of the statute has never been reviewed by the federal courts," she said. "This will be a huge appellate issue and could result in a U.S. Supreme Court case."
Friday, January 25, 2008
Ind. Decisions - Transfer list for week ending January 25, 2008
Here is the Indiana Supreme Court's transfer list for the week ending January 25, 2008. Be sure to view all 4 pages.
No transfers were granted this week.
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. Law - More on: Hoosier homeowners hit by perfect storm
Updating this ILB entry from August 25, 2007 about ballooning property tax bils and home prices spiraling downwards (if there were buyers), the NY Times reports today, in a story by Michael M. Grynbaum, that is headed "Home Prices Sank in 2007, and Buyers Hid":
The median price of an American single-family home fell in 2007 for the first time in at least four decades, according to the National Association of Realtors, a trade group.
“It’s the first price decline in many, many years,” the group’s chief economist, Lawrence Yun, said Thursday. “And possibly going back to the Great Depression.”
The median price of a single-family home fell 1.8 percent, to $217,800, the first annual decline since reliable records began in 1968.
And even as prices plummeted, buyers vanished. Over all, sales of previously owned single-family homes dropped 13 percent in 2007, the biggest decline in a quarter-century. (The group’s survey excludes newly constructed homes.)
Economists now say the housing market, plagued by its worst downturn since the early 1990s, will not bottom out until at least the summer, and even then sales are expected to remain sluggish. [ILB emphasis]
Law - New blog on criminal law launched
The Ohio State Journal of Criminal Law has started a blog, OSJCL Amici: Views from the Field, described as:
A first-of-its-kind, online resource for timely and critical commentaries on the cutting edge of criminal law. Our hope in creating this resource is to help bridge the divide between the academy and the practicing community by creating a venue for leading practitioners to engage with academics, students, the public, and others in the criminal law field.Access it here.
Ind. Decisions - Court of Appeals opinions not posted again Thursday
Although things looked brighter late Wednesday afternoon when the Court of Appeals opinions from earlier this week were finally made available online, again Thursday the Court of Appeals issued a number of opinions, but they have yet to be posted online.
The Clerk of the Courts has posted this message on the Indiana Appellate Opinions page:
Due to technical problems, some opinions recently handed down are not available on this website. Work is being done to correct the problem; please check the site later. If you need a copy of an opinion, please contact the Clerk's Office.Yesterday afternoon the ILB sent a note to the Clerk, offering to post the opinions online each day (via the ILB) until the state problems are resolved. As yet, no response has been received.
Ind. Courts - More candidates seek judicial nominations
"Judge Brugnaux seeking another term in Superior Court" is the headline to this story by Howard Greninger in the Terre Haute Trib-Star:
Barbara L. Brugnaux will seek a third term as judge of Vigo County Superior Court Division 5, announcing Thursday she will file today for re-election in the May 6 primary election. * * *"Trent to run as Independent in Court 1" is the headline to a story in the Lafayette Journal Courier:
Brugnaux will file as a Democrat. Christopher J. Dailey, former Terre Haute City Court judge, filed Wednesday as a Republican candidate for Division 5 judge.
Fourteen years ago, when Judge William McClain was suspended and temporarily lost his seat, Brugnaux was appointed by the Indiana Supreme Court to fill it, making her the first female judge in Vigo County. Brugnaux was appointed to the position by the governor when McClain later was permanently removed.
Brugnaux, who turns 60 in April, won election as judge of Division 5 court in 1996 and 2002. * * *
Division 5 is among the busiest courts in Vigo County, with more than 1,500 criminal cases, mostly driving while intoxicated and felony drug possession cases, and 3,900 civil cases in 2007.
Dailey, 44, was appointed Terre Haute City Court Judge by Gov. Mitch Daniels last year, to replace Michael Lewis, who had won election to Vigo County Superior Court Division 6. Dailey lost in his first election bid in November for City Court to current Judge John Roach, a Democrat.
Attorney Rebecca Trent chose to run as an Independent for the seat of Superior Court 1 because she believes judges should not have political ties.
The partner with Brookston law firm Robert H. Little hopes voters keep that in mind when they go to the polls in November. * * *
The race for Superior Court 1 is shaping up to be a three-person contest in November. Lafayette attorney Randy Williams is running on the Republican ticket. Mike Trueblood, also a Lafayette-based attorney, plans to run as a Democrat.
Ind. Courts - More on "Revised law in play on Wilkes sentence"
Kate Braser of the Evansville Courier & Press reports today:
More than 20 years ago, another Vanderburgh Circuit Court judge was in a position similar to the one Judge Carl Heldt faces today, when he will decide what punishment to render in Daniel Ray Wilkes' capital murder case.
In 1982, jurors deliberated for more than two days before telling then-Vanderburgh Circuit Court Judge William H. Miller they were hopelessly deadlocked over the fate of Daryl McReynolds. * * *
Indiana law regarding death penalty cases was different in 1982 than it is today. In McReynolds' case, jurors had several penalty options. They could recommend the death penalty or a prison sentence ranging from 30 to 270 years.
Unlike today, Indiana law at that time required only a judge to consider the jury's recommendation. Today, the law requires a judge to abide by the jury's decision. Miller ultimately sentenced McReynolds to 270 years in prison and recommended that future governors never pardon him.
"At that time we did not have life without parole as an option, so Judge Miller maxed him by giving him the maximum penalties for each count, all consecutive," Standley said.
Ind. Courts - Lawyers reluctant to challenge sitting judges?
The Evansville Courier & Press has an interesting editorial today, its premise is that few lawyers will challenge sitting judges for their seats, because if they lose they will have to practice before the judge. The editorial concludes:
Our point in bringing up the reluctance of lawyers to seek office against sitting judges goes to our belief that these are some of the most important offices in county government. It in no way goes to the performance of the sitting judges; in fact, as we have said in the past, Vanderburgh County has had a strong lineup of sitting judges who are experienced, conscientious and knowledgeable.
But we believe that all incumbent officeholders will serve us better if they are made to defend their records, at least during each election cycle.
That it does not happen more often is unfortunate.
Legislative Benefits - Still more on "Legislator to Lobbyist" slowdown bill gets cold shoulder
The Statehouse is full of one-time legislators who now lobby their former colleagues. The phenomenon is neither new nor limited to Indiana. But unlike many other states, Indiana doesn't even try to slow the legislative revolving door, which contributes to the cozy relationship between lobbyists and lawmakers.
The two most recent lawmakers-turned-lobbyists were re-elected to the House in 2006. Both served less than half of their terms and are now working for big-name lobbying firms.
Ind. Decisions - Supreme Court won't review Atkins guardianship case
Last Friday, Jan. 18th, the ILB reported that the Supreme Court had denied transfer in the case of Guardianship of Patrick Atkins, Brett Conrad v. Thomas and Jeanne Atkins.
Today the Indiananpolis Star has this brief item:
The Indiana Supreme Court has declined to get involved in a case pitting a man against his longtime partner's parents in a bid for guardianship.
In June, the Indiana Court of Appeals sided with a Hamilton County judge who denied Brett Conrad's request to grant him control of Patrick Atkins' care. The two had been partners for 25 years, but Atkins fell seriously ill nearly three years ago after suffering a ruptured aneurysm and a stroke.
Jeanne and Thomas Atkins, Carmel, opposed Conrad's request for guardianship, and Jeanne Atkins said she disapproved of her son's relationship. The appeals court did order the lower court to grant Conrad the right to visit Atkins.
The state Supreme Court on Jan. 17 denied Conrad's request to review the appeals ruling.
Thursday, January 24, 2008
Law - "Foreclosures Prompt Cities to Make Plea for Aid"
A troubling article today in the NY Times, reported by Ian Urbina, on how the subprime collapse is crippling the budgets of the nation's cities. It is not difficult to envision the impact on Indiana's cities, already in the midst of a property tax crisis. Some quotes:
WASHINGTON — Facing a collapse in the subprime mortgage market that has pockmarked their cities with vacant houses and crippled their budgets, the nation’s mayors pleaded Wednesday for a huge infusion of federal aid.
As more than 250 mayors gathered in Washington for the winter meeting of the United States Conference of Mayors, many agreed that the collapse of the subprime market had left a growing problem of vacant houses, depressed property values, tighter credit, and a need to cut services to close municipal budget gaps. * * *
In December, the conference released a study that said that home values would drop by $1.2 trillion in 2008, hitting city budgets the hardest. States are also beginning to suffer; on Wednesday, the Center for Budget and Policy Priorities in Washington reported that at least 16 states had predicted budget shortfalls for 2009 totaling over $30.1 billion.
“We’re the ones left boarding up these places, cutting their grass, doing demolition on the abandoned structures, picking up the trash, making sure no one breaks in,” said Mayor Frank Jackson of Cleveland.
Cuyahoga County, Ohio, which includes Cleveland, has more than 16,800 homes that have been abandoned because of foreclosures. * * *
The subprime mortgage problem has left many cities scrambling to cut services to try to close budget gaps.
City officials in Sacramento have responded to a $55 million projected budget shortfall for next year city by ordering an immediate hiring freeze and an end to some discretionary spending.
In Virginia, Fairfax County is facing a $220 million deficit for the coming fiscal year and is considering cuts to school districts.
This month, Baltimore’s mayor and City Council announced plans to sue Wells Fargo Bank, contending that the bank’s lending practices discriminated against black borrowers and led to a wave of foreclosures that has reduced city tax revenues and increased its costs.
Cleveland has sought monetary damages from 21 lenders.
“By driving down the value of nearby homes, foreclosures also drive down city revenues and place additional financial burdens on the city and its residents,” said Mayor Sheila Dixon of Baltimore. “It is our responsibility to do what we can to stop it.”
Ind. Decisions - 7th Circuit denies FedEx review
On Jan. 22nd the 7th Circuit, according to this item from RTT News:
declined to hear the request of FedEx Ground, an operating unit of FedEx Corp. (FDX), for interlocutory review of the class certification decision in the Kansas case pending before the United States District Court in Indiana. The decision had granted class certification on the Kansas state claims and a national ERISA claim.For more see "Lawyers for FedEx Drivers Laud Federal Appeals Court Ruling Denying Company's Appeal of Driver Class Certification" (here) from CNNMoney:
The court did not rule on the validity of the contractor model. It also has not decided class certification in any other multi-district litigation case.
SAN FRANCISCO, Jan. 23 /PRNewswire-USNewswire/ -- Lawyers for FedEx Ground/Home Delivery drivers who have been misclassified as independent contractors instead of employees today are hailing the decision of the U.S. Court of Appeals for the 7th Circuit upholding the granting of class certification by the U.S. District Court in Indiana.And from this article by Colleen Paulson in Motley Fool, a story today that begins:
The three-judge panel yesterday rejected FedEx's request to review the nationwide class certification of the drivers' claim for employee benefits under the Employee Retirement Income Security Act (ERISA) and other state claims, said Lynn Rossman, lead counsel for the drivers in their nationwide class action.
"This is the latest in a string of major legal setbacks for FedEx," commented Faris. "We now look forward to the District Court issuing the class certification decisions in the remaining lawsuits. The 7th Circuit decision also means the cases can move forward without the delay an appeal would have created. We are one step closer to justice for the tens of thousands of misclassified FedEx drivers."
She noted that the Internal Revenue Service recently ordered FedEx to pay back taxes and penalties of $319 million for a single year, after finding that FedEx misclassified drivers as contractors instead of employers. The total financial liability FedEx faces in the IRS case has been estimated by stock analysts at between $1 billion and $2.5 billion. That does not include what FedEx owes its drivers for expenses, improper deductions from wages and overtime.
Is self-employment really the American dream? And what does it mean to be self-employed, anyway? FedEx (NYSE: FDX) and its independent contractor ground drivers are facing those questions right now.
Ind. Courts - More candidates seek judicial nominations
From the Goshen News:
Peter D. Todd has filed the paperwork to become a Republican candidate for Judge of Superior Court 5 in Elkhart County.
Ind. Decisions - SCOTUS to hear second Indiana case
A very brief story today in the Indianapolis Star reports:
The U.S. Supreme Court has set a date to hear arguments in the Indianapolis case of a man who wants to be his own lawyer.The case is Indiana v. Ahmad Edwards. The issue is: Whether the Sixth Amendment grants a defendant found competent to stand trial the right to represent himself in a criminal proceeding. The SCOTUSBlog Wiki entry provides access to the briefs.
The justices will hear Ahmad Edwards' case March 26. In 2005, Edwards was convicted in Marion Superior Court of attempted murder and other charges in a 1999 lunch-hour shooting outside Circle Centre mall.
A judge ruled him competent to stand trial but said mental illness prevented him from being able to represent himself. Indiana courts overturned the conviction, and the Indiana attorney general's office asked the high court to take up the case.
The ILB reported on the cert grant in this Dec. 7, 2007 entry. The news here is that this week the SCOTS released the date set for oral arguments -- Wed., March 26th.
Here are pertinent ILB entries on the Indiana Supreme Court's decision in this case:
Ind. Decisions - "As it stands today, we are bound by these authorities as Supreme Court precedent"
Here is a quote from our Supreme Court's May 17th decision in Ahmad Edwards v. State: Here we have a determination by an experienced trial judge that Edwards was incapable of presenting a defense. That determination is necessarily based on factors...
Posted in The Indiana Law Blog on May 21, 2007 09:45 AM
Ind. Decisions - More on: Supreme Court reverses attempted murder conviction
Re yesterday's Supreme Court decision in Ahmad Edwards v. State (see ILB entry here), here are quotes from an AP story which the Indianapolis Star has headlined "Schizophrenic can represent himself. "Anyone who is competent to stand trial has the right...
Posted in The Indiana Law Blog on May 18, 2007 07:48 AM
Ahmad Edwards v. State - in a 10-page, 5-0 opinion Justice Boehm writes: "Edward's conviction for attempted murder and battery with a deadly weapon are reversed and this case is remanded for further proceedings. We summarily affirm the Court of...
Posted in The Indiana Law Blog on May 17, 2007 02:55 PM
Wednesday, January 23, 2008
Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP) [Updated]
[This entry has been replaced by an updated entry posted Jan. 27th.]
For publication opinions today (0):
NFP civil opinions today (0):
NFP criminal opinions today (3):
Terri Musselman v. State of Indiana (NFP) [Added 1/25/08]
Derrick Harrington v. State of Indiana (NFP) [Added 1/25/08]
Ind. Decisions - Court of Appeals issued 6 opinions on 1/22/08 (and 9 NFP)
The COA opinions from Tuesday, Jan. 22, 2008 are now available.
For publication opinions 1/22/08 (6):
In City of Charlestown Advisory Planning Commission v. KBJ, LLC , an 11-page opinion, Judge Barnes writes:
The Planning Commission is estopped from asserting that Danbury Oaks does not comply with the Charlestown subdivision ordinance. See Equicor, 758 N.E.2d at 40 (“In sum, the Planning Commission had ample opportunity to point out any deficiency in the designation of parking, and Equicor reasonably relied on the absence of any parking issue in processing its proposal. Under these circumstances, the Commission was estopped from asserting this deficiency as the reason for its disapproval of Equicor’s plat.”). Accordingly, the Planning Commission’s refusal to reapprove the replat was arbitrary and capricious. The trial court properly granted KBJ’s petition for writ of certiorari. * * *Cynthia Ogle v. East Allen County Schools and East Allen County Schools Employee Group Benefit Plan - "Cynthia Ogle was treated for Common Variable Immune Deficiency (CVID) using intravenous immunoglobulin replacement therapy (IVIG). Her employer, East Allen County Schools, paid for the treatments through its self-funded employee benefit plan (“the Plan”). The Plan administrator’s independent medical reviewers determined the treatment was not medically necessary, and the Plan stopped paying. Ogle sued and the trial court granted summary judgment for the School. On appeal, Ogle argues there are factual questions as to whether the reviewers found the treatments medically unnecessary. We affirm."
Even assuming KBJ is correct in its assertion that Indiana Code Section 36-7-4-1010 applies to plan commissions in addition to boards of zoning appeals, this Section only applies to “costs” and does not mention “attorney fees.” Indiana follows the general rule that each party must pay his or her own attorney fees. * * *
Because Indiana Code Section 36-7-4-1010 does not contain a provision regarding the payment of attorney fees, it cannot be read to authorize such. Regardless of whether the Planning Commission acted in bad faith, as the trial court specifically found, Indiana Code Section 36-7-4-1010 does not authorize the recovery of attorney fees.
Conclusion The trial court properly determined that the Planning Commission erred in denying KBJ’s application for the reapproval of the replat. The trial court improperly awarded KBJ attorney fees pursuant to Indiana Code Section 36-7-4-1010. We affirm in part and reverse in part.
In Spring Hill Developers, Inc. and John G. Brinkworth v. Delbert N. Arthur, Jr. and Judith A. Arthur , a 17-page opinion, Judge Robb writes:
Spring Hill Developers, Inc., and John Brinkworth appeal the trial court’s grant of summary judgment in favor of Delbert “Sonny” Arthur and Judith Arthur. On appeal, Spring Hill and Brinkworth raise one issue, which we restate as whether the trial court properly granted summary judgment in favor of the Arthurs. Concluding that the trial court properly applied the statute of frauds to bar Spring Hill’s and Brinkworth’s complaint, we affirm. * * *In Jet Credit Union n/k/a Credit Union v. John V. Loudermilk and Continental American Insurance Co., et al, a 7-page opinion, Judge May writes:
Applying the standard expressed in section 129 of the Restatement, we are not convinced the part performance doctrine applies to remove Sonny’s promise from the statute of frauds. Assuming Brinkworth sufficiently changed his position in reliance on Sonny’s promise, the nature of the injury cannot be characterized as so substantial that injustice can be avoided only through specific performance. In this respect, it is important to reiterate that nothing prevents Brinkworth from receiving the reasonable value of his services or restitution, or both. See supra, Part II.A. (discussing possible remedies for Brinkworth’s injuries). Because Spring Hill and Brinkworth cannot establish that injustice can be avoided only through specific performance, it follows that the part performance doctrine does not apply to remove Sonny’s promise from the statute of frauds.
Jet Credit Union believed John Loudermilk, a director and officer, committed “acts of malfeasance,” (Br. of Appellant Jet Credit Union (hereinafter “Jet Br.”) at 2), that caused Jet financial losses. Jet would not allow Loudermilk to withdraw the funds he had on deposit with Jet while it was trying to determine the extent of Loudermilk’s financial liability to Jet. In a declaratory judgment the trial court determined Jet could not withhold the money, and Jet released it. Loudermilk later sued Jet for criminal conversion and obtained summary judgment. Because there is no genuine issue as to whether Jet acted with criminal intent, we reverse and remand. * * *In James D. Massey and Margaret E. Massey v. Conseco Services, LLC , a 15-page opinion, Judge May writes:
Administrative agencies enjoy broad authority to interpret and enforce pertinent statutes. * * * We acknowledge nothing in Ind. Code chapter 28-11-4 explicitly authorizes DFI to interpret a statute, nor did the legislature explicitly prohibit it from doing so. Nevertheless, we decline Loudermilk’s invitation to hold an administrative agency necessarily “oversteps its authority” anytime it interprets a statute, even if it does not have explicit legislative authorization. In light of DFI’s interpretation of the statute, Jet could not have been aware of a high probability its control over Loudermilk’s money was unauthorized. It therefore had no criminal intent.
Summary judgment for Loudermilk was improper because the designated evidence demonstrates Jet lacked criminal intent. We accordingly reverse and remand for entry of summary judgment in favor of Jet. governing statutes. Rather, we address the effect DFI’s opinion had on whether Jet was aware of a high probability its control over Loudermilk’s money was unauthorized.
James D. Massey appeals from summary judgment for Conseco Services, L.L.C. (“Conseco Services”) on its breach of contract claim and the dismissal of his counterclaims. We affirm. [See this ILB entry from 1/23/08]In Pansy M. Ickes v. Gregory K. Waters, Esq., an 8-page opinion, Judge May writes:
Pansy M. Ickes alleges Gregory K. Waters failed to exercise ordinary skill and knowledge in counseling her and preparing her estate plan. Pansy appeals from summary judgment for Waters. We affirm, finding the trial court properly concluded the statute of limitations had run. * * *NFP civil opinions 1/22/08 (6):
Alternatively, Pansy argues the statute of limitations did not run because of the “continuous representation doctrine.” * * * Even if we were to adopt this rule, Pansy has not designated evidence that she subjectively intended or reasonably expected the relationship to continue. Therefore, summary judgment was appropriate.
Jerry Terry, Dorman Hill, Barry Clevenger, et al v. Max Rudicel, James Siefert, Ron Chambers, et al (NFP) - "Concluding that the trial court properly applied the statute of frauds to bar Spring Hill’s and Brinkworth’s complaint, we affirm."
James Tomlinson and Frances Tomlinson v. Jerry R. Howard, Indiana Dept. of Transportation, and State of Indiana (NFP) - "The trial court properly struck Tomlinsons’ Exhibit Four from the designated materials and properly granted summary judgment for Howard and INDOT."
Mark P. Campbell v. A.A.A. Bail Bonds, Inc., et al (NFP) - "We conclude that the trial court did not abuse its discretion in denying Campbell’s motions to strike portions of two affidavits because the affidavits comported with Indiana Trial Rule 56(E). Further, we conclude that the undisputed facts show that A.A.A. is permitted to recover under the Indemnity Agreement and that the record does not support Campbell’s contention that there are no damages. Summary judgment in favor of A.A.A. is appropriate."
Gerald Morgan, Rosetta Morgan and A & A Machine Service, Inc. v. Service Industries, LLC, Peter and Heidi Lachmann (NFP) - "Concluding that the trial court properly granted summary judgment on the issue of whether the Lachmanns had acquired a prescriptive easement and whether the Lachmanns had acquired title to the property by adverse possession, we affirm. The Lachmanns also argue that the trial court improperly denied its motion for attorneys’ fees, and also request that we award attorneys’ fees incurred in defending this appeal. Concluding the trial court acted within its discretion in declining to award attorneys’ fees, we affirm the trial court in that respect as well. We also conclude that this appeal was not frivolous, and decline to award appellate attorneys’ fees."
Randall Carl Freeman v. Crystal Freeman (NFP) - "Petitioner-Appellant Randall Carl Freeman appeals the trial court’s denial of his motion to correct error following the court’s distribution of property in the dissolution of Randall’s marriage to Respondent-Appellee Crystal Freeman. We affirm."
James Garrett Small v. Indiana Family and Social Services Administration, et al (NFP) - "I agree with the majority that Marion Circuit Court is the appropriate court to consider Small’s complaint. However, I concur in result because I believe that Indiana Code section 33-29-6-3 would have been an appropriate alternative by which the Marion Superior Court could have handled this case."
NFP criminal opinions 1/22/08 (3):
Ind. Courts - More judicial announcements
From Tree County 1330 in Greensburg:
Williams files early for Decatur Superior Court Judge.
Lora Reed Williams filed paperwork today to run for Decatur Superior Court Judge.
From the Michigan City News-Dispatch:
Neary Will Run For LaPorte Superior 3 Judge.
Democrat Robert Neary has announced his candidacy for La Porte Supe-rior Court 3 judge, the position being vacated by retiring Judge Paul J. Baldoni. Superior Court 3 is in La Porte.
Ind. Decisions - Supreme Court posts one today, decided 1/22/08
In Randolph County v. Chamness, a 5-page, 5-0 opinion on an interlocutory appeal, Chief Justice Shepard writes:
This case arose when a car carrying four young women left the roadway in Randolph County, and overturned and ejected one of its occupants in Delaware County, severely injuring her. The dispute so far has centered on which county has venue, the very sort of procedural wrangle that venue rules seek to avoid. We hold that when a vehicle leaves the pavement on one side of a county line and comes to rest on the other side, preferred venue lies in both counties. * * *
This extraordinary situation, evocative of a law professor’s hypothetical, merely calls for adherence to the spirit of convenience underlying the venue rules, rather than an examination of the technical language.3 Witnesses are likely to be found in either or both counties. A police report is just as likely found in either county. A jury viewing of the accident site is easily arranged from either county. Most people would say that this accident occurred in both counties, and if we were to hold that an “accident or collision” must occur only in one county, we would not add any level of convenience, only a level of disputatiousness.
If a car runs off the road in one county, and lands in another, an injured plaintiff may file suit in either county. Our construction of Rule 75(A)(3) in this rare circumstance does no violence to the rule’s language, nor can be it be said that the narrow rule we announce today defies the expectations of litigants.
Conclusion. We affirm the trial court’s decision denying change of venue from Delaware County.
Ind. Courts - More on: OK, where are these opinions?
Earlier today the ILB noted that Court of Appeals opinions were not being posted online this week. A second entry followed up with a report of a conversation between the ILB and COA Chief Judge John Baker, who stated that the Clerk's Office has been and continues to be many weeks behind in opening and processing paperwork of all kinds.
A reader who does a lot of appellate work wrote shortly thereafter about Judge Baker's statement:
This is kind. The [clerk's] office is a disaster. There has been all sorts of turnover, and new staff (at least some of them temps) have no idea what they are doing. There are usually stacks of paper everywhere, and it literally takes weeks for many things to show up on the docket. Lawyers can no longer rely on it.Although it now appears that the failure to post opinions online this week was due to a computer glitch, the operation of the Clerk's Office is certainly an issue worthy of further comment. The smooth and timely operation of that Office is pivotal to the State's judicial system.
The ILB would welcome hearing from readers who have experience with the Clerk's Office, supporting or disagreeing with what has been written today. (Please let me know if you agree to be identified by name.)
Ind. Courts - Marshall County Circuit Court Judge Michael Cook to resign
From WTCA 1050 in north central Indiana:
Marshall County Circuit Court Judge Michael Cook notified Governor Mitch Daniels on December 31st of 2007 of his intention to resign his position effective at midnight on February 29th.And a follow-up story:
After more than 29 years on the bench, Judge Cook will take some time to make maple syrup and work on the reconstruction of his home following the tornado this fall that damaged the home and took down 19 trees on his property.
Although stepping away from the bench he still plans on being involved in the legal system. Cook said he plans on sending letters on March 1st to selected law firms in northern Indiana offering his services as a mediator. Judge Cook said in a phone interview Tuesday afternoon that with the Rules for Alternative Dispute Resolution bringing some uniformity into dispute resolution with the view that the interests of the parties can be preserved in settings other than the traditional judicial dispute resolution method he feels his expertise can serve those parties involved in legal battles.
Michael Cook will turn 57 this year. He said with nearly 30 years as a judge, “the time is now for a change.” Cook said, “I just want to quietly fade into the sunset without any big deal.”
Due to the resignation of Judge Michael Cook, Marshall County will soon be selecting a new judge for the Marshall Circuit Court for the first time in twenty-nine years. Prosecuting Attorney Curtis Palmer has announced his candidacy for Circuit Court Judge for the upcoming primary and general elections in 2008.
Curtis Palmer, 48, of Plymouth has been the Marshall County Prosecuting Attorney since 1995 and has been in the prosecutor's office for a total of 23 years. He was a also a ten year member of the Plymouth civil law firm of Jones, Huff and Palmer (now Jones, Huff and Jones).
Ind. Decisions - Chief Judge Baker on: OK, where are these opinions?
Earlier this afternoon the ILB noted that no COA opinions have been posted online since last Friday, although apparently opinions have been issued, as two press stories quoting opinions have appeared.
A few minutes ago, the ILB spoke with Chief Judge John Baker about the problem. Judge Baker said the Court of Appeals has indeed issued many opinions since last Friday, none of which, unfortunately, have yet been posted to the Internet. But, he continued, the problem is much larger than just the failure to post opinions.
The Clerk's Office, Judge Baker said, has been and continues to be many weeks behind in opening and processing paperwork of all kinds.
Part of the problem can be attributed to the fact that the work load of the Court of Appeals continues to increase; over 2,509 cases in 2006 jumped to 2,868 in 2007. And filings, according to the Judge, are up even more.
Judge Baker said he has expressed his concerns to Kevin S. Smith, Clerk of the Indiana Supreme Court, Court of Appeals, and Tax Court, and Judge Baker said he could report that personnel are being added help alleviate the problems. Because there is no more room in the Office, the added employees are being put on a half shift, working when the other employees are gone.
The good news, says Judge Baker, is that according to Clerk Smith, everything should be caught up by mid-February.
A report from the Indiana Lawyer this afternoon puts the blame on the State's internet provider:
"We regret this is happening, but it's a hazard of technology," said Indiana Supreme Court Administrator and Appellate Clerk Kevin Smith. "You'll have to do what you did before the Internet: travel to Indianapolis to look at them."
Ind. Decisions - 7th Circuit issues one Indiana opinion
In United States v. Rivas (ND Ind., Judge Lozano), a 16-page opinion, Judge Bauer writes:
Hernandez-Rivas essentially makes the same underlying argument here as he did in his motion to suppress—that the trooper did not have reasonable suspicion or probable cause to stop the van—so the issue was properly preserved for appeal. * * *
Hernandez-Rivas maintains that the van was predominately in the same lane and maintained a direct course, therefore its movements were not a change from one traffic lane to another, and were conducted with reasonable safety. However, this argument was rejected by the district court when it credited Trooper Carmin’s testimony in holding that the van violated either provision of the Indiana Code. We see no reason to disturb the district court’s finding that the stop was valid and supported by probable cause.
Next, Hernandez-Rivas argues that the district court abused its discretion when it refused to accept his guilty plea, because it did not consider any other evidence other than Hernandez-Rivas’s allocution, and the court failed to determine if there was a factual basis to support whether Hernandez-Rivas demonstrated “reckless disregard” for the illegal status of the occupants in the van. Hernandez-Rivas also claims that the district court erred by failing to consider his later attempts to plead guilty. * * *
In light of his failed attempts to plead guilty, and in light of the myriad of inconsistencies in his pleas, the court reasonably interpreted Hernandez-Rivas’s remarks as an indication that his plea was not knowing and voluntary, and that he did not believe he had committed a crime. The district judge acted within his discretion when he rejected Hernandez-Rivas’s initial guilty plea, and his reasons for rejecting the initial plea and the subsequent attempted pleas are sound.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Ind. Decisions - OK, where are these opinions?
"Bibbs' decision upheld by Appeals Court" is the headline of a story posted this morning by Jessica Kerman of the Anderson Herald Bulletin:
A decision by Circuit Court Judge Frederick Spencer regarding a recount request from Antony “Ty” Bibbs was upheld in the Indiana Court of Appeals, according to a decision from the court on Wednesday."Court rules against former Conseco director" is the headline of this story posted yesterday by the Indianapolis Business Journal:
According to the decision from Chief Judge Baker, Spencer properly dismissed Bibbs’ petition for a recount because it was not verified under oath.
The Indiana Court of Appeals today upheld an $8 million judgment that Conseco Inc. won against former director James D. Massey, who once was president of Merchants National Bank in Indianapolis.The problem? No opinions have been posted on the Court of Appeal website since last Friday, January 18th. The Clerk of the Courts posted a notice the beginning of the year (which the ILB is now unable to locate - perhaps someone can help) announcing that paper copies of opinions would no longer be available to the press and that a date and time stamp would be added to the online opinions, which would become the official resource. So, where are the decisions these stories are quoting from?
In the 3-0 decision, the court agreed with Hamilton County Judge Steve Nation, who declared that Massey still owed Conseco for $8 million in interest accrued on stock loans. Conseco had paid the interest on Massey’s behalf for company-backed loans that Massey used to buy Conseco stock in the late-1990s.
Courts - Hear! Hear! Slate columnists write "Lay off Linda"
Hear! Hear! The ILB points readers to this article in Slate, by Emily Bazelon and Dahlia Lithwick, headlined "Lay Off Linda: Why doesn't the New York Times stand up for Linda Greenhouse?" that begins:
It took some kind of amazing footwork for Clark Hoyt, the New York Times public editor, to pull off what's turning into an annual ritual: dragging the paper's multiple-award-winning Supreme Court correspondent out to the woodshed for appearing to have opinions in her private life or—even worse—sharing a toothpaste tube with those who do.
Courts - "Ohio Court Debates Rights to Body Parts"
COLUMBUS, Ohio (AP) — During an autopsy, the Hamilton County coroner removed Christopher Albrecht's brain and never put it back — a common practice for coroners.
But when Albrecht's parents learned years later that they had buried him without a brain, they filed a lawsuit that raises ethical, moral and religious questions about the treatment of one's body after death.
The case, to be argued Wednesday before the Ohio Supreme Court, has drawn international attention for its ramifications to coroners, crime investigators, EMTs, funeral directors and followers of religions that espouse the importance of burying the whole body.
The Albrechts argue that they had a right under the Ohio Constitution to their son's brain, and a right under the U.S. Constitution to reclaim the brain before it was destroyed. The lawsuit is a class action suit against coroners and commissioners in 87 of Ohio's 88 counties covering cases dating to 1991.
Under Ohio law, brains, hearts and other body parts and fluids removed during an autopsy are classified as medical waste, which generally means they are incinerated after use.
"What this case really comes down to is, for the convenience of the government, are we Ohioans, we humans, supposed to give up our most basic rights to the human remains of our loved ones?" said John Metz, an attorney who brought the Albrechts' suit. "I am absolutely amazed to have to be standing in front of the highest court in our state to defend against such a socialist view."
Ind. Courts - "Tippecanoe County judge races begin to take shape on filing day"
Sophia Voravong writes today in the Lafayette Journal Courier:
A judge seeking a second term and a longtime Lafayette attorney will face each other on the Republican ticket in the May primary election.
Citing a need to continue with evidence-based treatment, rather than throwing offenders in prison, Judge Les Meade announced his intention Tuesday at the Tippecanoe County Republican headquarters.
He'll run against Bruce Graham for the seat in Tippecanoe Superior Court 5, which handles the largest volume of misdemeanor and felony criminal cases, most of them involving first-time offenders. * * *
In Tippecanoe County, five judicial seats are up for election -- Circuit Court, Superior Court 1, Superior Court 2, Superior Court 4 and Superior Court 5.
Candidates can begin filing today for the primary. At least one other judicial seat will be contested.
Superior Court 1 is shaping up to be a three-way race. Attorney Randy Williams announced last week his plans to run as a Republican.
Attorney Rebecca Trent, who is running as an Independent, is scheduled to announce today.
Attorney Mike Trueblood confirmed Tuesday that he will run on the Democratic ticket. He has practiced law in Tippecanoe County for 30 years.
Ind. Courts - Muncie and Terre Haute mayoral election contests continue
From the Muncie Star-Press, a report by Nick Werner:
MUNCIE - Republicans today will try to convince a judge to dismiss a lawsuit seeking a special election in Precinct 46.From the Terre Haute Trib-Sar, Austin Arceo reports:
The special election, if granted, could have the potential to overturn election results once more, awarding the mayor's office to Democrat James Mansfield.
Mansfield was originally certified the election winner, but lost the title of mayor-elect after Republican Sharon McShurley emerged victorious from a recount Dec. 20. McShurley has since taken office.
Her victory can be attributed to the fact that the recount commission dismissed 19 absentee ballots in Precinct 46 that were not properly endorsed.
Indiana law requires a member of both political parties endorse absentee ballots with initials before the ballot is mailed to voters. The 19 ballots from Precinct 46 were missing Republican initials. * * *
In another development, Republicans appealed to Delaware Circuit Court 3 Judge Robert Barnet Jr. this week to throw out all votes from Precinct 18.
Republicans argued that voter fraud was so pervasive in Precinct 18, a predominantly Democratic precinct, that it was impossible for the commission to determine the approximate number of votes that each candidate received there.
In such situations, recount commissions are required to disqualify all votes in that precinct. The recount commission, however, decided to count all votes in that precinct, after having apparently determined that Republicans had not proved their case. Republicans are appealing that decision.
TERRE HAUTE — A challenge to Mayor Duke Bennett’s eligibility to take office is one step closer to heading to the Indiana Supreme Court.
Bennett’s attorneys on Tuesday afternoon filed documentation with the court in support of former Mayor Kevin Burke’s previous motion filed earlier this month to have the state’s highest court take jurisdiction of the case, rather than the state Court of Appeals.
“I think it’s important that we get this resolved as quickly as possible,” Bennett said, “and we believe that that’s a faster route, to get it done through the Supreme Court than we do through the Court of Appeals.
“The quicker we can resolve this and bring this issue to closure, I think that’s best for the taxpayers and citizens of this community,” he said. * * *
Burke said that he was pleased that Bennett was in support of the move to the Indiana Supreme Court.
Bennett said that his side believes the case will be on a faster track with the Indiana Supreme Court.
A move to there from the appellate court would cut down the “ultimate decision time” by eight months to a year, said Bryan Babb, a new attorney for Bennett who is working on the appeal.
Burke attorney Ed DeLaney and Bennett both said they saw this case eventually heading to the Indiana Supreme Court. * * *
Bennett said that for various reasons, he has retained a law firm in Indianapolis [ILB - Brian Babb is with Bose McKinney] to take over the case. He said it has some experience with the Indiana Supreme Court. He said it “felt like it was a good move on our part to make that change.”
“Jim Bopp did an excellent job for us here in Terre Haute, and I have high regards for his ability,” Bennett said. “We’re just making a decision we feel is the right one to make with” the new attorneys “being in Indianapolis.”
Ind. Courts - More on: Wrongful death trial in Ball State student's 2003 shooting
Updating yesterday's ILB entry, Seth Slaubaugh of the Muncie Star-Press today covers yesterday's opening arguments in McKinney vs. Duplain, the wrongful-death lawsuit begin conducted in U.S. District Court in Indianapolis.
Ind. Courts - Two magistrates eyeing spot on the Vanderburgh bench
A story reported today by Kate Braser of the Evansville C&P begins:
Two experienced courtroom magistrates are the first to declare intentions to fill the bench vacancy created by the retirement of Vanderburgh Superior Court Judge Scott R. Bowers.
Vanderburgh Circuit Court Magistrate David D. Kiely and Superior Court Magistrate Jill R. Marcrum plan to file candidacy papers today at the election office.
Ind. Law - More on: "This bill puts a pharmacist's individual beliefs above a patient's needs"
The Senate yesterday voted down an amendment that would have clarified whether contraceptives are among the drugs that pharmacists could refuse to dispense under so-called "conscience clause" legislation.Perhaps the bill should be amended to require that each pharmacy prominently post a list of their pharmacists, when they are on duty, and what they are willing and not willing to dispense, and also make this information available by phone, so that people seeking to get prescriptions filled do not waste time.
Senate Bill 3, which is now ready for a Senate vote, would give pharmacists the right -- without fear of punishment by employers -- to refuse to dispense drugs that they believe will be used to abort a pregnancy or commit suicide.
Opponents say the bill would go much further by allowing pharmacists to refuse to dispense emergency contraception and even birth-control pills.
Tuesday, January 22, 2008
Law - "Federal regulators have proposed requiring the alcoholic-beverage industry to put nutrition and alcohol-content labels on their containers"
"Alcohol Labeling Proposal Sets Off a Brawl" is the headline of Cindy Skrzycki's Washington Post column, The Regulators, this week. It begins:
After more than 30 years of deliberation, federal regulators have proposed requiring the alcoholic-beverage industry to put nutrition and alcohol-content labels on their containers, setting off the equivalent of a barroom brawl among makers of beer, wine and liquor.
Pushed by consumer groups, the U.S. Treasury Department's Alcohol and Tobacco Tax and Trade Bureau for the first time would mandate disclosure of how many carbohydrates and calories and how much protein and fat alcoholic drinks contain, as food labels do. How and where to disclose alcohol content is generating heat.
Law - Should government employees be deleting their emails?
This month's issue of Governing.com has an important article by Ellen Perlman titled "Delete at Your Own Risk: Governments need a system for managing their mountains of e-mail. Very few have one." Some quotes:
For several months last fall, the St. Louis media had a field day with Missouri Governor Matt Blunt's office for doing the equivalent of crumpling up important office correspondence and tossing it away. Employees weren't using a wastebasket, though. They were tossing out messages by clicking "delete" on their computers. Staff members insisted there was no written policy in their office on saving and deleting the e-mails. They said they routinely erased the messages because they didn't view them as part of the public record.There is much more to read in this article.
Most other state offices were quick to disassociate themselves from this approach. The attorney general, the secretary of state and the auditor all announced that, unlike the governor, they treated e-mails as public records and retained them accordingly. Finally, in November, Blunt put an end to the controversy by announcing his own stringent new policy. A "permanent" e-mail retention system would be created, and employees would no longer be able to make case-by-case decisions on what to save. The governor gave his Office of Administration the task of developing technical systems to permanently save every single state government e-mail. He didn't say how much that would cost or how much additional storage would be needed.
Missouri's is not the only government that has been stumbling over vague or non-existent e-mail policy. Millions of state and local employees in jurisdictions all over the country correspond by e-mail every day without giving much thought to what should happen to the product. They may come to regret that behavior. Not only are records, and history, being lost, but many government lawsuits now turn on what is buried in old e-mail messages. Government policy simply has not kept up with the evolving technology. "At the moment," according to Charles Davis, of the National Freedom of Information Coalition, "everyone is looking up and saying, 'Maybe we ought to be keeping this stuff.'" But few have come up with clear rules governing where and how to keep it. * * *
In general, though, it's proving difficult for archivists and other information technology specialists to get across the message that government documents sent via e-mail can't be viewed as ethereal missives. E-mail is simply another way to distribute a public record. As time goes on, courts are likely to hold governments increasingly responsible for organizing and saving those records in exactly the way they would save paper records. Logically, that would require them to set policies for computer use and offer training on how to properly handle and retain e-mails. Few do.
The whole problem is complicated by the fact that government workers use their office computers for a huge variety of purposes, many of them official but many personal or even questionable. Employees in state and local government use e-mail and the Internet to do their taxes, run eBay businesses, upload to YouTube and plan lunches and other personal events. If a government tolerates those uses, it seems a bit excessive to demand that every lunch invitation be saved and stored in perpetuity for public inspection.
Some states are beginning to deal with the problem by creating clearer rules for what employees can and can't do with their computers on office time. * * *
One of the reasons governments aren't managing e-mail well is that it doesn't take up any physical space. If the amount of information now being clicked back and forth were still on paper, it would bulge out of filing cabinets. Agencies couldn't let the piles stack too high. With the advent of electronic storage and search capability, there's a strong inclination on the part of many governments not to do much of anything. If they need something, they assume they can find it. If someone deletes it, they aren't inclined to worry. "We're so busy generating and consuming and digesting information," says Adam Jansen, the deputy archivist in Washington State, "there's no time left in the day to manage it."
PRESSURE FROM THE FEDS. In fact, though, if there was any doubt about the importance of public e-mail management, it should have disappeared in December 2006, with a change in the Federal Rules of Civil Procedure. Under those rules, state and local governments that become litigants in a federal case will have to produce any electronic information considered relevant to the case. If they can't easily retrieve e-mails because they haven't established an efficient way to store them, it's going to cost a lot in staff time. Employees might have to review millions of e-mails to find which ones deal with the plaintiff. If they've deleted crucial e-mails that are public record, that creates other issues.
Last week Mark Schaver, the "computer-assisted reporting director" for the Louisville Courier Journal, had an entry in his blog, Depth Reporting, headed "Should government workers be deleting their email?" He pointed out that "The Indiana Commission on Public Records offers guidelines (PDF) to Indiana agencies." Here is a quote from the 7-page Indiana document:
Policy:The ILB has found a veto message issued by Governor O'Bannon on May 10, 2001 dealing with the question of access to legislative emails. (Of course, access is different from preservation.)
E-mail is a public record All e-mail conducted on state government computers is owned by the state of Indiana and is a public record. Indiana Code 5-14-3-2 defines a public record as:any writing, paper, report, study, map, photograph, book, card, tape recording, or other material that is created, received, retained, maintained or filed by or with a public agency and which is generated on paper, paper substitutes, photographic media, chemically based media, magnetic or machine readable media, electronically stored data, or any other material, regardless of form or characteristics.The General Assembly essentially precludes any state agency or state employee from determining individually what is or is not a record: anything, on any medium and created for any governmental purpose, falls under the rubric of public records law. Consequently, all e-mail messages are public records and are subject to record retention requirements. For the purpose of satisfying public records laws, e-mail is defined as not only the messages sent and received by e-mail systems, but all transmission and receipt data as well.
Electronic Mail (E-mail) is not a record series for retention scheduling purposes. Rather, the retention of E-mail must be based on content, not media type. E-mail should be retained for the same duration as other records of similar content included in a given record series on an approved retention schedule.
All agencies are responsible for developing guidelines and procedures to manage e-mail messages as part of their overall record-keeping systems. Agencies must maintain their E-mail in a manner that complies with approved retention schedules and the records management practices already established for other media as required by law.
On the federal level. Serendipitously, the Washington Post today has a lengthly story today by Elizabeth Williamson and Dan Eggen headlined: "White House Has No Comprehensive E-Mail Archive: System Used by Clinton Was Scrapped." Here is how it begins:
For years, the Bush administration has relied on an inadequate archiving system for storing the millions of e-mails sent through White House servers, despite court orders and statutes requiring the preservation of such records, according to documents and technical experts.
President Bush's White House early on scrapped a custom archiving system that the Clinton administration had adopted under a federal court order. From 2001 to 2003, the Bush White House also recorded over computer backup tapes that provided a last line of defense for preserving e-mails, even though a similar practice landed the Clinton administration in legal trouble.
As a result, several years' worth of electronic communication may have been lost, potentially including e-mails documenting administration actions in the run-up to the Iraq war.
White House officials said last week that they have "no reason to believe" that any e-mails were deliberately destroyed or are missing. But over the past year, they have acknowledged problems with archiving, saving and finding e-mails dating from early in the administration until at least 2005.
The administration's e-mail policies have been repeatedly challenged by lawmakers and open-government groups, in congressional hearings and in court. Two groups, the National Security Archive and Citizens for Responsibility and Ethics in Washington, have accused the White House in lawsuits of violating the Federal Records Act because of what they say is its failure to preserve millions of e-mails, a charge the White House rejects.
The White House's record-keeping problems have thrown new attention on a gap in statutory language covering the retention of presidential records.
"If it is a presidential record, then it does need to be retained. It doesn't matter what the format is -- e-mails can be records," said Susan Cooper, a spokeswoman for the National Archives and Records Administration. But the agency has no power to intervene if an administration is not preserving presidential records, inadvertently or not, Cooper said.
The law governing nonpresidential federal records is stronger. The National Archives can demand an explanation from any federal agency that it suspects is mishandling records, and it can request a Justice Department probe. Private parties can sue to force compliance with federal records laws, but not the presidential-records statute.
Controversy surrounding the Bush administration's policies intensified on Thursday, when the House Oversight and Government Reform Committee released details of a briefing by White House special counsel Emmet T. Flood, in which he disclosed that a 2005 White House study had identified 473 separate days in which no electronic messages were stored for one or more component offices.
Law - Growing up online: Schools come to grips with technology
Making the connection between this ILB entry earlier today headed "Not law - On PBS tonight: "Growing Up Online" and law, see this excellent report today in the Muncie Star-Press by Oseye T. Boyd. The headline is "Schools come to grips with technology." The story begins:
HARTFORD CITY -- Banned or not, cell phone videos, text messages and posts on MySpace, Facebook and YouTube keep making their way into schools -- and schools are scrambling to keep up.More from the story:
A recent fight in a Blackford High School restroom between two girls illustrates the kind of problem schools face. While two girls fought, a friend of one girl recorded the incident on her cell phone. The school's policy requires that cell phones be turned off and kept in student lockers during the day.
Angie Sharpe's daughter, a freshman, was involved in the fight. Sharpe has heard rumors that the video was e-mailed to teens throughout the school. She believes school officials didn't do enough to keep the video from being spread through cyberspace.
"The school didn't confiscate the technology right away because they said they've never dealt with this situation [before]," Sharpe said. "I was very, very disappointed in the school system."
According to school officials, the video was deleted by the student. Any videos of the fight that might be circulating are out of their hands, Supt. Gerald Chabot said. Administrators are looking at new policies to address cyber bullying and other ways students can use technology to disrupt school. Those policies could be in place next year.
"We're struggling managing technology under an old paradigm," Chabot said. "We as middle-aged educators sometimes don't understand technology the way that young people do. It is a part of their being in life today. We need to come to grips with this. Job one is education, but our students are coming to school with this technology."A sidebar to the story sets out the seven-point Jay County High School "policy dealing with misuse and abuse of cell phones by students. Students who use cell phones and their parents must sign that they will comply with this policy."
Checking out rumors about postings on MySpace, Facebook and YouTube are part of Daleville Junior-Senior High School Principal John Junco's job. Many times, it amounts to nothing but rumors. Occasionally, though, Junco has disciplined students for things he's found.
In a case of cyber bullying, a student threatened to damage another student's property through MySpace. The student was called into the office and the situation was resolved. Another student posted comments on MySpace saying he planned to take a gun to school. Junco learned of this, and the next day the student was searched by administrators and police. Parents were called and the student was sent home for the day.
Because this is new territory, discipline is handled on a case-by-case basis, Junco said.
"The only time that I've ever invoked discipline is when it disrupts the school process," Junco said. "Right now, our lawyers advise there's nothing we can do outside the school unless it's being used during school time."
Realizing that technology and students' use of it is only going to grow, Jay Schools administrators came up with a tougher policy last spring. Implementation began in the fall.
"I had been thinking about it for a while mainly because I was watching what was happening around the country -- videotaping a fight at school or getting a teacher angry and posting it on MySpace or wherever else, on YouTube," Gulley said. "I kind of wanted to address that before it happened rather than after the fact. Our policy is somewhat forward thinking, but it's not foolproof."
Ind. Law - Bill would prevent those convicted of killing their child's other parent from receiving benefits in the event of the child's death
A long story today by Rick Yencer of the Muncie Star-Press begins:
MUNCIE -- Thirteen years ago last October, Tommy Ross fatally shot his ex-wife, Paula, outside Gaston Elementary School, where she had just dropped off their six-year-old daughter, Cassandra.The introduced bill is HB 1155, but as noted in the story, Tyler's plan is to amend it into another bill with a different bill number.
Convicted of murder in April 1995, Ross received a maximum 60-year prison term. In June 1999, a Blackford County jury awarded Paula Ross' survivors -- her two daughters and her parents -- $1.75 million in damages from the town of Gaston, ruling that the town's police force had done little to protect the murder victim as she was stalked, and eventually slain, by Tommy Ross.
In a recent bizarre turn of events, Tommy Ross succeeded in winning a portion of that judgment for himself when the convicted killer was awarded a third of daughter Cassandra's estate following her January 2005 suicide at age 16.
A bill before the Indiana General Assembly filed by State Rep. Dennis Tyler -- at the urging of Paula Ross' survivors -- would prevent such scenarios from playing out again. * * *
"A number of people came to me about this," said State Rep. Tyler, who said the consensus was it was "just not right" for Tommy Ross to benefit from his child's tragic death.
The bill filed by Tyler this month would change the state's estate law to prohibit a parent convicted of murder or voluntary manslaughter of a parent or adult child from receiving any share of the child's estate or insurance premiums resulting from the child's death.
"A number of other states have similar laws that are much broader in sanctioning parents who have abandoned their children," said Tyler.
While the estate bill won't receive a separate hearing, Tyler said it would be attached to a domestic violence bill that will be heard and is expected to pass out of the House.
Ind. Courts - Wrongful death trial in Ball State student's 2003 shooting to begin
Seth Slabaugh of the Muncie Star Press reports:
A jury in U.S. District Court in Indianapolis is expected to hear two completely different versions of what happened in the backyard of 1325 W. North St. around 3:30 a.m. on Nov. 8, 2003.The remainder of the story presents the differing versions of the events as presented by each side. A sidebar gives the timeline.
The six-member jury is scheduled to be selected Tuesday to hear the excessive-force lawsuit filed by Timothy McKinney, Bedford, against Robert Duplain, a former rookie Ball State University police officer who fatally shot McKinney's son, Michael.
In trial briefs filed with the court on Friday, attorneys for the two sides didn't agree at all on the facts of the case.
As representative of his son's estate, McKinney is seeking millions of dollars in damages from Duplain for loss of love, society and companionship, pain and suffering, economic damages, including loss of income and loss of life, and punitive damages.
The ILB has posted a number of prior entries on this case:
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...
Posted in The Indiana Law Blog on December 10, 2007 01:00 PM
Seth Slabaugh of the Muncie Star-Press reports today:MUNCIE -- Ball State University has spent nearly $850,000 defending its police chief, Gene Burton, and former rookie officer Robert Duplain against a federal lawsuit alleging unreasonable use of deadly force. "A portion...
Posted in The Indiana Law Blog on June 11, 2007 08:05 AM
"Court OKs Ball State shooting lawsuit" is the heading to a brief AP story posted on the Indianapolis Star website this morning. It reports:MUNCIE, Ind. -- A federal appeals court is allowing a wrongful death lawsuit to proceed against a...
Posted in The Indiana Law Blog on September 26, 2006 09:40 AM
In McKinney, Timothy v. Duplain, Robert (SD Ind., Richard L. Young, Judge), a 28-page opinion [this is the case of the Ball State student shot by police], Circuit Judge Manion writes:Michael McKinney’s father, Timothy McKinney, as representative of Michael’s...
Posted in The Indiana Law Blog on September 12, 2006 01:10 PM
Ind. Decisions - One Indiana decision today from 7th Circuit
In Prostyakov v. Masco Corp. (SD Ind., Judge Barker), an 18-page opinion, Judge Kanne writes:
The district court granted Peter Prostyakov’s petition to confirm his arbitral award against Masco Corporation and, in so doing, denied Masco’s application to vacate the award on the ground that the arbitrator exceeded his authority when fashioning it. See 9 U.S.C. § 10(a)(4). Masco appeals, arguing that the district court erred by confirming the award. Prostyakov, in turn, asserts that Masco’s appeal is frivolous, and asks us to sanction Masco by ordering it to pay for his attorneys’ fees and costs. We affirm the district court’s judgment, but deny Prostyakov’s motion.
I. HISTORY. The origins of this arbitration action can be traced back sixteen years to the dissolution of the Soviet Union. Shortly after the Soviet Empire fell in late 1991, the State of Indiana and the Moscow Oblast province co-founded a trade consortium that coordinated American businesses’ efforts to establish a market presence in the newly capitalistic Russian economy. Masco, a Michigan-based corporation that specializes in building, plumbing, and cabinetry products, joined the consortium in 1992 with the aspiration of developing a sales and distribution network throughout the nascent Russian Federation. One of the men that Masco hired to achieve this goal was Prostyakov, who, all parties agree, played a central role in developing the company’s Russian presence. In December 1995, Masco rewarded Prostyakov for his efforts by appointing him Managing Director and Agent of its Moscow-based office.
For a while Masco and Prostyakov’s business relationship went swimmingly, but then things quickly went south. * * *
II. ANALYSIS. Masco attacks the district court’s confirmation of Prostyakov’s arbitral award on the grounds that the court incorrectly determined that Arbitrator Hittle acted within his powers when fashioning it. * * *
We address Masco’s arguments with some frustration. We repeatedly have stated that we do not—and will not—review arbitral awards for legal or factual error. * * *
It is true, as Masco points out, that review is available under the Federal Arbitration Act when the arbitrator “exceeded [his] powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.” 9 U.S.C. § 10(a)(4); see also Wise, 450 F.3d at 268-69. But even then our review is extremely limited, see Baravati, 28 F.3d at 706, and we will not set aside an arbitral award so long as the arbitrator interpreted the parties’ agreement at all, see Wise, 450 F.3d at 268-69; Tice v. Am. Airlines, Inc., 373 F.3d 851, 854 (7th Cir. 2004). * * *
The pertinent issue thus becomes whether Hittle exceeded his powers by formulating an award based on an interpretation of the Agreement that was egregiously off-base, see Wise, 450 F.3d at 268-69, or through a blatant disregard of the Agreement’s choice-of-law provisions, see BEM I, 301 F.3d at 554. As we explain below, he did neither. * * *
All that remains for us to address is Prostyakov’s motion for sanctions in the form of attorneys’ fees and costs. As Prostyakov asserts, Masco took this frivolous appeal only “to delay enforcement of the District Court Judgment,” “tax [his] resources,” and “needlessly burden this Court.” See also Fed. R. App. P. 38. We are inclined to agree with those characterizations. Not only are Masco’s arguments legally meritless, but they appear to have been made disingenuously and based on misrepresentations of the record. Masco’s actions during the past ten years of this litigation—embodied by Masco’s general counsel’s petulant behavior, see supra Part I & n.1—further support the imposition of sanctions. In all, Masco has made “a mockery of arbitration’s promise to expedite and cut the costs of resolving disputes,” * * * by prolonging this matter long after it agreed with Prostyakov to settle any disputes through arbitration. We thus are tempted to grant Prostyakov’s motion for sanctions for attorneys’ fees and costs.
Nevertheless, we think it is unnecessary in this case to award attorneys’ fees and costs. Requiring the payment of attorneys’ fees and costs as a sanction serves two purposes: (1) “to protect the court from the burdens of fruitless litigation”; and (2) to prevent “the prevailing party from having to bear the cost of defending against utterly meritless contentions.” * * * Masco—as the breaching party—already has agreed to reimburse Prostyakov for attorneys’ fees and costs stemming from the litigation before both the district court and us. We need not circumvent this contractual arrangement by awarding Prostyakov a windfall of further fees and costs.
We trust that Masco will promptly contact Prostyakov and pay what it owes him. We hope our faith is not misplaced; our opinion on this matter could change drastically if Masco continues to prolong this dispute needlessly.
Ind. Courts - "Vanderburgh County Day Reporting Drug Court will hold its 25th graduation ceremony today"
Kate Braser reports in the Evansville Courier & Press:
The Vanderburgh County Day Reporting Drug Court will hold its 25th graduation ceremony today. Six participants will graduate during the courthouse ceremony.
The intensive, 18-month drug court program began in 2001, offering an alternative to incarceration for people addicted to drugs but who have not committed violent crimes. * * *
Vanderburgh Superior Court Judge Wayne Trockman said it's hard to believe he'll oversee the 25th graduation this week.
"I feel like this is one of the few really good, happy things that go on in this place," Trockman said. "Everything else I do feels like I am doing things to people, but I'd rather do things for people."
When the program started seven years ago, Trockman said drug courts were a new concept.
"Not only for this area but nationally," he said. "The movement has really caught on since probably about 2000. I think there were three drug courts in the state when we started."
Trockman said the program had to prove itself.
"There were a lot of fears in the beginning of failure and being seen as soft on crime, but most people now know that is not the case."
In just seven years, the program has gained respect beyond the county.
"We regularly have visits from other counties wanting to see how we do this," he said.
Ind. Courts - Five Allen County judges expected to announce reelection plans Wednesday
From the Fort Wayne Journal Gazette:
Filing for county and state offices in this year’s election begins Wednesday, and among the first to declare their intentions will be the five Allen Superior Court judges whose terms expire at the end of the year. Judges Fran Gull, Dan Heath, Stan Levine, Steve Sims and John Surbeck are expected to announce re-election plans Wednesday, as they did as a group six years ago. The Superior Court candidates run on a non-partisan basis in November.
Not law - On PBS tonight: "Growing Up Online"
The ILB has seen the legal implications of these societal changes reflected in online free speech cases, internet predators, cyberbullying, privacy and reputation implications, etc.
Some quotes from the PBS press release:
In Growing Up Online, airing Tuesday, January 22, 2008, at 9 P.M. ET on PBS (check local listings), FRONTLINE takes viewers inside the private worlds that kids are creating online, raising important questions about just how radically the Internet is transforming the experience of childhood. “It’s just this huge shift in which the Internet and the digital world was something that belonged to adults, and now it’s something that really is the province of teenagers, “ says C.J. Pascoe, a Ph.D. scholar with the University of California, Berkeley’s Digital Youth Project. “They’re able to have a private space, even while they’re still at home. They’re able to communicate with their friends and have an entire social life outside of the purview of their parents without actually having to leave the house.”
As more and more kids begin to grow up online, parents are finding themselves on the outside looking in, struggling to remain relevant and engaged in their kids’ lives. “I remember being 11; I remember being 13; I remember being 16, and I remember having secrets,” one mother says. “But it’s really hard when it’s the other side.”
At school, teachers are trying to figure out how to reach a generation that no longer reads books or newspapers. “We can’t possibly expect the learner of today to be engrossed by someone who speaks in a monotone voice with a piece of chalk in their hand,” one school principal says. “We almost have to be entertainers,” a longtime history teacher tells FRONTLINE. “If you look at the advertising world and the media world that they live in, they consume so much media. We have to cut through that cloud of information around them, cut through that media and capture their attention.”
Fear of online predators has led teachers and parents to also focus heavily on keeping kids safe online. But many children think these fears are misplaced. * * *
“You have a generation faced with a society with fundamentally different properties thanks to the Internet,” says Danah Boyd, a fellow at the Berkman Center for Internet and Society at Harvard Law School. “We can turn our backs and say, ‘This is bad,’ or, ‘We don’t want a world like this.’ It’s not going away. So instead of saying that this is terrible, instead of saying, ‘Stop MySpace; stop Facebook; stop the Internet,’ it’s a question for us of how we teach ourselves and our children to live in a society where these properties are fundamentally a way of life. This is public life today.”
Monday, January 21, 2008
Law - "Bella is bewildered about blogs"
A reader has pointed me to this 26-page booklet by a Wisconsin reference librarian. It begins:
Once upon a time, in the great city of Milwaukee, lived a brilliant legal professional named Bella. Bella was part of the litigation practice group at Big, Bold & Smith, s.c. Every Monday the group met to discuss current issues. One Monday, a colleague named Greg informed everyone of a recent decision that could affect the outcome of a large case the firm was handling. After the meeting, Bella asked, “How did you hear about that case?” Greg answered, “I saw it on a blog I monitor.”The booklet references this article in the Wisconsin Lawyer, titled "BLOGS - Another Online Resource."
Bella was curious. “I keep hearing about blogs, but aren’t they just pages where friends share stuff happening in their lives?” Greg responded, “No, I mean professional and news blogs!”
And, for how to read a blog once you've found it, the ILB recommends its own entry, originally published in 2004, titled "How to Read a Blog."
Ind. Courts - Randy Williams To Run For Tippecanoe Judge
A long-time Lafayette attorney is running for Superior Court Judge. Randy Williams, 51, formally announced his candidacy for Superior Court One Friday. * * *
Williams is running for the seat currently held by Judge Don Johnson. Johnson is not seeking re-election. Attorney Rebecca Trent also plans to run for the seat as an independent.
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This Thursday, Jan. 24th:
9:00 AM - Liberty Publishing, Inc. v. Carter - The trial court issued orders enforcing the Attorney General's petitions to enforce Civil Investigation Demands directed at Nu-Sash of Indianapolis, Inc. and others. The Court of Appeals affirmed, holding the Attorney General satisfied requirements for issuance and enforcement of the demands. Liberty Publishing, Inc. v. Carter, 868 N.E.2d 1142 (Ind. Ct. App. 6/25/2007), vacated. [See ILB summary here - 2nd case.] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Nu-Sash; Preston T. Breunig and Martha L. Westbrook both of Indianapolis, IN. Attorney for Carter; Thomas M. Fisher and Julie A. Brubaker both of 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:
Law - "Reading the law" not enough to take bar exam in most states
A story by Jerry Harkavy of the AP, that appeared this weekend in the Boston Globe, reported:
Self-taught lawyers have all but vanished in recent years, ending a tradition stretching back to frontier days, when prospective attorneys "read the law" under the tutelage of a practicing lawyer. Most states now require law degrees to join the bar.For more on this topic, here is an ILB entry from Oct. 11, 2004, headed "'Reading the law' still an option in California," quoting from an LA Times story.
The best-known self-taught attorney was Abraham Lincoln, who began his studies after getting elected to the Illinois Legislature in 1834. He borrowed legal books from a fellow lawmaker.
Barry Melton, lead guitarist and co-founder of the 1960's counterculture band Country Joe and the Fish, dropped out of college in his freshman year during the Vietnam era to become a self-described "full-time anti-war dissident (with a guitar)."
While on the road with his band, he took a correspondence course in law and was admitted to the California bar in 1982. He now heads the public defender's office in Yolo County.
States that still allow law-office study include California, Maine, New York, Vermont, Virginia, Washington and Wyoming. The options are even fewer for correspondence study, which is allowed only in California, New Mexico and the District of Columbia.
The number of self-taught lawyers has dropped, even as a wealth of material about the law has become available on the Internet.
Nationwide, only 44 applicants who did law-office study took the bar exam in 2006, the last year for which figures are available. Of those, 18 passed, a success rate of 41 percent, according to the National Conference of Bar Examiners.
By contrast, 74,215 people with law-school degrees took the test, and 71 percent were successful. * * *
Maine still allows established self-taught lawyers to practice, but new attorneys must now have at least two years of law school. That means students can forgo their final year.
The only advantage of doing so would be financial, said Cheryl Cutliffe, executive director of the Maine Board of Bar Examiners. "Some people may be in a position where they could go to work for a family law firm and save the third-year tuition."
Peter Pitegoff, dean of the University of Maine School of Law, said he knew of no one who ever dropped out of law school to pursue an apprenticeship.
"The idea of reading for the law is a romantic old notion," he said. "And there's something to be said about the benefits of that kind of integration of legal education with practice."
But, Pitegoff said, law schools have been moving in that direction, especially in the third year, when students have more opportunities to apply what they learn under close faculty supervision.
Ind. Courts - "Deputies say Porter courthouse bushes a weapons stash"
James D. Wolf Jr. of the Gary Post-Tribune reports:
VALPARAISO -- During a routine check of the bushes around the Porter County Courthouse last week, Cpl. Jackie Hrezo found a dirty pair of brass knuckles.
She put them into the collection in the fourth-floor office, where she and other sheriff's deputies, who guard the courthouse, keep the weapons they either find on people coming into the courthouse or that people have stashed in the bushes around the building.
"I check every so often," Hrezo said about the bushes.
About eight years ago, she found a deteriorated gun in the bushes at the Portage courthouse, she said.
The officers' collection from 2007 includes a glass pipe, possibly used to smoke crack, that a maintenance person found under the bushes.
The brass knuckles could have been there for a while, exposed by the rains and thaws, Officer John Dobbins said. * * *
Most common in the bushes are the cell phones hidden around the courthouse.
People get dropped off, and cell phones aren't allowed in the court building because recording devices are illegal in court and there are stun guns and pistols disguised as phones now.
"The only trouble we have is people don't read the signs out there. They ask if they could just turn them off," Lt. Dennis Replin said.
Ind. Law - "Pro bono spirit catches Evansville area lawyers"
Kate Braser of the Evansville Courier & Press reports:
The next time a colleague at the water cooler grumbles about attorney fees, bear in mind some lawyers are providing legal services for free.
Area attorneys were given a challenge — and offered an incentive — to provide free legal counsel in 2007.
As a result, 25 attorneys throughout Southwestern Indiana each provided more than 50 hours of pro bono, or free, legal services through the Volunteer Lawyer Program of Southwestern Indiana, Inc.
Their efforts were partially in response to a challenge encouraging attorneys to reach 50 hours of pro bono representation, which is the amount recommended by the American Bar Association.
As a reward, attorneys who reported 50 or more pro bono hours last year will receive a discount on continuing education fees through Indiana Continuing Education Forum and the Evansville Bar Association during 2008.
Ind. Gov't. - "Legislative hearings lack cushy confines"
John Byrne of the Gary Post-Tribune writes today about legislative committee meeting rooms, mentioning the same things the ILB remembers -- they are always too small to get a seat -- belying the label of "public" meeting. A quote:
Glorified broom closets often host the legislators and crowds of interested officials, lobbyists and citizens (aka noncombatants) there to testify about the merits of a particular bill.
Chairs are fought over jealously in these meetings, with VIPs sending flunkies ahead to stake claims, and ostentatious briefcases left on seats as territorial markers long before testimony begins. * * *
The handful of remaining chairs were quickly snatched up, leaving a man who had made a special trip to the Statehouse for Daniels' appearance griping about getting cut out of the governmental process.
"I drove up here from Evansville for this?" the guy shouted. "So I can stand out in the hall and watch on TV? Where are the seats?"
Sunday, January 20, 2008
Ind. Courts - "Stalbrink Seeking LaPorte Superior Court 2 Spot"
From the Michigan City News-Dispatch:
MICHIGAN CITY - Rich Stalbrink, a magistrate with the La Porte Circuit Court, has announced that he is seeking the Democratic nomination as judge of Superior Court 2. Judge Steven King currently holds the position, but is not seeking re-election.
Stalbrink, who began his law career in 1991 as a clerk for King and former Judge Walter Chapala, said the decision to run was easy.
"Judge King has held that office with distinction for 18 years. To have the opportunity to come full circle and return to Superior Court 2 as a judge is both remarkable and exciting. I'm ready to carry on the strong tradition Judge King has established," Stalbrink said.
Environment - "The variety of threats Lake Michigan faces"
Heather Augustyn of the NWI Times reports:
VALPARAISO | Members of the League of Women Voters listened to a guest speaker on a freezing Saturday morning talk about the variety of threats Lake Michigan faces.
Jeanette Neagu, co-president of the Lake Michigan Interleague Organization, which is part of the league, presented slides and facts about legislation, economics and the health of the Great Lakes Basin. * * *
The Great Lakes comprise 20 percent of the world's freshwater supply, she said.
"But the Great Lakes are a nonrenewable resource. You can't just drain it indefinitely," Neagu said. "They were formed by our glaciers, and you have to think in terms of future generations. We don't have a right to steal such a treasure."
Among the threats to the Great Lakes are new export and diversion schemes, such as shipping Great Lakes water to other countries and bottling water, as well as building pipelines to the South and Southwest and refilling the Ogallala Aquifer, she said. The Ogallala Aquifer extends northward from western Texas to South Dakota.
Other threats include toxic pesticides, invasive species that ballast water from the shipping industry brings, raw sewage and wetland losses.
"We're not against industry, because we know jobs are hard here, but the (Environmental Protection Agency) needs to look at all of the permits given when they consider a single permit. Consider the cumulative impact of every permit," Neagu said.
Ind. Decisions - "Questioning mandatory minimums in sex predator cases"
Joe Carlson of the NWI Times reports today:
HAMMOND | Though their crime may be heinous, every person convicted of soliciting sex from young children over the Internet might not deserve to spend a full decade in prison, one local judge argues.For background, see these ILB entries on the Hensley case.
"I happen to think a 10-year minimum is too high in these cases. There has to be more leeway," U.S. District Judge Philip Simon said in Hammond federal court earlier this month. "I just think it's out of whack, and I think Congress has it flat wrong."
Simon made the statements recently during the sentencing of Matthew Hensley, a former assistant Andrean girls' basketball coach convicted of using multiple online identities to find young girls for sex. Simon actually sentenced Hensley to slightly more than the 10-year minimum but took the opportunity to criticize the mandate nonetheless.
In a federal district that has taken an aggressive approach to Internet enticement cases, other observers of the 10-year mandatory minimums for Internet child enticement could not be more opposed to Simon.
"The way you create deterrence is to increase the penalties," said Assistant U.S. Attorney Philip Benson, who has prosecuted many such cases in the past year. "The mandatory minimums for these Internet child-enticement cases are entirely appropriate."
Until summer 2006, federal law required that people convicted of using Internet chatrooms to convince young children to expose themselves or meet for sexual liaisons serve at least five years in prison.
That changed July 27, 2006, when the president signed the Adam Walsh Act, forcing judges to impose a minimum 10-year prison sentence for the same crime.
One month later, federal prosecutors in Northern Indiana brought charges against 24 men for Internet child enticement.
A Times review of those cases found that 13 of the men were sentenced to 10 or more years in prison, with virtually no difference in sentences between those who pleaded guilty and those who forced the government to put them on trial.
Eight of the cases are pending, and three were dismissed for reasons of mental competency.
None of the men have been acquitted.
Legislative Benefits - More on "Legislator to Lobbyist" slowdown bill gets cold shoulder
Lawmakers know how unhappy Hoosiers are about property taxes. Now they need to hear how we Hoosiers feel about the perks and privileges that ultimately influence those bills. A legislative seat carries with it prime seats alongside lobbyists at Colts and Pacers games, at college games in Bloomington and West Lafayette. It yields Indy 500 tickets and dinners at Indianapolis’ expensive St. Elmo Steak House.A side-bar lists the bills:
And here’s where the legislators have no real defense: the part-time job can convert easily and immediately to a well-compensated post in a powerful lobbying firm.
Stricter ethics regulations don’t require months of public testimony, fiscal analysis and debate. Move it from committee and put it to a vote. Require legislators to go on record for or against higher ethical standards.
Bills are in place: Two have been filed in the Senate, and in the House one incorporates both the gift limits and lobbying restrictions of the Senate bills. The latter, House Bill 1063, is the strongest. Co-authored by Phyllis Pond, R-New Haven, and John Day, D-Indianapolis, it would prohibit all gifts from lobbyists and would set a two-year restriction on former lawmakers who want to register as lobbyists. Fort Wayne Democrat Win Moses signed on as a co-sponsor last week.
When the powerful House Ways and Means Committee met at South Side High School on Jan. 9 to hear testimony on the governor’s tax proposal, lobbyist Robert Kuzman was front and center as the lawmakers gathered. Just last spring, Kuzman, a Crown Point Democrat, was the committee’s vice chairman. Now he has relocated to Indianapolis and lobbies former colleagues on behalf of clients for the Indianapolis law firm Ice Miller, many of whom have a big stake in state tax policy.
Kuzman moved from the House floor to Statehouse hallways already crowded with former lawmakers, including Thomas Fruechtenicht, Matt Whetstone, Phil Bainbridge, Markt Lytle, Michael Smith, Mike Phillips, Marc Carmichael, Sam Turpin, Brian Hasler, Pat Kiely and Paul Mannweiler.
Gift restrictions are another easy call. Lawmakers insist they aren’t influenced by meals, game tickets and trips paid for by businesses. But the best way to prove it is to stop accepting them. What better way to demonstrate empathy for tax-strapped constituents than to remove all doubt of undue influence? And trust us: The failure of legislators to use free tickets to a basketball game at a school whose funding they are deciding will not be lamented, their presence not missed.
The odds aren’t good for the legislation. The Senate lobbying bill, with only a one-year “cooling-off” period, met opposition Wednesday in the Commerce and Public Policy Committee. The committee chairman said the bill needed its own cooling-off period. He didn’t call it for a vote, essentially assigning it to oblivion.
Stricter ethics laws need no more consideration. Legislators who think otherwise should look to the lobbyist scandals in Alaska and Tennessee to see how their own reputations might be tarnished by misdeeds in their midst. They can enhance the General Assembly’s reputation with voters by first approving strict and straightforward restrictions on gifts and lobbying. Then they can get to the hard work of fixing property taxes.
Senate Bill 59: Reduces from $100 to $25 the minimum reportable amount for total daily gifts to a legislator or a legislative employee given by a registered lobbyist or a single gift received by a legislator or legislative candidate.Matthew Tully, Indianapolis Star columnist, writes today:
Senate Bill 165: Provides that an individual who has served as a member of the General Assembly may not register as a legislative branch lobbyist during the period that ends one year after the date the legislator leaves.
House Bill 1063: Provides that a member of the General Assembly, a candidate for a legislative office, an officer or employee of the General Assembly or a member of the immediate family of any of those individuals may not accept a gift from a lobbyist. Provides that a lobbyist may not give a gift to any of these persons. Provides that violations of any of the prohibitions on giving or accepting gifts is a Class B misdemeanor. Provides that an individual who has served as a member of the General Assembly may not register as a legislative branch lobbyist during the period that ends two years after the date that the individual ceases to be a member.
[I]t's hard to find a place where the influence of special-interest lobbyists is more pervasive than at the Statehouse.
It's a place where lobbyists roam the halls outside the House and Senate chambers, knowing a lawmaker's ear is only one drink or one meal away, and where people who were lawmakers just last session can now be found exploiting their connections and former political posts for one special-interest client or another.
Many lawmakers say this year's political environment demands they spend this session focused on the needs of average Hoosiers. Still, plenty of clients are paying plenty of lobbyists plenty of money to prowl the Statehouse halls.
There's a reason for that: Lawmakers listen to lobbyists.
I have nothing against lobbyists. Most are simply working hard like everyone else to pay the bills. But their supersized influence at the Statehouse should offend every Hoosier.
So this year, with all the lofty rhetoric about the need to focus on Hoosier homeowners, lawmakers should take these steps:
• Pay for your own meals. Lawmakers love to say they can't be bought with a steak dinner. Well, prove it. Pay for your dinner like the rest of us.
• If you want to go to a concert or a Pacers game or anywhere else, buy a ticket instead of taking a free one from someone paid to sway you.
• Disclose conversations with lobbyists. If you talk to a lobbyist, disclose it on your taxpayer-funded Web site. There's nothing wrong with talking to a special-interest group, but be open about it.
Back in the mid-1990s, when I was a cub reporter covering the legislature for the Gary Post-Tribune, I saw something that's stuck with me ever since. It was after dark one night, and then-Sen. Sandra Dempsey, R-Munster, was walking out of the Statehouse. At the bottom of the front steps, two lobbyists waited for her in a car. She laughed as she got in the car, and they drove off to dinner as if they were all best friends.
Too cozy, I thought.
State Rep. Mike Murphy, R-Indianapolis, joked the other night that lobbyists treated him like a prince when he sat on the powerful House Ways and Means Committee.
"You could eat at St. Elmo every night," he said.
He laughed. But, really, it wasn't funny.
Ind. Courts - "Revised law in play on Wilkes sentence"
Kate Braser of the Evansville Courier & Press reports today:
Vanderburgh Circuit Court Judge Carl Heldt will decide this week whether Daniel Ray Wilkes will be put to death for the murders of an Evansville mother and her two young daughters.
State death penalty experts said Heldt's ruling could mark the first time an Indiana judge has had to make such a decision since state law was changed in 2002.
That change requires a judge to follow a jury's sentencing recommendation in the case. Before that, judges needed only to consider the jury's recommendation, but could enter a different penalty in a capital murder case.
Last month, 12 jurors seated to hear the trial in Clark County, Ind., convicted Wilkes of three counts of murder in the April 2006 slayings of Donna Claspell and her daughters, 13-year-old Avery and 8-year-old Sydne.
In the penalty phase of the trial, the jurors deliberated for more than five hours before telling Heldt they were hopelessly deadlocked 11-to-1 over the decision regarding what penalty Wilkes should face.
Heldt will pick up where those jurors left off during a sentencing hearing scheduled for 10:30 a.m. Friday.
Defense attorneys have previously said they believe the situation will result in interesting legal issues. They said in some other states, laws require a judge to sentence a defendant to life in prison without parole when a jury cannot reach a unanimous decision regarding the death penalty.
That is not the case in Indiana. Here, laws require that if a jury cannot reach a unanimous verdict about the penalty in a capital murder case, the trial judge alone shall determine the sentence. * * *
Clark County, Indiana, Prosecutor Steve Stewart keeps detailed records of state death row cases, compiling them into books.
"No judge has been in this position to my knowledge since the law changed in 2002," he said of the decision Heldt must make this week.
Stewart said Heldt likely will consider the aggravating factors cited by Levco.
"In the normal case, if a jury is hung on the penalty phase, there will be no jury unanimously saying an aggravating circumstance existed," Stewart said. "But there are some cases where that unanimous finding will be inherent at that point in the trial. This may be the case in this case."
Stewart explained that because the jury already found Wilkes' guilty of the three murders and because Sydne Claspell was 8 years old, there is little question those aggravators were likely unanimously agreed to by the jury.
"That is sufficient to satisfy the requirements of the law, and enough to put this decision squarely in the hands of the judge," he said.
Ind. Law - Last Week in Review at the Indiana General Assembly
The Evansville Courier & Press' Bryan Corbin's review of the past week in the General Assembly today is headlined "Taxes remain atop agenda: Same-sex marriage amendment is back." The story begins:
Property tax relief continues to dominate lawmakers' time and attention at the Indiana General Assembly. But one of the most controversial issues from last year's session — defining marriage in the state constitution — could confront lawmakers in the week ahead.
Saturday, January 19, 2008
Environment - "FEMA Offers Refunds on Toxic Trailers"
The Federal Emergency Management Agency (FEMA) will offer refunds to people who bought toxic FEMA trailers. The toxic FEMA trailers issued to Hurricane Katrina survivors are contaminated with formaldehyde. FEMA’s prior recommendation for fixing the problem was for families to open windows and turn on the air conditioner. Despite mountains of evidence to the contrary, David Paulison, FEMA’s administrator said, “I don’t know that the trailers are causing” any sickness. The federal government began selling trailers in 2006 through online auctions and to victims of the devastation of Gulf Coast hurricanes Katrina and Rita. Sales were suspended last July due to concerns over formaldehyde, which can cause respiratory problems. Hundreds of people in Louisiana and Mississippi are suing manufacturers, accusing them of providing FEMA with toxic trailers that contained high levels of the toxin. * * *
Terry Sloan was a floor supervisor at a Gulf Stream Coach factory in Etna Green, Indiana. Gulf Stream Coach built over 50,000 stripped-down travel trailers. Sloane says his crew worked at a breakneck pace for months, which, he says, forced the company to use cheaper wood products. “Quality suffered dramatically because of the drive and pressure to put these trailers out,” Sloan said. Gulf Stream Coach issued a statement that said, in part, “For the FEMA trailers, it used components and materials that met or exceeded industry standards.”
There are no federal standards for formaldehyde; however, the Environmental Protection Agency (EPA) recommends a workplace exposure limit of .1 parts per million. Last year the Sierra Club tested 31 travel trailers in Mississippi and found virtually all 94 percent had formaldehyde levels exceeding that limit. CBS News also received information about an internal FEMA document citing cancer as a potential job hazard for those inspecting the trailers.
Ind. Courts - In the news: Evansville's Old Courthouse; Allen County Courthouse insurance
"More uses pitched for courthouse" is the headline to a story today by Thomas B. Langhorne of the Evansville Courier & Press. Some quotes:
The movement to renovate and reinvigorate Evansville's Old Courthouse is picking up supporters.* * *"Courthouse insurance increased: New policy covers contents, including fine art, marble," is the title to a story today in the Fort Wayne Journal Gazette reported by Amanda Iacone:
The Old Courthouse at Third and Vine streets, one of Evansville's most recognizable structures, has fallen in disrepair over the years. That has prompted its guardians at the private, nonprofit foundation to seek money from public and private sources for a comprehensive overhaul that would cost millions and take years to complete.
At the same time, the County Commissioners are pushing to maximize rent paid to the county by Old Courthouse tenants by encouraging foundation board members to contract with a commercial real estate agent to lease the building's vacant spaces.
About 60 percent of spaces in the Old Courthouse are leased at a rate of $8 to $10 per square foot. But rent and special event fees didn't keep pace with the county's expenses for heating, cooling, electrical and general maintenance of the 15,500-square-foot building in 2007.
Were the fine art that hangs in and is part of the Allen County Courthouse to be damaged in a fire, the county will be able to pay to repair or replace it despite changes to the county’s insurance.
The county commissioners Friday approved changes to their insurance policy that covers county buildings and contents. The updated policy increased the total coverage for the Courthouse and other buildings to the tune of $407 million and will provide continued coverage for the restored Courthouse.
Overall, the county will now pay $626,000 a year to provide general insurance for vehicles and protection against crime. That coverage will also give the county a way to repair or replace damaged buildings and fine art, said Cathy Serrano, county risk manager.
The updated insurance would allow the county to replace the marble with marble to mirror the rest of the Courthouse if a portion of the building were damaged. If the entire courthouse were destroyed, the county would get a big enough check to build a modern structure, Serrano said.
But the Courthouse and the fine art could never truly be replicated. The artists are dead and some of the stone and materials are no longer available, she said.
The county put out its insurance to bid, something that should be done every two to three years. Covering the Courthouse and its artwork cost an additional $13,000 compared with another bidder that did not offer to provide any coverage for the Courthouse or its contents, Serrano said.
Commissioner Bill Brown said the new coverage was the best deal for Allen County taxpayers because it would cover the fine art, worth $34 million, for a nominal amount.
The Courthouse was appraised to be worth $107 million. An $8.6 million renovation of the Courthouse was completed in time for its 100th anniversary in 2002.
Ind. Decisions - 7th Circuit allows challenge to death-row interview ban
SOUTH BEND, Ind. -- A federal appeals court has ruled an inmate can challenge a Bureau of Prisons policy prohibiting death row inmates from giving face-to-face interviews with the media.
The policy was adopted seven years ago after Oklahoma City bomber Timothy McVeigh appeared on "60 Minutes."
A three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago ruled Tuesday that U.S. District Judge John Tinder in Indianapolis erred when he dismissed the 2004 lawsuit by David Paul Hammer in a summary judgment in February 2006.
Ind. Courts - More on "Markley resigns as Bluffton City Court judge"
In the four years between the time he won his last election and then lost his seat, former Bluffton City Court Judge Lyle Cotton said he never saw his successor in the courtroom.
Cotton defeated Gary Markley for the seat in 2003, but then lost to him last November.
Markley took office Jan. 1 and quit 14 days later. The part-time job pays less than $9,500 and involves handling traffic tickets, ordinance violations and other small civil matters.
On Jan. 15, Markley submitted his resignation to Bluffton Mayor Ted Ellis, blaming poor record keeping by his predecessor, Markley’s own “limited technology skills” and a “lack of knowledge of the requirements of the court system,” according to his resignation letter.
“I deeply regret have (sic) to make this decision, but I feel it is necessary for the good of the Court system and the City of Bluffton,” Markley wrote in his letter. “My sincere apologies to my supporters and the City of Bluffton, Indiana.”
Cotton said Markley would have learned a lot more had he shown up for a tutorial before Dec. 27, when he came into Cotton’s office and asked the longtime judge to show him a few things.
“If he was interested in being judge, he never darkened the door of my court to come and find out anything about the court,” Cotton said.
Markley did not return phone calls seeking comment Friday.
Gov. Mitch Daniels will appoint Markley’s replacement, but as of Friday afternoon his office had not yet received a copy of Markley’s resignation letter, officials said.
Because he never talked to Cotton before he took office, Markley just didn’t know what he didn’t know, Cotton said. * * *
For now, [Mayor] Ellis asked the city’s police department to stop writing traffic tickets through the city court until a new judge is appointed. Ellis said he also has been working with the city attorney on the court’s docket.
“We’re a little unclear on this, but I think we’re probably OK to just push everything out for six weeks,” Ellis said. “I’m trying to get a handle on how long this process is going to take.”
He said he hopes Daniels makes an appointment quickly so the court can resume.
As to Markley’s claim of poor record keeping by Cotton and his staff, both Ellis and the former judge said the court is routinely audited by the State Board of Accounts and that it passed its most recent examination late last summer.
“Five months, it’s gone to pot like (Markley) says?” Cotton asked. “I was doing the same kind of work, as always before.”
Cotton credits his loss to subtle assertions by Markley that, at 79, Cotton was maybe a bit too gray for the job, saying Markley assured voters he would be able to serve a full four-year term.
“I will be 80 in April,” Cotton said. “That’s never been hidden.”
If anyone ever asks Cotton to take over the job again, he’s not interested.
“No way,” he said. “I’m enjoying where I’m at.”
And he feels bad for the situation the city now finds itself in.
“They’ve got a mess on their hands,” Cotton said. “It will take many hours and cool heads to get it straightened out.”
Ind. Gov't. - Indiana State Board of Accounts audit reports available; Scott treasurer focus of inquiry
Today the Louisville Courier Journal has a story by Grace Schneider that begins:
SCOTTSBURG, Ind. -- A Scott County judge has appointed a special prosecutor to investigate criminal allegations against county Treasurer Bonnie Comer involving how she has kept track of county funds.Here is a link to the supplemental report filed 12/28/07.
The action that could cost Comer her job follows a scathing review last month from the Indiana State Board of Accounts detailing numerous problems in Comer's office, including a $731,000 conflict between what county ledgers showed and the county's bank deposits.
Scott County leaders said this week they don't believe any money was misappropriated.
"There's never been any indication (that) Bonnie took any money," said county attorney Robert Houston.
The county has an annual budget of about $18 million.
State auditors notified Comer six weeks ago that they intended to advise Scott County Prosecutor Jason Mount of the problems and of two potential violations that could force her from office if she were convicted, Houston said.
Comer, asked Wednesday about the situation, said she was unaware that a special prosecutor had been appointed. In a brief phone call later, she said, "I haven't done anything wrong," and declined to comment further.
Comer is in the last year of her second four-year term as treasurer, a job that pays $39,319 a year. She is barred by a state term-limits law from seeking re-election.
In written responses to the auditor's reports, Comer defended herself vigorously.
"I did not take this job to intentionally destroy the county financially," she wrote in response to the latest report. "I do not think the county is any worse off for my holding this job. I have not nor will I ever take money from anyone or any entity."
The reports and responses are posted on the agency's Web site, www.in.gov/sboa/resources/reports.
The ILB was impressed to find that all Board of Accounts reports filed after July 1, 2006 are available online for immediate download, and that reports from prior years, all of which may be located via the SBA database, will be emailed or mailed to you upon request.
Ind. Courts - Montgomery County Superior Court judge David Ault runs for fourth term
Jay Heater of the Crawfordsville Journal Review has a long story today on Judge David Ault's announcement that he is running for a third term. A quote:“Those 18 years have given me a chance to have a much deeper understanding how law intersects with people’s everyday lives,” said Ault, who was elected as the first judge of the newly-created Superior Court in 1990 and since has won re-election twice. “Everyone gets their day in court, and no case is more important than your case.”
Although he is proud of his 18 years of service, Ault said he still wants to do more to serve Montgomery County. Therefore, he announced on Friday that he will seek the Republican nomination for re-election as judge of Montgomery County Superior Court I.
Courts - Is "pleaded" or "pled" the proper usage?
An interesting question, one that the ILB has mulled over in the past.
David Lat of Above the Law polled readers on the question yesterday afternoon. "Pled" is currently leading, 2 to 1. But take a look at the comments - some are quite informative, convincing the ILB that "pleaded" may be preferable.
Ind. Courts - Reports on bills of interest to the Judiciary discussed this week
The Indiana Judicial Center has now posted its second installment of very useful reports for 2008 on bills of interest to the Judiciary. Access them here.
Ind. Decisions - "Billboards will be history" - agreement filed Friday in Superior Court
See this ILB entry from May 3, 2006 on the denial of the petition for rehearing in Metropolitan Development Commission of Marion Co. v. Pinnacle Media, LLC for background. Here is a long list of all ILB entries referencing Pinnacle Media.
Today Jeff Swiatek of the Indianapolis Star reports on the front-page of the business section:
Ten in-your-face interstate billboards in Indianapolis that were subjects of an 8-year-old lawsuit over their legality finally will be torn down.
And the city itself may end up doing the honors because the billboard company that erected the signs has gone out of business.
"Those signs are going to come down very shortly," Chris Cotterill, the city's corporate counsel, said Friday.
An agreement between the city and billboard owner Pinnacle Media, filed Friday in the environmental division of Marion Superior Court, gives the city the right to remove the large, free-standing signs, which sit on steel poles with the girth of century oaks.
The city sought the right to remove the signs on its own because Pinnacle hadn't done it, despite being ordered by the court last fall to remove them, Cotterill said.
Pinnacle did remove the advertising displayed on the signs. The signs went blank in late November, said Pinnacle's attorney, Alan S. Townsend. But he said Pinnacle doesn't have the money to take down the huge signs. Each costs an estimated $10,000 to tear down, Cotterill said. * * *
The agreement gives the city the right to bill Pinnacle for the cost of tearing down the signs. But Pinnacle doesn't have the money to pay for the tear-down, so "we're working with the city . . . to find a buyer for the signs" that will be allowed to keep the signs if it removes them, Townsend said.
Cotterill said, "We're looking to find a no-cost option to remove them . . . so the taxpayer doesn't have to pay $1." He said Mayor Greg Ballard, who took office this month, ordered the city's legal staff to push Pinnacle to remove the billboards. "He took a keen interest in this," Cotterill said.
Pinnacle's battle with the city galvanized some Indiana business leaders to side with the billboard company. Pinnacle charged that the city retroactively passed zoning that banned the billboards, after Pinnacle already had received approval from the Indiana Department of Transportation to erect the signs on public rights-of-way that weren't zoned. They were erected along I-69 and I-465 and the inner legs of the city's interstate web.
The city contended it could still order that the billboards be taken down because they hadn't actually been erected at the time the ban was passed.
After two lower courts ruled in Pinnacle's favor, the state Supreme Court in 2005 ruled that Pinnacle shouldn't have been allowed to erect the billboards because the city zoning rule was passed in time to stop them.
Friday, January 18, 2008
Ind. Decisions - Transfer list for week ending January 18, 2008
Here is the Indiana Supreme Court's transfer list for the week ending January 18, 2008. Be sure to view all 5 pages.
Four transfers were granted this week. See this ILB entry from earlier today for three of them.
Tewell v. State is also on today's list, although transfer was granted last Friday, Jan. 11th. See this ILB entry.
Notable among the decisions denied transfer this week is the case of Guardianship of Patrick Atkins, Brett Conrad v. Thomas and Jeanne Atkins. See the ILB summary of the June 27, 2007 ruling here. See also this ILB entry headed "Indy Star discovers Atkins guardianship/visitation rights dispute" from Aug. 6, 2007.
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 0 today (and 3 NFP)
For publication opinions today (0):
NFP civil opinions today (0):
NFP criminal opinions today (3):
Ind. Courts - "Tippecanoe County Judge Seeks Re-Election"
From News 18, news that Superior Court Two Judge Tom Busch is seeking a second term. "Busch is the first person to announce his candidacy for Superior Court Two Judge. There is no word on if he will face any challengers."
Ind. Decisions - 7th Circuit issues one Indiana decision today; ruling notes government's "win" is a tarnished one
In United States v. Randall Brewington (SD Ind., Judge McKinney), a 5-page opinion, Judge Evans writes:
In early 2006, while serving a state prison sentence in Indiana, Randall Brewington received word that he had been indicted on criminal charges in federal court. The notice he received was in a detainer filed against him by the United States Marshal. Upon its filing, Brewington tried to assert his rights under the Interstate Agreement on Detainers (IAD), which would have required that he be brought to trial within 180 days of the receipt of his demand by the “prosecuting officer” and the “appropriate court.” The “prosecuting officer,” here the office of the United States Attorney for the Southern District of Indiana, received Brewington’s demand, but for reasons not apparent in the record, the “appropriate court,” the United States District Court for the Southern District of Indiana, never did. When Brewington was brought to court more than 180 days after the U.S. Attorney received his demand, he moved to dismiss the indictment, claiming a violation of his rights under the IAD. Because the district court had not received Brewington’s demand, his motion was denied. After losing out on his motion, Brewington entered a guilty plea to a charge of possession of a firearm by a felon but reserved his right to challenge on appeal the denial of his motion to dismiss. Brewington now appeals from the order denying his motion. * * *
In closing, we note that counsel for the government, when asked during oral argument why Brewington’s demand provoked no response, was unable to supply a clear answer. Perhaps, he said, it was because the responsibility for acting upon IAD demands is not vested in one person within his office but instead is “diffused.” And therein, we think, lies the problem. Although the government comes out of this case with a “win,” it’s a tarnished one. Its handling of Brewington’s demand under the IAD is nothing to be proud of.
For these reasons, we AFFIRM the judgment of the district court.
Ind. Decisions - Court grants transfer in three cases
The formal transfer list will follow later today, but the ILB has received notice that three cases have been granted transfer:
Technisand, Inc. v. Jessie Melton - a 7/11/07 NFP decision: "The trial court did not err by denying Technisand’s motion for summary judgment. While the statute of limitations had run with respect to a wrongful death claim against Technisand, the claim against it was timely filed with respect to the Products Liability Act."
Darrel Maymon v. State - a 7/24/07 opinion where the Court stated the issue as "whether he received effective assistance of trial counsel when his attorney failed to move to sever the four charges," and reversed. Reh. 10/24/07
Environment - "Coal is no longer on front burner" in many states
"Coal is no longer on front burner: The rush to build power plants slows as worries grow over global warming, building costs and transportation" is the headline to a lengthy front-page story today by Judy Pasternak in the LA Times. A few quotes:
WASHINGTON -- America's headlong rush to tap its enormous coal reserves for electricity has slowed abruptly, with more than 50 proposed coal-fired power plants in 20 states canceled or delayed in 2007 because of concerns about climate change, construction costs and transportation problems.See this Nov. 20, 2007 ILB entry headed "Indiana Utility Regulatory Commission Gives Duke Energy Indiana Approval to Build Integrated Gasification Combined Cycle Plant."
Coal, touted as cheap and plentiful, has been a cornerstone of President Bush's plans to meet America's energy needs with dozens of new power plants. Burned in about 600 facilities, coal produces more than half of the nation's electricity.
But urgent questions are emerging about a fuel once thought to be the most reliable of all. Utilities are confronting rising costs and a lack of transportation routes from coal fields to generators, opposition from state regulators and environmental groups, and uncertainty over climate-change policies in Washington.
"Coal projects need more regulatory certainty before any new ones are going to get built in the near future," said David Eskelsen, a spokesman for PacifiCorp, which serves more than 1.6 million customers in six Western states. "The current situation does make utility planning very challenging." * * *
This fall, regulators in Kansas and Washington state denied applications for coal plant permits because of concerns about carbon dioxide emissions.
After Republican Florida Gov. Charlie Crist said in October that he wasn't a "fan" of coal, utilities postponed plans to build coal plants in Tampa and Orlando.
Xcel Energy has told Colorado officials that it plans to close two coal plants and add 1,000 megawatts of wind and solar power, in addition to a new natural-gas plant. The company wants to cut its carbon dioxide emissions 10% by 2015.
In Nevada, Sierra Pacific Resources delayed construction of a coal plant and moved up the schedule for a natural-gas-powered plant instead.
The Tennessee Valley Authority decided in August to add a $2.5-billion unit to a nuclear power plant rather than construct a new coal facility -- the other main option -- because of the uncertain economics.
Altogether, 53 coal-fired plants were canceled or delayed in 2007, according to Global Energy Decisions, a private consulting firm that tracks power plants for the Department of Energy.
In the near term, coal clearly will remain a part of the American energy picture. Even as the postponements and terminations pile up, plans for new coal-fired power plants continue to advance in New Mexico, Mississippi and Indiana.
Although TXU Energy canceled eight coal-fired power plants it had proposed in Texas, the utility is going ahead with three others.
Last month, an energy industry consortium announced plans to build a government-subsidized power plant in southern Illinois to demonstrate low-emissions coal technology. But the ballooning cost of the FutureGen plant -- now projected to be about $1.8 billion, nearly double its original estimated price tag -- has drawn criticism from the Department of Energy, which could delay or kill the project by withholding funds. * * *
A recent study by the industry-funded Electric Power Research Institute projects that coal power will cost more than nuclear power or natural gas by 2030 if coal's carbon dioxide problem is solved the way most experts envision. Still unproven, that method involves separating carbon dioxide from the gas stream before it heads out of the stacks, collecting the vapors and then storing them underground. That would also require a new network of pipelines to move carbon dioxide from the power plant to a geologically sound site. * * *
In the coal fields of southern Illinois and Indiana, a mining renaissance is hoped for -- but no north-south rail line connects them with Chicago and the Great Lakes.
Purdue University recommends building a 300-mile "Indiana coal corridor" -- at a cost of about $1 million a mile.
The Washington Post has a story today headed "Coal Industry Plugs Into the Campaign," that begins:
A group backed by the coal industry and its utility allies is waging a $35 million campaign in primary and caucus states to rally public support for coal-fired electricity and to fuel opposition to legislation that Congress is crafting to slow climate change.
The group, called Americans for Balanced Energy Choices, has spent $1.3 million on billboard, newspaper, television and radio ads in Iowa, Nevada and South Carolina.
Ind. Courts - Opponent announces for Porter Division 4 Superior Court seat held by David Chidester
Bob Kasarda reports today in the NWI Tmes:
VALPARAISO | The first judicial race of the election year has taken shape with both candidates coming out swinging.
Valparaiso attorney Tim Vojslavek announced plans Thursday to seek the Republican nomination for the Division 4 Superior Court seat held by Democrat David Chidester.
Chidester recently announced plans to seek a second term. [ILB - see Jan. 8 entry]
"Simply put, I believe I can do a better job running this court than it presently is being run," Vojslavek said in a prepared statement.
He called for better communication between the court and other agencies, fair and consistent treatment for each litigant, and efficient use of court time and use of the court for judicial matters only.
While Vojslavek did not elaborate on that final point, Chidester said it was his understanding Vojslavek has criticized him for performing weddings during the day and on weekends for a modest fee.
Chidester said the weddings don't interfere with courthouse business. He also said he received ethical and legal clearance to collect the fees and has used the proceeds for charity and saving tax dollars by covering various court costs. * * *
Vojslavek failed in his bid in 2002 for the judicial seat now held by Superior Court Judge Bill Alexa and in a 2006 run for the state senate seat held by Karen Tallian, D-Ogden Dunes.
Chidester first was elected in 2002 after losing in 1984 and being passed over three times for appointments to the bench.
Law - "Lawyer-Client Relationships Can Arise From Legal Hotline Calls, NJ Panel Rules"
Mary Pat Gallagher'sreport today via the New Jersey Law Journal begins:
Lawyers who answer legal hotlines can't rely on a disclaimer to avoid forming an attorney-client relationship, even with one-time callers, a New Jersey Supreme Court ethics committee held on Thursday.
A disclaimer is ineffective "as it is likely such a relationship will arise in the course of the provision of services by the attorneys staffing the legal hotline," the Advisory Committee on Professional Ethics said in Opinion 712.
The committee rejected a nonprofit trade association's pitch for a more lenient rule, under which lawyers could field calls from its members without creating attorney-client relationships.
The association wanted to know whether an intervening ethics rule change had displaced an earlier ethics opinion that had addressed the issue of one-shot consultations.
Thursday, January 17, 2008
Ind. Courts - "Judge Joel Roberts will not seek re-election and plans to retire from the bench of Jay Superior Court at the end of 2008"
The Commercial Review ("Jay County's Daily Newspaper") reports:
Roberts, who is now in his 20th year as judge, is 61 and would be nearing 69 at the end of another six-year term.
"It was a matter of the way the calendar broke," Roberts said Monday. He hopes to continue to work as a special judge in retirement. Roberts also served as deputy prosecutor for more than 13 years.
The Republican incumbent's decision creates another vacancy in what is shaping up to be an interesting Jay County election year.
Jay County Clerk Jane Ann Runyon is prohibited by law from seeking a third consecutive term in office, and south district county commissioner Gary Theurer indicated Monday he would not seek re-election to a fourth term. Runyon is a Republican, while Theurer is a Democrat.
Ind. Courts - Fourth attorney seeks Clinton County Superior Court Judgeship
Kate Meadows reports in the Frankfort Times:
A fourth attorney announced Monday that he will seek the seat of Clinton County Superior Court Judge.The story does not mention who are the other three ...
Brad Mohler, a lifelong Clinton County resident and attorney for the past 10 years, is also the fourth candidate planning to run on the Republican ballot.
Current Clinton County Judge Kathy Smith announced in October she will not seek a fifth term.
Environment - Still more on "Great Lakes Compact on track"
Updating this ILB entry from Jan. 10th, the Great Lakes Compact legislation, SB 45, has passed third reading in the Senate and now will move across the Statehouse 3rd floor to the House of Representatives. From a press release issued by the bill's primary author, Sen. Beverly Gard:
If passed by the House and signed by the governor, Senate Bill 45 would make Indiana the third to ratify an eight-state a regional agreement to help monitor, manage and protect water resources from the Great Lakes. Gard said the agreement was important, because the five great lakes contain 20 percent of the world’s fresh water supply, a supply some drought-stricken states would like to start drawing from to relieve their water shortages.
“We may be the only state in this process that has received such overwhelming support from both the industrial and environmental sectors,” said Gard (R-Greenfield). “So far, there has been no significant opposition.”
In addition to sharing a portion of Lake Michigan, Indiana also has part of the watershed for Lake Erie. Gard said states in some drought-stricken regions have already begun seeking water from here in the Midwest.
“This legislation is about diversion, not water quality,” Gard said. “Officials in some states hit hard by drought have already talked about purchasing water from the Great Lakes region and having it delivered, not only by tankers, but possibly even pipelines.”
Officials from the Indiana Department of Environmental Management (IDNR) say management of great lake resources is currently “an unorganized patchwork of laws which allow other states to arbitrarily impact what Indiana can do with water in and near the basin.” A compact like this, they say, would provide a uniform set of standards and procedures for all eight states to follow.
Environment - Governor acts to extend environmental impact statement rules
This ILB entry from Dec. 11, 2007 concluded:
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.Well, Governor Daniels has now granted an emergency one-year extension. He issued Executive Order 07-22 on Dec. 28, 2007. This EO has only now been posted by the Indiana Register - access it here. Both 326 IAC 16 of the APCB rules, and 327 IAC IAC 17 of the WPCB rules have been extended by the Governor until Jan. 1, 2009. This will give the two boards the opportunity to reenact these rules. This will take a number of months, however, something that would have been avoided had IDEM not quietly allowed these rules to expire.
The APCB and WPCB rules defining what is a major state action 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 - "Markley resigns as Bluffton City Court judge"
Joe Smekens reports in the Bluffton News-Banner:
After just 15 days in office, Bluffton City Court Judge Gary L. Markley has resigned from the bench.
Copies of Markley’s letter of resignation were delivered Tuesday, Jan. 15, to Mayor Ted Ellis and Democrat Party Chairman Chuck King, among others.
In the letter, Markley stated that he found that after evaluation of the Bluffton City Court that it was “impossible” for him to bring the current court records and reports up to date in an acceptable time frame.
He cited personal obligations as well as a lack of knowledge of the requirements of the court system which prompted him to resign from the post.
Markley, a Democrat, was elected to a four-year term in the November 2007 general election, upsetting former Judge Lyle Cotton, who was seeking an unprecedented eighth term.
According to Wells County Clerk Beth Davis, she has been informed by state election division officials that under Indiana Code, it will be up to Gov. Mitch Daniels to appoint someone to fill the vacant seat.
Under state law, the governor is the official who must receive a letter of resignation from such a position as the city court judge post to make such resignation effective.
Upon receipt of the resignation, a process to fill the office will come down from the governor’s office.
Markley told the News-Banner this morning that he regretted having to make the decision to resign.
“I could see that it would be a long up-hill battle to get things back in shape,” Markley said, adding that the task was beyond his capabilities.
“I have no animosity towards anyone,” Markley said, adding that if he knew previously what he knows now, that he never would have sought the office. * * *
In his letter of resignation Markley stated:
“After recent evaluation of Bluffton City Court, I find it impossible to bring the City Court records and reports up to date in an acceptable time frame.
“This is due to personal obligations that came about after the election, my limited technology skills, and maintaining other full-time employment.
“This, coupled with a lack of knowledge of the requirements of the court system make it necessary for me to submit my resignation as Bluffton City Judge effective immediately.
“I deeply regret having to make this decision, but feel it is necessary for the good of the Court system and the City of Bluffton.
“My sincere apologies to my supporters and the City of Bluffton, Indiana.”
Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)
For publication opinions today (1):
In Natare Corporation v. Cardinal Accounts, a four-page opinion, Chief Judge Baker concludes:
It is well established that in pursuing a lawsuit, attorneys are expected to “determine expeditiously” the propriety of continuing the litigation and are expected to dismiss promptly claims that are found to be frivolous, unreasonable, or groundless. Kahn v. Cundiff, 543 N.E.2d 627, 629 (Ind. 1989). If a party continues to litigate a case past that point, the litigation becomes frivolous and attorney fees for the other party “from that point in the litigation at which pursuing the claim became frivolous” are warranted. Id. * * *NFP civil opinions today (2):
It is readily apparent that, at the very least, from the moment that Cardinal sought reinstatement after nine months had elapsed since the dismissal of its complaint—with no credible explanation for the delay or any attempt to argue that its claim was meritorious—this litigation became frivolous. Natare was forced to appeal the erroneous result of the frivolous litigation and should not have to bear the financial burden of its attorneys’ services during the appellate process. Under these circumstances, therefore, we find that Natare is entitled to its appellate attorney fees. Thus, we remand this cause to the trial court for a calculation of the reasonable appellate attorney fees due to Natare.
Natare’s motion to tax costs is granted and remanded with instructions to (1) order Cardinal to pay Natare’s costs in the amount of $333.68, and (2) calculate the amount of Natare’s reasonable appellate attorney fees and order Cardinal to pay that amount.
Commitment of M.P. (NFP) - "Appellant-respondent M.P. appeals the trial court’s orders requiring that she be involuntarily committed for up to ninety days and involuntarily medicated subject to a thirty-day review. M.P. argues that she should have been permitted to seek an independent psychological evaluation and that there was insufficient evidence supporting the trial court’s decision. Finding no error, we affirm."
Anthony Davis v. Gregory Garrett (NFP) - "Davis argues that the trial court abused its discretion in admitting a portion of a police report into evidence and that the trial court erred in rejecting two of his proffered jury instructions. Davis also contends that he was deprived of a fair trial because of an alleged ex parte communication that occurred between Garrett’s counsel and the trial judge. Finally, Davis claims that some of the comments that the trial judge made were unfairly prejudicial to him. Concluding that the police report was properly admitted into evidence and finding no other error, we affirm the judgment of the trial court."
A dissent begins: "I wholly agree with the majority’s conclusion that the police report was inadmissible hearsay. However, I cannot agree that the admission of the report was harmless error."
NFP criminal opinions today (1):
Ind. Decisions - More on "Court says registry violated offender's constitutional rights"
Updating this ILB entry from Dec. 27, 2007, re the Indiana Court of Appeals 2-1 opinion Dec. 26th in the case of Todd L. Jensen v. State of Indiana, Sophia Voravong of the Lafayette Journal and Courier reported yesterday:
[Robert] Rawles is one of three convicted sex offenders against children in Tippecanoe County who are challenging a state law that took effect July 1, 2006, prohibiting them from living within 1,000 feet of a school, youth program center or public park.
One of their attorneys is hopeful that a recent Indiana Court of Appeals ruling -- which determined that a legal change to sex offender requirements violated one man's constitutional protection against retroactive laws -- will benefit his client.
In the appeals court case, legislation was amended to require Todd L. Jensen to register as a sexually violent predator two years after he was released from probation. But at the time of his sentence, the law required consultation with two experts to determine if someone was a predator who might be a repeat offender.
"It's not the same portion of the statute ... but I find this particularly interesting because they make note of the fact that legislators made a lot of changes to this statute in 2006," said Lafayette attorney Earl McCoy, who is representing one of the convicted sex offenders forced to move under the new law.
His associate, Chad Montgomery, is handling the third lawsuit filed in Tippecanoe County. Rawles' case was filed by attorney Kenneth Falk of the American Civil Liberties Union of Indiana.
"We believe the changes in statute affected our clients' rights to ex post facto laws," McCoy said.
Ex post facto law refers to the increase of a penalty or punishment after an offense is committed.
But Tippecanoe County Prosecutor Pat Harrington, who is named a defendant in the three lawsuits, said he does not agree. The appeals court ruling specifies that Jensen's retroactive lifetime registration requirement violated the Constitution "as applied to him," Harrington pointed out.
"I believe that the 1,000-feet rule is very safe as far as ex post facto," he said. "No court so far has disagreed with this. As prosecutor, I will be following the law."
Harrington said he also was told the Indiana attorney general's office plans to petition that the Jensen case be heard by the state Supreme Court. * * *
Tippecanoe Circuit Court Judge Don Daniel, who is presiding over one of the sex offender lawsuits, and Tippecanoe Superior Court 2 Judge Thomas Busch, who is hearing another case, said they have not yet read the Jensen ruling.
But both judges say the way the Indiana Court of Appeals and the Supreme Court rule often has strong bearing on their decisions.
"I'm always glad to have their guidance," Daniel said. "This is a new area of the law for all of us."
Courts - Judge Posner and more
Peter Lattman of The WSJ Law Blog picks up a number of items today, several of which the ILB had set aside for writing about, but not yet gotten to.
The first is titled "The Inimitable Judge Posner Strikes Again." It points to the just-published special issue of the University of Chicago Law Review, “Commemorating Twenty-five Years of Judge Richard A. Posner,” available here. The entry also quotes from Judge Posner's opinion yesterday in a reinsurance case, summarized here by the ILB, including the concluding sentence:
The able lawyers who briefed and argued this case could have saved us some work and presented their positions more effectively had they done the translations from reinsurancese into everyday English themselves.The second item today from the WSJ Law Blog is a discussion of the SCOTUS opinion yesterday upholding New York's system for selecting trial court judges. See also this article today by Daniel Wise and Joel Stashenko in the New York Law Journal.
Finally, the WSJ Law Blog has an entry that begins:
On Monday, we highlighted a juicy recusal controversy arising out of the mountains of West Virginia. Yesterday, we posted on the Ninth Circuit tossing the fraud conviction and 15-year sentence of a former dot-com executive because it said the trial-court judge should have disqualified himself because of stock holdings in a firm linked to the case. And this morning, let’s take a trip to the California Supreme Court for another wild and wacky recusal case.
A man who says he became ill while working at a Lockheed plant sued for injuries he suffered as a result of exposure to toxic chemicals. He appealed the case to California’s high court, which refused to hear it. Why? Because four of the seven justices cited a conflict of interest because they controlled stock in oil companies that provided some of the solvents at issue in the case. “It’s unfair and I am very disgusted with the courts,” said Braxton Berkley, the plaintiff.
Chief Justice Ron George said the remaining justices decided to dismiss the case because they were concerned that a Supreme Court ruling made with a majority of temporary justices wouldn’t hold the same weight as an opinion of the permanent court. Said George: “This is a very unusual situation and I hope it doesn’t recur.”
Legislative Benefits - "Legislator to Lobbyist" slowdown bill gets cold shoulder
Lesley Stedman Weidenbener reports today (2nd item) in the Louisville Courier Journal:
A Senate proposal would require legislators to go through a one-year "cooling-off" period before becoming Statehouse lobbyists. But a committee gave the bill a chilly reception yesterday.The bill is SB 165.
Sen. Pat Miller, R-Indianapolis, the bill's sponsor, said the waiting period would mimic restrictions on some employees of the state's executive branch.
Nearly 30 other states have similar "revolving-door" waiting periods for lawmakers, according to the National Conference of State Legislatures.
Bill supporters told lawmakers that it looks bad when they leave public office and end up with a cushy lobbying job the next year. Several former Indiana legislators have become registered lobbyists, including some who resigned and then took lobbying jobs during the next legislative session.
Others at the Senate Public Policy Committee hearing said the bill would help prevent even the perception of impropriety.
"Whether real or imagined, the legislator-turned-lobbyist can influence the friends who are still in the Statehouse," said Paulette Vandegriff, with the League of Women Voters of Indiana.
But lawmakers bristled at some of the public testimony that hinted at perceptions of shady politics. Sen. Robert Jackman, R-Milroy, said lobbyists are a part of the legislative process.
"We rely on those people for information," Jackman said.
Committee Chairman Sen. Marvin Riegsecker, R-Goshen, decided that the bill itself needed a cooling-off period, and did not call for a vote yesterday. The bill could come up for a vote next week, but Miller noted that the committee had critical questions about it.
Ind. Law - More on: Forced annexation target of legislation
A bill prohibiting forced annexation in the state cleared its first legislative hurdle Wednesday.Lesley Stedman Weidenbener of the Louisville Courier Journal reports in a story that begins:
The Senate Local Government and Elections Committee voted 6-4 to move Senate Bill 114 to the full Senate for debate. The panel split along party lines, with all Republicans supporting the measure, including Sen. Gary Dillon, R-Columbia City.
“The process is not fair,” said Sen. Beverly Gard, R-Greenfield, co-author of the legislation. “And it’s going to come up year after year after year until we bring some sort of fairness to the system.”
The bill would essentially allow cities and towns to initiate annexations only when all of property owners agree. Residents wanting to be annexed could still petition the city with 51 percent of the owners on board.
Indiana is one of only six states that allow involuntary annexations.
The legislation also weakens sewer and water waivers sometimes attached to land prohibiting an owner from remonstrating against a future annexation.
Several Hoosiers caught up in expensive annexation battles testified before the committee about having to raise hundreds of thousands of dollars to fight hostile takeovers.
Cities would lose their ability to initiate annexations unless they had signed permission from all affected property owners under legislation approved yesterday by a Senate committee.
The bill, which now moves to the full Senate for consideration, also weakens the annexation waivers that developers often sign so that cities will extend sewer and water services to their subdivisions.
Sen. Beverly Gard, one of the authors of Senate Bill 114, said the proposal is necessary to give some rights to homeowners in "hostile" annexations.
"The process is not fair," said Gard, R-Greenfield. "And it's going to come up year after year after year until we bring some sort of fairness to the system."
Gard has been trying to change the law since last year, when her two annexation bills fail amid intense lobbying from cities. Municipal officials said they must be able to expand their borders to remain healthy.
Under current law, people can challenge an annexation in court only if 65 percent of the affected property owners sign a petition opposing it.
Environment - More on "House panel stiffens confined feed rules"
Indiana's large livestock farms would face annual inspections and other tightened regulations under a bill sent to the House floor.
The House Agriculture and Rural Development Committee approved the measure along party lines, with seven Democrats endorsing it and five Republicans opposing it.
Similar legislation fell apart in the waning hours of last year's General Assembly, disappointing environmentalists worried about the farms' impact on waterways and drinking water.
Ind. Courts - Chief Justice Shepard delivers State of the Judiciary
Bryan Corbin of the Evansville Courier & Press reports today on yesterday's address by the CJ:
Courts are using technological advancements to protect crime victims, keep drunken drivers off the road and help Hoosiers navigate their way through the judicial system. Indiana Chief Justice Randall Shepard underscored those kinds of technologies during his annual State of the Judiciary address Wednesday to a joint session of the Indiana House and Senate. * * *The problem of the failure of the State Court's Judicial Technology and Automation Committee (JTAC) to provide answers about an interface with DoxPop has been addressed in several ILB entries. For background, start with this ILB entry from Dec. 17, 2007, and this ILB entry from Oct. 26, 2007. See also this Supreme Court order dated Dec. 5th, 2007.
Among other things, he cited:
o Domestic violence protection. When police are called to a domestic violence complaint, they routinely check whether a court-issued protective order is on file against the alleged batterer.
"It used to be that the officer could verify the existence of a protective order only by calling the county clerk's office, assuming the confrontation occurred during business hours. These gaps in information have sometimes resulted in tragedy," Shepard told lawmakers.
But now, the state is more than halfway through installing a statewide registry that immediately sends such protective orders to local police and sheriff's departments — and enters them into state police and FBI databases — so responding officers can act on them at the scene.
o Online court records. Each of the 92 counties has a separate computer system for managing public records in court cases; only some are available online.
Shepard described a pilot project in nine courts in Monroe County and one in Marion County that would attempt to connect all courts in Indiana to each other and make their records available online. The pilot project, a program called Odyssey provided by Tyler Technologies, allows users free Internet access to court schedules, motions, rulings and amounts owed. Plans call for eventually extending that system statewide, which could take years.
Not wanting to wait, Vanderburgh County is pursuing its own online case management system, DoxPop, separately from the state's project. Vanderburgh Superior Court Judge Douglas Knight said the system would provide, for a subscription fee, access to court records online, with some limited free availability. Knight hopes the County Commissioners could sign the contract with DoxPop within 90 days.
According to published reports, DoxPop is used in 44 counties and the state has not reached accord with the company on whether and how the Odyssey system would interface with DoxPop. [Emphasis added by ILB]
o Drunken driving. Shepard said until two years ago, court-ordered suspensions of driver's licenses for drunken driving were not forwarded to and updated by the Bureau of Motor Vehicles in a timely manner, meaning that a suspended driver could get behind the wheel, get pulled over, and the officer wouldn't know the license was suspended.
Now, courts send suspended-license information by computer to the BMV and police agencies.
Also notable from Corbin's story is the information that Vanderbugh County, like Marion County, is pursuing its own CMS, because it does not believe it can wait any longer. See this ILB entry from Sept. 24, 2006 re Vanderburgh County and this one from Sept. 30, 2007 re Marion County, which includes this quote:
Frustrated by the delays, however, Marion Superior Court judges sought permission from the Supreme Court to proceed with their own upgrade of the county's nearly 20-year-old case-management system, JUSTIS.Here is a list of all related ILB entries.
Like Odyssey, the county's new system will be Web-based and promises many of the same improvements. Employees have been working with consultants to build it from the ground up, paying for the work within the court's maintenance budget.
Jon Murray of the Indianapolis Star also has a brief story today on the CJ's address. Access it here. It concludes:
During his speech, Shepard was flanked by Gov. Mitch Daniels and Lt. Gov. Becky Skillman. Dozens of black-robed judges from the Indiana Supreme Court, the Court of Appeals and county courts filled the balcony and seats on the floor.You may read, or view online, the Indiana Supreme Court:'s 2008 State of the Judiciary: "A Court System with Reform in its Heart", presented by Chief Justice Randall T. Shepard, January 16, 2008, here. See particularly the list of nearly two dozen court system reforms.
Wednesday, January 16, 2008
Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP) [Corrected]
For publication opinions today (2):
In Delta Building Group, Inc. v. Michael and Livia Laurenzano, Newcomer Lumber and Supply Co. Inc., et al, a 5-page opinion on rehearing, Judge Crone wrties:
On October 26, 2007, Delta filed its petition for rehearing. We grant Delta’s petition for the limited purpose of clarifying our original opinion. In all other respects, we affirm our original opinion. * * * Delta’s petition for rehearing is granted. We affirm our original opinion in all respects, except as clarified above.Amber R. Combs v. State of Indiana - details to follow
NFP civil opinions today (1):
Brian Conrad v. Tippecanoe Co. Dept. of Child Services (NFP) - Termination of parental rights; affirmed.
NFP criminal opinions today (3):
Ind. Decisions - 7th Circuit decides one Indiana case today
In Indiana Lumbermens Mutual v. Reinsurance Results (SD Ind., Judge McKinney), a 12-page opinion, Judge Posner writes:
The defendant in this diversity suit for breach of contract governed by Indiana law appeals from the grant of summary judgment in favor of the plaintiff. The case turns on the interpretation of a contract between an insurance company, Lumbermens Mutual, the plaintiff, and Reinsurance Results, the defendant, which reviews an insurance company’s claims against its reinsurers to make sure the insurance company receives the benefits to which its reinsurance contracts entitle it. We’ll sometimes call Lumbermens the “insurance company” and we’ll call Reinsurance Results the “service company.”
The contract is very short and its key language shorter still. The service company undertakes to review the insurance company’s claims and to report any “premium and/or claims identified during the course of the review that have not been processed in accordance with the reinsurance contract terms and conditions.” The fee for this service is 33 percent of the “ ’Net Funds’ collected from [the insurance company’s] reinsurers as a result of this review.” The service company claims that it obtained net funds of $2.2 million for its client and thus is owed 33 percent of that amount. The insurance company, disagreeing, brought this declaratory judgment action, contending that it owes the service company nothing, and won.
Reinsurance is a dauntingly complex, esoteric field of business and the briefs in this case are correspondingly complex and esoteric. But the facts relevant to the appeal are actually rather simple, and the forbidding jargon of reinsurance (“ceded unearned premium,” “aggregate excess of loss,” “under-ceded reinsurance loss,” “reinsurance treaty,” and the rest) can be dispensed with. * * *
The service company did not render a service pursuant to an unenforceable contract; it rendered a service outside the contract, as we have seen. When parties have a valid contract, there is no bargaining failure that would justify a court’s awarding a party more than he had contracted for. As we noted in Industrial Dredging & Engineering Corp. v. Southern Indiana Gas & Electric Co., 840 F.2d 523, 525 (7th Cir. 1988) (citations omitted), “Indiana appellate courts have uniformly held that ‘the existence of a valid express contract for services . . . precludes implication of a contract covering the same subject matter. The rights of the parties are controlled by the contract and under such circumstances recovery cannot be had on the theory of quantum meruit.’ ” See, e.g., Milwaukee Guardian Ins., Inc. v. Reichhart, 479 N.E.2d 1340, 1343-44 (Ind. App. 1985); see also Goldstick v. ICM Realty, 788 F.2d 456, 466-67 (7th Cir. 1986). * * *
A note, finally, on advocacy in this court. The lawyers’ oral arguments were excellent. But their briefs, although well written and professionally competent, were difficult for us judges to understand because of the density of the reinsurance jargon in them. There is nothing wrong with a specialized vocabulary—for use by specialists. Federal district and circuit judges, however, with the partial exception of the judges of the court of appeals for the Federal Circuit (which is semi-specialized), are generalists. We hear very few cases involving reinsurance, and cannot possibly achieve expertise in reinsurance practices except by the happenstance of having practiced in that area before becoming a judge, as none of us has. Lawyers should understand the judges’ limited knowledge of specialized fields and choose their vocabulary accordingly. Every esoteric term used by the reinsurance industry has a counterpart in ordinary English, as we hope this opinion has demonstrated. The able lawyers who briefed and argued this case could have saved us some work and presented their positions more effectively had they done the translations from reinsurancese into everyday English themselves. AFFIRMED.
Ind. Decisions - Supreme Court posts its Jan. 11th order in Tewell v. State
In this entry Friday, Jan. 11th, the ILB wrote:
In addition, the ILB has just received notice of another Transfer granted with Published Order, granted today, in the case of Floyd Tewell v. State of Indiana. Here is the Nov. 5, 2007 ILB COA summary. The ILB has not seen today's order.Now (this afternoon) the Supreme Court has posted its one-page Jan. 11th "PUBLISHED ORDER GRANTING TRANSFER and ADOPTING THE OPINION OF THE COURT OF APPEALS." The Court ruled:
Being duly advised and having concluded the Court of Appeals correctly decided the issues, we GRANT transfer, and ADOPT the opinion of the Court of Appeals. See Ind. Appellate Rule 58(A)(1).Access the Supreme Court order in Tewell v. State here.
Ind. Courts - "Cleared of rape, Indy man sues over delay in prison release"
Jon Murray of the Indianapolis Star reports today:
Harold David Buntin keeps his anger in check, but the worst kind of frustration persists after he served 13 years for a rape that DNA evidence proved he didn’t commit.For background, see this ILB entry from April 24, 2007, which concludes:
He served two of the years after a judge cleared him. Now Buntin, 38, is suing Marion Superior Court for mishandling the May 2005 ruling that should have set him free but instead sat inside his file in storage, unseen by nearly anyone.
Buntin also has sued an Indianapolis attorney hired by his family to handle his appeal. Carolyn Rader is accused of leaving him in the lurch while he waited for the ruling.
“Somebody should be held accountable,” he said. “I lose 11 years of my life over something I didn’t ever do, and you turn around and cheat me out of two more years? * * *
His wrongful detention lawsuit against Criminal Court 5, filed Friday in Marion Superior Court’s civil division, also names the clerk, the county and the state of Indiana as defendants. His lawsuit against Rader has been pending since August.
Judge Grant Hawkins, who presides in Court 5, declined to comment Tuesday, and a phone message left at the office of the city’s attorney, the corporation counsel, was not returned. Rader also did not return a message.
When Hawkins ordered Buntin’s release in April, he apologized.
He and Master Commissioner Nancy L. Broyles, who had issued the 2005 ruling, explained in a written notice at the time that the decision was never entered into the court’s record or sent to the defendant or prosecutors. Either a bailiff failed to follow handwritten instructions, the notice says, or a deputy clerk did not fulfill her duties. * * *
After a court hearing in early 2005, [Buntin] waited for Broyles’ ruling. And waited.
He wrote at least five letters to the court, the lawsuits say, and more to his attorney. When Rader responded, Buntin said, she urged patience. Family members called the court, but the computer system showed there had been no ruling yet.
“I couldn’t believe it,” Buntin said, and he remembered thinking: “This doesn’t make no sense, like there’s some kind of conspiracy. This shouldn’t happen. … I was exonerated by DNA.”
Finally, Buntin filed a “lazy judge” complaint, prompting Hawkins and Broyles to review the case and retrieve the file from court archives.
Rader has filed a response to Buntin’s suit, which charges she was negligent and breached her duty. Rader’s filing says the claims are groundless, and any damages were caused by the judges or court staff. * * *
Buntin said he hasn’t decided whether to file a federal lawsuit seeking compensation for a wrongful conviction. Larry Mayes, who spent 19 years in prison for a rape in Hammond before DNA evidence exonerated him, was awarded $9 million by a jury in 2006; that verdict is on appeal.
This story [about Harold David Buntin] brings to mind this Dec. 19, 2006 ILB entry headed "Supreme Court censures Judge Newman, Jr., Judge of the Madison Superior Court No. 3," where the Supreme Court wrote: "As a result of Respondent’s failure to execute an appropriate order for Dawson’s release and to provide proper supervision and instruction to his court reporter, Dawson unnecessarily spent over one year incarcerated with the DOC and one year on supervised parole."
Environment - "House panel stiffens confined feed rules"
A week ago, Jan. 9th, the ILB posted an entry headed "Proposal calls for 3-year moratorium on CAFOs," about SB 61. Today Niki Kelly of the Fort Wayne Journal Gazette reports about HB 1168, in a story that begins:
The debate over confined feeding operations returned to the Statehouse on Tuesday when the House Agriculture and Rural Development Committee gave initial approval to a bill tightening authority over the facilities.Here is an interesting ILB entry from May 2, 2007, headed "Debriefing on why  confined feeding changes failed."
Last year, the General Assembly negotiated for months before the bill fell apart in the waning hours of the session. [see below]
There are about 2,200 confined feeding operations in the state, of which 625 are large enough for a separate distinction of confined animal feeding operations. Generally, these facilities are the result of industrializing agriculture operations in the state.
But neighbors have concerns about odor, the effect on real estate values and health risks related to large amounts of manure stored and spread on land.
House Bill 1168 contains five major provisions:
• Requires operators to disclose “good character” information, including violations in other states or pending legal action. It allows the Indiana Department of Environmental Management to consider this information before granting a permit.
• Requires operators to provide evidence of financial assurance, or a bond, to ensure they stay in compliance with environmental laws.
• Increases initial license fees slightly and establishes a range of annual fees based on the size of the operation. IDEM also is to pass rules establishing fees for modifications to the facilities.
• Requires IDEM to inspect the operations at least once a year. Currently, the inspections occur about once every five years or when complaints are received. The bill also allows IDEM to revoke a permit if three violations of confined feeding or water pollution control laws occur at the operation in any two-year period.
• Creates a manure hauler certification program administered by the state chemist.
Ind. Decisions - More on: 7th Circuit denies rehearing in legislative prayer case
The 7th U.S. Circuit Court of Appeals declined yesterday to reconsider a ruling that threw out a lawsuit challenging sectarian prayers in the Indiana House.From a story by Kevin O'Neal in today's Indianapolis Star:
The American Civil Liberties Union of Indiana had asked the full court to rehear the case after a three-judge panel ruled 2-1 in October that taxpayers who sued over the prayers do not have the legal standing to do so.
House Minority Leader Brian Bosma, R-Indianapolis, said yesterday's ruling meant the House could resume its normal prayer practice, which in the past has sometimes included mention of Jesus Christ.
But Ken Falk, legal director of the ACLU of Indiana, said that wasn't true because the ruling was based on the litigants' standing, not on the merits of the case.
"I would hope that the House doesn't somehow think that this is a validation of the prayer practices," Falk said.
The ACLU likely would file a new lawsuit, he said, with plaintiffs who come into contact with the prayers and who therefore might have legal standing, if the former practices resume.
While Tuesday’s ruling effectively ended the suit against the House, it did not decide the issue. Individuals could make complaints against the House prayer, and that could be the basis of another lawsuit. Falk said he is leaning toward that option and said several people were interested in participating, as opposed to appealing the current lawsuit.For background, see this long list of earlier ILB entries.
And see particularly this Oct. 30, 2007 ILB summary of the 7th Circuit's dismissal of the suit "for want of jurisidction." It is this ruling that the Court yesterday refused to rehear.
Ind. Gov't. - More on: Lake County treasurer removes discharged bankruptcies from property tax rolls
John Curley, the assessor and trustee of Winfield Township, said he is disturbed by recent disclosures that some taxpayers were allowed to dodge the normal property tax system in October 2006 by using bogus claims of bankruptcy.From a side-bar:
But rather than paying to hire an outside expert to study the issue, Lake County Treasurer John Petalas should utilize the expertise the county already possesses on its payroll, Curley said.
"Since we have the knowledge and resources, it would be prudent to save the taxpayers' money by not involving another agency/law firm and keeping this project in-house," Curley told Petalas in a Jan. 7 letter.
The letter was sent several days after The Times reported at least 67 properties had been removed from the October 2006 tax sale list for reason of bankruptcy, even though the newspaper found the bankruptcies either did not exist or did not apply to the properties.
Curley and other observers have said manipulation of the tax sale is a cause for concern because it raises questions about the fairness of the entire tax system, since the threat of tax sale is the ultimate tool to force payment of delinquent tax bills.
The issue: Certain types of bankruptcies can protect landowners from paying taxes, but an investigation of removals on the October 2006 tax sale found a widespread pattern in which bankruptcies were used to shield owners who should not have been protected. An outside attorney has been investigating the issue, but one critic says the treasurer's office should keep the job in-house.
Tuesday, January 15, 2008
Ind. Courts - Boone County judges seek new terms
The Boone County Sun reports:
Boone County Judges Matthew Kincaid and Rebecca S. McClure announced today that they will both seek election to the benches they currently occupy.
Judge Kincaid has served in Boone County Superior Court I since Jan. 1, 2003. Judge McClure was appointed to the bench in January 2006.
Kincaid was elected judge in 2002, for a court that has jurisdiction over civil, criminal felony and probate matters. Prior to serving as judge, he was on a private civil litigation practice with a law firm in Indianapolis. He serves on the Indiana State Bar Association's Committee for improvements to the Judiciary. He also serves as a member of the Civil Benchbook Committee for the Indiana Judicial Conference and is a member of the Boone County Bar Association. * * *
McClure served as the elected prosecutor in Boone County from 1986 to 1997. For nine years, she then served as the assistant director of the Indiana Prosecuting Attorneys Council, providing legal assistance to prosecutors throughout the state. McClure returned to Boone County when she was appointed by Gov. Mitch Daniels to serve the unexpired term of Judge James R. Detamore upon his retirement in 2006.
Ind. Decisions - Supreme Court decides and posts a third opinion today
Note: The ILB experienced difficulty viewing the first page of the Gault decision - as noted earlier today the ILB also had trouble with the Brinkman decision. If you are having similar troubles, I suggest you write the Clerk's Office. The ILB has written previously, but received no response.
In Thabit Gault v. State, a 13-page, 5-0 opinion, Justice Sullivan writes:
During cross-examination at Thabit Gault’s trial on drug charges, the arresting officer re-freshed his memory on several points by referring to his police report. Indiana Evidence Rule 612 requires that if a document is used to refresh the witness’s memory while testifying, the party whose interests could be harmed by the testimony must have access to the document. Although the trial court erroneously denied Gault’s counsel access to the report, the error was sufficiently minor that it did not adversely affect Gault’s rights. * * *
Conclusion: The defendant was an “adverse party” for purposes of Evid. R. 612(a), and his counsel should have been permitted to review, at the least, the relevant portions of the report used to re-fresh the officer’s recollection on the stand. Such error, however, was harmless and the judg-ment of the trial court is affirmed. The opinion of the Court of Appeals is vacated except for that portion disposing of Gault’s insufficient evidence claim, which is summarily affirmed. Ind. Ap-pellate Rule 58(A).
Ind. Courts - "Strueh joins race for Greene Superior Judge seat"
The Grant County Daily World reports:
Bloomfield attorney Karen Strueh has announced her intentions to seek the Democrat nomination for the position of Greene Superior Court Judge.
She is the third candidate to announce for the judge seat that will be vacant Dec . 31 with the retirement of Superior Court Judge J. David Holt.
Former Greene County Prosecutor David Powell and Worthington attorney and Ivy Tech State College educator Dena Martin have announced they will seek the position on the Republican ticket.
Strueh had 30 years experience in the law field and has served as deputy prosecutor in both Owen and Greene Counties, and served as Chief Deputy under Holt when he was prosecutor.
Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)
For publication opinions today (1):
In Martindale Brightwood CDC, et al v. Elizabeth Gore, et al, a 10-page opinion, Judge Darden writes:
Patricia DeWalt and Mark Bryant appeal the dismissal of their complaint against Elizabeth Gore, Patricia Ladd, Dr. Lora Vann, Debra Grady, Mattie Holliday, Clement Bello, Richard Reynolds, and Val Tate (collectively, the “Board Members”)—board members of the Martindale Brightwood Community Development Corporation (“MBCDC”). We affirm in part, reverse in part and remand.NFP civil opinions today (2):
Issue: Whether DeWalt and Bryant lack standing to bring their action. * * *
Because Bryant has alleged circumstances under which he would have standing to bring a proceeding pursuant to Indiana Code section 23-17-4-4(b), the Board Members are not entitled to a dismissal under Trial Rule 12(B)(6). We therefore find the trial court erred in dismissing the claims brought by Bryant for lack of standing. Affirmed in part, reversed in part and remanded.
In Bradley Bruno v. Amanda D. Skobel (NFP), an 8-page, 2-1 opinion, Judge Kirsch concludes:
Here, the trial court dismissed Father’s petition for custody modification because it found the allegations in the petition to be moot due to the fact that, at the time of the hearing, Mother resided with B.B. in the Indianapolis area and the status quo had been restored. Father’s sole stated basis for a modification of custody in his petition of May 9, 2006 was that Mother intended to relocate to Michigan, which would not be in the best interest of B.B. At the time of the hearing, on March 7, 2007, Mother had moved back to Indiana and was residing in the Indianapolis area with B.B. Therefore, the basis for Father’s petition for custody modification was no longer a matter of real controversy between the parties, and the trial court did not err in dismissing it as moot.In Involuntary Term. of D.H. & A.H., and Elizabeth H. v. Marion Co. Dept. of Child Services, and Child Advocates (NFP). an 11-page opinion, Judge Vaidik writes:
Affirmed. BARNES, J., concurs.
ROBB, J., dissents with separate opinion. [which begins] The majority states that the sole basis for Father’s May 9, 2006, petition for a modification of custody was Mother’s intent to move to Michigan. At the time of the hearing scheduled for March 7, 2007, Mother and B.B. had moved back to the Indianapolis area. The trial court found that the status quo had been restored, there was no longer a matter of real controversy between the parties, and Father’s petition should therefore be dismissed. I respectfully dissent from the majority’s determination that the trial court did not err in dismissing Father’s petition to modify custody.
Elizabeth H. (“Mother”) appeals the involuntary termination of her parental rights to her children D.H. and A.H., claiming the Marion County Department of Child Services (“MCDCS”) failed to prove by clear and convincing evidence that the conditions resulting in the removal and continued placement of the children outside Mother’s care would not be remedied and that termination of the parent-child relationship was in the children’s best interests. Concluding that the trial court’s judgment terminating Mother’s parental rights was not clearly erroneous, we affirm.NFP criminal opinions today (1):
Ind. Decisions - 7th Circuit decides one, and denies rehearing in legislative prayer case [Updated]In Hammer v. Ashcroft (SD Ind., Judge Tinder), a 16-page opinion, Judge Rovner writes:
David Hammer, a federal prisoner on death row, sued various Bureau of Prisons (“BOP”) officials alleging that they violated his First Amendment and equal protection rights by implementing and enforcing a policy that prevents him from giving face-to-face interviews with the media and from talking with the media about other inmates. The current defendants— the former Attorney General of the United States, John Ashcroft; a former BOP Director, Kathleen Hawk- Sawyer; and former wardens of the federal prison in Terre Haute, Indiana, Harley Lappin and Keith Olson—moved for summary judgment, arguing that the challenged policy is rationally related to legitimate penological interests. The district court granted the defendants’ motion, and Hammer appeals. Because we conclude that Hammer raised a genuine issue of fact as to whether the defendants’ proffered justification for the policy banning face-to-face interviews is pretextual, we reverse and remand.For more on this ruling, see this entry by Howard Bashman of How Appealing, who notes: "Timothy McVeigh's interview with the CBS News program "60 Minutes" appears to have given rise to the challenged policy." And see this entry by Robert Loblaw of Decision of the Day, titled "John Ashcroft To Stand Trial for Death Row Media Policy?."
In the Indiana legislative prayer case, Hinrichs, Anthony, et al v. Speaker House Rep IN, the 7th Circuit on Jan. 14, 2008, issued the following order:
ORDER: Appellee Anthony Hinrichs in 05-4604, Appellee Henry Gerner in 05-4604, Appellee Lynette Herold in 05-4604, Appellee Francis W. Quigley in 05-4604, Appellee Anthony Hinrichs in 05-4781, Appellee Henry Gerner in 05-4781, Appellee Lynette Herold in 05-4781, Appellee Francis W. Quigley in 05-4781 Petition for Rehearing and Petition for Rehearing Enbanc is DENIED. * Judges Rovner, Wood, Evans and Williams voted to grant the Petition for Rehearing En Banc. Judges Flaum and Tinder took no part in the consideration or decision of the Petition for Rehearing En Banc. [05-4604, 05-4781] [2160859-1] (hard) [05-4604 05-4781]The Indianapolis Star posted this report at 4:07 PM. Eyewitness News 13 this evening had this story. A quote:
House Minority Leader Brian Bosma, R-Indianapolis, said Tuesday's ruling meant the House could resume its normal practice, which in the past has sometimes included mention of Jesus Christ. But ACLU of Indiana legal director Ken Falk said that wasn't true because the ruling was based on the litigants' standing, not on the merits of the case. "I would hope that the House doesn't somehow think that this is a validation of the prayer practices," Falk said. Falk said the ACLU likely would file a new lawsuit, with plaintiffs who come into contact with the prayers and who therefore might have legal standing, if the former practices resume.
Ind. Decisions - Supreme Court decides two today
In Valerie Raich Baxendale v. Samuel Raich, III, a 10-page, 4-1 opinion, Justice Boehm writes:
In 2006 the General Assembly replaced the single section governing child custody in the event of a relocation with a new chapter 2.2. We hold that under new chapter 2.2 the trial court may, but is not required to, order a change in custody upon relocation. In this case the trial court’s balancing of relevant considerations was not clearly erroneous. * * *In Sandra and Mark Brinkman v. Anne P. Bueter, M.D., James F. Dupler, M.D., and Women's Health Partnership, a 9-page, 5-0 opinion, Chief Justice Shepard writes:
Conclusion: The trial court’s order granting physical custody to Sam is affirmed.
Shepard, C.J., and Dickson and Rucker, JJ., concur.
Sullivan, J., dissents, believing the decision of the Court of Appeals in this case to be correct.
Patients waited until 2000 to file their medical malpractice complaint even though all underlying events occurred in 1995. Nothing prevented them from filing a complaint within the statutory period, and the defendant medical providers are thus entitled to summary judgment under Indiana’s Medical Malpractice Act.Note: The ILB experienced difficulty viewing the first page of the Brinkman decision - apparently the Clerk's Office does not yet have all the kinks ironed out.
Ind. Courts - Calendar Girls to support SB 176 on Courthouse Preservation
According to a press release, Sen. James Merritt Jr., (R-Indianapolis) is holding a hearing on SB 176 – Courthouse Preservation Commission, tomorrow, Wednesday, Jan. 16, at 1:30 p.m., Senate Public Policy and Interstate Cooperation Committee, Room 233 of the Statehouse.
Notably, the release continues: The Historic Farmland Calendar Girls will be present to show their support for SB 176 and will have calendars to distribute as well.
As it turns out, the Girls have a website of their own, access it here. Caution, it sings!
It was the Courthouse, or Calendar, Girls who rallied to save the Randolph County Courthouse - see this ILB entry from August 6, 2005. Here is a little history from the Girls' website:
It all started in the kitchen of one of the club members in early June. Incensed over the county commissioners’ decision that morning to destroy the county’s historic courthouse, Eileen Herron, 86, and her family devised a plan: photographing Eileen and her bridge club friends in “intriguing” poses using porcelain replicas of the courthouse as strategic cover-ups. After all, they reasoned, what better way to demonstrate the 1877 structure’s worth than to showcase the lovely longevity found in these women, all of whom had lived long and full lives in the Farmland area. Not only would the calendar be the women’s personal protest against demolishing the old building, $5 from the sale of each calendar would be contributed to a Save the Courthouse Fund set up by Historic Farmland USA.
Environment - Impact of delisting a waste
The Indiana Solid Waste Management Board meets today and has on its agenda for final adoption #07-552, which "Adds 329 IAC 3.1-6-8 to conditionally exclude from regulation under 329 IAC 3.1 (delist) wastewater treatment sludge from the chemical conversion coating of aluminum, hazardous waste code F019, that is generated by Alcoa Corporation Warrick Operation near Newburgh, Indiana."
A story today by Mark Wilson of the Evansville Courier & Press looks at the impact of such a rule change:
A final decision could be made today on whether Alcoa Warrick Operation may stop disposing of some of its waste as hazardous and instead send it to municipal landfills.In short, a final adopted rule must be approved by both the attorney general and the governor, a process that takes several months once the attorney general received the rule from IDEMm then filed with the Legislative Services Agency, and published. Thirty days after filing, the rule would take effect.
The waste in question contains small amounts of chromium left over from a wastewater treatment process. The material starts as hexavalent chromium and is used by Alcoa in an "etching" process to finish aluminum sheeting so coatings may be applied to it, said Sally Rideout Lambert, an Alcoa spokeswoman.
But Alcoa uses an accepted process to remove the chromium from its wastewaters, she said.
"We chemically reduce the hexavalent chromium to its nontoxic trivalent state. We then utilize lime to form chromium hydroxide, which then precipitates out of the water and becomes chrome sludge," Lambert said.
Alcoa has the sludge transported to a hazardous-waste landfill near Indianapolis that is operated by Heritage Environmental, she said. However, after two years of testing, Alcoa has determined the waste doesn't meet the state's criteria for listing as hazardous.
Steve Mojonnier, a senior environmental manager at the Indiana Department of Environmental Management, said the tests indicated the waste contains less than a tenth of the level at which the state would allow such chromium-containing waste to be removed from the hazardous list.
However, to stay off the list, Alcoa will have to periodically monitor the waste to ensure that the chromium levels are continuing to stay at safe levels.
Mojonnier noted that level is based on a worse-case scenario of being placed in landfill without any protections or where protections fail. In real life, he said, the waste will have to go into a permitted municipal landfill which must still have a protective lining and monitoring procedures in place.
Alcoa sends most of its nonhazardous waste to Laubscher Meadows landfill in Vanderburgh County, Lambert said.
Mojonnier said it typically takes about 120 days from the time that a decision is made final to the time when a company, such as Alcoa, can begin implementing it.
Monday, January 14, 2008
Law - More on: Mortgage servicing company "recreates" letters
Today Law Blog colleague Amir Efrati reports that more judges overseeing those cases are raising concerns about the big mortgage lender ahead of its planned acquisition by Bank of America. * * *
Countrywide’s errors include charging the borrowers improper and unsubstantiated fees; inflating what borrowers owe in filings with the court; and applying payments borrowers made after filing for bankruptcy toward pre-bankruptcy debt—a big no-no.
Ind. Law - Yet more on golf carts in Greene County; Bainbridge to ban ATVs but allow golf carts
Legal issues took center stage at the Bainbridge Town Council meeting, forcing the board to further postpone a contentious ATV ordinance in the absence of legal council. * * *
In the absence of legal council, the board tabled Ordinance 2008-1 in order to have a new attorney make adjustments to the language. Changes to the ordinance will be geared at avoiding confusion regarding the use of ATV's on highways both inside and outside of the town of Bainbridge and setting higher fines for violating the ordinance. Currently, fines for a town ordinance violation are set at $50. After much discussion, the council resolved to set fines at $250 for the first ATV ordinance violation and $500 for each additional violation. A new version of the ordinance will be presented for 1st reading at a future council meeting.
Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)
For publication opinions today (1):
In the Matter of B.J., C.W., and S.W., and Karma W. and Brandon J. v. Marion Co. Dept. of Child Services, and Child Advocates is a 27-page opinion written by Judge Mathias:
Karma W. (“Mother”) and Brandon J. (“Father”) appeal the involuntary termination of their parental rights to their respective children in Marion Superior Court. We affirm.NFP civil opinions today (1):
Issues: Mother and Father raise several issues on appeal, which we consolidate and restate as: I. Whether the Marion County Department of Child Services (“MCDCS”) failed to provide Father with proper notice of the termination hearing in violation of Indiana Code section 31-35-2-6.5; II. Whether the trial court abused its discretion in denying Father’s counsel’s motion to continue thereby depriving Father of his constitutional right to due process; and, III. Whether the trial court’s termination order was clearly erroneous. * * *
Conclusion: In sum, the MCDCS did not fail to fulfill its statutory obligation to provide Father with notice of the termination hearing, nor was Father’s constitutional right to due process violated when the MCDCS sent notice of the termination hearing to Father’s last known address pursuant to Indiana Code section 31-35-2-6.5. Moreover, Father was not denied his constitutional right to due process when the trial court denied his counsel’s motion to continue and proceeded with the termination hearing in Father’s absence. Father’s constitutional right to be heard does not include an absolute right to be physically present in the courtroom. Finally, the MCDCS proved by clear and convincing evidence each element of Indiana Code section 31-35-2-4(b) with regard to both Father and Mother. Accordingly, the trial court’s judgment ordering the involuntary termination of Father’s and Mother’s parental rights to C.W., S.W. and B.J. is not clearly erroneous. Affirmed.
In Julie Ratliff v. Bryan Ratliff (NFP), a 12-page opinion, Chief Judge Baker writes:
Appellant-respondent Julie A. Ratliff appeals the trial court’s custody and parenting time orders that were entered following her notice of intent to move to Cincinnati, Ohio. Specifically, Julie argues that the trial court erred in denying her petition to relocate and in determining that her former husband, appellee-petitioner Scott Ratliff, should have physical custody of the parties’ minor daughter, D.R. Julie also contends that the trial court erred in granting her less parenting time than that provided by the Indiana Parenting Time Guidelines (Guidelines) without explaining its reasons for the deviation.NFP criminal opinions today (6):
We conclude that the trial court properly exercised its discretion in denying Julie’s petition to relocate with D.R. and in granting physical custody of D.R. to Scott. However, because the trial court did not explain its reasons for deviating from the Guidelines when determining parenting time, we remand this cause to the trial court with instructions to enter a visitation order that either mirrors the Guidelines or sets forth its reasons for the deviation.
Environment - "Benton County remains knee-deep in CAFO issues" [Updated]
Joe Carlson reports today in the Lafayette Journal & Courier:
EARL PARK -- Plans for a large confined cattle operation near this town have been revived about three years after a legal battle helped bring them to a standstill. * * *A second story today by Joe Larson explored the "tangled legal situation":
Petitioners Johan Zuurhout and Global Agri Horizon Leasing LLC are requesting a special exception to build a 3,500-head cattle operation in northwest Benton County, according to Jud Barce, attorney for the Benton County Board of Zoning Appeals.
The board could consider the request as soon as Jan. 29, one day before it resumes a hearing on another confined animal feeding operation, also known as CAFOs. Kokomo-based North Fork Farms LLC wants to build a 10,000-head hog farrowing operation and a 6,000-head finishing farm near Boswell.
Many of the objections residents have raised against the confined hog operation are being brought up for the cattle CAFO. * * *
The BZA approved a special exception for a cattle CAFO at the same site in 2004, but the project was slowed by numerous legal challenges, some of which are still under way. * * *
A woman who answered the phone at Zuurhout's house Friday afternoon said Zuurhout did not wish to comment.
Zuurhout recently moved to the United States with his family from the Netherlands. Gerritt Dekker of Global Agri Horizon operated a dairy in Ontario, Canada, before he sought an Indiana Department of Environmental Management permit for a cattle CAFO in Benton County in 2005.
EARL PARK -- Even if the Benton County Board of Zoning Appeals allows a dairy planned near the Benton-Newton county line to move forward, a tangled legal situation dating back to 2004 makes it unclear what other requirements the dairy's backers would have to meet before the CAFO could be built.
In 2004, the Benton County BZA granted a special exception for Global Agri Horizon Dairy LLC, enabling the entity to move forward with plans to build a 4,200-head dairy.
A lawsuit on behalf of residents in the Earl Park and Kentland area led to that decision being overturned, according to Kentland attorney Steven Ryan. Those residents opposed the dairy largely because of drainage concerns centering on the waste the cattle would produce.
"There is a ditch that takes drainage from (this) property and takes it through the heart of Kentland," Ryan said.
But while Special Judge Robert Thacker of White County Circuit Court was considering the lawsuit, the Indiana Department of Environmental Management granted a permit to Global Agri Horizon Dairy LLC, according to Ryan.
That permit, which IDEM granted Aug. 10, 2005, allowed Global Agri Horizon Dairy LLC to build a confined animal feeding operation for 4,200 cows and 1,000 calves on about 160 acres near Benton County roads 900 North and 500 West, about a mile east of U.S. 41.
Kentland and Earl Park residents again objected, this time appealing the permit. As of Friday, the permit is still under appeal at the Office of Environmental Adjudication, according to IDEM spokeswoman Amy Hartsock.
The petitioners are requesting a new special exception from the BZA but seem to intend to build the dairy under the IDEM permit from 2005 that is still under appeal. A request was made Nov. 8, 2007, to transfer the permit from Global Agri Horizon Dairy LLC to Zuurhout Dairy LLC, according to Hartsock.
"The request is to approve the transfer of ownership," Hartsock said. "That request is currently under review."
Even if Zuurhout Dairy obtains a special exception from the BZA and is granted ownership of the permit by IDEM, it's not clear if the entity would have to wait to start construction until the appeal of that permit was resolved.
Mary Davidsen, director and chief environmental law judge of the Office of Environmental Adjudication, said construction using a permit under appeal would be prohibited only if a stay had been issued.
She did not immediately have access to the case to determine if a stay had been issued in this case.
If no stay was issued and Zuurhout Dairy moved forward with construction while the permit was still under appeal, then the dairy could be forced to tear down anything it builds if the appeal led to the permit being revoked.
The safest approach may be to wait for Davidsen to consider the appeal, a step that has been pending for years but that Davidsen hopes to turn her full attention to in the near future.
"An enterprise could go ahead and construct (before then), but it would be at their own risk," Davidsen said.
Ind. Decisions - "Murderer denied appeal could go free"
Joe Carlson reports in the NWI Times:
HAMMOND | Convicted murderer Jermaine Dodd could go free from prison under a Hammond federal court order unless Indiana courts give him the appeal to which a judge has ruled Dodd is entitled under the U.S. Constitution.Here is a copy of the 18-page opinion.
U.S. District Judge Philip Simon ruled Jan. 3 that Dodd was denied his right to an effective lawyer when his court-appointed appeals attorney, the late Ned Ruff, failed to properly handle the case. * * *
Ruff died from cancer Dec. 29, 2006. A longtime attorney, Ruff played a key role in overturning the fraudulent 2003 East Chicago mayoral election and later became a city attorney when George Pabey was elected mayor in December 2004.
Ruff was not Dodd's trial attorney, but he was appointed to handle the appeal in 2001, court records show.
Ruff told state judges that Dodd had several good appeal options, including the state court's questionable decision to put both men in the same trial, forcing the defendants to claim in court that the other was the gunman, Judge Simon's opinion states.
But Ruff never raised that issue in court. Rather, he only argued that Dodd had an ineffective lawyer during the trial, Simon wrote.
Ironically, Simon ruled this month that it was Ruff who gave ineffective counsel by failing to appeal trial errors.
The case wound up in federal court as a habeas corpus petition, claiming Indiana appeals courts had denied Dodd his rights under the Sixth Amendment by refusing to hear all his complaints.
Attorneys for Indiana courts argued that Ruff's lack of an appeal on the trial errors was a strategic decision, not an omission. But Simon said it did not matter what Ruff's strategy was if he ignored Dodd's wish for an appeal.
"Dodd never had a direct appeal of his conviction, and consequently no appellate court has ever reviewed the trial record in this case," Simon wrote.
The federal judge ordered the Indiana Court of Appeals to accept Dodd's request for an appeal of alleged errors made at trial within 60 days. If an appeal is not given, Dodd has been ordered released from prison.
Ind. Courts - "A proposed list of minimum standards for all Indiana courthouses may be passed in the near future by the Indiana Supreme Court"
Building security seems to be a sticking point in whether county officials will go forward with plans to renovate the historic courthouse and build a new courts building.
"We've done an awful lot for a long time with what little we were able to work with," Grant County Sheriff Darrell Himelick said.
While Himelick considers the historic courthouse to be nearly as secure as it can be, there are some structural issues that perhaps only a new building could solve.
Plans recommended by commissioners call for the renovation of the historic courthouse, which would cost $2.25 million, and the construction of a new building to house courts and the clerk's office, which would cost $6.25 million. With an extra $1 million for costs such as engineering fees, the total package comes to a total of about $10 million.
Whether plans will go forward depends now on whether the Grant County Council decides to finance them. The council met Monday with commissioners and members of the public many of which said the courthouse is secure enough and asked the council to not spend more tax dollars on a new building. The council will meet Tuesday in an executive session, which is closed to the public, to discuss courthouse security.
Several council members said they cannot discuss core issues of security in the public because it could lead to more security problems.
"If you're a banker, you don't ever want to tell somebody how to come and rob your bank, do you?" Councilman Larry Wilson said.
"There are some security issues that are not being brought out into the open because of security concerns ... that are probably more severe and worrisome than the issues that were addressed," Councilman Dan Brock said. * * *
Still, there are some areas where the courthouse may not be as secure as it could be, Himelick said.
A proposed list of minimum standards for all Indiana courthouses may be passed in the near future by the Indiana Supreme Court, said County Clerk Mark Florence.
The standards include a list of standards all current courthouses need to meet, plus several items that contribute to security in any new buildings.
Florence said whether the court will pass the guidelines seems to depend on whether they can secure money for county courthouses to become compliant.
"The (Supreme) Court does not want to give counties another unfunded mandate," Florence said.
Ind. Decisions - Upcoming oral arguments this week
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This Thursday, Jan. 17th:
9:00 AM - Alan Jones v. State - After serving the executed portion of a sentence for child molesting, Jones was released on probation. In the instant proceedings, the trial court determined that Jones violated his probation, reinstated the ten-year suspended portion of the original sentence, and determined that Jones was a sexually violent predator. The Court of Appeals affirmed in Jones v. State, 873 N.E.2d 725 (Ind. Ct. App. 9/21/2007), vacated. [See ILB summary here.] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Jones: Patricia Caress McMath, Indianapolis, IN. Attorney for the State: Joby Jerrells, Indianapolis, IN.
9:45 AM - Brenwick Associates, LLC v. Boone County Redev. Comm'n - The Boone Superior Court entered judgment for Appellees, the Boone County Redevelopment Commission and the Board of Commissioners of Boone County, thereby upholding the Appellees' establishment of an economic development area ("EDA") over land the Town of Whitestown had previously included in an annexation ordinance and land Whitestown added to its ordinance after Appellees had initiated establishment of the EDA. The Court of Appeals reversed the judgment to the extent it upheld Appellees' establishment of an EDA over the land originally included in Whitestown's annexation ordinance and affirmed the judgment to the extent it approved the establishment of an EDA over the remaining land. Brenwick Assoc., LLC v. Boone County Redev. Comm'n, 870 N.E.2d 474 (Ind. Ct. App. 7/20/2007), vacated. [See ILB summary here.] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorneys for Brenwick Assoc.; George Patton, Jr., Alan Townsend, Christopher Janak and Stephen Unger all of Indianapolis, IN. Attorneys for Boone County; Eileen Simms of Lebanon, IN and Thomas Downs, Michael Wukmer and Donald Hosteltler all of Indianapolis, IN. Attorney for Amici Curiae City of Mitchell, et al.; R. Thomas Bodkin of Evansville, IN. Attorney for Amici Curiae Assoc. of Indiana Counties, Inc., et al.; Michael Howard of Noblesville, IN.
10:30 AM - Travelers Cas. & Sur. Co. v. United States Filter Corp. - In this insurance coverage dispute, the Marion Superior Court entered summary judgment that a corporate successor to the original insureds could seek coverage for silica injury claims under various occurrence-based liability policies. The Court of Appeals affirmed this decision, holding that the insureds' right to assert coverage was transferable to corporate successors. Travelers Cas. & Sur. Co. v. U.S. Filter Corp., 870 N.E.2d 529 (Ind. Ct. App. 7/24/2007), vacated. [This is the Wheelabrator case; see this ILB entry.] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for U.S. Filter Corp.; Stanley Fickle, Robert MacGill , Charles Edwards and Joseph Wendt all of Indianapolis, IN. Attorneys for Wheelabrator Tech., Inc.; Fred Biesecker, Brent Huber and Brian Bailey all of Indianapolis, IN. Attorneys for Travelers Cas. and Sur. Co.; Richard Rocap of Indianapolis, IN and Charles Browning, Stephen Brown and Mary Massaron Ross all of Bloomfield Hills, MI. Attorneys for Continental Ins. Co., et al; Mary Reeder of Indianapolis, IN and David Schoenfeld, Irving Faberand Sarah McTurnan all of Chicago, IL. Attorney for Federal Ins. Co.; Stephen Peters of Indianapolis, IN. Attorneys for Century Indem. Co., et al; Scott A. Harkness and Bruce L. Kamplain of Indianapolis, IN. Attorneys for Certain Solvent Ins. Co. of The Lloyd's of London Market Co.; Russell Perdew of Chicago, IL and Donald Orzeske of Indianapolis, IN. Attorneys for Employers Mut. Cas. Co.; Ronald Heath and Sean T. White of Indianapolis, IN. Attorney for Hartford Accident and Indem. Co., et al; Donald Kite, Sr. of Indianapolis, IN. Attorneys for TIG Ins. Co.; David Temple of Indianapolis, IN and Louis Corsi and Joseph Tomaino of New York, NY. Attorneys for Allstate Ins. Co.; Norman Funk and Rori Goldman of Indianapolis, IN and Robert Anderson, III and David Rubin of Chicago, IL. Attorney for Amici Curiae Indiana Mfrs. Ass'n and Duke Energy Indiana, Inc.; Kevin Toner of Indianapolis, IN. Attorney for Amici Curiae United Policyholders and Indiana Mfrs. Ass'n; Charles Denton II of Grand Rapids, MI. Attorney for Amicus Curiae Duke Energy Shared Services; Eric Cavanaugh of Plainfield, IN. Attorneys for Amicus Curiae United Policyholders; William Passannante, Cort Malone and Brittany Hillman all of New York, NY and Amy Bach of Mill Valley, CA. Attorneys for Amici Curiae Nat'lSolidWastes Mgmt Ass'n and Indiana Petroleum Marketers and Convenience Stores Ass'n, Inc.; George Plews, Christopher Braun and Jeffrey Featherstun of Indianapolis, IN. Attorneys for Amicus Curiae Complex Ins. Claims Litig. Ass'n; Michael Cracraft of Indianapolis, IN and Laura Foggan and Benjamin Theisman of Washington, DC.
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, Jan. 15th:
9:30 AM - John B. Lind vs. Menard, Inc., et al - Plaintiff John B. Lind appeals the trial court's order granting summary judgment to Defendant Scotch Corporation following his petition for damages against Scotch under theories of negligence, strict liability in tort, and breach of warranty. The Scheduled Panel Members are: Judges Darden, Robb and Bradford. [Where: North Central High School, Indianapolis]
This Wednesday, Jan. 15th:
10:00 AM - JP Morgan Chase Bank, N.A., vs. Desert Palace, Inc. and Opbiz - This case raises the issue of whether Desert Palace, Inc. and Opbiz, LLC (together the Casinos) have sufficient minimum contacts with Indiana to subject the Casinos to Indiana's personal jurisdiction. If so, the question becomes whether Indiana is an inconvenient forum for JP Morgan Chase Bank's (Chase) action against the Casinos. The Scheduled Panel Members are: Judges Kirsch, Robb and Vaidik.. [Where: Krannert Center for Executive Education, Purdue University]
Sunday, January 13, 2008
Courts - "Justices to decide whether murder victims' prior statements are admissible"
David G. Savage reports in the Los Angeles Times:
WASHINGTON -- The Supreme Court agreed Friday to hear a Los Angeles murderer's appeal to decide a legal question that sounds like a macabre joke: The man argues that his victim's statements to police shouldn't be admissible, because the dead witness isn't available for cross-examination.The Indiana case was Hammon v. Indiana (05-5705). For background, see this ILB entry from June 19, 2006, headed "U.S Supreme Court decides Indiana 'confrontation clause' case today."
The case, to be decided in the spring, could have a serious impact in many trials where a key witness isn't there to testify.
Three years ago, in something of a surprise, the high court said "hearsay" or other out-of-court statements generally cannot be used in a trial. That repealed the more relaxed rule that had been in effect for more than two decades.
Prior to 2004, reliable out-of-court statements, such a police officer's report of an interview with a witness, could be used at a trial if the witness was not available.
This issue arises often in cases of child abuse or spousal abuse, when the victim is often too afraid to testify.
But Justice Antonin Scalia, speaking for the court, said this relaxed approach to hearsay conflicts with the 6th Amendment, which says the accused "shall enjoy the right . . . to be confronted with the witnesses against him."
Scalia said those words should be read literally, and they give defendants the right to confront and cross-examine their accusers in court. This is essential, he said, so the jury can decide who is telling the truth.
Since then, judges have struggled to decide how far to take that right.
Two years ago, the high court reinforced its new stand when it threw out a spousal assault conviction against an Indiana man whose wife had refused to testify. However, the jury heard from a police officer who had been called to their house. The woman said she been hit and thrown to the floor, the office reported, and he described her bruises. But Scalia said the officer's report should have been excluded from the trial.
The new case, Dwayne Giles vs. California, tests the outer limit of the right to confront a witness.
Courts - Nevada high court defies lawmakers on salaries
ILB readers may recall Indiana stories of disputes between county courts and county commissioners over who sets the salary of the court's staff. Sometimes these disputes have resulted in judicial mandates that end up before the Indiana Supreme Court.
In the State of Nevada, a similar dispute may be occurring at the state level. Some quotes from a story by Cy Ryan in the Las Vegas Sun:
Carson City — The Nevada Supreme Court has once again exerted its power to ignore the law.Separation of powers, not mentioned in the story, would appear to play a part in this dispute.
A bill passed by the 2007 Legislature set the maximum salaries that can be paid to state employees, including those who work for the Supreme Court.
The court, however, says that law does not apply to it and has ordered the state’s payroll system to pay an annual salary of $135,240 to court administrator Ron Titus, effective immediately. The Legislature set that salary at $116,688, not including a 2 percent raise effective last July 1.
The court, in an order signed by all seven justices, says it “is vested with administrative control over its own affairs” under the Nevada Constitution. Beyond increasing some current employees’ salaries, the court plans to create positions not approved by the Legislature.
The court did the same thing with salaries in 1989.
With this year’s additional pay raises, the court will not exceed its overall budget. * * *
Assemblyman Morse Arberry, D-Las Vegas, chairman of the Interim Finance Committee, which handles budget matters between sessions of the Legislature, wants the court “to tell us the justification” for the higher pay for its employees.
The Supreme Court’s action “puts a black eye on us,” Arberry said, referring to the legislative budget committees that set the salaries. Other agencies’ directors deserve bigger raises, but the money wasn’t available, he said.
He also said the court’s salary hikes reflect bad timing, coming as they do when state agencies have been ordered by Gov. Jim Gibbons to cut their budgets by 4.5 percent. The court has voluntarily agreed to reduce its budget by that amount.
Ind. Decisions - "Is voter fraud or politics the issue" in the voter ID case?
"Is voter fraud or politics the issue?" is the headline today to a commentary piece by Sylvia A. Smith, Washington editor of the Fort Wayne Journal Gazette that concludes:
Is the right to vote such a cornerstone of U.S. democracy that even one additional barrier between a single voter and the ballot box is too much?
That seems to me to be the heart of the case, not whether the lawsuit was filed by an organization as opposed to a person. And it’s interesting to see who’s on which side.
You wouldn’t think Republicans would embrace the greatest-good-for-the-greatest-number argument. Moreover, the Democrats’ approach – the individual’s right transcends the collective well-being – has a libertarian whiff that might be more at home in the GOP.
But of the two, the Republicans’ argument is more incongruous because they flatly deny the partisan advantage they gain when the law makes it tougher for a class of Democratic-leaning voters to vote. The Democrats readily acknowledge that it’s their voters – the elderly, the poor, minorities – who are more likely to not have a driver’s license or passport and, therefore, are less likely to be able to vote if they have to jump through hoops.
Republican defenders of the law (who are quick enough to sniff out partisan motivation when it suits them), are shocked that anyone would so cynically suspect them of trying to tweak the outcome of elections.
They talk about the sanctity of voter confidence and argue that anything done to improve voter confidence helps prop up the republic. They discount, however, the value of voters’ confidence that the system will be run fairly and not skewed to help or hurt one party over the other.
Several justices asked why, if the GOP-led Indiana General Assembly was only concerned with preventing in-person voter fraud, it didn’t pass a law that required a photo on Hoosiers’ voter registration card.
Ind. Law - Last Week in Review at the Indiana General Assembly
The ILB is pleased to see that the Evansville Courier & Press' Bryan Corbin is continuing in the year 2008 the Sunday review of the past week in the General Assembly (and a look ahead at the upcoming week) started in the 2007 session. Today's review begins:
With the pressure on to restructure property taxes, the Indiana General Assembly rocketed out of the gate last week, grinding through several proposals to change the way property taxes are collected and spent.See the lengthy story itself for the details.
The first week of the Legislature's 2008 session was extremely busy, and the week ahead will be busier still, with several key votes planned on property tax issues.
For more on the effort to repeal the property tax, see this story by Lesley Stedman Weidenbener of the Louisville Courier Journal.
Ind. Gov't. - "New online toolkit available for public construction protesters"
Pam Tharp of the Richmond Palladium-Item reports, in a story later picked up by the AP, that:
Residents who want to object to new public construction projects now have an online toolkit to help them.
The Citizen's Petition and Remonstrance Toolkit was created to help Hoosiers understand what the Department of Local Government Finance calls "a complicated objection process."
"Hoosier citizens have the right to object to local spending," DLGF Commissioner Cheryl Musgrave said. "This toolkit will help taxpayers navigate the complicated process and ensure their voices are heard."
In Indiana, opponents of a capital project must file a remonstrance petition and gather more signatures against a project than its supporters collect to be able to halt a public building project.
The toolkit gives answers to frequently asked questions, a flow chart of the remonstrance process, sample forms and links to laws and voter registration offices in local communities. The toolkit can be found on the DLGF Web site.
Indiana is one of only a handful of states that doesn't require voters to approve public capital projects, but that may change.
Saturday, January 12, 2008
Environment - CAFOs in Grant County
Recent ILB entries have concerned CAFOs in Randolph and Delaware Counties. Today AJ Colley of the Grant County Chronicle-Tribune has a long article about CAFOs in that county. It begins:
As two confined animal feeding operation farms' permits work their way through an appeal process at the state level, three other CAFO farms in Grant County continue to keep livestock rearing a family tradition.
In all, five CAFO permits have been approved in the county. Two of those - one for Chris Duckwall and one for John and Becky Stuber - are being appealed to an environmental judge in Indiana, and three others are already permitted and operating. People on both sides of the issue have come forward with strong opinions about the large farms.
Some worry about the environmental effects of them; others are concerned with odors involved with manure. Supporters, though, say CAFO farms are the future and pose no threat to people who live around them.
According to the Indiana Department of Environmental Management, one permit is for Jackson Dairy Farms for 820 dairy cows. The other two belong to swine farm operators Jason Sweet and Gary DeDecker, who are permitted to have 5,300 and 4,000 swine, respectively, according to IDEM.
Ind. Decisions - "Court upholds 6-year term for prison-escape scheme"
The Indiana Court of Appeals has upheld the six-year sentence of a Bloomington man who walked out of a state prison after forging a prison release order.This June 8, 2007 ILB entry gives two other instances of court documents being forged, one by a prisoner in Tippecanoe County, and another by a prisoner in Kentucky.
Wednesday's ruling said Jared Bailey's actions were particularly worrisome because they could lead to "weakening confidence in the criminal justice system."
Bailey, 24, argued in his appeal that the sentence for forging a release order while incarcerated in the New Castle Correctional Facility wasn't appropriate.
He was released early from the prison in February 2007 after a woman dressed as a corrections official displayed a Marion County Community Corrections badge and a court order for his release, purportedly signed by a judge.
Bailey had mailed her fake court papers that authorities said he created in the prison's law library. The woman in the case told officers that Bailey had duped her into picking him up at the prison after calling her several times.
The woman was not charged because police believe that she did not know that Bailey was supposed to remain in prison until November 2008 on sentences for forgery, theft and receiving stolen property. .* * *
In its decision, the appellate court upheld that prison term, declaring that Bailey's forgery offense "strikes us as more troubling than a typical forgery" because it involved the impersonation of a judge.
"Such an offense has at least the potential of weakening confidence in the criminal justice system's ability to house this state's criminals in a competent fashion," the ruling said.
Bailey faces pending charges in Monroe County for a similar October 2004 incident in which he is accused of creating his own court order while held in the county jail.
In that case, he was not released because jailers thought the papers looked suspicious.
Ind. Courts - Even more on "Marion Superior Court judges plan to start cracking down on prospective jurors who don't show up on the days they're assigned"
Updating this ILB entry from Jan. 9th, Jon Murray reports today in the Indianapolis Star on 17 people "who faced warrants this week during a crackdown on no-shows that began in the fall." More:
The crackdown is the first in memory to threaten penalties for missing jury duty.
Marion Superior Court Judge Mark Stoner ordered four to serve 16 hours of community service each this month at Eagle Creek Park. "If you do not show up for community work service, you will do 30 days in Marion County Jail," he said.
The 17 were among 325 summoned to court in November because they did not show up when they were called for jury duty during one week the month before. On a typical day in Marion County, more folks skip out than show up.
Of those 17, some were targeted because they missed that November hearing. * * *
Additional hearings could come next week as the Failure to Appear Office continues looking for others on the warrant list.
Ind. Courts - Michigan City attorney Kevin McGrath to seek the Democratic nomination for Superior Court 2 Judge
From the Michigan City Post-Dispatch:
Michigan City attorney Kevin McGrath has announced he will seek the Democratic nomination for Superior Court 2 Judge in the May 6 primary election.
Judge Steven King announced this week he plans to retire, opening up the seat.
"Judge King has had a very distinguished career on the bench serving the citizens of La Porte County, and I wish him well in his future retirement," McGrath said.
McGrath, who lost in the race for La Porte Circuit Court Judge last year, was an attorney for the Legal Services Program of Northern Indiana (now Indiana Legal Services) for 24 years, with 16 years as it executive director.
Friday, January 11, 2008
Ind. Decisions - Transfer list for week ending January 11, 2008
Here is the Indiana Supreme Court's transfer list for the week ending January 11, 2008. Be sure to view both pages.
There were at least three transfers granted this week. See this ILB entry from earlier today for two of them. a third, granted with opinion Jan. 9, is Elmer Bennett v. State of Indiana - see ILB summary here, second case.
In addition, the ILB has just received notice of another Transfer granted with Published Order, granted today, in the case of Floyd Tewell v. State of Indiana. Here is the Nov. 5, 2007 ILB COA summary. The ILB has not seen today's order.
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 - "Wabash triple-murderer denied belated appeal of sentences"
Referencing the Supreme Court decision Wednesday in the case of David T. Sholes v. State of Indiana (see ILB summary here - 3rd case), Rebecca S. Green of the Fort Wayne Journal Gazette reports today:
A convicted triple-murderer cannot appeal his sentence, according to a recent ruling by the Indiana Supreme Court.
The ruling, issued Wednesday, overturned a ruling by a Huntington County judge that allowed David T. Sholes to belatedly appeal his sentence.
In October 2006, Huntington Circuit Judge Thomas Hakes granted Sholes’ request to appeal his prison sentences, meted out for three charges of murder and one count of attempted murder. Hakes was appointed a special judge in the 1996 Wabash County case.
Sholes, 52, is serving a life sentence, two 65-year sentences and one 55-year prison sentence in the Indiana State Prison in Michigan City for the slayings. * * *
Sholes pleaded guilty to three counts of murder and one count of attempted murder under an open plea agreement, which meant that prosecutors did not request a specific prison sentence.
Having tried numerous times to have his sentences overturned or reduced, Sholes claimed, most recently, he was not advised of his right to appeal his sentence, which would be required in an open plea case – one where there is no set term of years.
Hakes agreed and allowed him to file a belated appeal.
But in its ruling this week, the Indiana Supreme Court said Sholes is not eligible to challenge his sentence of life without parole – for Swan’s murder – because it was not in fact an open plea.
With regard to the other sentences, Sholes could not file a belated appeal because he had not demonstrated diligence in trying to appeal for the eight years between when he was sentenced and when he sought permission to file a belated appeal, the court ruled.
Hakes declined to comment on the ruling.
Ind. Courts - Reports on bills of interest to the Judiciary discussed this week
The Indiana Judicial Center has just posted its first installment of very useful reports for 2008 on bills of interest to the Judiciary. Access them here.
Ind. Decisions - Court of Appeals issues 2 today (and 2 NFP)
For publication opinions today (2):
In In the Matter of the Adoption of a Minor Child, H.N.P.G. , a 13-page opinion, Judge Mathias concludes:
The Boone Superior Court properly adjudicated the Foster Parents’ petition to adopt H.N.P.G. while CHINS proceedings were pending in Boone Circuit Court. Furthermore, H.N.P.G.’s biological mother’s deposition was properly admitted. Finally, the probate court’s conclusion that Blake’s consent to the adoption was not required is not clearly erroneous. The Foster Parents proved that Blake is unfit to be a parent and that the adoption was in H.N.P.G.’s best interests. Affirmed.In Merle V. Bettenhausen, in His Capacity as Personal Representative of the Estate of Tony Bettenhausen v. Thomas Godby and 109 Gasoline Alley, LLC , a 5-page opinion, Judge Bradford writes:
It is undisputed that Plaintiffs failed to file any petition with the probate court detailing its interest within the five-month statutory period. Merle contends that Plaintiffs are totally barred from suing the estate directly and are now limited to suits against the beneficiaries of the estate. Plaintiffs, for their part, contend that Indiana Code section 29-1-14-21 is permissive and that it in no way bars direct suits against the estate outside the probate process.NFP civil opinions today (1):
While it is true Indiana Code section 29-1-14-21 provides that a person with an interest in property held by the personal representative “may” file a petition with the probate court, the statute is silent regarding the consequences of failing to do so. This Court, however, has held that “the consequence of a failure to file a timely claim under IC 29-1-14-21 is that the claimant must proceed against the distributees [of the estate] rather than the estate.” Estate of Penzenik, 749 N.E.2d at 64-65 (citing Estate of Baker v. Lahrman, 505 N.E.2d 104, 105 n.4 (Ind. Ct. App. 1987)). Because all agree that Plaintiffs failed to file a petition within the five-month statutory period, they cannot now sue the estate in another forum and must proceed, if at all, against the beneficiaries of Bettenhausen’s estate. The trial court erred in denying Bettenhausen’s motion for judgment on the pleadings; we therefore reverse and remand with instructions to dismiss Plaintiffs’ declaratory judgment action. The judgment of the trial court is reversed and remanded with instructions.
JPMorgan Chase Bank, N.A. v. William L. Coglianese, Jr. (NFP) - "We dismiss the purported appeal of the Trial Rule 60 decision and affirm the award of attorney’s fees."
NFP criminal opinions today (1):
Ind. Decisions - Court grants transfer in two cases
The formal transfer list will follow later today, but the ILB has received notice that two cases have been granted transfer:
Liberty Publishing, Inc. d/b/a Booster Club Productions v. Steve Carter, Attorney General & Nu-Sash of Indianapolis, Inc. d/b/a McKee Sunroom Designs (see summary of 6/25/07 COA opinion here), a consolidated appeal of the challenges of Liberty Publishing, Inc. (“Liberty”) and Nu-Sash of Indianapolis, Inc. (“Nu-Sash”) to the trial courts’ orders to enforce the Civil Investigation Demand (the “CID”) issued by the Attorney General of Indiana (the “AG”) to investigate the companies under the Indiana Deceptive Consumer’s Sales Act (the “IDCSA”) and the Indiana Home Improvement Contract Act (the “IHICA”), respectively. The COA affirmed the decisions of the trial courts to enforce the CIDs against Liberty and Nu-Sash, and ordered them to immediately produce relevant discovery pursuant to the CID.
Indiana State University v. Review Board, and William A. Lafief (see summary of 6/22/07 COA opinion here - 6th case) - ISU claimed that the Review Board erroneously concluded that LaFief had been discharged from his position at the university and was, therefore, eligible for benefits. Concluding that the Review Board erred in determining that LaFief was eligible for unemployment benefits because he had not been discharged from his employment at ISU, the COA reversed.
Ind. Decisions - 7th Circuit decides one Indiana case today
In Darst, Trustee v. Interstate Brands Corp. (SD Ind., Judge Tinder), a 17-page opinion, Chief Judge Rovner writes:
Krzysztof Chalimoniuk worked for Interstate Brands Corporation (“IBC”), a manufacturer of baked goods, for fifteen years before he was terminated for excessive absenteeism. Chalimoniuk is an alcoholic and he sought treatment for that condition in his final days at IBC. He requested leave under the Family and Medical Leave Act (“FMLA”) for an absence extending from July 29, 2000 to August 14, 2000. From August 4 through August 11, he was hospitalized for treatment for alcohol dependence and acute withdrawal syndrome. On August 15, when he returned to work, he was terminated for absenteeism. The district court agreed with IBC that Chalimoniuk could not show he was entitled to FMLA leave for July 31, August 2 and August 3, all days that he was scheduled to work. His absences for those three days, combined with absences he had accumulated earlier, put him over the limit for absenteeism under IBC’s attendance policy. Because he lacks evidence establishing his entitlement to FMLA leave for those three days, we affirm.
Ind. Courts - Judge Tandy to seek re-election to Shelby Superior Court No. 1
From The Shelbyville News, a story that begins:
Judge Jack Tandy announced his intention on Tuesday to seek re-election as judge of Shelby Superior Court No. 1.
Tandy, 50, has served as a judge in Shelby County since 1985. He began his judicial career in Shelby County Court, which became Shelby Superior Court No. 2 in 1989. Tandy successfully ran for the judgeship of Superior Court No. 1 in 1990 and is currently serving in that capacity.
Superior Court No. 1 handles criminal felony and civil cases such as divorces and personal- injury matters and all the juvenile cases filed in the county. Juvenile cases include delinquency, paternity and child-welfare cases.
Ind. Courts - More on: Grant County Courthouse may be restored
Updating this ILB entry from Sept. 14, 2007, Maribeth Holtz of the Grant County Chronicle-Tribune has a long story today headed "Leaders undecided on courthouse: County council wants more public input."
Ind. Decisions - "Court tackles Studebaker cleanup"
Updating this ILB entry from Mon., Jan. 10th, Jeff Parrott of the South Bend Tribune reports today on yesterday's oral argument before the Supreme Court in the case of Cooper Industries, LLC v. City of South Bend. Some quotes:
The Indiana Supreme Court must decide what the General Assembly meant by "retroactive application" when it passed a 1998 environmental cleanup law.The ILB points out that the question of how the Indiana Supreme Court would rule is currently awaiting a decision by the 7th Circuit, while the Indiana Supreme Court itself is now considering how it will rule. The federal district court ruling is Commercial Logistics Corp. v. ACF Indus., Inc., 2006 U.S. Dist. WL 3201916, at *8 (S.D. Ind. July 18, 2006). Here is a link to that opinion, by Judge Sarah Evans Barker.
At stake is $15 million to $20 million the city of South Bend expects to spend cleaning up the former Studebaker site for private redevelopment as a light industrial park. Under a 2003 lawsuit, the city is trying to recoup its costs from Cooper Industries, a company the city alleges is Studebaker's corporate successor.
The state's high court heard oral arguments Thursday from attorneys for the city and Cooper Industries. * * *
The 25-block, 104-acre site lies just south of the downtown area. In his arguments before the five justices, Cooper Industries attorney Tom Heiden traced the site's history back to 1852, when a blacksmith shop operated there. The Studebaker brothers made wagons during the Civil War era, produced some of the first automobiles in the early 1900s, churned out military vehicles and parts during the world wars, and finally, built more cars there until Studebaker's closure in 1963.
Cooper Industries, which in 2004 merged with McGraw-Edison, Studebaker's liability insurance carrier, was involved in none of that activity, Heiden told the high court.
But Indianapolis attorney George Plews, representing the city, told the justices that Cooper Industries persuaded the Internal Revenue Service and Georgia state revenue officials that McGraw-Edison and Cooper were indeed the same entity -- when that finding resulted in a $51 million tax deduction.
But both sides focused their 20-minute arguments mainly on the statute of limitations, and whether it applies to municipalities seeking recovery of brownfield site cleanup costs.
Cooper Industries' Heiden argued that Indiana's Environmental Legal Action law, one of the laws under which the city has brought suit, required the city to file its lawsuit within six years of learning of the contamination.
The Indiana Court of Appeals, reversing a Marion County trial court's ruling, in April ruled for Cooper, finding that the city knew of the contamination as early as 1991 -- 12 years before filing suit against McGraw-Edison in 2003.
Under that rationale, the city had until 1997 to file suit. The city has argued, and the Marion County trial court agreed, that it couldn't have met the six-year deadline if the ELA law didn't even exist yet. The city has argued that the statute of limitations could not start running until 1998, when the ELA law took effect.
But in its April ruling, the appeals court cited a recent federal district court ruling finding that the General Assembly intended for the ELA law to be applied retroactively, meaning it is applicable to a cause of action that began even before the law took effect.
"Under the city's position, any costs for removal of contamination, no matter when occurred, would now be recoverable under the ELA," the appeals court wrote. "The number of ELA suits that would follow from such an interpretation cannot, absent a legislative expression to the contrary, be presumed to have been within the intention of the legislature ..."
Here is the "Statement of issues for review" in the Appellees' 7th Circuit brief:
1. Whether the District Court correctly predicted the Indiana Supreme Court would hold that Indiana’s six-year statute of limitations and the discovery rule apply to a private right of action pursuant to the Indiana Environmental Legal Action statute, Indiana Code §§ 13-30-9-1 et seq. (“ELA”).And from the Appellants' 7th Circuit brief:
2. Whether the District Court correctly predicted the Indiana Supreme Court would hold that, applying the discovery rule, CLC’s ELA claim was timebarred.
3. Whether the District Court’s grant of summary judgment for ACF Industries, Inc. (“ACF”) should be affirmed on the alternative ground that the ELA does not apply retroactively.
(1) Whether the district court erred in predicting that the Indiana Supreme Court would hold that the limitations period started running on a private cause of action under the Indiana Environmental Legal Actions statute, IND. CODE §§ 13-30-9-1 et seq. (the “ELA”) – an environmental remediation statute that applies retrospectively to pre-enactment conduct – years before the Indiana Legislature had even created that cause of action by enacting the ELA.
(2) Whether the district court erred in predicting that the Indiana Supreme Court would hold that ELA actions are governed by Indiana’s six-year limitations statute for injuries to real property, rather than its ten-year catch-all limitations statute, when the Indiana Supreme Court has previously held that private actions under the Indiana Underground Storage Tank (“UST”) statute, IND. CODE §§ 13-23-1-1 et seq. – an environmental remediation statute complemented by the ELA, and that also applies retrospectively to pre-enactment conduct – are governed by the State’s ten-year catch-all limitation statute.
Ind. Courts - Torrey Bauer will run for the Kosciusko Superior Court II seat
Jennifer Peryam reports for the Warsaw Times-Union:
Torrey Bauer will run for the Superior Court II seat in the May 6 Republican primary election.
Current Superior Court II Judge James Jarrette was unopposed in the 2002 election.
Election filing begins Jan. 23 and ends at noon Feb. 22. The last day for candidate withdraws is Feb. 25 at noon. The general election will be Nov. 4.
Thursday, January 10, 2008
Ind. Decisions - Still more on "Only indigent entitled to court-paid interpreters "
A recent decision by the Indiana Supreme Court could save Hoosier taxpayers money they didn't know they were paying. That money is for court translators.
The court ruled defendants who do not speak English are entitled to an interpreter. The question in front of the court was about who should pay for those translators, the taxpayer or the defendant. The court ruled that the defendant is required to pay if they are able. However, if the person requires a public defender and cannot make bail, chances are the court will pick up the tab for the translator.
Newschannel 15 discovered last year in Allen County the court spent over $85 thousand dollars on interpreters. That does not include $40 thousand it received from grant money.
The Indiana Supreme Court's decision came about after a defendant in Clark County, Indiana, hired his own attorney and posted bond, but did not pay for a translator.
The Allen County courthouse has been requiring defendants to pay for translators if they are able.
The most common languages, other than English, spoken by criminal defendants is Spanish, followed by Burmese. Judge Fran Gull tells Newschannel 15 Vietnamese, Laotian and dialects of Somalian are also becoming quite common. She says having a translator helps a trial immensely, but it does not solve all problems. She says certain terms like "probation" and "parole" used in US courts do not translate into other languages.
Ind. Courts - "Long-time judges hanging up their robes"
From Wednesday's LaPorte County Herald-Argus:
Two long-time judges in La Porte County announced Tuesday they will hang up their robes.
Judge Steven King of La Porte County Superior Court 2 in Michigan City and Judge Paul J. Baldoni of La Porte County Superior Court 3 in La Porte both said they would not seek re-election.
"I am very grateful for the opportunity I have had to serve in La Porte County's judiciary for the past 25 years. The work was challenging and provided day-to-day involvement with a cast of attorneys, court staff and courthouse employees who helped make it a stimulating and satisfying experience," King said in a press release. "A quarter-century in the center of conflict is enough, however ... so I opt to seek a bit more of the gentle side of life."
King, a Democrat, was first elected judge in 1990 and re-elected in 1996 and 2002. He also served as La Porte Circuit Court probate commissioner from 1983 to 1990, an appointee of the late Judge Robert S. Gettinger.
Baldoni, who will retire after 32 years of service, said in a press release, "It has been an honor to have served the citizens of La Porte County."
Baldoni credits his staff for their outstanding service, dedication and professionalism.
He was appointed to the bench in January 1976 by Judge Alban M. Smith.
Law - "The Future of Reputation: Gossip, Rumor, and Privacy on the Internet"
The Washington Post this morning had a Q & A with:
Daniel J. Solove, associate law professor at George Washington University and author of "The Future of Reputation: Gossip, Rumor and Privacy on the Internet," [He discusses] the Megan Meier-MySpace suicide case and the growing issues of free speech, privacy and reputation on the Web.The Q & A has a number of fascinating items.
And yes, this ties in somewhat with the posting immediately below re commenting on a pending divorce.
Solove's book is available here.
Courts - Husband posts about pending divorce in blog, court orders postings removed
From the NY Times today, a story by Abby Goodnough that begins:
BOSTON — Normally, Garrido v. Krasnansky, a divorce case playing out in Vermont family court, would be of little interest to anyone but the couple involved. But the court has ordered the husband to stop posting blog items about his wife and their crumbled marriage, possibly turning an ordinary divorce into a much broader battle over free speech on the Internet.
The husband, William Krasnansky, posted what he calls a fictionalized account of the marriage on his blog late last year. His wife, Maria Garrido, complained to the judge overseeing their divorce, who ordered Mr. Krasnansky to take down “any and all Internet postings” about his wife and their marriage pending a hearing next month.
Mr. Krasnansky, 51, says the order amounts to a prior restraint, a rare restriction of speech before publication, and a violation of his constitutional right to free speech. His lawyer, Debra R. Schoenberg of Burlington, Vt., has asked Judge Thomas Devine of Washington County Family Court to vacate the order and dismiss Ms. Garrido’s motion for immediate relief.
The order has surprised some experts in First Amendment law, who say it constitutes a prior restraint and appears too broad to be constitutional, especially since no hearing or trial has been held.
The dispute also highlights some still-murky questions about free speech in the Internet era, particularly the extent to which someone can use a so-called gripe site to air grievances, even if they are labeled fiction.
Environment - More on "Great Lakes Compact on track"
Updating this ILB entry from Monday, reporting that the Great Lakes Compact bill would be heard by the Senate Committee on Energy and Environmental Affairs on Wed., Jan. 9th, John Byrne and Gitte Laasby of the Gary Post-Tribune report today that the bill successfully passed out of committee yesterday:
With limited exceptions, the compact -- which passed the committee 10-0 -- 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.From the NWI Times:
Beaming as she left the committee meeting, Gary environmental activist Lee Botts said Wednesday's vote could signal Indiana's move to the forefront of Great Lakes preservation.
"This is an incredibly important demonstration of how Indiana thinks of Lake Michigan," Botts said. "It's especially important because the state has had a reputation for not caring about the Great Lakes."
Among the eight states bordering the Great Lakes, only Minnesota and Illinois have so far ratified the agreement.
The Indiana legislation, which now heads to the full Senate for consideration, would make the state the first to both adopt the pact and implement its recommendations, according to Northwest Indiana Forum Director of Environmental Affairs Kay Nelson.
The compact instructs the Great Lakes states to regulate water use and adopt conservation plans -- rules that could affect everything from sewage treatment to auto manufacturing.
INDIANAPOLIS | A bill that would include Indiana in a Great Lakes water management agreement passed a state Senate committee Wednesday.The ILB's annual gripe with stories about the General Assembly that do not identify the bill number for readers has been triggered here. No mention is made of the bill number by either the Post-Tribune or the Times. The bill is SB 45, authored by Senator Gard, co-authored by Senators Tallian, Charbonneau, Lanane, Zakas, Landske and Jackman.
Sen. Karen Tallian, D-Ogden Dunes, co-authored the bill bringing Indiana into the Great Lakes Compact, which would protect Great Lakes water from diversion, according to news releases from state senators Wednesday.
The Senate Energy and Environmental Affairs Committee unanimously passed the bill, according to the releases. The bill now goes to the Senate floor.
"The Great Lakes contain 20 percent of the freshwater in the world; they are an ecosystem of world-class significance and must be protected and managed on a regional level," Tallian said in a release.
Ind. Courts - Franklin County courthouse without heat this winter
John Estridge reports today in the Brookville American-Democrat in a story that begins:
Franklin County courthouse employees are wearing a few more layers of clothes than most people in Franklin County.
That is because they are working without heat. And it has been that way all winter.
Franklin County is currently remodeling the courthouse, and a decision was made early in the process to leave most of the employees in the structure while the remodeling was ongoing.
Franklin Circuit Court employees, including the probation department, moved to the courthouse annex immediately north of the courthouse during remodeling. But the employees in the prosecutor's office and the clerk's office have been left to deal with ongoing construction.
That has included: dust, noise, fumes, sewer smells and temperature issues.
With the temperature Thursday and Friday mornings in the single digits, the employees were faced with 40-degree temperatures in their workplaces. Thursday, the highest the temperature got in the courthouse was 54.
Diane Singer and Phyllis Schwegman, working in the prosecutor's child support division, wear gloves with the finger tips cut out, long sleeve sweaters, scarves and coats. “It's hard to work in these temperatures,” Schwegman said. “We are constantly trying to keep warm, and there's a bad draft from the windows.
Some employees have individual heaters, but the number of those is limited due to electrical problems. If they plug in too many, breakers go and the computers quit.
“It's hard to go get a file,” Schwegman said. “You're at least a little warmer at your desk.”
Ind. Courts - "Hill seeks office of Rush Superior Court Judge"
From the Rushville Republican:
Rush County native and current Rush Superior Court Judge Brian Hill has announced his intention to retain his seat and declare his candidacy for the 2008 election.
The first day for potential candidates to submit their declaration of candidacy to the Election Division of the Indiana Secretary of State’s Office is Jan. 23.
Judge Hill has held his current position since Jan. 1, 2007 when he was appointed by Gov. Mitch Daniels to fulfill a two-year vacancy as a result of Judge David E. Northam’s election to the Rush Circuit Court in November 2006.
Ind. Law - Forced annexation target of legislation
Niki Kelly reported Tuesday in the Fort Wayne Journal Gazette:
Cities and towns could no longer initiate annexations if even one property owner were opposed, according to a bill released Monday by a central Indiana senator.John Tuohy reports today in the Indianapolis Star:
Senate Bill 114 would outlaw hostile or forced annexations – such as the city of Fort Wayne taking over much of Aboite Township.
Indiana is one of only six states to allow involuntary annexations.
“The time has come to change Indiana’s annexation law and put the rights of Hoosier property owners and taxpayers first as opposed to the rights of municipalities,” said Sen. Jeff Drozda, R-Westfield, author of the legislation. * * *
The Indiana Association of Cities and Towns said the bill is not a surprise, especially given several annexation fights within Drozda’s Senate district.
“We don’t like it, obviously, but there is more to it than that,” said Matthew Greller, executive director of cities and towns. “We have to look at how you grow. People gather around municipalities for a reason – because they like the services. But we can only provide them if all the users are paying for them.
“So in certain situations involuntary annexations become necessary. They are using the roads, streets, parks, pools, and it’s important that we include those folks in the tax base of that particular unit.”
He also noted that in Indiana the vast majority of annexations are voluntary.
Geist homeowners who've been fighting annexation by Fishers might be encouraged by a state legislator's proposal to eliminate involuntary annexations in Indiana.
But Fishers Town Council member Stuart Easley doubts there would be much interest in the bill. Attorney Bryan Babb, who's representing Fishers, agrees.
"This is unconstitutional and spiteful special legislation that is poorly reasoned and intended to stop lawful ongoing annexations in Hamilton County and elsewhere, already paid for by municipal residents," Babb said.
Sen. Jeff Drozda, R-Westfield, who chaired an annexation study committee over the summer, introduced the bill this week. "We are one of only six states that still permit forced annexation," he said. "This would get rid of hostile annexation."
The bill, co-authored by Sen. Beverly Gard, R-Greenfield, would require consent by a majority of homeowners in an area being considered for annexation. Under current law, property owners opposed to annexation have to gather signatures from 65 percent of the residents just to challenge the annexation in court.
Ind. Decisions - "Justices seem hesitant to toss Indiana's voter ID law"
That is the headline to this long story today by Indianapolis Star Washington editor Maureen Groppe. It begins:
WASHINGTON -- Some Supreme Court justices questioned Wednesday whether Indiana could fashion a voter identification law that would help prevent fraud but be less burdensome than the law the state passed in 2005.Sylvia A. Smith, Washington editor for the Fort Wayne Journal Gazette, begins her story:
But the justices appeared reluctant to throw out the law, considered the toughest in the nation, that requires voters to show a photo ID issued by the federal or state government.
"You want us to invalidate a statute on the ground that it's a minor inconvenience to a small percentage of voters?" asked Justice Anthony Kennedy, a frequent swing voter.
WASHINGTON – Indiana’s voter ID law could be rewritten to be less of a hassle for some Hoosiers, a few Supreme Court justices said Wednesday, but the court seemed hesitant to say the three-year-old law is unconstitutional.David G. Savage of the LA Times writes:
Justice Ruth Bader Ginsburg was the only member of the nine-judge panel who appeared to fully reject the law, which requires voters to present a driver’s license or other government-issued photo identification before they vote.
People who show up to vote without the proper ID may cast a provisional ballot, which is then counted if the voter goes to the county courthouse within 10 days to show his driver’s license or other photo ID.
Washington lawyer Paul Smith, who represented the Democratic Party, said the law passed by the GOP legislature is particularly hard on low-income people without cars and elderly people who no longer drive, especially if they have to get to the courthouse to verify their identity. Voters in those categories skew Democratic.
Chief Justice John Roberts, who grew up in Indiana, seemed skeptical.
“How far away is the furthest county seat for somebody in the county? … County seats are not very far away in Indiana,” he said.
Indiana’s attorney, Thomas Fisher, said the law is important to reduce voter fraud.
But attorneys for neither side could quote specific numbers about how much fraud occurs or how many people have been denied a vote under the law.
Fisher acknowledged under sharp questioning that some people might have a tougher time voting because of the law, but “you’re talking about an infinitesimal portion of the electorate.”
Justice Anthony Kennedy asked Smith: “You want us to invalidate the statute because it’s a minor inconvenience to a small number of voters?”
Several justices seemed unsure how to balance an individual’s right to vote against the state’s need to guard against ballot-box fraud.
“Where do you draw the line?” Justice Samuel Alito asked. “There’s nothing to quantify in any way the extent of the problem or the extent of the burden. How do we tell if this is on one side of the line or the other?”
That distinction seemed less troubling to Roberts. He said the government is right to be concerned about voter fraud in close elections.
Nonetheless, Roberts scolded Indiana officials for doing “a lousy job” on voter registration. The federal government sued the state for not keeping its registration lists cleared of people who had died or moved.
Ginsburg suggested there are other ways for the state to guard against fake voters on Election Day that wouldn’t cause anyone any additional steps. She said, for instance, a photo could be taken when a person registers to vote, making for a one-stop registration and identification process.
Justice Stephen Breyer appeared to like that idea. “That ... would satisfy your anti-fraud interest much better than the way you have chosen,” he told Fisher.
WASHINGTON -- For a second time this week, a liberal challenge to a disputed state law floundered in the Supreme Court because lawyers could not show hard evidence that anyone had been harmed by the statute.Robert Barnes' report in the Washington Post begins:
At issue Wednesday was Indiana's election law, the strictest in the nation, which requires voters to show an official photo identification, such as a driver's license or a passport, before casting a ballot.
Democrats challenged the law as a voting rights violation, contending the Republican-backed measure would deter thousands of poor, minority or elderly voters from casting a ballot.
But they filed their lawsuit in 2005, before the law had gone into effect and without naming any people who said they would be prevented from voting by the photo identification rule. That led to a round of skeptical questions from the court's conservatives, including how the law might have hurt voters.
"You want us to invalidate a statute on the grounds that it's a minor inconvenience to a small percentage of voters?" Justice Anthony M. Kennedy asked near the end of the hourlong arguments.
Led by Chief Justice John G. Roberts Jr., the high court has been increasingly unwilling to strike down state laws or regulations based on broad, hypothetical complaints. Roberts has insisted on real plaintiffs who cite specific problems.
The same theme was on display Monday when the court heard a challenge to lethal injections in a Kentucky death penalty case.
Defense lawyers insisted that the method of carrying out executions should be struck down as unconstitutional because, if done wrong, the condemned person might suffer searing pain. But the lawyer arguing the case had to admit there was no evidence that the method had been done wrong in Kentucky, which has not carried out an execution since 1998.
The Supreme Court appeared unmoved yesterday by arguments that an Indiana law requiring voters to present photo identification imposes an unconstitutional burden. Some justices, however, appeared to search for a middle ground on the divisive and partisan political issue.Linda Greehouse begins her report in the NY Times:
Experts on voting rights see the legal battle over Indiana's toughest-in-the-nation voter identification law as the most starkly partisan case to reach the court since Bush v. Gore decided the presidential election in 2000.
And the court's questioning during an hour-long oral argument broke quickly along its own ideological divide. But the justice most often in recent years to play the decisive role -- Anthony M. Kennedy -- made it clear he did not share the challengers' view of the burden that producing a photo ID imposes.
WASHINGTON — There are many ways to lose a Supreme Court case, and by the end of an argument that was before the court on Wednesday, the Democrats who were challenging Indiana’s voter-identification law appeared poised to lose theirs in a potentially sweeping way, with implications for many future election cases.
The justices’ questioning indicated that a majority did not accept the challengers’ basic argument — that voter-impersonation fraud is not a problem, so requiring voters to produce government-issued photo identification at the polls is an unconstitutional burden on the right to vote.
The tenor of the argument suggested, however, that rather than simply decide the case in favor of the state, a majority of five justices would go further and rule that the challenge to the statute, the strictest voter-identification law in the country, was improperly brought in the first place. Such a ruling could make it much more difficult to challenge any new state election regulations before they go into effect.
Ind. Decisions - "State high court sides with police on DUI arrest"
Reporting today on the Supreme Court's decision yesterday in the case of State of Indiana v. Cheryl Oddi-Smith [see ILB summary here, along with links to earlier related entries], Jon Murray of the Indianapolis Star reports:
Police and prosecutors welcomed an Indiana Supreme Court decision Wednesday that settled questions about the validity of arrests following the Indianapolis police merger.
The questions arose after a Marion County judge threw out a drunken-driving case in August because the arresting officer had not taken a new oath for the consolidated Indianapolis Metropolitan Police Department, which formed in January 2007.
In the 5-0 opinion, Chief Justice Randall T. Shepard wrote that sworn officers in the Indianapolis Police and the Marion County Sheriff's departments retained their status when the agencies merged.
The decision reinstates the charges against Cheryl Oddi-Smith in Marion Superior Court.
Attorney General Steve Carter said he was relieved that the high court didn't allow her to escape through a loophole. It wasn't clear whether just a handful or thousands more arrests would have been in jeopardy if the Supreme Court had upheld the dismissal. * * *
Oddi-Smith, now 44, was arrested on Jan. 15, 2007, by IMPD officer William J. Bueckers after a three-car fender-bender.
Her attorneys, James Voyles and Annie Fierek, argued that officers' sworn status didn't automatically transfer to IMPD, citing the merger ordinance passed by the City-County Council and IMPD's policy book. Hill agreed and granted their motion to suppress evidence because it was based upon an illegal arrest.
The attorney general's lawyers argued to the Indiana Supreme Court in November that state law doesn't even require police officers to take an oath to uphold the U.S. and state constitutions.
The justices disagreed. But their decision found the intent of a seamless transition for officers in both the state law allowing the police merger and the local ordinance carrying it out. An oath requirement in IMPD's general orders is aimed only at newly minted officers, the decision says.
"We think it sufficient grounds to say that the arresting officer was recruited, trained, and sworn as an IPD officer and that he took all that with him to the IMPD," the six-page opinion concludes.
Oddi-Smith is a secretary at Voyles' firm.
Ind. Decisions - 7th Circuit decides three Indiana cases today
In Patriot Homes v. Forest River Housing (ND Ind., Judge Sharp), an 8-page decision, Judge Evans writes:
Two companies, Patriot Homes and Forest River Housing, compete in the modular housing manufacturing industry. Patriot sued Forest River Housing’s subsidiary, Sterling Homes, and four former Patriot employees (now Sterling employees) for copying their home designs. Sterling appeals the district court’s preliminary injunction order which enjoined it from misappropriating Patriot’s copyrights, confidential information, trade secrets, and computer files. * * *In U.S. v. John Neal (SD Ind., Judge Tinder), a 26-page opinion, Judge Ripple writes:
Patriot argues that there is no requirement that a court identify each and every element of copyright originality or trade secret and that the injunction identified specific proscribed acts. We disagree. The district court did not specify what information is a trade secret; the parties also dispute what information is protected. Sterling cannot tell, and neither can we, whether using the information it obtained through the FOIA requests would violate the injunction. While it is not always easy to ascertain what information is a trade secret or confidential at this stage of the proceedings, the district court still must make this determination in order to clearly delineate Sterling’s responsibilities pursuant to the injunction. Id. at 332 (“The problem of framing an appropriate order may be particularly acute in trade secret cases, but trade secret injunctions that are too vague must be set aside.”) (Internal citations omitted.) In fact, Patriot stated during oral argument that the only way Sterling might know that it violated the injunction order is to look at the transcript from the preliminary injunction hearing. This requires a lot of guesswork on Sterling’s part in order to determine if it is engaging in activities that violate the injunction, since the order itself is a little more than a recitation of the law. * * *
For these reasons, we VACATE the preliminary injunction because it lacks specificity as required by Rule 65(d).2 Accordingly, we REMAND for proceedings consistent with this opinion. The Defendants-Appellants are awarded their costs.
In 2000, John Neal pleaded guilty to six federal charges for which he was sentenced to 42 months’ imprisonment and thirty-six months’ supervised release. In September 2006, the Government petitioned the court to revoke Mr. Neal’s supervised release. The district court granted the Government’s petition and sentenced Mr. Neal to an additional 24 months’ imprisonment. Mr. Neal now appeals his sentence. For the reasons set forth in this opinion, we affirm the judgment of the district court.In U.S. v. Earkle J. Tyler (ND Ind., Judge Moody), an 11-page opinion, Judge Sykes writes:
Earkle Tyler was charged with possessing crack with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Tyler moved to suppress the crack, arguing that it was discovered only after police officers detained and searched him without reasonable suspicion. The district court denied this motion, and Tyler entered a conditional guilty plea. He now challenges the denial of his motion to suppress. Because the officers detained Tyler without reasonable suspicion that criminal activity may be afoot, the suppression motion should have been granted. We vacate Tyler’s conviction and remand with instructions. * * *
That Tyler was walking down the street on a Saturday afternoon in September lawfully carrying an open beer supports only a suspicion that he was drinking, not that he was drunk. * * *
“The spirit of the public intoxication statute is to prevent people from becoming inebriated and then bothering and/or threatening the safety of other people in public places.” Wright v. State, 772 N.E.2d 449, 456 (Ind. Ct. App. 2002).
The absence of reasonable suspicion to justify the officers’ initial Terry stop decides this case; everything that followed was fruit of the poisonous tree. * * * Accordingly, we vacate Tyler’s conviction and remand with instructions to grant his motion to suppress.
Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)
For publication opinions today (0):
NFP civil opinions today (0):
NFP criminal opinions today (2):
Ind. Law - "This bill puts a pharmacist's individual beliefs above a patient's needs" [Updated]
Pharmacists could refuse to dispense drugs they believe will be used to abort a pregnancy or commit suicide without fear of punishment by their employer under legislation that cleared the Senate Health Committee yesterday.For background see this ILB entry from 4/2/05 with a number of links to stories on pharmicists' refusals to fill prescriptions, and this entry from 9/4/05 which reports on how not only pharmicists, but some judges are opting out on "moral grounds."
Sen. Jeff Drozda, R-Sheridan, said the proposal would give pharmacists the same ability to decline to participate in an abortion as state law gives doctors, nurses and other health-care providers.
But critics say Senate Bill 3 could go much further by allowing pharmacists to refuse to dispense emergency contraception and even birth-control bills.
"This bill puts a pharmacist's individual beliefs above a patient's needs," said Amy Jacobson, a lobbyist for Planned Parenthood of Indiana.
Drozda assured committee members repeatedly that was not his goal. If he had wanted to include the dispensing of contraception, he would have used those words, Drozda said. "Contraception is not covered," he said.
After the meeting, however, Drozda acknowledged that a pharmacist could interpret the legislation as protection for refusing to fill a prescription for birth-control pills. He said he intends for the bill to cover Plan B, the so-called morning-after contraceptive that's available to women at least 18 years old. * * *
Four states, including South Dakota, have passed so-called "pharmacist conscience clause" laws, and four others have refusal laws that don't specifically mention pharmacists but apply broadly to health-care providers.
[Updated] Niki Kelly of the Fort Wayne Journal Gazette also reported today on yesterday's committee hearing. Some quotes:
Despite confusion over the intent and practical effect of a pharmacists’ conscience bill, a Senate panel approved the legislation Wednesday that critics said could impede access to contraceptive pills and devices.
“I don’t believe anyone on this committee believes we need to turn Indiana back to 1965,” said Sen. Vi Simpson, D-Bloomington, who voted against Senate Bill 3 along with her three Democratic colleagues and one Republican.
Six other Republicans voted “yes,” sending the legislation to the full Senate for amendments.
The bill, authored by Sen. Jeff Drozda, R-Carmel, said no pharmacist can be required to dispense a drug or medical device if the pharmacist believes it will be used for any of three reasons:
• To cause an abortion.
• To destroy an unborn child (which is undefined).
• To cause the death of a person by assisted suicide, euthanasia or a mercy killing.
A pharmacist who uses one of these sections to refuse service can’t be disciplined under the bill. If the employer does so anyway, the employer can be charged with a criminal offense.
Drozda could not give an example of a drug that would fall under the bill and could not explain the difference between the abortion section and the section involving an unborn child.
The Indiana Pharmacists’ Alliance said it has heard of no instances in which a pharmacist was disciplined for abiding by his religious or ethical beliefs. But Drozda said he has a constituent who was suspended for refusing to give out Plan B. * * *
The matter is complicated because the bill has no definition for unborn child and the Senate is considering a separate bill to define life as beginning when the egg is fertilized by a sperm. * * *
The next step for supporters and opponents is to try to find a definition that makes clear whether the bill covers dispensing contraceptives.
“We won’t agree on one,” Drozda said. “That’s been the battle before because it comes down to when you believe life begins.”
Ind. Decisions - "Only indigent entitled to court-paid interpreters "
The Indiana Supreme Court's decision yesterday in the case of Jesus Arrieta v. State of Indiana [see ILB entry here - 4th case] is the subject of a story today in the Louisville Courier Journal by Lesley Stedman Weidenbener. Some quotes:
Ruling in a Clark County case, the Indiana Supreme Court said yesterday that counties are not required to pay for interpreters to serve non-English speaking defendants unless they are indigent.
"Defendants who do not speak English are entitled to the help of counsel and defense interpreters," said the decision, written by Chief Justice Randall Shepard. "The indigent defendant receives this help at public expense; the solvent defendant proceeds on his own." But criminal courts must pay for interpreters to serve the entire court when witnesses don't speak English, the court said.
The ruling upheld a decision by Clark Superior Court Judge Cecile Blau.
In 2005, Blau provided Jesus Arrieta, who was charged with dealing cocaine, with a court-funded translator for his initial hearing but said later Arrieta would have to pay for his own interpreter for the rest of his proceedings.
Blau said then that the court would pay for a translator only if Arrieta, who had posted bond and hired his own lawyer, could prove he couldn't afford to pay one.
Arrieta appealed that decision and the Indiana Court of Appeals upheld Blau's decision. Arrieta then appealed to the state Supreme Court.
Wednesday, January 09, 2008
Ind. Decisions - Supreme Court issues four today, including decision re Marion County police powers challenge, and question of when must Court pay for interpreters
In State of Indiana v. Cheryl Oddi-Smith, a 6-page, 5-0 opinion on a petition to transfer pursuant to Rule 56(A), Chief Justice Shepard writes:
The trial court suppressed all the evidence from appellee Cheryl Oddi-Smith’s drunk driving arrest. It held that the arresting officer had no law enforcement authority because he had not been re-sworn after the consolidation of the Indianapolis Police Department (IPD) and the Marion County Sheriff’s Department (MCSD). We hold that all sworn officers of the IPD or MCSD at the time of consolidation satisfied the oath requirement for officers in the Indianapolis Metropolitan Police Department (IMPD). * * *Here is a list of earlier ILB entries on the Oddi-Smith case.
We now turn to the issue at hand: whether Indiana law requires an officer to be re-sworn upon consolidation of a city police department and a county sheriff’s department or whether the officer’s sworn status carries forward to this newly consolidated entity. * * *
The legislature’s enactment authorizing combination of the two departments leaves substantial flexibility to the local legislative body. * * * The statute does not impose any additional requirements on officers, such as passing a new examination or re-swearing. Rather, the statute dictates that the officers selected by the city-county council “shall be” officers of the consolidated organization, contemplating an automatic transition into active law enforcement duty. * * *
Next we turn to the General Ordinance creating the IMPD to determine whether it contained a requirement to re-swear the officers transitioning into the IMPD. The Ordinance provided that IPD and MCSD would cease to exist after December 31, 2006, and that IMPD would become the legal successor in interest thereafter. * * * Nothing in the Ordinance indicates that officers transitioning from the IPD and MCSD needed to be re-sworn.
Finally, Oddi-Smith relies on an internal IMPD directive, General Order 1.1.1, which provides: “All persons employed by the [IMPD] as a merit or reserve police officer, prior to assuming sworn status, must meet with the Chief of Police or Sheriff to receive the oath of office for this department.” (Appellee’s Br. at 2 n.1.) As with the state statute and the local ordinance, we view this directive as aimed at personnel new to law enforcement, not as requiring a second oath for officers who had been sworn before the consolidation.
Conclusion. There might well be other grounds on which the arrest of Oddi-Smith was valid, like the “de facto officer” doctrine. We think it sufficient grounds to say that the arresting officer was recruited, trained, and sworn as an IPD officer and that he took all that with him to the IMPD. We reverse the trial court’s suppression and dismissal and remand for further proceedings on the merits of the charges against Oddi-Smith.
In Elmer Bennett v. State of Indiana, a 2-page, 5-0 opinion, Chief Justice Shepard writes:
The contention in this appeal is that to obtain a conviction for theft, the State must prove the defendant intended to deprive the owner of its use – permanently. The Court of Appeals correctly rejected this contention. * * *In David T. Sholes v. State of Indiana, a 9-page, 5-0 opinion, Justice Dickson writes:
[In Coff v. State we ] rejected the notion that Indiana’s theft statute contains the common law larceny element requiring intent to permanently deprive. This aspect of Coff is still good law. We grant transfer and adopt the opinion of the Court of Appeals under Ind. Appellate Rule 58(A)(1).
Concluding that the defendant was not eligible to file a belated appeal of his sentence to life imprisonment without parole on Count II, and that the defendant failed to establish the dili-gence element required for permission to challenge his term-of-years sentences on Counts I, III, and IV, we dismiss the appeal.In Jesus Arrieta v. State of Indiana, an 11-page, 5-0 opinion, Chief Justice Shepard writes:
American courts regularly supply interpreters at public expense to criminal defendants who are indigent. This appeal presents quite a different proposition: what should the court supply when the defendant is solvent?Here is a list of earlier ILB entries in the Arrieta translator case.
When appellant Jesus Arrieta came before the court for his initial hearing on drug charges, the court provided an interpreter at public expense because the defendant did not speak English. The defense subsequently requested a court-funded interpreter for all remaining proceedings. The court declined to pay for these services absent a showing of indigency. The Court of Appeals affirmed on interlocutory appeal.
We distinguish defense interpreters, who simultaneously translate English proceedings for non-English-speaking defendants, from proceedings interpreters, who translate non-English testimony for the whole court. We conclude that courts should regularly provide proceedings interpreters at public expense when they are needed, regardless of a defendant’s indigency even when the defendant speaks English, as they are part of the basic apparatus of a court’s operation. By contrast, we see little reason why the public should finance defense interpreters for defendants who possess financial means.
Ind. Decisions - More today on the voter ID case
NPR's Diane Rehm Show this morning devoted an hour to "Voter ID Requirements and the Voting Process." The description:
The Supreme Court hears arguments for and against an Indiana law requiring voters to show a photo ID at the polls. We talk about the partisan divide over this law and ongoing concerns regarding the integrity of our electoral process.You may access the audio here.
John Fund, columnist, Wall Street Journal ans author of "Stealing Elections: How Voter Fraud Threatens Our Democracy"
Jeffrey Toobin, author of "The Nine: Inside the Secret World of the Supreme Court" (Doubleday), staff writer at The New Yorker; senior legal analyst for CNN, and former Assistant U.S.Attorney in Brooklyn, New York.
Doug Chapin, director, Pew's Electionline.org
Clive Thompson, contributing writer, New York Times Magazine
Jennifer Brunner, Secretary of State, Ohio
Lyle Denniston of SCOTUSBlog has a commentary on this morning's arguments that begins:
The Supreme Court, studiously avoiding almost all mention that it was examining a thoroughly partisan political battle, spent a spirited hour on Wednesday looking for ways either to scuttle a major test case over voters’ rights or to find a way — as if the Justices were writing a law themselves — to soften the impact of a tough state requirement for a photo ID before a voter may cast a ballot at the polls.The 81-page transcript of this morning's argument is available here.
Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)
For publication opinions today (3):
In Bacompt Systems v. Angelina Peck and David C. Peck , an 11-page opinion, Judge Bradford writes:
Appellant-Defendant, Bacompt Systems, Inc., appeals the trial court’s judgment granting the petition of Appellees-Plaintiffs, Angelina Peck and David Peck, to inspect Bacompt’s corporate records. Bacompt argues on appeal that the trial court abused its discretion in granting the Pecks’s petition because the Pecks failed to establish that their demand to inspect Bacompt’s records complied with Indiana Code section 23-1-52-2 (2006). We reverse and remand.In Richard P. Wallace v. State of Indiana , a 12-page opinion, Chief Judge Baker writes:
Appellant-defendant Richard P. Wallace appeals his conviction for Failing to Register as a Sex Offender,1 a class D felony. Specifically, Wallace argues that the requirement for him to register is an ex post facto law and the State forfeited its right to prosecute him in light of a previous plea agreement that had been negotiated. Finally, Wallace contends that the evidence was insufficient to support the conviction. Finding no error, we affirm the judgment of the trial court. * * *In Kevin Kuypers v. State of Indiana , a 7-page opinion, Chief Judge Baker writes:
Here, although the State was required to prove Wallace’s failure to register, we cannot conclude that it was obligated to demonstrate the precise moment in which the failure took place. Moreover, the statute required Wallace to complete a registration form following his release from probation. Of course, Wallace had completed his term of probation long before the registration requirement was made applicable to him in 2001. However, Wallace was in violation of his duty to register—including the requirement that he complete a registration form—from the date that the duty to register was imposed, July 1, 2001, until the date that he was charged with failing to register. And the State presented sufficient evidence that Wallace never fulfilled this duty. Therefore, we conclude that the evidence was sufficient to sustain Wallace’s conviction. The judgment of the trial court is affirmed.
Appellant-defendant Kevin Kuypers appeals his conviction for Child Solicitation,1 a class C felony. Kuypers argues that evidence that he engaged in an online chat with a believed-to-be fifteen-year-old girl, in which he neither specifically asked her to do anything nor made specific arrangements to meet in person, is insufficient to support the conviction. Finding the evidence sufficient, we affirm. * * *NFP civil opinions today (2):
Here, it may reasonably be inferred from the evidence that Kuypers requested and advised Samantha to meet with him and engage in, among other things, sexual intercourse. The absence of details does not make him any less guilty. We find, therefore, that the State presented sufficient evidence to support Kuypers’s conviction for child solicitation. The judgment of the trial court is affirmed.
Kenneth J. Hendrickson, d/b/a Family Farm Seeds v. Kerkhoff Seed Farm (NFP) - "Appellants-Defendants Kenneth J. Hendrickson (“Hendrickson”) and Family Farm Seeds, Inc. (“Family Farm Seeds”) (collectively, “the Defendants”) appeal the trial court’s entry of judgment against them on Kerkhoff Seed Farm, Inc.’s (“Kerkhoff”) claim for collection of a debt and the trial court’s entry of judgment against them on their breach of contract counterclaim. We affirm in part, reverse in part, and remand."
Kimball International Inc., et al v. Environetics, Inc., et al (NFP) - "Appellant-defendant Kimball International, Inc., d/b/a National Office Furniture (Kimball), appeals the trial court’s order dismissing its complaint against appellee-defendant Monteiro Development, Inc. (MDI), for lack of personal jurisdiction. Kimball argues that the trial court had personal jurisdiction over MDI pursuant to a forum selection clause contained in a contract signed by MDI. Alternatively, Kimball contends that the trial court should have permitted the parties to engage in discovery before ruling on the personal jurisdiction issue. Finding that MDI is bound by the forum selection clause and that the trial court may exercise personal jurisdiction over MDI, we reverse and remand for further proceedings."
NFP criminal opinions today 11):
Ind. Courts - Still more on "Marion Superior Court judges plan to start cracking down on prospective jurors who don't show up on the days they're assigned"
Updating this ILB entry from Nov. 15, 2007 on how the crackdown was beginning to show some results, today Jon Murray of the Indianapolis Star reports under the headline "Blown off jury duty? Marion Co.'s 1st warrants could be yours." Some quotes:
Marion Superior Court issued 17 arrest warrants Tuesday for people who missed jury duty or ignored court summonses as part of a crackdown on scofflaws.One wonders about the improved juror pool lists: see this ILB entry from Nov. 20, 2005, and this one from Sept. 14, 2006.
The judges hope the prospect of an arrest for contempt of court will spur more potential jurors to come in when they’re called. Despite months of publicity and public-service ads about the get-tough policy, the county’s no-show rate continues to hover below 50 percent.
Among those selected to be made the first examples, nine ignored summonses to mass court hearings called in November for people who had missed jury duty from Oct. 22 to 26.
Another eight showed up to those hearings, received a new jury assignment — and then didn’t show up again. * * *
Marion County’s difficulties in getting jurors to show up are not unique among urban areas, but surrounding counties report few problems.
The crackdown has shed light on shortcomings in the jury pool’s lists, which are based largely on data from the Indiana Bureau of Motor Vehicles that don’t always reflect changed addresses. Stoner said that about 15 percent to 20 percent of the summonses for November’s hearings were undeliverable.
Lawrence said the court would work with the BMV to improve the accuracy of its lists.
The court won’t back down from its aggressive stance until more people show up for jury duty, he said, making it likely the judges will go after more no-shows soon.
Ind. Decisions - More on: All is not over in the Clerk County probation fees dispute
Updating this ILB entry from Nov. 8, 2007, where it was reported that a motion to reconsider would be filed in the case of Clark County Council and Clark County Auditor v. Daniel F. Donahue, Cecile A. Blau, Vicki Carmichael, and Steven M. Fleece, the probation fees decision, today Ben Zion Hershberg of the Louisville Courier Journal reports:
The Indiana Supreme Court has declined to reconsider a decision it made last year supporting the authority of Clark County's judges to control how probation fees are used in their courts.Here is a list of earlier ILB entries on the probation fees case.
The high court ruled in favor of the judges in September in a 4-year-old dispute with the County Council about who controls the probation fees. Lawyers for the council then asked the court to reconsider, arguing that having to repay funds to the courts would be "disruptive."
But in a one-sentence order dated Monday, the Supreme Court declined to review its earlier decision.
Clark County Superior Court Judge Vicki Carmichael said yesterday that she and her colleagues were pleased. "We all are hoping to have this settled," she said.
An accounting firm is preparing an analysis of how much was inappropriately budgeted by the council and will have to be repaid, Carmichael said.
She said she hopes the judges and council can meet soon to settle the case.
Council President Dave Abbott said he also hopes the dispute can be resolved quickly. He said the makeup of the council has changed since the case began, and he and several colleagues believe the lengthy and expensive litigation was a mistake.
Environment - Proposal calls for 3-year moratorium on CAFOs
Pam Thorp reports in the Richmond Palladium-Item:
Controversy over concentrated animal feeding operations hasn't diminished since the General Assembly adjourned last year, so State Sen. Allen Paul has again introduced a bill that would impose a three-year moratorium on new CAFOs in Indiana.Here is a long list of earlier ILB entries referencing "CAFO". North Carolina imposed a 10-year moratorium on new hog farms some years beck. To learn more, start with this March 23, 2007 ILB entry.
Paul, R-Richmond, said the largest livestock farms remain one of the biggest issues in eastern Indiana.
"We discussed the issue last year, but this is one of the state's biggest challenges," Paul said. "It's a highly emotional issue. Once the land is gone, it's gone. If we had a moratorium for three years and really worked on this at the state and local level, we could address some of the legitimate issues."
Many Indiana counties are struggling with CAFO regulations. On Monday, the Randolph County commissioners imposed their own moratorium on new CAFOs until studies on seven topics are done, after rejecting a zoning ordinance that would have made 75 percent of the county's land eligible for large livestock factories.
Last Thursday, Delaware County had a packed zoning meeting on a proposed ordinance regulating CAFOs. * * *
Paul's bill wouldn't allow the Indiana Department of Environmental Management to approve any more CAFOs after June 30, 2008, until July 1, 2011. The moratorium would stop the construction of any CAFOs after June 30, even if an application was submitted prior to July 1, 2008.
The bill, S.B. 61, was assigned Tuesday to the Committee on Energy and Environmental Affairs. Paul hoped it would be assigned to the Senate Agriculture Committee, on which he serves.
"I know it could get a hearing (in the Ag committee), but I'll be talking about it with Sen. Beverly Gard (chairperson of the Energy and Environmental Affairs Committee)," Paul said.
Ind. Decisions - Still more on problems with new COA opinions format
Updating this ILB entry from Jan. 4th, until today only 5 COA opinions had been posted so far this year by the Clerk of the Courts. The 5 were posted on Jan. 3rd and proved to be unreadable by many who attempted to access them.
The problem appears to have been resolved yesterday. Today the Clerk's Office has begun posting opinions again and the ILB has had no problem opening the new files. ILB summaries will follow later today.
Ind. Courts - LaPorte Superior Court 4 Judge William J. Boklund to seek reelection [Updated]
From the Michigan City Post-Dispatch:
MICHIGAN CITY - Superior Court 4 Judge William J. Boklund announced Monday he will seek re-election. Boklund, a Democrat, became judge in December 1993, was elected in 1996 and re-elected in 2002.[Updated 1/15/08] See also this story from the LaPorte County Herald-Argus.
"Experience, creativity, fairness and extra effort are what I bring to this office," Boklund said. "I listen. I try to treat every person with respect and each case as my most important."
In 2006, Superior Court 4 was among the 10 busiest courts in Indiana.
Boklund is an honors graduate of Purdue University, a graduate of Valparaiso University School of Law, the Indiana Judicial College and the Indiana Graduate Program for Judges. In September, Indiana Supreme Court Chief Justice Randall Shepard named Boklund to the Board of Directors of the Indiana Judicial Conference, the policy making body for Indiana judges.
Ind. Decisions - Even more on Indiana voter ID oral argument
This is the day that Crawford v. Marion County Election Bd. will be argued before the Supreme Court of the United States. Here are some additional resources:
SCOTUSBlog has a wiki with information and links to probably everything you ever wanted to know about the case.
NPR's Nina Totenberg this morning on Morning Edition had a long report titled "Supreme Court Weighs Voter ID Requirements." Read the transcript here right now, or listen to it when the audio is available, at about 9 AM.
Mike Pitts, Associate Professor, Indiana University School of Law, has reviewed all the briefs in the case and yesterday posted a long entry titled "The Amicus Briefs in the Indiana Voter Identification Case: I read... so you don't have to" on the Election Law at Moritz blog.
Walter Dellinger and Sri Srinivasan have an article today on Slate titled "Election Burden: Indiana's voter-ID law is harmful and worthless."
Other resources may be added throughout the day.
Tuesday, January 08, 2008
Law - Mortgage servicing company "recreates" letters
Don't miss this, especially if you do any consumer bankruptcy work. It involves lenders pursuing "borrowers for additional money after their bankruptcies have been discharged," a not uncommon situation. It also touches on mortgage servicers who discard borrowers' monthly payments and then declare their mortgages "delinquent" so that they may impose extra fees. Oh, and yes, it also covers lenders who "recreate" letters they claim to have sent in the past.
"Lender Tells Judge It ‘Recreated’ Letters" is the headline to a long story today by Gretchen Morgenson of the NY Times. Some quotes:
The Countrywide Financial Corporation fabricated documents related to the bankruptcy case of a Pennsylvania homeowner, court records show, raising new questions about the business practices of the giant mortgage lender at the center of the subprime mess.The NYT also provides links to copies of the recreated letters, and the 21-page transcript of the court exchange on the Countrywide letters.
The documents — three letters from Countrywide addressed to the homeowner — claimed that the borrower owed the company $4,700 because of discrepancies in escrow deductions. Countrywide’s local counsel described the letters to the court as “recreated,” raising concern from the federal bankruptcy judge overseeing the case, Thomas P. Agresti.
“These letters are a smoking gun that something is not right in Denmark,” Judge Agresti said in a Dec. 20 hearing in Pittsburgh.
The emergence of the fabricated documents comes as Countrywide confronts a rising tide of complaints from borrowers who claim that the company pushed them into risky loans. The matter in Pittsburgh is one of 300 bankruptcy cases in which Countrywide’s practices have come under scrutiny in western Pennsylvania.
Judge Agresti said that discovery should proceed so that those involved in the case, including the Chapter 13 trustee for the western district of Pennsylvania and the United States trustee, could determine how Countrywide’s systems might generate such documents.
A spokesman for the lender, Rick Simon, said: “It is not Countrywide’s policy to create or ‘fabricate’ any documents as evidence that they were sent if they had not been. We believe it will be shown in further discovery that the Countrywide bankruptcy technician who generated the documents at issue did so as an efficient way to convey the dates the escrow analyses were done and the calculations of the payments as a result of the analyses.”
The documents were generated in a case involving Sharon Diane Hill, a homeowner in Monroeville, Pa. Ms. Hill filed for Chapter 13 bankruptcy protection in March 2001 to try to save her home from foreclosure.
After meeting her mortgage obligations under the 60-month bankruptcy plan, Ms. Hill’s case was discharged and officially closed on March 9, 2007. Countrywide, the servicer on her loan, did not object to the discharge; court records from that date show she was current on her mortgage.
But one month later, Ms. Hill received a notice of intention to foreclose from Countrywide, stating that she was in default and owed the company $4,166.
Court records show that the amount claimed by Countrywide was from the period during which Ms. Hill was making regular payments under the auspices of the bankruptcy court. They included “monthly charges” totaling $3,840 from November 2006 to April 2007, late charges of $128 and other charges of almost $200.
A lawyer representing Ms. Hill in her bankruptcy case, Kenneth Steidl, of Steidl and Steinberg in Pittsburgh, wrote Countrywide a few weeks later stating that Ms. Hill had been deemed current on her mortgage during the period in question. But in May, Countrywide sent Ms. Hill another notice stating that her loan was delinquent and demanding that she pay $4,715.58. * * *
Justifying Ms. Hill’s arrears, Countrywide sent her lawyer copies of three letters on company letterhead addressed to the homeowner, as well as to Mr. Steidl and Ronda J. Winnecour, the Chapter 13 trustee for the western district of Pennsylvania.
The Countrywide letters were dated September 2003, October 2004 and March 2007 and showed changes in escrow requirements on Ms. Hill’s loan. “This letter is to advise you that the escrow requirement has changed per the escrow analysis completed today,” each letter began.
But Mr. Steidl told the court he had never received the letters. Furthermore, he noticed that his address on the first Countrywide letter was not the location of his office at the time, but an address he moved to later. Neither did the Chapter 13 trustee’s office have any record of receiving the letters, court records show.
When Mr. Steidl discussed this with Leslie E. Puida, Countrywide’s outside counsel on the case, he said Ms. Puida told him that the letters had been “recreated” by Countrywide to reflect the escrow discrepancies, the court transcript shows. During these discussions, Ms. Puida reduced the amount that Countrywide claimed Ms. Hill owed to $1,500 from $4,700.
Under questioning by the judge, Ms. Puida said that “a processor” at Countrywide had generated the letters to show how the escrow discrepancies arose. “They were not offered to prove that they had been sent,” Ms. Puida said. But she also said, under questioning from the court, that the letters did not carry a disclaimer indicating that they were not actual correspondence or that they had never been sent. ***
“I just, I can’t get over what I’m being told here about these recreations,” Judge Agresti said, “and what the purpose is or was and what was intended by them.” * * *
Ms. Winnecour said in court filings that she was concerned that even as Countrywide had misplaced or destroyed the checks, it levied charges on the borrowers, including late fees and legal costs. A spokesman in her office said she would not comment on the Hill case.
O. Max Gardner III, a lawyer in North Carolina who represents troubled borrowers, says that he routinely sees lenders pursue borrowers for additional money after their bankruptcies have been discharged and the courts have determined that the default has been cured and borrowers are current. Regarding the Hill matter, Mr. Gardner said: “The real problem in my mind when reading the transcript is that Countrywide’s lawyer could not explain how this happened.”
Ind. Decisions - Yet more on tomorrow's voter ID case
Professor Rick Hasen of Election Law Blog and Indiana Secretary of State Todd Rokita debate the Crawford voter ID case.
Law - "Most political law schools"
The new National Jurist (Jan. 2008) has an article titled "Most Political Law Schools." In the "Students Lean to the Right" column, Notre Dame ranks #5, behind #1 Regent University, and #2 Ave Maria School of Law.
No Indiana or Midwestern schools are listed in the top 10 "Students Lean to the Left" column.
Ind. Decisions - "Our view on improving elections: Photo ID to vote? Only if all who are eligible can get one"
So writes USAToday in its editorial on the Indiana voter ID case before the SCOTUS tomorrow. Here is a sample:
At first blush, requiring photo ID at the polls seems like a sensible way to deter fraud. The great majority of Americans have photo IDs and flash them all the time. Proving that you really are who you say you are when you vote seems every bit as important as proving your identity when you cash a check, buy a drink or get on an airplane.
At the same time, there are ample reasons for caution.
Voter ID laws raise ugly memories of poll taxes, literacy tests and other barriers once used to discourage blacks from voting. Critics contend that the laws are a thinly veiled effort to keep people without photo IDs — who tend to be poor, disabled or elderly, and tend to vote Democrat — away from the polls. Indiana's Marion County Board of Elections turned away at least 32 people in municipal elections last year for lack of photo ID. All of their signatures matched the signatures in the poll books, and 14 had voted in at least 10 prior elections.
There's also very little evidence that voter impersonation is a significant problem. Indiana authorities could cite no documented case. The Bush administration's aggressive crackdown on all types of voter fraud has resulted in only about 120 cases in five years, according to The New York Times, few of them this sort of in-person fraud.
Law - "Law School Ranking by Starting Salaries of Graduates"
TaxProf Blog today quotes from the new National Jurist article ranking law schools by starting salaries of grads. The chart shows top average starting salaries of $135,000 from grads of Chicago, Duke, Michigan and Northwestern. Ranking 156 is South Dakota at $38,251. In-between are #14 Notre Dame ($105,000), #51 IU Bloomington ($75,300), and #76 IU-Indianapolis ($65,000).
Of course, a study like this raises many questions. For one, I don't see Yale listed. For another, is it more of a reflection of schools that place grads at big firms rather than government offices, public service, etc? Also, how about adding a column showing a factor derived from dividing projected starting salary by cost of law school education? Several of these schools look to be bargains in that regard.
Ind. Decisions - 1990 murder conviction overturned; "sudden heat" at issue
Indiana's Court of Appeals unanimously reversed a 1990 Gibson County murder conviction, but Gibson County Prosecutor Rob Krieg said will ask for a re-hearing - or file new murder charges.
The court reversed the conviction of James A. Hayes - convicted of the July 1990 shooting death of John M. Gulley - ruling that jurors received an improper jury instruction and his defense attorney should have objected.
Krieg told county officials of the news Monday, and asked Indiana Attorney General Steve Carter to petition the Court of Appeals for a rehearing or ask the Indiana Supreme Court to transfer the case to its docket.
Krieg said he has taken the necessary steps to have the case reconsidered, but realizes the decision will likely stand since it was reversed based upon a finding of ineffective counsel. * * *
Hayes, 27 at the time, was jailed minutes after the shooting, convicted by a Gibson Circuit Court jury and sentenced by former Circuit Judge Walter Palmer.
He sought post-conviction relief from the courts after a previous appeal was denied in 1991, said Krieg.
In Hayes' post-conviction relief petition, he claimed ineffective assistance of council on the part of his defense lawyer, long-time criminal defense attorney Tim Dodd, said Krieg.
Hayes argued that Dodd provided ineffective assistance of counsel by not objecting to an incorrect jury instruction. The instruction for a murder conviction, Hayes claimed, was incorrect because it did not properly instruct the jury regarding the prosecution's burden of proof relating to “sudden heat,” Krieg explained.
At the time of the trial, Palmer gave two jury instructions, for murder or a lesser included offense of voluntary manslaughter.
“The two instructions were identical, except that were the jury to find that Hayes acted in sudden heat, the jury was instructed it was to find Hayes guilty of voluntary manslaughter rather than murder,” said Krieg.
“The law defines ‘sudden heat' as an excited mind; a condition that may be created by an emotion such as anger or jealousy that is strong enough to obscure the reason of an ordinary person....” he explained.
Krieg said Palmer used “pattern” jury instructions previously approved by the Indiana Supreme Court to instruct the jury in the case.
But an unrelated opinion issued by the Indiana Court of Appeals shortly before the trial “frowned upon not requiring the state to prove lack of sudden heat,” he said.
Palmer's pattern jury instruction didn't tell jurors that to convict Hayes of murder, they must find - beyond a reasonable doubt - that the defendant's action lacked sudden heat.
Before the Court of Appeals heard the case, Gibson Circuit Judge Jeff Meade heard Hayes' petition this summer. Meade denied the petition ruling that “sudden heat was not an issue at trial because Hayes had testified on his own behalf that the gun went off accidentally.”
Krieg said Meade's ruling also noted that the only time sudden heat was even mentioned at trial was during closing arguments, when Dodd tried to show that detectives interviewing the defendant had tried to get him to admit that he had acted as he did because he was “freaked out” and had “anger built up.”
Meade's ruling noted that considering the circumstances as a whole, the jury was no likely to be confused by the instructions, because the trial court properly informed the jury that “sudden heat” was a mitigating factor for murder.
Krieg said the Appeals Court ruling reversed the conviction because the instruction “did not explicitly state the prosecutor must prove lack of sudden heat.”
Ind. Courts - "Johnson Co. Prosecutor Hamner to run for judge"
Jason Thomas reports for the Indianapolis Star:
Johnson County Prosecutor Lance Hamner plans a Republican primary run for Superior Court judge.
Now in his fourth term, Hamner's taking aim at the Johnson Superior Court 3 judgeship now held by Republican Kim Van Valer, who is not expected to seek reelection. * * *
Filing for the May 6 primary begins on Jan. 23.
Ind. Courts - Judge Chidester to seek reelection Porter Superior Court
From Monday's Chesterton Tribune:
Porter Superior Court Judge David Chidester has announced that he will run for re-election to his division 4 judge post this year.
In his announcement, Chidester cited a number of accomplishments since he took office in 2003. They include decreasing the filings of probation violations, carrying out a promise to give every small claims litigant a written explanation of his decision, hosting small claims courts in nearly every high school in Porter County, implementing a new pretrial supervision program, working toward the passage of legislation forcing defendants to pay for pre-trial supervision, and helping to revamp and restructure the county’s alcohol education program that’s now operated by Prisoners and Community Together. * * *
Chidester also said he was among a few office holders who cut their 2008 budget from the ‘07 total and that he has donated more than $2,000 in proceeds from performing weddings to various Porter County charities, including the Porter County Animal Shelter and the Visiting Nurses Association.
Environment - Still more on "Randolph County could zone 220,000 acres for CAFOs"
Updating this Dec. 28, 2007 ILB entry about a proposed new "intensive agricultural district " for Randolph County that would occupy 75.88 % of the county, which was approved by the Area Planning Commission, apparently the plan not only has been temporarily scuttled, but a moratorium on CAFOs has been instituted.
Joy Leiker reports today in the Muncie Star-Press:
WINCHESTER -- After rejecting an ordinance that would restrict where industrial farms can be built in Randolph County, commissioners approved a moratorium Monday, halting the expansion of confined feeding and concentrated animal feeding operations in one of the state's leading agricultural counties.Read the article for details on how the area plan may come up again, with revisions.
Farmers pledged to fight the moratorium, while opponents of CFOs and CAFOs called it a victory for those worried about the environmental effects of large, factory farms. * * *
Commissioners had just two options Monday -- either to adopt or reject the ordinance. Attorney John Tanner said the board couldn't change it and then vote on it. Any changes would have to once again go through the planning commission.
"All of these issues have been hammered out and cussed and discussed," said Drew Cleveland, a farmer who like Chalfant, was opposed to the longer setback.
Ind. Decisions - Lethal injection case heard before SCOTUS; Indiana implications
"Justices seem unswayed by lethal injection foes" is the headline to an article today by David G. Savage of the LA Times that begins:
Supreme Court justices reacted skeptically Monday to the claim that the lethal injections used to carry out executions in the United States were flawed in practice and amounted to cruel and unusual punishment.Linda Greenhouse of the NY Times has a story today that begins:
Death penalty critics had hoped that the court would declare unconstitutional the use of a three-drug compound that has been the standard means of execution since the early 1980s. They say the use of a paralyzing drug could mask the fact that the condemned man may suffer searing pain when given a heart-stopping drug.
Such a ruling, if handed down by the high court, would not spell the end of capital punishment or bar the use of lethal injections. But, defense lawyers argued, switching to a single powerful barbiturate could result in painless deaths. Veterinarians put horses to death using just such a barbiturate, they said.
None of those arguments appeared to gain much traction during Monday's argument in a closely watched Kentucky case. Instead, in their comments and questions, most of the justices said they were not convinced Kentucky's method was flawed.
They also said they had seen no strong evidence that a single barbiturate would work better. Several of the conservative justices said they saw this attack on lethal injections as part of the long campaign to abolish capital punishment altogether.
"This is an execution, not surgery," Justice Antonin Scalia told the attorney who was representing two Kentucky inmates who say the use of the three-drug compound poses "an unnecessary risk of pain" to the dying man.
"Where does that come from, that you must find the method of execution that causes the least pain?" Scalia continued. "We have approved electrocution. We have approved death by firing squad. I expect both of those have more possibilities of painful death than the protocol here."
With conservative justices questioning their motives and liberal justices questioning their evidence, opponents of the American manner of capital punishment made little headway Monday in their effort to persuade the Supreme Court that the Constitution requires states to change the way they carry out executions by lethal injection.The case is Ralph Baze and Thomas C. Bowling v. John D. Rees, Commissioner, Kentucky Department of Corrections, et al. Check here for the summary, briefs, etc.
Donald B. Verrilli Jr., the lawyer for two inmates on Kentucky’s death row who are facing execution by the commonly used three-chemical protocol, conceded that theoretically his clients would have no case if the first drug, a barbiturate used for anesthesia, could be guaranteed to work perfectly by inducing deep unconsciousness.
But as a practical matter, Mr. Verrilli went on to say, systemic flaws in Kentucky’s procedures mean that there can be no such guarantee, and the state’s refusal to take reasonable steps to avoid the foreseeable risk of “torturous, excruciating pain” makes its use of the three-drug procedure unconstitutional.
It was here that Mr. Verrilli met resistance from both sides of the court, and the closely watched case appeared to founder in this gap between theory and practice.
Of the 36 states with the death penalty, all but Nebraska, which still uses only the electric chair, specify the same three-drug sequence for lethal injections. The second drug, pancuronium bromide, paralyzes the muscles with suffocating effect. The third, potassium chloride, stops the heart and brings about death, but not before causing searing pain if the anesthesia does not work as intended. The paralyzing effect of the second drug gives the inmate a peaceful appearance and, even if he is in great pain because of inadequacy of the anesthesia, renders him unable to communicate that fact.
Mr. Verrilli said the risk of pain could be eliminated if medically trained personnel, rather than the prison warden, monitored the anesthesia. When Justice Antonin Scalia objected that the American Medical Association’s ethical code prohibited doctors from participating in executions, Mr. Verrilli replied, “That’s why there is another practical alternative here, which solves that problem.” The alternative, he said, is a “single dose of barbiturate, which does not require the participation of a medically trained professional.”
What about Indiana? The ILB has had a number of entries, on the Kentucky case and other lethal injection issues. Also relevant is the Indiana motion of Norman Timberlake/David Woods for a preliminary injunction against use of the lethal injection protocol, which federal Judge Richard L. Young denied May 1, 2007, concluding: "Based on the facts and law set forth in this Entry, therefore, Woods’ application for a preliminary injunction, which is the functional equivalent in the present circumstances of a stay of execution, must be and is now DENIED." See this May 1, 2007 ILB entry for details and a link to the ruling.
This earlier ILB entry, from April 26, 2007, quoting from a story by Jon Murray in the Indianapolis Star, interestingly explains that Indiana officials reported they had changed the protocol, at least in Woods' case:
Officials have recently changed execution plans. For Woods, they plan to double the dose of anesthetic and will place an ammonia tablet under his nose to verify that he's sedated.Tom Walker of Indy Eyewitness News (13) reported last evening:
"We looked at experts' testimony in other states," Buss said, and decided the new amount, 5 grams of sodium pentothal, was certain to be effective.
"It's an increased safety margin," Heath said of the higher dose. "But in the absence of verifying the anesthetic depth in a meaningful way, it doesn't matter."
Heath said the second paralyzing drug -- used to keep the inmate from convulsing -- could prevent one who isn't adequately sedated from grimacing or showing other signs of consciousness.
Concerns about lethal injection have prompted 11 states to suspend executions, by court order or on their own. But Buss and other officials defend Indiana's procedures.
Washington, D.C. - Attorneys went before the U.S. Supreme Court Monday, arguing against execution by lethal injection, and Indiana has a stake in the outcome.Finally, check out this interactive chart from CNN, that allows you to compare death penalty policies and statistics for each state. Look at Indiana and its neighboring states, but don't miss Texas.
The arguments are the most direct attack on the death penalty the court has heard in years. Critics argued that lethal injections used in many states, including Indiana, should be ruled unconstitutional if they pose a risk of being cruel and unusual.
"Where the pain is excruciating and horrifying and where that excruciating pain can be readily avoided through feasible alternatives," said inmate rights attorney Donald Verrilli.
They point to examples such as Joseph Clark described as writhing in pain during a botched execution in Ohio's death chamber. In a challenge to Kentucky's death penalty, state officials insisted such cases are rare.
"There is very, very little evidence that people have ever felt excruciating pain in executions carried out by lethal injection," said Kentucky attorney Roy Englert.
Defenders say injections have been given hundreds of times without problems, but the debate goes on.
"We don't know how many problems, because the states have gone to great lengths to keep the data on executions secret," said Jamie Fellner of Human Rights Watch.
With the issue before the high court, executions across the United States have been put on hold. Legal experts say it's unlikely the court would order states like Indiana to stop using lethal injection altogether.
"The Supreme Court may end up telling them, 'Look, just change the drug cocktail so that you can execute people without this potential problem'," said Supreme Court lawyer Thomas Goldstein.
The court appears deeply divided on whether executions intended to be less painful are, in fact, inhumane.
The Indiana Attorney General's office says the state's lethal injection law has worked well, but the Supreme Court case is being watched closely.
Monday, January 07, 2008
Ind. Courts - "Martin announces candidacy for Greene Superior Court Judge"
Nick Schneider of the Greene County Daily World reports today:
A Worthington attorney has decided to seek a place on the Greene Superior Court bench that will be vacant at the end of this year.
Today, Dena (Benham) Martin announces her intentions to be a candidate on the Republican ticket for Greene County Superior Court Judge.
"My education, experience and background are ideally suited for this position. Judge (J. David) Holt has been committed to the judicial process for more than 25 years and has provided exceptional leadership in the Greene Superior Court. I look forward to the opportunity to follow in his footsteps," she stated. "I regularly serve as Judge Pro Tempore in the Greene Superior Court, and have served as Judge Pro Tempore in the Greene Circuit Court as well. Through these opportunities, I have gained valuable experience as a judicial officer."
Martin is the second Republican candidate to announce intentions to run in the May Primary Election for the seat that will be vacated by Judge Holt's retirement on Dec. 31. Former Greene County Prosecutor David Powell, of rural Worthington, is also seeking the position.
Martin, a Greene County native, is currently Chairperson for the Criminal Justice Program at Ivy Tech Community College of Indiana in Terre Haute. She is also the acting Chairperson for the Paralegal Program at Ivy Tech.
Ind. Decisions - More on "High court to consider Indiana law on voter ID"
Updating Sunday's ILB entry, here are more previews of Wednesday's oral arguments in the Indiana voter ID case:
Maureen Groppe of the Indianapolis Star Washington Bureau reports - "Voter ID law going before high court"
Ian Urbina of the NY Times reports - "Voter ID Laws Are Set to Face a Crucial Test"
Jerrrey Toobin, legal columnist of The New Yorker, reports - "The Bench: Fraud Alert"
Ind. Gov't. - Canned hunting in news again
This ILB entry from Oct. 18, 2007, headed "DNR ends talks, to press courts for ‘canned hunting' ban", gives the details on how we got to where we are now.
Today Grace Schneider of the Louisville Courier Journal has a long report, complete with photos and a related video. She writes in part:
"This is as real as it gets," Bruce, 39, said recently as he stood in a 5-by-8-foot plywood tree stand, watching for passing deer. "If there was anything wrong with it, I wouldn't do it."
But Indiana wildlife officials see plenty wrong with it. And they're trying to shut down Whitetail Bluff and nine other fenced hunting preserves across the state.
In Kentucky, game officials have condemned similar preserves and the game-breeding operations that supply them.
A 2006 state law banned importing live deer and elk, a measure expected to severely undercut Kentucky's roughly 80 hunting and "alternative livestock" farms.
Some 15 states have banned such hunting, while the Humane Society of the United States and other animal-rights groups press for more restrictions. Critics say the hunts are unethical.
"Ultimately, the animal is not going to be able to escape the hunter," said Anne Sterling, Indiana director for the national Humane Society.
Also, she said, "deer are acclimated to humans (inside preserves). They're used to coming to set locations to feed. It's just not your typical hunting."
Even some traditional sportsmen's groups think enclosed operations run counter to principles of "fair chase."
Game biologists, meantime, fear the preserves could complicate a growing problem with deer wasting disease and other biological threats.
Confined animals can more readily share illnesses and then spread them when fences break and animals intermingle.
Whether Indiana's preserves survive could be decided in Harrison Circuit Court, where Bruce filed a lawsuit two years ago challenging an emergency Indiana Department of Natural Resources rule that banned fenced hunting.
The rule was set after a federal criminal case arose in Peru, Ind., where landowner Russ Bellar was accused of allowing clients -- including celebrity entertainers and race-car drivers -- to shoot at animals drawn to bait piles and trapped in pens.
Bruce, who until recently worked at a factory job, said the federal case didn't help businesses like his, which he describes as reputable.
But he says the state ban -- and former natural resources director Kyle Hupfer's declaration that Indiana never intended to allow fenced hunting -- is a stunning policy reversal.
He has letters showing the agency approved his business plans in 1999 and told him he'd need a game-breeder's license, although the state also cautioned that Whitetail Bluff's long-term prospects weren't assured because laws could change. * * *
In the spring of 2006, Harrison Circuit Judge H. Lloyd "Tad" Whitis issued a preliminary injunction that prevents the state from attempting to enforce the fenced hunting ban, and the parties indicated that they would try to reach a settlement.
By last spring, most of the terms to cover all the Hoosier preserves had been negotiated.
The deal would have allowed the businesses to continue operating for 10 years, then cease restocking for two final years before the fences were cut down and the preserves closed.
That seemed like a good compromise to Bruce, who had arranged a $200,000 bank loan to get started and needs the fees from hunters to repay it.
But then the state backed away from the deal and announced that it would fight Bruce's lawsuit. Hupfer said a state agency can't sign an agreement not to enforce one of its own rules. * * *
A hearing on Bruce's case is expected sometime this month.
Moyer has argued that the state made a deal and now should be forced to carry it out.
The state, which hired an Indianapolis law firm to handle the litigation, has asked Whitis to dismiss Bruce's motion to enforce the settlement terms.
Environment - "Great Lakes Compact on track"
Gov. Mitch Daniels' liaison is certain the Great Lakes Compact will pass the General Assembly this legislative session despite some hesitation from downstate Republicans.
"We think we've got it in line," said David Pippen, Daniels' policy director for environment and natural resources. "It's almost a freight train on the tracks now."
For several months, Pippen's been part of debates about the compact. Some skeptical questions about the compact have surfaced, but most came from people who oppose compacts in general, not the Great Lakes Compact in particular, he said.
The compact would ban -- with limited exceptions -- new and increased diversions of water from the Great Lakes unless approved by the governors of all eight Great Lakes states and the provinces of Ontario and Quebec in Canada.
Each state has some leeway to flesh out the details of how it will implement the compact, but critics have questioned whether the state would give up sovereignty by signing on.
Others have mentioned the possibility that downstate Republicans wouldn't sign on because in time, communities downstate might want to tap into water from the lakes themselves.
But Ron McAhron, deputy director of the Indiana Department of Natural Resources, said that's not even allowed under current legislation.
In Northwest Indiana, both industry and environmentalists have backed the compact and pushed to get it passed.
Pippen said most critics were convinced to support the compact after the debates.
"People understand it takes a lot for everyone to be on the same page," he said. "I expect once we get to the floors, we'll have some discussion. (But) industry and environmental groups have gone to legislators saying, 'We've done all this work and we want you to support it.'"
The Senate Committee on Energy and Environmental Affairs is scheduled to debate a bill to implement the compact on Wednesday.
Ind. Courts - "Cost of renovating old courthouse may top estimates"
Thomas B. Langhorne of the Evansville Courier & Press has a long story today, with photos, on the costs of renovating The Old Courthouse in Downtown Evansville, which was built in 1890.
Environment - Outdoor wood fired boilers not the only culprit
The ILB has had number stories about concerns raised by outdoor wood-fired boilers used to heat homes. Today Mary Wilds of the NWI Times reports on another concern - indoor wood-fired stoves that may not meet already existing federal and state requirements, and what can be done. It looks like having rules on the books is only the first step:
DYER | A proposed ordinance governing the use of wood-burning heating units won't be any help to John Kaleel.
Dyer originally began exploring the possibility of an ordinance after Kaleel approached the town for help in dealing with his Fagan Street neighbor's wood-fired heating unit. The unit emits such noxious smoke and odor it negatively impacts his quality of life, Kaleel said.
But Kaleel's neighbor's unit is an indoor unit, not an outdoor one, Redevelopment Director Rick Eberly said, and because indoor wood-fired units are already regulated by state and federal law, any ordinance Dyer passed could only deal with outdoor units. There currently are none in town, officials said.
Eberly said he had not had time to research indoor units prior to the study session.
Kaleel and his wife Tina said they were dismayed at the news and frustrated by the situation.
Their neighbor, who did not attend the study session, installed a taller smokestack the first time the Kaleels approached the town about the problem.
Officials had hoped the higher stack would solve the problem, but odors and lingering smoke have remained, John Kaleel said.
Since learning the unit is indoors, Eberly has tried to get the Indiana Department of Environmental Management involved. Last month, an IDEM official asked for information on the unit, including the name of its manufacturer and whether it is on the list of those approved by the Environmental Protection Agency. So far, the neighbor has not complied, Kaleel and Eberly said.
Ind. Gov't. - Still more on Anderson and Terre Haute mayoral disputes [Updated]
A special judge will hear a legal challenge to the eligibility of Anderson Mayor Kris Ockomon.Here is the order itself.
On Jan. 3, Acting Chief Justice for Indiana Brent E. Dickson ordered under Indiana Trial Rule 79 that Henry Superior Court Judge Michael D. Peyton be brought in to hear the case. Madison Superior Court Judge Dennis Carroll recused himself, thereby remanding the case to the Indiana Supreme Court.
As for Terre Haute, the TribStar reports today:
Attorneys for former Mayor Kevin Burke on Friday filed a motion for the challenge to Mayor Duke Bennett’s candidacy to be moved to the Indiana Supreme Court.[Updated 1/8/08] The Trib-Star has an expanded story today headed "Indiana’s high court could hear Burke’s case: Move would bypass state Court of Appeals." A quote:
Burke last week appealed the decision made by Judge David Bolk, of Vigo County Superior Court Division 3, that paved the way for Bennett to take office Jan. 1. Burke lost to Bennett in November’s general election. Burke then challenged Bennett’s candidacy due to the Hatch Act, a federal law limiting the political activity of employees of some not-for-profits receiving federal funding.
Burke’s attorneys filed the appeal notice Thursday, then filed the motion to transfer Friday, the Indiana Clerk of the Courts online docket reports.
“This set of circumstances presents a rare case where it would benefit the public to have the Supreme Court accept jurisdiction over the pending appeal,” attorneys wrote in the transfer motion, “despite the fact that the matter would otherwise be within the jurisdiction of the Court of Appeals.”
Burke’s counsel on Friday filed the motion, a day after Burke formally appealed the Dec. 21 ruling that allowed Bennett to take office, the Indiana Clerk of the Courts online docket reports. If approved, the move would transfer jurisdiction to the high court.
“This set of circumstances presents a rare case where it would benefit the public to have the Supreme Court accept jurisdiction over the pending appeal,” Burke attorneys wrote in the transfer motion, “despite the fact that the matter would otherwise be within the jurisdiction of the Court of Appeals.”
Bennett attorney James Bopp Jr., said that the motion did not seem justified.
“Well, the normal process is that it goes through the Court of Appeals, and only the most important cases are ultimately determined by the Supreme Court,” he said, “and I really doubt that the issues involved here merit that.”
Ind. Gov't. - "Put teeth in public access laws"
Marisa Kwiatkowski and Patrick Guinane of the NWI Times reported Saturday:
In the wake of recent local battles for access to public records, State Sen. Frank Mrvan, D-Hammond, said Friday he may seek to strengthen the powers of the state public access counselor during the upcoming legislative session.The Indiana Coalition for Open Government (ICOG) released a study last week showing that "A statewide survey of people who tapped the Indiana Public Access Counselor’s office for legal advice reveals that nearly 91 percent of the respondents believe the PAC should have enforcement authority to punish government officials who violate state sunshine laws." Access the press release here and the complete study here.
The state agency issues advisory opinions on potential violations to Indiana's Access to Public Records and Open Door laws but does not have the power to fine agencies that thwart public access.
"What is the point of having it unless they have some teeth to do something?" Mrvan said.
A recent statewide survey of people who have tapped the state agency found nearly 91 percent of respondents believe the public access counselor should have the authority to levy fines or issue enforcement actions.
A change to the public access counselor's powers could have local implications.
Two years ago, Mrvan unsuccessfully fought to get records from the now scandal-toppled Gary Urban Enterprise Association.
And in 2007, Indiana Public Access Counselor Heather Willis Neal ruled against the Crown Point Development Corp. twice for denying public access to its decision-making process.
In August, the state agency ruled the Development Corp. is a public agency and violated state law by failing to provide notice of its meeting and denying public access.
The Crown Point Development Corp.'s first attempt to move forward with a $500,000 loan to New York-based Plasmatronics came under fire from city officials and The Times after the corporation denied public access to its July 11 meeting and voted behind closed doors. The corporation recast its vote in a public meeting July 25 and approved the grant.
The loan is funded by taxpayers' money from a tax-increment financing district.
Corporation member Allan Katz later filed a complaint with the access counselor after Economic Development Director Eric Hammond refused to provide a balance sheet or income statements from Plasmatronics before Katz was asked to vote. Katz also asked for documents proving Kevin Keough's appointment to the corporation.
In response to both complaints, Neal said the corporation violated the Access to Public Records Act by refusing to give Katz the information.
Katz said Friday he has still not received the information he requested.
Mrvan said he already turned in a full slate of bills for the legislative session that begins Tuesday but may try to bolster the access counselor's powers through an amendment.
A number of Indiana papers have had editorials and opinion pieces within the last few days supporting adding teeth to the Indiana public access law, including this one from Mizell Stewart, III of the Evansville Courier & Press and this one from the Anderson Herald Bulletin.
Courts - In Maine, push made to post court data on Web
In a story last Thursday, Jan. 3rd from the Portland Maine Press Herald, Trevor Maxwell reported:
If you want to see a document from a case in Maine's court system, you have to visit the appropriate county courthouse, wait in line and review the hard copy. In some instances, you need a docket number or other information to find the file.
It's a far cry from the federal courts, which let you search most documents from your home computer.
Leaders in Maine's judicial branch hope to close that technological gap as much as possible beginning this year. * * *
"In the world we live in, people are used to getting things quickly and easily," said Ted Glessner, the state courts' administrator. "We are behind where a number of other states are, but I don't think dramatically behind."
Glessner said the concept of keeping records online has been discussed for years, but has been stalled recently. One reason is that some people expected to leap completely from the paper system to a computerized one.
The idea now is to start small and get at least some case information online, Glessner said. The ultimate goal -- electronic filing and access across the board -- remains distant.
Environment - More on "BP permit blowup leads to IDEM changes"
Updating this ILB entry from Friday, Gitte Laasby of the Gary Post-Tribune reports today:
PORTAGE -- Permit renewals for four of Northwest Indiana's steel mills will be delayed as a result of the controversy over BP Whiting's wastewater permit.
To avoid another firestorm, Indiana Department of Environmental Management Commissioner Tom Easterly wants the state to clarify its so-called anti-degradation regulation before proposing more permits.
He hopes to have permits for U.S. Steel's Midwest Division in East Chicago and Arcelor Mittal (Indiana Harbor East, West and Burns Harbor) renewed by the end of the year, but said the agency has to "fix the process" first.
"Until we have this anti-degradation rule description, anything we do here, people are going to question if it's the right thing," Easterly said after a NIRPC environmental management and policy committee meeting in Portage on Thursday morning.
He hopes to have the rule completed by the end of the year, but it typically takes 18 months from start until implementation. Staff is currently working on the wording of the rule and would seek a consensus from environmentalists and business leaders and comments from the public before making a final decision.
No matter what the final rule will be, Easterly said he expects it to be unpopular. Years ago, a committee of state officials, business and environmental leaders couldn't come to a consensus when they tried to formulate a definition of what it means that water quality can't "degrade."
IDEM has yet to issue six major backlogged wastewater permits, which IDEM has administratively extended for years after they expired. Easterly has aimed to work through the backlog and isn't happy to delay the renewals for the steel mills.
"From my understanding, this is harming the environment. They're not getting to the limits they should have had five to 10 years ago," Easterly said.
He promised attendees at the meeting that he and the agency would try to communicate better and with less jargon so regular residents can understand what's going on.
Another of his priorities for 2008, Easterly said he would support allowing electronic signatures on the monthly discharge monitoring reports that facilities with wastewater permits have to submit. That would allow them to submit reports electronically rather than manually as they do now.
Ind. Decisions - Upcoming oral arguments this week
This Thursday, Jan. 10th:
9:00 AM - Cooper Industries, LLC v. City of South Bend - The Marion Superior Court entered a partial summary judgment allowing the City of South Bend and its Redevelopment Commission to pursue contamination-related claims against Cooper Industries with regard to property that the City acquired within six years before filing this lawsuit. The Court of Appeals reversed, concluding that the City’s claims are barred by the applicable statute of limitations. Cooper Industries, LLC v. City of South Bend, 863 N.E.2d 1253 (Ind. Ct. App. April 11, 2007), vacated. [See ILB summary here - 2nd case] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorneys for Cooper Industries: Vicki Wright and Libby Mote of Indianapolis, IN and Dale Stephenson and Allen Kacenjar of Cleveland, OH and Thomas Heiden and Mary Rose Alexander of Chicago, IL. Attorneys for City of South Bend; George Plews and Jeffrey Featherstun of Indianapolis, IN and Cheryl Greene of South Bend, IN. Attorneys for Amici Curiae Ind. Legal Found. and Ind. Mfrs. Ass'n; Bryan Babb and Mathew Klein of Indianapolis, IN. Attorneys for Amici Curiae Ind. Ass'n of Cities and Towns and Ind. Mun. Lawyers' Ass'n; Brent Huber, Donald Snemis and Freedom Smith of Indianapolis, IN. Attorney for Amicus Curiae Commercial Logistics Corp.; Peter Rusthoven of Indianapolis, IN. Attorney for Amicus Curiae ACF Indus., LLC; Geoffrey Slaughter of Indianapolis, IN.
9:45 AM - Christopher Brown, D.D.S., Inc. v. Decatur County Memorial Hospital - The Worker’s Compensation Board denied the request of Brown, a health services provider, for interest on an amount owed for the services that Brown provided to an injured worker. The Court of Appeals affirmed. Christopher Brown, DDS, Inc. v. Decatur County Memorial Hospital, 873 N.E.2d 69 (Ind. Ct. App. Nov. 30, 2007), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Brown: C. Richard Marshall, Columbus, IN. Attorneys for Decatur County Memorial Hospital: Donald S. Smith and Cheryl D. Finchum, Indianapolis, IN.
Webcasts will be available here.
This week's oral arguments before the Court of Appeals that will be webcast:
This week's oral arguments before the Court of Appeals that will NOT be webcast:
This Monday, Jan. 7th:
10:30 AM - South Bend School Corp. v. Linda D. Lucas and the Unemployment Ins. Review Bd. - This is an appeal from the Review Board of the Workforce Development involving a teacher who became unemployed when her program concluded. The Scheduled Panel Members are: Chief Judge Baker, Judges Sharpnack and Riley.
This Wednesday, Jan. 9th:
1:30 PM - Jeffrey L. Hiland, Administrator of the Estate of Aubra J. Hiland, Deceased - Appellant-Plaintiff Jeffery Hiland, appeals the trial court's order granting summary judgment in favor of Appellees-Defendants, State of Indiana and INDOT on a wrongful death action. The Scheduled Panel Members are: Chief Judge Baker, Judges Darden and Bradford.
This Thursday, Jan. 10th:
12:10 PM - Prime Mortgage USA, Inc, and David M. Law vs. Delie T. Nichols - Appellant David M. Law and appellee, Delie T. Nichols, are co-owners of Prime Mortgage USA, INC. Nichols claims that Law forged her name to a document authorizing him to create more company shares, which he gave to a family member and an employee. Nichols filed a complaint, including a claim against Law for damages under the crime victim's statute. After the appellants filed discovery responses that the trial court found deficient, the trial court ordered a default judgment as a discovery sanction. The issues at hand are whether or not Nichols' claim under the crime victim's statute is barred by the statute of limitations, and whether or not a jury trial was required on the amount of damages under the crime victim's statute. The Scheduled Panel Members are: Judges Kirsch, Robb and Mathias. [Where: Boulder Creek Dining Company, 1551 North Green Street, Brownsburg, Indiana ]
Sunday, January 06, 2008
Ind. Decisions - "High court to consider Indiana law on voter ID"
Sylvia A. Smith, Washington editor of the Fort Wayne Journal Gazette, writes today on the voter ID law challenge, to be heard Wednesday, January 9th in oral arguments before the Supreme Court of the United States. Some quotes:
The Supreme Court will hear all sides Wednesday morning when, for an hour, civil rights lawyers will take their best shot at Indiana’s 3-year-old law requiring a driver’s license or other picture identification before any Hoosier visits the polling booth on Election Day.And there is much more to this useful article.
Lawyers for the state will defend the statute, which is similar to laws other states have passed but is the strictest in the U.S. Opponents will say it is an unconstitutional intrusion on Americans’ right to vote.
Advocates on both sides agree voter ID laws might deter some people from voting. What they disagree about is whether there’s enough fraud to warrant the tougher rules and whether the photo ID requirement is much of a barrier to voting.
What do Hoosiers have to do before they vote?
The 2005 legislation required voters, for the first time, to prove who they are before they vote. A government-issued photo ID – driver’s license, passport or identification card issued to non-drivers are the most common forms – must be presented to polling officials.
A person who shows up to vote without a picture ID may cast a provisional ballot but must present a photo ID to the county election board within 10 days.
People who vote by mail-in absentee ballot before Election Day are exempt. People who have religious objections to being photographed and indigent people can cast a provisional ballot on Election Day but must go to the county courthouse within 10 days to sign an affidavit swearing they are who they say they are.
Isn’t a photo ID pretty commonplace these days?
That’s exactly the logic of the appeals court, which ruled along party lines in Indiana’s favor. (The Republican-appointed judges supported the state law; the judge appointed by a Democratic president opposed it.)
“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),” Judge Richard Posner, a Republican appointee, wrote in the 2-1 majority opinion. * * *
Has the voter ID law prevented anyone from voting?
The Indiana League of Women voters told the Supreme Court that the rule is a barrier for the elderly, poor people and members of faiths that forbid photos or eschew involvement with government.
In a friend-of-the-court filing, the group described the situations of three people who could not vote in 2006 or this year because of the law * * *
What does Indiana say about that?
In his argument to the court, Attorney General Steve Carter said the law “provides a reasonable method of verifying voter identity – a fundamental, pre-existing voter-eligibility criterion.”
He said there have been many cases of voter fraud of various types in Indiana over the years, and “even if the voter ID law would not have prevented these particular instances of election fraud, the Indiana General Assembly had reason to worry that a culture of election fraud was spreading.
“The need for better, yet still reasonable, fraud-prevention measures is self-evident,” he said.
Does everyone agree that the requirement is reasonable?
No. Indiana’s Democratic Party, backed by the Indiana Civil Liberties Union, thinks it’s a solution in search of a problem. * * *
Is there a lot of voter fraud?
Depends on whom you ask.
Todd Rokita, Indiana’s secretary of state and the top election official, says he’s asked about it all the time, and that his office had “dozens” of complaint calls in the last election.
Voter fraud is not rampant, Kelner said, but when “a lot is at stake – whether it be money in a commercial context or power in a political context – people will exploit the gaps in the system. It is human nature.”
But Goldberg says photo ID requirements deal with only one type of voter fraud: impersonating someone.
She said the photo ID laws don’t address ballot box stuffing or hiding some ballots, destroying voter registration forms, falsely registering large lists of people and vote buying.
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 - "Judge rejects challenge to federal sex registry"
Bob Kasarda reports today in the NWI Times about U.S. District Court Chief Judge Robert Miller Jr. decision Dec. 18, 2007 in the case of U.S. v. Marcus Dixon:
A federal judge has thrown out a local challenge to the constitutionality of a federal sex offender registry law, which claimed in part the law illegally treads on rights reserved for the states.The ILB has obtained a copy of the 13-page opinion; access it here.
U.S. District Court Chief Judge Robert Miller Jr. said the law, which requires sex offenders to keep their registration current no matter where they live, does not interfere with individual state's handling of offenders.
The law attempts to protect the public against offenders who may frustrate efforts to monitor them by traveling between states, he wrote.
"SORNA's (Sex Offender Registration and Notification Act) registration requirements acts upon the offender, not the states," according to Miller.
Valparaiso attorney Bryan Truitt, who filed the challenge on behalf of client accused of violating the law that went into effect in July 2006, believes the challenge still has merit and plans to appeal the case to the 7th Circuit Court of Appeals in Chicago and then on to the U.S. Supreme Court if necessary.
The same issues raised in this challenge have been held up in other district courts, he said. The arguments, however, have not been ruled on by the appellate courts, which have signaled they should be the ones handling constitutional challenges, he said. * * *
Dixon was found guilty late last month of failing to register as a sex offender when he cut an electronic monitoring bracelet off his ankle and moved from South Carolina to Michigan City during May 2006. He now faces up to 10 years behind bars under SORNA, as compared to 90 days under South Carolina law and up to one year under the former federal law.
Miller's ruling also threw out the argument that Congress improperly delegated to the attorney general the power to decide how to apply the law to defendants accused of violating the requirements before they took effect.
He also rejected claims the case should be dismissed because Dixon never was made aware of the new registration requirements and that the requirements had never been adopted by either Indiana or South Carolina and it was "therefore impossible for Dixon to have registered."
Miller ruled that Dixon could have violated the law even if he never was informed it took effect.
Citing a federal ruling from Florida earlier last year, Miller wrote, "Sex offenders ... must comply with the law even when it changes suddenly and without notice, and they are well advised to periodically check for changes because they are particularly subject to regulation."
Law - How the professions of law and medicine are changing
A feature today in the NY Times by Alex Williams is headlined "The Falling-Down Professions." If is about how the professions of law and medicine are changing:
Make no mistake, law and medicine — the most elite of the traditional professions — have always been demanding. But they were also unquestionably prestigious. Sure, bankers made big money and professors held impressive degrees.
But in the days when a successful career was built on a number of tacitly recognized pillars — outsize pay, long-term security, impressive schooling and authority over grave matters — doctors and lawyers were perched atop them all.
Now, those pillars have started to wobble.
“The older professions are great, they’re wonderful,” said Richard Florida, the author of “The Rise of the Creative Class: And How It’s Transforming Work, Leisure, Community and Everyday Life” (Basic Books, 2003). “But they’ve lost their allure, their status. And it isn’t about money.”
OR at least, it is not all about money. The pay is still good (sometimes very good), and the in-laws aren’t exactly complaining. Still, something is missing, say many doctors, lawyers and career experts: the old sense of purpose, of respect, of living at the center of American society and embodying its definition of “success.”
In a culture that prizes risk and outsize reward — where professional heroes are college dropouts with billion-dollar Web sites — some doctors and lawyers feel they have slipped a notch in social status, drifting toward the safe-and-staid realm of dentists and accountants. It’s not just because the professions have changed, but also because the standards of what makes a prestigious career have changed.
This decline, Mr. Florida argued, is rooted in a broader shift in definitions of success, essentially, a realignment of the pillars. Especially among young people, professional status is now inextricably linked to ideas of flexibility and creativity, concepts alien to seemingly everyone but art students even a generation ago.
Saturday, January 05, 2008
Ind. Courts - "Valentine To Seek Kosciusko Superior Court III Seat"
Jennifer Peryam reports in the Warsaw Times-Union:
Mike Valentine will run for the Superior Court III seat in the May 6 Republican primary election.
Current Superior Court III Judge Joe V. Sutton was unopposed in the 2002 election.
Election filing begins Jan. 23 and ends at noon Feb. 22. The last day for candidate withdraws is Feb. 25 at noon. The general election will be Nov. 4.
Valentine, 63, said he feels he is qualified to serve as judge for the Superior Court III seat.
"I have a pulse for what is going on in the community, and a good working relationship with lawyers in the county, and a temperament to perform judicial duties in a fair way," Valentine said during an interview this week.
He said October will mark his 34th year of practicing law, and if he is elected, he hopes to use his law experience in the courtroom.
Valentine has been in practice in Warsaw since 1974, performing trial work, family law, business law, criminal defense, real estate and estate planning.
He served as Warsaw city judge in 1976. In 1978, he served as prosecuting attorney, finishing Steve Hearn's term. He served as chief trial deputy until the 1980s.
Friday, January 04, 2008
Ind. Decisions - More on problems with new COA opinions format
The ILB has not heard back from its messages yesterday to the Indiana Clerk's Office re problems with the new format of the five opinions issued Jan. 3 and presumably all those to follow.
Note: All five of these documents currently are corrupted and cannot be read. The ILB has informed the Clerk's office.These five opinions are the only ones the ILB has been unable to open using a setup that works with every other PDF file the ILB has ever attempted at any site.
[Update: The Clerk's office was contacted at 1:02 pm. It is now 3:05 pm and no response has been received. The opinions remain inaccessible. If you can help, please contact the ILB.]
[Updated 1/4/08: Apparently all PDF viewers will not open the 5 new postings by the Clerk yesterday, even though they readily open all earlier cases posted by the Clerk.]
What you will need, it seems, is to install the most recent version of the Adobe Reader. The ILB, for one, uses Adobe Acrobat Professional, v. 6.01, to open documents, and it does not work on these five opinions because of the graphic the Clerk has added to each opinion. (Note that the 7th Circuit, for one, has incorporated any number of graphics into its recent opinions, without corrupting the documents.) . The free Adobe Reader 8, about which there have been national complaints unrelated to the court issue, does open the opinions, but then the user must change over to the professional version to manipulate the docs in order to post them. It would seem that the Clerk's Office may have received complaints in addition to those of the ILB, as this afternoon the Office has redone the opinions page so that the links to cases will be preceded every day by a message stating:
These files are in PDF format. To view a PDF file you will need Adobe Acrobat Reader which is available free of charge at Adobe's Website.Of course, that does not solve the ILB's problem, nor most likely problems of some other users of the public site.
Ind. Gov't. - Still more on Anderson and Terre Haute mayoral disputes
A special judge may have to resolve a fight over the mayor's office in Anderson.Updating yesterday's ILB entry on the Terre Haute mayor situation, here are some new stories:
Democrat Kris Ockomon beat Republican incumbent Kevin Smith in the November election and was sworn in Tuesday as the city's new mayor. However, a group of residents has filed a lawsuit challenging Ockomon's residency and eligibility to take office. Smith said he's not relinquishing the position even though Ockomon has moved into the top city office.
"I just think it's a bunch of hoo-ha," said Nick Cook, 35, a social worker in Anderson. "It's political mudslinging."
Who stays and who goes may ultimately be decided by the Indiana Supreme Court.
"What's going on here?" asked Anderson resident Daniel Casey, 54. "(Smith) has to step down and accept defeat."
Five Anderson residents filed a lawsuit a week ago in Madison County claiming Ockomon didn't meet residency requirements to be mayor. Local judges forwarded the lawsuit to the Indiana Supreme Court on Wednesday to avoid a conflict of interest.
The Indiana Supreme Court had not opened the file for review Thursday, said Regina Deppert, case manager for the court. The court has about a two-week backlog, she said.
The plaintiffs question whether Ockomon lived in Anderson for a year before he was elected mayor, said attorney David Brooks. * * *
Jack Eflin, 77, calls himself a Smith supporter but thinks the plaintiffs' lawsuit was poorly timed.
"Smith is not relinquishing his position, but he's not in the office," he said. "He's operating out of his home now. He is mayor in name only -- in his own mind, in the lawsuit."
Molly Estabrook, 54, a legal secretary in Anderson, agrees the timing was wrong. "(The Republican Party) knew it was an issue . . . but I think the Republicans thought they had the election all sewn up, and that's why they did not pursue it," she said. "Now, though, it's too late. They waited too long. They had a valid concern, but no strength left."
Brooks, the plaintiffs' attorney, also asked for a temporary restraining order Dec. 28 to stop Ockomon from being sworn in Tuesday, but a judge declined the request.
Smith said he had been working to turn over the office to Ockomon, but after speaking to the five plaintiffs, he decided to support them. "During my conversation with the plaintiffs' attorneys, they pointed out I was constitutionally obligated not to step down if the elected candidate was not a legitimate candidate," Smith said.
Ockomon said he was surprised by the lawsuit and thought some of the tactics were tacky. "The timing was very poor," he said. "It's just sour grapes. Poor losers -- that's the way you have to look at it."
"Former T.H. Mayor Kevin Burke files appeal" from News 10, which reports:
When you thought it was over. Just two days ago new mayor Duke Bennett took office in Terre Haute.And from the Terre Haute Trib-Star, a report by Austin Arceo:
That was after a trial and a recount tried to say that Bennett wasn't eligible. Now, former mayor Kevin Burke has filed an appeal. The plot thickens as we have a notice of appeal and what this document says as former mayor Kevin Burke is appealing the decision a judge made less than two weeks ago.
Burke claims Bennett wasn't eligible to take office because he worked for a company that received federal money. He cited the Indiana Hatch Act and the case went to trial. In the end, Vigo County Judge David Bolk didn't agree with Burke and ruled in favor of Bennett.
Earlier this week, Bennett took office. Now, an appeal is in the works. We caught up with the city's new public affairs director and here's what he had to say, "here we thought we had a lot of this behind us, and now it's brought out to the front burner again and it's just , it's more that the city's got to endure, and that's disappointing," said Darrell Zeck.
So what happens now? The case goes to the Indiana Court of Appeals. Former mayor Kevin Burke issued this statement to us late Thursday afternoon via email to News 10, "Judge Bolk found that my opponent had violated the Hatch Act, but there is apparently no remedy for that under his interpretation of Indiana Law. After consultation with my attorneys and after careful consideration with my family and my many supporters, I have decided to heed the advice of my attorneys and give the Indiana Court of Appeals the opportunity to consider the decision made by Judge Bolk, in my challenge of Duke Bennett's candidacy. I therefore asked my attorneys to file an appeal of this decision."
Former Terre Haute Mayor Kevin Burke is appealing a court ruling that allowed for Mayor Duke Bennett to take office this week.
Attorneys for Burke on Thursday filed a notice of appeal with Vigo County Superior Court Division 3, which states that the case will head to the Indiana Court of Appeals.
Judge David Bolk ruled on Dec. 21 that, while Bennett was subject to a federal law that limits political activity, state law did not prevent Bennett from taking office as Burke contended.
“Judge Bolk found that my opponent had violated the Hatch Act, but that there is apparently no remedy for that under his interpretation of Indiana law,” Burke said in an e-mailed statement.
The Hatch Act is a federal law that limits the political activity of employees of some not-for-profits receiving federal funding. Before taking office, Bennett was director of operations at Hamilton Center Inc., which received federal money for its Early Head Start program.
Burke declined to answer questions or conduct an interview, citing his attorneys’ request.
Bennett said that his attorneys first notified him of the appeal Thursday afternoon.
“It’s a little disappointing that we’re going to have to deal with this issue again,” Bennett said while in City Hall, “but I’m just going to put it in the hands of my attorneys, and just let them go to work on that, and I’m going to continue to move forward with my agenda of leading the city.”
Burke attorney Ed DeLaney said that additional documentation would be filed with the Court of Appeals and maybe even the Indiana Supreme Court.
Bennett’s attorney, James Bopp Jr., said that the appeal could take a year. He also said that he doesn’t think the appeal has legal merit.
Environment - "Delaware County CAFO proposal too restrictive, say farmers" [Updated]
Recall this Dec. 28th ILB entry about a proposed Randolph County zoning ordinance that would create a new "intensive agricultural district " that would occupy 75.88 % of the county. Contrast it with this lengthy story today in the Muncie Star Press, reported by Seth Slabaugh, about Delaware County, that begins:
MUNCIE -- Delaware County's agricultural community on Thursday night condemned a proposal to amend the county zoning ordinance to regulate concentrated animal feeding operations (CAFOs).[Updated] In another story from Saturday, Jan. 5, the Star-Press reports:
Farmer Joe Russell, a member of county council, said the draft amendment would make Delaware County the most restrictive county in the state for CAFOs.
He addressed the city-county planning commission at a public hearing in city hall’s auditorium, which holds 261 people. Because of a large turnout, the hearing was moved to city hall from the county building’s commissioners courtroom, which holds fewer than 100 people.
“Agriculture is under attack,” Russell said. “The confidence and trust in farmers is no longer there. It seems like we’re being attacked quite a bit.”
He claimed the proposed regulations were so strict that there would be no place in Delaware County in which new CAFOs, also known as industrial livestock farms, could be built.
“This is the end of opportunities for the next generation of farmers,” Russell said. * * *
Commission member Deane Rundell, a landscape architect, originally chaired the committee but left the panel because of an illness in his family. He was replaced by commission member Lance Lillie, who said he missed the early committee meetings and joined the group late.
“My contention is, this is a matter the state should handle,” Lillie said of CAFO regulations.
A former IDEM official encouraged the Muncie-Delaware County Planning Commission on Thursday night to adopt an ordinance regulating concentrated animal feeding operations (CAFOs).
Bowden Quinn was the environmental liaison for the Indiana Department of Environmental Management from August 2005 through March of 2007.
In that role, he dealt with people who protested that CAFOs were a threat to their health, safety and property values because of increased traffic and odors.
"In response to those fears, IDEM always answered, 'That is not our responsibility,' " Quinn said. IDEM's responsibility when it comes to CAFOs is limited to protecting waters of the state.
Currently employed as the conservation organizer for the Hoosier chapter of the Sierra Club, Quinn told planning commission members that CAFO issues like impact on property values, odors, traffic and quality of life were the responsibility of local officials.
"With all due respect, I don't think you should leave this issue to the state," Quinn said during a public hearing on the proposed ordinance. "With all due respect, this is your responsibility."
He called the draft ordinance "a good first step" that "needs to be refined." He suggested adopting graduated setbacks or distance requirements between CAFOs and rural housing based on the size of the CAFO.
"You can't have one size fits all," he said. A hog operation housing 6,000 swine needs to be sited farther away from neighbors than one containing 600 pigs, Quinn said.
Commission member Lance Lillie, who works at a plant that makes concrete, was appointed by commission president Dave Howell, a farmer, to chair the committee that drafted the ordinance.
At the hearing, Lillie said Delaware County didn't need a CAFO ordinance. "My contention is, this is a matter the state should handle," Lillie said.
But state officials, including those at the Indiana Land Resources Council and the Indiana State Department of Agriculture, have said land use should be controlled at the local level, noted Julie Alexander, a CAFO critic. State officials have said they do not want to pre-empt local land-use regulations, she added.
"This is exactly what you're supposed to be doing," Alexander told commission members, referring to the CAFO ordinance.
Ind. Courts - "Former Jay County prosecutor's law license suspended"
The Muncie Star-Press reports:
Former Jay County Prosecutor Bradley K. Burkett has been suspended from the practice of law by the Indiana Supreme Court.
In a Dec. 18 order signed by Chief Justice Randall Shepard, Burkett's license was suspended immediately because he had failed to respond to the Supreme Court's disciplinary commission regarding a grievance filed against him.
The nature of the grievance was not addressed.
The former prosecutor's Indiana driver's license was also suspended, on Nov. 19, after he failed to provide verification he had insurance at the time of a recent traffic accident. The suspension is set to run through Feb. 17.
Burkett, 52, was elected Jay County prosecutor in 2002, when he unseated incumbent George Lopez in the general election. Seeking re-election four years later, he was defeated by Robert Clamme in the May 2006 Democratic primary.
Ind. Courts - Noblesville "Volunteers donate time to give kids a voice in court"
Hamilton County's Guardians ad litem/CASA program is the subject of a story today by Tania E. Lopez in the Indianapolis Star.
Environment - "BP permit blowup leads to IDEM changes"
Keith Benman writes today in the NWI Times:
A wastewater permit for U.S. Steel's Gary Works is on hold until Indiana environmental regulators can come up with a new antidegradation regulation to protect Lake Michigan.
"We can't say they have met this rule until we know what this rule is," Indiana Department of Environmental Management Commissioner Thomas Easterly said Thursday. "Without a rule, no one knows if we're protecting the lake."
A wastewater permit for U.S. Steel's Midwest Division in Portage and three AcelorMittal steel production sites also are on hold.
Indiana's lack of an effective antidegradation policy was pointed out last month by Indiana University professor James Barnes in a report on IDEM's controversial wastewater permit for BP.
The report concluded the permit complied with state and federal rules, but it said Indiana's lack of clear antidegradation regulations prevented IDEM from getting complete information from BP. It also hindered the state agency's ability to defend the permit.
"We need speedy decisions but we also need decisions people can have confidence in," Easterly said in a review of the BP permit process. "That just didn't happen here."
Easterly spoke in front of the Northwestern Indiana Regional Planning Commission Environmental Management and Policy Committee at the regional agency's headquarters in Portage.
He told the committee -- made up of local elected officials and the leaders of a number of environmental groups -- that IDEM is reacting swiftly to lessons learned during the blowup over the BP permit.
The EPA already has objected to IDEM's proposed permit for U.S. Steel, saying discharges of cyanide and heavy metals would violate Indiana's current antidegradation regulations.
IDEM now plans on getting nonobjection determinations on proposed permits from the EPA before taking them forward for public review, Easterly said.
The EPA's antidegradation policy requires states to formulate regulations to prevent pollution that would endanger existing uses of state waters.
For "high quality" waters like lake Michigan, increases in discharges are only allowed after exhaustive review. The polluter also must show there are not feasible alternatives and that it serves an important economic or social purpose.
Implementing such a regulation has been thorny issue in Indiana. IDEM took public comment on a proposed regulation in 2003 and 2005, Easterly said. Both times it received many "negative" comments both from environmentalists and industry.
Easterly is now hopeful an antidegradation regulation can be in place by the end of this year. The usual process takes 18 months.
That means area steelmakers will continue to operate on administratively renewed permits, which generally do not have updated limits for discharges.
Ind. Decisions - Transfer list for week ending January 4, 2008
Here is the Indiana Supreme Court's transfer list for the week ending January 4, 2008. Be sure to view all 4 pages.
There was one transfer granted this week: Brian Tyler v. State, a NFP opinion dated Oct. 31, 2007, where the COA wrote:
Brian Tyler appeals his convictions of vicarious sexual gratification as a Class D felony and two counts of Class A felony child molesting. He also claims his sentence for those offenses and an habitual offender enhancement are inappropriate. We affirm.
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.
Thursday, January 03, 2008
Ind. Courts - Judge David F. Hamilton new USDC-SD chief judge
From a press release issued by the USDC-SD Ind:
On Jan. 1, the United States District Court for the Southern District of Indiana came under the leadership of a new chief judge. Judge David F. Hamilton assumed this position on the expiration of Judge Larry J. McKinney’s term as chief judge.
During Judge McKinney’s seven-year term as chief judge, the judges of the Southern District of Indiana managed the third-busiest caseload of all federal district courts and resolved more than 23,000 civil and criminal cases.
Under Judge McKinney’s guidance, the court also made technological advances, celebrated the centennial of the Birch Bayh Federal Building and United States Courthouse, and undertook new efforts in public outreach. In July 2002, the court launched an electronic civil case filing system known as CM/ECF, which revolutionized the handling of civil cases.
The court’s chief judge position is assigned based on length of service. The chief judge serves for a term of seven years and handles administrative matters related to the operation of the clerk’s office and the courthouse that do not require the attention of all the judges. The chief judge carries a full caseload in addition to these administrative duties and does not receive any additional pay.
Chief Judge Hamilton was appointed district judge for the Southern District of Indiana in 1994. He is expected to serve as chief judge until Jan. 1, 2015.
For more information, contact Clerk of Court Laura Briggs at 317-229-3705.
Ind. Decisions - "This Seventh Circuit decision is a real gem"
Decision of the Day today highlight's another Easterbook opinion (his Indiana decision was summarized in an earlier ILB entry today). The highlighted case originated in Illinois and is titled Federal Trade Commission v. QT Inc. Chief Judge Easterbrook's opinion begins:
WIRED Magazine recently put the Q-Ray Ionized Bracelet on its list of the top ten Snake-Oil Gadgets. See http://blog.wired.com/gadgets/2007/11/10-awesome-gadg.html.The opinion continues with a photo of the “Gold Deluxe” Q-Ray Ionized Bracelet
Robert Loblaw's blog entry about the decision begins:
If you only read only opinion by Judge Easterbrook this year, make it this one. It may be a little early to start handing out superlatives for 2008, but this Seventh Circuit decision is a real gem.
Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP) [Updated Again]
Note: All five of these documents currently are corrupted and cannot be read. The ILB has informed the Clerk's office.
[Update: The Clerk's office was contacted at 1:02 pm. It is now 3:05 pm and no response has been received. The opinions remain inaccessible. If you can help, please contact the ILB.]
[Updated 1/4/08: Apparently all PDF viewers will not open the 5 new postings by the Clerk yesterday, even though they readily open all earlier cases posted by the Clerk.]
For publication opinions today (1):
In Donyea Fowler v. State of Indiana, a 13-page opinion, Judge Darden writes:
Donyea Fowler appeals his convictions, after a jury trial, of auto theft and battery, both as class D felonies. The State cross-appeals the trial court’s judgment on the evidence for the charge of resisting law enforcement, as a class D felony. We reverse and remand.NFP civil opinions today (2):
Issues: 1. Whether the trial court erred when it allowed the State to amend the charging information. 2. Whether the trial court erred in granting Fowler’s motion for judgment on the evidence. * * *
In this case, at the initial hearing on the resisting law enforcement charge, the judicial officer at the hearing should have set an omnibus date that would have occurred between 45 and 75 days thereof, i.e., between early July and mid-August of 2005. The State would have been allowed to add the auto theft and battery charges 30 days prior to the omnibus date. However, it was not until May 13, 2006, that the State sought to amend the original charging information by amendments that were matters of substance. The law barred such an untimely amendment. See I.C. § 35-34-1-5 (previous to amendment by Pub. L. 178-2007 § 1). Accordingly, we conclude that the trial court erred in permitting the amendments, and find that Fowler’s convictions for class D felony auto theft and battery, must be reversed. * * *
Given the evidence, we find that the trial court improperly found that insufficient evidence existed to convict Fowler of resisting law enforcement. In so doing, the trial court improperly imposed itself as the “thirteenth juror.” See Goodrich, Jr., 498 N.E.2d at 996. There was not a total absence of evidence on the issue of Fowler being ordered to stop; nor is the evidence susceptible only to an inference in favor of Fowler. Id. at 996- 97 . Therefore, the trial court erred in granting Fowler’s motion for judgment on the evidence.
We hereby reverse Fowler’s convictions for auto theft and battery, as class D felonies. We reinstate the jury’s verdict of conviction for the class D felony of resisting law enforcement.
David Boilek v. Olin Barham and Indiana Insurance (NFP) - "Following a jury trial, Appellant-Plaintiff David Boilek appeals the jury’s verdict denying his claim of damages against Appellees-Defendants Olin Barham and Indiana Insurance Company for personal injuries arising out of a car accident. Upon appeal, Boilek claims the trial court erred in instructing the jury regarding his duty to mitigate. Concluding that Boilek has waived his claim of error, we affirm."
In the Matter of the Paternity of B.L.A.S.; Jerry L. Brodie v. Alicia Shotts (NFP) - "Jerry L. Brodie (“Father”) appeals the trial court’s order that denied his emergency petition to modify custody of his son, B.L.A.B. (“B.”). We affirm. "
NFP criminal opinions today (2):
Ind. Decisions - One Indiana decision today from 7th Circuit
In U.S. v. Moon (ND Ind., Judge Lozano), an 8-page opinion, Cheif Judge Easterbrook writes:
Anthony Alexander and George Moon have been convicted of distributing cocaine and of some ancillary crimes. See 21 U.S.C. §841. Alexander received a sentence of life imprisonment and Moon of 190 months. The principal question on appeal is whether a chemist violated the Confrontation Clause of the Sixth Amendment when testifying that the substance seized from defendants was cocaine. * * *For more, see this entry by Howard Bashman of How Appealing.
Thus we agree with Washington that the Sixth Amendment does not demand that a chemist or other testifying expert have done the lab work himself. Our decision in United States v. Ellis, 460 F.3d 920 (7th Cir. 2006), is to much the same effect—though it does not involve expert analysis. A hospital conducted blood and urine tests that were introduced into evidence as the hospital’s business records. See Fed. R. Evid. 803(6); see also Rule 803(4). Then the arresting officer testified that the results demonstrated the presence of methamphetamine in Ellis’s system. Ellis holds that the test results were not “testimonial” under Crawford and Davis. 460 F.3d at 923–24. We did not consider the possibility that the data are not “statements” in the first place. Thus Washington and Ellis reach the same result: the Confrontation Clause does not forbid the use of raw data produced by scientific instruments, though the interpretation of those data may be testimonial.
Ind. Gov't. - More on: Defeated Anderson mayor refuses to step down
A Madison County judge has requested the Indiana Supreme Court appoint a special judge to decide whether Kris Ockomon was eligible to be elected as mayor of Anderson. * * *Today the Herald Bulletin has a comprehensive editorial headed "Ockomon is the mayor."
Because of the lawsuit, Kevin Smith announced Tuesday that he would not relinquish his position as mayor of the city of Anderson.
“That’s why we need to get this to court as quickly as possible,” Smith said Wednesday at a press conference.
While Ockomon still controls the office on the fifth floor of the City Building, Smith has not stepped down from the position, a “constitutional obligation” he is required to do.
“What we’re dealing with here is a legal issue,” Smith said. “Yes, the keys may be surrendered, but that’s not what the issue is.”
WISH TV 8 also has brief coverage of the story.
Wednesday, January 02, 2008
Courts - "Fledgling Kentucky public defender takes case to highest court"
Not only the Indiana voter ID cases, but the Kentucky lethal injection case (see Sept. 28th ILB entry here) will be heard by the SCOTUS next week. Lethal injections will be Monday, Jan. 7th, voter ID will be Wed., Jan. 9th.
Today the AP's Brett Barrouquere has this story. Some quotes:
FRANKFORT, Ky. -- One of the biggest capital punishment cases to come before the U.S. Supreme Court in a generation was put together largely by a young, fresh-out-of-law-school member of Kentucky's overworked and underpaid corps of public defenders.
David Barron, now 29, filed an appeal on behalf of two Kentucky death row inmates, arguing that the three-drug cocktail used in lethal injections can cause excruciating pain, and thus amounts to cruel and unusual punishment in violation of the Eighth Amendment to the Constitution.
After three years of long hours on Barron's part, the Supreme Court agreed to hear arguments in the case on Monday. This is the first time in more than a century that the high court will address the legality of a method of execution. Thirty-six states use lethal injection, and executions across the country have come to a halt in the meantime. * * *
The challenge is the ninth case Kentucky's public defenders have gotten before the high court in the past three decades. Among others was the landmark 1986 ruling Batson v. Kentucky, in which the Supreme Court found it unconstitutional to dismiss a juror because of race.
Barron works in the public defender's capital post-conviction unit, a corps of five attorneys who handle appeals for Kentucky's 38 death row inmates.
For this case, the public defender's office is bringing in Donald Verrilli, a Washington lawyer who frequently appears before the high court, to argue the challenge.
Ind. Decisions - 7th Circuit issues two Indiana opinions
In Mesman v. Crane Pro Services (ND Ind., Magistrate Judge Cherry), a 15-page opinion, Judge Posner writes:
This products-liability case is before us for the second time. 409 F.3d 846 (7th Cir. 2005). Federal jurisdiction is based on diversity of citizenship, and the tort issues are governed by Indiana’s productsliability statute and its common law of torts. John Mesman, an employee of a manufacturer of steel products named Infra-Metals, was gravely injured when a load of steel sheets that he was unloading from a boxcar fell on him from the crane that was lifting the sheets out of the boxcar. He brought suit under the products-liability law against the firm that had rebuilt the crane, Konecranes. A jury awarded the plaintiffs (Mesman and his wife) $5.6 million, based on its judgment that Konecranes was one-third responsible for the accident and Infra-Metals—which Mesman could not join in the suit because it was his employer—two-thirds responsible. But the judge set the verdict aside and entered judgment for the defendant. She further ruled that if she was wrong in doing this the defendant was entitled to a new trial because the jury had been confused by irrelevant evidence and had ignored critical instructions. We reversed the judgment for the defendant but affirmed the order for a new trial. The case was retried and this time the jury returned a verdict for the defendant. The magistrate judge presiding at the retrial refused to set the verdict aside. Hence this second appeal, which is by the plaintiffs. * * *In Nelson v. Hodowal (SD Ind., Judge Hamilton), a 9-page opinion, Chief Judge Easterbrook concludes:
The defendant’s principal argument was not that the danger was obvious, whether to the accident victim or to the crane’s operator, but that the safety precautions were adequate and that the culpable cause of the accident was Infra-Metals’ failure to instruct the operator adequately in the safe operation of the crane. Apparently the jury was persuaded. There are no grounds for setting aside its verdict. The judgment for the defendant is therefore AFFIRMED.
A trustee’s duty to furnish information to beneficiaries, on which see Restatement (Third) of Trusts §82 (T.D. 4, 2005), may be discharged directly or through an intermediary such as Merrill Lynch. Often delegating the function to a specialist is best for a novice investor.* * * ERISA does not hold a fiduciary responsible for the decline in an investment’s value, when an informed and independent investment adviser has been furnished without charge to all beneficiaries, who exercise full control over which investments their accounts will hold. AFFIRMED.
Ind. Decisions - "Court upholds OWI sentence"
The Dec. 3rd COA ruling [see ILB entry here - 3rd case] in the case of James H. Lindsey v. State of Indiana is the subject of a story today by Diana Wires of the Bedford Time-Mail. Some quotes:
INDIANAPOLIS — James N. Lindsey’s conviction and sentence for driving drunk and being involved in an accident that killed two teens was upheld by the Indiana Court of Appeals last month.
Lindsey, 40, formerly of Mitchell, was convicted by a jury in February of operating a vehicle while intoxicated with an alcohol concentration equivalent of 0.15 percent, a Class A misdemeanor. Later, he pleaded guilty to being a habitual substance offender. * * *
Lindsey was sentenced by Orange Circuit Court Special Judge Kenneth L. Lopp to eight years in jail.
“On April 23, 2007, the trial court issued a new sentencing order, ordering that Lindsey serve the remainder of his sentence at the Orange County Jail because the Department of Correction would not accept Lindsey based on the fact that his conviction was for a misdemeanor,” according to the Indiana Court of Appeals’ opinion from Dec. 3.
Lindsey’s attorney Nick Herthel appealed the conviction and sentence on Lindsey’s behalf and had five specific issues.
The Indiana Court of Appeals affirmed all of the Orange County court’s rulings.
“Here, the record reflects that the State’s failure to disclose the evidence upon which it intended to rely to support the HSO allegation appears to have been inadvertent, not deliberate. …,” the opinion stated. “Further, we note that the evidence produced by the State as part of its discovery materials at least put Lindsey on notice of the prior convictions on which the State intended to rely to prove the HSO allegation. The exercise of due diligence would have led Lindsey to discover sufficient evidence existed to establish Lindsey’s prior convictions beyond a reasonable doubt in order to prove the HSO allegation. Thus, Lindsey cannot now argue he was prejudices by the State’s failure to produce the certified documents because it caused him to request the instruction on the lesser included Class A misdemeanor offense.”
Lindsey’s prior criminal history includes three prior Class A misdemeanor and a Class D felony drunken driving charges. He was sentenced to one-year of incarceration for the latest drunken driving with a blood-alcohol content of 0.15 percent or more charge, and Lopp added seven years to that sentence for him being a habitual offender.
Lindsey also argued that serving his sentence at the Orange County Jail was cruel and unusual punishment.
“Lindsey maintains that the county jail does not provide him with access to recreation, education, counseling, or other rehabilitative services that would be available to him if her were incarcerated in the DOC,” the opinion stated. “Lindsey asserts in his brief that he is a large man, confined to a small, dark cell for much of every day. Lindsey contends that his incarceration at the county jail ‘inflicts purposeless, needless and unintended pain and suffering’ and further asserts that ‘[w]ith the advent of the modern DOC, it is obsolete or unusual for such a lengthy commitment to be served at a county jail.”
The appeals court ruled that the Orange County Jail was an acceptable.
Ind. Gov't. - Defeated Anderson mayor refuses to step down
Updating this ILB entry from Dcc. 29, where the ILB quoted from a story in the Anderson Herald Bulletin that began:
Opponents of Kris Ockomon have mounted a legal challenge to his eligibility as mayor just four days before he’s set to take office., the Herald Bulletin reported this morning at 9:52 am:
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.
On the same day that Kris Ockomon was sworn in as the city’s new leader, Kevin Smith said he would not step down as mayor of Anderson.From a story posted at 11:04 am:
Smith, a Republican, said Tuesday that the issue of Democrat Ockomon’s residency must be resolved before Ockomon can rightfully take over the office or mayor. On Friday, five people, some of whom had worked in the Smith administration, filed an injunction to halt Ockomon from becoming mayor because he had allegedly not been a city resident for the required year.
Smith said in a statement: “Given the obvious potential for a vacancy in the office of mayor based upon the lawsuit which has been filed, and given my constitutional duty to remain in office, I am today announcing that I have not and will not be surrendering the office of mayor pending a determination by the courts as to whether Kris Ockomon is or is not qualified to be the mayor of Anderson.” * * *
Smith said in a phone interview that his decision to remain in office came after meeting with the people who filed the injunction and their attorney.
“They pointed out that they believe that Ockomon was not a qualified candidate, because of the residency issue,” Smith said. “In light of that, they don’t believe he was qualified to be sworn in as mayor.”
[State Sen. Tim Lanane, D-District 25, who is Anderson’s new city attorney under Ockomon] said if the residency issue were legitimate, Smith should have raised an objection sooner.
“He had every right to raise this issue in the campaign,” Lanane said.
Madison County Superior Court 1 Dennis Carroll ordered Wednesday morning the immediate appointment of a special judge to determine the residency of Mayor Kris Ockomon.
A lawsuit was filed Friday seeking an immediate order restraining Ockomon from taking the oath to be Anderson's mayor on Tuesday and a permanent injunction to restrain him from assuming or exercising any duties as mayor. The request for the restraining order was denied and Ockomon took office. A judge did not rule in the matter of a permanent injunction.
Mayor Kevin Smith declined to surrender the office of mayor Tuesday until the merits of this litigation has been determined. Smith claims Ockomon did not live in Anderson the required one year before his election to office.
The Madison County judges believe they each have a conflict of interest in the case, according to Carroll's order. A request has been sent to the Indiana Supreme Court for a special judge to be appointed.
Ind. Courts - "New judge’s first experience in courtroom was as a juror"
Laura Lane reports today in the Bloomington Herald Times ($$$) on new Monroe County Judge Christine Talley Haseman in a story that begins:
Christine Talley Haseman’s interest in lawyering grew not from Perry Mason reruns or a respected barrister in the family.Here is a list of earlier ILB entries referencing Haseman.
It is rooted instead in her up-front seat as a juror in a gruesome murder trial 20 years ago.
A 34-year-old man named Robert E. Lee stood accused of killing and dismembering Indiana University graduate student Ellen Marks. Haseman was one of the 12 jurors who decided he was guilty.
Monroe Circuit Judge Kenneth Todd sentenced Lee to 60 years in jail. With credit for good behavior, Lee is set to be released in eight years.
Back then, Haseman was a 21-year-old college student on the fast track to an MBA at Indiana University.
Today, she dons a black robe as Monroe County’s ninth judge.
In between, she got that MBA, worked with children with severe disabilities, became a production control specialist at General Electric, completed law school, served as a juvenile judge in Lawrence County, established a private law practice and had two children.
Haseman was perched to launch herself into a career in business and marketing when she was chosen as a juror in the Lee trial.
The experience got her thinking about a change of course.
Law - "A Taxing Issue: What to Render Unto Whom?"
A timely article today ($$$) on the front page of the Marketplace section of the Wall Street Journal, given the interest in this issue evidenced by members of the 2008 General Assembly. Suzanne Sataline reports:
With expansion-minded churches managing real-estate portfolios, sports centers and even shopping malls, religious leaders are increasingly getting unwelcome visits from tax collectors.
Local government officials say they are levying taxes because churches are running businesses that don't have a charitable mission. At a time of greater federal scrutiny of religious finance, these efforts are targeting fast-growing Protestant megachurches and television evangelists, as well as established Catholic and Jewish congregations. Church leaders counter that they aren't trying to turn a profit but find entrepreneurial ways to serve the poor and the faithful.
These ventures are a far cry from bingo. In 2004, Christ Chapel Community Church in Macon, Ga., paid $6 million for SportsTowne, an athletic club offering tennis, basketball, and roller hockey for a fee. On the weekend, church members set up seats for 1,000 worshipers. * * *
By longstanding tradition, state laws exempt properties used for religious or charitable purposes -- or for operations, such as church parking lots, that aid that mission. But the U.S. Supreme Court has ruled that taxing bodies aren't required to give religious exemptions.
Tax officials and church leaders say assessments have accelerated over the past several years, leading to sometimes lengthy disputes and, in some case, court fights. Congress has also been interested in some churches' expansive bent. Late last year, the Senate Finance Committee asked six televangelists with large operations to share extensive financial data, seeking to determine, among other things, whether they had strayed outside their nonprofit mission.
The changing nature of churches "forces both courts and agencies and tax commissioners to decide what's a religious or charitable use," says John Witte Jr., director of the Center for the Study of Law and Religion at Emory University in Atlanta.
Law - "Same-Sex Divorce Challenges the Legal System: Most States Lack Law, Precedent To Settle Issues"
Dafna Linzer of the Washington Post has a lengthy report today -- here are some quotes:
When her three-year-old marriage broke up, the 44-year-old doctor assumed she and her ex would split their property and jointly parent their two children. Her stay-at-home spouse wanted sole custody and the right to move the children out of Massachusetts.
In pretrial motions, both parents made the same argument to a judge: The children should be with me; I'm their mother.
For years, family court judges leaned toward a maternal preference when it came to custody disputes. But what to do when both parents are women, or neither is? Judges in Massachusetts have been grappling with that question since gay and lesbian couples began filing for divorce in 2004, seven months after the state Supreme Court legalized same-sex marriage.
Nearly 10,000 gay and lesbian couples married after the ruling. Massachusetts does not keep records on the number who have divorced, but lawyers who specialize in family cases say it is in the dozens. Those who choose to end their marriages soon discover that the trauma of divorce is compounded by legal and financial difficulties that heterosexual couples generally are spared.
"One of the benefits of marriage is divorce," said Joyce Kauffman, a Boston divorce lawyer who has handled a dozen same-sex divorce cases. "But for a lot of couples, that benefit is very complicated and very costly in ways that heterosexual couples would never have to experience." * * *
In 1996, Congress passed, and President Bill Clinton signed, the Defense of Marriage Act, which says that no state is required to recognize a same-sex marriage that occurred in another state. States that do not recognize those marriages "would probably not divorce a same-sex couple from Massachusetts," said a 2004 handbook on marriage produced by the Massachusetts Lesbian and Gay Bar Association.
Under Massachusetts law, both people seeking a divorce must reside in the state. That left Cassandra Ormiston and Margaret Chambers of Rhode Island in a bind. The two were wed in Massachusetts in 2004, soon after the state legalized same-sex marriages. But in 2006, they filed for divorce in their home state, where the law is silent on whether such marriages are legal.
The divorce issue then fell to the Rhode Island Supreme Court, which ruled in December that the state's family court lacks the authority to grant a divorce for same-sex couples because the state legislature has not defined marriage as anything other than a union between a man and a woman.
"There is now no way for me to get divorced unless I move back to Massachusetts, establish residency and then wait a year before I file, and I simply will not do that," a bitter Ormiston said after the ruling.
Andrew Koppelman, a law professor at Northwestern University, published a book in 2006, "Same Sex, Different States: When Same-Sex Marriages Cross State Lines." Koppelman urged states that oppose same-sex marriage to agree at least to perform divorces. "You have to have a way for people to get out of these things -- otherwise, you have multiple claims on the same property and no protections for people entering into new marriages. I think states that try to adopt these rules refusing to recognize the marriages just haven't thought it through."
Ind. Courts - More on "Lake Judges, lawyers look to improve system's efficiency"
Once the camel has its nose in your tent, so the saying goes, it's not long before the whole beast is inside.The study by NCSC Consulting, "Lake County, Indiana, Operational Efficiency and Effectiveness Study with MAXIMUS," does not appear to be available online.
The Lake County courts system began expansion in earnest after the release of a 1994 study by the Indiana Supreme Court, which said the civil division of Lake Superior Court was overworked and the criminal division was underworked.
New courts were created from thin air. Towns which never had courts before established them. Existing courts expanded.
Judges and magistrates were given docket administrators, magistrates, probate commissioners, bailiffs, probation officers and more to ease caseloads, and they retained the ability to appoint a judge pro tempore to simply take time off.
The camel is now all the way inside, and he is very comfortable where he is.
But figures do not support a need for all the courts we have. The civil courts do a lot of cases, but most of those are perfunctory hearings, many done by fax or phone. The county division of Superior Court disposes of more than 95 percent of its cases by pleas.
It costs an estimated $24 million annually to run the 27 courts in Lake County, but is the money being wisely spent?
Again, another study done by an outside organization suggests not.
The National Center for State Courts, a Virginia-based nonprofit organization that has analyzed state justice systems since 1971, has said our court system has duplication of effort, too many employees, is confusing and costs too much.
Tuesday, January 01, 2008
Environment - How much pollution do Indiana facilities discharge into Lake Michigan each year?
The Sunday before Christmas (Dec. 23rd) the Gary Post-Tribune published a series of stories by their environmental reporter, Gitte Lasby, seeking to answer the question of "How much pollution do Indiana facilities discharge into Lake Michigan each year?" The lead story, headed "Progress, but not enough," reports in part:
The Clean Water Act set out to "virtually eliminate" discharges to U.S. waterways by 1985. But a Post-Tribune analysis shows Indiana's major facilities discharged more than 378 million pounds of pollutants into Lake Michigan and its tributaries in just one year.Here are links to the accompanying stories:
Dumping of nearly all pollutants discharged by Indiana's 33 major polluters has fallen dramatically since 1979. The Clean Water Act has made a difference.
Dumping of nearly all pollutants discharged by Indiana's 33 major polluters has fallen dramatically since 1979. The Clean Water Act has made a difference.
But it hasn't reached its goal of zero discharges, or come near it. * * *
Releases of two substances have increased since then in Lake Michigan. Facilities dumped more than 10 times as much hexavalent chromium -- a human carcinogen -- than 26 years earlier. It would take 1.15 trillion gallons of water to dilute that much hexavalent chromium -- 1,918 pounds -- to safe drinking levels. Lake Michigan, at 1.3 quadrillion gallons, has 1,130 times that much water.
They also unloaded more than 227 million pounds of dissolved solids, such as salt. That's more than 15 times the amount released in 1979. * * *
No new deadline has been set to reach the goal of no discharges. But with the public firestorm this summer over the wastewater permit for BP Whiting and increased public interest in wastewater permits in general, environmentalists say the Clean Water Act is getting new scrutiny.
The last major overhaul was 20 years ago and it may be time for a new generation of the act, Cameron Davis, president of the Alliance for the Great Lakes, said.
"As I think the BP case told us, some people have lost sight of the fact that the Clean Water Act is supposed to get us to zero over time. And that needs to continue to be our goal. There's a lot of talk about reducing or eliminating our carbon footprints. We need to be doing the same to reduce our water footprint," Davis said.
Botts said last time public interest was this high was when pollution in the Cuyahoga River in Ohio caught on fire in 1969. The incident spurred an avalanche of pollution control activities, which resulted in the Clean Water Act.
"Progress, whether it's enough, remains to be seen. How it (the Clean Water Act) deals with growth, and still reducing pollution as you go, that's a bigger question for me," Botts said.
"The goal was to eliminate pollution. That's the direction we should continue to go. Recognize that we have made progress, but it's not enough."