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Friday, February 29, 2008

Ind. Decisions - 7th Circuit decides one Indiana case today

In Duncan v. Fleetwood Motor Homes (ND Ind., Mag. Judge Cosbey), a Per Curiam panel ruled in a 13-page opinion:

Barry Duncan worked at Fleetwood Motor Homes of Indiana for 20 years, 15 of them as a material handler. In 2004, when Duncan was 51, Fleetwood told him he could no longer work as a material handler. The company offered Duncan several less desirable jobs in the following months, and eventually he accepted a position as an assembler. Duncan sued, claiming that Fleetwood violated the Age Discrimination in Employment Act by forcing him to give up his job as a material handler. A magistrate judge, presiding by consent, granted 2 No. 07-1284 summary judgment for Fleetwood. Because we conclude that questions of fact remain concerning the legitimacy of Fleetwood’s explanation for its action, we vacate the judgment and remand for further proceedings.

Posted by Marcia Oddi on Friday, February 29, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 14 NFP)

For publication opinions today (3):

Common Council of Michigan City, Indiana v. Board of Zoning Appeals of Michigan City, Indiana, James Masters, Esq., et al

Charles D. Trigg v. Erin Leigh Al-Khazali

Invol. Term. of Parent-Child Rel. of A.J., A.G., J.G., J.J., A.J., T.J., and L.S., and Latasha J. and Bobby S. v. Marion Co. Office of Family/Children and Child Advocates

NFP civil opinions today (2):

Helen Marks v. Raymond C. Marks (NFP)

In the Matter of C.S., A Child In Need of Services, and James Cvercko v. Marion County Department of Child Services, and Child Advocates, Inc. (NFP)

NFP criminal opinions today (12):

Shauna L. Davis v. State of Indiana (NFP)

Armando Cordero v. State of Indiana (NFP)

Glenn Evans v. State of Indiana (NFP)

Jose Tinder v. State of Indiana (NFP)

Gary Mitchell v. State of Indiana (NFP)

James F. Miller v. State of Indiana (NFP)

James M. Johnston v. State of Indiana (NFP)

Michael R. Flanders v. State of Indiana (NFP)

Demonn Carter v. State of Indiana (NFP)

Leroy Howard v. State of Indiana (NFP)

Michael Jordan, Jr. v. State of Indiana (NFP)

John D. Randall v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, February 29, 2008
Posted to Ind. App.Ct. Decisions

Law - NYT reporter Linda Greenhouse may move on

The AP reported yesterday:

Linda Greenhouse, who has covered the Supreme Court for The New York Times for 30 years, said Wednesday that she has accepted a buyout package from the newspaper.

Greenhouse joined the Times in 1968 and started covering the court in 1978, making her career there longer than any of the current justices except John Paul Stevens, who came on in 1975. * * *

Greenhouse, 61, said in a phone interview that she had been planning to retire in a few years anyway and that the buyout offers, which were announced by the newspaper last week, came along at an opportune time.

"I don't feel like I'm leaving anything undone after 30 years on this beat," she said. * * *

Greenhouse said she had various academic writing and speaking commitments that went well into next year, adding that she plans to remain "actively engaged in thinking and writing about the court."

Say it isn't so, Linda.

Posted by Marcia Oddi on Friday, February 29, 2008
Posted to General Law Related

Thursday, February 28, 2008

Ind. Decisions - Supreme Court issues awaited insurance decisions

In State Farm Mutual Automobile Ins. Co. v. Patricia Jakupko, et al, a 14-page, 5-0 opinion, Justice Sullivan writes:

Richard Jakupko suffered severe injuries and his wife and children emotional distress in an automobile accident caused by an underinsured motorist. Their insurance company contends that their underinsured motorist insurance policy subjects any amount the wife and children can recover for their emotional distress to the per person liability cap applicable to Richard. Such a limitation would violate the requirements of Indiana’s underinsured motorist insurance statute and be void; the wife and children are each entitled to their own per person liability limit.
In Austin J. Elliott, et al v. Allstate Insurance Co., a 4-page, 5-0 opinion, Justice Sullivan writes that the judgment of the trial court is reversed.
The policy language at issue here is slightly different than that in Jakupko. However, both cases present us with precisely the same issues to decide:

(1) whether “bodily injury” as defined in the policy at issue in this case includes the emotional distress Amber and Austin suffered; and, if so,

(2) whether the fact that the policy provides that the coverage limit for bodily injury suffered by Amanda “includ[es] damages sustained by anyone else as a result of that bodily injury” precludes Amber and Austin from having their own independent limits on liability.

Our decision today in Jakupko resolves these issues. In it we hold that “bodily injury” as defined in the policy at issue in that case includes emotional distress. For the same reasons, we reach the same result here.

In State Farm Mutual Automobile Ins. v. D.L.B., Deana H. Brake , a 5-page, 3-2 opinion, Justice Sullivan writes:
We grant transfer here today, because like Jakupko, this case requires us to decide whether “bodily injury” as defined in the policy at issue in this case includes the emotional distress D.L.B. suffered.

In Jakupko, we hold that “bodily injury,” as defined in the policy at issue in that case, includes emotional distress. ... However, we note in Jakupko that the term “bodily injury” does not include emotional damage unless it arises from a bodily touching. * * *

D.L.B. argues that although he did not suffer a direct impact, his emotional distress was accompanied by physical manifestations. As Judge Darden observes in his dissent, however, these physical manifestations were not the result of an impact, force, or harm to D.L.B.’s body and so do not fall with the ambit of Wayne Township; rather, this case is controlled by Armstrong.

Because D.L.B. did not suffer “bodily injury” within the meaning of the policy, he was not entitled to collect damages under Wallace’s State Farm policy. The judgment of the trial court is reversed.

Shepard, C.J., and Boehm, J., concur.

Dickson, J., dissents with a separate opinion in which Rucker, J., concurs. [J. Dickson's dissent concludes] Because I prefer not to affirm the summary judgment for State Farm on an issue not raised and on which D.L.B. has not had an opportunity to respond, I would reverse the trial court's grant of summary judgment for State Farm.

Posted by Marcia Oddi on Thursday, February 28, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Two today from 7th Circuit

In Schleicher, Steve v. Salvation Army (SD Ind., Judge Young), an 11-page opinion, Judge Posner writes:

The Schleichers brought suit against their former employer, the Salvation Army, charging violations of the minimum-wage and overtime provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. Invoking the “ministerial exception” (better termed the “ministers exception,” to avoid the misleading connotation of “ministerial”—better still, as we’ll see, to call it the “internal affairs” doctrine) to federal employment statutes, see, e.g., Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (2003), the district judge dismissed the suit—though only after an evidentiary hearing—for want of federal jurisdiction. Fed. R. Civ. P. 12(b)(1). * * *

But it is entirely proper in a case like this for a defendant who is invoking the presumption that ministers’ compensation is not subject to the Fair Labor Standards Act to move to dismiss an FLSA case under Rule 12(c) (judgment on the pleadings). If the plaintiff presents evidence to rebut the presumption, then, as the rule states, the defendant’s motion for judgment on the pleadings is treated as a motion for summary judgment under Rule 56. It does not matter in this case, however, what rule the judge acted under, since he granted an evidentiary hearing at which the plaintiffs could have tried to present evidence that would have rebutted the presumption, but did not. We therefore modify the judgment to base it on the lack of merits of the plaintiffs’ claim rather than on any want of federal jurisdiction, and as so modified the judgment is affirmed.

In USA v. Choiniere, Bruno (ND Ind., Judge Sharp), a 13-page opinion, Judge Williams writes:

Chiropractor Bruno Choiniere developed what he terms a back “brace” and the government deems a back “belt,” and he billed Medicare, Medicaid, and private insurance companies over $1000 each time he prescribed it. The government maintained it was worth about $50, and a jury convicted Choiniere of health care fraud, fraudulent concealment of health care benefits, and money laundering. On appeal, Choiniere argues that the district court committed reversible error when it refused to give two of the proposed intent to defraud jury instructions that he tendered. Because the instructions the jury received already conveyed the theories in Choiniere’s proposed instructions, and the failure to give the instructions did not deny him a fair trial, we find no error in the decision not to give the jury the two instructions. We also affirm the sentencing enhancement Choiniere received for using minors in furtherance of his scheme, as the district court was entitled to credit the testimony of the minors’ mother and grandmother that Choiniere had solicited the minors’ assistance. Therefore, as we discuss in more detail below, we affirm the judgment of the district court.

Posted by Marcia Oddi on Thursday, February 28, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Governor appoints Bluffton City Judge"

A press release this afternoon reports:

INDIANAPOLIS (February 28, 2008) – Governor Mitch Daniels today announced the appointment of Robert J. Bate as judge of the Bluffton City Court. He succeeds Judge Gary Markley who resigned on January 15.

Currently retired, Bate served as owner and president of Bob Bate Chevrolet, Inc. in Ossian from 1979 through 2000. A longtime public servant, he was elected five times to the Bluffton City Council between 1987 and 2007. Bate has been an active member of the Wells County Foundation Board, National Auto Dealers Association, Ossian Lions and the Gideons.

His appointment is effective immediately.

Mr. Bate is not licensed to practice law in Indiana. His predecessor, Judge Gary Markley, however, is listed in the Supreme Court database.

Posted by Marcia Oddi on Thursday, February 28, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Noah Bailey v. State Farm Mutual Automobile Insurance Company, a 17-page opinion, Judge Robb writes:

Noah Bailey appeals following a jury trial at which the jury found for the defendant below, State Farm Mutual Automobile Insurance Company (“State Farm”). Bailey raises two issues, which we restate as whether the trial court abused its discretion in denying Bailey’s Motion to Conform Pleadings to the Evidence and in refusing to give Bailey’s tendered instruction regarding a theory of negligent entrustment. Concluding that the trial court did not abuse its discretion in either regard, we affirm.
In Shawn E. Norris v. State of Indiana, a 16-page opinion, Judge Robb writes:
Shawn Norris appeals from the trial court’s summary disposition of his petition for post-conviction relief. Norris raises the sole issue of whether the trial court improperly granted summary disposition. Concluding that issues of material fact preclude summary disposition, we reverse and remand with instructions that the trial court conduct a hearing on Norris’s petition.
In Gary Gerlach v. Larry Gene Woodke , a 10-page opinion, Judge Robb writes:
Gary Gerlach appeals the decision of the Full Worker’s Compensation Board (the “Board”) affirming the decision of a hearing member, who concluded Gerlach’s employee, Larry Woodke, was eligible for worker’s compensation benefits. On appeal, Gerlach raises one issue, which we restate as whether the hearing member properly found that Woodke was not a farm or agricultural employee within the meaning of Indiana Code section 22-3-2-9(a). We affirm, concluding the evidence presented to the hearing member establishes that at the time of his injury, Woodke was not working as a farm or agricultural employee.
NFP civil opinions today (3):

Invol. Term. of the Parent/Child Rel. of M.H.1,M.H.2,M.H.3,M.H.4, minor children, and their father Thaddeus Harris v. Marion Cnty. Dept. of Child Services, and Child Advocates, Inc. (NFP) - Termination, affirmed.

George Reid, Personal Representative of the Estate of Mary Reid, Deceased v. Jamie Black a/k/a Jamie Black McDaniel (NFP) - "The Estate raises three issues, but we find one issue dispositive; whether genuine issues of material fact existed making the trial court’s grant of summary judgment improper. Concluding a genuine issue of material fact exists as to whether the statute of limitations has run, we reverse and remand for further proceedings." Note this is a 2-1 opinion.

Chicago Title Insurance Company v. Juanita A. Gresh, Individually and as a representative of a class of persons similarly situated (NFP) - "Chicago Title Insurance Company (“Chicago Title”) challenges by interlocutory appeal a trial court order granting class certification. We reverse and remand. The dispositive issue is whether the trial court abused its discretion in finding that common issues would predominate over issues affecting individual class members."

NFP criminal opinions today (4):

William Owen v. State of Indiana (NFP)

William Caudill v. State of Indiana (NFP)

Sarah Ping v. State of Indiana (NFP)

Jonathan E. Sapp v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, February 28, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Third John Doe denied by judge"

So reads the headline to this story today by Lafayette Journal and Courier reporter Sophia Voravang. Some quotes:

A convicted sex offender from Lafayette who challenged Indiana's residency restriction will not be able to return home because he has no rights to the property, a Tippecanoe County judge ruled.

The man filed a civil complaint in August, under the alias John B. Doe, fighting a recent state law that prohibits sex offenders against children from living within 1,000 feet of a school, public park or youth program center.

Doe and his attorney, Earl McCoy, argued that the statute violated Doe's rights by punishing him again, six years after he was released from probation for child seduction. * * *

John B. Doe's lawsuit was one of three complaints filed in Tippecanoe County questioning the law that forced 28 offenders here to move or be charged with a Class D felony.

All three complaints have now been shot down by judges in some capacity.

In an order that Judge Thomas Busch of Tippecanoe Superior Court 2 filed Tuesday, he ruled that John B. Doe's property rights were not violated because the home is owned by his wife. His new residence also does not affect his employment.

Busch also cited similar challenges in other states, including a decision by the Eighth Circuit Court of Appeals that determined a statute in Iowa did not violate ex post facto standards even though the offender's crime, conviction and sentence came before enactment of the law.

Indiana's law took effect on July 1, 2006.

"Under the circumstances, the court finds that injunctive relief forbidding the prosecutor and sheriff from enforcing this law in this case is not in the public interest," Busch wrote in his 11-page ruling.

"His ability to reside in the location is not a property right that can be 'taken' by the government."

See also this ILB entry from Feb. 27th.

See also this Nov. 29, 2007 ILB entry headed "More on: Georgia's top court overturned a state law Wednesday that banned registered sex offenders from living within 1,000 feet of schools, churches and other areas where children congregate."

Posted by Marcia Oddi on Thursday, February 28, 2008
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Still more on: Court of Appeals rules on closing of Fort Wayne Disabilities Center

Updating yesterday's ILB entry, Niki Kelly of the Fort Wayne Journal Gazette reports today:

The Indiana Supreme Court this week dismissed as moot an appeal by the Family and Social Services Administration related to the closing of the Fort Wayne State Developmental Center.

But the court first accepted the case, which vacates the Indiana Court of Appeals opinion that found the administration violated state bidding procedures when it gave Liberty Healthcare a contract in May 2005 to manage the facility.

Later that year, the state and Liberty negotiated a long-term contract to fully privatize the center, including overseeing its closure in April 2007.

There was no public bidding for either contract.

Even though the Indiana Supreme Court didn’t rule on the merits of the case, FSSA Secretary Mitch Roob considers it a victory.

“It should end this discussion,” he said. “What it means is the trial court opinion stands, and the trial court ruled we acted inside our legal authority, so in that respect we’re very pleased.”

It’s unclear how the Indiana Supreme Court’s action affects a separate pending class-action lawsuit filed in Marion Superior Court in December by former center employees seeking monetary damages related to the privatization.

Posted by Marcia Oddi on Thursday, February 28, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Unslated candidates withdraw from Marion County judges race; and more [See Update]

Updating this ILB entry from Feb. 26th, the Indianapolis Star has an editorial titled "When judicial candidates don't have to court voters." It could also be headed "Our So-Called Election." The editorial concludes:

In short, we have a system of electing judges that requires virtually no competition for the public's approval, only an audition before the party bosses. The parties, rather than fight it out to show who's best for the bench, will simply sit back and accept their eight gifts each. * * *

By eliminating even the minimal amount of choice voters used to have in general elections, the legislature has given us the worst of two worlds.

A merit selection process for judges would be removed from direct public review, but would offer the advantage of impartial professionalism over insider politics. Now, we have a putative elective process, but with pre-selection based not on judicial qualifications but on political loyalties.

State and local bar associations, along with Indiana Supreme Court Chief Justice Randall Shepard, have urged the creation of a nonpartisan merit selection system for judges. The General Assembly should either enact that or open up the elective process, so that voters could pick as many Democrats or Republicans -- or others -- as they saw fit.

Neither remedy is likely, any more than abolishment of the antiquated elective posts of coroner and township assessor are good bets. All these moves would make for sound governance, but they would violate the bipartisan spirit of sharing that binds the political parties and their fellow vested interests.

This ILB entry from March 1, 2007 quotes a South Bend Tribune story:
A bill that would change how St. Joseph County selects its judges has died in committee, but it could resurface this legislative session, its author said Wednesday.

Meanwhile, lawyers are making a forceful argument to retain the status quo.

State Rep. Craig Fry's bill to repeal "merit selection" of the county's Superior Court judges, as well as a similar measure authored by Lake County Democrat Charlie Brown, has died in committee for lack of a hearing. But Fry said he believes another lawmaker, one he declined to name, might incorporate the language as an amendment to another bill.

St. Joseph and Lake counties are the only two in Indiana where [trial] judges are chosen through merit selection instead of being elected directly by voters. Under merit selection, a committee -- comprised of local lawyers, governor-appointed citizens and a state Supreme Court justice -- interviews and selects applicants for openings on the bench. [emphasis by ILB]

Once judges are appointed, they stand for a retention vote every six years. No judge has ever been removed in a retention vote since St. Joseph County adopted the system under a state law enacted in 1973. * * *

Fry said he introduced his bill to "send a message" to judges.

"Those folks are not accountable to anybody once they're appointed," he said. "I feel everybody should be elected. That way if they do something the public doesn't like, they can be discarded."

But local lawyers say they feel fortunate to have merit selection. The St. Joseph County Bar Association's board of governors recently unanimously passed a resolution "strongly opposing" the changes Fry seeks.

But the effort to change the selection of St. Joe judges was made again this year. On Feb. 26th the ILB posted this entry quoting a SB Tribune story that Rep. Dvorack would offer a second reading amendment to "set up non-partisan elections for judges who right now are appointed by the governor." The amendment (here is the text) failed, 45 ayes to 49 nays.

[More] The ILB has now found a story from the SB Tribune on the vote. Some quotes:

Dvorak's measure would have provided for nonpartisan elections among Superior Court judges in St. Joseph County. Currently, those judges are appointed by the governor. Residents can vote to retain Superior Court judges but do not choose judges for open seats.

"The issue, I don't think, is going to go away as one that's important to my constituents," Dvorak said.

Rep. Dvorak is the son of Prosecutor Michael Dvorak, a vocal proponent of electing Superior Court judges. But Ryan Dvorak said Tuesday he's been hearing complaints from constituents who feel judges are going easy on criminals.

The amendment was attached to Senate Bill 329, which deals with judges' pensions. And in a way, Ryan Dvorak's amendment might have been hurt by timing.

Republicans have been calling in recent days for stricter enforcement of House rules, including one that requires amendments to be related to bills.

Some Republicans, including Rep. Ralph Foley, R-Martinsville, objected to the amendment because they said it had no relation to judges' pensions, and allowing it to go forward would make House rules "elastic."

"At some point in time the elastic breaks, loses its snap and has no meaning. I think that this is that time," Foley said. "We must rein in and have some rule rather than a chamber without any rule."

The amendment had support from almost the entire St. Joseph County delegation, including Republican Reps. Jackie Walorski of Lakeville and Tim Neese of Elkhart, whose 48th District stretches into the northeast part of the county.

"In St. Joseph County, we have a problem with judges who are not accountable to anybody. Nobody," said Rep. Craig Fry, D-Mishawaka.

[Update at 9:10 AM] I'm told by a reader that although the SBT story reports "No judge has ever been removed in a retention vote since St. Joseph County adopted the system under a state law enacted in 1973," that has not been the case in Lake County, the other county following this system. According to the reader, at least two Lake County judges over the years have failed a retention vote by the voters.

Posted by Marcia Oddi on Thursday, February 28, 2008
Posted to Indiana Courts

Wednesday, February 27, 2008

Ind. Decisions - Two more Supreme Court opinions today

In Linda Keesling, Harold Lephart, et al v. Frederick Beegle, III, John Bucholtz, et al, an 11-page, 3-2 opinion, Justice Sullivan writes:

Both Congress and the Indiana General Assembly have passed statutes called “RICO Acts” to combat “racketeer influenced and corrupt organizations.” There is a conflict between opinions of the Court of Appeals as to whether liability under the Indiana RICO Act extends only to persons who direct racketeering activity (the rule under the Federal RICO Act) or extends below the managerial or supervisory level to a racketeering enterprise’s “foot soldiers” as well. Because the Indiana Act uses language significantly broader than that of the Federal Act, we conclude that it imposes RICO liability both on persons at and below a racketeering enterprise’s managerial or supervisory level. * * *

Conclusion We vacate the trial court’s grant of summary judgment in favor of defendants Baugher, Florida Underwriting, and Jones with respect to the plaintiffs’ Indiana RICO Act allegations. In all other respects, we summarily affirm the opinion of the Court of Appeals. We remand to the trial court for further proceedings in accordance with this opinion and that of the Court of Appeals.

Shepard, C.J., and Boehm, J., concur.
Dickson, J., dissents with separate opinion in which Rucker, J., concurs. [The dissent begins] The Court today construes Indiana’s RICO Act to impose liability beyond those who substantially participate in the enterprise, to persons below the managerial or supervisory level, based upon linguistic variation between the Federal RICO statute and the Indiana Act. I disagree, finding the modest language differences to be insignificant and inconclusive.

In In the Matter of Daniel Cueller, an attorney disciplinary matter, the Court issues a unanimous Per Curiam opinion that begins:
This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action," and on the post-hearing briefing by the parties. We find that Respondent, Daniel Cueller, engaged in attorney misconduct by failing to hold property of clients properly in trust, failing to maintain a ledger with separate records for each client with funds deposited in a trust account, and knowingly making false statements of material fact to the Disciplinary Commission in connection with this disciplinary matter.

Posted by Marcia Oddi on Wednesday, February 27, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 11 NFP)

For publication opinions today (1):

Ramifications of problems in the Clerk's Office continue. In Lake Cnty. Election Board & Registration, Myrna Maldonado, Richard Medina & Juda Parks v. Anthony Copeland, a 7-page opinion, Judge Vaidik writes:

Lake County Board of Elections and Registration (“Election Board”) and Myrna Maldonado, Richard Medina, and Juda Parks (“Challengers”) (collectively “Appellants”) appeal the trial court’s order requiring the Election Board to place Anthony Copeland’s name on the ballot for the November 6, 2007, General Election for an At-Large seat on the City of East Chicago Common Council as an Independent. Although this case had an expedited briefing schedule so that the issues could be resolved before the November 2007 General Election, for reasons not entirely clear the case was not transmitted to this Court until January 2008, well after the election. Because Copeland lost and Challengers won in that election, the issues are now moot. We therefore dismiss this appeal. * * *

According to the briefing schedule, Copeland’s brief was due approximately two weeks before the November 6, 2007, General Election. * * *

What happened from this point on is not entirely clear. What we do know is that Appellants’ briefs are filestamped October 24, 2007, while Copeland’s briefs were not initially filestamped at all.[3] The Clerk of the Courts Online Docket shows that both sets of briefs were submitted either before or on their respective due dates. However, due to some alleged defects, the briefs were either filestamped after their due date (in the case of Appellants) or were not initially filestamped at all (in the case of Copeland). In any event, despite the extremely expedited nature of this appeal, this case lingered for unknown reasons in the Clerk’s Office until January 2008—well after the November 2007 General Election—at which point it was finally transmitted to this Court. * * *
___________
[3] When this matter was recently brought to the attention of the Clerk’s Office, Copeland’s briefs were back-filestamped October 24, 2007.

Some readers may recall the COA decision from Oct. 16, 2007, which contained this footnote:
[1] This case was eligible for transmission to the Indiana Court of Appeals on December 15, 2006. By oversight, it was not transmitted from the Clerk’s Office to this court until September 21, 2007.
These incidents bring to mind the Jan. 23, 2008 ILB entry quoting Chief Judge Baker, that concluded: "The good news, says Judge Baker, is that according to Clerk Smith, everything should be caught up by mid-February." Also this note the ILB received from an appellate practitioner the same day.

NFP civil opinions today (3):

Richard Alan Starr v. Crystal F. Peters (NFP) - "Richard A. Starr (“Starr”) appeals a negative judgment upon his small claims complaint against Crystal F. Peters (“Peters”). We dismiss. We raise a single, dispositive issue sua sponte: whether Starr followed the appellate rules."

Dale Englehardt v. Lana Clark (NFP) - Small claims court decision affirmed.

In Hawk Development Corp. v. Craig Van Prooyen and White Hawk Country Club Home Owners Assn., Inc. (NFP), a 29-page opinion, Judge Sharpnack writes:

Hawk Development Corp. (“Hawk”) appeals the trial court’s grant of a motion by White Hawk Country Club Home Owners Association Inc. (“HOA”) and Craig Van Prooyen for a preliminary injunction against Hawk. Hawk raises five issues, which we revise and restate as: I. Whether the HOA and Van Prooyen have standing; II. Whether the trial court’s grant of a preliminary injunction was clearly erroneous; and III. Whether the trial court abused its discretion by granting the preliminary injunction without requiring the HOA and Van Prooyen to post a security bond pursuant to Ind. Trial Rule 65(C). We affirm.
NFP criminal opinions today (8):

Matter of J.R. v. State of Indiana (NFP)

Dennis C. Fox, II v. State of Indiana (NFP)

James R. Stephens v. State of Indiana (NFP)

Juanelo Martinez-Garcia v. State of Indiana (NFP)

Thomas Aguilar v. State of Indiana (NFP)

Rodney Williamson v. State of Indiana (NFP)

Robert S. Pickett v. State of Indiana (NFP)

Louis Richard Harris, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, February 27, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Henley v. State of Indiana, a 19-page, 5-0 opinion, Justice Rucker writes:

When a trial court summarily denies a pro se defendant’s request that standby counsel deliver closing argument, the denial is not per se reversible error. Rather, the inquiry is whether the trial court abused its discretion in denying the request for counsel. * * *

The post-conviction court concluded that appellate counsel did not render ineffective assistance concerning Henley’s claim of insufficient evidence to support the attempted murder conviction. We disagree and reverse the post-conviction court on this issue. This cause is remanded with instructions to vacate Henley’s conviction for attempted murder and the sentence imposed thereon. In all other respects the judgment of the post-conviction court is affirmed.

Posted by Marcia Oddi on Wednesday, February 27, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on: Court of Appeals rules on closing of Fort Wayne Disabilities Center; finds associational standing [Updated]

The ILB has received notice that the Supreme Court acted yesterday on the July 16, 2007 Court of Appeals decision in Anita Stuller, et al v. Mitchell Daniels, Jr., et al . The brief notation reads: "Transfer grant and dismissed by order."

Unfortunately I can't give you more right now because the Clerk's Docket's latest entry currently is dated 12/05/07 - i.e. the Order has not been posted. Here are the identifiers: Case Number: 02 A 05 - 0601 - CV - 00022; STULLER, ANITA ET AL. -V- DANIELS, MITCHELL E. JR. ET AL.; Interlocutory.

Update: The Order is now available, but contains little additional information:

Four justices have voted to grant transfer and dismiss this appeal as moot.

Accordingly, the Court grants transfer, thus vacating the Court of Appeals opinion ..... Having accepted jurisdiction, the Court now dismisses this appeal as moot.

All justices concur except Boehm, J., who votes to deny transfer.

The ILB has posted a number of entries on this case, access the list here.

Posted by Marcia Oddi on Wednesday, February 27, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Yet more on "Marion Superior Court judges plan to start cracking down on prospective jurors who don't show up on the days they're assigned"

Updating several ILB entries from the beginning of this year on the low turnout of prospective jurors in Marion County, Jon Murray of the Indianapolis Star reports on the subject again today. The story was partially prompted by the fact that Gov. Daniels was called for jury duty yesterday.

Posted by Marcia Oddi on Wednesday, February 27, 2008
Posted to Indiana Courts

Ind. Decisions - More on: A convicted sex offender in White County is challenging new state law

On Aug. 4, 2007, Sophia Voravong of the Lafayette Journal Courier reported:

MONTICELLO -- A convicted sex offender in White County is challenging a new state law that is forcing him to move from the home he chose so his children could be near their school.
Today she reports:
MONTICELLO - A man identified only as John Doe in court documents has not even gotten a parking ticket since his release from prison 19 years ago for child molesting, according to his attorney.

But a judge this month denied the man's petition to no longer be considered a threat to children and to be taken off Indiana's Sex and Violent Offender Registry. * * *

John Doe was forced to move last summer under a new Indiana law that prohibits sex offenders convicted of crimes against children from living within 1,000 feet of a school, youth program center or public park.

Doe, who had lived in his home for 15 years, was the only offender in violation in White County.

He filed a request last summer to have a judge determine whether he is still considered an offender against children. This was done under a law that took effect July 1, 2007, which exempts certain offenders provided that it was been 10 years since their release from prison.

Also at issue was whether Doe was being punished again, years after his release from prison.

But in a two-page order issued Feb. 20, Judge Robert Thacker of White Circuit Court ruled that the safety of the community's children trumps John Doe's objections.

"Where individuals in a group, such as convicted sex offenders, have distinguishing characteristics relevant to the concern of the state of Indiana's protection of children," Thacker wrote, "the state has the authority to implement laws reasonably related to the protection of children."

John Doe was convicted of Class B felony child molestation in 1982 in Howard County. He served seven years in prison. * * *

Two Tippecanoe County judges also ruled last week against sex offenders who filed civil complaints challenging the residency law. Another case is still being considered by Tippecanoe Superior Court 2 Judge Thomas Busch.

For more on the two rulings last week, see this ILB entry from Feb. 20th and this one from Feb. 22nd.

Posted by Marcia Oddi on Wednesday, February 27, 2008
Posted to Ind. Trial Ct. Decisions

Tuesday, February 26, 2008

Law - Metadata, can you get it, can you use it?

Marcia Coyle of The National Law Journal reported an interesting story on metadata last week. Some quotes from the long survey article:

All of the state bars to address the metadata issue agree that a sending lawyer has a duty to protect confidential or privileged information from being disclosed, but they split on the duty of a receiving attorney.

The New York State Bar Association in 2001 determined that lawyers may not "intentional[ly] use ... computer technology to surreptitiously obtain privileged or other confidential information" of an opposing party.

Florida, Alabama and most recently Arizona have joined New York in holding that the recipient lawyer has a duty not to "mine" the document for metadata or otherwise engage in conduct that amounts to an unjustified intrusion into the client-lawyer relationship that exists between the opposing party and his or her counsel.

Florida states that a lawyer who inadvertently receives information via metadata in an electronic document should notify the sender of the information's receipt.

The District of Columbia holds that a receiving lawyer is prohibited from reviewing metadata sent by an adversary only when he or she has actual knowledge that the metadata was sent inadvertently. If the recipient lawyer has actual knowledge, he or she may not review the metadata without first consulting with the sending lawyer.

Maryland and the American Bar Association have concluded that their ethical rules do not prohibit the mining of metadata. * * *

At the federal level, the metadata situation is not much clearer, although the new rules on electronic discovery have raised the profile of metadata, noted Mighell.

"They allow the requesting party to ask for documents in a format of their choice," he said.

"I don't know if you can ask for metadata, but my recommendation would be to ask for a document in its native file, with metadata intact. Then the lawyers have to go and squabble over whether they really do want the metadata."

This ILB entry from Feb. 12, 2007 links to a Res Gestae article by Donald R. Lundberg, titled "Mining for Metadata: Ethics Questions Surrounding Inadvertently Sent Embedded Data."

The ILB entry also mentions "a state agency using the possibility of the existence of metadata as a reason to resist providing digital copies of public documents." Subsequently, the ILB requested and received a public access counselor opinion on this issue.

Posted by Marcia Oddi on Tuesday, February 26, 2008
Posted to General Law Related

Law - WSJ Law Blog interviews Sampson's lawyer

Dan Slater of the WSJ Law Blog has posted an entry this afternoon titled "A Q&A With Mike Glazer: The NCAA Defender to the Stars."

Meanwhile, the Jacksonville Florida Times-Union scored an exclusive interview with former IU President Adam Herbert.

Posted by Marcia Oddi on Tuesday, February 26, 2008
Posted to General Law Related

Ind. Courts - "Magistrate Najjar withdraws from Hamilton Circuit Court race"

From the Noblesville Daily Times:

Noblesville Magistrate David Najjar has withdrawn his name from the Republican ballot for Hamilton County Circuit Court Judge.

The Circuit Court position became a contested race after current Circuit Court Judge Judith Proffitt announced she would not seek re-election. * * *

Najjar’s departure leaves two candidates for the position, Republicans Hamilton County Prosecutor Sonia Leerkamp and Carmel City Court Judge Paul Felix.

Posted by Marcia Oddi on Tuesday, February 26, 2008
Posted to Indiana Courts

Courts - "Supreme Court Considers Protecting Drug Makers From Lawsuits"

Updating this ILB entry from Feb. 21st, referencing the SCOTUS decision in Riegel v. Medtronic, Gardiner Harris of the NY Times reports today:

WASHINGTON — Less than a week after issuing a sweeping ruling that bars most lawsuits against medical device makers, the Supreme Court heard arguments Monday in the first of two cases that could determine whether drug makers receive similar protection.
For more, see this ILB entry from Sept. 27, 2007, headed "Supreme Court to Address Pharmaceutical Companies' Protection From State Suits," on the case, Warner-Lambert v. Kent.

Posted by Marcia Oddi on Tuesday, February 26, 2008
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 5 today (and 16 NFP)

For publication opinions today (5):

In John L. Richardson v. Susan E. Hansrote , an 18-page opinion, Judge Najam writes:

John L. Richardson (“Father”) appeals the trial court’s order denying his post-dissolution motion for rule to show cause why Susan E. Hansrote (“Mother”) should not be held in contempt. Father asserts three issues on appeal, which we restate as: 1. Whether the trial court erred when it determined that Father has a child support arrearage. 2. Whether errors by the clerk of the court, who mistakenly applied two of Father’s child support payments to the wrong account, are attributable to Father. 3. Whether the trial court erred when it determined that a child support obligation paid by an income withholding order is not paid until it is received in the clerk’s office where Mother had agreed to an income withholding order. We reverse and remand with instructions.
In Midwest Minerals v. Board of Zoning Appeals of the Area Plan Dept./Commission of Vigo County , an 11-page opinion, Judge Bradford concludes:
Given the special discretion afforded to zoning boards in such determination, we conclude that the BZA was within its discretion to deny Midwest’s application for a special permit based upon its finding that Midwest failed to meet its burden of proving that the proposed use would not be injurious to the public health, safety, or general welfare of the community. Furthermore, we conclude that the trial court did not err by affirming the BZA’s denial of Midwest’s request for a special exception on this ground. Because we affirm the trial court’s order on this ground, we conclude that it is unnecessary to consider whether Midwest presented substantial evidence to prove that the proposed use would not adversely affect the use or value of the other property in the immediate area in a substantially adverse manner or that the proposed use would be consistent with the general character of the zoning district and the Vigo County Comprehensive Plan. The judgment of the trial court is affirmed.
In Roderick Lee v. State of Indiana , a 17-page opinion (including a concurring opinion), Judge Robb writes:
Roderick Lee appeals the denial of his petition for post-conviction relief. On appeal, Lee raises two issues, which we restate as whether the post-conviction court properly denied Lee relief on his claims of ineffective assistance of trial and appellate counsel. We affirm, concluding the post-conviction court properly denied Lee relief with respect to both of his claims. * * *

Because cases decided after Lee was sentenced did not substantially alter Indiana’s double jeopardy jurisprudence, we conclude Lee has failed to establish that appellate counsel was deficient for the same reasons we concluded Lee failed to establish that trial counsel was deficient. See supra, Part Part II.A.; see also Burnside, 858 N.E.2d at 238 (stating that the same standard of review applies to claims of ineffective assistance of trial counsel and claims of ineffective assistance of appellate counsel). Thus, it follows Lee did not receive ineffective assistance of counsel based on counsel’s failure to raise the double jeopardy issue of direct appeal.

In Cricket Ridge, LLC v. Joseph Richard Wright, a 13-page opinion, Judge Bradford concludes:
We conclude that the comprehensive settlement between Cricket Ridge and Wright constituted a single contract, such that Cricket Ridge’s breach of one subpart relieved Wright of his duty to perform the others. It follows, then, that Cricket Ridge’s counterclaim that Wright is required to allow it to exercise an option on parcel F must fail. Moreover, we conclude that the trial court properly assessed interest on money Cricket Ridge deposited with the Johnson County Clerk, as it did not represent a proper tender to Wright. Finally, we conclude that the trial court erred in calculating damages based on a sale price of $89,962 for parcel D. We remand with instructions to recalculate Wright’s damages based on a sale price of $78,354 for parcel D. In all other respects, the judgment of the trial court is affirmed.
In Rainbow Community Inc. v. Town of Burns Harbor , an 18-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the trial court erred in ordering Rainbow to perform a CCTV test on its permanent sewer line without first hearing all of Rainbow’s evidence in opposition and that this issue is not moot. We therefore reverse.
NFP civil opinions today (4):

John and Dorothy Beaty v. Joe R. Walters, Cheryl J. Walters, Brad McElheny, et al (NFP) - "The trial court properly did not assess any damages to the defaulted Russell. A damage award is not clearly supported by the evidence because contradicting witness testimony and unclear repair work existed. The trial court’s judgment denying any relief to the Beatys for the claims against McElheny and the Walters is sound and can be supported by valid legal theories. We affirm."

Invol. Term. of Parent-Child Rel. of A.S., H.S., and T.S.; and Kelly and Andrew Stacy (NFP) - "The DCS established by clear and convincing evidence the requisite elements to support the termination of Andrew’s and Kelly’s parental rights to the Children."

State of Indiana v. Renda Hall (NFP) - "Moreover, the purpose of an investigatory stop is not to establish reasonable suspicion, but to briefly detain a person when reasonable suspicion already exists. Here, by his own testimony, Trooper Burgess detained Hall in an effort to establish reasonable suspicion. This detention violated Hall’s Fourth Amendment rights. The State has not established that the trial court’s ruling was contrary to law. The trial court properly granted Hall’s motion to suppress."

Scottrade, Inc. v. Greg Rentschler (NFP) - "Greg Rentschler filed a claim against Scottrade, Inc., alleging he suffered a financial loss because of errors by Scottrade in handling his brokerage account. Scottrade appeals from the trial court’s entry of default judgment against it, raising the issue of whether the trial court erred in denying its motion to set aside the default judgment. Concluding that Scottrade demonstrated excusable neglect and made a prima facie showing of a meritorious defense, we reverse."

NFP criminal opinions today (12):

Charles Walker v. State of Indiana (NFP)

Delno Dalton v. State of Indiana (NFP)

Timothy L. Potter v. State of Indiana (NFP)

A.W. v. State of Indiana (NFP)

Walter Duggins v. State of Indiana (NFP)

Al Crittenden v. State of Indiana (NFP)

Susan R. Morris v. State of Indiana (NFP)

Jeffrey A. Arthur v. State of Indiana (NFP)

Marijane Stuck v. State of Indiana (NFP)

Charles Terrell v. State of Indiana (NFP)

Isaias Cadena v. State of Indiana (NFP)

James Maxwell Cart v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, February 26, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "St. Joseph County judges would be elected under amendment"

So reads the headline to a story posted late this morning by Ed Roncop of the South Bend Tribune. Some quotes:

Superior Court judges in St. Joseph County would be elected under an amendment to a judges’ pension bill expected to be offered later today by Rep. Ryan Dvorak, D-South Bend.

The amendment to Senate Bill 329 would set up non-partisan elections for judges who right now are appointed by the governor. Voters currently decide whether to retain the county’s eight Superior Court judges, but don’t have a say in choosing judges for open seats.

St. Joseph County Prosecutor Mike Dvorak, the father of Rep. Ryan Dvorak, is a proponent of electing Superior Court judges, but Ryan Dvorak said he has heard about the issue from constituents.

Posted by Marcia Oddi on Tuesday, February 26, 2008
Posted to Indiana Courts

Ind. Courts - Unslated candidates withdraw from Marion County judges race [Updated]

Jon Murray reported at mid-morning that:

Republican incumbent judges Kenneth H. Johnson and Gary L. Miller, who had filed for candidacy last week, were not on the Indiana secretary of state's revised list Monday. Both had been overlooked at the party's slating convention in favor of newcomers and had intended to challenge the slate in the primary.

On the Democratic side, attorney Angela Davis withdrew her name, according to the revised candidate list. That leaves Kimberly J. Brown as the sole challenger to the Democratic slate.

Another Democrat, attorney Barbara A. Wyly, was mistakenly listed initially by the secretary of state's office among Marion Superior Court candidates. Her candidacy was moved to Dearborn County Superior Court on Monday.

Each party has been allotted eight Marion Superior Court judgeships in this year's election, with the outcome likely determined by the primary because of changes in state law designed to maintain party parity on the court.

See also these ILB entries from Feb. 21st and Feb. 17th.

Gary Welsh of Advance Indiana had a long post on the Republican withdrawals and the Marion County slating system earlier today.

[Updated 2/27/08] A brief story today in the Star reports:

Republican voters in Marion County's May primary won't need to choose among Superior Court judges after the withdrawal of two incumbents.

Judges Kenneth H. Johnson and Gary L. Miller had filed for candidacy last week despite losing the county party's endorsement. But both were no longer on the Indiana secretary of state's revised candidate list Monday, the deadline to withdraw.

"Under the circumstances, my family and I simply do not want to spend the next 10 weeks on an intense political campaign to the exclusion of all else," Miller said.

That leaves eight Republicans on the ballot for the eight judgeships allotted to the party.

Democrats also have eight judgeships at stake, with nine candidates remaining. A 10th, attorney Angela Davis, has withdrawn her name.

Kimberly J. Brown, now the Washington Township Small Claims Court judge, is the sole challenger to the slate endorsed by county Democrats.

The outcome of the Marion Superior Court judicial race will be determined by the primary, unless third-party candidates file to run in the general election. A separate race for Marion Circuit Court judge will be decided by voters in November.

Posted by Marcia Oddi on Tuesday, February 26, 2008
Posted to Indiana Courts

Monday, February 25, 2008

Ind. Gov't. - Text of Sampson / IU "separation agreement" available

The Indianapolis Star has posted a copy of the 11-page Sampson / IU "separation agreement" - access it here. and here is the Star's accompanying story, written by Mark Alesia.

Posted by Marcia Oddi on Monday, February 25, 2008
Posted to Indiana Government

Ind. Courts - "LaPorte Judge Wants To Start Re-entry Court"

Laurie Wink reports today in the Michigan City News-Dispatch via a story that begins:

A chance encounter with a woman gave Superior Court 1 Judge Kathleen Lang the impetus to pursue a new approach to criminal justice in La Porte County.

Lang wants to establish a re-entry court for repeat offenders. The re-entry court would take a more personalized, problem-solving approach to help offenders integrate back into the community after serving a sentence.

More than two-thirds of inmates who return to their communities are arrested again within three years, according to Lang.

"Repeat offenders increase the rate of crime in our community, become a burden on the taxpayer and make it even more difficult for the offender to become a productive member of society," Lang said.

Lang met the woman, a repeat offender with drug-related convictions, at a 5th Ward neighborhood party. The woman had been recently released from the Indiana Department of Correction when Lang met her. She was carrying bags of pillows she made to sell for extra money. The woman had just started a job but couldn't afford a NIPSCO deposit to establish service to her apartment.

Lang said she realized the woman was doing the best she could to re-establish her life but faced tremendous obstacles. The judge talked to the ex-offender's probation officer, who was able to get her assistance for the utility deposit. That story personalized the re-entry issue for Lang.

"When you have multiple convictions, it's difficult to get a job," Lang said. "Without help, re-entering offenders fall back into the old behaviors that landed them in prison." * * *

A re-entry court monitors returning ex-offenders and sets up a support system tailored to each person's needs. They regularly appear before the judge to review their problems and progress.

Lang sees a philosophical shifting away from the view that courts exist to process offenders through the system, toward one that sees courts as vehicles for social change. She recently attended a White House summit on prisoner re-entry and met with the Indiana Judicial Center's problem-solving courts team.

"Courts are experimenting with a variety of innovative programs," Lang said.

She sees Michigan City's strong faith-based community as key to a re-entry program and has met with several leaders who want to be involved in a re-entry court. * * *

Lang says Indiana is in the forefront of establishing problem-solving courts, with five already set up. She wants to get one off the ground in La Porte County as soon as possible.

"It could reduce the amount of future criminal activity," Lang said.

Posted by Marcia Oddi on Monday, February 25, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Kevin Book v. State of Indiana , a 23-page opinion, Chief Judge Baker writes:

In this case, we explore the delicate balance between a trial judge’s authority to efficiently control the court proceedings and a defendant’s right to confer with counsel before deciding whether and when to testify at trial. Appellant-defendant Kevin Book appeals his conviction for Murder, a felony. Specifically, Book argues that the trial court violated his Fifth and Sixth Amendment rights under the United States Constitution when he was allegedly compelled to make a decision whether to testify at a particular time during the trial. In essence, Book claims that the trial court improperly foreclosed his counsel from determining when—or if—he should testify on his own behalf.

Book also claims that the trial court abused its discretion and violated Indiana Evidence Rule 404(b) in permitting a ten-year-old witness to testify against him, that the evidence is insufficient to support the conviction, and that the sixty-year sentence is inappropriate. We conclude that the trial court did not unfairly impinge on Book’s right to counsel or improperly preclude him from testifying. And finding no other error, we affirm the judgment of the trial court.

In Stan Klotz v. Hoyt and Kornmann , a 14-page opinion, Chief Judge Baker wrties:
Tenant-landlord disputes are all too common. Here, two tenants undisputedly stopped paying rent after the first one and one-half months of their lease, did a substantial amount of damage to the inside of the residence, and abandoned the residence without informing the landlord or leaving their respective forwarding addresses. The tenants are contractually obligated, by virtue of their valid and binding lease, to repay the back due rent and late fees notwithstanding the landlord’s compliance with statutory requirements governing the handling of security deposits. And, in any event, we find that the landlord herein did comply with all relevant statutes.

Appellant-plaintiff Stan Klotz appeals the trial court’s dismissal of his complaint for breach of lease against appellees-defendants Sarah Hoyt and Chrissy Kornmann. Klotz contends that the trial court erroneously concluded that he was not entitled to rent and damages because he allegedly failed to provide an itemized list of damages to Hoyt and Kornmann within the forty-five-day statutory timeframe. Finding that Klotz was not required to comply with the forty-five-day timeframe to be entitled to back due rent payments and that, for the purpose of damages and the security deposit, he did comply with the relevant statutes, we reverse the judgment of the trial court and remand with instructions to enter judgment in Klotz’s favor in the amount of $6,000. * * *

FRIEDLANDER, J., concurs.
ROBB, J., concurs in result with opinion. [that begins] I concur in the result reached by the majority because I agree that the lease agreement was terminated on February 20, 2007, and that Klotz provided an itemized list of damages within forty-five days of this termination. However, I am concerned that allowing a landlord to provide this notice on the day of a hearing contravenes the purpose of the notice requirement, which is “to inform the tenant that the landlord is keeping the security and for what reason, as well as to allow that tenant an opportunity to challenge the costs for which the deposit is being used.”

NFP civil opinions today (1):

Martha Sue Miller v. Eric Williams (NFP) - "The land at issue here was farmland. Miller farmed the land. Whether this use of the land was sufficient to establish the element of control was a question of fact for a fact finder and is not appropriate for summary judgment.

"Williams has not established as a matter of law that Miller cannot prove the elements of adverse possession. The factual questions associated with this case preclude the grant of summary judgment."

NFP criminal opinions today (5):

Mark A. Chandler v. State of Indiana (NFP)

Betty Ann Taylor v. State of Indiana (NFP)

Santiago Valdez v. State of Indiana (NFP)

Willie Dumes v. State of Indiana (NFP)

Christopher Swartz v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, February 25, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Wednesday, Feb. 27th:

9:00 AM - Ronald Mayes v. Second Injury Fund - The Worker's Compensation Board denied Mayes disability benefits from the Second Injury Fund after concluding that Mayes's settlement of his claim against third-party tortfeasors precluded such benefits. The Court of Appeals affirmed. Mayes v. Second Injury Fund, 873 N.E.2d 136 (Ind. Ct. App. Sept. 11, 2007). [See ILB summary here, 2nd case.] Mayes has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorney for Mayes; Randall Klezmerof Indianapolis, IN. Attorneys for Second Injury Fund; Steve Carter and Frances Barrow both of Indianapolis, IN.

9:45 AM - Technisand, Inc. v. Melton - After Patty Melton died of leukemia, her husband, as personal representative of her estate, filed a complaint against Technisand, among others, alleging that exposure to chemicals manufactured and sold by Technisand caused or contributed to Patty's death. Technisand raised a statute of limitations defense and moved for summary judgment. The trial court denied the motion and the Court of Appeals affirmed, holding that although the statute of limitations had run with respect to a wrongful death claim against Technisand, the claim was timely filed against Technisand with respect to the Products Liability Act. Technisand, Inc. v. Melton, No. 30A01-0608-CV-334. (Ind. Ct. App. July 11, 2007) (mem. not for publ.), not for publication, vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney Technisand, Inc.; Raymond Faustof Indianapolis, IN. Attorney for Melton; Michael Sobierayof Carmel, IN.

10:30 AM - Darrel Maymon v. State - After being convicted of four counts of burglary in a single trial, Maymon petitioned for post-conviction relief asserting that trial counsel had rendered ineffective assistance by not seeking severance of the charges. The Madison Superior Court denied relief, but the Court of Appeals reversed in Mayman v. State, 875 N.E.2d 375 (Ind. Ct. App. July 24, 2007), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Maymon; James Acklin of Indianapolis, IN. Atttorney for the State; Cynthia Ploughe of Indianapolis, IN.

This Thursday, Feb. 28th:

9:00 AM - Norman Carlson v. John Sweeney - The LaPorte Circuit Court granted defendants, a law firm, summary judgment on a legal malpractice claim filed by beneficiaries of a trust that, according to the beneficiaries, was negligently drafted and subjected trust property to federal estate tax. The Court of Appeals reversed. Carlson v. Sweeney, Dabagia, Donoghue, Thorne, Janes & Pagos, 868 N.E.2d 4 (Ind. Ct. App. June 7, 2007), vacated. [See ILB summaries here and here.] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorneys for Carlson, et al.: Scott A. Weathers, Indianapolis, IN. Attorneys for Sweeney, Dabagia, Donoghue, Thorne, Janes & Pagos: Robert G. Devetski, South Bend, IN.

Webcasts will be available here.


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

None scheduled.

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

This Tuesday, Feb. 2th

3:00 PM - H. D., et al, vs. BHC Meadows Hospital, Inc., et al - Whether the trial court correctly dismissed the state court action without prejudice for lack of subject matter jurisdiction, finding the claims to be grounded in medical malpractice and covered by the medical malpractice act. The Scheduled Panel Members are: Judges Riley, Kirsch and May. [Where: Wabash College, Crawfordsville, Indiana]
_________
Note: The ILB has noted some discrepancies in this week's and last week's Court of Appeals calendars. The ILB accesses and reports on the upcoming week's calendar as it has been posted by the COA early Monday morning of each week.

Posted by Marcia Oddi on Monday, February 25, 2008
Posted to Upcoming Oral Arguments

Ind. Decisions - More on: Indiana wine shipping case to be argued today before the 7th Circuit

The oral arguments in Baude v. Heath, the wine shipping case., were held Friday, Feb. 22, before a three judge panel. Two of the judges were Easterbrook and Posner.

Listen to the oral arguments here, but not if you are faint of heart. They are pretty eye-opening in-so-far as what it can be like to appear before a panel that includes Easterbrook and Posner.

Posted by Marcia Oddi on Monday, February 25, 2008
Posted to Ind. (7th Cir.) Decisions

Sunday, February 24, 2008

Courts - Justice Dept. no-bid contracts with John Ashcroft and the Indiana twist

This NYT story from Jan. 10, 2008, reported by Philip Shenon, first brought the Zimmer settlement connection to my attention:

WASHINGTON — When the top federal prosecutor in New Jersey needed to find an outside lawyer to monitor a large corporation willing to settle criminal charges out of court last fall, he turned to former Attorney General John Ashcroft, his onetime boss. With no public notice and no bidding, the company awarded Mr. Ashcroft an 18-month contract worth $28 million to $52 million.

That contract, which Justice Department officials in Washington learned about only several weeks ago, has prompted an internal inquiry into the department’s procedures for selecting outside monitors to police settlements with large companies.

The contract between Mr. Ashcroft’s consulting firm, the Ashcroft Group, and Zimmer Holdings, a medical supply company in Indiana, has also drawn the attention of Congressional investigators.

A Times story Friday, Feb. 23rd reported:
The House Judiciary Committee disclosed Friday that it was considering subpoenaing former Attorney General John Ashcroft to testify about a contract worth at least $28 million that was steered to his consulting firm by the Justice Department. * * *

Democratic lawmakers are investigating the circumstances of the no-bid, 18-month monitoring contract, worth $28 million to $52 million, that was awarded to Mr. Ashcroft’s consulting firm to oversee a settlement between the Justice Department and Zimmer Holdings, a large medical supply company in Indiana. The settlement resolved criminal charges that had been brought by the United States attorney in New Jersey, Christopher J. Christie.

Today Stephanie Salter of the Terre Haute Tribune Star has a column titled "What’s John Ashcroft doing in Indiana? Making millions." The long column begins:
TERRE HAUTE — Until the past year, an august northern Indiana company, Zimmer Holdings, was pretty much going about business as usual: manufacturing a broad array of medical devices, such as hip and knee replacement implants, expanding operations in the United States and 25 nations, and racking up annual sales of nearly $4 billion.

Then Zimmer, with headquarters in Warsaw, got into some hot water with the federal government.

After a two-year investigation of the orthopedic implant industry, a criminal complaint was filed in U.S. District Court in New Jersey, where Zimmer does business. The complaint charged Zimmer and four other companies (two more from Warsaw) with “conspiracy to commit violations of the federal anti-kickback statute.”

Specifically, the feds said the companies provided what a U.S. attorney called “exorbitant” fees to doctors and other health-care consultants to exclusively choose, use or endorse their products for their patients.

Posted by Marcia Oddi on Sunday, February 24, 2008
Posted to Courts in general

Ind. Law - Last Week in Review at the Indiana General Assembly

The Evansville Courier & Press' Bryan Corbin's review this Sunday of the past week in the General Assembly is headlined "Illegal immigration on Senate agenda." Today's story, detailing legislative maneuvering , begins:

INDIANAPOLIS - A debate over illegal immigration that sparked a partisan meltdown in the Indiana House will likely produce more fireworks this week when state lawmakers return Monday.

The three-strikes immigration bill and competing versions of Gov. Mitch Daniels' property-tax relief plan are provoking a lot of attention at the Indiana General Assembly. The House faces a deadline this week to pass Senate bills and vice versa, meaning long late nights are ahead for lawmakers.

Posted by Marcia Oddi on Sunday, February 24, 2008
Posted to Indiana Law

Ind. Courts - Reports on bills of interest to the Judiciary that were discussed last week

Last Friday, Feb. 22nd, the Indiana Judicial Center posted the eighth installment of its very useful reports for 2008 on bills of interest to the judiciary. Access them here. Friday's report begins:

The committee hearing process has now ended for this session. As a reminder, the last day for third readings in the House is Wednesday, February 27th, and Thursday, February 28th in the Senate.

Posted by Marcia Oddi on Sunday, February 24, 2008
Posted to Indiana Courts

Ind. Courts - "Three hopefuls eyeing Vanderburgh judgeship"

From today's Evansville C&P, a story that begins:

Voters will have three choices when they select the next Vanderburgh Superior Court Judge.

This week, Vanderburgh County Deputy Prosecutor Michael Perry became the third candidate to file in the race for retiring Vanderburgh Superior Court Judge Scott R. Bowers' seat.

Perry, 45, is vying against Vanderburgh Circuit Court Magistrate David Kiely and Superior Court Magistrate Jill R. Marcrum for the post.

Posted by Marcia Oddi on Sunday, February 24, 2008
Posted to Indiana Courts

Saturday, February 23, 2008

Ind. Gov't. - Still no reliable and permanent online record of Governors' actions on legislation available

The 2008 Bill Watch page of Governor Daniels is currently available here. Accessing it, you can follow the bills received by the Governor's Office from the 2008 General Assembly, and the Governor's actions thereon.

The 2007 page is also available.

There is no similar information available for Governor Daniels' first two years in office. And online information that previously was available from Gov. Kernan's and O'Bannon's administrations apparently has not been preserved.

The ILB has posted a number of entries on this important issue, the most recent being this one from May 5, 2007 that concluded: A Suggestion. How about some concerted state effort at preserving this history in a consistent manner and making it readily accessible?

Posted by Marcia Oddi on Saturday, February 23, 2008
Posted to Indiana Government

Ind. Decisions - "Ruling goes against St. Joseph juvenile court"

The Feb. 19th COA opinion in the case of KLN v. State of Indiana (see ILB summary here, 4th case) is the subject of a long report today by Pablo Ros of the South Bend Tribune. Some quotes:

SOUTH BEND -- A St. Joseph County court should not have held a teen in contempt of court for violating the rules of the Juvenile Justice Center or lengthened his term of confinement at the facility, an Indiana court of appeals ruled this week.

The juvenile court added 77 days of confinement to a juvenile's detention at the JJC after holding him in indirect civil contempt of court for violating the rules of the facility. The court told the juvenile that if he changed his behavior, he wouldn't have to serve the additional term, but the court of appeals found that the juvenile court had overstepped its authority and imposed a form of punishment that was too harsh.

The juvenile was serving a sentence of 120 days for burglary, the maximum term allowed under Indiana law for that offense. Magistrate Harold E. Brueseke held the juvenile in indirect civil contempt of court after the juvenile violated the rules of the JJC nine times. Brueseke also added 77 days (the length of time the juvenile had yet to serve) to the juvenile's term of detention, telling him that if he behaved appropriately he wouldn't have to serve it.

But in a decision that could set precedent in Indiana for being the first of its kind, the court of appeals, differentiating between remedial and punitive sanctions, said that the juvenile court did not have the legal authority to act punitively in a civil offense, and that nowhere in Indiana law "has the legislature vested the juvenile court with authority to ... 'micro-manage' the detention of a juvenile delinquent." The court of appeals judges added that "this course of action is neither a prudent use of scarce judicial resources nor a fair way to treat juveniles."

The juvenile already had been punished by JJC officials by being placed on room restriction and losing privileges such as phone calls or visits. He was not criminally charged for his misconduct.

Brueseke and Judge Peter J. Nemeth of St. Joseph County Probate Court voiced concern this week after the court of appeal's decision.

"How are we going to be able to really enforce some of the rules and behavior of children?" Brueseke said. "I believe there is a need for the court to be able to hold children accountable for their conduct, whether in school or at home or at the Juvenile Justice Center."

Posted by Marcia Oddi on Saturday, February 23, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on Delaware County judicial races

Updating two earlier entries about the Delaware County judicial races (2/20/08 and 2/12/08), here is a story in today's Muncie Star-Press, reported by Rick Yencer, headlined "No shortage of candidates for Delaware County judge." The lengthy story begins:

MUNCIE -- The retirement of one judge and another's acknowledgment that he is under criminal investigation has contributed to the largest assemblage of Delaware County judicial candidates in recent decades, if not ever.

Eleven candidates -- two incumbent judges, a city court judge, four deputy prosecutors and four other local attorneys -- are seeking election to the benches of Delaware Circuit courts 3, 4 or 5.

Four of those candidates entered their races in the final 24 hours of the filing period, which ended at noon Friday.

Posted by Marcia Oddi on Saturday, February 23, 2008
Posted to Indiana Courts

Ind. Courts - Focus on party slates for Marion County judicial primary

Updating this ILB entry for Feb. 17, Jon Murray of the Indianapolis Star today reports under the headline "Judicial primary is all-important: Changes to state law mean all who make it to general election will likely end up on bench." A side-bar to the story presents this information on candidates for judgeships:

The Marion County Republican and Democratic parties on Feb. 16 each picked a slate of eight candidates for the Superior Court and one to run for Circuit Court judge, which will be decided in the fall election.

There are 16 Superior Court judgeships up for election, split evenly between the parties, with the outcome likely determined by the primary.

Marion Circuit Court
Democrat: Louis Rosenberg.
Republican: James A. Joven.

Marion Superior Court
Democratic slate: Annie Christ-Garcia (I), David J. Dreyer (I), Garland E. Graves, Patrick L. McCarty (I), James B. Osborn, Tanya Walton Pratt (I), David Shaheed (I) and Gerald S. Zore (I).

Also running: Kimberly J. Brown, Angela Davis and Barbara A. Wyly.

Republican slate: Cynthia Jane Ayers (I), Dave Certo (I), Kurt Eisgruber, Robyn L. Moberly (I), Marilyn A. Moores (I), Timothy W. Oakes, Marc T. Rothenberg and Ted Sosin.

Also running: Kenneth H. Johnson (I) and Gary L. Miller (I).

[More] See also this entry today from Gary Welsh's Advance Indiana.

Posted by Marcia Oddi on Saturday, February 23, 2008
Posted to Indiana Courts

Friday, February 22, 2008

Ind. Decisions - Transfer list for week ending February 22, 2008

Here is the Indiana Supreme Court's transfer list for the week ending February 22, 2008.

Be sure to view all three pages.

One case, Hughes v. State, was granted transfer with opinion 2/21/08 - see opinion here.

The ILB has also received notice that David Ohm v. State was granted transfer and remand by order on 2/21/08, but it does not appear on the list.

Over 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.

Posted by Marcia Oddi on Friday, February 22, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 4 today (and 10 NFP)

For publication opinions today (4):

Ronnie Manigault v. State of Indiana - "We find no abuse of discretion in admitting the cocaine where 1) Manigault’s initial detention was valid under both the federal and state constitutions; 2) Trooper Smith subsequently had probable cause to arrest Manigault; and 3) Trooper Smith discovered the cocaine during a search incident to Manigault’s lawful arrest.

"Nothing in the record indicates that Manigault was prevented from asserting a defense. Thus, we find no violation under either the Sixth Amendment or the Indiana Constitution. Affirmed."

Anthony Brown v. State of Indiana - "Anthony Brown appeals the post-conviction court’s denial of his petition for post-conviction relief. Brown raises two issues for our review, which we consolidate and restate as whether his appellate counsel on direct appeal provided ineffective assistance. We affirm."

In Christi J. Hoeing v. Jean I. Williams, a 10-page opinion, Judge Crone concludes:

Constitutional considerations aside, we note that our legislature has specifically granted custodial parents the authority to “determine the child’s upbringing, including the child’s education, health care, and religious training.” Ind. Code § 31-17-2-17(a). Such authority may be limited “after motion by a noncustodial parent” only if the trial court finds that the child’s “physical health would be endangered” or “emotional development would be significantly impaired.” Ind. Code § 31-17-2-17(b) (emphasis added). In short, a child’s grandparent has no statutory authority to ask the court to limit the custodial parent’s right to raise that child as the parent sees fit.

In light of the foregoing, we agree with Hoeing that the trial court’s visitation order impermissibly interferes with her fundamental right to control S.W.’s upbringing and religious training. Therefore, we reverse.

In Dave Galloway, in his capacity as Hendricks Co. Sheriff v. David Hadley d/b/a D & D Bonding, an 18-page opinion, Judge Najam writes:
Hendricks County Sheriff Dave Galloway brings this interlocutory appeal from the trial court’s Order Granting David Hadley’s Complaint for Preliminary Injunction (“Injunctive Order”). Sheriff Galloway raises four issues for our review, which we restate as follows: 1. Whether Indiana Code Section 27-10-3-18 (the “Equal Access Law”) creates a private cause of action. 2. Whether the trial court abused its discretion in entering the preliminary injunction. We affirm. * * *

In sum, we hold that the Equal Access Law creates a private cause of action and that the IDOI’s jurisdiction is not implicated here. We also hold that the trial court did not abuse its discretion in granting Hadley’s request for a preliminary injunction against Sheriff Galloway’s use of the Preferred Agent List. Finally, Hadley’s complaint is not barred by the doctrine of unclean hands. Affirmed.

NFP civil opinions today (4):

In Re: The Estate of Patrick J. Oliva; Debra Oliva-Foster, & Patrick A. Oliva v. Judith A. Oliva as Personal Beneficiary (NFP)

Invol. Term. of Parent-Child Rel. of D.R., M.G., and H.G.; and R.G. (Mother) v. Marion Co. Dept. of Child Services and Child Advocates, Inc. (NFP)

Sharon L. Row v. Paul Row, St. Mark's Evangelical Lutheran Church and St. Peter's Evangelical Lutheran Church (NFP)

In the Matter of the 2002 B Tax Sale-Petition To Set Aside Sale-Key No. 26-46-0023-002; Lake Cnty Treasurer, Lake Cnty Auditor, and Converse Holdings, LLC v. Yvonne B. Morgan, etal (NFP)

NFP criminal opinions today (6):

Donald Webb v. State of Indiana (NFP)

David Dolch v. State of Indiana (NFP)

Herbert Johnson v. State of Indiana (NFP)

Robert Stogsdill v. State of Indiana (NFP)

James L. Forthenberry, Jr. v. State of Indiana (NFP)

James McClain v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, February 22, 2008
Posted to Ind. App.Ct. Decisions

Courts - Still more on: The plot of John Grisham's latest novel may have already come to life in W. Va.

Updating this ILB entry from Feb. 19th: The third West Virginia justice under fire in the Massey Energy case, Justice Brent Benjamin, announced yesterday that he would not recuse himself. For details see this WSJ Law Blog entry headed "Justice Benjamin in Massey Energy: I’m Not Going Anywhere."

Posted by Marcia Oddi on Friday, February 22, 2008
Posted to Courts in general

Ind. Decisions - Updating again: Do the changes to the sex offender law mean longtime homeowners must move?

This ILB entry from Feb. 20th quoted the Lafayette paper's report that two decisions had been handed down:

Two Tippecanoe County judges ruled Tuesday that the safety of the community's children trumps objections raised by two sex offenders -- upset that they had to move.
Here is a copy of Judge Don Daniel's six-page ruling.

The ILB also hopes to post Tippecanoe Superior Court 1 Judge Don Johnson's ruling in the second case. Check back here.

Posted by Marcia Oddi on Friday, February 22, 2008
Posted to Indiana Decisions

Ind. Courts - Patmore declares for Spencer Circuit Court

Kevin R. Patmore of Santa Claus has declared his candidacy in the Republican primary for the elected position of Spencer Circuit Court Judge.

Posted by Marcia Oddi on Friday, February 22, 2008
Posted to Indiana Courts

Ind. Courts - Filings for Monroe judicial seats

Two stories today in the Bloomington Herald-Times about Monroe judicial seats.

"Haseman files for judge" is the headline to a story ($$) that begins:

Monroe Circuit Judge Christine Talley Haseman filed Thursday to run for election to retain her seat. Haseman presides over Monroe Circuit Court VIII and hears family law, protective order and small claims cases. * * *

In November, Gov. Mitch Daniels appointed Haseman for a one-year term to the county’s newest court.

"Graham is running for judge" is the headline to this story ($$) that begins:
Bloomington attorney Roy Graham said Thursday he is a Democratic candidate for Monroe Circuit Judge Division VIII in the primary election.

Posted by Marcia Oddi on Friday, February 22, 2008
Posted to Indiana Courts

Ind. Courts - "Restoring the Allen County Courthouse to its original magnificence"

From today's Fort Wayne Journal Gazette, a story that begins:

Restoring the Allen County Courthouse to its original magnificence was an eight-year effort, but the task of restoring its original accouterments continues. Preservation officials are sounding a call to anyone who might have furniture or other items that once graced the proud building.

Two significant items are back in place: a counsel table returned to the Superior Court I courtroom and a desk now used by Circuit Court Judge Thomas Felts. Both were returned after years in the care of area families with special connections to the 105-year-old building.

Attorney Tom Gallmeyer was among those offering contributions. The desk he used in his private practice was handed down from his grandfather, Clarence R. McNabb, who had first used it when he was Allen Circuit Court judge in the 1930s. When Gallmeyer learned that the Courthouse Preservation Trust board was seeking items original to the building as part of the renovation project, he donated the desk, which originally belonged to Circuit Court Judge Sol A. Wood, for whom the county’s juvenile confinement center was named.

“It’s a massive piece,” Gallmeyer said. “When it was moved, it had to be moved on top of the elevators because it wouldn’t fit through doors.”

Posted by Marcia Oddi on Friday, February 22, 2008
Posted to Indiana Courts

Ind. Decisions - Indiana wine shipping case to be argued today before the 7th Circuit

Today at 9:30 AM (Chicago time) the 7th Circuit will hear oral arguments in the case of Baude v. Heath, the wine shipping case.

Here is the ILB summary and link to the 71-page opinion issued by Judge John D. Tinder the end of August , 2007.

Here are links to the briefs, including a number of amicus briefs, filed with the 7th Circuit in this case.

Here is a list of earlier ILB entries on this case.

Oral arguments will be available online later today via this page - the case number is 07-3323.

[Updated] Here is the direct link to the oral argument.

Posted by Marcia Oddi on Friday, February 22, 2008
Posted to Ind Fed D.Ct. Decisions

Thursday, February 21, 2008

Ind. Courts - Judge Miller to run in Marion County primary

Updating the ILB entry for Feb. 17, headed "Ind. Courts - Focus on party slates for Marion County judicial primary," the ILB has just received a press release headed "Judge Gary Miller To Run In The Primary." It begins:

Judge Gary L. Miller, Judge of the Marion Superior Court, for more than 17 years, has filed his paperwork with the Indiana Secretary of State to run for re-election in the May primary election. Although endorsed by the Marion County GOP in 1990, 1996 and 2002, Judge Miller was not slated at the party convention on February 16.

Posted by Marcia Oddi on Thursday, February 21, 2008
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides three today

In State of Indiana v. Universal Outdoor Inc., a 5-page, 5-0 opinion, Justice Dickson writes:

In this eminent domain proceeding initiated by the State of Indiana against Universal Outdoor, Inc., owner of a billboard leasehold interest, the trial court entered an order of appropriation, and the appointed appraisers concluded that Universal sustained damages of $243,800 from the appropriation. The trial court, finding that neither party filed exceptions during the statutory exceptions period, granted judgment for Universal in the amount of the appraisers' award. The State appeals, asserting that its exceptions were timely filed. The Court of Appeals reversed. * * *

The parties dispute the proper application of conflicting statutory provisions. Pursuant to Indiana Code § 32-24-1-11, after the appraisers file their report, either party may file exceptions to the appraisal. But the provisions prescribing the time limitations for filing these exceptions appear to be inconsistent * * *

For these reasons, we hold that the exception filing period commences with the filing of the appraisers' report, in accordance with subsection (a), and ends twenty days after the court clerk's mailing of notice of filing of the report to the parties, as prescribed in subsection (c).

We reverse the judgment of the trial court and remand for further proceedings on the parties' filed exceptions.

In Demond Hughes v. State of Indiana, a 3-page, 5-0 opinion, Justice Dickson concludes:
Because the defendant may not by belated appeal relitigate his sentence challenge previ-ously presented in his post-conviction relief petition, we find his claim barred by procedural de-fault. We affirm the sentence imposed by the trial court following the defendant's post-conviction relief proceeding.
In Chi Yun Ho, M.D. v. Loretta M. Frye, a 13-page, 5-0 opinion, Justice Dickson writes:
In this medical negligence case arising from the alleged failure to remove all of the surgical sponges following abdominal surgery, the trial court denied the plaintiffs' motion for partial summary judgment, the jury returned a verdict in favor of the surgeon, and the trial court thereafter granted a new trial. The Court of Appeals reversed the denial of partial summary judgment, found for the plaintiffs on liability as a matter of law, and remanded for a determination of damages. Ho v. Frye, 865 N.E.2d 632 (Ind. Ct. App. 2007). We granted transfer, thereby automatically vacating the opinion of the Court of Appeals. Ind. Appellate Rule 58(A). We affirm the denial of summary judgment, reverse the order granting a new trial, and reinstate the jury verdict.

Posted by Marcia Oddi on Thursday, February 21, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today

In Tubergen v. St. Vincent Hospital (SD Ind., Judge Tinder), an 11-page opinion involving a 65 year-old physician suing on the basis of age discrimination, Judge Flaum concludes:

In this restructuring context, St. Vincent was required to provide its older employees with the same placement opportunities as it provided its younger employees who were subject to the RIF. Radue v. Kimberly-Clark Corp., 219 F.3d 612, 615 (7th Cir. 2000). Crucially, if the older employee fails to take advantage of those opportunities, they foreclose any claim of discrimination. Torry v. Northrup Grumman Corp., 399 F.3d 876, 879 (7th Cir. 2005).

Because Tubergen also did not put forth evidence that his failure to apply was caused by a discriminatory practice, St. Vincent is not required to offer a legitimate reason for its actions. See Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 738-39 (7th Cir. 2006). Even so, St. Vincent does provide such a explanation: it sought to eliminate the entire Service Line structure in order to streamline its operations. Tubergen provides no reason to doubt the veracity of this claim, and it would be difficult for him to do so knowing that over 300 young and old employees were eliminated and many young and old employees were retained. He tries to argue that the strategy did not cut costs, but this Court’s role is not to measure the success of a given strategy. We must simply ascertain whether St. Vincent believed that its restructuring efforts would attain its stated goals, and we see no reason to doubt that here.

Posted by Marcia Oddi on Thursday, February 21, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

In Kenneth McClanahan v. Tammy Mason (NFP), a 10-page opinion, Judge Mathias writes:

Kenneth McClanahan (“McClanahan”) sued Tammy Mason (“Mason”) in Floyd Circuit Court for damages he allegedly sustained in an automobile accident involving Mason. The jury returned a verdict in favor of Mason and McClanahan appeals.

He raises three issues, which we consolidate and restate as: I. Whether the trial court abused its discretion when it admitted evidence of prior and subsequent automobile accidents involving McClanahan; and, II. Whether the jury’s verdict was against the weight of the evidence.

Concluding that the admission of evidence of the prior and subsequent automobile accidents was harmless error, and that the jury’s verdict was not against the weight of the evidence, we affirm..

NFP criminal opinions today (6):

Cedric Price v. State of Indiana (NFP)

Richard Bruce Strong v. State of Indiana (NFP)

Lakesha Boler v. State of Indiana (NFP)

Victor Barnes v. State of Indiana (NFP)

Billy Long v. State of Indiana (NFP)

James W. Nicholson v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, February 21, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Courthouse elevator repair plan stuck"

Andy Grimm reports in the Gary Post Tribune:

CROWN POINT -- Plans to repair the perpetually malfunctioning elevators at Lake County's Gary courthouse remain stuck in the basement after a county Board of Commissioners meeting Wednesday.

Commissioners and members of the County Council will meet to discuss how to invest upward of $550,000 in elevator repairs to meet specifications from the council, without breaching a contract the commissioners signed with Long Elevator.

At the request of the council, commissioners put out bids to fix the aging elevators, which regularly stall and trap courthouse visitors and require frequent, piecemeal repairs.

"They asked us to do one thing, and now they asking for something different," said Commissioner Gerry Scheub, noting that attorneys representing Gary-based Long Elevator were in the audience at Wednesday's meeting.

"I'm just trying to get done what needs to be done without getting in a lawsuit," Scheub said.

County Council members, conferring with an energy-efficiency consultant, said Long is unable to provide the needed upgrades and that repairs should be paid for with energy-savings bonds.

The county also could face complaints under the Americans With Disabilities Act, said Scheub, who takes the stairs whenever he visits the Gary courthouse.

"They are breaking down all the time. They're used up," he said.

Scheub is not alone in the Gary stairwells. Judge Gerald Svetanoff, who has had a courtroom in Gary for 26 years, has avoided the elevators for well over a decade.

"It keeps me fit ... but it's obviously a matter that requires attention," Svetanoff said. "It's not that they're malfunctioning during the day, every day, but it is an issue the commissioners need to deal with."

Readers will recall the 2004 SCOTUS decision in Tennessee v. Lane. Here is a Business Week story from May 27, 2004.

Posted by Marcia Oddi on Thursday, February 21, 2008
Posted to Indiana Courts

Courts - SCOTUS favors federal pre-emption in three cases yesterday

The Legal Times Tony Mauro reports today:

In three key business rulings handed down Wednesday, the Supreme Court continued its trend toward freeing companies from the conflicting regulation of 50 different states in favor of one federal regime.

The Court favored federal pre-emption over state laws and state court remedies in the areas of medical device regulation, interstate shipping of tobacco and arbitration of contract disputes.

In announcing one of the cases from the bench, Justice Antonin Scalia said the day's decisions made it clear that "we consider it part of our business" to sort out the balance between federal and state law. * * *

Of Wednesday's pre-emption cases, Riegel v. Medtronic may have the broadest impact. The Court ruled against the estate of Charles Riegel, who died after a catheter made by Medtronic malfunctioned during heart surgery.

Riegel sued in federal court, invoking New York state common law to argue for liability and damages. Like lower courts, the Supreme Court ruled that the federal Medical Device Amendments of 1976 specifically preclude states from imposing their own requirements on the makers of federally regulated medical devices. * * *

Rowe v. New Hampshire Motor Transport Association, in which the Court said the state of Maine could not impose its own legal requirements on delivery companies aimed at preventing the shipment of tobacco products to minors. Justice Stephen Breyer wrote the decision for a unanimous Court, asserting that to allow Maine to regulate tobacco shipment would "severely undermine" federal regulation.

Preston v. Ferrer, resolving a dispute between Alex Ferrer, who goes by the name "Judge Alex" on a syndicated television show, and Arnold Preston, an entertainment industry lawyer. The issue before the high court was whether a contract dispute between the two should be governed by state law or the Federal Arbitration Act.

Posted by Marcia Oddi on Thursday, February 21, 2008
Posted to Courts in general

Ind. Courts - Judge Carr Darden of the Indiana Court of Appeals featured

Indianapolis WTHR (channel 13) Eyewitness News last evening had a feature by Sandra Chapman headed "Judge devotes career to protecting rights of the most vulnerable." You may view it or read it here. The story begins:

There's often an over-looked segment of African-American males in the criminal justice system: Those who take an oath to uphold the law.

Indiana's Honorable Judge Carr Darden has spent almost 40 years protecting the rights of those who needed it most.

Taking his stand, Indiana Court of Appeals Justice Carr Darden is living a dream. Judge Darden's contagious smile stretched across his face as he waved to the audience in the House Chambers of the Indiana Statehouse.

"I have the greatest job in the world bar none and I work around some great people," Justice Darden said of his high accomplishments.

Behind the prestigious drapings is a legal mind that took shape when African-Americans lived in resistance to robes and racism.

"Coming from a segregated society in the 40's and 50's I'm sure it was instilled in me very early that you had to fight. You had to be prepared," he recalled. "The law was what was going to make it right for us."

As mentioned at the end of this ILB entry from Feb. 14th, Judge Darden is the only one of the 15 members of the Court of Appeals up for retention this year.

Posted by Marcia Oddi on Thursday, February 21, 2008
Posted to Indiana Courts

Wednesday, February 20, 2008

Environment - Governor signs Great Lakes Compact

A news release this afternoon from the Governor Daniels' office provides:

INDIANAPOLIS (February 20, 2008) – Governor Mitch Daniels today signed the Great Lakes compact, SEA 45, making Indiana the first state to implement the added protections the interstate agreement provides.

The Great Lakes-St. Lawrence River Basin Water Resources Compact was developed over five years with representatives of business, industry, agriculture, environmental and other interests, as well as state officials. Governors of eight states – New York, Illinois, Pennsylvania, Michigan, Minnesota, Ohio, Wisconsin and Indiana – reached agreement on the compact late in 2005. The eight states also reached a similar agreement with Ontario and Quebec in 2005.

“Today, we celebrate an achievement that groups who don’t always see eye-to-eye came together to support. With this action, we’re renewing our commitment to put in place new protections for one of our greatest resources,” said Daniels.

Daniels said Senator Bev Gard, R-Greenfield, and Representative Scott Pelath, D-Michigan City, provided leadership that led to overwhelming support from legislators in both houses.

The compact ensures that authority over Great Lakes water uses stays in the region; that economic development will be fostered through sustainable use and responsible management of the waters; that states will development regional goals and objectives for water conservation and efficiency and collect and share technical data to improve decision-making; and continues a strong commitment to public involvement in implementation of the compact.

The state legislatures in each state must approve the compact and enact implementation language, and the Congress also must give its consent. Indiana is the first state to ratify and sign the compact with implementation language. Minnesota and Illinois signed the compact into law in 2007 but still need implementation language, the New York legislature recently approved the compact and it is awaiting signature, and bills are pending in Michigan, Ohio and Pennsylvania. Introduction of the legislation is expected in Wisconsin soon.

For background, start with this ILB entry yesterday on concerns about Ohio and Wisconsin.

Posted by Marcia Oddi on Wednesday, February 20, 2008
Posted to Environment

Ind. Decisions - 7th Circuit "on the warpath today"

Fortunately no Indiana cases were decided today, but see these two entries from Robert Loblaw's Decision of the Day.

The first is a posting titled "Seventh Trashes Prominent Finance Professor", which begins:

The Seventh Circuit is well-known for trashing the reputation of lawyers who have the temerity to make the same minor technical errors that most other attorneys get away with on a daily basis. But sloppy lawyers aren’t the only targets for the Seventh’s venom.

Here’s what Judge Posner has to say about expert witness Stephen Buser, who also happens to be the Chair of the Department of Finance at Ohio State University.

And the second entry today, headed "The Seventh is on the Warpath Today . . .", begins:
Fresh on the heels of this Posner decision comes an equally vitriolic Easterbrook decision.

Posted by Marcia Oddi on Wednesday, February 20, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 6 today (and 15 NFP)

For publication opinions today (6):

Mark Liddy v. Kathleen Liddy - "We find that a party opposing emancipation pursuant to Indiana Code § 31-16-6-6(a)(2) bears the burden of proving incapacitation. However, there is no indication that the trial court improperly allocated this burden in this case and the court did not err in deeming A.L. incapacitated. Further, the trial court did not err in its custody determination or calculation of child support. Affirmed."

In Brenda Spar v. Jin S. Cha, M.D., a 13-page, 2-1 opinion, Judge May writes:

Brenda Spar brought a malpractice action against Dr. Jin S. Cha, alleging he was negligent in treating her and in failing to obtain her informed consent. The jury rendered a verdict for Dr. Cha, from which Spar now appeals. Concluding Dr. Cha should not have been permitted to assert the defense of incurred risk or introduce evidence of Spar’s consent to prior unrelated surgeries, we reverse and remand for a new trial. * * *

CRONE, J., concurring.
DARDEN, J., dissenting with separate opinion. (that begins) I respectfully dissent with respect to the majority’s conclusion that the defense of incurred risk is not available to a physician facing a claim of negligent treatment; accordingly, I would also hold that evidence of Spar’s consent to previous surgeries was relevant to such a defense and, therefore, admissible.

In Lisa R. Bigley v. MSD of Wayne Township Schools, a 15-page opinion, Judge Crone writes:
Lisa R. Bigley, as a taxpayer within the Metropolitan School District (“MSD”) of Wayne Township, and for all other similarly-situated citizens and taxpayers (“the Taxpayers”), appeals the order granting attorney’s fees pursuant to Indiana Trial Rule 65(C) to MSD of Wayne Township Schools, acting by and through its School Board (“the Board”). On cross-appeal, the Board challenges the denial of a portion of its claim for attorney’s fees and requests appellate attorney’s fees. We affirm and remand with instructions.
In Manda Hill v. Michael Bolinger, a 6-page opinion, Sr. Judge Hoffman writes:
Plaintiff-Appellant Manda Hill appeals the trial court’s grant of summary judgment in favor of Defendant-Appellee Michael Bolinger in Hill’s legal malpractice action against Bolinger. We affirm.

The sole issue for our review is whether the trial court erred in granting summary judgment in favor of Bolinger. Bolinger represented Manda in the dissolution of her marriage to Dean Hill. * * *

Because we would not have reversed the dissolution court, we find that Manda has failed to establish the causation element for a case of attorney malpractice. Accordingly, the trial court did not err in granting Bolinger’s summary judgment motion.

In Derrick Anderson v. State of Indiana , an 8-page opinion, Judge Vaidik writes:
Derrick Anderson appeals his conviction for Class B misdemeanor disorderly conduct. Specifically, he contends that because his expressions to the responding police officers were protected political speech under Article I, Section 9 of the Indiana Constitution, the evidence is insufficient to support his conviction. Because we conclude that Anderson’s expressions were not political speech and that they constituted an abuse of his right to speak, he is subject to accountability under Section 9. In addition, we conclude that the evidence is sufficient to support Anderson’s conviction. We therefore affirm.
In Bruce Wayne St. Clair, Jr. v. State of Indiana , an 8-page, 2-1 opinion, Judge May writes:
Bruce Wayne St. Clair, Jr. appeals the denial of his petition for leave to file a belated appeal. The State opposed St. Clair’s petition on the ground St. Clair had waived his right to a direct appeal by entering a plea agreement with a fixed plea. The trial court summarily denied St. Clair’s petition. Finding St. Clair had an open plea and has met the requirements of Post-Conviction Rule 2, we reverse and remand. * * *

As the petition was filed only one day late and was apparently accepted by the clerk, we cannot say St. Clair should have realized anything was amiss. His petition for permission to file a belated appeal was filed shortly after appellate counsel was appointed. Therefore, we conclude St. Clair has met his burden of demonstrating he was not at fault and was diligent in requesting relief, and we reverse the denial of his petition. Moreover, it is apparent from the record that St. Clair did not receive the benefit of his bargain. In the interest of judicial economy, we remand for resentencing. On remand, St. Clair shall have the opportunity to argue for a lesser sentence in accordance with his open plea agreement.

KIRSCH, J., concurs.
RILEY, J., dissenting with separate opinion. (which concludes) Thus, it is clear from the record that St. Clair pled guilty to a fixed term plea agreement that set forth a specific sentence recommendation. The trial court accepted the plea agreement and followed its terms. At the sentencing hearing, St. Clair waived all claims that could be raised on direct appeal. The trial court properly denied his motion to bring a belated appeal and, therefore, I would affirm the decision of the trial court.

NFP civil opinions today (7):

Antoinea Bowman v. Lake County Div. of Family & Children (NFP)

In the Matter of L.R., Dorothy Robinson v. Lake County Office of Family & Children, Lake County CASA (NFP)

Midwest Psychological Center and Shelvy Keglar v. Indiana State Dept. of Administration and/or the Div. of Disability, Aging and Rehabilative Services, Silvia Funk, et al (NFP)

Michael Page v. Annette Hahn (NFP)

Timothy E. Wellington v. Asset Acceptance, LLC (NFP) - "Here, Wellington provided his creditor with a post office box address as his residential address. This was his customary and practical method of collecting his mail because he frequently traveled between Indiana and Florida. Apparently with Wellington’s permission, his mother retrieved mail from the post office box. She signed the certified mail receipt at issue. Wellington has never contended that the post office box was an incorrect address, that he did not routinely receive his mail there, or that his mother lacked permission to accept mail and deliver it to him. In light of the evidence tending to show that Wellington received actual notice, the trial court did not abuse its discretion by denying Wellington relief from the judgment."

Stephanie Bailey v. Lewis Mann (NFP)

Brian S. Entwistle v. James Rogan (NFP)

NFP criminal opinions today (8):

Tony Thomas v. State of Indiana (NFP)

John W. Ferguson v. State of Indiana (NFP)

Braunell Mackey v. State of Indiana (NFP)

Casey O. Macon v. State of Indiana (NFP)

Robert Gunnell v. State of Indiana (NFP)

Charles A. Harris v. State of Indiana (NFP)

Leslie Jerome Johnson v. State of Indiana (NFP)

Robert Lee Shorter v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, February 20, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Republican enters Delaware Circuit Court 3 race"

Rick Yencer reports today in the Muncie Star-Press:

A local defense attorney has jumped into the growing race for Delaware Circuit Court 3 judge that already has a Democratic primary contest.

Mark Delgado, 35, also a captain in the Indiana National Guard, filed Tuesday for the Republican nomination to the Circuit Court 3 bench, hoping to succeed Judge Robert Barnet Jr., who decided not to seek a sixth term this year. * * *

Delgado is the third candidate in recent days to file for the open judge's seat. Democrats Joe Orick, a deputy prosecutor, and Muncie City Court Judge Linda Wolf also are on the ballot for their party's May 6 primary.

In 2006, Delgado lost by a wide margin to Democratic Prosecutor Mark McKinney. * * *

Two other judge's seats are on the May 6 ballot: Circuit Court 4, where Republican Judge John Feick is seeking re-election, and Circuit Court 5, where Democratic Judge Wayne Lennington also wants a second term.

No challengers have filed for those benches. The deadline for entering the primary is noon Friday.

See this Feb. 12th ILB entry for background.

Posted by Marcia Oddi on Wednesday, February 20, 2008
Posted to Indiana Courts

Courts - More on: "A Judge’s ‘Inexplicable Madness’ Over a Cellphone"

Updating this ILB entry from Nov. 27, 2007, an article today by Joel Stashenko of the New York Law Journal is titled: "Amicus Briefs Pile Up in Bid to Sway N.Y. High Court on Judge's Removal Over Cell Phone Incident." Some quotes:

New York state's Court of Appeals last week accepted 10 amicus curiae briefs filed by legal, judicial and civic groups, all pleading with the court to spare the job of Niagara Falls City Court Judge Robert M. Restaino.

Restaino is appealing to the court a November recommendation by the Commission on Judicial Conduct that he be removed from the bench for ordering 46 defendants in his courtroom into custody one day in 2005 because no one would take responsibility for a ringing cell phone.

The Court of Appeals is expected to hear oral arguments in this case in March or April. Restaino has been suspended with pay since December while awaiting the outcome of his appeal.

The amicus briefs cite Restaino's spotless 12-year judicial record, his standing in the community and the isolated nature of the incident in his courtroom on March 11, 2005, as all weighing in favor of the court reducing his punishment to censure.

"No evidence exists that his actions were motivated by anything other than an attempt on his part, misguided as it may have been, to protect the integrity of the domestic violence court," stated a brief filed by the bar associations of Niagara County, Niagara Falls, Lockport and the Tonawandas.

Posted by Marcia Oddi on Wednesday, February 20, 2008
Posted to Courts in general

Ind. Courts - Judicial races in Porter County

Bob Kasarda reports today in the NWI Times:

VALPARAISO | Former Portage city judge and deputy prosecutor William Suarez announced he will seek to unseat Porter Superior Judge Roger Bradford.

Suarez, 73, is running as Democrat. Bradford is a Republican.

The announcement set up the second judicial race of this election season.

Democratic Porter Superior Court Judge David Chidester faces a challenge by Valparaiso attorney Tim Vojslavek, a Republican.

Porter Circuit Court Judge Mary Harper, a Republican, remains unopposed.

Posted by Marcia Oddi on Wednesday, February 20, 2008
Posted to Indiana Courts

Law - Professor says suits over formaldehyde in trailers are likely to focus more on manufacturers than dealers

Updating this ILB entry from Jan. 19th ("FEMA offers refunds on toxic trailers") and this one from Sept. 28, 2005 ("Trailers flow from Indiana to Gulf Coast"), see this story today by Ben Zion Hershberg of the LCJ, headlined "Lawsuits over formaldehyde in trailers likely won't target dealers." The story begins:

An Indiana expert on the effects of formaldehyde exposure said it's likely to be years before any lawsuits by Hurricane Katrina victims claiming injury from the substance in trailers provided by a federal agency are settled.

Thad Godish, a Ball State University professor, said plaintiffs' lawyers are likely to focus more on trailer manufacturers than on dealers such as Stinnett RV Freedom Center of Clarksville, which sold or participated with others in the sale of 6,000 trailers to the Federal Emergency Management Agency.

"I don't think they need to worry too much," Godish said of trailer dealers, based on his work as an expert in formaldehyde-exposure lawsuits.

But Tony Buzbee of Houston, who is in a group of lawyers representing an estimated 10,000 residents or former residents of FEMA trailers suing the manufacturers, said yesterday that he expects the agency and possibly some dealers to be added to the litigation.

Posted by Marcia Oddi on Wednesday, February 20, 2008
Posted to General Law Related

Ind. Decisions - Updating: Do the changes to the sex offender law mean longtime homeowners must move?

Updating this ILB entry from Dec. 18, 2007 on the three cases pending in Tippecanoe County, Sophia Vorovong of the Lafayette Journal Courier reports today:

Two Tippecanoe County judges ruled Tuesday that the safety of the community's children trumps objections raised by two sex offenders -- upset that they had to move.

The men filed separate anonymous civil complaints challenging a recent state law that prohibits offenders against children from living within 1,000 feet of a school, youth program center or public park.

At issue is whether they are being punished again, years after being released from prison.

"Had the Indiana General Assembly simply sought to penalize sex offenders if they had ever lived near a school or park, that would imply some sort of vendetta against the sex offenders themselves," Judge Don Daniel of Tippecanoe Circuit Court wrote in his six-page ruling.

"In this case, the General Assembly simply seeks to prohibit current behavior -- that of a sex offender, someone who poses a risk to our children -- from residing in zones with greater concentrations of children."

Daniel presided over a lawsuit filed last August by a man with three felony convictions for child molesting and attempted child molesting, most recently in 1991. Known only as John Doe in court documents, he has to register for life on Indiana's Sex and Violent Offender Registry.

John Doe's home is near a Lafayette school.

His attorney, Ken Falk of the American Civil Liberties Union of Indiana, argued that the state law, which took effect July 1, 2006, should not apply to anyone convicted of a child sex crime before that date.

Daniel instead granted summary judgment to the defendants: Tippecanoe County Prosecutor Pat Harrington, Sheriff Tracy Brown and the city of Lafayette.

Falk said Tuesday that he was disappointed in the ruling, but declined further comment because he had not yet seen Daniel's decision.

"The only step we can take now is to continue litigation through appeals," he said. "I will have to talk to my client about that."

In a separate lawsuit, Tippecanoe Superior Court 1 Judge Don Johnson on Tuesday denied a man's petition to no longer be considered a threat to children. The man, known only as John A. Doe in court documents, also asked to be taken off the state's registry.

John A. Doe was convicted in White County in 1988 of molesting an 11-year-old. He filed a request for preliminary injunction last July using a law that took effect July 1, 2007, allowing offenders to petition the court to look at whether he or she is still considered an offender against children.

This can only be done 10 years after the offender is released. A petition can be filed once a year.

Johnson based his ruling on evaluations by two psychiatrists who found that John A. Doe's sexual behavior puts him at higher risk. * * *

Two Tippecanoe County judges ruled Tuesday that the safety of the community's children trumps objections raised by two sex offenders -- upset that they had to move.

The men filed separate anonymous civil complaints challenging a recent state law that prohibits offenders against children from living within 1,000 feet of a school, youth program center or public park.

At issue is whether they are being punished again, years after being released from prison.

"Had the Indiana General Assembly simply sought to penalize sex offenders if they had ever lived near a school or park, that would imply some sort of vendetta against the sex offenders themselves," Judge Don Daniel of Tippecanoe Circuit Court wrote in his six-page ruling.

"In this case, the General Assembly simply seeks to prohibit current behavior -- that of a sex offender, someone who poses a risk to our children -- from residing in zones with greater concentrations of children."

Daniel presided over a lawsuit filed last August by a man with three felony convictions for child molesting and attempted child molesting, most recently in 1991. Known only as John Doe in court documents, he has to register for life on Indiana's Sex and Violent Offender Registry.

John Doe's home is near a Lafayette school.

His attorney, Ken Falk of the American Civil Liberties Union of Indiana, argued that the state law, which took effect July 1, 2006, should not apply to anyone convicted of a child sex crime before that date.

Daniel instead granted summary judgment to the defendants: Tippecanoe County Prosecutor Pat Harrington, Sheriff Tracy Brown and the city of Lafayette.

Falk said Tuesday that he was disappointed in the ruling, but declined further comment because he had not yet seen Daniel's decision.

"The only step we can take now is to continue litigation through appeals," he said. "I will have to talk to my client about that."

In a separate lawsuit, Tippecanoe Superior Court 1 Judge Don Johnson on Tuesday denied a man's petition to no longer be considered a threat to children. The man, known only as John A. Doe in court documents, also asked to be taken off the state's registry.

John A. Doe was convicted in White County in 1988 of molesting an 11-year-old. He filed a request for preliminary injunction last July using a law that took effect July 1, 2007, allowing offenders to petition the court to look at whether he or she is still considered an offender against children.

This can only be done 10 years after the offender is released. A petition can be filed once a year.

Johnson based his ruling on evaluations by two psychiatrists who found that John A. Doe's sexual behavior puts him at higher risk.

Posted by Marcia Oddi on Wednesday, February 20, 2008
Posted to Ind. Trial Ct. Decisions

Tuesday, February 19, 2008

Law - New movie about the legal profession

A review of the George Clooney movie, Michael Clayton, appears in today's Slate.

Posted by Marcia Oddi on Tuesday, February 19, 2008
Posted to General Law Related

Environment - Still more on: "EPA's mercury rule struck down"

Updating this ILB entry from Feb. 18, here is a report from H. Josef Hebert of the AP that appeared nationally. It begins:

WASHINGTON—While arguing in court that states are free to enact tougher mercury controls from power plants, the Bush administration pressured dozens of states to accept a scheme that would let some plants evade cleaning up their pollution, government documents show.
more stories like this

A week ago, a federal appeals court struck down that industry-friendly approach for mercury reduction. It allowed plants with excessive smokestack emissions to buy pollution rights from other plants that foul the air less.

Internal Environmental Protection Agency documents and e-mails, obtained by the advocacy group Environmental Defense, show attempts over the past two years to blunt state efforts to make their plants drastically reduce mercury pollution instead of trading for credits that would let them continue it.

Posted by Marcia Oddi on Tuesday, February 19, 2008
Posted to Environment

Ind. Courts - More on: A Marion County public defender caught in child solicitation sting

This afternoon Jon Murray of the Indianapolis Star has a report that begins:

The Marion County Public Defender Agency suspended an attorney without pay today after his arrest in an online sex sting.

Ryan W. Snyder, 29, 3700 block of Knickerbocker Place, was arrested Sunday by Indianapolis Metropolitan Police Department officers. He is accused of setting up a sexual encounter with a vice detective posing as a 15-year-old girl in an online chat.
See the Feb. 18 ILB entry here.

Posted by Marcia Oddi on Tuesday, February 19, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 6 today (and 12 NFP)

For publication opinions today (6):

In Gary School Corporation v. Tom Powell , a 9-page opinion, Chief Judge Baker writes:

Tom Powell worked for Gary Community School Corporation (Gary) as a full-time teacher and a part-time football coach. After taking a medical leave of absence, he was restored to his teaching position but not to his coaching position. He sued the school under the Family and Medical Leave Act (FMLA).1 The FMLA, however, applies only to full-time employees. We must determine, therefore, whether we look at the total number of hours Powell worked for Gary, in which case the coaching position would be covered by the FMLA, or whether we should instead examine the jobs separately, in which case the teaching position would be covered by the FMLA and the coaching position would not be. After examining the record, we find that because the parties herein treated the jobs as entirely separate and independent of one another, we must follow their lead and examine the jobs separately for the purpose of FMLA coverage. Consequently, Powell’s part-time coaching position was not eligible for FMLA coverage and the trial court should have granted summary judgment in Gary’s favor. * * *

We hasten to add that this holding is limited to situations in which an employee works in multiple capacities for the same employer and the employer and employee treat those capacities completely separately and independently. It is entirely possible that an employee could perform multiple functions for the same employer but, because of the nature of their employment relationship, the employee would be considered to have only one job, encompassing all hours worked for the employer in any capacity, for the purpose of determining FMLA eligibility. Here, however, that was not the case.

In South Bend Comm. School Corp. v. Linda D. Lucas, a 14-page, 2-1 opinion, Chief Judge Baker writes:
Appellant-employer South Bend Community School Corporation (South Bend) appeals the decision of the Unemployment Insurance Review Board (the Board) awarding unemployment insurance benefits to appellee-claimant Linda D. Lucas. South Bend argues that the Board erroneously determined that the Head Start Consortium of Elkhart and St. Joseph Counties (Head Start) is not an educational institution within the meaning of the relevant statute such that Lucas is eligible for unemployment insurance during the summer breaks between Head Start’s academic terms. Concluding that the legislature intended for Head Start to be treated as an educational institution, we reverse the decision of the Board. * * *

Given the purpose of the Unemployment Act and the way in which Head Start is structured and operated, we can only conclude that the legislature intended that Head Start be treated as an educational institution for the purpose of unemployment compensation. Thus, the Board’s decision was contrary to legislative intent and necessarily unreasonable. The judgment of the Board is reversed.

SHARPNACK, J. concurs.
RILEY, J., dissents with opinion. [which concludes] In light of the evidence before us, I remind the majority of its quoted standard of review that “[w]hen a court is faced with two reasonable interpretations of a statute, one of which is supplied by an administrative agency charged with enforcing the statute, the court should defer to the agency.” [cite omitted] Based on the numerous differences that exist between the Head Start program—not in the least its funding and accreditation—and what is customarily regarded as a school, the Board reasonably and consistently interpreted the statute by excluding Head Start as an educational institution. Accordingly, by disregarding its own standard, I believe the majority reached the wrong result. I would affirm the Board’s decision in all regards.

Margaret Ritcheson-Dick v. Unemployment Ins. Review Board, Ind. Dept. of Workfoce Dev., and Deutsche Post Global Mail, LTD. - "Margaret Ritcheson-Dick (“Margaret”) appeals the Review Board of the Indiana Department of Workforce Development’s (“Review Board”) dismissal of her appeal. Concluding that the Review Board abused its discretion by not hearing Margaret’s additional evidence on the issue of whether she timely appealed the decision suspending her unemployment insurance benefits, we reverse and remand for further proceedings."

In KLN v. State of Indiana, a 12-page opinion, Chief Judge Baker writes:

K.L.N., a juvenile, was adjudicated delinquent and confined to a secure facility for 120 days. As a result of K.L.N.’s unwillingness to follow the rules of the facility, the juvenile court modified the terms of his dispositional decree to include an order that K.L.N. follow those rules. After K.L.N. amassed three new incident reports, the probation department filed a rule to show cause, resulting in the court finding K.L.N. in civil contempt of court and imposing an additional term of confinement for the contempt finding. Although the juvenile court informed K.L.N. that for every day of good behavior on his original confinement one day would be subtracted from the contempt confinement, there was no way in which K.L.N. could have immediately purged himself of the contempt finding. Moreover, there is no statutory authority for the course of action taken by the juvenile court herein. Thus, we conclude that the juvenile court erred by holding K.L.N. in contempt and lengthening his term of confinement.

Appellant-respondent K.L.N. appeals the juvenile court’s order finding him in indirect civil contempt for failing to obey the rules of the facility to which he was committed for 120 days and adding 77 days to his term of detention in the facility. Finding that the juvenile court did not have authority to take these actions, we reverse.

Robert Henson v. State of Indiana - "Robert Henson appeals his sentence for two counts of burglary as class C felonies. Henson raises one issue, which we restate as whether the trial court’s imposition of consecutive sentences totaling twelve years violated Ind. Code § 35-50-1-2(c). We reverse and remand for resentencing."

In Karen Rush v. State of Indiana , a case out of Huntington County, Chief Judge Baker concludes in a 13-page opinion:

In this case, the evidence showed that there were approximately twenty-five people at Rush’s house on the night of the party. And Rush knew that people were coming into her house to visit her seventeen-year-old daughter. When some of the guests brought alcohol into the house through the front door, Rush was in the living room. At least one individual talked with Rush after he had been drinking in the basement. Contrary to Rush’s claim that “there was no indication that anything unusual was taking place in the home,” she admitted to police officers that she had seen beer cans in the house. Indeed, the police officers discovered a number of empty beer cans and liquor bottles scattered in the basement. Moreover, Rush’s daughter was one of the juveniles who had been drinking that evening, and the evidence showed that she had talked with Rush during the course of the evening.

Although the evidence may not have established that Rush actually supplied the juveniles with alcohol, the trial court could have reasonably inferred that Rush knew that the minors were drinking in her basement when considering the amount of alcohol that was in the house and the number of individuals who were coming and going from the residence. Moreover, it was reasonable for the trial court to conclude that Rush aided the minors in permitting them to consume alcohol in her home. As a result, we affirm Rush’s conviction for contributing to the delinquency of a minor.

NFP civil opinions today (3):

Kevin Cardwell v. Patricia Grigsby (NFP) - "Appellant-respondent Kevin M. Cardwell appeals the trial court’s decree of adoption, pursuant to which Cardwell’s daughter Amber—with whom he had had no contact for twelve years—was adopted by appellee-petitioner Patricia A. Grigsby, who essentially raised Amber, and Cardwell’s parental rights were terminated. Initially, we observe that Amber became eighteen years old on November 22, 2007. Because no parental consent is required for adoption of a person who has attained the age of eighteen, Ind. Code § 31-19-9-1, and it is undisputed that Amber wants to be adopted by Grigsby, this case is moot. Matter of Lawrance, 579 N.E.2d 32, 37 (Ind. 1991) (noting that a case is deemed moot when no effective relief can be rendered to the parties before the court)."

Alan D. Reed v. Employee Plans, LLC (NFP) - "Appellant-plaintiff Alan D. Reed appeals the trial court’s order granting summary judgment in favor of appellee-defendant Employee Plans, LLC (Employee Plans), on Reed’s complaint against Employee Plans for breach of contract. Reed argues that the trial court should have concluded that he is entitled to commissions for the period of time beginning with the termination of his employment as an insurance brokerage agent and ending with the provision of a written notice of termination by Employee Plans of the parties’ contract. Finding that the trial court’s summary judgment order was proper, we affirm."

Robert Nesbitt v. Katie Jackel (NFP) - "Appellant-plaintiff Robert Nesbitt appeals the trial court’s grant of summary judgment in favor of appellee-defendant Katie Jackel regarding his legal malpractice claim against Jackel. Specifically, Nesbitt argues that the trial court abused its discretion in striking his expert witness’s affidavit regarding the standard of care of an estate planning attorney. Moreover, Nesbitt argues that the grant of summary judgment was erroneous because a genuine issue of material fact existed as to whether Jackel committed legal malpractice in drafting Nesbitt’s estate planning documents. Concluding that the trial court properly struck the expert witness’s affidavit and properly granted summary judgment for Jackel, we affirm."

NFP criminal opinions today (9):

Pedro Ramos v. State of Indiana (NFP)

Jimmy E. Morris v. State of Indiana (NFP)

Kelvin Shermon v. State of Indiana (NFP)

Paul F. Holcomb v. State of Indiana (NFP)

Robert Louis Ramsey v. State of Indiana (NFP)

Robert F. Futrell v. State of Indiana (NFP)

Sollie A. Nance v. State of Indiana (NFP)

Edward A. Spencer V. State of Indiana (NFP)

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

Posted by Marcia Oddi on Tuesday, February 19, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today

In Kentuckiana Healthcare v. Fourth Street Solutions (SD Ind., Judge Hamilton), a 7-page opinion, Judge Posner affirms the district court decision:

After the substitution of Fourth Street Solutions for Kentuckiana, Scott County Nursing & Wellness Center (SCNW) continued for a time to receive Medicare and Medicaid reimbursements for services that Kentuckiana had performed when it managed the health care facility. (Kentuckiana had been deemed the provider of the services and so had billed the government directly for them.) But SCNW failed to forward the reimbursements to Kentuckiana, which brought this suit to recover them. Initially it named SCNW as a defendant, but SCNW declared bankruptcy and Kentuckiana was unable to obtain any money from the bankrupt estate. It contends that the remaining defendants converted that reimbursement money and must therefore make Kentuckiana’s loss good. The district court granted summary judgment for the defendants. * * *

[T]here is a difference between a duty to render property in your control to one whom you know to be the true owner entitled to immediate possession, even if you are an agent of someone else, and a duty to assist in the return to the true owner of property that is not in your control. The Medicare and Medicaid reimbursements that Kentuckiana should have received were paid to SCNW and deposited in its bank accounts. Because Dugan and Ross had signing authority, they could have written a check to Kentuckiana. But they were not the recipients of the reimbursements. SCNW was. You do not convert someone’s property by failing to save it, unless you have a duty to do so; there is no general liability for failing to be a Good Samaritan even when you could save a person’s life at no risk or other cost to yourself. * * *

So the conversion claim fails, and while Kentuckiana also argues that the defendants should be treated as constructive trustees of the reimbursements, that they breached fiduciary duties to it, and that they were negligent in failing to transfer the reimbursements to it, it admits that these alternative formulations of its claim are all premised on the assumption that the reimbursements were property of Kentuckiana that the defendants controlled. They were property of Kentuckiana, all right, but the defendants did not control it, and so these claims fall with the conversion claim. AFFIRMED

Posted by Marcia Oddi on Tuesday, February 19, 2008
Posted to Indiana Courts

Environment - Yet more on "Great Lakes Compact on track"[Updated]

Updating this ILB entry from Feb. 13th, an AP story carried by the Chesterton Tribune and a number of out-of-state papers reported yesterday, in a story that begins:

TRAVERSE CITY, Mich. (AP) — An interstate water compact designed to prevent thirsty regions from tapping the Great Lakes could be sunk if legislators seeking changes in Ohio and Wisconsin are successful, supporters of the deal said Friday.

Influential lawmakers in both states are proposing last-minute revisions that critics say might unravel the pact, crafted by governors of the eight Great Lakes states in grueling negotiations that lasted nearly five years.

“They say they’re making minor changes, but in fact they’re blowing up the agreement,” said Noah Hall, a Wayne State University law professor who advised the governors.

The compact is being sharply debated in Ohio, where some fear it would erode landowners’ water use rights, and in Wisconsin, where critics say it unfairly would prevent communities just outside the drainage basin from using the Great Lakes.

The pact, signed by the governors in 2005, needs approval from all eight legislatures and Congress to take effect. Supporters fear prospects will be less favorable if ratification is delayed until after the 2010 census, which will give Southern and Western states more seats in the U.S. House.

Indiana Gov. Mitch Daniels intends to sign a Great Lakes Compact bill passed by the Indiana General Assembly this year. Daniels spokeswoman Jane Jankowski said that as drafted, it is a great achievement that brought industry and environmental groups together to protect the Great Lakes.

Minnesota and Illinois have endorsed the deal. Lawmakers in New York have passed ratification bills, which await their governors’ signatures. Bills have cleared the Pennsylvania House and await floor votes in the Michigan House and Senate, where they have strong support.

It would prohibit removing water from the basin, except within counties or communities that straddle the boundary line. It would require each state to regulate water use and develop conservation programs.

Backers say it would help the region fight off attempts to ship or pipe water to dry areas.

Any substantive changes would need approval of all the states, which could mean reopening negotiations.

Resuming bargaining would “do little but open a can of worms,” said Chuck Ardo, spokesman for Pennsylvania Gov. Ed Rendell.

“If any state does anything different than the other states, then it’s basically dead,” said Rep. Tom Huntley, who sponsored the compact in Minnesota.

[More] Here is a story today in the Chicago Tribune by James Janega headlined "Plan to protect Great Lakes water hitting a snag." It begins:
Two Great Lakes states have balked at an agreement that would keep outsiders from siphoning off the lakes' water, raising fears that the long-sought water plan could be in danger.

Proponents tried Monday to regain momentum for the water-use agreement, the Great Lakes-St. Lawrence River Basin Water Resources Compact.

Unless the eight U.S. states and two Canadian provinces abutting the lakes unanimously enact the agreement, it will be non-binding. The pact also needs to be approved by the U.S. and Canada governments.

Posted by Marcia Oddi on Tuesday, February 19, 2008
Posted to Environment

Courts - More on: The plot of John Grisham's latest novel may have already come to life in W. Va.

A quote from NPR in this Feb. 11th ILB entry about the West Virginia Supreme Court:

Three of the five state Supreme Court justices have been asked to recuse themselves from rehearing a case in March involving one of the biggest businessmen in the state, Don Blankenship of Massey Coal. Two of the justices have ties to him, and the third has publicly criticized the businessman.
Chief Justice Elliott "Spike" Maynard recused himself last month, after vacation photos surfaced of him in Monaco in 2006 with Massey's CEO, Blankenship. Today Lawrence Messina of the AP reports that a second justice has resigned, one who criticized the Chief Justice's relationship with Blankenship. Today's story begins:
West Virginia Supreme Court Justice Larry Starcher withdrew Friday from hearing an appeal by Massey Energy Co. in a case involving a multimillion-dollar judgment against the company in a coal contract dispute.

It was the latest twist in the case that has seen the chief justice recuse himself after photos surfaced of him in Monaco with Massey's CEO.

Starcher also called on a third member of the five-member court, Justice Brent Benjamin, to recuse himself. Starcher cited the multimillion-dollar campaign bankrolled by Don Blankenship, Massey's president, chairman and chief executive, to help Benjamin get elected in 2004.

As acting chief justice, Benjamin appointed Marion County Circuit Judge Fred Fox to replace Starcher but did not otherwise respond to Starcher's statement.

Massey had repeatedly sought Starcher's recusal over his public comments critical of Massey, Blankenship and his 2004 campaign. Among other remarks, Starcher has called Blankenship a "clown" and said that "Massey has not been a good corporate citizen."

On Friday, Starcher acknowledged "a reasonable appearance of impropriety" exists but called the allegations from Blankenship and his allies "the height of irony."

Starcher's statement invoked the 2006 vacation photos showing Blankenship in Monaco with Chief Justice Elliott "Spike" Maynard. The pictures precipitated Maynard's exit from the case last month.

"The pernicious effects of Mr. Blankenship's bestowal of his personal wealth, political tactics and 'friendship' have created a cancer in the affairs of this Court," Starcher wrote.

Posted by Marcia Oddi on Tuesday, February 19, 2008
Posted to Courts in general

Monday, February 18, 2008

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Awilda Gonzalez v. Wal-Mart , a 10-page opinion, Chief Judge Baker writes:

Awilda Gonzalez and Antonio Laguna married in 1987 but eventually separated and maintained different residences. Two months after starting a new job, Antonio died as the result of a work-related injury. Awilda applied for benefits pursuant to the Worker’s Compensation Act (WCA),1 which requires the spouses to have been living together at the time of the decedent spouse’s death or, alternatively, for the spouse to have been totally or partially dependent on the decedent spouse to collect benefits. After examining the record, we find that the Worker’s Compensation Board (the Board) did not err by concluding that Awilda is not entitled to compensation because she was not living with her husband at the time of his death and there was contradictory evidence regarding his alleged financial support.

Appellant-claimant Awilda appeals the decision of the Board denying her application for benefits pursuant to the WCA. Specifically, Awilda argues that she is entitled to benefits because the Board erred by concluding that she is not a presumptive dependent pursuant to Indiana Code section 22-3-3-19 or, alternatively, a dependent in fact pursuant to Indiana Code section 22-3-3-20. Concluding that Awilda is neither a presumptive dependent nor a dependent in fact, we affirm the decision of the Board.

In J.S. v. State of Indiana , a 7-page opinion, Chief Judge Baker writes:
Today we address for the first time whether a juvenile court abused its discretion by placing a delinquent juvenile who was in the United States illegally with the Department of Correction (DOC) instead of returning him to his native country. Appellant-respondent J.S. appeals his placement with the DOC following the juvenile court’s true finding that he committed an act that would constitute class A felony dealing in a schedule I controlled substance within 1,000 feet of a school had it been committed by an adult. Specifically, J.S.—a Mexican national who was within the United States illegally—contends that the juvenile court abused its discretion by placing him with the DOC instead of returning him to Mexico. Concluding that the juvenile court did not abuse its discretion, we affirm. * * *

While J.S. asks us to reverse the juvenile court and order him returned to Mexico, we stress that he previously received that lenient penalty and, instead of leading a law abiding life in his own country, chose to illegally reenter the United States within one month. Given the serious nature of J.S.’s drug-related offense, the likelihood that he will reoffend, and the juvenile court’s determination regarding his best interests, we do not find that the juvenile court abused its discretion by placing J.S. with the DOC.

NFP civil opinions today (2):

Term. of the Parent-Child Rel. of S.M., C.S., and Debra Murr v. Vigo County Dept. of Child Services (NFP) - Termination, affirmed.

Delbert R. Parham v. Shari L. Parham (NFP) - "Appellant-petitioner Delbert R. Parham appeals the trial court’s order denying his objection to the submission of a qualified domestic relations order (QDRO), which set over a portion of his early retirement benefits to his former spouse, appellee-respondent Shari L. Parham. Specifically, Delbert claims that the award was an abuse of discretion because he had no interest in those benefits and they had not vested prior to the dissolution of the parties’ marriage. Finding no error, we affirm the judgment of the trial court."

NFP criminal opinions today (3):

Jimmie L. Jones v. State of Indiana (NFP)

Amber E. Layne v. State of Indiana (NFP)

David Hoeft v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, February 18, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - A Marion County public defender caught in child solicitation sting

Vic Ryckaert of the Indianapolis Star reports today:

A man who works as a Marion County public defender was arrested Sunday for allegedly soliciting an underage girl he met over the Internet.

Ryan Snyder, 29, 3700 block of Knickerboker Place, was arrested on initial charges of dissemination of matter harmful to a child and child solicitation after police say he used the Internet to set up a sexual encounter with a detective posing as a 15-year-old girl, according to a police report.

Snyder also sent the undercover officer an explicit photo of male genitalia, police said.

Indiana Supreme Court records show Snyder earned his law license in 2005 and currently works for the Marion County Public Defender's Office.

The arrest was part of a sting conducted by the Indianapolis Metropolitan Police Department's vice unit.

Posted by Marcia Oddi on Monday, February 18, 2008
Posted to Indiana Courts

Environment - More on: "EPA's mercury rule struck down"

Updating this lengthy ILB entry from Feb. 10th, Mark Wilson of the Evansville C&P reports today:

Environmental organizations disappointed by the mercury emission limits adopted by Indiana last year are hopeful a federal court's decision to strike down the U.S. Environmental Protection Agency's mercury rules could cause Indiana to reconsider. But state officials say it is too early to tell. * * *

Janet McCabe, former head of the Indiana Department of Environmental Management's Office of Air Quality and now executive director of the nonprofit Improving Kids' Environment: ... "Even when the EPA rule was out there, we were advocating for a stronger rule (in Indiana) and I still strongly believe that we can have a more protective rule in Indiana," she said.

Indiana's rule requires a 66 percent cut in mercury emissions by 2018, the same minimum cuts in the federal Clean Air Mercury Rule that was struck down by the U.S. Circuit Court of Appeals for the District of Columbia last week. The three-judge panel ruled the EPA's 2005 mercury rule violated the Clean Air Act by exempting coal-burning power plants from the act's strictest requirements for cleaning up hazardous pollutants such as mercury. The judges also struck down the EPA's "cap and trade" program for reducing mercury emissions.

Because Indiana's reductions were based on that plan, which would have allowed companies exceeding the mercury limits to buy pollution credits from those that already met the limits, it was estimated that Indiana wouldn't meet the 66 percent goal until 2025. * * *

By contrast, the Hoosier Environmental Council had proposed cutting mercury emissions 90 percent by 2010.

On Tuesday, [Indra Frank, a physician serving on the Hoosier Environmental Council's board of directors] said that timeline is not possible anymore — the group's proposal was first made in 2004 — but that significant mercury reductions could still be achieved well before 2018.

Posted by Marcia Oddi on Monday, February 18, 2008
Posted to Environment

Environment - More on: Section 303(d) List of Impaired Waters up for public comment through end of January

Updating this ILB from Jan. 28th, Rick Callahan of the AP reports today in a long story that begins:

A shift in how Indiana compiles a federally mandated list of its polluted waterways has removed about 800 stretches of rivers and smaller streams from that list, leaving environmentalists worried that it could hamper watershed-restoration efforts.

State officials contend the new methodology has produced a more accurate picture of Indiana's "impaired" waterways, and will allow them to focus on cleaning up those most tainted with mercury, PCBs and other contaminants.

But environmentalists say Indiana's new approach is problematic because it has "de-listed" parts of streams simply because it doesn't have data on whether they are polluted.

Posted by Marcia Oddi on Monday, February 18, 2008
Posted to Environment

Ind. Law - Last Week in Review at the Indiana General Assembly

The Evansville Courier & Press' Bryan Corbin's review this Monday (usually seen on Sundays) of the past week in the General Assembly is headlined "Illegal immigration on Senate agenda."

Posted by Marcia Oddi on Monday, February 18, 2008
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Friday, Feb. 22nd:

9:00 AM - Indiana State University v. Review Bd. of Indiana Dep't of Workforce Dev. - After Indiana State University did not reappoint an assistant professor for the next academic year, the Review Board of the Indiana Department of Workforce Development determined the assistant professor was entitled to unemployment benefits. The Court of Appeals reversed. Indiana State Univ. v. Review Bd. of the Indiana Dep't of Workforce Dev., 868 N.E.2d 839 (Ind. Ct. App. 6/22/2007), reh'g denied, vacated. (See this 6/22/07 ILB entry - 6th case.) The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorneys for Indiana State Univ.; John Maley and Kristin Shedlock both of Indianapolis, IN. Attorneys for Review Board, et al.; Steve Carter, Thomas Fisher, Heather Hagan and Elizabeth Rogers all of Indianapolis, IN.

9:45 AM - Miller Brewing Co. v. Indiana Dep't of State Revenue - While this matter was before the Indiana Tax Court, Miller Brewing Company moved for summary judgment, arguing that the Department's position was barred by issue preclusion. The Tax Court denied Miller's motion for summary judgment. The Tax Court certified the interlocutory order for review by the Supreme Court, and the Supreme Court granted Miller's subsequent petition for review of the Tax Court's interlocutory order pursuant to Indiana, Appellate Rule 63(F), (now Appellate Rule 63(H)). Attorneys for Miller Brewing Co.; Stephen Paul, Jon Laramore and Brent Auberry all of Indianapolis, IN. Attorney for Indiana Dep't of State Rev.; Andrew Swain, John Snethen and Jess Reaganall of Indianapolis, IN.

Webcasts will be available here.

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

This Tuesday, Feb. 19th:

2:00 PM - Employee Benefit Managers, Inc. and Charles Belch vs. Indiana Department of Insurance - Employee Benefit Managers, Inc. of America ("EBM") manages the funding and administration of self-funded employee benefit plans for employer-clients. The Indiana Department of Insurance ("the Department") brought charges against EBM and its President, Charles Belch ("Belch") due to concerns of unfunded claims and misrepresentations to employer-clients. The parties executed an Agreed Entry on November 9, 2004 and the Department monitored compliance until it ultimately issued a Cease and Desist Order on February 17, 2006 revoking EBM's and Belch's insurance licenses. EBM sought judicial review and the Allen County Superior Court affirmed the Cease and Desist Order on February 12, 2007. EBM seeks review of the trial court's decision. The Scheduled Panel Members are: Judges Bailey, Robb and Crone. [Where: Indiana Supreme Court Courtroom]

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

None scheduled.

Posted by Marcia Oddi on Monday, February 18, 2008
Posted to Upcoming Oral Arguments

Sunday, February 17, 2008

Ind. Courts - Vigo court records to be destroyed

Howard Greninger of the Terre Haute Trib-Star, reports today:

Maintaining court records, as well as documents for other county government offices, can generate a lot of paper.

Currently, the county is leasing space at Sixth Street and Wabash Avenue to store those documents during an interior renovation of the county’s 19th-century limestone courthouse.

Officials with the Indiana Supreme Court Division of State Court Administration met Thursday with county officials to review what documents could be destroyed, based on required schedules. Some documents can be destroyed after five years or less.

“We have 561 filed cabinets at Sixth and Wabash and we can reduce that by 275 cabinets,” said Vigo County Commissioner David Decker.

Decker said he would like to get a retired judge or lawyer to serve as an observer to help the county oversee the removal of documents not required for storage and that can be destroyed.

If there are any questions about any documents, the observer can set aside the documents to determine if they can be destroyed, Decker said. The process would take about four months, he said.

Any records required to be kept for storage of 10 years or more will be moved to a county-owned building at 13th and Crawford streets, Decker said. That building is 60- by 135-feet and is divided into four sections, one of which can hold juvenile court documents, he said.

The county also would work to restart a scanning program to scan all new court documents to reduce paper files, he said.

Large, bound historical court documents are planned to be returned the County Courthouse on the fifth floor, Decker said, once the courthouse renovation is complete.

Last year the proposed destruction of some local court records led to a big brouhaha in Kentucky. Here are summaries of some of the ILB entries, in reverse order:
Courts - "Kentucky will retain all court records forever"

Updating this ILB entry from Feb. 28th and this one from March 7th, Andrew Wolfson and Jason Riley of the Louisville Courier Journal report today:Kentucky will retain all court records forever, the state's top court administrator said, addressing criticism after...

Posted in The Indiana Law Blog on April 14, 2007 12:28 PM

Courts - Still more on the upshot of: Kentucky Supreme Court carries out records purge

"Dispute over data destruction means records pile up at office" is the headline to this story by Jason Riley in today's Louisville Courier Journal. This photo tells it all. An ILB entry from Feb. 28th included this:A lengthy story today...

Posted in The Indiana Law Blog on March 7, 2007 08:48 AM

Courts - More on the upshot of: Kentucky Supreme Court carries out records purge

The outrage over the mass destruction of misdemeanor records in Kentucky's Jefferson County last year seemed to have abated in late January, judging from this Jan. 23rd ILB entry. But not so. A lengthy story today in the Louisville Courier...

Posted in The Indiana Law Blog on February 28, 2007 08:24 AM

Courts - The upshot on: Kentucky Supreme Court carries out records purge

Updating the story of the mass destruction of misdemeanor records in Kentucky's Jefferson County last year (for background, start with this Dec. 22 ILB entry), Jason Riley of the Louisville Courier Journal reports today in a story that begins:Jefferson County's...

Posted in The Indiana Law Blog on January 23, 2007 08:00 AM

Courts - Yet more on: Kentucky Supreme Court carries out records purge

Updating this ILB entry from Dec. 21st about the mass destruction of misdemeanor records in Kentucky's Jefferson County last month, carrried out by Kentucky the Administrative Office of the Courts, Andrew Wolfson of the Louisville Courier Journal reports today:Kentucky court...

Posted in The Indiana Law Blog on December 22, 2006 09:13 AM

Courts - More on: Kentucky Supreme Court carries out records purge

An ILB entry Dec. 16th quoted a report from the Louisville Courier Journal that began:State court officials have endangered the public and undercut the prosecution of spouse abusers and other offenders by destroying all misdemeanor records 5 years or older,...

Posted in The Indiana Law Blog on December 21, 2006 08:12 AM

Ind. Courts - More on: "Court - Kentucky Supreme Court carries out records purge - county judges and prosecutors irate"

In this entry last week on the records purge in Kentucky the ILB asked whether the same thing could happen here in Indiana. A knowledgeable source has written to say: "We will not be facing the same problems as prosecutors...

Posted in The Indiana Law Blog on December 18, 2006 09:26 AM

Court - Kentucky Supreme Court carries out records purge - county judges and prosecutors irate

An amazing story from the Louisville Courier Journal this morning, reported by Andrew Wolfson. Here is just the beginning of the long report:State court officials have endangered the public and undercut the prosecution of spouse abusers and other offenders by...

Posted in The Indiana Law Blog on December 16, 2006 09:35 AM

Posted by Marcia Oddi on Sunday, February 17, 2008
Posted to Indiana Courts

Ind. Courts - "Wilkes trial costs adding up"

Kate Braser of the Evansville C & P writes today:

Even with his trial and death penalty sentencing completed, the costs for defending triple murderer Daniel Ray Wilkes continue to mount for Vanderburgh County.

The price tag for the case was a topic of discussion during the County Council's recent personnel and finance meeting, when council members were asked to appropriate $175,000 toward paying for it.

During the meeting, Chief Public Defender Stephen Owens said he expects the total costs of the case to approach $500,000. But because the Indiana Public Defender Commission will reimburse up to half of the expenses, Vanderburgh County likely will end up paying only about $250,000, he said.

Owens said the request will cover defense costs for November and December plus a projected $25,000 in additional costs that led up to Wilkes' Jan. 25 sentencing. The automatic appeals that counties must pay for in death penalty cases are accounted for.

Owens said since the county's public defender agency was established, his office has handled one appellate appeal in a capital murder case, and it cost the county $60,000.

The bulk of the latest bill comes from the trial, which spanned two weeks in Jeffersonville, Ind., and required the county to pay for hotels, attorney and paralegal fees and the travel, lodging and services of expert witnesses. * * *

Paula Sites, assistant executive director of the Indiana Public Defender Council, previously has said the average defense cost for a death penalty case in Indiana is about $375,000. She said that accounts for expenses through trial.

Asked about the mounting bills for Wilkes' case a few months ago, Sites said it presented a perfect storm for staggering costs because of the timing and manner of the deaths of 38-year-old Donna Lee Claspell and daughters Avery Pike, 13, and Sydne Claspell, 8. She said the complicated crime scene required in-depth forensic research, and defense attorneys had to investigate Wilkes' mental health history and past drug use.

Vanderburgh County Prosecutor Stan Levco did not want to comment specifically on the Wilkes case, but said in general, he thinks death penalty costs are "out of hand."

Levco is part of a state committee that is looking into death penalty costs.

Some county prosecutors — such as Pike County Prosecutor Darrin McDonald — have sought other means of prosecution to avoid the expense of death penalty cases. McDonald cited expense as one reason he offered Nicholas Harbison life in prison without parole in exchange for Harbison pleading guilty to killing three people in 2006. Paula Sites, assistant executive director of the Indiana Public Defender Council, previously has said the average defense cost for a death penalty case in Indiana is about $375,000. She said that accounts for expenses through trial.

Asked about the mounting bills for Wilkes' case a few months ago, Sites said it presented a perfect storm for staggering costs because of the timing and manner of the deaths of 38-year-old Donna Lee Claspell and daughters Avery Pike, 13, and Sydne Claspell, 8. She said the complicated crime scene required in-depth forensic research, and defense attorneys had to investigate Wilkes' mental health history and past drug use.

Vanderburgh County Prosecutor Stan Levco did not want to comment specifically on the Wilkes case, but said in general, he thinks death penalty costs are "out of hand."

Levco is part of a state committee that is looking into death penalty costs.

Some county prosecutors — such as Pike County Prosecutor Darrin McDonald — have sought other means of prosecution to avoid the expense of death penalty cases. McDonald cited expense as one reason he offered Nicholas Harbison life in prison without parole in exchange for Harbison pleading guilty to killing three people in 2006.

This June 16, 2007 ILB entry, quoting from a Fort Wayne Journal Gazette story about the costs of an Allen County trial, is headed "Rios trial costs ballooning: Court to request another $340,000 for murder case." The entry concludes with these comments:
The ILB has had a number of earlier entries of the costs of death penalty cases, including "Death penalty sends a state's legal costs soaring" from 11/5/06, "Cost of death penalty trial factored into Pike County decision" from 10/17/06, "Three trials in the Camm murder case have cost Floyd County taxpayers about $1.8 million" from 4/3/06.

The Camm retrial costs led to legislation: see these entries from 1/27/07 and 2/5/07. As reported in this 4/30/07 ILB entry, the new state budget does include language providing for "state reimbursement on new trial costs when the Indiana Court of Appeals or Indiana Supreme Court calls for a new trial."

Posted by Marcia Oddi on Sunday, February 17, 2008
Posted to Indiana Courts

Ind. Courts - Focus on party slates for Marion County judicial primary

Gary Welsh of Advance Indiana, in an entry headed "GOP Dumps Three Sitting Judges In Slating," today looks at the judicial candidates the two parties slated this weekend for the May primary.

For more information on the Marion County candidates, see the Indianapolis Bar Association's Judicial Excellence Political Action Committee website, which presents a full page on each candidate.

Posted by Marcia Oddi on Sunday, February 17, 2008
Posted to Indiana Courts

Ind. Gov't. - "State lax in curbing homestead-credit abuse"

Benjamin Lanka of the Fort Wayne Journal Gazette has a long and comprehensive article today on problems with preventing abuse of the homestead exemption. A few quotes:

Indiana’s homestead credit lowers homeowners’ tax bills in an effort to keep them from being taxed out of their homes.

The credit already halves many homeowners’ bills, and it would become even more valuable under Gov. Mitch Daniels’ plan to further reduce property taxes.

Yet a steady increase in the tax exemption’s value hasn’t been met with an equal effort to prevent the system from being abused.

The exemption is supposed to apply only on primary residences, but Indiana relies on little more than the honor system to keep people from taking the credit on other property. * * *

Daniels said he hadn’t heard concerns about the exemption system but that people should be kept from violating the rules.

“I would support measures to make certain the law isn’t abused,” the governor said.

But county officials said they have had difficulty working with the state on the problem. Bill Borne, Adams County auditor, said that county enforcement efforts have even been curtailed by the state.

Some auditors asked for Indiana voter identification or driver’s license to grant the exemption, but Borne said some legislators complained about the tactics, saying the exemptions should be easier to get.

“It’s a different philosophy. ‘If you file, you have to just give it to them when they come in,’ ” he said. “That’s not fair.” * * *

Steuben County’s Coleman said that even questions about what constitutes a legitimate homestead credit go unanswered at the state level. For example, some married couples ask whether a husband can claim a property in Allen County and the wife can get another exemption on their lake home in Steuben.

GiaQuinta said married couples shouldn’t get two exemptions, but Coleman said the state department of local government finance simply tells her to ask the county attorney.

Decisions at the county level would create a patchwork of regulations that could pit counties against one another, Coleman said. It would be more appropriate to have statewide guidelines for giving the credits, processes for catching fraud and penalties for those cheating the system.

Posted by Marcia Oddi on Sunday, February 17, 2008
Posted to Indiana Government

Ind. Courts - Reports on bills of interest to the Judiciary that were discussed last week

Last Friday, Feb. 15th, the Indiana Judicial Center posted the seventh installment of its very useful reports for 2008 on bills of interest to the judiciary. Access them here. Friday's report begins:

There were several bills of interest heard this week, which are summarized below. We are nearing the end of committee hearings for this session. The last day for third readings in the House is Wednesday, February 27th, and Thursday, February 28th in the Senate.

Posted by Marcia Oddi on Sunday, February 17, 2008
Posted to Indiana Courts

Saturday, February 16, 2008

Courts - "Sex, Lies, Hostility in the Florida Appellate Court"

Scott Michels of ABC News has this pretty astonishing story that begins:

A written opinion by a state appellate court judge in Florida that criticized one of his fellow judges has spiraled into a rare public airing of personal grievances between some of the state's top judges, accusations of sexual affairs, as well as misconduct and perjury allegations by the state judicial ethics panel.

The misconduct case, as told through the depositions of several judges on Florida's First District Court of Appeal, provides an uncommon look at the inner workings of an appellate court, whose deliberations are normally shielded from public view.

Judges in the First District have accused each other of lying, of having an affair with a court clerk and of threatening each other. Judge Michael Allen, the author of the opinion that set the case into motion, has been charged with conduct unbecoming a judge and may face charges for making false statements under oath.

Judge Charles Kahn, who was criticized in Allen's opinion, was described by his colleagues as acting, at times, "volatile," "irrational" and "schizoid." At one point, after Kahn signed up for a concealed weapons training class, the marshal in charge of court security testified that he put a lock on the door to the judges' robing room to stop Kahn from getting into a retirement party.

"He didn't seem to be as stable as I — it was scary," Donald Brannon, the marshal, said in his deposition.

Howard Bashman of How Appealing has links to more stories and documents.

Posted by Marcia Oddi on Saturday, February 16, 2008
Posted to Courts in general

Ind. Decisions - Yet more on: All is not over in the Clerk County probation fees dispute

This ILB entry from 1/9/08 reported that, now that the motion to reconsider had been denied, both the Council and the judges hoped that the dispute could be quickly settled.

Today Ben Zion Hershberg of the LCJ reports, under the headline "Clark County, courts settle probation-fee dispute":

The Clark County Council agreed yesterday to pay $850,000 to the county's courts to settle a long-running dispute over who has authority to decide how fees paid to the courts by probationers can be spent.

The council also must pay an estimated $250,000 in legal fees for both sides in the dispute. The money will come from the county's Rainy Day Fund and a legal defense fund established for the case, Councilman Chuck Moore said.

Moore said he was pleased to have the issue resolved after more than three years of wrangling over a lawsuit that reached the Indiana Supreme Court.

"I'm glad it's behind us," said Council President David Abbott.

Superior Court Judge Steven Fleece, in a statement, said the judges also were glad to have the matter settled and "look forward to a cooperative relationship in the future."

Facing a budget crisis in 2004, the County Council started covering court costs that had been paid from the county's general fund with much of the $500,000 paid to the courts each year by people on probation.

The judges argued that state law gave the courts authority over probation fees and said the money could be used only to supplement probation services.

The judges sued the council over the issue in June 2005.

In February 2006, Special Judge Elaine Brown [*] ruled that the judges were right and ordered the council to reimburse hundreds of thousands of dollars that she said had been appropriated improperly.

The council appealed Brown's ruling to the Indiana Supreme Court, but in September the court issued a unanimous decision in favor of the judges.

The council then asked the Supreme Court to review its decision, saying that such a ruling could be disruptive to counties that might be in similar situations by requiring large repayments to their courts.

The Supreme Court denied the council's reconsideration request in January, and since then the council and judges have waited for a financial analysis to determine how much was owed. * * *

Accounting firm McCauley Nicolas & Co. calculated the reimbursement owed by the county at $991,839, Fleece said in a statement.

But he said the judges agreed to settle for $850,000 to conclude the case and save the county additional legal fees.

"The longer this thing went on, the more it ended up costing," Fleece said.

Much of the repayment -- $633,161 -- will go to Superior Court 3, Fleece's court, which had accumulated the largest amount of probation user fees. Clark Circuit Court will receive $55,880; Superior Court 1, $11,253; and Superior Court 2, $149,706.

"We will now use these probation user fees to improve programs intended to rehabilitate offenders," Fleece said, including drug court, community service, work release and special services for mentally ill offenders.

Here is a list of earlier ILB entries on the probation fees issue.
___________
*In an unrelated story, yesterday, Feb. 15, Judge Brown was named to the Court of Appeals by Gov. Daniels. See ILB entry here.

Posted by Marcia Oddi on Saturday, February 16, 2008
Posted to Ind. Sup.Ct. Decisions

Friday, February 15, 2008

Courts - A St. Louis Ram, others, sue New England Patriots and coach for "fraudulent videotaping"

See this posting from the WSJ Law Blog, including a link to the complaint, filed in federal court in Louisiana.

Posted by Marcia Oddi on Friday, February 15, 2008
Posted to Courts in general

Ind. Decisions - No transfer list for week of Feb. 15th, 2008

No transfer list was issued by the Supreme Court for the week ending February 15, 2008

Posted by Marcia Oddi on Friday, February 15, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - State loses auto-dialer case in trial court

From a press release today by Attorney General Steve Carter:

Indiana Attorney General Steve Carter will appeal a ruling issued this week in Harrison Circuit Court that dismisses a lawsuit to enforce Indiana’s Automated Dialing Law against American Family Voices (AFV).

“Until all appeals are resolved, companies make political robo-calls at their peril,” Carter said. “We will continue to enforce the law to protect citizens from unwanted and illegal practices.”

Carter filed a lawsuit in September, 2006 against AFV and had sought an injunction after receiving complaints about automated calls being made by the organization that did not provide the required live operator to obtain the recipient’s permission to play the pre-recorded message. AFV is one of nine companies the state has filed suit against or reached a court-ordered agreement with for alleged violations of federal or state statutes regulating automated and pre-recorded calls since 2004.

Special Judge Blanton (Orange Circuit Court) issued a ruling from the bench today ordering the dismissal of the case against AFV stating that the automated dialing statute was limited to commercial calls. The attorney general has argued that the statute is broader and applies to both commercial and political calls such as those made by AFV. A final written order is expected to be forthcoming.

Last September, Carter prevailed in a federal lawsuit challenging the enforcement of the automated dialing statute against political calls by FreeEats, one named defendant Carter is suing in Brown County court for also making illegal, prerecorded calls. * * *

Indiana’s “Automatic Dialing Machine” statute [IC 24-5-14-5] specifically states:

Sec. 5. (b) A caller may not use or connect to a telephone line an automatic dialing-announcing device unless:
(1) the subscriber has knowingly or voluntarily requested, consented to, permitted, or authorized receipt of the message; or
(2) the message is immediately preceded by a live operator who obtains the subscriber's consent before the message is delivered.
See ILB entries about the 7th Circuit decision here.

Posted by Marcia Oddi on Friday, February 15, 2008
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In Andrew Reinhardt v. State of Indiana, a 7-page opinion, Sr. Judge Sullivan writes:

Andrew Reinhardt (Reinhardt) was charged with Dealing Cocaine as a Class A felony alleging that he “did knowingly deliver cocaine to a confidential informant in an amount greater than three (3) grams.” Appellant’s App. at 10. (Emphasis Supplied). The evidence reflected that Reinhardt delivered cocaine to John May who in turn, and not in Reinhardt’s presence, delivered the cocaine to a confidential informant.

It is Reinhardt’s appellate contention that there is a fatal variance between the charge and the evidence in that he did not deliver the cocaine to the confidential informant. As a corollary, he also argues that the variance constitutes fundamental error and therefore the issue was not waived by failure of counsel to object at trial. * * *

He was therefore aware that May would implicate the defendant in the matter of delivery and even at the eleventh hour prior to trial Reinhardt could have sought a continuance in order to revise his defense. He did not do so. We therefore conclude that the defendant was not harmed or prejudiced in the preparation and maintenance of his defense so as to dictate reversal. In point of fact, at trial May did testify, as indicated, to the effect that Reinhardt provided the cocaine which May in turn delivered to the confidential informant. * * *

We hold that it is of no moment that Reinhardt did not know the identity of the person to whom May intended to and did deliver the cocaine. It is enough that pursuant to agreement May met Reinhardt at a gas station in order to accept delivery from Reinhardt of a substantial quantity of cocaine to then be delivered to the confidential informant. May had either already paid the $400 buy-money from the confidential informant to Reinhardt or paid it to Reinhardt at the time of the transfer of the drugs.

The judgment of conviction for Dealing in Cocaine is affirmed.

NFP civil opinions today (1):

In Shirley Ann Minks v. Glenn Douglas Minks (NFP), a 9-page opinion, Judge Bradford writes:

Appellant-Respondent Shirley Ann Minks (“Wife”) appeals from the trial court’s order on remand, alleging the trial court abused its discretion by ordering an unequal division of the retirement benefits of her former husband, Glenn Douglas Minks (“Husband”). Because we conclude that the trial court’s order on remand ran counter to the instructions in this court’s first decision in this case, we reverse and remand with instructions. * * *

Our prior conclusions that an equal division was justified by the evidence and the trial court’s unequal division was insufficiently justified by its findings (along with our observation that an unequal division would penalize Wife) demonstrate that our intent in our prior decision was to remand for the entry of an equal division of the marital estate, including Husband’s retirement benefits. Quite simply, any other disposition would be inconsistent with the reasoning we employed. Because we see no reason to revisit that earlier decision, it is the law of the case, and we consequently reverse and remand with instructions to order a present equal division of Husband’s retirement benefits without regard to Wife’s employment status. In addition, the order issued will also provide that, when Wife does retire, she and Husband will each receive an equal share of the sum of their retirement benefits.

We reverse the judgment of the trial court and remand with instructions.

DARDEN, J., concurs.

BAKER, J., concurring with separate opinion. [which reads] I agree that we are compelled by the result of the prior appeal of this matter to reverse and remand. Unfortunately, it was incumbent upon the trial court to comply with that panel’s order to divide Husband’s pension equity between Husband and Wife. Were we permitted to review the merits of the decision reached following the first appeal of this matter, I note that I would likely reach a different conclusion than the one reached by that panel. Inasmuch as we may not engage in such a review, however, I am compelled to concur with the majority’s decision to reverse and remand.

NFP criminal opinions today (1):

James S. Furnifur v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, February 15, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Date for announcement of new COA judge approaching [Updated]

Updating this ILB entry from earlier this week, Gov. Daniels this morning announced his selection of Dubois Superior Court Judge Elaine Brown to succeed Judge John Sharpnack, who is retiring May 3, 2008 after nearly 17 years on the Court of Appeals.

The two other finalists were Dearborn Superior Court Judge Michael G. Witte and Evansville attorney Les Shively.

Judge Brown will become the fifth female jurist on the 15-member Court of Appeals. The 5-member Indiana Supreme Court has no women justices.

[Updated 11:45 AM] Here are details from the Governor's press release:

This is the governor’s second appointment to the Court of Appeals. He named the Honorable Cale Bradford to the court last June.

"The committee provided me with another superb group of nominees. The decisive factor, for a court that principally hears criminal cases, is that Elaine is a proven law and order judge with a long record of firmness in sentencing and sensitivity to victims’ rights," said Daniels. * * *

Brown, 54, of Jasper, has served three terms as Dubois Superior Court judge. She was elected in 2004 and began her current term January 1, 2005; Brown had served in the same capacity from 1987 to 1998, but did not seek re-election at the time to live and work in Evansville. In 2005, Brown started the Dubois County Drug court, an 18-month program of intensive treatment and supervision for drug addicts and alcoholics. She followed that program by initiating the Dubois Superior Court Alcohol and Drug Program last year, which assesses and refers for treatment many defendants convicted of crimes involving substance abuse. Brown also is the president of the Dubois County Substance Abuse Council and is on the Dubois County Community Corrections Advisory Board.

Brown was the special judge appointed by the Indiana Supreme Court in 2007 for a case that determined the roles of county councils and trial courts in the appropriation and spending of users fees collected from individuals put on probation. This decision gave clarity to all judges and county fiscal bodies.

From 1999 to 2002, she was a senior member of the law firm Fine & Hatfield, in Evansville. Brown owned her own firm from 2002 to 2004, where she handled insurance, defense, construction litigation, personal injury law, family law, criminal law, wills and estates.

Brown, a Ferdinand native, earned her undergraduate and law degrees from Indiana University.

The Governor's office has provided this photo of Judge Brown.

Posted by Marcia Oddi on Friday, February 15, 2008
Posted to Indiana Courts

Ind. Courts - More on: "Ind. hunting preserve case in court today"

Updating this ILB entry from yesterday, Grace Schneider of the Louisville Courier Journal reports today:

A legal battle between Indiana and 10 high-fence hunting preserve owners in the state will continue under a ruling issued yesterday by a judge in Harrison County.

Circuit Judge H. Lloyd "Tad" Whitis dismissed a motion by the Indiana Department of Natural Resources seeking to reject the hunting operators' request that the court enforce a tentative settlement reached last year between the parties.

Whitis also gave the state 30 days to produce evidence that preserve owners said Indiana officials have refused to provide -- evidence the owners say includes details of the negotiations.

The rulings, coming at the close of a hearing in Corydon, were praised by preserve owners as a small but important victory in a potentially lengthy legal battle to stay in business for a few more years. * * *

When the parties return to court, the arguments will center on whether the state – which is under a preliminary injunction not to enforce any new rules until the case is resolved -- has to stand by the tentative agreement.

If Whitis agrees that the state must accept the deal, it's likely the state will appeal.

"I don't expect this to be over for years," [Rodney Bruce, the owner of the 120-acre Whitetail Bluff preserve west of Corydon] said yesterday as he left the courtroom. "The state's just trying to bankrupt us. They know we don't have as much money as they do."

In court yesterday, [a lawyer for the state, Tim DeLaney] said an agency like the Department of Natural Resources cannot bind the state of Indiana to a contract that runs counter to state law.

He said unidentified officials in the "executive branch" decided not to proceed with the agreement with the preserve owners. He said the agreement can't be deemed enforceable because it needed to be in writing and signed by Gov. Mitch Daniels or Attorney General Steve Carter.

But William Moyer of New Albany, the preserve owners' lawyer, said the sides had "in essence culminated an agreement" from which the state now is trying to withdraw.

Whitis appeared at times impatient with the state's arguments.

The judge said department officials first told Bruce he could open the preserve and later changed their minds. Then, the state backed away from a tentative settlement, he said.

"This pretty much is the standard course for the DNR," Whitis said.

Posted by Marcia Oddi on Friday, February 15, 2008
Posted to Indiana Courts

Ind. Courts - "Judge Brugnaux discusses her role in Courtenay Scott’s 2004 plea bargain"

Looking back, the ILB has had a number of entries referencing Vigo Judge Judge Barbara L. Brugnaux. Here is a list.

Now, in a lengthy story dated Feb. 14th, Howard Greninger reports in the Terre Haute Trib-Star:

A Vigo County judge has mailed 7,000 letters to Democrat voters to clarify her decision to accept a plea agreement in a contentious reckless homicide case in 2004.

Previously, Judge Barbara L. Brugnaux was prohibited by judicial ethics from speaking about the case of Courtenay Scott, a former day-care owner who pleaded guilty to felony reckless homicide of 2-year-old Alexis Williams, who died May 22, 2002 while under Scott’s care.

A grand jury had indicted (charged) Scott, alleging she recklessly killed Williams by holding the toddler down during a nap.

Brugnaux is seeking a third term as judge of Vigo County Superior Court Division 5, where she has filed as a Democrat candidate for the May 6 primary election.

She sent a draft of the letter to the Indiana Disciplinary Commission before Wednesday’s mass mailing.

At the time of the sentencing hearing in February 2004, some people questioned why Brugnaux accepted a plea agreement that allowed for no jail time for Scott, instead of sending the case to trial, even as John Williams, father of Alexis Williams, asked the agreement be rejected and the case moved to trial.

“It is the prosecutor’s duty to analyze the case, the anticipated testimony and make a decision to reach a plea agreement or take a case to trial. It is a judge’s duty to review the terms of that agreement and accept that agreement if it complies with the law,” Brugnaux said in her letter and in an interview Thursday.

“As I said at the [court] hearing, this one did. At the time, a suspended sentence was allowable [for the reckless homicide charge]. Special prosecutor [Stan] Levco determined that his case was not strong enough to take before a jury,” she said in the interview.

A state law was changed in 2005, on a House bill from Reps. Clyde Kersey, D-Terre Haute, and Vern Tincher, D-Riley, to create a nonsuspendible class-C felony charge for a child-care provider who commits involuntary manslaughter. * * *

“I could have rejected the plea agreement, but it is the prosecutor’s responsibility to know their case and the judge’s responsibility to look at the law and the evidence in this case,” Brugnaux said.

“It was a very difficult time. It was the hardest judicial decision I have ever made. First, we were dealing with the incredibly emotional issue of the death of a child, which was never out of my thoughts,” she said.

“This case was difficult from the very beginning, as Mr. Levco talked about at the sentencing, about the problems with the grand jury and evidentiary issues,” the judge said.

“Yes, there was the incredible outcry from the public. The public didn’t seem to understand that you have to have a conviction before you can get to sentencing. They assumed the defendant was guilty and immediately went to sentencing, and the [judicial] system doesn’t work that way,” Brugnaux said.

There is much more in the Trib. Star story. In addition, there is a second story, by Deb Kelly. Some quotes from that story:
Judicial candidates running against Judge Barbara Brugnaux for judge of Vigo Superior Court Division 5 each weighed in Thursday on the content of a letter sent Wednesday by the Brugnaux campaign that addresses the outcome of a contentious 2004 reckless homicide case.

The prosecutor in that case also responded to the letter. * * *

The judicial candidate who will face Brugnaux in the primary is Dr. Michael Rader, a Terre Haute attorney, who filed as a Democrat. Christopher J. Dailey, former City Court judge, and Daniel Kelly, a Terre Haute attorney, will face off in the GOP primary.

If Brugnaux wins the primary and general election, it will be her third term as judge of Vigo Superior Court Division 5.

Kelly, who read the letter Thursday afternoon, said he felt no need to comment, adding that he thought there was really nothing controversial about Brugnaux’s letter.

Dailey, 44, similarly chose not to respond to the content of Brugnaux’s letter, saying that because he was not involved in the case and does not know the special prosecutor in the case nor any member of the Williams family, he is not in a position to comment.

Rader, a public defender in Vigo County, said Thursday, “I think the public’s perception [regarding the Scott case] is that something was done that was wrong, or underhanded, or in some way just not right, and clearly those of us who know [Judge Brugnaux] know that’s not true.

“Barbara Brugnaux is a person of integrity, and she’s a hard-working judge and I think she did what she thought was right,” Rader added.

“I might have made a different decision, I might have handled it a different way,” he said, “but do I think what she did was wrong? No, I don’t. I don’t think she did anything wrong. I think she did what she thought was right at the time. All of us, with the benefit of hindsight, might have come up with a different answer,” he said.

Stanley Levco, who currently serves as the Vanderburgh County prosecutor, was the special prosecutor in the Scott case. Levco, during a phone interview Thursday, said, “I said at the time, and I will say again, that I didn’t make that [plea] deal without the parents’ approval. They approved it in advance, after I made it, and after they pre-approved it, they changed their minds.”

Posted by Marcia Oddi on Friday, February 15, 2008
Posted to Indiana Courts

Ind. Courts - Still more on "Judge admits he's target of criminal probe"

Updating this ILB entry from Feb. 9th, Rick Yencer of the Muncie Star-Press reports today in a story headlined "Judge Lennington relinquishes tax-sale jurisdiction." that begins:

MUNCIE -- Delaware County Circuit Court 5 Judge Wayne Lennington has relinquished jurisdiction over all cases related to tax sales, a week after acknowledging he was the target of a criminal investigation that involves his personal investments.

All five Delaware Circuit Court judges, including Lennington, signed an order Wednesday that transferred tax sale cases to the other four courts, and allowed the re-assignment of criminal cases from Lennington's court at Delaware County Prosecutor Mark McKinney's discretion.

Circuit Court 1 Judge Marianne Vorhees told The Star Press that Lennington and his fellow judges agreed to transfer tax sale cases to avoid any appearance of impropriety.
"We want to assure people that all the tax sale properties will be handled correctly," Vorhees said.

Lennington told The Star Press last week he was under investigation by McKinney's office and state police for investments he made in firm owned by an Ohio man the judge now calls a scam artist.

Vorhees said that Lennington's acknowledgment of the probe prompted the judges to take Wednesday's action, as well as to explore what would happen with criminal cases should the ongoing investigation result in any formal charges.

"We don't know what is going to happen," said Vorhees, who wanted to give [Prosecutor] McKinney the call on transferring any criminal cases out of Lennington's court.

McKinney declined to comment on the ongoing investigation, referring questions to Indiana Attorney General Steve Carter's office, which has declined to say whether it is investigating Lennington.

Chief Deputy Prosecutor Ron Henderson spoke to Lennington Thursday and indicated criminal cases would continue to be filed in Circuit Court 5.

"(McKinney) has not given me any different indication," Henderson said.

Posted by Marcia Oddi on Friday, February 15, 2008
Posted to Indiana Courts

Ind. Courts - U.S. Magistrate Judge William T. Lawrence nominated to succeed U.S. District Judge John Daniel Tinder in Indiana's Southern District

So reports the Indianapolis Star's Washington editor, Maureen Groppe in this story today.

Posted by Marcia Oddi on Friday, February 15, 2008
Posted to Indiana Courts

Thursday, February 14, 2008

Ind. Courts - Gov. Daniels names Marshall County Prosecutor as Circuit court judge

From Plymouth's WTCA:

Governor Mitch Daniels announced today that he has named Marshall County Prosecuting Attorney Curtis Palmer as Marshall County Circuit court judge. The appointment is effective March 1.

Palmer, a Plymouth native, has been with the prosecuting attorney’s office since 1985, first as deputy and since 1995, as prosecuting attorney. Before joining the prosecutor’s office, Palmer was with the law firm of Jones, Huff and Palmer in Plymouth for 10 years.

“He will be a tremendous judge and we’re thankful for his willingness to serve,” said Daniels, who made the announcement and introduced Palmer while he was traveling today in Plymouth.

Posted by Marcia Oddi on Thursday, February 14, 2008
Posted to Indiana Courts

Ind. Courts - "Ind. hunting preserve case in court today"

The most recent ILB entry is Jan. 28th.

From a LCJ news update posted at 12:14 PM today:

A judge in Harrison County will hear arguments this afternoon at 1:30 in a continuing legal battle between the state of Indiana and 10 Hoosier high-fence hunting preserves.

Harrison Circuit Judge H. Lloyd “Tad” Whitis is expected to consider whether the Indiana Department of Natural Resources should enforce a tentative settlement that would phase out the hunting operations in 10 years.

The state backed away from the proposed deal last spring after a round of negotiations with preserve owners.

Posted by Marcia Oddi on Thursday, February 14, 2008
Posted to Indiana Courts | Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 12 NFP)

For publication opinions today (1):

In Fredrick A. Zitlaw v. State of Indiana. a 20-page, 2-1 opinion, with the dissent beginning on p. 14, Judge Sharpnack writes:

Fredrick A. Zitlaw appeals the trial court’s denial of his motion to dismiss. Zitlaw raises three issues, which we consolidate and restate as whether the trial court abused its discretion by denying Zitlaw’s motion to dismiss his charge for performance harmful to minors as a class D felony. We affirm. * * *

FRIEDLANDER, J. concurs
RILEY, J. dissents with separate opinion [ which begins] I would reverse the trial court’s denial of Zitlaw’s motion to dismiss. The main reason for my divergence from the majority’s opinion is my interpretation that “an area to which minors have visual, auditory, or physical access,” as included in the definition of the crime of conducting performance harmful to minors, requires the actual presence of minors that can see, hear, or feel the performance. Ind. Code § 35-49-3-3(5). I also interpret the language of this subsection as requiring the State to prove, beyond a reasonable doubt, that the minors are unaccompanied by their parent or guardian. Thus, I would conclude that any information charging a person with engaging or conducting a performance harmful to minors must identify by allegation at least one minor who saw, heard, or felt the performance, and allege that the minors were unaccompanied by their parent or guardian.

NFP civil opinions today (7):

Matthew Spatig v. Kristy Broyles (NFP) - Protective order, affirmed.

In the Matter of Invol. Term. of Parent/Child Rel. of A.P., M.P., S.P. and Mary Palmero v. Marion Ctny. Dept. of Child Services and Child Advocates (NFP) - Termination, affirmed.

Gabriel Witt v. Robert Curry (NFP) - "Dismissal under Trial Rule 41(E) requires only a sixty-day period of inaction. Witt failed to take action in this case for over a year. Accordingly, we cannot say that the trial court abused its discretion when it dismissed Witt’s complaint. See Smith v. Harris, 861 N.E.2d 384, 387 (Ind. Ct. App. 2007) (holding that the trial court did not abuse its discretion by dismissing plaintiff’s case under Trial Rule 41(E) where plaintiff offered no good reason for his failure to prosecute his case diligently, bore the responsibility for the inactivity, and was prompted to act again only because of the threat of dismissal of his lawsuit), trans. denied."

Jennifer Newcomb v. Brian Newcomb (NFP) - "Mother has not overcome the strong presumption that the court considered and complied with the applicable statute when it determined the division to be just and reasonable."

In the Matter of C.J (4), A.J., V.D., and Elika Jackson and Carl Jackson Jr. v. Elkhart Office of Family and Children (NFP) - "In this consolidated appeal, Elika Jackson and Carl Jackson, Sr. (individually referred to as “Mother” and “Father” and collectively referred to as “Appellants”) appeal from the juvenile court’s determination that their minor children, Ca.J. III, C’l.J., Ca.J., A.J., Ch.J., and V.D. were Children in Need of Services (“CHINS”). Specifically, Mother and Father claim that the evidence is insufficient to support the CHINS determination. Concluding that the evidence is sufficient to support the CHINS determination, we affirm the judgment of the juvenile court."

Geraldine Furnish v. Charles E. Furnish (NFP) - "Geraldine Furnish appeals the trial court’s judgment regarding arrearages owed to her by Charles E. Furnish, Jr. Geraldine raises one issue, which we restate as whether the trial court abused its discretion by ordering Charles to pay a percentage of his net pension rather than a percentage of his gross pension. We affirm."

Sharon Immel v. Randy Immel (NFP) - "For the foregoing reasons, we affirm the trial court’s denial of Mother’s petition for modification of custody and petition for contempt."

NFP criminal opinions today (5):

Ronald Heiny v. State of Indiana (NFP)

Freddie L. McKnight, III v. State of Indiana (NFP)

Aundre Jackson v. State of Indiana (NFP)

Virgil Powell v. State of Indiana (NFP)

Welby Hendrickson v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, February 14, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Indiana Court Times, Jan/Feb 2008, is available online

The Indiana Courts website announces today that the 20-page Jan/Feb issue of Indiana Court Times is available online. The ILB, for one, was not aware that this publication existed. Access the current issue here.

The ILB will present some of the articles here, in an easier to read format, beginning with this one that starts at p. 14 of the current issue, titled "DOES A TRIAL COURT EVER MAINTAIN JURISDICTION WITH AN APPEAL PENDING?"

The Indiana Court of Appeals has found numerous instances of trial courts continuing to act in a case even when the Court of Appeals or the Supreme Court of Indiana has taken jurisdiction over an appeal in that case. This article will discuss the very limited circumstances under which the trial court may act while an appeal is pending and the consequences that follow from a trial court acting without jurisdiction due to a pending appeal.

When May a Trial Court Continue to Act?

Pursuant to Indiana Appellate Rule 8, appellate courts acquire jurisdiction over a matter when the Notice of Completion of Clerk’s Record (“NCR”) has been filed. See Ind. Appellate Rule 8. In previous versions of the Appellate Rules, the Court on Appeal acquired jurisdiction when the record of proceedings was filed.

Indiana’s appellate courts have had many opportunities to apply Appellate Rule 8 and its predecessors, and a standard has evolved. At times, Indiana’s appellate courts sharply circumscribed trial courts’ jurisdiction while appeals were pending. In one older case, the Indiana Supreme Court concluded that once the record of proceedings was filed, the trial court was deprived of “any further jurisdiction over the action.” See Bright v. State, 259 Ind. 495, 496, 289 N.E.2d 128, 129 (Ind. 1972) (emphasis added). [ILB note: If there was emphasis in this article, it was omitted in the Court's online publication.]

But more recently, a shift away from language barring any jurisdiction began with Donahue v. Watson, 413 N.E.2d 974 (Ind. Ct. App. 1980), reh’g den. In that case, a trial court had granted the appellees’ request for attorney’s fees after the record of proceedings had been filed for an appeal from the trial court’s judgment. See id. at 975. Although the Court of Appeals repeated the rule that once “appellate jurisdiction is acquired, the trial court is deprived of any further jurisdiction in the action,” the Court nevertheless concluded that the attorney’s fee issue was an “ancillary matter” that the trial court had impliedly reserved to be addressed after the entry of judgment. See id. at 975-76. Because the attorney’s fee issue was ancillary to the judgment, the trial court retained limited jurisdiction over the case to dispose of those claims left unresolved by the first judgment. See id. Subsequent opinions also hinted that the trial court might have the authority to act in a case on matters so long as those matters are not the subject of a pending appeal. See Schumacher v. Radiomaha, Inc., 619 N.E.2d 271, 273 (Ind. 1993) and Coulson v. Ind. & Mich. Elec. Co., 471 N.E.2d 278, 279 (Ind. 1984).

The rejection of an absolute bar to trial court action while an appeal is pending in that case culminated in Bradley v. State, 649 N.E.2d 100 (Ind. 1995). In Bradley, the appellant had been denied bail and sought interlocutory review as a matter of right. See id. at 106. While the interlocutory appeal was pending, the trial court tried the appellant on the criminal charges. See id. at 106. The Indiana Supreme Court determined that even when an appellate court acquires jurisdiction, the trial court may retain jurisdiction to perform tasks that do not “intermeddle with the subject-matter of the appeal.” See id.

Thus, the current standard is that a trial court may continue to act in a case after the NCR is filed so long as those actions do not “intermeddle” with the subject of the appeal.

What Is “Intermeddling?”

Unfortunately, there is no definitive statement of what actions intermeddle, or interfere, with a pending appeal. It is safe to say that a trial court’s modification or vacatur of the order that is the subject of the appeal is not appropriate once an appellate court acquires jurisdiction, and such trial court action is void. See Schumacher, 619 N.E.2d at 273; Coulson, 471 N.E.2d at 279; Southwood v. Carlson, 704 N.E.2d 163, 165-166 (Ind. Ct. App. 1999) (vacating a trial court’s grant of a motion for relief from judgment because the trial court lacked jurisdiction); Bartley v. Bartley, 712 N.E.2d 537, 547 (Ind. Ct. App. 1999) (determining that a trial court order that “clarified” the order on appeal was void for lack of jurisdiction). But, a trial court order that has only an indirect relationship to the order that is the subject of the appeal may be void. See In re Hickman, 811 N.E.2d 843, 849-850 (Ind. Ct. App. 2004), reh’g den., trans. den. (determining that an order rescinding a stock transfer was implicitly and necessarily related to the guardianship order that was the subject of the appeal, and that the stock transfer order was therefore void).

On the other hand, post-judgment proceedings for attorney’s fees at the trial level have been deemed appropriate. See Donahue, 413 N.E.2d at 976. Furthermore, contempt proceedings arising out of the judgment may apparently continue. See Meade, 671 N.E.2d at 1180. Finally, the trial court may still tax costs, correct the record, or enforce a judgment while an appeal is pending. See Bradley, 649 N.E.2d at 106. Because the resolution of these jurisdictional issues is case-specific, however, it is advisable for a trial court to exercise caution when it continues to act in a case after an appellate court has acquired jurisdiction pursuant to Indiana Appellate Rule 8.

What are the Consequences of Trial Court Action in the Absence of Jurisdiction?

Although there is no bright-line rule to delineate when a trial court is acting without jurisdiction due to a pending appeal, it is clear that when a trial court lacks jurisdiction, the trial court’s actions are void. See In re Hickman, 811 N.E.2d at 852-853 (vacating the trial court’s order rescinding a stock transfer). Unfortunately, acting without jurisdiction has resulted in a significant waste of the trial court and the parties’ time and resources. See Powers v. State, 579 N.E.2d 81, 84 (Ind. Ct. App. 1991), trans. den. (reversing the trial court’s judgment after retrial because the first appeal was still pending, and remanding for a new trial). Such appellate court decisions reinforce the suggestion that the trial court should be cautious of proceeding after an appellate court acquires jurisdiction.

Conclusion

Indiana’s appellate courts have identified certain circumstances under which the trial court may continue to act after an appellate court acquires jurisdiction pursuant to Indiana Appellate Rule 8. Nevertheless, if the trial court is found to have acted without jurisdiction, those actions will be void.

by Joe Merrick Staff Attorney, Indiana Court of Appeals

Posted by Marcia Oddi on Thursday, February 14, 2008
Posted to Indiana Courts

Law - Incredible but true! "Kentuckians rejected Lincoln presidency"

Louisville Courier Journal columnist Bob Hill writes today:

Somewhere in Kentucky's mad bicentennial birthday rush toward further deification of Abraham Lincoln, it must be said his native state gave him just 0.9 percent of the vote in the pivotal 1860 presidential election that saved our nation and changed the world — as in 1,364 votes in a total of 146,216 cast.

You can — and should — look it up.

Lincoln was our greatest president. Yet the great fuss in celebration of his 200th birthday seems too much an exercise in public relations, bragging rights and tourist promotion — without enough honest history.

Three states now rightly claim Lincoln: Kentucky, where he lived his first seven years; Indiana, where he grew up, taught himself to read and write, and lived until he was 21; and Illinois, where he became a lawyer, got into politics — and returned in a flag-draped coffin as a martyred president. * * *

Lincoln did not campaign prior to the 1860 election. His opponents in a nation horribly divided over slavery, state's rights and economic issues were John Bell, the Constitutional Union party pick from Tennessee; Stephen A. Douglas, the "Northern Democratic" pick from Illinois; and John C. Breckinridge, the "Southern Democratic" choice from Kentucky.

The Democrats were so divided — some things never change — they eventually required three conventions at two locations, one north and one south, to pick Douglas and Breckinridge.

Breckinridge, another Centre College graduate, would go on to become a Confederate general of Kentucky's famous "Orphan Brigade" of southern supporters, and U.S. vice president from 1856 to 1860.

So Kentucky could claim two of the four horses in the 1860 presidential race. The voter turnout nationwide was 81.2 percent. In Kentucky, Bell, a prosperous slave owner who was opposed to southern secession, got 66,058 votes. Breckinridge got 54,143 votes. Douglas received 26,651. Lincoln crept home with 1,364.

Lincoln carried both Indiana and Illinois in 1860, but received only 39.8 percent of the total national vote. It did give him 180 electoral votes — with 152 required to win.

In the 1864 election, Lincoln ran against Gen. George McClellan, whom he'd once appointed head of the Union Army. Lincoln, joining with the "War Democrats" in a "National Union Party," lost only three states — New Jersey, Delaware and, yes, Kentucky, where at least he received 30 percent of the vote.

Posted by Marcia Oddi on Thursday, February 14, 2008
Posted to General Law Related

Ind. Courts - South Bend Tribune story on judicial evaluation repeated; plus more on the upcoming election

Here are ILB quotes about a Sept. 27, 2006 South Bend Tribune series: "The South Bend Tribune's series, Judging the Judges, continues today with this story by Jeff Parrott, headlined "Judge evaluations help voters make informed choice."

Today, the Tribune repeats the story, with the note: "This series on St. Joseph County's judges, how they're chosen and the justice they mete out was first published in The Tribune and on southbendtribune.com in September 2006." It begins:

In Arizona, a state agency surveys people who work in or have had contact with the courts.

In Iowa, the state bar association polls attorneys across the state.

In the Indianapolis area, the Marion County Bar Association asks lawyers to evaluate judges -- even though judges there are popularly elected, meaning voters may already learn about them through the campaign process.

In each of those places, survey results are shared publicly, meaning you don't have to be a lawyer to know whether a judge is doing a decent job before voting him in or out on Election Day.

But in St. Joseph County, voters are on their own if they hope to make an informed decision on whether to keep a trial court judge on the bench.

The Indiana State Bar Association evaluates judges up for retention on the ballot, but only those in the state's highest courts: the Court of Appeals and Supreme Court, said association president Jim Riley, an Indianapolis attorney.

Such evaluations typically are only done in places where judges are appointed by the governor and then retained or rejected by voters at the end of each term -- a "merit selection" system operating only in St. Joseph and Lake counties in Indiana. The Indiana State Bar Association thinks it's up to county bar associations to evaluate trial court judges, Riley said.

Whether a voter is asked to vote on a judge's election, reelection, or retention, at either the trial or appellate level, the voter needs access to information upon which to base a decision.

This year three of the five Indiana Supreme Court Justices, Shepard, Dickson and Boehm, will be up for retention, plus at least one Court of Appeals Judge, Darden. (Under IC 33-25-2-2, the filing deadline is noon of July 15.) Two years ago, the ILB provided extensive resources via the site, Resources for the 2006 Indiana Appellate Judicial Retention Election. This year, the ILB hopes to provide even more information to aid voters in making their decisions, including not only the results of evaluations by attorneys, but responses from the justices and judges to questions posed by the ILB.

Posted by Marcia Oddi on Thursday, February 14, 2008
Posted to Indiana Courts

Wednesday, February 13, 2008

Ind. Decisions - "Religious order appeals Holy Cross Village tax decision"

A report today on this long on-going dispute.

The South Bend Tribune had what the ILB described as "a very long and really interesting story on the issue of whether/when real estate owned by a religious institution is subject to the state property tax." Unfortunately, that was on Nov. 1, 2004 and the Tribune story is no longer online.

The NY Times articles cited in this Oct. 10, 2006 entry , however, are still available, including the third article: "As religious organizations extend their scope beyond traditional worship, government at all levels is increasingly extending their tax exemptions." It began:

The similarities between Holy Cross Village at Notre Dame, on the north side of South Bend, Ind., and Hermitage Estates, south of town, are almost disorienting. The two retirement communities have the same simple gabled ranch houses, with the same touches of brick and stone, clustered around a pond with the same fountain funneling spray into the air and ducks waddling down the grassy bank.

But the retired residents of Hermitage Estates pay an average of about $2,300 per unit in property taxes. The management of Holy Cross Village, the Brothers of Holy Cross, says that development should be exempt from property taxes, and it has taken that argument to court.

As the Brothers of Holy Cross, a Roman Catholic religious order, sees it, providing the elderly with the amenities of the village — a sense of security, social opportunities and various services to make independent living easier — is a charitable activity rooted in its pastoral mission to serve others.

Members of the St. Joseph County Property Tax Assessment Board of Appeals, all but one of them lifelong Catholics, see it differently. To them, a charitable ministry does not consist of providing lovely retirement living to affluent people. The current residents of Holy Cross Village have an average net worth of $1 million. Those with deposits on the units under construction are even better off, averaging $1.6 million.

If Holy Cross Village is not taxed, members of the assessment board point out, a heavier burden will fall on the working families in the county that are struggling to pay the taxes on their small homes in careworn communities like the west side of South Bend.

Today South Bend's WSBT reports:
SOUTH BEND — The Brothers of the Holy Cross have appealed an Indiana Tax Court ruling that upheld St. Joseph County’s right to collect property taxes from Holy Cross Village, a retirement development owned by the religious order.

The religious order has filed a request for a rehearing before the Indiana Tax Court, said attorney Richard Nussbaum, who represents the order.

Holy Cross Village at Notre Dame is on Indiana 933, north of Holy Cross College and south of Saint Mary’s College. It provides villa and apartment living for senior citizens.

If the order loses, it could be liable for more than $434,000 in accumulated taxes and penalties for 2002 and subsequent years.

The Brothers of the Holy Cross maintain the property should not be subject to property taxes because it is owned by their religious order and therefore exempt under Indiana law.

However, a 2002 local government decision determined that only a small section of the 38.6-acre property should be exempt. The Indiana Board of Tax Review later ruled that the religious ordered did not prove the housing development is used for charitable purposes.

Whatever the decision on the appeal, the matter still could be appealed to the Indiana Supreme Court.

The opinion at issue is Brothers of Holy Cross, Inc. v. St. Joseph County Property Tax Assessment Bd. of Appeals (12/19/07 IndTaxCt).

See also this Dec. 14, 2007 ILB entry on SJR 2, a proposed constitutional amendment re the religious tax exemption. The proposal did not move out of first house committee this session.

Posted by Marcia Oddi on Wednesday, February 13, 2008
Posted to Indiana Decisions

Courts - "Religion Joins Custody Cases, to Judges’ Unease"

From the NY Times, a story by Neela Banerjee headed "Religion Joins Custody Cases, to Judges’ Unease." Some quotes:

Across the country, child-custody disputes in which religion is the flash point are increasing, part of a broader rise in custody conflicts over the last 30 years, lawyers, judges and mediators say.

“There has definitely been an increase in conflict over religious issues,” said Ronald William Nelson, a Kansas family lawyer who is chairman of the custody committee of the American Bar Association’s family law section. “Part of that is there has been an increase of conflicts between parents across the board, and with parents looking for reasons to justify their own actions.” Another factor, he said, is the rise of intermarriage and greater willingness by Americans to convert.

Nobody keeps track of who wins in these religious disputes, but lawyers say that judges are just as likely to rule in favor of the more religiously engaged parent as the other way around. That is because, for constitutional reasons, judges are reluctant to base their rulings primarily on the religious preferences of parents.

Judges do not want to take on custody disputes rooted in religion, said lawyers like Gaetano Ferro, who until recently served as president of the American Academy of Matrimonial Lawyers. Mr. Ferro said, “How will a judge say in any rational fashion that Islam is better than Buddhism, Catholicism better than Judaism, or Methodism better than Pentecostalism?”

Recall however that Indiana's Wicca case, as stated in the Court of Appeals opinion, Thomas E. Jones, Jr. v. Tammy U. Jones (8/17/05), involved not a dispute between the divorcing parents over religion, but rather :
[W]hether the trial court lacked authority to order that divorcing parents, who are practicing Wiccans, take steps to shelter their child from involvement in and observation of “these non-mainstream religious beliefs and rituals.”

Posted by Marcia Oddi on Wednesday, February 13, 2008
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)

For publication opinions today (1):

In Todd H. Phillips v. Dee Anne (Phillips) Delks , a 19-page opinion, Judge Vaidik writes:

Todd H. Phillips (“Husband”), pro se, appeals the trial court’s finding that he is in contempt of the Decree of Dissolution of Marriage, which dissolved his marriage to former wife Dee Anne (Phillips) Delks (“Wife”), for failing to immediately cure the deficiencies on the parties’ rental properties and to timely complete other obligations under the parties’ settlement agreement. He also appeals the trial court’s award of $25,000.00 for damage to Wife’s credit. We affirm the trial court’s contempt finding but reverse the award of damages because Wife offered no evidence in support of her damages claim. We therefore affirm in part, reverse in part, and remand for a calculation of reasonable appellate attorney fees in favor of Wife.
NFP civil opinions today (3):

In Brotherhood Mutual Ins. Co. a/s/o Capital City Baptist Church v. Nathan and Jacqueline Laube d/b/a Laube Construction (NFP), a 5-page opinion, Judge Najam writes:

Brotherhood Mutual Insurance Company (“Brotherhood”) appeals from the trial court’s denial of its motion to correct error following a judgment in favor of Jacqueline Laube. Brotherhood presents a single dispositive issue for our review, namely, whether the trial court erred when it set aside a default judgment against Jacqueline. We reverse and remand with instructions. * * *

Here, there is no question that Trial Rule 60(A) is inapplicable. The record shows that Jacqueline did not file a Trial Rule 60(B) motion or any other pleadings with the trial court. Further, at no time did the trial court notify the parties that it was considering Jacqueline’s testimony at the damages hearing as support for setting aside the default judgment under Trial Rule 60(B). Without any motion or notice of a Trial Rule 60(B) hearing, the trial court had no authority to set aside the default judgment against Jacqueline. See id.

We hold that the trial court erred as a matter of law when it set aside the default judgment entered against Jacqueline on May 9, 2007, and we remand with instructions to reinstate the default judgment, and for such other proceedings that are not inconsistent with this opinion.

Matter of Guardianship of Edna A. Voyles (NFP) - "The Washington Superior Court appointed Connie Kniesly and Ronald Voyles guardians of the person and the estate of their mother, Edna Voyles (“Edna”). Edna’s children (“Claimants”) then filed a claim with the guardians for personal services rendered to Edna. The trial court denied the claim. The Claimants filed a motion to correct errors, which the trial court also denied. The Claimants appeal and present two issues which we consolidate and restate as whether the trial court abused its discretion when it determined that Edna did not make an implied or express contract with the Claimants for personal services and whether Edna could be bound by a contract entered into by her deceased husband."

Invol. Term. of Parent/Child Rel. of D.P., Gordon Turentine v. Marion Co. Dept. of Family and Children, and Child Advocates, Inc. (NFP) - "Based on the foregoing, we find that the evidence supports the trial court’s findings and ultimate conclusion that there is a reasonable probability that the conditions leading to the removal and continued placement of D.P. outside of Father’s care would not be remedied. Father’s arguments to the contrary amount to nothing more than an invitation to reweigh the evidence, and this we may not do."

NFP criminal opinions today (7):

Edward A. Hawkins v. State of Indiana (NFP)

Perry M. Scroggins v. State of Indiana (NFP)

Tony Harris v. State of Indiana (NFP)

Carl E. Cooper v. State of Indiana (NFP)

Kendrick Newsom v. State of Indiana (NFP)

Willie Poindexter v. State of Indiana (NFP)

Amy M. Carmony v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, February 13, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Date for announcement of new COA judge approaching

Updating this ILB entry from Dec. 12, 2007, re the three finalists nominated to succeed Judge John Sharpnack, who is retiring May 3, 2008 after nearly 17 years on the Court of Appeals, the Governor's appointment is to be made within 60 days of the formal nomination of the finalists by the Judicial Nominating Commission.

The three finalists, announced on Dec. 12, 2007, are: Dearborn Superior Court Judge Michael G. Witte; Evansville attorney Les Shively; and Dubois Superior Court Judge Elaine Brown.

Posted by Marcia Oddi on Wednesday, February 13, 2008
Posted to Indiana Courts

Ind. Courts - "State Supreme Court denies motion to hear Burke election challenge"

The second part of this ILB entry from Jan. 23rd quotes a report that both "Mayor Duke 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." So both sides filed to skip the Court of Appeals and go directly to the Supreme Court.

But, as Austin Arceo reports today in the Terre Haute Trib-Star:

Indiana Supreme Court justices unanimously have denied a request to hear the case challenging Mayor Duke Bennett’s eligibility for candidacy in last year’s mayoral election.

In a judicial order sent to the involved parties Tuesday, the Supreme Court denied the bypass from the Indiana Court of Appeals, which currently has jurisdiction of the case. Former Mayor Kevin Burke is appealing the Dec. 21 decision of Vigo County Judge David Bolk, who ruled that, while Bennett was subject to a federal law that limits political activity, state law did not prevent him from taking office as Burke contended.

“It’s hard to read the tea leaves,” Bennett attorney Bryan Babb said, “but I think it’s fair to say that if they felt that Judge Bolk had got it wrong and that Mayor Bennett does not belong in office, then they would have accelerated this process and heard the case as soon as possible.”

Burke attorney Ed DeLaney said he was not surprised at the ruling, but said that anybody who thinks that the decision indicates the high court did not see a need to change the local court’s decision doesn’t know much about the Supreme Court.

“This is a perfectly normal reaction on their part,” DeLaney said, “and so I don’t read any special meaning into this.”

Posted by Marcia Oddi on Wednesday, February 13, 2008
Posted to Indiana Courts

Environment - More on "EPA's mercury rule struck down"

Updating this ILB entry from Feb. 10th, there is an interesting entry today in The Volokh Conspiracy, written by Jonathan H. Adler . law prof and Director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law.

Posted by Marcia Oddi on Wednesday, February 13, 2008
Posted to Environment

Ind. Courts - More on: David Camm appeal brief filed with the Supreme Court

Updating this ILB entry from Oct. 13th, 2007, which quoted from a comprehensive story in the Louisville Courier Journal that "Lawyers for former Indiana State Trooper David Camm filed a 21,000-word appeal yesterday with the Indiana Supreme Court, arguing that his conviction last year for the murders of his wife and two children seven years ago was the result of a drastically imbalanced playing field created by numerous errors by the trial judge," today Ben Zion Hershberg reports in the LCJ:

Citing "overwhelming" evidence of guilt, Indiana's attorney general has filed a 58-page response to David Camm's appeal to the state Supreme Court of his March 2006 murder conviction in the shootings of his wife and their two children.

Attorney General Steve Carter said the conviction should stand because of that evidence and because the errors Camm claimed were made during his eight-week trial in Warrick County Superior Court either were not errors or were so minor that they didn't affect the outcome.

This is 87 S 00 - 0612 - CR - 00499.

Posted by Marcia Oddi on Wednesday, February 13, 2008
Posted to Indiana Courts

Environment - Even more on "Great Lakes Compact on track"

Updating this ILB entry from January 17th, the Great Lakes Compact bill, SB 45, has now passed both Houses in the same form - all that remains is the Governor's signature. Bill Ruthhart reports in the Indianapolis Star:

A bill that would put Indiana at the forefront of an effort to protect the Great Lakes has become one of the first bills to reach Gov. Mitch Daniels' desk this legislative session.

The Indiana House voted 91-8 Tuesday to approve Senate Bill 45 without changes, sending the legislation straight to Daniels, who is expected to sign it into law.

The legislation implements the Great Lakes-St. Lawrence River Basin Water Resources Compact. The pact requires the governors of all the Great Lakes states to approve any effort to divert water from the lakes to other regions of the country.

Rep. Scott Pelath, D-Michigan City, sponsored the legislation in the House and said Indiana had become the first state to adopt it. Other states considering the agreement are Illinois, Michigan, Minnesota, New York, Ohio, Wisconsin and Pennsylvania.

"This prevents diversion of water from the Great Lakes," Pelath said. "It allows the Great Lakes states to use their sovereignty together to make sure we preserve a very vital natural resource for future generations."

Posted by Marcia Oddi on Wednesday, February 13, 2008
Posted to Environment

Tuesday, February 12, 2008

Ind. Law - Zionsville attorney/forensic anthropologist studies LaPorte's 1908 "Lady Bluebeard"

A long story in today's Chicago Tribune by Kristen Kridel is headlined "A century-old mystery: Did serial killer fake her death? Through DNA analysis, Indiana forensic anthropologists hope to determine if 'Lady Bluebeard' really died in fire on her farm." Some quotes:

For a hundred years, people have doubted whether a zinc-lined casket in a Forest Park cemetery really entombed the body of one of America's worst female serial killers.

It definitely doesn't today.

The headless skeleton that long occupied the deteriorating coffin now rests in an Indianapolis laboratory, where researchers hope to finally solve a lingering mystery.

Did Belle Gunness, a La Porte, Ind., murderess known for killing Norwegian bachelors, stage her own death in 1908 by soaking her farmhouse with kerosene and burning it to the ground?

Suspicion that Gunness escaped the small town started to fester not long after the townspeople discovered at least 11 dismembered bodies buried on her farm.

Since then, the legend has grown that the woman buried in Gunness' grave was much too small to be her.

A group of University of Indianapolis students worked first with shovels, then with chopsticks and paintbrushes, to exhume the body from Forest Home Cemetery.

Experts want to compare the DNA in the bones with saliva on the envelopes of love letters the killer sent to a victim. The century-old envelope flaps remain sealed because the recipient used a letter opener.

Andrea Simmons, a Zionsville, Ind., attorney who went back to school to study forensic anthropology, saw her master's thesis as an opportunity to find the truth about the "Lady Bluebeard" who historians believe murdered at least 25 to 30 people.

"I can do a lot more than just tell the story yet again," Simmons said. "No one had taken a scientific look."

Simmons, 47, is hoping to get the results by April 28, the 100th anniversary of the house fire that led to the discovery of several bodies, identified then as Gunness and her young children.

With her professor, a board-certified forensic anthropologist, Simmons and her team exhumed Gunness' supposed skeleton in November. She was buried next to her first husband, whom she had lived with in Chicago.

Posted by Marcia Oddi on Tuesday, February 12, 2008
Posted to Indiana Law

Ind. Courts - More on "Incumbent Welch exits race for Monroe Circuit Court judge"

The Bloomington Herald-Times has a story ($$) today (updating this earlier ILB entry) that reports:

Alphonso “Al” Manns said today he plans to run for judge of Monroe Circuit Court, Division VII. * * *

The Division VII seat is held by Monroe Circuit Judge David Welch, who announced earlier this month that he will not seek a fourth term. He’d previously announced he would run, then said he wouldn’t after being dissuaded by members of his own party but gave no other details.

To date, two other people have said they will also vie for the seat in the May 6 primary: Bloomington attorney Fred Turner, a Democrat, and deputy attorney general Joby Jerrells, a Republican.

Posted by Marcia Oddi on Tuesday, February 12, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Invol.Term. of Parent/Child Rel. of B.P., and C.P. v. Lake Co. Dept. of Child Svc. and Lake Co. CASA (NFP) - "Christine P. (“Mother”) appeals the involuntary termination of her parental rights to her daughter, B.P. On appeal, Mother contends that the trial court committed reversible error by allowing impermissible hearsay testimony to be admitted over her objections. Mother further asserts that the Lake County Department of Child Services (“LCDCS”) failed to prove by clear and convincing evidence each of the elements contained in Indiana Code § 31-35-2-4(b)(2) and that several of the trial court’s specific findings of fact were not supported by the evidence. Concluding that the alleged hearsay testimony did not affect Mother’s substantive rights, and that the juvenile court’s judgment was supported by clear and convincing evidence, we affirm."

AGT, Inc. v. City of Lafayette, IN, Redevelopment Commission (NFP) - "We conclude that the trial court did not abuse its discretion when it admitted and refused to strike Godby’s expert valuation testimony. Disclosure of the fact that Godby was hired and paid by someone other than the parties for his services does not necessarily imply that he was a court-appointed appraiser in the eminent domain proceeding. And AGT waived its argument that the trial court should not have admitted Webster’s expert valuation testimony. Waiver notwithstanding, our review of the record discloses that Webster provided adequate “factual data” to support his opinion of the subject property’s value. For the same reasons stated above, we also find no abuse of discretion in the trial court’s refusal to instruct the jury to disregard Godby’s and Webster’s valuation testimony."

NFP criminal opinions today (1):

Robert C. Reed v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, February 12, 2008
Posted to Ind. App.Ct. Decisions

Environment - Effectiveness of LaPorte County ordinance regulating outdoor wood boilers

The ILB has posted a large number of entries on the possible regulation of outdoor wood-fired boilers or stoves used to heat homes. This entry from Nov. 24, 2007 gives some good background. Because IDEM and US EPA have both failed to act, a number of local entites have explored the possibility of writing their own ordiances. LaPorte County did so. This lengthy story today by Laurie Wink of the Michigan City News-Dispatch discusses the efficacy of the county's regulation. Some quotes:

LA PORTE - The effectiveness of a county ordinance governing outdoor wood boilers, which took effect Nov. 21, is getting mixed reviews.

County Commissioners approved an ordinance in 2007 specifying how OWB units should be installed, operated and maintained.

Owners must provide a copy of the manufacturer's specifications to verify compliance. The ordinance prohibits use of OWBs between May 15 and Sept. 15, and all units must be placed at least 25 feet from the property line. The ordinance also covers chimney height and the type of wood used. Only seasoned, dry wood without paint, varnish or other treatments can be used. Violation can result in a $750 fine.

Tony Mancuso, La Porte County Health Department environmental supervisor, said no fines have been issued, and only three complaints have been received. As a result of the ordinance, 120 owners have registered OWBs, a number that surprised Mancuso.

"I didn't know there were that many out there," he said. "I thought there might be about 50. It's a good idea to have the ordinance and to know where they're at."

Allan and Debbie Bottorff, 9796 S. County Road 225 West, say they suffer from the effects of an OWB when wind blows from the south. Allan Bottorff said he gets nauseous from the smoke and Debbie Bottorff, an asthmatic, has to wear a respirator.

The ordinance makes it easier for the Bottorffs to go outside four months of the year, but the other eight months can be problematic. Allan Bottorff said even though he has installed air purifiers, they don't eliminate the problem.

The Bottorffs filed a complaint against OWB owner Henry Pacione. Allan said that, one day, they were suffering from OWB emissions while Pacione was burning stacks of painted wood.

Patty Nocek of the La Porte County Health Department responded, Allan Bottorff said, telling Pacione to stop burning the painted wood. Pacione told The News-Dispatch he removes the wood crates from the company he works for, and only the ends are "spray painted very lightly."

He said he will remove the ends before using the rest of the wood.

Pacione was not fined.

Health Department Director Paul Trost said his department doesn't have the authority to issue a ticket, and fines only can be levied by a court.

"I think we came up with a pretty good ordinance. If we get a complaint, we would address it very diligently, to make sure we're doing things properly," Trost said. * * *

[Phil] Coil and his wife, Marguerite, live at 3275 N. Wozniak Road near an OWB owner they say seems to have found a loophole in the county ordinance.

A nearby neighbor had an outdoor wood burner but no longer uses it. Instead, he installed a new Blue Forge gasification outdoor wood furnace inside a pole barn, making it an indoor wood burner. County officials say the ordinance doesn't apply in this case.

The Coils said the new unit burns hotter and the smell is less noticeable than the one outdoors, but the smell is not their only concern.

"It is still sending out particulate matter that can travel miles and miles," Marguerite Coil said. "No one seems to know anything about whether it's a health hazard."

The Coils asked Commissioners President Bill Hager to check out the indoor wood burner, but said he never did.

Hager said the ordinance is working just fine and doesn't need any changes.

The Coils disagree. They said five homeowners in their area have been bothered by the nearby OWB, and one has already moved for the health of a daughter with asthma.

"What's the difference if it bothers one or 10 people?" Phil Coil said.

County Building Commissioner Ray Hamilton said his office is responsible for registering new OWBs, but very few have been submitted. Hamilton said the ordinance took effect at a time of year when the units already would have been installed.

It remains to be seen whether more will be registered this spring and summer, Hamilton said. A permit for new construction costs $50 and must be obtained before installation.

Marguerite Coil says she continues to be frustrated by the ordinance.

"They try to ban smoking so we're not smelling secondhand smoke," she said, "but it's OK to smell this."

Posted by Marcia Oddi on Tuesday, February 12, 2008
Posted to Environment

Ind. Courts - Clerk of the Court Kevin Smith writes to the ILB

The ILB has just received a lengthy email from Kevin S. Smith, Clerk of the Courts, making the following points (the ILB has added some emphases):

(1) The Clerk writes re the ILB's Jan. 23rd entry: "The entry reported that, although the Clerk of the Court's office had changed long-established practice and was no longer making paper copies of opinions available, causing everyone to rely on the copies of the opinions posted online by the Clerk's Office, . . . "

The Clerk writes that: "This paragraph contains a misleading half-truth. We still serve free paper copies of opinions on all parties of record, amicus, and the affected trial court in each case. What we changed in November 2007 was our practice of providing free paper copies of opinions as a courtesy to certain organizations and members of the media, since those opinions are available on the judiciary's website."

Actually, what the ILB wrote on Jan. 23 was: "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." The ILB should have quoted that language again on Feb. 11th.

(2) The Clerk writes: "The problem with opinions not making it onto the website had nothing to do with the Clerk's Office; rather, the problem was the result of problems occurring with the Indiana Office of Technology ("IOT"), the service provider for the opinions portion of the Judiciary's website. Indeed, you later noted as much in a subsequent entry (specifically, you wrote: "Although it now appears that the failure to post opinions online this week was due to a computer glitch"). Therefore, your statement on February 10th that the Clerk's Office "was not keeping up its end of the bargain" is simply false."

The ILB notes that it is the Clerk's Office that interfaces with the service provider. The ILB has pointed out in the past a number of ways in which that arrangement could be improved, to better serve the public. Presumably, the service provider is working for the Clerk's Office. See, eg, this entry from 12/12/07 titled "Suggestions to improve COA postings," this entry from 1/4/08 (which begins "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.") and this entry from 1/9/08, which includes "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."

(3) The Clerk writes: "[T]he issue we experienced in late January concerning opinions temporarily not getting posted to the judiciary's website had nothing to do with the Clerk's Office. Therefore, your statement above, linking the temporary technical issues IOT experienced, on the one hand, with the backlog the Clerk's Office has been experiencing in processing some filings, on the other hand, was simply false."

The ILB, as noted in #2, does not agree.

(4) The Clerk makes the point that his office, to its credit, has been working on the backlog issue for some time, and disputes the ILB's concluding statement yesterday (2/10/08) that: "All this [the ILB's initial postings] occurred on January 23th. The ILB believes the beneficial result has been to focus attention on the important responsibilities of the Clerk's Office and the need for the money and manpower for it to do its job."

The Clerk concludes: "While you often do bring issues to our attention that lead to positive and beneficial changes, this simply was not one of those instances."

The ILB does not agree. The ILB's point was that many of us on the outside who individually deal with the office saw signs that there was a problem, but did not know its extent, were unwilling to publicly criticize an office we must deal with frequently, and did not know that the problems are in the process of being addressed. Now we do, and can watch as the problems (including hopefully those involving the Office's interaction with the IOT) are being resolved, and can support any future requests for additional funding and manpower.

You may access a PDF of Mr. Smith's email here.

Posted by Marcia Oddi on Tuesday, February 12, 2008
Posted to Indiana Courts

Indiana Courts - Still more on "New computerized courts case management system went live in Monroe County Monday"

The JTAC pilot projects in Monroe County & Washington Township, Marion County went into operation two months ago, in mid-December, 2007. (See a long list of entries about the Court's computerized case management system project here.)

So, how is it going in Monroe County? The Bloomington Herald Times published a long story ($$) by Bethany Nolan on Feb. 9th. Some quotes to the story, titled "Computerized system proving a challenge":

Monroe County is still working out a few bugs in its new computerized court case management program. The Odyssey system, launched a few months ago, is planned to eventually be used statewide.

“The magnitude of the project is difficult to adequately describe,” Monroe Circuit Judge Kenneth Todd said. “We didn’t totally realize fully how complicated and how large a challenge this was.”

He continued: “But all in all ... when you take into consideration the magnitude of the project and what needed to be done to make it work, things have gone as well as could really be expected. We anticipated these kinds of things and, sure enough, here they are.”

Here’s a look at a few of the issues:

• Initially, the system didn’t properly convert all the data from about 600,000 old cases to the new system. Essentially, the two computer programs didn’t match exactly, so some of the old data didn’t fit into the right spots in the new program. “Ninety percent of it converted great, but there were some issues,” Todd said.

• Court calendars didn’t convert initially, which made for some interesting days for court personnel as people appeared for nonexistent hearings or others failed to appear for a hearing they didn’t know were scheduled.

• Third, there were some hardware and software issues with the system. Since it’s Web-based, if the Internet goes down, it does too. The county and Texas-based program creator Tyler Technology are working on the issue, county technology director Larry Smith said. The strategy has included upping the county’s bandwidth by nearly 10 times its former strength, and there’s a plan to do a traffic study to better understand usage and other details about the network connection.

“I’m highly confident those little glitches we’re seeing will be resolved, and we’ll have a system everybody will find acceptable and that will meet their expectations,” Smith said.

• Fourth, the public access component has generated some grumbling from local attorneys and others who use it regularly.

Bloomington attorney Geoff Grodner said some are concerned about the access, including that a criminal case search for a person by name can turn up dozens of both current and disposed cases in no particular order. Members of the bar are planning a meeting with the board of judges to discuss concerns. [ILB: As the ILB has noted before, subscribers to DoxPop no longer have access to the Monroe County files, because the Court has failed to permit outside access to its CMS, and the public must now depend on the limited information available through the Supreme Court site. See footnote at the end of this entry.] * * *

Eight counties are next in line to hook onto the program: Huntington, Allen, DeKalb, Hamilton, Madison, Harrison, Floyd and Clark counties, the first perhaps as early as June. The state Supreme Court’s Judicial Technology and Automation Committee [JTAC] has said it hopes the program will be used in all 92 counties within five years. * * *

An Odyssey upgrade for Monroe County is planned March 17, which will include streamlining how entries are made so court reporters don’t have to type some things twice, implementing a better system to notify attorneys of upcoming hearings and creating a financial calculator for the clerk’s office so people can obtain a payoff amount for monetary judgments, said Donna Edgar, project manager with the Judicial Technology and Automation Committee.

A story in the New Albany News & Tribune, reported by Chris Moss and dated Feb. 8th, reports:
Courts in Clark, Floyd and Harrison counties will be linked through a new statewide automation system beginning this summer.

The three will be part of a pilot program which began last year in Monroe and Washington counties. The Web-based program, called Odyssey, will manage court cases and will not require a new computer server for the counties.

“They want to put counties on in clusters. This will allow us to pull court cases from other counties,” said Floyd County Clerk Linda Moeller. “That is really a plus.”

Some of the items available through the system will be tax warrants, jury management, marriage licenses and protective orders. Moeller said once a protective order is signed, it will be placed in the system immediately, which will allow other counties to have access to that order.

“This is really cutting-edge technology and we are really pleased to be one of the counties selected for this pilot program,” Moeller said.

Currently, counties use different systems and software to file and track records. Eventually, all 92 counties in Indiana will be connected through the new system, Moeller said.

“Things will be uniformed,” she said.

Several computers in the Floyd County Clerk’s office will have to be replaced in order to use the new system. However, Moeller said she tries to replace three or four each year anyway. She said as a pilot program, Floyd County will be eligible for grants to help pay for the computers.

______
*This footnote contains information from a Feb. 6 mailing from DoxPop on its Monroe County status:
On October 25, 2007, Doxpop submitted a request to the Division of State Court Administration to obtain access to Monroe County court information from the state's case management system now being used by the courts there. That request is under review by the Indiana Supreme Court, since ours appears to be the first application for information from the state system.

Unfortunately, Monroe County's permission to publish historical case information through Doxpop expires on 2/15, so we will be removing Monroe County court case information from Doxpop on the evening of 2/15. We continue to work with the Division in hopes that we may include public information from the Monroe County courts at the Doxpop website in the future.

Posted by Marcia Oddi on Tuesday, February 12, 2008
Posted to Indiana Courts

Ind. Courts - Update on Delaware judicial candidacies

Updating these ILB entries from Feb. 11th ("Delaware Circuit Court 3 Judge Robert Barnet Jr. has decided to call it a career") and Feb. 9th ("More on 'Judge admits he's target of criminal probe'"), Rick Yencer of the Muncie Star-Press reports today, in a story that begins:

MUNCIE -- Word that a veteran Delaware Circuit Court judge is retiring, coupled with another Circuit Court judge's acknowledgment that he is under criminal investigation, is prompting speculation of a crowded field of judicial candidates in the May 6 primary election.

Three judicial seats are on this year's Delaware County ballot: Circuit Court 3, where 30-year Democratic incumbent Robert Barnet Jr. is retiring; Circuit Court 4, where Republican incumbent John Feick is seeking re-election, and Circuit Court 5, where incumbent Democrat Wayne Lennington, who said last week his business ventures were under investigation by state police and the county prosecutor's office, is also seeking re-election.

Posted by Marcia Oddi on Tuesday, February 12, 2008
Posted to Indiana Courts

Ind. Gov't. - Still more on: "Paige Grable's release delayed: Correction department says earliest release is now Feb. 11"

Updating these two ILB entries from Nov. 2, 2007 (one and two), Grace Schneider of the Louisville Courier Journal reports today:

Paige Grable, the Southern Indiana teenager who went to prison last May after being convicted in the drunken-driving crash that killed a Providence High School classmate, was freed yesterday after nine months behind bars.

Grable, 19, had been sentenced to 2½ years. She will remain on probation for 18 months. * * *

Sentenced in May, Grable was nearly released from prison in November after the Indiana Department of Correction granted her credit for good behavior as well as receiving a GED and high school diploma while in prison.

But John's parents and Henderson opposed the release on grounds that allowing both credits undermined the original sentence. The sentence was already cut in half, to 15 months, because of the state policy of granting one day of good-behavior credit for each day served. Allowing credit for two essentially equivalent education credentials would have reduced the term to six months.

Eventually, state correction Commissioner David Donahue acknowledged that prison officials erred in giving Grable credit for both the GED and diploma, and her release date was moved back to Feb. 11.

Still, Grable served less than half of her sentence because of the credits. The General Assembly is considering House Bill 1271, by Rep. Steve Stemler, D-Jeffersonville, that would clarify the circumstances for awarding education credits. The bill also has been amended to require all prisoners to serve at least 85 percent of their sentences.

Posted by Marcia Oddi on Tuesday, February 12, 2008
Posted to Indiana Government

Ind. Courts - More on: Proposed amendments to Court rules

State Rules. Yesterday the ILB posted this entry re proposed amendments to Indiana court rules. The deadline for comments is May 5th. A number of rules are affected. In addition, the notice makes this comment:

The Committee was asked to address confusion that has arisen concerning when the time limits for filing appeals begin to run; whether it is the date that the trial court renders its judgment or the date that the clerk enters judgment into the Chronological Case Summary (CCS). The case law acknowledges that it is not entirely clear when the time limits begin to run. Because a mistake in calculating time deadlines has such a serious impact on the litigants and their attorneys, the Rules Committee is proposing that the Trial Rules, Criminal Rules, Rules of Appellate Procedure, Small Claims Rules and Rules of Procedure for Post-Conviction Remedies be changed to consistently utilize the date of the entry of the order or judgment in the CCS as the operative date.

Thus, while at first blush these amendments seem substantial, the amendments accomplish the goal of consistency and clarity in identifying the CCS date as the date from which the deadlines are triggered. An excellent discussion of the case law and an excellent example of the confusion that has arisen is contained in the matter of Smith v. Deem, 834 N.E.2d 1100 (Ind. App. 2005), transfer denied. [ILB - access it here]

Federal Rules. Howard Bashman of How Appealing posted an article Feb. 4th titled "Deadline for Commenting on Federal Appellate Rule Amendments Is Fast Approaching." Here are some quotes:
The most significant change under consideration to the federal appellate rules, and the rules governing procedure before the federal district courts, would alter the method of calculating deadlines. Currently, relatively short time periods -- say 10 days -- are calculated by omitting intervening weekends and holidays. That means a supposed 10-day period actually gives a litigant at least two weeks to complete the task in question. By contrast, longer periods, such as a 30-day period, are calculated without omitting intervening weekends and holidays.

The rule changes under consideration would simplify the math by requiring that all days be counted in calculating deadlines, regardless of the period's length. To make up for the issue of intervening weekends and holidays, shorter deadlines will be lengthened, in an effort to render the net impact of the rule change essentially neutral.

Some trial court deadlines of importance to appellate advocates will be significantly lengthened. Currently, in civil cases, the deadline for filing post-judgment motions for a new trial, to change a trial judge’s non-jury factual findings, for judgment as a matter of law, and to alter or amend the judgment is 10 days after entry of the judgment. Because this period is calculated without counting weekends and holidays, it translates into at least a two-week window in which to prepare and file these motions.

The rule amendments under consideration would change the Federal Rule of Civil Procedure to allow a period 30 days after the entry of judgment in which to file these motions. This substantially expanded time in which to file post-judgment motions will allow for those motions to be better researched and reasoned, and may encourage more attorneys who represent parties who lost at the trial court level to obtain appellate counsel's assistance in preparing those motions.

The deadline for comments on the federal rules changes is this Friday, Feb. 15th.

Posted by Marcia Oddi on Tuesday, February 12, 2008
Posted to Indiana Courts

Monday, February 11, 2008

Courts - Two fascinating audio/video pieces

Two fascinating audio/video pieces, mentioned by Howard Bashman of How Appealing during the past week.

First, if you don't have but a few minutes, listen to this NPR story, from the 2/8 All Things Considered, headed "W.Va. Judges Asked to Recuse in Massey Coal Case." The summary:

The plot of John Grisham's latest novel has already come to life, he says, in West Virginia. [ILB - kind of like what happened with Tom Wolfe's The Bonfire of the Vanities.]

Three of the five state Supreme Court justices have been asked to recuse themselves from rehearing a case in March involving one of the biggest businessmen in the state, Don Blankenship of Massey Coal. Two of the justices have ties to him, and the third has publicly criticized the businessman.

For more on this, see this 1/28/08 entry from the WSJ Law Blog. And this is one among many stories in the press, an AP report dated 1/27/08.

Second, when you have an hour, watch this video from the Feb. 2 edition of C-SPAN's America and the Courts, on The Future of the Supreme Court:

New York Times Supreme Court Correspondent Linda Greenhouse and CNN's Jeffrey Toobin talk about recent cases and shifts in the Court since Justice Alito and Chief Justice Roberts joined.
It begins with a fascinating discussion of the Indiana voter ID case and Chief Justice Roberts. You'll either love it or hate it, but either way, you will want to watch it.

Posted by Marcia Oddi on Monday, February 11, 2008
Posted to Courts in general

Courts - "Whether large law firms that successfully represent clients on a pro bono basis are entitled to seek substantial legal fees from the defendant"

The ILB has posted several entries on an issue raised primarily by last year's SCOTUS decision in the Louisville and Seattle school districts voluntary desegregation cases. The pro bono attorneys for the parents who succeeded in the suits throwing out the schools' plans, in both Seattle and Louisville, next sued the school districts for their legal fees. Here is a Sept. 8, 2007 story from Seattle; here is a Sept. 25, 2007 story from Louisville.

Friday, Feb. 8, Amanda Bronstad of The National Law Journal wrote a story headlined "Pro Bono Case Triggers a Fee Fight: Two recent instances of large firms collecting large fees in pro bono cases point to an increasingly controversial issue." Interestingly, the story is limited to Seattle cases. Some quotes:

A Seattle school district that lost a case before the U.S. Supreme Court is arguing that its opposing counsel, Davis Wright Tremaine, should not be entitled to nearly $1.8 million in attorney fees because it took the case pro bono.

It is the second high-profile case in a year challenging fees collected by firms in pro bono cases.

A nonprofit group representing several parents of high school students sued Seattle Public Schools in 2000 to overturn an admissions policy that used race to determine which schools students could attend. PICS v. Seattle School District, No. 2:00-cv-01205 (W.D. Wash). Last year, the U.S. Supreme Court found that the policy violated the Constitution's equal protection clause under the 14th Amendment.

In September, Seattle-based Davis Wright Tremaine filed a petition before the 9th U.S. Circuit Court of Appeals seeking nearly $1.8 million in legal fees. The 9th Circuit refused to grant that request until a federal judge in Washington issued a final judgment in the case.

In recent weeks, both sides have filed briefs in federal court in Washington.

In arguing against the fees, the school district has raised the increasingly contentious issue of whether large law firms that successfully represent clients on a pro bono basis are entitled to seek substantial legal fees from the defendant.

Posted by Marcia Oddi on Monday, February 11, 2008
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

In an 11-page opinion in a case involving the question of whether the Indiana Utility Regulatory Commission can trump (or finesse) the requirement of approval by US EPA, Application of South Haven Sewer Works, Inc., City of Portage v. South Haven Sewer Works Inc. , Judge Rley writes:

Appellant-Intervenor, City of Portage (the City), appeals the Indiana Utility Regulatory Commission’s grant of a Certificate of Territorial Authority to Appellee-Petitioner, South Haven Sewer Works, Inc. (South Haven), to render a sewage disposal service in additional rural areas of Porter County, Indiana. We reverse.

The City raises two issues on appeal, one of which we find dispositive and which we restate as: Whether the Indiana Utility Regulatory Commission (the Commission) erred as a matter of law when it determined that South Haven had lawful authority to expand its geographic service territory despite a federal consent decree that appears to prohibit South Haven’s expansion without the Environmental Protection Agency’s (EPA) approval. * * *

In sum, the unambiguous terms of the consent decree indicate an intent to prevent South Haven’s expansion beyond that which its facility could handle. An important component in effectuating that intent was the requirement to get EPA’s permission before increasing South Haven’s service area. Consequently, when South Haven petitioned the Commission for an expanded CTA without having acquired EPA’s approval, it did so without the lawful power and authority to provide services as required by I.C. § 8-1-2-89(e). Therefore, we hold that the Commission erred as a matter of law when it granted South Haven’s proposed expansion.

Based on the foregoing, we conclude that the Commission erred as a matter of law when it determined that South Haven had lawful authority to expand its geographic service territory. Reversed.

NFP civil opinions today (3):

Joyce Starkes Neely v. Davister Tiberon Corp., d/b/a Tiberon Trails Apts. (NFP) - "Neely filed the Davister complaint on April 3, 2006. The alleged injury occurred on or about May 24, 2002. Obviously, the Davister complaint was filed outside of the statute of limitations as set forth in Indiana Code section 34-11-2-4.

"Based on the face of the complaint, Neely has failed to state a claim upon which relief can be granted. Neely alleged negligence yet even if we assume that all of the facts alleged in the Davister complaint are correct, Neely still failed to include any facts in the complaint that would toll the statute of limitations or otherwise circumvent the requirement that an action for an injury to person be commenced within two years after the action accrues. We therefore conclude that the trial court properly dismissed Neely’s Davister complaint. Affirmed."

In In the Matter of I.M.A., K.A. v. J.T. (NFP), a 23-page opinion, Judge Robb writes:

In this consolidated appeal, K.A. challenges the trial court’s order granting physical and legal custody of I.M.A., K.A.’s daughter, to I.M.A.’s father, J.T., and the trial court’s subsequent order restricting K.A.’s parenting time. On appeal, K.A. raises three issues, which we consolidate and restate as whether the trial court abused its discretion 1) when it granted physical and legal custody of I.M.A. to J.T. and 2) when it restricted K.A.’s parenting time. We affirm, concluding the trial court acted within its discretion in both instances. * * *

The trial court did not abuse its discretion when it granted physical and legal custody of I.M.A. to Father or when it restricted Mother’s parenting time. Affirmed.

Commitment of E.L. v. Wishard Health Services, et al (NFP) - "Respondent-Appellant E.L. appeals an order of involuntary temporary commitment issued by the Mental Health Division of the Marion Superior Court. The commitment was sought by Petitioner-Appellee Wishard Health Services, Midtown Health Center (“Wishard”). We affirm."

NFP criminal opinions today (6):

Mark A. Jenkins v. State of Indiana (NFP)

James Bruce Weathers v. State of Indiana (NFP)

Misty Dawn Boyer v. State of Indiana (NFP)

Derek Morris v. State of Indiana (NFP)

Charles A. Kootz v. State of Indiana (NFP)

Ronnie Murry v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, February 11, 2008
Posted to Ind. App.Ct. Decisions

About this blog - More on: Announcement from the ILB editor

Updating this ILB entry from August 20, 2007, I have further news, and it seems pretty good.

Although I have not issued updates on my status, several milestones have now been achieved. In mid-January 2008 the lengthy chemotherapy came to an end. On January 31st and February 7th I had surgeries. If all goes well, six weeks of daily radiology is scheduled to begin later this month.

As before, I thank you for reading and contributing to this endeavor, I thank for your continued support, and I thank you for rooting for me. Your thoughts and prayers have been, and will continue to be, much appreciated.

Posted by Marcia Oddi on Monday, February 11, 2008
Posted to About the Indiana Law Blog

Ind. Decisions - ILB plays catch-up with last Thurs. and Fri. COA opinions

Here they are:

The Thurs., Feb. 7, 2008 case summaries.

The Fri., Feb. 8, 2008 case summaries.

Posted by Marcia Oddi on Monday, February 11, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Proposed amendments to Court rules

Notice of Proposed Rule Amendments by the Indiana Supreme Court Committee on Rules of Practice and Procedure for Public Comment - See this Court posting to review the details of the large number of proposals.

Included is the above is a revision of the Code of Judicial Conduct. For more, see this press release.

The Committee invites public comment on the proposed rule amendments. Those wishing to comment should do so, in writing, not later than May 5, 2008.

Posted by Marcia Oddi on Monday, February 11, 2008
Posted to Indiana Courts

Ind. Courts - "Delaware Circuit Court 3 Judge Robert Barnet Jr. has decided to call it a career"

Douglas Walker reports today in the Muncie Star-Press:

After spending nearly half his life on the bench, Delaware Circuit Court 3 Judge Robert Barnet Jr. has decided to call it a career.

Barnet, 61, won't be a candidate for a sixth six-year term as judge in the May 6 Democratic primary, and will retire when his present term expires at year's end.

"I pondered it for quite a while," the judge said. "I always like to finish what I start, and I don't want to be doing this until I'm 69 years old. ... And I want to go fishing."
At age 32, the Democrat was among the youngest men to be elected Delaware County judge when he won his first term to what was then the Superior Court 1 bench in November 1978.

Through an act of the Indiana Legislature, Delaware County's four Superior Courts became Circuit Courts in 2000. That move in part was to allow two incumbent judges to avoid a rule prohibiting Superior Court judges from beginning a new term after age 70.

The opportunity to remain on the bench through his golden years did not appeal to Barnet, however.

Asked about future plans, the judge said, "That's the nice part about it. I don't have any."

A former chief deputy prosecutor and public defender, Barnet said he had no plans to return to the practice of law.

Posted by Marcia Oddi on Monday, February 11, 2008
Posted to Indiana Courts

Not law - Local blogger makes good, "the Bilerico Project started locally, but now is a national voice for the gay community"

Erika Smith reports today in the Indianapolis Star in a story that begins:

Bil Browning is the kind of guy who has a hard time finding motivation to keep a journal.

Now, he writes all day for his blog, The Bilerico Project, one of the nation's top political Web sites for the gay, lesbian, bisexual and transgender community.

The difference? For one, money.

The Indianapolis man is one of just a few bloggers in the country who've managed to turn their hobby of spouting off online into an actual businesses.

In just four years, The Bilerico Project has grown from a Web site about Indiana politics and the gay community to a national blog with 50 contributing writers and guest posts from the likes of presidential candidates Barack Obama and Hillary Rodham Clinton.

Posted by Marcia Oddi on Monday, February 11, 2008
Posted to General News

Ind. Law - "March 1, physicians in Indiana will see a 19.1 percent decrease in annual surcharges paid into the Patient’s Compensation Fund"

Michael Schroeder reports today in the Fort Wayne Journal Gazette in a story that begins:

Health care costs continue to climb, but Indiana doctors are getting a break on payments to a state fund that covers the lion’s share of costs for larger malpractice judgments.

Effective March 1, physicians’ annual surcharges to the Patient’s Compensation Fund will drop 19.1 percent. Hospitals will see a modest decrease, averaging 1.3 percent. This is the first rate reduction for doctors and hospitals since the fund’s inception in 1975.

The decrease amounts to a savings of $571 to $6,480 per physician, depending on specialty.

But don’t expect discounted rates at your next doctor’s visit. With rising overhead costs and lagging reimbursement from Medicare, Medicaid and some private insurers, doctors and practice managers say this surcharge decrease will have limited effect.

Still, proponents of Indiana’s malpractice system say the relatively low cost of malpractice coverage in the state – including private insurance – means more dollars for patient care.

Posted by Marcia Oddi on Monday, February 11, 2008
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

None scheduled.


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

This Thursday, Feb. 14th:

2:30 PM - Indiana State Police vs. Chad Arnold - The State of Indiana appeals the trial court's order denying its motion pursuant to Indiana Trial Rule 60(B), which requested relief from the trial court's order that the Indiana State Police expunge the arrest record of Chad Arnold. The State of Indiana contends that Arnold was not entitled to expungement. Arnold contends that the State's motion to set aside the expungement order was not timely. The Scheduled Panel Members are: Chief Judge Baker, Judges Darden and Bradford. [Where: Indiana Supreme Court Courtroom]

Webcasts will be available here.

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

This Tuesday, Feb. 12th:

1:30 PM - Larry Keesling, Vivian Keesling & Heritage Land Co. vs. T.E.K. Partners, LLC, et al - In this appeal after remand, Larry Keesling, Vivian Keesling, and Heritage Land Company (collectively "the Keeslings") appeal from the trial court's in rem judgment against T.E.K. Partners, L.L.C. The Keeslings raise three issues in this appeal, namely, whether the trial court erred when it determined the amount owed; whether the trial court erred when it ordered certain collateral sold in satisfaction of that amount; and whether the trial court erred when it did not discharge certain collateral. T.E.K. alleges that the trial court has already corrected the order stating the amount owed and that the other issues are waived because they were known and available, but not raised in the first appeal. The Scheduled Panel Members are: Judges Najam, Bailey and Crone. [Where: Indiana Court of Appeals Courtroom]

This Wednesday, Feb. 13th:

10:00 AM - Lake County Trust Co., et al, vs. Advisory Plan Commission of Lake County, Indiana - Lake County Trust Company, Trustee under Trust Agreement Dated November 1, 2002 and Known as the DSK Family Trust No. 5400, et al. ("Trust Company"), filed a Verified Petition for Writ of Certiorari to obtain judicial review of the decision of the Advisory Plan Commission of Lake County ("Plan Commission") denying primary plat approval for a subdivision. The trial court ordered the parties to mediate, after which the parties signed a written Settlement Agreement. When the Plan Commission failed to approve the Settlement Agreement, Trust Company filed a Motion to Enforce Mediated Settlement Agreement, which the trial court granted. After a hearing on costs and sanctions, the trial court awarded Trust Company their mediation costs but held that, though the Plan Commission had acted in bad faith, it was immune as a governmental entity from the imposition of sanctions. On appeal, Trust Company argues that the Plan Commission is not immune from the imposition of sanctions and that Trust Company may recover attorney fees from Plan Commission. The Plan Commission cross appeals, arguing that its attorneys could not bind it to a settlement agreement in violation of Indiana's Open Door Laws, that its attorneys did not represent themselves as having the authority to bind it during mediation, and that Trust Company's allegations are insufficient for a finding of bad faith. The Scheduled Panel Members are: Judges Sharpnack, Vaidik and Barnes. [Where: Indiana Court of Appeals Courtroom]

Posted by Marcia Oddi on Monday, February 11, 2008
Posted to Upcoming Oral Arguments

Sunday, February 10, 2008

Environment - "EPA's mercury rule struck down" [Updated]

On Friday the Court of Appeals for the DC Circuit threw out the USEPA mercury rule. Here are some quotes from the story that ran in the Indianapolis Star:

WASHINGTON -- A federal appeals court struck down an Environmental Protection Agency regulation on mercury emissions Friday that environmentalists had criticized as weak and illegal.

The decision marked a victory for 14 states, environmental groups and American Indian tribes that had challenged the EPA's Clean Air Mercury Rule. But it did not guarantee the deep cuts in mercury emissions those groups seek.

Coal-burning power plants are the single largest domestic source of mercury emissions. Nearly 500 plants supply about half the nation's electricity.

A three-judge panel on the U.S. Circuit Court of Appeals for the District of Columbia ruled the EPA violated the Clean Air Act in 2005 when it exempted coal-burning power plants from the act's most stringent requirements for cleaning up hazardous pollutants.

Friday's decision means the EPA must start over in crafting a regulation to cut mercury emissions.

The judges also invalidated the agency's plan to adopt a "cap and trade" program to cut mercury emissions from power plants. The program would have allowed power plants to buy and sell mercury pollution credits.

A Star sidebar notes:
About 95 percent of Indiana's electricity comes from coal-fired plants. In 2005, Indiana's mercury emissions totaled 6,435 pounds. That puts the state fourth nationwide in mercury emissions.

In October, Indiana's Air Pollution Control board set a goal of a 66 percent reduction in mercury emissions from coal-fired power plants. However, that was based on the EPA plan to allow the buying of pollution credits. That plan was struck down Friday, sending the federal agency back to the drawing board.

Here is a comprehensive story from the Environment News Service. Also the LA Times, the NY Times, and NPR.

Here is a link to the 18-page opinion, New Jersey v. USEPA.

Here is a summary of the opinion prepared by Barnes & Thornburg LLP:

On February 8, 2008, the U.S. Court of Appeals for the D.C. Circuit vacated two major EPA air quality rules: the "Delisting Rule" and the "Clean Air Mercury Rule (CAMR)." In 2005, EPA delisted coal- and oil-fired electric utility steam generating units (EGUs) from the list of source categories regulated by the Maximum Achievable Control Technology (MACT) standards for Hazardous Air Pollutants (HAPs) under Section 112(c) of the Clean Air Act (CAA) (the "Delisting Rule"). Subsequently, EPA promulgated the CAMR to regulate the coal-fired EGUs under Section 111 of the CAA in lieu of Section 112. The Section 111 requirements included performance standards for new coal-fired EGUs, general mercury limits for States and certain tribes, and a voluntary cap-and-trade program for new and existing coal-fired EGUs.

In today's decision, the D.C. Circuit determined that EPA did not properly delist the coal- and oil-fired EGUs in 2005, because, by EPA's concession, it did not make the necessary findings to do so. Specifically, EPA failed to make a determination under Section 112(c)(9) that EGU emissions do not exceed adequate levels to protect public health or cause adverse environmental effects. The Court found that such determinations rigidly apply to "any listed source" under Section 112(c) and EPA does not have discretion to avoid making them - even to reverse previous EPA determinations. By failing to delist EGUs properly, they must remain on the list of sources covered under Section 112(c) of the CAA. Sources listed under Section 112 cannot be regulated under Section 111, thus invalidating the entire CAMR as well.

[Updated] Note that the 31-page Indiana Air Pollution Control Board rule, LSA #05-116, which "adds 326 IAC 24-4 concerning mercury emissions from coal-fired power plants to implement the federal Clean Air Mercury Rule (CAMR)," took effect Feb. 3rd, 2008.

Posted by Marcia Oddi on Sunday, February 10, 2008
Posted to Environment

Ind. Decisions - More on: OK, where are these opinions?

On Jan. 23rd, the ILB posted an entry headed "OK, where are these opinions?" The entry reported that, although the Clerk of the Court's office had changed long-established practice and was no longer making paper copies of opinions available, causing everyone to rely on the copies of the opinions posted online by the Clerk's Office, the Office was not keeping up its end of the bargain. NO opinions had been posted by the Office since Jan. 18th, although a large number of opinions had in fact been issued.

The ILB quickly discovered that the failure in timely posting of opinions was only the tip of a much larger iceberg -- the Clerk's Office was far behind in keeping up with the paperwork demands on its office. An interview by the ILB with Chief Judge John Baker that same day led to this entry, which reported in part:

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 few minutes later the ILB received and posted an email from an appellate practitioner who said in part about Judge Baker's comments:
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.
All this occurred on January 23th. The ILB believes the beneficial result has been to focus attention on the important responsibilities of the Clerk's Office and the need for the money and manpower for it to do its job.

Confirming this, a story has appeared in the Feb. 6th issue of the Indianapolis Indiana Lawyer, reporting the above in greater detail.

Posted by Marcia Oddi on Sunday, February 10, 2008
Posted to Indiana Courts | Indiana Decisions

Ind. Courts - Reports on bills of interest to the Judiciary that were discussed last week

ILast Friday, Feb. 8th, the Indiana Judicial Center posted its sixth installment of very useful reports for 2008 on bills of interest to the Judiciary. Access them here.

Posted by Marcia Oddi on Sunday, February 10, 2008
Posted to Indiana Courts

Ind. Law - Still more on: Uzelac's name ordered removed from May 8 primary ballot

Updating a long list of ILB entries on the question of whether a convicted felon may run for office in Indiana, Chas Reilly of the NWI Times reported Saturday:

MERRILLVILLE | Former Town Councilman David Uzelac's appeal of a ruling that left him ineligible to run for public office in the 2007 general election has been tossed out of appeals court.

The dismissal comes almost a year since Lake Circuit Court Judge Lorenzo Arredondo issued an order instructing the Lake County elections board to declare Uzelac ineligible to run for Town Council, to reject his declaration of candidacy and to remove his name from the primary ballot.

That decision came after current Councilman Tom Goralczyk challenged Uzelac's right to run for re-election because of a criminal past.

Uzelac, who had served as the 4th Ward town councilman since 1998, pleaded guilty more than two decades ago to the 1984 theft of cash from the former Captain D's restaurant on U.S. 30 in Merrillville.

A loophole in state law at the time permitted Uzelac to hold public office because the sentencing judge in his case reduced his crime from a felony to a misdemeanor. A 2005 Indiana law closed that loophole.

There is no COA opinion on this; instead there is an Order (in 45 A 04 - 0705 - CV - 00274 UZELAC, DAVID, ET AL.-V- GORALCZYK, TOM) issued by Chief Judge Baker, Judges May and Robb, and Sr. Judge Hoffman, dated Jan. 18, 2008, granting the State's motion to dismiss the appeal as moot. Upon review on Jan. 29, 2008, the panel, with Sr. J. Hoffman dissenting, reaffirms their dismissal of the appeal.

Posted by Marcia Oddi on Sunday, February 10, 2008
Posted to Indiana Law

Ind. Law - Last Week in Review at the Indiana General Assembly

The Evansville Courier & Press' Bryan Corbin's review this Sunday of the past week in the General Assembly is headlined "Lawmakers weigh paper gambling games for bars." The story reports:

Although property-tax relief is still the predominant issue in the Legislature, the kickoff of the session's second half saw a new issue emerge: Another possible expansion of legalized gambling.

Since 1988, Indiana has in stages approved a state lottery, riverboat casinos, two pari-mutuel horse tracks, a land-based casino in French Lick, Ind., and charity gaming.

The story continues with a review of other action.

Posted by Marcia Oddi on Sunday, February 10, 2008
Posted to Indiana Law

Saturday, February 09, 2008

Ind. Gov't. - See every governmental expenditure of over $100 online?

State contracts. When Gov. Daniels came into office, he said he would put state contracts online for everyone to see. And indeed he did, simply by issuing an executive order. Initially what was made available was a long, hard to navigate list of all active contracts, albeit with links to the actual contract document. Post July 1, 2006, however, the accessibility was refined, making access simpler.

Concerns. "Active" contract seems to be a key phrase, the ILB is not sure that access to contract documents that have concluded or expired during the Daniels' administration remains available. It should be. Also, a plan should be in place to archive this information online into the future. Every administration should not do it differently, or not at all.

Expenditures. Historical "actual expenditures" of state agencies may be found in the State Budget Agency "as-submitted" budgets for past years.

Concerns. This information is not particularly timely and is not broken down in sufficient detail in these reports. Detailed information does exist, but is not online.

State salaries. In Indiana the salary of every state employee is now available online.

Concerns. Unfortunately, it has not been the State of Indiana that has posted this information online. It has been the Indianapolis Star that has stepped up to fill the void.

State and local expenditures. Gov. Daniels made his announcement about contract accessibility four years ago. Since that time, some other states have initiated efforts to assure greater governmental financial transparency. Their goal has been to make not only every contract, but a record of every state expenditure of over $100 available online.

And, after reading this eye-opening article today by Peter Schnitzler of the Indianapolis Business Journal, many of us may be crying out for such transparency for both state and local governmental units, down to the level of the local township trustee's office.

What are other states doing?

Alaska - From the story "State Checkbook Goes Online" dated 2/6/08:

JUNEAU — Want to know how much the Department of Transportation spent on guardrails from AAA Fence Co. last year? How much the Department of Revenue paid Gaffney, Cline and Associates for help with oil and gas issues? Or how much your local lawmaker billed the state for travel expenses?

Now you can. Easily.

Gov. Sarah Palin announced Tuesday she was putting all the state’s expenses online. She said about a dozen other states are already doing it and added that she got hooked on the idea after talking with other governors at the National Governors Association annual meeting.

“Alaskans deserve open, transparent government,” she said at a news conference.

All of the information posted online is public information. The goal of posting it online is to make the information much more accessible to the general public.

Sen. Bill Wielechowski, D-Anchorage, is sponsoring a bill that would require the state to post its expenses. His office said Tuesday he would keep pushing the bill, SB 201, to make sure the online service continued beyond Palin’s time in office.

For now, Palin’s site includes information for every payee that received more than $1,000, including the name and location of the company and what the payment was for. It doesn’t have employee salaries or certain information where confidentiality could be an issue, such as heating assistance or unemployment payments.

The information is organized by department, payee, and type of expense in searchable spreadsheets, each of which fills hundreds of pages.

Department of Administration Commissioner Annette Kreitzer described the site as a work in progress and said the state is still looking at ways to deal with employee salaries and confidential information.

“It’s not perfect ... but we wanted to get something out there to get started,” she said.

Here is the new State of Alaska Online Checkbook.

Nebraska. Nebraska's site, NebraskaSpending.com, is hosted by its state treasurer. Right offhand, I don't find the site to be user friendly and do not see payee information. According to this release, it is a website "in the works."

South Carolina - Gov. Sanford issued an Executive Order on Governmental Spending Transparency on Aug. 30, 2007 mandating the reporting online of state expenditures in detail (see the Order). The information is required to be online no later than March 1, 2008 for expenditures already incurred in the 2007-2008 fiscal year. (As of this writing, no information is yet available online.)

Show Me the Spending is the website of a coalition dedicated to transparency in state government spending. Access it here.

In Sum. Although much heralded, the ILB has found other states' efforts to be a disappointment so far.

Indiana is in a position to put a system in place to lead this effort, as it now leads the effort to bring transparency to state contract information.

Transparency in Indiana government spending may be accomplished via executive order, or by legislation. One caveat about the executive order route is the need for the permanence of these new databases down the line, when administrations change.

Posted by Marcia Oddi on Saturday, February 09, 2008
Posted to Indiana Government

Ind. Decisions - "The situation has become absurd enough that it might have been amusing if not for the judicial resources that have been required to resolve it"

Federal District Magistrate Judge, William T. Lawrence on Friday issued an interesting 8-page Entry Regarding Post-Trial Motions regarding costs in the case of Mark Custer v. Schumacher Racing Corp.. Here are the beginning and end of the ruling:

This was a well-litigated case involving competent attorneys that in the end resulted in the entry of summary judgment in favor of Defendant Schmacher Electric Corporation and a jury verdict in favor of Defendant Schumacher Racing Corporation. The myriad of motions that have been filed in this case since the entry of final judgment can best be summed up as an unfortunate, surprising, and disappointing battle between attorney Dan Buba, counsel for the Plaintiff, and attorney Cory Watkins, counsel for the Defendant. Indeed, the situation has become absurd enough that it might have been amusing if not for the judicial resources that have been required to resolve it. * * *

Mr. Buba and Mr. Watkins managed to turn what should have been a routine bill of costs requiring minimal time and effort on the part of both counsel and the Court into an unpleasant chore than has commanded far more attention from the Court than was warranted. It is the Court’s sincere hope that both attorneys now realize the impropriety of their behavior and regret using the Court’s docket as a forum for airing their apparent animosity toward one another.

Posted by Marcia Oddi on Saturday, February 09, 2008
Posted to Ind Fed D.Ct. Decisions

Courts - Residential neighborhoods, church building projects, and the RLUIPA

"The Connecticut Supreme Court Reaches the Right Decision In a Case Under the Religious Land Use and Institutionalized Persons Act" is the title to an article published this week on FindLaw by Law Prof. Marci Hamilton, who has written frequently in this area, about an issue that has come up often recently, including in Indianapolis neighborhoods. Her article begins:

The Connecticut Supreme Court recently decided an important religious land use case. The case, Cambodian Buddhist Society of Conn. v. Planning and Zoning Comm'n of the Town of Newtown, addressed what has become an increasingly serious problem in the era of the Religious Land Use and Institutionalized Persons Act: an ambitious religious project wanting to locate its facilities in a residential neighborhood.

The decision is most remarkable for its solid common sense. Two of the most contentious issues in RLUIPA cases have been as follows: First, what land use laws are "individualized assessments"? This question is significant because the terms of the statute require that an extremely demanding legal test -- strict scrutiny - be applied to individualized assessments. Second, and relatedly, do special exception and special permit requirements inherently trigger RLUIPA's strict scrutiny requirement?

The Connecticut Supreme Court provided correct and sensible answers to both questions.

Posted by Marcia Oddi on Saturday, February 09, 2008
Posted to Courts in general

Ind. Decisions - "Former UE professor loses appeal"

Referencing the Jan. 29 NFP of the COA in the case of William M. Felsher v. University of Evansville, University of Evansville Press and Dr. George C. Klinger (see ILB entry here - 4th case), Mark Wilson reported Friday in the Evansville Courier & Press in a story that begins:

A former University of Evansville professor has lost his appeal in a lawsuit alleging a book published by the university defamed him.

William M. Felsher filed the complaint in July 2006 in Vanderburgh Circuit Court, but Special Judge Wayne Trockman granted a summary judgment in favor of UE after finding that Felsher didn't prove his case.

Acting as his own attorney, Felsher appealed that ruling to the Indiana Court of Appeals, which ruled against him last week. In its decision, the appeals court noted Felsher did not provide a complete record of case to support his argument.

Felsher declined to comment about the appeals court decision Wednesday. However, a university official said the decision underscored the detail that went into to the writing of: "We Face the Future Unafraid: a Narrative History of the University of Evansville," by George Klinger.

"We are pleased by the court's ruling and we feel that it reflects the diligence that we as a university put into ensuring the accuracy of the book," said Jeffery Wolf, UE vice president of fiscal affairs.

Posted by Marcia Oddi on Saturday, February 09, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - No transfer list for week of Feb. 8th, 2008

No transfer list was issued by the Supreme Court for the week ending February 8, 2008

Posted by Marcia Oddi on Saturday, February 09, 2008
Posted to Indiana Transfer Lists

Environment - Even more on "Randolph County could zone 220,000 acres for CAFOs"

Updating this ILB entry from Jan. 8th, which quoted a report that:

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.
Joy Leiker, Henry and Randolph county reporter for the Muncie Star-Press writes today:
WINCHESTER -- One of the nation's largest pig producers has filed suit in Randolph County, hoping to overturn a moratorium that blocks its local expansion.

According to the suit, "The moratorium has adversely affected Maxwell Foods' plans for the development of additional CAFO (concentrated animal feeding operation) facilities."

In papers filed this week, Maxwell Foods asked Randolph Circuit Court to determine the validity of a moratorium approved Jan. 7 by a 2-1 vote of the board of county commissioners. The board is named in the suit.

Attorneys for Maxwell Foods, a North Carolina company, insist the moratorium is "null, void and unenforceable under Indiana law" because it wasn't enacted properly. They've asked a judge to make a declaratory judgment in the case.

Commissioner Kathy Beumer made a motion to approve the moratorium during a regular commission meeting. The motion came moments after the commission voted against an ordinance that would have toughened the county's zoning rules for CAFOs and the smaller confined feeding operations (CFOs.)

Beumer's motion included a condition that the moratorium remain in effect until seven issues (including affects on water supplies and the housing market) are "thoroughly investigated and resolved."

Daniel McInerny and Alex Intermill, the attorneys from Indianapolis firm Bose, McKinney and Evans, assert that Beumer's motion and the commission's subsequent vote act as a zoning ordinance "as it regulates the use of land" in the county.

And as an ordinance, the attorneys allege it wasn't approved properly.

State statute notes the adoption of a zoning ordinance must be initiated by the planning commission.

Three farmers have since filed improvement location permits with the Area Planning Commission of Randolph County. The farmers raise pigs for Maxwell Foods, and sought the permits to expand their operations. All were denied.

Executive Director Cathy Flatter said the denials were based on the moratorium.

The farmers, Greg Sickels, Aaron Chalfant and Gary Foulke, are named, along with Maxwell Foods, as plaintiffs in the case. All are being represented by the same Indianapolis law firm. The Board of Commissioners is the lone defendant.

Chalfant is the son of county Commissioner Ron Chalfant.

Others already have accused the elder Chalfant of a conflict of interest, though he has denied any such conflict. A farmer, he's a staunch supporter of the local agriculture community. He cast the lone vote against the moratorium last month.

Posted by Marcia Oddi on Saturday, February 09, 2008
Posted to Environment

Ind. Courts - More on "Judge admits he's target of criminal probe"

Updating this entry from yesterday, Nick Werner reports today in the Muncie Star-Press, in a long story under the headline "Judge says he was target of extortion attempt," that begins:

MUNCIE -- Judge Wayne Lennington said Friday he believed an extortion attempt might have kindled an already existing investigation into his business affairs.

"If I would have paid him, I'm sure it wouldn't have gone anywhere," said the Delaware Circuit Court 5 judge. "But I wasn't going to do that."

On Friday, Lennington provided The Star Press with a copy of an e-mail whose author threatened to deliver to federal investigators information that was damaging to Lennington and a business partner, Joseph Gray, unless the men paid him $250,000.
On Thursday, Lennington, 77, had confirmed rumors that he was under investigation -- by Indiana State Police and the Delaware County prosecutor's office -- at least in part over his business connections to ESS Investments LLC, which is operated by Gray and chartered out of Westerville, Ohio.

The exact specifics of the investigation remain unknown.

Posted by Marcia Oddi on Saturday, February 09, 2008
Posted to Indiana Courts

Friday, February 08, 2008

Ind. Decisions - Court of Appeals issues 3 today (and 17 NFP)

For publication opinions today (3):

In Charles Downey Family Limited Partnership v. S & V Liquor, Inc. , a 15-page opinion, Judge Barnes writes:

Charles Downey Family Limited Partnership (“CDFLP”) appeals the amount of damages it was awarded in its eviction action against S & V Liquor, Inc. (“S & V”). It also appeals the trial court’s award of attorney fees to S & V. We affirm.

The issues before us are: I. whether the trial court properly calculated the damages CDFLP was entitled to following S & V’s continuing to occupy property CDFLP owned beyond the lease’s expiration; and II. whether the trial court properly awarded attorney fees to S & V for CDFLP’s alleged bringing of a frivolous or groundless claim against S & V.

In Dietrich Industries, Inc. v. Teamsters Local Unit 142, and Review Board , a 9-page opinion, Judge May writes:
Dietrich Industries appeals the Unemployment Insurance Review Board’s determination that its employees were eligible for benefits during a lockout and the subsequent “start up” period. We affirm.
In LaSalle Group, Inc. v. Electromation of Delaware County, Inc. , a 6-page opinion, Judge May writes:
LaSalle Group appeals an order finding its arbitration agreement with a subcontractor was void and accordingly denying its motion to enforce the agreement. As the Indiana statute on which the trial court relied is preempted by federal law, we reverse. * * *

Those courts that have considered statutes that purport to limit arbitration provisions in the manner the Indiana statute does have consistently determined the state statutes are preempted by the Federal Arbitration Act. * * * The Indiana Code provision before us is preempted for the same reasons. * * * We must accordingly reverse the denial of LaSalle’s motion to enforce the arbitration agreement. Reversed.

NFP civil opinions today (5):

Debra Hafenbridle v. Gary Hafenbridle (NFP)

Steven B. Sexton v. Deborah L. Sexton (NFP)

Term. of Parent Rights of B.H., B.H., and B.H., and Ronald H. v. Tippecanoe Co. Dept. of Child Services (NFP)

Lake Co. Board of Commissioners and Lake Co. Sheriff's Dept. v. Review Board, and Gary Midkiff (NFP)

Ky Morton v. Jerome P. Ivacic (NFP)

NFP criminal opinions today (12):

Shawn M. Siener v. State of Indiana (NFP)

Keith Powell v. State of Indiana (NFP)

Maceo Neal v. State of Indiana (NFP)

Demetrius Burks v. State of Indiana (NFP)

Richard W. Dailey v. State of Indiana (NFP)

Jason Eichelberger v. State of Indiana (NFP)

Robert Young v. State of Indiana (NFP)

Robert G. Miller v. State of Indiana (NFP)

Dede Marie Cheffer v. State of Indiana (NFP)

James D. McCreary v. State of Indiana (NFP)

Charles W. Bell v. State of Indiana (NFP)

Melissa Bergman v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, February 08, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Judge admits he's target of criminal probe"

Nick Werner reports today in the Muncie Star-Press in a story that begins:

Delaware Circuit Court 5 Judge Wayne Lennington acknowledged Thursday he is under criminal investigation for his connection to investment properties but denied any wrongdoing.

Lennington, 77 -- a local attorney for four decades before his 1998 appointment to the bench -- said he was guilty only of associating himself with an Ohio man he now describes as a scam artist.

"I didn't do nothing except get screwed," the judge said.

Posted by Marcia Oddi on Friday, February 08, 2008
Posted to Indiana Courts

Thursday, February 07, 2008

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Terry Leatherwood v. State of Indiana , a 9-page opinion, Judge Bradford writes:

Appellant-Petitioner Terry Leatherwood appeals from the denial of his petition for post-conviction relief (“PCR”). Leatherwood contends that the post-conviction court erred in refusing to apply the holding of Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007), that an amendment of substance to a charging information will be allowed no later than thirty days prior to the omnibus date. In this case of first impression, we affirm.
NFP civil opinions today (2):

Jay M.Yoon v. Estate of Sunny Nam Eversoll, Jay M. Yoon, Jr. (NFP)

John B. Lind v. Menard, Inc., et al (NFP)

NFP criminal opinions today (2):

Miriam Rutherford v. State of Indiana (NFP)

Kevin Tharp v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, February 07, 2008
Posted to Ind. App.Ct. Decisions

Wednesday, February 06, 2008

Ind. Courts - "I'll vote for your dad if you vote for my mom!"

"The sons of Allen County Circuit Court Judge Tom Felts have created a Facebook Group in support of the Judge's re-election." So begins this entry this afternoon in Mitch Harper's blog, Fort Wayne Observed.

Posted by Marcia Oddi on Wednesday, February 06, 2008
Posted to Indiana Courts

Courts - "Oh, to be an in-house lawyer for big pharma".

So wrote the Wall Street Journal Law Blog, in an entry yesterday headed "Eli Lilly in Advanced Talks With Feds over Zyprexa Probe", which is followed by today's entry, headlined "Lawyer’s Email Slip-up Leads to Zyprexa Leak."

Posted by Marcia Oddi on Wednesday, February 06, 2008
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Philip A. Paulsen v. Marylou Malone , a 7-page opinion, Judge Bradford writes:

Appellant-Defendant Philip Paulsen appeals the trial court’s order granting Appellee-Plaintiff Marylou Malone’s motion to correct error. We restate the issue as whether the thirty-day time limit for a trial court to rule on a motion to correct error in Indiana Trial Rule 53.3(A) begins to run on the date of the hearing or, if the parties submit additional authority, on the date such additional authority is submitted. Concluding that the thirty-day time limit begins to run on the date of the hearing, we reverse and remand.
In J.F. Schrader v. Porter County Drainage Board , a 14-page opinion, Judge Riley writes:
Schrader raises three issues on appeal which we restate as follows: (1) Whether the trial court erred by ruling it was permissible for the Drainage Board to omit documents about E-coli contamination problems in the Swanson-Lamporte Ditch from the record after the documents were presented to the Board during its public hearing; (2) Whether the trial court erred by permitting the Drainage Board to exclude portions of the watershed from the maintenance assessment area; and (3) Whether the trial court erred by approving the flat rate maintenance assessment of the Swanson-Lamporte Ditch, as established by the Board. * * *

As indicated by the Drainage Board during its public hearing of October 12, 2005, a clean-up of a purported E-coli contamination in the Drain would not be the responsibility of the Board and any assessments collected by the Drainage Board could not be used to address that possible problem. Therefore, we conclude that any paperwork with regard to an E-coli contamination, referenced by Schrader and Mr. Hewitt, did not have to be included in the record as it is not pertinent to the establishment of a maintenance fund. * * *

Based on the foregoing, we conclude that (1) the trial court properly ruled that the Drainage Board did not have to admit documents about a purported E-coli contamination; (2) the Drainage Board was justified in excluding portions of the Drain’s watershed from the assessment area; and (3) the Drainage Board’s imposition of a uniform assessment rate was not arbitrary as a matter of law.

NFP civil opinions today (1):

In Desi G. Jones and Richard A. Jones v. Indiana Insurance Company (NFP), a 16-page opinion, Judge Robb writes:

Desi and Richard Jones, pro se, appeal from the trial court’s order dismissing their claims against Indiana Insurance Company (“Insurance”). The Joneses raise several issues, one of which we find dispositive: whether the trial court properly dismissed the Joneses’ complaint based on the ground that it was brought beyond the expiration of a limitation clause in their insurance contract. We also address whether the Joneses’ claims for interference with economic relations, intentional infliction of emotional distress, and negligence state claims on which relief can be granted. We conclude the Joneses’ claims for interference with economic relations and negligence fail to state cognizable claims. However, we also conclude the trial court improperly dismissed the action on its stated ground and remand for further proceedings on the remaining claims.
NFP criminal opinions today (3):

In the Matter of C.M. v. State of Indiana (NFP)

Gregory Nurrenberg v. State of Indiana (NFP)

Jason Gibbs v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, February 06, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues attorney discipline action

In the Matter of Richard M. Bash is a 6-page, Per Curiam, attorney discipline action:

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action." We find that Respondent, Richard M. Bash, engaged in attorney misconduct by failure to provide competent legal services to one client and attempted sexual misconduct with another client.

The Respondent's 2000 admission to this state's bar subjects him to this Court's disciplinary jurisdiction. USeeU IND. CONST. art. 7, § 4. For his misconduct, we find that Respondent should be suspended from the practice of law in this state for at least 180 days without automatic reinstatement.

Posted by Marcia Oddi on Wednesday, February 06, 2008
Posted to Ind. Sup.Ct. Decisions

Courts - "Judges can't take Duke case"

Dan Horn reports today in the Cincinnati Enquirer:

Four federal judges in Cincinnati have bowed out of the antitrust case involving Duke Energy.

The chief judge says the problem is that every federal judge in town is a Duke customer, which makes them all potential parties to the class-action lawsuit filed last month against the utility.

The suit accuses the company, which has 680,000 electric customers in southern Ohio, of paying kickbacks to its biggest corporate customers in exchange for their support of a rate increase.
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It seeks damages on behalf of residential customers.

"I'm a customer, as most of us are who live in this area," U.S. District Judge Sandra Beckwith, chief judge for the southern district of Ohio, said. "No one around here could ethically handle the case."

The case has been reassigned three times since it first went to Judge Herman Weber on Jan. 16. Judges Michael Barrett, Susan Dlott and, finally, Beckwith subsequently recused themselves from the case.

Beckwith said all of the judges are customers of Duke and, therefore, have a conflict of interest. Dlott also is married to Stan Chesley, one of the lawyers who filed the lawsuit.

Beckwith sent the case to Columbus this week hoping to find a judge there who doesn't buy gas and electric service from Duke; the company does not serve the Columbus area.

If that fails, Beckwith said, she might have to assign the case to a visiting judge from out of state.

The suit claims Duke signed side deals with big commercial and industrial customers in 2004 to secure their support for a rate increase, later approved by Public Utilities Commission of Ohio.

Duke officials say the deals are common in the industry and had no bearing on the rate-increase approval.

Posted by Marcia Oddi on Wednesday, February 06, 2008
Posted to Courts in general

Ind. Courts - More on Muncie mayoral election contest

"Republicans today will try to convince a judge to dismiss a lawsuit seeking a special election in Precinct 46' was how a report in the Jan. 23rd Muncie Star-Press began.

Today a story in the Star-Press by Nick Werner begins:

MUNCIE -- Indiana State Police on Tuesday morning confiscated boxes of election materials in connection with an ongoing investigation into last November's mayoral race.

The boxes were moved from the Delaware County Building into a van.
Sgt. Darrell Thornburg, an ISP investigator, would not comment on exactly what authorities confiscated and where they were taking it, referring those questions to Delaware County Prosecutor Mark McKinney.

Efforts to reach McKinney for comment Tuesday were unsuccessful.

McKinney announced last week he was launching a joint investigation into the election with Indiana Attorney General Steve Carter, the Indiana Secretary of State's office and state police.

Both political parties have accused each other of wrongdoing in connection with the election, which saw Republican Sharon McShurley declared the winner at the end of recount proceedings in December. Her Democratic opponent, James Mansfield, had earlier been certified as the race's winner.

The majority of allegations, however, have centered around Democratic City Council member Monte Murphy, who Republicans have accused of illegally collecting absentee ballots in Precinct 18.

Also today, Nick Werner reports:
MUNCIE -- Democrats Monday lost a legal battle to get a special election in Precinct 46, where a problem with absentee ballots cost Jim Mansfield the mayor's race.

Special Judge Joel Roberts of Jay County dismissed a lawsuit by Democrats on the basis that Democrats missed a statutory deadline to file for a special election.

The decision, according to Republicans, essentially ends the election debate and seals Republican candidate Sharon McShurley's fate as the rightful mayor of Muncie.
McShurley took office Jan. 1.

Democrat attorney Mike Quirk, however, argued he would continue to fight to get Mansfield in office.

The judge's ruling left open an opportunity for Democrats to make changes to their lawsuit and file it with the court one more time, Quirk said.

"I don't want to get into too much detail," Quirk said. "I don't want to tip my hand to anybody. But it's not over." * * *

Democrats filed a petition Dec. 27 with Delaware Circuit Court 5 seeking a special election in Precinct 46, to determine the true winner of the mayor's race.

According to Indiana law, only a losing candidate can file a petition for a special election and must do so no later than 14 days after the original election.

Muncie Democrats argued the statutory deadline did not apply in this case because Mansfield was originally certified the election winner, precluding him from filing the special election petition in a timely manner.

Roberts disagreed with Democrats argument, noting that courts have consistently required strict compliance with the statutory requirements in the cases of special elections.

Posted by Marcia Oddi on Wednesday, February 06, 2008
Posted to Indiana Courts

Ind. Courts - "Judge Phillip I. Adler has filed as a Democrat for re-election to Vigo County Superior Court Division 2"

From the Terre Haute Trib-Star:

Incumbent Judge Phillip I. Adler has filed as a Democrat for re-election to Vigo County Superior Court Division 2, a position he has occupied since Jan. 1, 1997.

Posted by Marcia Oddi on Wednesday, February 06, 2008
Posted to Indiana Courts

Ind. Courts - "Incumbent Welch exits race for Monroe Circuit Court judge"

Sarah Morin reports ($$) in the Bloomington Herald-Times in a story that begins:

Monroe Circuit Judge David Welch announced Tuesday that he will no longer seek a fourth term, alluding to members of his own Democratic Party dissuading him from doing so.

His four-sentence statement comes less than a week after he said in a prepared statement he would run for re-election.

Welch refused to give details or further comments on his decision to withdraw from the judge’s race or how party members dissuaded him.

“The essence of my decision is in that statement,” Welch said when reached by phone.

Monroe County Democratic Party Chairwoman Lee Jones said Welch called Sunday to inform her of his decision. She said she was astounded, and that no party official had dissuaded him from re-election.

More from the story:
He was first elected as a judge in 1990.

Bloomington attorney Fred Turner announced Tuesday that he is interested in running as a Democrat for the judge’s seat currently held by Welch.

As of Tuesday, no one had officially filed for the seat with the county clerk’s office.

Party chairwoman Jones said she expects a big May 6 primary, which is usually the case when there’s an open judge’s seat because they don’t come open very often.

Judge Welch is the husband of state representative Peggy Welch.

Posted by Marcia Oddi on Wednesday, February 06, 2008
Posted to Indiana Courts

Ind - Courts - "Bom To Seek LaPorte Superior Court 3"

From the Michigan City News-Dispatch:

Attorney Steve Bom has announced he'll seek the Republican nomination for La Porte Superior Court 3 Judge in the May primary election. * * *

"And I am the only candidate who challenged the retiring judge, Paul Baldoni, twice for this office during his illustrious and honorable tenure."

Bom said having appeared in front of countless judges in courtrooms all over the country, he's seen processes and procedures that work well and others that don't. He said if elected, we'll attempt to implement those changes that will make Superior Court 3 a better, more efficient, court.

Posted by Marcia Oddi on Wednesday, February 06, 2008
Posted to Indiana Courts

Tuesday, February 05, 2008

Ind. Decisions - More on: "Judge in Behrman case rejects bid for new trial"

Updating this ILB entry from Feb. 14, 2007, the Louisville Courier Journal reports today:

Arguments are set for next month in the appeal of a man convicted of murdering Jill Behrman, a 19-year-old Indiana University student.

The three-member Indiana Appeals Court has set the case for March 20 in Indianapolis.

In 2006, John Myers II was convicted of murdering Behrman, who disappeared in 2000 while cycling. Her remains were found in April 2003.

The appeal filed in September argues that jurors misbehaved and that pretrial publicity tainted the trial. It also questions whether a forensic pathologist’s opinion that Behrman had been raped, even though there was no evidence of sexual assault, should have been admitted.

Posted by Marcia Oddi on Tuesday, February 05, 2008
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Hamilton prosecutor files paperwork to seek circuit court judgeship"

Tania E. Lopez reports in the Indianapolis Star:

NOBLESVILLE, Ind. -- Hamilton County's prosecutor filed Monday to seek the job of circuit court judge.

Prosecutor Sonia Leerkamp's decision to put her name on the Republican ballot came two days before she is expected to settle a disagreement with the County Council -- also all Republicans -- over how she evaluates the employees in her office.

Judge Judith Proffitt announced last week she will not seek re-election, Leerkamp said. Proffitt, who ran as a Republican, did not return calls Monday.

"I found out Friday that Judge Proffitt would not file for re-election, so I thought I'd throw my name in the hat," Leerkamp said. "I've been an attorney for 33 years now, and when I first started as deputy prosecutor, I always had it in the back of my head that I eventually wanted to be judge."

Leerkamp, 60, is in her fourth term as prosecutor. She announced Jan. 18 that she would not run for re-election when her term ends in three years.

In 1993, Proffitt was the second woman to be elected a circuit court judge in Indiana.

County GOP Chairman Charlie White said Carmel City Court Judge Paul Felix and David Najjar, county magistrate, also intend to run for the judgeship as Republicans.

Leerkamp and Felix have faced off before. In 2006, Felix lost the GOP primary for prosecutor to Leerkamp by 143 votes.

Re the dispute between Leerkamp and the County Council, which is essentially a separation of powers issue, see this ILB entry from Dec. 24, 2007.

Posted by Marcia Oddi on Tuesday, February 05, 2008
Posted to Indiana Courts

Ind. Courts - Decision in: Wrongful death trial in Ball State student's 2003 shooting

Updating this ILB entry from Jan. 23th, Seth Slabaugh reports today in the Muncie Star-Press:

INDIANAPOLIS -- A former Ball State University police officer was found not liable Monday for the 2003 shooting death of a lost, unarmed, drunken student who allegedly charged at the officer. * * *

After a two-week trial, an eight-member [federal] jury found for ex-BSU officer Robert Duplain, the defendant in an excessive-force lawsuit brought by Tim McKinney, whose son Michael was fatally shot by Duplain in the backyard of 1325 W. North St.

Posted by Marcia Oddi on Tuesday, February 05, 2008
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Allen Circuit Judge Felts pursues re-election"

From today's Fort Wayne Journal Gazette:

With a brief news conference over the lunch hour inside the north entrance of the Allen County Courthouse, Circuit Judge Thomas J. Felts, a Republican, announced his plan to seek re-election.

A number of other Allen County judges and officials were on hand for Felts’ announcement Monday, including Allen County GOP Chairman Steve Shine.

If re-elected, it would be Felts’ second term on the bench. Felts was recently elected president of the Indiana Judges Association.

Posted by Marcia Oddi on Tuesday, February 05, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Diana and Christopher Williams v. Christy Kruszka (NFP) - "Christy Kruszka gave birth to Infant K. and executed a consent to adopt the next day. Diana and Christopher Williams, husband and wife, petitioned to adopt the child. They appeal the trial court’s decision to grant Kruszka’s subsequent petitions to withdraw her consent to adopt and to contest the adoption. We affirm."

In the Matter of B.M.G. and L.G., and John Goebel v. Lake Co. Office of Family & Children and Lake Co. CASA (NFP) - "Was the evidence sufficient to prove there is a reasonable probability that the conditions resulting in the children’s removal from Father’s care still exist or that continuation of the parent-child relationship poses a threat to the children’s well-being? We affirm."

NFP criminal opinions today (7):

In the Matter of K.W. v. State of Indiana (NFP) - "K.W. appeals from her adjudication as a juvenile delinquent. We affirm."

Robert Campbell v. State of Indiana (NFP)

Earl E. Wilson v. State of Indiana (NFP)

Charles B. Dillon v. State of Indiana (NFP)

Tami Briscoe-Beck v. State of Indiana (NFP)

Markus S. Singleton v. State of Indiana (NFP)

Edward Chandler v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, February 05, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides case involving UCC 405

In Auto-Owners Insurance Company v. Bank One, a 12-page, 3-2 opinion, Justice Sullivan writes:

Kenneth B. Wulf stole more than $500,000 from his employer, Auto-Owners Insurance Company, by depositing checks payable to Auto-Owners into a personal account he opened at Bank One in the name of “Auto-Owners, Kenneth B. Wulf.” Auto-Owners contends that Bank One violated § 405 of the Indiana Uniform Commercial Code by not exercising ordinary care when it opened Wulf’s account. However, we hold that § 405 applies to opening new accounts only in circumstances not present here. * * *

Shepard, C.J., and Rucker, J., concur.
Boehm, J., dissents in part with separate opinion in which Dickson, J., concurs. [The dissent begins] I agree with the majority that the statute of limitations bars much of Auto-Owners’s claim against Bank One. I also agree that the principal issues presented by Auto-Owners’s claim under the Uniform Commercial Code are (1) whether the bank failed to exercise ordinary care in ac-cepting Wulf’s checks, and (2) if so, the extent to which that failure contributed to Auto-Owners’s loss. I do not agree that Bank One is entitled to summary judgment because I believe both questions present issues of fact that are not resolvable on summary judgment.

Posted by Marcia Oddi on Tuesday, February 05, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Reports on bills of interest to the Judiciary that were discussed last week

Last Friday, Feb. 1st, the Indiana Judicial Center posted its fifth installment of very useful reports for 2008 on bills of interest to the Judiciary. Access them here. The report begins:

We have reached the halfway point of the session. This installment is a series of topical charts detailing the status of bills of interest to the Judiciary that were heard on third reading. If a bill was amended at any stage in the legislative process, it is designated with an “-A” at the relevant stage.

Posted by Marcia Oddi on Tuesday, February 05, 2008
Posted to Indiana Courts

Monday, February 04, 2008

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, which appeared Sunday, is headlined "Legislators tackle session's tough agenda." The story reports:

With the 2008 session not quite half over, the Indiana House has passed one version of property tax relief legislation while the State Senate has passed another.

Now the House and Senate trade bills and consider each other's proposals as the Legislature's short session shifts into its second half.

Although scrutinizing Gov. Mitch Daniels' property tax relief plan has taken up the bulk of the Legislature's time, lawmakers have voted on other important bills. The deadline for final action by both chambers is March 14, when lawmakers adjourn for the year.

The story continues with "a sampling of what's occurred so far."

Posted by Marcia Oddi on Monday, February 04, 2008
Posted to Indiana Law

Ind. Courts - A number of stories on judicial candidates

Here are some recent stories on candidates for the judiciary:

From the South Bend Tribune:

Former Cass County Prosecutor Scott Teter announced today that he is running for district judge.

Teter, 45, is seeking to succeed Cass County 4th Judicial District Court Judge Paul Deats, who plans to retire at the end of the year. Woops! That was Cass County MICHIGAN

From the Crawfordsville Journal Review: Peggy Quint Lohorn announces decision to seek re-election as Judge of the Montgomery Superior Court 2.

Also from the Journal Review: "S. Bryan Donaldson, a local attorney the last 19 years ... has announced his candidacy to run to become Judge of Montgomery County Superior Court I. His competition will be David Ault, who has been the Superior Court I Judge for the past 18 years and who is running for re-election."

From the Shelbyville News: "Judge Russell J. Sanders has announced that he will seek re-election as judge of Shelby Superior Court II. First elected in 1996, Sanders is completing his second full term this year."

In addition, Allen Circuit Court Judge Thomas Felts has announced for reelection, although the ILB has not seen a newspaper story containing the announcement.

Posted by Marcia Oddi on Monday, February 04, 2008
Posted to Indiana Courts

Ind. Courts - More on "Carroll County judge charged with public intoxication"

Updating this ILB entry from Dec. 29, 2007, Debbie Lowe of the Carroll County Comet reports:

Carroll Circuit Court Judge Donald Currie pled not guilty at an initial hearing Dec. 26 after being arrested for public intoxication Dec. 23 in Boone County. A bench trial was scheduled for March at the initial hearing, but Currie then scheduled a plea agreement for Feb. 19. However, that date was moved up when Currie pled and was found guilty in Boone County Superior Court II by Judge Rebecca McClure Jan. 22.

According to the Lebanon Reporter, Currie was found guilty of a Class B misdemeanor and issued a 180-day suspended sentence with credit given for his day in the Boone County Jail. Currie was ordered to pay $450 legal fees and his drivers' license was restricted. [ILB - Here is the 1/25/08 story from the Lebanon Reporter.]

Currie's case could be investigated by the Indiana Judicial Qualifications Commission concerning judicial conduct violations. According to Meg Babcock, supervisor for the counsel to the commission, that process is completely separate from the court case and is not a matter of public record until the time formal charges are filed with the Indiana Supreme Court.

"There is a lot the commission can do short of filing charges," Babcock said.

She said there could be no investigation, suspension from office without pay and other remedies which include fines, removal from office or disbarment. She called removal from office the "ultimate sanction." Babcock said the Indiana Supreme Court would be the entity to decide upon the sanction if charges were filed. The commission would be making a recommendation to that court.

Babcock referred the Comet to two similar cases investigated by the commission in the past two years. In both cases, the judges stipulated to the facts of the cases and their "misconduct." Both were issued a "public reprimand" for their behavior.

See this ILB entry from Dec. 18, 2007, which discusses similar Indiana and Illinois incidents.

Posted by Marcia Oddi on Monday, February 04, 2008
Posted to Indiana Courts

Ind. Decisions - Two Indiana opinions today from the 7th Circuit

In USA v. Beaver, Chris A. (SD Ind., Judge McKinney), a 22-page opinion involving concrete price-fixing, Judge Kanne writes:

A federal jury found Christopher Beaver guilty of participating in a price-fixing conspiracy, 15 U.S.C. § 1, and making false statements to a federal law enforcement agent who was investigating that conspiracy, 18 U.S.C. § 1001(a)(1). Beaver challenges his convictions on appeal, arguing that the government failed to prove at trial that a price-fixing conspiracy existed, that he joined the conspiracy, or that he made false statements. We affirm.
In USA v. Shaaban, Shaaban Hafiz Ahmad (SD Ind., Judge Tinder), a 5-page ruling on a Motion to Recall the Mandate which was originally issued 1/28/08 in typescript form, Judge Ripple (in chambers), concludes:
Mr. Shaaban does not request expressly the appointment of new counsel, but, throughout his motion, he expresses strong displeasure with present counsel. Moreover, counsel’s response does demonstrate that he both failed to communicate with Mr. Shaaban and already has formed the opinion that a petition for rehearing is unnecessary. Under these circumstances, to ensure the full protection of Mr. Shaaban’s right to counsel, defense counsel is relieved from his appointment to represent Mr. Shaaban in this case. New counsel for Mr. Shaaban will be appointed in a separate order. I express no view as to whether a petition for rehearing would be frivolous. Newly appointed counsel shall, within 30 days from the date of appointment, file either a petition for rehearing or a motion to withdraw on the ground that any such petition would be frivolous. If newly appointed counsel seeks withdrawal because he can discern no nonfrivolous issue to raise in a petition for rehearing, Mr. Shaaban shall have the opportunity to file a response pursuant to Seventh Circuit Rule 51(b). IT IS SO ORDERED.

Posted by Marcia Oddi on Monday, February 04, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In Jim Atterholt, et al v. Geneva Herbst, et al , a 14-page opinion, Judge Mathias writes:

Geneva Herbst, the personal representative of the Estate of Jeffrey A. Herbst (“the Estate”) brought an action seeking excess damages from the Indiana Patient’s Compensation Fund (“the Fund”). The Marion Superior Court granted partial summary judgment and final judgment in favor of the Estate. The Fund appeals and presents two issues for review, which we restate as: whether the trial court erred in granting partial summary judgment in favor of the Estate, and whether the trial court erred in excluding evidence proffered by the Fund. We affirm. * * *

Conclusion. Because the trial court properly concluded in its order granting partial summary judgment that the Fund could not argue that the Healthcare Providers’ malpractice cost Jeffrey only a small chance of survival, the trial court also properly excluded the evidence the Fund sought to admit regarding Jeffrey’s chances of survival. We therefore affirm both the trial court’s grant of partial summary judgment and the trial court’s final judgment.

NFP civil opinions today (1):

Paternity of L.B., Shellie Shaw v. Tony Baumgardner (NFP) - "Based on the foregoing, we conclude that the trial court committed harmless error by failing to explain its reasons for the deviation from the Parenting Time Guidelines in its written Order. Furthermore, we find that the trial court’s visitation schedule conforms with the Guidelines."

NFP criminal opinions today (5):

In State of Indiana v. Mark K. Reed (NFP), a 2-1 opinion, Sr. Judge Robertson writes:

The issue presented for our review is: whether the trial court correctly concluded that the police officer mistakenly believed that Reed had committed an infraction which served as the probable cause or reasonable suspicion for the traffic stop leading to the discovery of Reed’s driver’s license status. * * *

There was no probable cause or reasonable suspicion for the traffic stop. The trial court did not err by granting Reed’s motion to suppress.

DARDEN, J., concurs.
MAY, J., dissenting with separate opinion. [which begins] Because I believe the trial court erred when it granted Reed’s motion to dismiss, I would reverse and remand for trial. Therefore, I respectfully dissent.

Ralph Young v. State of Indiana (NFP)

Gregory L. Henson v. State of Indiana (NFP)

Fabrian Moore v. State of Indiana (NFP)

Gaberella Menifee v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Monday, February 04, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending February 1, 2008

Here is the Indiana Supreme Court's transfer list for the week ending February 1, 2008.

One case, Keller v. State, was granted transfer Friday, 2/1/08 and remanded to trial court. Another case, Maymon v. State, which was granted transfer 1/18/08 (see ILB entry here) was listed again Friday, this time as a "corrected entry", but no indication was given as to the nature of the correction.

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.

Posted by Marcia Oddi on Monday, February 04, 2008
Posted to Indiana Transfer Lists