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Monday, March 31, 2008

Ind. Decisions - Court of Appeals issues 4 today (and 19 NFP)

For publication opinions today (4):

In Sally Gibbs, et al v. Jack David Kashak, et al , a 9-page opinion, Judge May writes:

Sally Gibbs and Jack David Kashak are siblings and the beneficiaries of their parents’ trusts. Jack served as trustee until he was removed by court order on August 5, 2005. Sally filed suit seeking partition of land held by the trust and damages from Jack for breach of fiduciary duty. Sally wanted the land sold and the proceeds divided. Instead, the trial court ordered the land divided. It also denied Sally’s claim for damages. We affirm. * * *

As trustee, Jack had authority and discretion to make disbursements for the education, health, maintenance, and support of the beneficiaries. There is no indication the $65,000, which was drawn over a period of three years, was disproportionate to the beneficiaries’ needs or unnecessarily depleted the trusts, which were worth over $2 million. The trial court made a general judgment on this issue, which we will affirm if it can be sustained on any legal theory supported by the evidence. Estate of Skalka, 751 N.E.2d at 771.5 The foregoing evidence supports a conclusion Jack did not misappropriate or misuse trust funds, and the trial court’s judgment is not erroneous.

In Wayne House v. First American Title Company, Security Title Services, LLC, et al, an 11-page opinion, Judge May writes:
Wayne House appeals the dismissal of his complaint against First American Title Company, Security Title Services, and Centex Home Equity Company. We affirm in part, reverse in part, and remand. * * *

The trial court properly dismissed House’s claim against Centex and his claim under Ind. Code § 34-24-3-1 against First American. However, the trial court erred by dismissing his claim against Security Title and the remaining claims against First American, and we remand for further proceedings on those claims. Affirmed in part, reversed in part, and remanded.

In Barbara Burcham, Christine Balt, and Crooked Creek Community Council, Inc. v. Metropolitan Board of Zoning Appeals Div. 1 of Marion County, et al , a 19-page opinion, Judge May writes:
Crooked Creek Community Council, Inc., appeals the trial court’s affirmation of a zoning variance granted to Celebration Fireworks [to sell fireworks at 5860 North Michigan Road]. On cross-appeal, Celebration and the Metropolitan Board of Zoning Appeals Division I of Marion County (“BZA”) assert we should dismiss this appeal because Crooked Creek does not have standing to challenge a zoning variance. We hold the Appellees waived Crooked Creek’s alleged lack of standing, the trial court did not commit reversible error when it declined Crooked Creek’s request to submit additional evidence, the BZA had authority to modify its 2002 order, and the record supports the grant of the variance. Accordingly, we affirm. * * *

Because the evidence in the record supports all five of the statutory findings [necessary to the granting of a variance], we affirm the BZA’s grant of the variance to Celebration.

Richard K. Klaff v. State of Indiana - "Appellant-Defendant Richard K. Klaff challenges his conviction, following a jury trial, for one count of Class C felony Burglary and one count of Class D felony Theft. Klaff specifically contends that the evidence at trial was insufficient to support his conviction. Concluding that the evidence was sufficient, we affirm. * * *

"Here, the evidence establishes not merely that Klaff was at the house, but also that Klaff was an active participant. The recorded images clearly depicted Klaff walking down the stairs carrying a long, thin object, which resembled the eight-foot copper pipe that was later determined to be missing from the house. The recorded images further depicted Klaff walking, with the long thin object, toward the rear of the house where police later found an open window. Even though the recorded images depict Klaff walking out the front door of the house without the object in his hand, a reasonable jury could infer that he slipped the object out the open rear window because the copper pipe was never recovered anywhere in or surrounding the house. We therefore conclude that the evidence establishes that not only was Klaff present at the house, but also that he was an active participant, and thus the evidence may raise a reasonable inference of guilt."

NFP civil opinions today (5):

In Marlene Mattocks v. Larry and Karen Albanese (NFP), a 13-page opinion, Judge Kirsch writes:

Marlene Mattocks, as the Personal Representative of the Estate of Darwin Schultz, (the “Estate”) appeals the trial court’s decision granting judgment in favor of Larry and Karen Albanese (“Albanese”) and denying the Estate’s counterclaim. The Estate raises three issues, which we restate as: I. Whether the trial court erred in awarding Albanese damages and denying the Estate’s counterclaim; II. Whether the trial court abused its discretion when it did not allow several of the Estate’s witnesses to testify based on Indiana’s Dead Man’s Statute; and III. Whether the trial court abused its discretion when it denied the Estate’s request for discovery sanctions. We affirm.
Term. of Parent-Child Rel. of S.L.H.S., and Andrew Thompson v. Elkhart County Office of Family & Children (NFP) - Termination, affirmed.

In Brenda and Joseph Ottinger v. Patricia Sawyer and Ashwood I Homeowners' Association (NFP), a 13-page, 2-1 opinion, Judge May writes:

Displeased with a fence built by Brenda and Joseph Ottinger, Patricia Sawyer sued to enforce the Covenants of Ashwood I Subdivision. The Ottingers filed a third party complaint against the Ashwood Homeowners’ Association (“Association”), alleging they had detrimentally relied on a voicemail message from an Association board member when they built the fence. The trial court ordered the Ottingers to reconstruct their fence and pay Sawyer’s attorney fees, and it found the Association was not liable to the Ottingers. We conclude the Ottingers violated the Covenants and did not demonstrate that the voicemail estopped the Association from enforcing the covenants. However, the award of attorney fees to Sawyer is not supported by the record; therefore, we affirm in part and reverse in part. * * *

The Ottingers did not comply with the Covenants or the written approval, and they did not establish the elements of promissory or equitable estoppel. Therefore, the Ottingers must reconstruct their fence as ordered by the trial court. However, Sawyer did not support her full request for attorney fees, and the award must be reduced to $6,598.50. Affirmed in part and reversed in part.

RILEY, J., concurs.
KIRSCH, J., dissents, with opinion. [which begins] Do fences make good or bad neighbors?

Apparently, in the Ashwood subdivision in Hamilton County, it depends on which way they face. To me, the trial court’s resolution of this dispute between neighbors is a triumph of form over substance, formalism over fairness, and legalism over reasonableness. Accordingly, I respectfully dissent.

Invol. Term. of Parent-Child Rel. of S.M., and Idowa H. v. Marion Co. Dept. of Child Services, and Child Advocates (NFP) - Termination, affirmed.

April M. Hines v. Timothy A. Hines (NFP) - Dissolution decree, motion to correct errors, "We affirm in part, reverse in part, and remand."

NFP criminal opinions today (14):

Richard L. Joiner v. State of Indiana (NFP)

Josh Griffith v. State of Indiana (NFP)

Nicholas Allen Gaunt v. State of Indiana (NFP)

Lucino Martinez Magno v. State of Indiana (NFP)

Harry Keene v. State of Indiana (NFP)

Ronald E. Rogers v. State of Indiana (NFP)

Miguel Gutierrez v. State of Indiana (NFP)

Rojae Brown v. State of Indiana (NFP)

Scott W. Chappell v. State of Indiana (NFP)

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

Anthony Cole v. State of Indiana (NFP)

Lolita Harris v. State of Indiana (NFP)

Cordell Laster v. State of Indiana (NFP)

Kathie M. Evans v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 31, 2008
Posted to Ind. App.Ct. Decisions

Law - "Foreclosure Machine Thrives on Woes"

The NY Times had a very long, front-page article Sunday explaining how mortgage servicers and law firms specializing in default have been profiting from the mrotgage crisis. Some quotes:

NOBODY wins when a home enters foreclosure — neither the borrower, who is evicted, nor the lender, who takes a loss when the home is resold. That’s the conventional wisdom, anyway.

The reality is very different. Behind the scenes in these dramas, a small army of law firms and default servicing companies, who represent mortgage lenders, have been raking in mounting profits. These little-known firms assess legal fees and a host of other charges, calculate what the borrowers owe and draw up the documents required to remove them from their homes.

As the subprime mortgage crisis has spread, the volume of the business has soared, and firms that handle loan defaults have been the primary beneficiaries. Law firms, paid by the number of motions filed in foreclosure cases, have sometimes issued a flurry of claims without regard for the requirements of bankruptcy law, several judges say.

Much as Wall Street’s mortgage securitization machinery helped to fuel questionable lending across the United States, default, or foreclosure, servicing operations have been compounding the woes of troubled borrowers. Court documents say that some of the largest firms in the industry have repeatedly submitted erroneous affidavits when moving to seize homes and levied improper fees that make it harder for homeowners to get back on track with payments. Consumer lawyers call these operations “foreclosure mills.” * * *

The possibility that some lenders and their representatives are running roughshod over borrowers is of increasing concern to bankruptcy judges overseeing Chapter 13 cases across the country. The United States Trustee Program, a unit of the Justice Department that oversees the integrity of the nation’s bankruptcy courts, is bringing cases against lenders that it says are abusing the bankruptcy system.

Joel B. Rosenthal, a United States bankruptcy judge in the Western District of Massachusetts, wrote in a case last year involving Wells Fargo Bank that rising foreclosures were resulting in greater numbers of lenders that “in their rush to foreclose, haphazardly fail to comply with even the most basic legal requirements of the bankruptcy system.”

Law firms and default servicing operations that process large numbers of cases have made it harder for borrowers to design repayment plans, or workouts, consumer lawyers say. “As I talk to people around the country, they all unanimously state that the foreclosure mills are impediments to loan workouts,” Mr. Maynard said. * * *

A generation ago, home foreclosures were a local business, lawyers say. If a borrower got into trouble, the lender who made the loan was often a nearby bank that held on to the mortgage. That bank would hire a local lawyer to try to work with the borrower; foreclosure proceedings were a last resort.

Now foreclosures are farmed out to third-party processors who hire local counsel to litigate. Lenders negotiate flat-fee arrangements to try to keep legal bills down.

AN unfortunate result, according to several judges, is a drive to increase revenue by filing more motions.

Posted by Marcia Oddi on Monday, March 31, 2008
Posted to General Law Related

Ind. Courts - "Vanderburgh Superior Court gets video arraignment system"

Kate Braser of the Evansville Courier & Press reports today:

Within a couple of weeks, some inmates facing charges in Vanderburgh Superior Court won't have to leave the jail for all court proceedings.

That's because courtroom 126A at the county courthouse now is equipped to have hearings transmitted live to and from the Vanderburgh County Jail. The equipment for the video arraignment system was installed in Vanderburgh Superior Court last week.

David Rector, general manager for the Evansville-Vanderburgh County Building Authority, said total cost and installation in both the superior court and at the jail was $71,863.

A similar system was installed for misdemeanor court in July 2006. Vanderburgh County Sheriff Eric Williams said 3,875 defendants were arraigned in misdemeanor court via the video conference system last year.

"We still did 21,058 trips to the courthouse for hearings," Williams said. "But even reducing our transport load by 3,875 is a huge savings for us. Now we will work toward eliminating a percentage of that larger number by using the system for felony pre-charges, bond hearings, progress hearings or just about anything where the trial rules don't require an in-person appearance." * * *

[Vanderburgh Superior Court Judge Robert] Pigman said besides dramatically cutting the number of transports necessary from the jail to the courthouse, the system brings additional benefits.

"One of the side benefits of the video arraignment procedure in misdemeanor court is that with the monitors up, the crowd has been quieter and more sedate, so the whole decorum in the courtroom has improved," Pigman said.

Posted by Marcia Oddi on Monday, March 31, 2008
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week

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

This Monday, March 31st:

12:30 PM - State of Indiana vs. Anthony Pollard - Pollard is a convicted sex offender who had lived within 1,000 feet of a school property, a youth program center, or a public park for approximately twenty years. Pursuant to Indiana Code section 35-42-4-11, Pollard could no longer reside there. Pollard was charged with violating this statute. He argued that the law was an ex post facto law and unconstitutional. The trial court determined that the statue as applied to Pollard was unconstitutional The Scheduled Panel Members are: Judges Friedlander, Robb and Mathias. [Where: Indiana University Law School-Indianapolis, Wynne Courtroom, Room 100]

Posted by Marcia Oddi on Monday, March 31, 2008
Posted to Upcoming Oral Arguments

Sunday, March 30, 2008

Ind. Courts - More on "Vanderburgh court records move to the Web"

On March 16th the ILB quoted from an Evansville Courier & Press story that began:

After years of planning, Vanderburgh County officials have approved a deal that will make court records available to the public on the Internet.

The records should be accessible online by the end of summer.

The deal means people who regularly squeeze into the cramped Room 219 of the Vanderburgh County Courthouse to look up a court record on one of the six public access computers will be able do it from home.

The Richmond, Ind.-based company Doxpop already is providing online records systems for 43 Indiana counties, including Spencer, Warrick, Daviess and Perry.

Saturday the same paper had an editorial about resolving the incompatibility between the private company and the state court project. Some quotes:
Anyone who has ever tracked down their Vanderburgh County court records at the Civic Center knows what a hassle it is. Every day, people queue up at Room 219, waiting their turn at one of six public computer terminals where they can look up basic court records. Customers have to squeeze in past a copy machine, the room is stuffy, the old computer system is slow, and the data available — dates, case numbers and brief summaries — is limited. To see actual court documents, you must go to the Clerk's Office and request the case file, assuming it's not checked out.

Unnecessary trips to the Civic Center could be avoided if basic court records were on the Internet — an idea the county has studied for years. Courier & Press staff writer Kate Braser reported that Vanderburgh County now has struck a deal with Doxpop, a private firm that already posts court records online in 43 other Indiana counties.

Unregistered users of Doxpop can search cases by name and number and get basic information for free — something intended for the occasional user of court records.

Subscription plans of between $25 and $450 monthly are available to registered users doing detailed legal research, such as attorneys, paralegals or other professionals.

This comes as Indiana Chief Justice Randall T. Shepard recently unveiled a separate project, through the Judicial Technology and Automation Committee, or JTAC, to link Indiana courts electronically and post their case records online. It relies on a different system, Odyssey, from a different vendor, Tyler Technologies.

Monroe County courts and one court in Marion County are JTAC's pilot-project sites and went "live" in December.

Plans call for expanding it to eight more counties by next year, and Shepard has proposed linking all Indiana courts by 2015.

The problem is, JTAC and Doxpop have not reached accord on how the private firm would be able to interface with the state's new Odyssey system. That means, for the time being anyway, the two systems are incompatible and users could not access Odyssey's court records through Doxpop.

Sound familiar? Yes, the ILB has written about this a number of times before.

Most Indiana counties have some sort of computerized case management system (CMS) to track records and cases before their courts. This information is public but generally requires, as has been the case in Vanderburgh County, going the courthouse, where either you must make your inquiry through the clerk or, if you are fortunate, there are some computer terminals available to the public in the courthouse.

What Doxpop has done is enter into agreements with a number of counties to link into their local systems and publish the court case information online. As I understand it, the remote access service is free or discounted to the governmental officials, and available to others for a fee. Subscribers may not only access their own county's records, but all the other counties that have agreements with Doxpop. - currently a network of over 40 Indiana counties.

The Indiana Court, through its JTAC Committee, a few years ago began a project to link or network all of Indiana's courts. But rather than build on top of the counties' existing, and varied, case management systems, JTAC decided to replace the county systems, one by one, with its own CMS system. The JTAC project will also link up the systems and publish the information online. The JTAC project, which began in 2003, has moved very slowly. Currently the first pilot projects, Monroe County, and Washington Twp. of Marion County, are in process.

The impasse described in the editorial came about when JTAC replaced the Monroe County case management system with its own CMS and did not authorize Doxpop to transfer its interface to the new CMS. This cut off Doxpop's flow of new information from Monroe County effective Dec. 17, 2007. Effective February 15, 2008, all historical case information was removed from Doxpop.

On Dec. 5, 2007, the Supreme Court adopted an Order titled "In Re the matter of public access to electronic court records under Odyssey case management system." The concluding paragraph:

Commercial vendors seeking access to the data in the Odyssey case management system should direct inquiries to the Division of State Court Administration pursuant to the requirements of the Court's Administrative Rule 9(F).
But, as the Evansville editorial makes clear, an accord has not been reached. The editorial continues:
As described by Lilia Judson, executive director of the Division of State Court Administration, it's not a technical issue so much as a policy question: Should a private firm be able to earn a profit off public records that the state itself seeks to make available online for free? (The state project is paid for through court fees and federal grants.)

Another issue is competition: While Doxpop is the dominant player in the Indiana market, other software vendors want to offer the service. * * *

The Indiana Supreme Court ought to resolve this dispute — and soon. The justices must do so in a way that ensures basic court records, at least, will be online for free; that the eventual statewide project will be compatible with systems counties already use so that years of effort won't be wasted; and that all private vendors are dealt with fairly while ensuring public access.

Is this really such a difficult problem? Certain of Monroe County's case information is now available online, free to anyone anywhere who wishes to access it, via the JTAC project,. Presumably this situation would remain the same if private companies were allowed to tap into the new Monroe County CMS.

Re the question posed in the editorial: "Should a private firm be able to earn a profit off public records that the state itself seeks to make available online for free?" Why not? What is the difference between this situation and the Indiana Opinions, which the Court makes available online to the public, but which private companies such as West Publishing and Lexis also access directly from the Court and publish for their own subscribers in a number of enhanced formats? It is the public itself who will decide whether the free version is adequate to its needs, or whether it needs to purchase West's or Lexis' enhancements.

The same should be the case for Doxpop and any other company wishing to access the data stream from the Monroe County case management system.

Posted by Marcia Oddi on Sunday, March 30, 2008
Posted to Indiana Courts

Ind. Decisions - "A madman had his day in court yesterday"

That is the lede to this comment on The Atlantic site about the oral arguments before the SCOTUS March 26th in the case of Indiana v. Edwards/Ahmad Edwards v. State - for background see this ILB entry. The Atlantic's commentary is followed by links to other viewpoints.

[More] See also this article by Linda Greenhouse in the March 27th NY Times, headed "Court Looks at Legal Role for Mentally Ill."

Posted by Marcia Oddi on Sunday, March 30, 2008
Posted to Ind. Sup.Ct. Decisions

Saturday, March 29, 2008

Ind. Courts - "Landowner calls move by pipeline company as intimidation"

The ILB has an entry dated June 19, 2006 quoting from a story in the Martinsville Reporter-Times of that date that began: "The path of the proposed Rockies Express Pipeline through Morgan County would cut through the site of a major proposed housing development, possible Interstate 69 construction and across at least three creeks and rivers."

Today Annie Goeller writes in a long story in the Reporter-Times:

Indiana landowners could delay approval and construction of a planned natural gas pipeline if they continue to refuse access to their land for surveys, the pipeline company claims.

That delay, which also could stop the company from meeting expected timelines in contracts with future customers and potentially lose money, is one of the main reasons for a lawsuit against 21 property owners throughout the state.

Rockies Express Pipeline Co. has filed a lawsuit in U.S. District Court and is seeking a court order that would allow the company to enter the properties for surveys needed to finalize the pipeline route, which stretches 1,679 miles from Colorado to Ohio.

The company wants immediate access to the properties, a temporary restraining order against the landowners to prevent them from interfering with the surveys, an order directing the U.S. Marshals Service to assist if necessary, and damages, attorney fees, costs and any other relief the court finds appropriate.

Posted by Marcia Oddi on Saturday, March 29, 2008
Posted to Indiana Courts

Friday, March 28, 2008

Ind. Law- 2008 US News Law School Rankings now available

Here is a comparative ranking of the four Indiana law schools.

IU-Bloomington, #36; IU-Indianapolis, #68; Notre Dame, #22; Valparaiso, Tier 4 (where schools are listed alphabetically).

Last year's rankings:

IU-Bloomington, #36; IU-Indianapolis, #85; Notre Dame, #28; Valparaiso, Tier 4 (where schools are listed alphabetically).

Looks like IU-Indy has made quite a jump up the rankings!

Posted by Marcia Oddi on Friday, March 28, 2008
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending March 28, 2008 [Updated]

Here is the Indiana Supreme Court's transfer list for the week ending March 28, 2008.

(Note that there are 6 pages to the list this week.)

There were 7 transfers granted this week. Six were announced in this ILB entry dated March 24. Here are descriptions of those cases:

In the Matter of J.C.C. - whether the juvenile court erred when it ordered J.C.C. placed on the sex offender registry.

Richard Wallace v. State - "Appellant-defendant Richard P. Wallace appeals his conviction for Failing to Register as a Sex Offender, a class D felony. Specifically, Wallace argues that the requirement for him to register is an ex post facto law and the State forfeited its right to prosecute him in light of a previous plea agreement that had been negotiated."

Todd Jensen v. State - In a 10-page, 2-1 opinion, the Court rules that "the amendments to Indiana’s Sex Offender Registry as applied to Jensen violate the ex post facto clauses of the federal and state constitutions."

Marla K. Young v. Timothy S. Young - calculation of child support

Anthony Hopkins v. State - "Because the record shows that the trial court did not advise Hopkins of all of his Boykin rights, his plea was thus unknowing and involuntary and must be vacated."

State v. Michael Cozart - "The State argues that the trial court was not required to advise Cozart regarding the effect his prior felony convictions would have on its authority to suspend any portion of the minimum sentence he faced following a guilty plea to a class A felony. Finding that Cozart did not plead guilty knowingly and voluntarily, we affirm the judgment of the post-conviction court."

The seventh transfer grant is Debra A. Barnett v. Camille Clark, Trustee of Pleasant Township, summarized in this ILB entry from Thursday, March 27th.

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, March 28, 2008
Posted to Indiana Transfer Lists

Ind. Courts - More on Allen County courthouse-wide cell phone ban

Allen County was the first to ban cellphones in the courthouse. A story from June 15, 2007 Fort Wayne Journal Gazette began:

It’s been almost six months since Allen County banned cell phones, cameras, iPods and nearly all other electronic devices from its court facilities.

Yet, hundreds of people still try to bring them in every day.

“It’s amazing,” Allen Superior Court Chief Judge Fran Gull said. “It’s a little discouraging that we still have this much of a problem this far past (January).

“There’s signs posted everywhere. People seem to think the sign has no applicability to them. It’s very frustrating for court security who get the brunt of people’s complaints. * * *

Gull said she has continued to receive requests for exemptions from doctors, out-of-town visitors, jurors and photographers, but none have been granted.

County judges made the decision to ban most electronic devices, saying cell phones were disruptive and a safety concern when people used them to take pictures and video of jurors, witnesses, victims and attorneys.

A JG editorial from June 19, 2007 was headed "Hardly a ringing success."

Today the JG's Rebecca S. Green reports:

A local attorney and area school board member will not be getting his cell phone back from the Allen County courts.

On Wednesday, Allen Superior Court Judge Fran Gull denied a request from attorney John Bloom for the return of his cell phone, confiscated in late January.

Bloom’s cell phone issue is the latest of a few upsets since a ban against electronic devices took effect in the Allen County halls of justice just over a year ago. * * *

In his motion for the return of his cell phone, Bloom said the signs in the Courthouse, which say property unclaimed for 30 days may be destroyed, left a mechanism for him to seek the return of the phone.

Gull scheduled a hearing for earlier this month and Bloom, along with his two attorneys, argued he should be able to get his phone back, sparing its destruction along with other confiscated devices.

In her ruling Wednesday, Gull quoted from Bloom’s testimony during the hearing.

He said he found the court’s cell phone ban appropriate and wondered whether it was even necessary for attorneys to have their phones in the building, according to court documents.

Gull wrote that, should she give Bloom his phone back, it would be “patently unfair” to the others who had had their property confiscated and destroyed and would be unfair to attorneys who had already complied with the January 2007 court order banning phones, according to court documents.

She ordered the phone destroyed.

Posted by Marcia Oddi on Friday, March 28, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 10 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Caroletta H. and Stephen T. v. Howard County Department of Child Services (NFP) - "In sum, we conclude that the alleged procedural irregularities in the underlying CHINS proceedings did not serve to deprive Mother and Father of the process that was due them in the termination proceedings. Additionally, clear and convincing evidence supports the trial court’s judgment terminating the parents’ parental rights to D.H. and G.T. Accordingly, we find no error."

Julia Darnell v. John Darnell, Larry Stassin and Sachs & Hess, P.C. (NFP) - "Appellant-Plaintiff Julia Darnell (“Julia”) appeals a grant of summary judgment in favor of attorney Larry Stassin (“Stassin”) and law firm Sachs & Hess, P.C., upon Julia’s tortious infliction of emotional distress claim arising out of a custody dispute with her former husband, John Darnell (“John”). We affirm. * * *

"Inasmuch as Stassin and Sachs & Hess, P.C. established that Stassin acted with immunity and negated the outrageousness element of Julia’s claim, they have demonstrated their entitlement to judgment as a matter of law. Summary judgment was properly granted to Stassin and Sachs & Hess, P.C."

NFP criminal opinions today (8):

Thomas Hollowell v. State of Indiana (NFP)

Marvin E. McGraw v. State of Indiana (NFP)

Floyd Merrell v. State of Indiana (NFP)

Raymond Wiefling v. State of Indiana (NFP)

Rockie L. Jernigan v. State of Indiana (NFP)

Thomas Burzynski v. State of Indiana (NFP)

Dwayne Kelly v. State of Indiana (NFP)

Alfredo C. Botello v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, March 28, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Muncie judge calls it quits"

Rick Yencer and Nick Werner of the Muncie Star-Press report today:

Judge Wayne Lennington has resigned from the Delaware Circuit Court 5 bench, effective May 15, in the wake of a probe by a state commission that oversees judicial conduct, and a criminal investigation by local and state authorities.

Lennington submitted his letter of resignation to Gov. Mitch Daniels -- who will select his successor -- on Tuesday.

On Thursday, the 77-year-old judge said he was leaving the bench as a result of health problems.
"It should not be suggested that I resigned because of the investigation," said Lennington, a Democrat appointed to the bench in 1998 by then-Gov. Frank O'Bannon.

The Indiana Judicial Qualifications Commission has been investigating alleged conflicts between Lennington's business interests and judicial obligations, commission counsel Meg Babcock confirmed on Thursday.

"The commission and judge reached an agreement that a prompt resignation was in the best interest of the judiciary," said Babcock.

Whether Lennington committed any misconduct was never determined because the investigation was suspended once Lennington agreed to resign, Babcock said.

The commission was fully prepared to move through the investigation, and if warranted, to a long proceeding that could have resulted in the judge's removal from office, she added.

"Instead, he agreed to resign," Babcock said. "It's the perfect outcome for the Delaware County courts and its public."

After being informed that Lennington had said he was leaving the bench for health reasons, the commission provided The Star Press with a copy of its signed agreement with the judge.

"Judge Lennington will make no public statements misrepresenting the status of the commission's investigation, of the criminal investigation or of the terms of the commission's agreement," the agreement stated.

A list of earlier ILB entries about Judge Lennington may be found here.

A second story today reports on how a successor will be selected.

Posted by Marcia Oddi on Friday, March 28, 2008
Posted to Indiana Courts

Ind. Gov't. - Even more on "Storm Water Board resigns: Council criticized no-bid contract"

Updating this ILB entry from Dec. 4, 2007, Dick Kaukas of the Louisville Courier Journal reports today in a story that begins:

A lawsuit filed by the New Albany City Council challenging two contracts awarded last year without competitive bidding has been dismissed.

The council has struggled with the no-bid issue, first authorizing the lawsuit and then voting to end it, but reversing itself again in February and deciding to pursue the case.

Both contracts were awarded last summer to Environmental Management Corp. by the city's sewer and storm-water boards to operate New Albany's sewer and storm-water systems.

In a decision issued Wednesday, Floyd Circuit Judge J. Terrence Cody wrote that he was granting motions asking that the complaint be thrown out. Cody said the contracts did not have to be bid under state law because they were for "professional and technical services," not for a "public work" project.

Only for such a project would competitive bidding have been required, the judge concluded.

In reaching that conclusion, Cody adopted the arguments of sewer board lawyer Greg Fifer and storm-water board lawyer Michael Summers, and rejected the contentions of Jerry Ulrich, the council's attorney.

"I'm a bit surprised and disappointed," said Ulrich, who had argued that the contracts were for public works projects.

Posted by Marcia Oddi on Friday, March 28, 2008
Posted to Indiana Government

Thursday, March 27, 2008

Ind. Courts - Still more on: David Camm appeal brief filed with the Supreme Court

Updating this ILB entry from Feb. 13th reporting that both the appeal brief and the response had been filed with the Supreme Court, a brief item this evening from Louisville WAVE 3 News reports:

WAVE 3 News has learned there are new developments in the murder case invovling David Camm. The Indiana Supreme Court has decided to hear arguments in the case.

Camm has been convicted twice in the September 2000 murders of his two kids and wife.

The Supreme Court will hear the oral arguments May 22nd at 9 a.m. in Indianapolis.

Posted by Marcia Oddi on Thursday, March 27, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Another case granted transfer since the last list was posted

Although there was no transfer list issued last week, the ILB has just received a notice of transfer granted by the Supreme Court today. Here is the ILB summary of the COA opinion from Dec. 11, 2007:

Debra A. Barnett v. Camille Clark, Trustee of Pleasant Township - "Debra A. Barnett asserts Camelia Clark, as Pleasant Township Trustee, is vicariously liable for the sexual misconduct of her employee, Donald Clark. Barnett appeals from summary judgment for Camelia. Finding an issue of fact exists, we reverse and remand. * * *

"Like the equipment manager, Donald used his official duties to create an opportunity to be alone with the object of his sexual misconduct. Donald did more than create a pretext for being alone with Debra; he was performing his duties before and after his misconduct. Therefore, whether Donald was acting in the scope of his employment is an issue of fact, and it was error to grant summary judgment for Camelia. Reversed and remanded."

Posted by Marcia Oddi on Thursday, March 27, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - Federal court dismisses employee suit against Indianapolis Star

Interesting reading for those of you interested in the inner-workings of the Star, this case has been pending for several years, but the ILB cannot find that it has posted previous entries on it, although it has heard a lot about it.

In James Patterson and Lisa M. Coffey v. Indiana Newspapers, Inc., a 29-page opinion, Judge McKinney grants the Star's motion for summary judgment:

This cause is before the Court on Defendants’, Indiana Newspapers, Inc., an Indiana corporation, publisher of The Indianapolis Star, owned by Gannett Co., Inc., a foreign corporation (“THE STAR”), motion for summary judgment (Docket No. 90). Plaintiffs, James Patterson (“Patterson”) and Lisa M. Coffey (“Coffey”) (Patterson and Coffey collectively, “Plaintiffs”) brought this lawsuit against THE STAR alleging violations of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), and state law. More specifically, Patterson claims that THE STAR (1) discriminated against him because of his religion, race, and age; (2) unlawfully retaliated against him for filing a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”); and (3) negligently inflicted emotional distress. Coffey claims that THE STAR (1) discriminated against her because of her religion; (2) constructively discharged her by creating and maintaining difficult working conditions; and (3) negligently inflicting emotional distress. The summary judgment motion has been fully briefed and is now ripe for ruling.

For the reasons stated herein, THE STAR’s motion for summary judgment is GRANTED.

Posted by Marcia Oddi on Thursday, March 27, 2008
Posted to Ind Fed D.Ct. Decisions

Law - "Loan repayment assistance programs progress"

From a February article in the ABA's "Your ABA":

The House of Representatives passed its version of the Higher Education Act on Feb. 7, which includes two critical programs designed to ease the burden of student loan debt for prosecutors, public defenders, as well as for legal aid lawyers.

The first of these measures, The John R. Justice Prosecutor and Defender Incentive Program, provides for $10,000, up to a maximum amount of $60,000, in student loan debt forgiveness per year in exchange for a commitment of at least three years of qualifying service.

A second HEA provision will provide $6,000 per year, up to a maximum of $40,000, of student loan debt forgiveness for legal aid lawyers with three years of service.

Since the Senate-passed version of the HEA is slightly different, a conference committee will meet to iron out differences. The ABA is hopeful that this will occur soon and the legislation will be signed by the President before March 31, when the current HEA extension expires.

Posted by Marcia Oddi on Thursday, March 27, 2008
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP), including an appeal lost in the Clerk's office for two years

For publication opinions today (1):

In Karen Berry Williams v. State of Indiana, a 9-page opinion, Chief Judge Baker writes:

Appellant-defendant Karen R. Berry Williams appeals the revocation of her probation, claiming that the trial court’s failure to advise her that an admission of guilt to a violation of the Shelby County Adult Day Reporting Program (ADRP) rules could also constitute a basis for a probation revocation. Williams further claims that the trial court allegedly failed to consider certain mitigating evidence regarding her sentence and that her counsel was ineffective because he failed to advise Williams that her admission to the ADRP violation would also constitute an admission to the probation violation. Finally, Williams contends that she received the ineffective assistance of counsel because her attorney failed to specifically set forth mitigating circumstances for the trial court to consider in imposing the sentence on the probation violation. Finding no error, we affirm the judgment of the trial court.
_________
Ftnote 1. As we pointed out in Gilbert v. State, 874 N.E.2d 1015, n.1 (Ind. Ct. App. 2007), we have recently become aware of some difficulties in receiving the prompt transmission of fully-briefed appeals to our court. The case herein was fully briefed on March 28, 2006 but was not transferred to our court until February 18, 2008.

The Clerk of the Court has assured us that a new system and periodic inventory review program have been implemented to minimize future delays. In the event of an extraordinary delay—such as what has occurred here—it may be helpful for counsel to make inquiry with the Clerk’s office regarding the status of the case. Additionally, a link to the Clerk’s online docket is available at http://www.in.gov/judiciary/cofc/ and counsel may check the docket to confirm that the case has, in fact, been transmitted to this court after being fully briefed.

This follows upon the ILB entry from March 20th and is the fourth such case that has surfaced. How many more are there? CJ Baker instructs that after your appeal has been fully briefed, check that it has in fact been transmitted to the judges (rather than simply assuming that the court is taking a long time to act on it).

NFP civil opinions today (1):

Jodie Patrick v. Brian Patrick (NFP) - "Jodie R. Patrick (“Mother”) appeals the order of the Knox Superior Court granting the petition of Brian T. Patrick (“Father”) to modify custody of the Patricks’ child, B.P. On appeal, Mother claims that the trial court abused its discretion in modifying custody based upon Mother’s plan to move out of state. We affirm."

NFP criminal opinions today (2):

Joshua Jones v. State of Indiana (NFP)

Darrell L. Hall v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 27, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court rules on restitution and ability to pay

In Jeffrey Pearson v. State of Indiana, a 6-page, 5-0 opinion, Justice Rucker writes:

When a trial court orders restitution either as a condition of probation or as a condition of a suspended sentence, it is required to inquire into the defendant’s ability to pay. Although the trial court did not make such an inquiry in this case, we nonetheless affirm its judgment because the defendant did not raise his inability to pay restitution as an issue on appeal. * * *

Thus, “when restitution is ordered as a condition of probation or a suspended sentence, the trial court must inquire into the defendant’s ability to pay in order to prevent indigent defendants from being imprisoned because of their inability to pay.” Ladd v. State, 710 N.E.2d 188, 192 (Ind. Ct. App. 1999) (emphasis added). In the case before us the trial court made no such inquiry. However, for reasons explained below we disagree with our colleagues on the Court of Appeals that this matter should be remanded to the trial court. * * *

The expiration of Pearson’s one-year probationary term does not terminate his obligation to pay restitution. And because Pearson does challenge the amount of restitution or his ability to pay $150.00 per month in discharge of his obligation, there is no need to remand this cause to the trial court. Conclusion We affirm the judgment of the trial court.

Posted by Marcia Oddi on Thursday, March 27, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - One Indiana decision today from 7th Circuit

In U.S. v. Price (ND Ind., Judge Simon), a 16-page opinion, Judge Wood writes:

When Officer Terry Smith of the Gary, Indiana, police department responded to a call on June 28, 2003, about fires that people were setting in alleys located in a high-crime area, he stopped to question Veronica Sanchez, whose car was parked nearby. As Officer Smith spoke with Sanchez, Benjamin Price strolled past him, said nothing, and sat down in the passenger side of Sanchez’s car. It was not long before Smith and another officer discovered a gun in the car, near Price’s feet. In due course, Price was indicted on charges of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(e)(1). After a number of false starts, which we describe below, he was tried, convicted by a jury, and sentenced to 250 months in prison. Appointed counsel on appeal have raised a number of challenges both to his conviction and to his sentence. While we appreciate their efforts, we find no reversible error and thus we affirm.

Posted by Marcia Oddi on Thursday, March 27, 2008
Posted to Ind. (7th Cir.) Decisions

Law - "Rising toll revives helmet issue"

The Indianapolis Star has a story today by John Yaukey and Robert Benincasa of Gannett News Service reporting:

WASHINGTON -- Death rates from motorcycle crashes have risen steadily since states began weakening helmet laws about a decade ago, according to a Gannett News Service analysis of federal accident reports.

As deaths have increased, so has the proportion of older riders killed. Dying on a motorcycle could soon become a predominantly middle-aged phenomenon, the GNS analysis shows.
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Most states once required all motorcycle riders to wear helmets. But a trend in the other direction began accelerating after 1995, when the federal government decided to stop withholding highway money from states without helmet laws.

As states weakened or repealed the laws, the percentage of riders who wore helmets began dropping. And fatality rates increased. * * *

Under Indiana law, people younger than 18 or who have a learner's permit are required to wear a helmet if they operate a motorcycle. But the mandatory helmet law for adults, introduced in 1967, was repealed in 1977.

A sidebar notes:
Two decades ago, 47 states required helmets for all riders. Today, only 20 do. Twenty-seven states require helmets only for younger riders.

Posted by Marcia Oddi on Thursday, March 27, 2008
Posted to General Law Related

Ind. Law - More on: "Booksellers incensed over sexual content law"

Updating this ILB entry from March 28th quoting from an Indianapolis Star story, the Star today has an editorial criticizing the new law.

Posted by Marcia Oddi on Thursday, March 27, 2008
Posted to Indiana Law

Ind. Decisions - Even more on: SCOTUS to hear second Indiana case

This ILB entry yesterday gave some early reaction to oral arguments heard yesterday by the SCOTUS in the Indiana case of Ahmad Edwards v. State. There are many stories today, including: "Court hears Ind. self-representation case," reported by Maureen Groppe, IndyStar Washington Bureau; and "The rights of the Mentally Ill: High Court Weighs Self-Representation," reported by Robert Barnes of the Washington Post.

Posted by Marcia Oddi on Thursday, March 27, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Wondering if you can vote in the Democratic primary? [Updated]

Indianapolis Star columnist Andrea Neal had a column yesterday pointing out that Indiana is an open primary state and describing the worst that can happen if you go to the poll this May and declare yourself as a Democrat when the voting book shows you with a long string of Republican ballots requested in the past. Or vice versa.

She doesn't cite the applicable statutes, however, as this is not a legal article. Can someone help out?

[More] OK, here is the section re challenging a voter at a primary election - IC 3-10-1-9

Sec. 9. A voter in a precinct may challenge a voter or person who offers to vote at a primary election. The challenged person may not vote unless the challenged person:
(1) is registered;
(2) makes:
(A) an oral or a written affirmation under IC 3-10-12; or
(B) an affidavit:
(i) that the challenged person is a voter of the precinct; or
(ii) required under IC 3-10-11 if the voter declares that the voter is entitled to vote under IC 3-10-11; and
(3) either:
(A) at the last general election voted for a majority of the regular nominees of the political party for whose candidates the challenged person proposes to vote in the primary election and intends to vote for the regular nominees of the political party at the next general election; or
(B) if the challenged person did not vote at the last general election, intends to vote at the next general election for a majority of the regular nominees of the political party holding the primary election.

As added by P.L.5-1986, SEC.6. Amended by P.L.17-1993, SEC.9; P.L.12-1995, SEC.62.

Posted by Marcia Oddi on Thursday, March 27, 2008
Posted to Indiana Government

Law - More on: NYT reporter Linda Greenhouse may move on

Updating this Feb. 29 ILB entry quoting an AP story that "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" -- A reader has pointed me to this press release quoted in Poynter Online headed "Linda Greenhouse Returning To Yale Law School in 2009 as Journalist-in-Residence." It begins:

Linda Greenhouse '78 M.S.L., Pulitzer Prize-winning legal writer and Supreme Court reporter for The New York Times for the past three decades, will return to Yale Law School in January 2009 as the Knight Distinguished Journalist-in-Residence and Joseph M. Goldstein Senior Fellow. In that capacity, she will advise on the framing and development of the new Yale Law School Law and Media Program (LAMP), work on her own research about the Supreme Court and constitutional law, teach through lectures and seminars, and participate in various Law School activities, including Yale Law School's Supreme Court Clinic.

Posted by Marcia Oddi on Thursday, March 27, 2008
Posted to General Law Related

Wednesday, March 26, 2008

Ind. Courts - Dillinger movie shot at Wisconsin locations representing Indiana courtrooms

From a long story today in the Madison Wisconsin Captial Times, this tidbit:

"I ended up being smack-dab in the middle of the courtroom," she said. [Former court reporter Ellen] Weisling was one of seven people in the scene, which also included a heavily guarded Depp as Dillinger as well as some real-life Wisconsin National Guard members dressed as Indiana National Guardsmen from the 1930s. Although much of the film is being shot in Wisconsin, including a bank robbery in Columbus, the locations are supposed to represent a bank robbery and the subsequent court appearances in Indiana.

Weisling said she was impressed by the meticulous detail paid by the film's director, University of Wisconsin graduate Michael Mann, and his crew.

"The attention to detail was phenomenal," she said. "It's so '30s I looked like my mom."

[Update] However, filming was done at the old Lake County jail in Crown Point, site of Dillinger's escape.

Posted by Marcia Oddi on Wednesday, March 26, 2008
Posted to Indiana Courts

Ind. Decisions - Still more on: SCOTUS to hear second Indiana case

The SCOTUS heard oral arguments this morning in the Indiana case of Ahmad Edwards v. State. (For background, start with this ILB entry from March 22nd.)

Read Joan Biskupic's USA TODAY coverage here. The lengthy story begins:

WASHINGTON — Indiana Solicitor General Thomas Fisher Wednesday urged the Supreme Court to allow judges to bar confused and incoherent defendants from representing themselves to keep a trial "from descending into a farce."

In a case closely watched by numerous states, defense lawyers and psychiatric experts, Fisher asked the justices to reverse an Indiana ruling throwing out a defendant's attempted-murder conviction because he was denied his Sixth Amendment right to represent himself.

A majority of the nine justices appeared open to arguments that a mentally ill defendant who is found competent to stand trial but is not able to communicate clearly could be kept from representing himself.

The Blog of Legal Times's report includes this:
When Indiana Solicitor General Thomas Fisher suggested a test that would allow judges to bar self-representation for those who "cannot communicate coherently with the court or jury," Justice Antonin Scalia could not resist the bait. Casting his eyes toward the Court's coffered ceiling, Scalia mulled the phrase. "Cannot communicate coherently?... I sometimes think that the lawyers cannot communicate coherently." Ba da boom. Spectators laughed. How often do the justices get to tell lawyer jokes?

Posted by Marcia Oddi on Wednesday, March 26, 2008
Posted to Ind. Sup.Ct. Decisions

Courts - "Eli Lilly Pays $15 Million to Settle State of Alaska's Lawsuit Over Drug Zyprexa"

From the AP, a story that begins:

Eli Lilly and Co. and Alaska announced a $15 million settlement Wednesday in the state's lawsuit over the use of the drug Zyprexa in its Medicaid program.

The deal ensures that Alaska will be treated as well as any other state that may settle with Lilly over similar claims involving the drug, which is used to treat schizophrenia and bipolar disorder.

The agreement included no admission of wrongdoing by Lilly.

The state sued for hundreds of millions of dollars to cover costs to Medicaid for treating what it says are Zyprexa-related health problems, including weight gain, high blood sugar and diabetes.

The settlement ended a case in which jurors began hearing testimony on March 6. Lilly attorneys got a sense of the challenges they faced earlier this month.

Anchorage Superior Court Judge Mark Rindner said on the bench, without jurors present, that without lawsuits like the one the state of Alaska brought, claims that drugs cause health problems "might well go unaddressed."

Tom Spaulding of the Indianapolis Star has a story here.

Posted by Marcia Oddi on Wednesday, March 26, 2008
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 12 NFP)

For publication opinions today (1):

In Jaimen Scruggs v. State of Indiana , a 6-page opinion, Judge Najam writes:

Jaimen Scruggs appeals her conviction for Neglect of a Dependent, as a Class A misdemeanor, following a bench trial. She presents a single issue for our review, namely, whether the State presented sufficient evidence to support her conviction. We reverse. * * *

A conviction on the scant evidence presented in this case would amount to a per se rule that merely leaving a seven-year-old child home alone for any period of time constitutes neglect of a dependent, as a Class D felony. We do not read the statute and relevant case law to support that result. * * * We agree with the trial court that this is a close case, but the State bore the risk of nonpersuasion and has failed to prove the mens rea element of the crime.

NFP civil opinions today (2):

Sharon McLavey-Ford v. Gary W. Ford (NFP) - "Sharon McLavey-Ford (“Wife”) appeals from the trial court’s order (“Order”) denying her motions to set aside a property settlement agreement without a hearing." Affirmed.

Edmund W. Ade v. Joann C. Ade (NFP) - "Edmund Ade (“Husband”) appeals from the trial court’s dissolution decree which ended his marriage to JoAnn Ade (“Wife”)." Affirmed.

NFP criminal opinions today (10):

Rageing Warr v. State of Indiana (NFP)

Edgar Hernandez v. State of Indiana (NFP)

Jason Lynn v. State of Indiana (NFP)

Robert Deshawn McCollum v. State of Indiana (NFP)

John David Haddix v. State of Indiana (NFP)

Raylon Young v. State of Indiana (NFP)

Lamont Darion Taylor v. State of Indiana (NFP)

Otis L. Reed v. State of Indiana (NFP)

Joseph C. Jenkins, Jr. v. State of Indiana (NFP)

George Leachman v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 26, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court holds "that the exception recognized in footnote 4 of Cavinder Elevators, Inc. v. Hall, applies to permit the defendants to raise that issue on appeal"

In Homeq Servicing Corp. v. Bradley and Constance Baker, a 6-page, 5-0 opinion, Justice Dickson writes:

In this appeal, we address two issues. First, we hold that cross-error is available to appeal issues presented in a motion to correct error that is belatedly granted contrary to the "deemed denied" provisions of Ind. Trial Rule 53.3(A). Second, we hold that a trial court may not consider untimely filed materials opposing summary judgment. * * *

Conclusion The defendants do not dispute the plaintiff's claim that the defendants' motion to correct error challenging the grant of summary judgment was deemed denied pursuant to T.R. 53.3(A), but the defendants correctly assert that they are entitled to challenge by cross-appeal the summary judgment entered without consideration of the defendants' untimely opposing affidavit. Considering that claim, we conclude that the trial court correctly excluded the untimely affidavit, and we affirm the grant of the plaintiff's motion for summary judgment and remand for entry of judgment consistent with this opinion.

Posted by Marcia Oddi on Wednesday, March 26, 2008
Posted to Ind. Sup.Ct. Decisions

Environment - More on: Environment - "Huntington County dairy coming under new management"

Updating this ILB entry from Monday, March 24, which quoted an IDEM press release, Niki Kelly reports today in the Fort Wayne Journal Gazette:

There is good news and possible bad news for neighbors who have been fighting with the troubled DeGroot Dairy in rural Huntington County.

Owner Johannes DeGroot and DeGroot Dairy LLC are barred from operating animal feeding operations in Indiana through 2048 under an agreement with the Indiana Department of Environmental Management.

But the new operator – Ohio-based Vreba-Hoff Dairy Development LLC – has had regulatory skirmishes in other states and plan to nearly double the herd size of the Huntington farm to pay for improvements. * * *

As part of the agreement, DeGroot agrees to sell the dairy operation to Vreba-Hoff and allows Vreba-Hoff to take immediate responsibility for daily operations.

With Vreba-Hoff’s help, almost 50 Dutch families have set up dairy farms in Michigan, Indiana and Ohio over the past decade.

According to a Washington Post report from August, Vreba-Hoff and many of its dairies have clashed with state regulators and residents. People complain of an overpowering stench and environmental pollution from the dairies, which generally house several thousand cows in what are known as concentrated animal feeding operations and produce hundreds of thousands of gallons of manure each day.

The Environmental Protection Agency released a report in January 2007 that cited a former Vreba-Hoff-owned dairy near Fremont for violations of numerous environmental standards, including allowing illegal waste discharges. Vreba-Hoff sold the 39-acre, 900-cattle dairy farm to DeJong Dairy LLC, 5409 E. Ray Clark Road, in December 2004.

And the Michigan Department of Environmental Quality has been in a legal tug of war with Vreba-Hoff for several years, filing a lawsuit in 2003 that resulted in a 2004 consent decree in which the company agreed to build an on-site waste treatment facility. Last year, the department asked a judge to hold the company in contempt of court for violating the decree, asserting that Vreba-Hoff was still failing to correctly dispose of manure.

But Barry Sneed, public information officer with IDEM, said Vreba-Hoff is in good standing in Indiana. It owns two facilities in the state and is associated with 24 others.

“We haven’t had problems with the new owner, and the new owner will fix problems that are there,” Sneed said. “Any time we can bring a facility into compliance and have future compliance as well, that’s kind of a win-win for us.”

IDEM is reviewing a new permit application for construction projects at the dairy as well as a request for expansion. The facility will operate under the new name Andrews Dairy LLC.

Lindsey said as an adjoining landowner he already received information that Vreba-Hoff wants to expand the herd size from 1,400 to 2,500. * * *

Vreba-Hoff spokeswoman Cecilia Conway said the additional 1,100 cows are needed to finance all the improvements that are planned, including a new anaerobic treatment process.

“We want to improve the design of the facility and incorporate some new manure-handling technology,” she said. “We are trying to calm the concerns of the locals and put the farm under better management.”

Conway said Vreba-Hoff will operate the farm and eventually own it.

For a history of Vreba-Hoff dealings with the IDEM Office of Enforcement, go to this link, type "vreba" in the company name box, and change the start date to Jan. 1, 1995.

Posted by Marcia Oddi on Wednesday, March 26, 2008
Posted to Environment

Ind. Law - "Booksellers incensed over sexual content law"

Tim Evans reports today in the Indianapolis Star on a law passed by the General Assembly and signed by the Governor that oddly the ILB has not seen mention of before, either in the press or by those opposed to it. Some quotes:

A new state law that requires sellers of adult material to register with the state has Hoosier bookstore owners fuming about government censorship and threatening a legal challenge.

"This lumps us in with businesses that sell things that you can't even mention in a family newspaper," said Ernie Ford, owner of Fine Print Book Store in Greencastle.
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Ford was talking about House Enrolled Act 1042, which Gov. Mitch Daniels signed into law last week. Ford was one of 15 independent Indiana booksellers who signed a letter last week urging Daniels to veto the legislation.

The new law that takes effect July 1 requires businesses that sell sexually explicit material to pay a $250 fee and register with the secretary of state, which would then pass the information to municipal or county officials so they can monitor the businesses for potential violations of local ordinances.

The bill was aimed specifically at helping counties that do not have zoning ordinances track businesses selling sexually explicit material, including videos, magazines and books, said Sen. Brent Steele, R-Bedford, who was a co-sponsor of the legislation.

Steele said the bill's author, Rep. Terry Goodin, D-Austin, was targeting adult stores popping up in rural areas along interstates in Southern Indiana. Goodin could not be reached Tuesday for comment.

Jane Jankowski, the governor's spokeswoman, said in a statement issued Tuesday that Daniels' office has no record of receiving the letter from booksellers. * * *

Steele said he believes bookstore owners are getting worked up over nothing.

The law does not apply to businesses that sell sexually explicit material on or before June 30; it applies only to new businesses, those that relocate or businesses that begin offering such material after that date.

"I just don't think that their concern is legitimate," Steele said.

The bill does not provide that it applies only to counties without zoning. Further, it appears that any new book or other item meeting the definition of the statute, offered by an existing business after June 30, would bring it under the statute.

See also this entry this morning by Gary Welsh of Advance Indiana.

Posted by Marcia Oddi on Wednesday, March 26, 2008
Posted to Indiana Law

Tuesday, March 25, 2008

Courts - More on: Oklahoma Supreme Court "cuts off online access to records"

Updating this ILB entry from March 12th, John Greiner of The Oklahoman reports today:

The Oklahoma Supreme Court today rescinded its controversial rules that would limit public access to court information on its Web site and in court files, saying it wanted to give the issue further study and consideration.

The rule change was heavily criticized after the court issued the new rules March 11. * * *

Criticism and concerns voiced by people about those rules apparently played a role in the court's decision to rescind them.

In a brief statement, the Supreme Court said:

"The Supreme Court of Oklahoma is very aware of privacy and identity theft concerns of individuals related to personal data that may appear on the Court's Web site. We are cognizant that many businesses and individuals rely on the information court clerks have placed on our Web site. Personal privacy balanced with reliable public information is critical for every free society.

"Due to the very important issues for all concerned, the Supreme Court is hereby withdrawing its Privacy and Public Access order... handed down March 11, 2008, to give the issue further study and consideration." Free-speech advocates praised the court's decision to reverse course.

“We're happy that they withdrew the order,” said Mark Thomas, executive vice president of the Oklahoma Press Association. “A broad, sweeping closure of massive public records is not the answer to identity theft problems.”

Posted by Marcia Oddi on Tuesday, March 25, 2008
Posted to Courts in general

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

For publication opinions today (2):

In Jeffrey Kochis v. City of Hammond, Indiana, et al, a 12-page opinion, Judge Darden writes:

Jeffrey Kochis appeals the trial court’s order granting summary judgment to City of Hammond, Indiana (“City”); Fire Department of the City of Hammond, Indiana, and Chief David Hamm; and Board of Public Works & Safety of Hammond, Indiana (“Safety Board”) (collectively, “Hammond”) on Kochis’ complaint.1 We reverse and remand. * * *

As the party moving for summary judgment, Hammond bore the initial burden of showing no genuine issue of material fact and the appropriateness of judgment as a matter of law. Monroe Guar. Ins. Co., 829 N.E.2d at 975. Hammond’s designated evidence falls woefully short of making a prima facie showing that the demotion was one that fits within the economic exception. Because such remains as a genuine issue of fact, summary judgment should not have been granted to Hammond.

Kochis also argues that his motion for summary judgment should have been granted. However, because we find that whether the economic exception applies here is a question of fact, his argument in this regard must also fail.

Reversed and remanded for further proceedings consistent with this opinion.

In Sherri Gleeson v. Preferred Sourcing, LLC , a 27-page opinion, Judge Vaidik writes:
Sherri Gleeson appeals the trial court’s grant of her former employer Preferred Sourcing, LLC’s (“Preferred”) motion for a preliminary injunction against her, which sought to enforce the terms of a non-compete agreement that she signed. Finding that Preferred has proven the requirements for a preliminary injunction and that several defenses do not apply, we conclude that the trial court did not abuse its discretion in granting the preliminary injunction. In addition, we conclude that the court abused its discretion in refusing to order security for the preliminary injunction. Accordingly, we affirm in part and reverse in part.
NFP civil opinions today (0):

NFP criminal opinions today (1):

Jacklyn A. Thomas v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 25, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues an Indiana opinion today

In Christina Soltys and Danuta Pauch v. Yvonne Costello (ND Ind., MJ Rodovich), a 14-page opinion, Judge Kanne writes:

Christina Soltys and Danuta Pauch were seriously injured in a car accident caused by Yvonne Costello, who, at the time, was driving under the influence of alcohol. Soltys and Pauch sued Costello, who admitted liability; trial was limited to the amount of damages owed to Soltys and Pauch. The district court denied Soltys and Pauch’s eleventh-hour motion to amend their complaint to add a count for punitive damages. After the jury returned its verdict, the district court denied Soltys and Pauch’s motion for a new trial. The district court did not abuse its discretion on either of these issues, so we affirm. * * *

The facts of the accident underlying this case are simple enough * * *.

The facts of the litigation surrounding the accident, on the other hand, are muddled and chock-full of attorney blunders. Soltys and Pauch hired attorney Benjamin Nwoye, who filed a complaint in federal court against Costello in June 2004, on the basis of diversity jurisdiction. The complaint included negligence counts, and averred that Costello was legally intoxicated at the time of the accident. Unfortunately for Soltys and Pauch, Nwoye made numerous mistakes after the pleading stage of the litigation, some of which led to the imposition of sanctions against Soltys and Pauch. But Nwoye was not the only attorney committing errors in the case. * * *

The outcome of this case seems unfortunate, as the district court noted. Two individuals were hit by an intoxicated driver and suffered serious injuries but were denied proper relief because their attorney did not comply with discovery orders and did not raise valid legal issues that would likely have led to adequate relief for his clients. But, being constrained as we are to review only the issues properly before us on appeal, we cannot remedy this situation. As the district court noted, “any blame lies with the plaintiffs’ attorney.” If Soltys and Pauch have any hope of securing additional relief, they must look to Benjamin Nwoye.

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

Environment. - Yet more on: BioTown, USA. Remember little Reynolds, Indiana? Population 500

The ILB has had a number of entries on "BioTown", going back to this one from Sept. 13, 2005, headed "Daniels hopes to transform town of Reynolds so it's powered only by renewable power sources."

Today Tom Murphy of the AP reports, in a lengthy story that begins:

REYNOLDS, Ind. -- This one-stoplight farming hamlet had big dreams in 2005 when it was christened BioTown USA.

Its goal: to become the first U.S. community to meet all electricity and gas needs through renewable energy by using everything from farm waste to sewage.
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Industry and government officials led the early charge. BP installed a gas pump offering an ethanol fuel blend, and South Dakota-based VeraSun Energy Corp. started building an ethanol production plant near town.

Former U.S. agriculture secretary Mike Johanns stopped by in support, as did the band Crosby, Stills, Nash & Young. Visitors also included a group of Chilean corn farmers who were touring the Midwest and interested in learning more about biofuels.

But the visitors are long gone, and many say the excitement is too. Money problems, leadership changes and other obstacles have sparked skepticism that Reynolds will ever succeed at moving the state, much less the nation, toward homegrown energy and away from foreign oil.

Posted by Marcia Oddi on Tuesday, March 25, 2008
Posted to Environment

Ind. Gov't. - More on: Attorney General Carter will not run for third term

Updating yesterday's entry, Tim Evans reports today in an Indianapolis Star story headlined "Attorney general's decision not to run sets off scramble", that begins:

At least three Republicans and one Democrat surfaced Monday as potential candidates to succeed state Attorney General Steve Carter, who surprised even political insiders with a weekend announcement that he will not seek a third term.

Confirming interest in filling the void on the GOP ticket were Marion County Prosecutor Carl Brizzi; Carter's chief deputy, Greg Zoeller; and Indianapolis attorney Tom Wheeler, who is chairman of the State Election Commission.
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In November, the Republican nominee likely will face Democrat Linda Pence, a former U.S. Justice Department attorney who is a partner in the Indianapolis law firm Sommer Barnard.

Democrats and Republicans will select their attorney general candidates at the parties' respective state conventions in June. The Republican convention is June 2; Democrats will caucus June 20-21.

Posted by Marcia Oddi on Tuesday, March 25, 2008
Posted to Indiana Government

Ind. Decisions - "Driver's DWI tossed on appeal"

The Court of Appeals' decision yesterday in the case of State of Indiana v. Christopher L.Rager (see ILB entry here - 4th case) is the subject of a story by Niki Kelly in today's Fort Wayne Journal Gazette. Some quotes:

Police in Noble County had no justifiable reason to pull over Christopher L. Rager during a concentrated patrol in April 2006, the Indiana Court of Appeals ruled Monday.

The decision affirms an earlier trial court decision throwing out evidence related to the felony drunken-driving stop and charge. * * *

The appeals court noted first that because Indiana 9 is not a four-lane highway, Rager was not required to change lanes.

The decision also said Feller had no idea whether Rager reduced the speed of his vehicle as he approached the site of the traffic stop, and there was no evidence that his speed was unsafe.

The appellate court also noted that the trial judge viewed the videotape of the traffic stop recorded from Feller’s vehicle and didn’t “see much difference” in the speed of Rager’s truck compared with that of other passing vehicles.

Without evidence from the stop, the prosecution will be forced to dismiss the case.

Posted by Marcia Oddi on Tuesday, March 25, 2008
Posted to Ind. App.Ct. Decisions

Monday, March 24, 2008

Environment - "Huntington County dairy coming under new management"

From a press release issued this afternoon by IDEM:

Under an agreement reached with the Indiana Department of Environmental Management (IDEM), Huntington County dairy owner Johannes DeGroot and DeGroot Dairy, LLC, operating in Indiana since 2001, is barred from operating livestock facilities in the State of Indiana. The Agreed Order, signed by DeGroot Dairy, LLC, and IDEM, resolves all compliance issues currently in litigation and allows for the dairy’s sale and operation in compliance with strict environmental regulations.

“All Indiana livestock operations must meet their environmental responsibilities or face serious consequences,” said Thomas W. Easterly, IDEM commissioner. “We have utilized the courts and worked effectively with all parties, including Johannes DeGroot, area residents, and new operators for the facility, to ensure it is managed in a way that protects area streams and the Salamonie Reservoir.”

Under the agreement, DeGroot will not operate any animal feeding operation, confined feeding operation or concentrated animal feeding operation in Indiana through 2048. In addition, DeGroot agrees to sell the Huntington County dairy operation to Vreba-Hoff and allows Vreba-Hoff to take immediate responsibility for daily operations. Vreba-Hoff immediately assumes responsibility for the farm’s management. A signed purchase agreement between DeGroot and Vreba-Hoff requires the property transfer to be completed by December of 2009. Once the transfer is complete, DeGroot is also barred from ownership of any livestock operations in the State of Indiana.

This agreement resolves several pending legal proceedings involving the dairy. IDEM took legal action against this facility last year to protect state waters.

Here is a list of earlier ILB entries referencing "DeGroot."

Posted by Marcia Oddi on Monday, March 24, 2008
Posted to Environment

Ind. Law - Governor's action on 2008 bills now complete

From a media advisory:

The 2008 Bill Watch on the governor’s Web site has been updated. Thirty-three bills were signed by the governor today. This completes the bill process for 2008.
Note that only one bill, HEA 1210, Teacher certification, was vetoed.

Posted by Marcia Oddi on Monday, March 24, 2008
Posted to Indiana Law

Ind. Decisions - Cases granted transfer last Thursday and today

Although there was no transfer list issued last week, the ILB has just received this list of transfers granted by the Supreme Court March 20 (last Thursday), and today.

Untitled

In the Matter of J.C.C. 49A02-0403-JV-266 3/20/08 Transfer granted
Marla Young v. Timothy Young 09A05-0701-CV-52 3/20/08 Transfer granted
Anthony Hopkins v. State 49A05-0705-PC-279 3/24/08 Transfer granted
State v. Michael Cozart 22A01-0704-PC-183 3/24/08 Transfer granted
Richard Wallace v. State 49A02-0706-CR-498 3/24/08 Transfer granted
Todd Jensen v. State 02A04-0706-CR-351 3/24/08 Transfer granted

Posted by Marcia Oddi on Monday, March 24, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - 7th Circuit issues one Indiana opinion

In U.S. v. Odell Corley (ND Ind., Judge Lozano), a 22-page opinion, Judge Rovner writes:

The defendant-appellant Odell Corley was convicted of a number of charges including bank robbery and capital murder, and was sentenced to death on October 27, 2004. He appeals his convictions and his sentence. * * *

The conviction and sentence are AFFIRMED.

[Updated 3/25/08] From an AP story:
A federal appeals court has upheld the death sentence for an Indiana man convicted of killing two bank tellers during a botched robbery.

A three-judge panel of the 7th Circuit Court of Appeals unanimously turned down arguments from attorneys for Odell Corley, who is black, that prosecutors had improperly rejected blacks from serving on the jury in his trial.

The judges also denied claims that prosecutors wrongly influenced jurors during the sentencing phase by bringing up allegations that Odell had been involved in an Atlanta murder.

Corley was sentenced to death in 2004 after a federal jury in Hammond convicted him of murder and other charges in the shooting at the First State Bank of Porter in the Town of Pines that also left a security guard paralyzed.

Posted by Marcia Oddi on Monday, March 24, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 6 NFP) [Corrected]

For publication opinions today (4):

Andrew Joseph Scott v. State of Indiana - "We conclude that the probable cause affidavit was properly filed and that the associated search warrant was supported by sufficient probable cause. Moreover, we conclude that information that ether had been detected within the prior two months at Scott’s residence and that he had been convicted four years previously of manufacturing methamphetamine at the same address was not stale. The judgment of the trial court is affirmed."

Johnson County Rural Electric Membership Corp. and American Meter Reading, LLC. v. South Central Indiana Rural Electric Memebership Corp. - "Johnson County REMC timely filed its motion for automatic change of judge and the trial court was required to grant it; Johnson County REMC did not waive its right to challenge the denial of that motion. We reverse and remand for further proceedings consistent with this opinion, including selection of a special judge in accordance with Indiana Trial Rule 79. Reversed and remanded."

In Nassirou Gado v. State of Indiana , a 9-page opinion, Judge Barnes writes:

We do not believe a trial court has to accept at face value a defendant’s professed lack of understanding of English, anymore than it must accept an assertion of incompetency to stand trial, or must accept in-court disruptiveness as indicative of incompetency. See Bramley v. State, 543 N.E.2d 629, 633-34 (Ind. 1989) (holding, with respect to competency findings, that a trial court has a duty to ensure “that causes are tried and final determinations made” and that “[i]t would be impossible to accomplish this if a defendant is permitted to purposely frustrate the procedures by disruptive behavior.”). The trial court here essentially found that Gado intentionally was attempting to frustrate his prosecution by faking inability to communicate in any language other than Djerma, a rare language for which it is very difficult to find interpreters. There is evidence in the record to support that conclusion and that Gado adequately understood English, and possibly French, so as to proceed with his trial without the aid of a Djerma interpreter. The trial court was in the best position to judge witness credibility firsthand and decide whether Gado required an interpreter. It did not abuse its discretion in concluding that he did not. * * *

The trial court did not abuse its discretion in proceeding to trial without obtaining a Djerma interpreter and in admitting items found in Felemban’s apartment into evidence. We affirm.

State of Indiana v. Christopher L.Rager - "We conclude that Deputy Feller mistakenly believed that Rager violated the statute. State Road 9 was not a four-lane highway at the site of Deputy Feller’s traffic stop, and therefore Rager was not required by statute to change lanes as he approached Deputy Feller’s vehicle.4 Moreover, Deputy Feller had no idea whether Rager reduced the speed of his vehicle as he approached the site of the traffic stop, and there is no indication that Rager was maintaining an unsafe speed for the existing road conditions. After viewing the videotape of the traffic stop recorded from Deputy Feller’s vehicle, the trial court remarked that it did not “see much difference” in the speed of Rager’s truck compared with the speed of the other passing vehicles. Tr. at 17. Under these circumstances, we conclude that Deputy Feller, and by extension Marshal Fennell, did not have an objectively justifiable reason to stop Rager’s vehicle. Therefore, we affirm the trial court’s granting of Rager’s motion to suppress. Affirmed.

NFP civil opinions today (3):

Term. of the Parent-Child Rel. of J.P., II, and A.P., and Amy P. v. Morgan Co. Dept. of Child Services (NFP)

The City of East Chicago, Indiana v. Herbert and Alma Lasser (NFP) - "Here, the termination agreement did not embrace the entire substance of the former contract. At the most, it included a settlement provision and terms for the removal of fixtures. Further, the termination agreement contains no express indication that either party intended to repudiate the original lease agreement. We cannot conclude that the original lease agreement was merged into the termination agreement. The trial court properly awarded the Lassers property damages and attorney fees pursuant to the original lease agreement.

"Conclusion The security system and wire cages were fixtures, and East Chicago improperly removed them when it vacated the property. The original lease agreement did not merge into the termination agreement. We affirm."

Shavaughn Carlos Wilson-El v. Indiana Dept. of Correction (NFP)

NFP criminal opinions today (3):

Preston Woods v. State of Indiana (NFP)

Daniel Carmichael v. State of Indiana (NFP)

Misty Dawn Boyer v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 24, 2008
Posted to Ind. App.Ct. Decisions

Ind. Law - New law would target loan predators

Bryan Corbin of the Evansville Courier & Press reported Sunday in a lengthy story that begins:

After seeing families forced to move from their homes in recent months because of rising mortgage payments, the Indiana General Assembly attempted this year to reduce the number of future foreclosures by putting tighter controls on the home-mortgage industry.

And while legislation passed this year won't aid people who have already lost their homes, it is intended to weed out unscrupulous players in real estate transactions so future buyers will be less likely to get snared in financial traps.

The legislation, House Bill 1359, was passed by the Legislature on March 14 and sent to Gov. Mitch Daniels' desk.

Local mortgage brokers said they could support changes to state law.

"They've allowed too many people in the broker business that shouldn't be in it. There's too much fraud — people taking advantage of older people or people without much financial knowledge," Dave Clark, president of Talon Mortgage of Evansville, said last month. "And I think it's our job to educate borrowers on what kind of loan they're taking, instead of just saying, 'Sign here.'"

Daniels has until Thursday to sign the bill, House Enrolled Act 1359, into law.

It would make a number of changes that law enforcement, state regulators and the mortgage-banking industry had advocated.

Posted by Marcia Oddi on Monday, March 24, 2008
Posted to Indiana Law

Ind. Gov't. - Attorney General Carter will not run for third term

John Strauss of the Indianapolis Star reports:

Indiana Attorney General Steve Carter, who focused on consumer protection and championed the state's Do-Not-Call list during two terms in office, said Sunday that he would not seek re-election this year.

"We have achieved a lot, but I think we can achieve things outside government," Carter, 54, said at a news conference in his office. His term expires early next year. * * *

State payroll records from last year show Carter's base salary at $79,400. A living allowance of about $12,000 pushed that to $91,400, and this year he will make about $95,000 -- far less than attorneys with similar responsibilities can expect to make in the private sector.

Posted by Marcia Oddi on Monday, March 24, 2008
Posted to Indiana Government

Ind. Courts - "Courts lose some say on kids in state's care"

Tim Evans of the Indianapolis Star has a story today that begins:

Tucked into the 600 pages of tax-reform legislation signed into law last week by Gov. Mitch Daniels are several provisions that will mean judges might no longer get the last word in deciding what's best for abused children in the state's care.

The coming changes have already made judges and others apprehensive, though advocates say they will deliver millions in savings to taxpayers while expanding the state's ability to collect federal reimbursements.
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The new policies and procedures outlined in House Enrolled Act 1001 are part of a shift that makes the state, rather than counties, responsible for the $440 million annual cost of providing services to abused and neglected children and their families as well as to youths in the juvenile justice system.

James W. Payne, who heads the Department of Child Services, called the legislation "a unique opportunity to move forward" with child welfare reforms launched by Daniels in 2005. Most of the changes are set to take effect Jan. 1.

But Payne acknowledged there will be an adjustment period for judges, service providers, local officials and others who will see their roles changing -- in some cases, significantly.

Posted by Marcia Oddi on Monday, March 24, 2008
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week

ILB note: Tuesday's oral argument at 11 AM before the COA, in the case of Allianz Insurance Company v. Guidant Corporation, looks to be a "don't miss" event. It will be webcast; see details below. The ILB has made a pdf of the case docket, as it exists this morning. Access it here.
______________

This week's oral arguments before the Supreme Court:

This Thursday, March 27th:

9:00 AM - Willie Eaton v. State - Following a jury trial in the Wayne Circuit Court, Eaton was convicted of dealing in cocaine and other offenses. Evidence obtained by the Sate pursuant to search warrants was admitted over Eaton's objection. The Court of Appeals determined the evidence had been obtained improperly and reversed the convictions in Eaton v. State, 878 N.E.2d 481 (Ind. Ct. App. 2007), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Eaton; David M. Jordan of Richmond, IN. Attorney for the State; Scott L. Barnhart of Indianapolis, IN. [Where: Indiana Supreme Court Courtroom]

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

This Tuesday, March 25th:

11:00 AM - Allianz Insurance Company v. Guidant Corporation - In addition to the issues relayed by the parties in their original briefs to show cause why sanctions should not be imposed for failing to follow the Motion Panel's directive concerning the submission of a meaningful public access set of briefs as ordered on July 17th, 2007, the parties' attention is directed to the Supreme Court's order in Palmer v. Comprehensive Neurologic Services, P.C. et al, 32A01-0512-CV-553, dated June 29, 2007, wherein the court stated that "as a general proposition, court records are accessible to the public unless excluded from public access by a provision of Rule 9(g)(2)" The oral argument herein scheduled shall be a public hearing to balance the public's interest in access with the movant's interest in restriction access. The Scheduled Panel Members are: Chief Judge Baker, Judges Riley and May. [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 Thursday, March 27th:

10:00 AM - Danny Quick vs. State of Indiana - What: If the evidence is sufficient to support Appellant's conviction of murder. The Scheduled Panel Members are: Chief Judge Baker, Judges Darden and Bradford. [Where: Indiana Court of Appeals Courtroom]

Posted by Marcia Oddi on Monday, March 24, 2008
Posted to Upcoming Oral Arguments

Sunday, March 23, 2008

Courts - Who has authority over Ohio court records?

On March 12th the ILB had an entry about the Oklahoma Supreme Court cutting off on-line access to public court records.

Today the Cleveland Plain Dealer has this story by Reginald Fields. Some quotes:

Columbus- A leading open- government advocate says the Ohio Supreme Court is exceeding its powers by trying to take control of state court records.

Cleveland lawyer David Marburger, of the Ohio Coalition for Open Government, said a court- appointed commission drawing up rules on what court records the public should have access to does not have the constitutional authority to do so.

"When you give a small group of people, seven people, the power to decide what everyone should have access to, you have automatic mischief, maybe not intended mischief," said Marburger, an open-records attorney who represents The Plain Dealer and other Ohio newspapers.

"The court doesn't have this kind of power," he said. "The court is not a little legislature."

But Justice Judith Ann Lanzinger, who chairs the Commission on the Rules of Superintendence for Ohio Courts, said Marburger is wrong.

She points to the Ohio Constitution, which states that the high court is to oversee all state courts and set rules and procedures for how those courts operate.

"The Supreme Court has the authority to make sure the courts are operating in a just fashion," she said this month following a commission meeting. "So I don't know where this constitutional argument is coming from." * * *

For more than a century, if access to Ohio court records became a debatable issue, judges tended to lean on the state's legislatively authored open-records law or case law, the body of prior judicial decisions.

But two years ago, the Ohio legislature tinkered with the public-records law and considered slipping in a provision to exempt all court records, which led to an argument over separation of powers.

At that point, Chief Justice Thomas Moyer decided to move court records under the judicial branch of government, as he says the constitution allows him to do, and appointed Lanzinger's commission to draft the rules.

The rules essentially try to define what is a court record, which records are public, how they can be disseminated and what remedies are available when access is denied.

So far, the drafted rules are similar to the public-records law, but red flags have been raised by provisions allowing some litigants to hide their identities in court records or allowing some records to be closed without a public hearing.

Lanzinger said she was surprised that the general feedback from the public was that the commission was trying to close off access rather than keep it open. Nothing could be further from the truth, she said, and the commission is considering revisions before meeting again in June.

Those access concerns are at the heart of Marburger's complaint. He suspects the commission will pass rather benign rules now to appease the public, but he says that does not stop future justices from later changing the guidelines on a whim.

"I don't know how often, but I promise you that there will be a point when one group will say 'Dismissed complaints against certain kinds of people should be closed' or 'Divorce records should be closed,' " he said.

Posted by Marcia Oddi on Sunday, March 23, 2008
Posted to Courts in general

Ind. Decisions - "Condo owners fail to win damages: Claimed Kamm Island span blocked their river view"

Reporting on the Court of Appeal's March 20th opinion in Center Townhouse Corp et. al. v. City of Mishawaka (ILB entry here, 3rd case), Marti Goodlad Heline writes today for the South Bend Tribune:

Five years ago, owners of condominiums near Kamm Island hired an attorney to attempt to stop the city from building a bridge they said would interfere with their view of the St. Joseph River.

After five years of litigation, they are no better off than when they started. A ruling from the Indiana Court of Appeals in Indianapolis affirmed a jury verdict that gave no monetary damages to the owners.

A request for an injunction failed and the pedestrian bridge to Kamm Island was built as part of Mishawaka's Riverwalk.

The Schellinger Square condominium owners' 2002 lawsuit in St. Joseph Circuit Court also sought compensation from the city of Mishawaka for what they said was an unlawful taking of their property to build the bridge.

The first trial in the lawsuit took place in 2004. The ruling by then-Circuit Court Magistrate David Chapleau found the owners of the condos, located behind the 100 Center, were entitled to compensation for their loss of their "riparian" rights to freely use the water adjacent to their shoreline but not for their loss of a scenic view.

A second trial in 2006 was held to determine what damages, if any, were owed the five owners. After appraisals were done following the ruling in the 2004 trial, the owners insisted they were owed at least $145,000 from the city of Mishawaka.

The owners maintained the bridge not only interfered with their view of the river but restricted where they could swim, cast a fishing line or use a pontoon boat on the river or build a pier.

At the second trial in 2006, the jury found the loss was too minimal, so the city of Mishawaka owed no monetary damages to the owners.

That was despite a ruling that the city's action amounted to an "inverse condemnation" by the city because the bridge did affect the owners' rights to fully use their property, according to the 2004 ruling.

Both sides appealed after the 2006 verdict. The owners challenged the zero verdict and the instructions the jury was given. The city of Mishawaka challenged the ruling that an involuntary taking of property occurred.

In a 17-page ruling issued Thursday, the Indiana Court of Appeals upheld the jury verdict and prior rulings by Circuit Judge Michael Gotsch and Chapleau.

The appellate judges said the city failed to meet the burden to show the ruling was in error that Mishawaka had taken the owners' riparian rights involuntarily.

The appellate court also found the ruling issued was correct in that riparian rights do not include an unobstructed view of water. There was no problem with the jury instructions, the appeals judges said.

Either side may ask the Indiana Supreme Court to review the case, but that court is under no obligation to do so.

Posted by Marcia Oddi on Sunday, March 23, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Fountain County judge's order blocked an Indy TV station from airing a parent's criticism of child welfare agency"

That is the headline of a story by Tim Evans in today's Indianapolis Star.. Some quotes:

Mark McGaha wanted to share his frustrations about the Department of Child Services with the public, but he never got the chance.

McGaha did an interview with an Indianapolis TV station, but a Fountain County judge issued a restraining order barring the station from airing his complaints or even showing his face -- apparently without even having seen the footage.

The segment about family advocacy group Honk For Kids was broadcast March 13, without McGaha's comments and with his face blocked out in a group shot of parents.

A legal scholar called Judge Susan Orr Henderson's action unconstitutional and said it "borders on judicial misconduct."

"Quite simply, a judge does not have the authority to stop the press from publishing or airing a story," said Henry Karlson, a professor at Indiana University School of Law-Indianapolis. "Any person has a right to contact the press and say a public agency is not treating them right."

Karlson said the judge's action amounted to "prior restraint," or government censorship, which is a violation of the First Amendment. * * *

After the TV segment aired, Honk For Kids asked the station, WXIN (Channel 59), why McGaha's face had been blurred and was told of the restraining order. That was the first that anyone, including McGaha, had heard about the judge's action.

Gavin Maliska, news director at WXIN, said station officials discussed challenging the order, which was issued the day the segment was to air, but decided McGaha's contributions weren't essential to the story.

"It came down to principle versus practical," he said. "If it would have affected what we were trying to do with the story, we probably would have had a different outcome."

Maliska said the court order was sought by the guardian ad litem who represents McGaha's children in a Child in Need of Services case in Fountain County.

The guardian ad litem, Covington attorney Sue White, did not return calls from The Indianapolis Star, and the court would not release a copy of the order. Bailiff Dianne Cotten said it was part of the confidential records of the CHINS case and could not be made public.

However, a copy obtained by The Star showed that Henderson barred WXIN "from broadcasting any portion of an interview involving Mark McGaha and his minor children until such time as the guardian ad litem and/or court has an opportunity to review" the report.

The order said the injunction was issued to protect the best interests of the children. Karlson said that does not provide the constitutional standard for such an order.

"I see no basis on which a prior restraint could have been imposed," he said. "He has an absolute right to complain about his treatment by the court or any other government agency."

McGaha could appeal the judge's ruling, Karlson said, "but it's basically a moot point" because the opportunity to air his complaints on TV has passed.

"I don't know what's more outrageous: the judge ordering this and not knowing it violates the Constitution, or knowing and still issuing the injunction," Karlson said.

Posted by Marcia Oddi on Sunday, March 23, 2008
Posted to Indiana Courts

Saturday, March 22, 2008

Courts - "Justice for Sale"

Check out this opinion piece today from the Wall Street Journal, authored by James Sample, an attorney with the Brennan Center for Justice at NYU School of Law. Some quotes:

Certain American values transcend partisan divisions. One is that money should not influence the courts. But with record sums pouring into judicial elections, the ideal of due process is giving way to a perception of pay-to-play justice. * * *

John Grisham's latest bestseller, "The Appeal," is a shadowy tale of a chemical company that buys a favorable legal ruling by funding the election of the judge who makes it. Farfetched? Not according to West Virginia Supreme Court Justice Larry Starcher. In a scathing opinion last month, he decried a "cancer" of moneyed influence in his court, asserting that "John Grisham got it right when he said that he simply had to read The Charleston Gazette to get an idea for his next novel."

The citizens of 39 states elect some or all of their judges. These contests have become costly arms races. An investigation by the Los Angeles Times, "In Las Vegas, They're Playing with a Stacked Judicial Deck," revealed that even Nevada judges running unopposed collected hundreds of thousands of dollars in contributions from litigants. The report noted that donations were "frequently" dated "within days of when a judge took action in the contributor's case."

Business interests and trial lawyers both lay out campaign cash to ensure that sympathetic judges are elected. Both sides attempt to manipulate courts; business just happens to be better at winning. The U.S. Chamber of Commerce got involved in 13 judicial races in 2004 and won 12. Nationwide in 2006, business donors contributed twice as much to state supreme court candidates as attorneys, according to the National Institute on Money in State Politics.

Consider three recent episodes in light of the American Bar Association's requirement that judges disqualify themselves whenever their "impartiality might reasonably be questioned."

Lloyd Karmeier, the winner of a $9.3 million campaign for the Illinois Supreme Court in 2004, was supported by $350,000 in direct contributions from employees, lawyers and others directly involved with the insurer State Farm and/or its then pending appeal, and by an additional $1 million from larger groups of which State Farm was a member, or to which it contributed. Almost immediately upon taking the bench, he cast a vote ending proceedings on a $456 million claim against State Farm. A St. Louis Post-Dispatch editorial put it this way: "Although Mr. Karmeier is an intelligent and no doubt honest man, the manner of his election will cast doubt over every vote he casts in a business case."

Wisconsin Justice Annette Ziegler declined, in December, to recuse herself from a case involving Wisconsin Manufacturers & Commerce, which spent $2 million -- more than her Ziegler's own campaign -- supporting her 2007 win. In light of that decision, as well as additional revelations that Justice Ziegler had ruled on 11 cases involving a company for which her husband was a director, editorials around the state called for her to step down from the case, and even from the bench. Not coincidentally, all seven of Wisconsin's Supreme Court justices, a broad majority of Wisconsin's public, and even a plurality of self-identified "very conservative" Wisconsin voters support public financing of judicial elections.

In November, West Virginia Chief Justice Elliot Maynard voted in a 3-2 majority to overturn a $76 million judgment against the companies of coal executive Don Blankenship. In January, photos surfaced depicting Messrs. Maynard and Blankenship vacationing in the French Riviera while the appeal was before the court.

Posted by Marcia Oddi on Saturday, March 22, 2008
Posted to Courts in general

Ind. Decisions - More on: SCOTUS to hear second Indiana case

Updating this lengthy ILB entry from Jan. 24th, the Indiana Supreme Court decision in the case of Ahmad Edwards v. State will be heard before the SCOTUS on Wed., March 26th.

Maureen Groppe, Gannett News Service, has a comprehansive USA Today story today on the appeal, headed "High court to consider self-representation." Some quotes:

The Supreme Court is set to hear oral arguments Wednesday in an Indiana case in which a Marion County judge decided a defendant with a history of mental illness was competent to stand trial, but not to represent himself as he requested.

When Ahmad Edwards appealed his conviction of attempted murder and other charges, the Indiana Supreme Court agreed Edwards had the right to represent himself and reversed his conviction.

The Indiana attorney general's office appealed, arguing that allowing mentally impaired defendants to represent themselves undermines fair trials and erodes public confidence in the system.

"The consequences often are disastrous for both the defendants and the integrity — not to mention dignity — of the criminal justice system," the Indiana attorney general's office wrote in its brief to the court.

Indiana's position is backed by the Justice Department, 19 other states and the American Bar Association.

Edwards' lawyer counters that the right to represent oneself gives the defendant power in the relationship with his attorney, and states should not have "unfettered discretion" to place a higher standard on that right for certain defendants.

Posted by Marcia Oddi on Saturday, March 22, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Still more on: "Suit filed over RCA Dome auction"

Updating this ILB entry from March 21, an editorial in the Indianapolis Star today is headed "City board made the right call to reverse decision on Dome auction." It begins:

The Capital Improvement Board, faced with public outrage over its decision to give all the proceeds from the sale of RCA Dome memorabilia to two nonprofits, dropped that plan Thursday. Most of the money raised from an online auction of seats, signs, portions of the roof and other items will now flow into the CIB's general fund.
This means it will not be used to help pay off the $75 million in debt the public still owes on the soon-to-be demolished Dome. As reported in an earlier Star story, the lawsuit filed Monday asked that the auction money be returned to county taxpayers to help reduce the still-owed $75 million debt on the Dome.

Why not? In a report I watched on Channel 6 last evening, CIB president Bob Grand reportedly said "it doesn't make good fiscal sense to use the money to pay down the debt on the loan." The print version of the story does not contain that quote, but does set out what followed:

The CIB will now put the proceeds -- which it estimates will be less than $1 million -- in its general fund, which it uses to attract sporting events and conventions to Indianapolis.

"In our opinion, (the money) is going back to the benefit of the taxpayers," said CIB president Bob Grand.

Posted by Marcia Oddi on Saturday, March 22, 2008
Posted to Indiana Courts

Ind. Courts - Updating "New Marion County public defender will face budget cuts"

Updating this ILB entry from March 13th, the Indianapolis Star today has stories on Bob Hill, nominee to fill the position of Marion County Public Defender Agency, and David E. Cook, outgoing public defender.

BTW, I read these articles in the paper this morning, but had an almost impossible time finding them, and particularly the article on Cook, on the "new and improved" (and very slow, sometimes unusable) Star website.

Posted by Marcia Oddi on Saturday, March 22, 2008
Posted to Indiana Courts

Friday, March 21, 2008

Ind. Decisions - More on "Jill Behrman murder trial unfair, lawyer tells appeals court"

This morning the ILB posted quotes and/or links to stories from two reporters, Deanna Martin and Jon Murray, on yesterday's arguments before the Court of Appeals.

Now Bethany Nolan from the Martinsville Reporter-Times, the site of the trial, weighs in. Here is how her story begins:

Is the case against John R. Myers II entirely circumstantial? Did it prejudice jurors to hear talk of an inadmissible polygraph examination? And did after-hours hijinks color the jury's decision-making process?

Those were just a few of the questions three Indiana Appeals Court judges fired off Thursday while dissecting an appeal of Myers' conviction for the murder of Jill Behrman. Leaning over a bench in an ornate courtroom in the Indiana Statehouse, the three listened to presentations from Myers' attorney, Patrick Baker, and deputy attorney general Joby Jerrells, interrupting often with questions about particular details.

Baker appealed Myers' conviction in September, arguing that a litany of issues at the trial level demand the case be overturned, including that the trial court denied his motion to move the trial elsewhere, that jurors heard an expert witness testify about the uncharged crime of rape, that a detective referred to an inadmissible polygraph examination while on the stand and that jurors acted improperly while sequestered for the 12-day trial.

"This case is about fairness," he said. "Fairness in proceedings in the courtroom, outside of the courtroom and at the hotel where jurors were sequestered."

When he pointed out jurors were allowed to drink during dinner - only on their own dime and with a two-drink limit - appellate Judge Cale J. Bradford asked whether there was proof jurors were intoxicated during proceedings or while deliberating. The same applies for the TV jurors purportedly smuggled into the hotel where they were staying, and calls on cell phones, he said.

"You've talked about a number of things," he told Baker. "But there's nothing in the record that their activities affected their decision in this case."

When Jerrells took his turn at the podium, Judge Michael P. Barnes pointed out the state's case is entirely circumstantial. Jerrells agreed, but pointed out the state's belief that motive, opportunity, means and suspicious behavior add up in this case.

Barnes questioned how often inadmissible details can be brought up before an unfair atmosphere is created, noting jurors heard references to a polygraph examination and the allegation from a forensic pathologist that Behrman might have been raped.

"How can you un-ring the bell?" he asked. Jerrells pointed out the jury was admonished by the judge to ignore the polygraph reference. But, Baker later argued, "Once the word 'polygraph' leaves a 20-year detective's mouth, the damage is done."

Posted by Marcia Oddi on Friday, March 21, 2008
Posted to Indiana Decisions

Ind. Courts - Miami County to get second superior court

The Peru Tribune reports:

It happened a bit sooner than originally planned - but as of Jan. 1, 2009, Miami County will have a second superior court.

A bill creating the court has been passed by the Indiana General Assembly and currently awaits Governor Mitch Daniels' signature. There are still a lot of questions to be answered, such as where it is going to be housed, who will be its judge, and how the county is going to pay for at least two more employees to staff it - but nevertheless, the news is exciting for some as it will alleviate heavy caseloads in the current Miami County circuit and superior courts.

Posted by Marcia Oddi on Friday, March 21, 2008
Posted to Indiana Courts

Not law - Kentucky governor allows state workers to access blogs

John Stamper of the Kentucky Herald-Leader reports today in a story that begins:

FRANKFORT -- Reversing a policy set by former Gov. Ernie Fletcher's administration, state-owned computers used by executive branch employees can now access blogs. The state had banned access to most blogs, excluding those operated by newspaper and television companies, since June 2006.

"We don't believe it is state government's role to distinguish between which news source is legitimate and which is illegitimate," said Jonathan Miller, secretary of the cabinet. "For the most part, we are leaving an open Internet."

Although state workers can access the sites, they are not allowed to comment on blogs during working hours and should only access blogs for work-related reasons while on the clock, said Jill Midkiff, spokeswoman for the Finance and Administration Cabinet.

Workers are free to look at any blog they like, provided it doesn't contain pornographic material or other banned content, during breaks and lunch hours, she said.

"We'll be sending out a new acceptable use policy for workers to sign," Midkiff said.

Posted by Marcia Oddi on Friday, March 21, 2008
Posted to General News

Ind. Courts - More on: "Suit filed over RCA Dome auction"

Updating this ILB entry from March 17th, Brendan O'Shaughnessy of the Indianapolis Star reports today:

Bowing to public opinion and facing a lawsuit, the Capital Improvement Board reversed course Thursday on what to do with the money generated by the sale of RCA Dome memorabilia.

Rather than allow the dollars to go to two nonprofits, the board unanimously voted to keep most of the proceeds.

The CIB now will pay a fee of $200,000 to one of the nonprofits, the Indiana Sports Corp., to manage the auction and return the rest of what could be more than $1 million in proceeds to its general fund. That means taxpayers will keep the money.

The original plan was to allow the Indiana Sports Corp. and Indianapolis Colts Foundation to run the auction and keep all of the money.

The money going to the Sports Corp. will cover the cost of running the massive operation of taking out, selling and delivering the Dome's seats, aisle signs, pieces of cloth from the roof and even urinals.

Board members said the stadium's field turf, which will be mounted in pieces on plaques for $60 each, and lockers are the Colts' property and therefore not covered by the new agreement.

Public reaction to the original plan was negative, with criticism that proceeds from the sale of furnishings in the stadium should be returned to the taxpayers, who built the Dome.

Also, the Downtown law firm of Roberts & Bishop filed a lawsuit Monday asking that the auction money be returned to county taxpayers to help reduce the still-owed $75 million debt on the Dome.

Posted by Marcia Oddi on Friday, March 21, 2008
Posted to Indiana Courts

Ind. Decisions - "Jill Behrman murder trial unfair, lawyer tells appeals court"

Oral arguments were heard yesterday, March 20th, before a panel of the Court of Appeals in the case of John R. Myers, II vs. State of Indiana. Myers is the man convicted of killing IU student Jill Behrman, whose "body was found in 2003, nearly three years after she disappeared while riding her bicycle in Bloomington," per this March 2, 2006 AP report.

Jon Murray of the Indianapolis Star reports today on yesterday's arguments. His story begins:

Pretrial publicity about the disappearance and killing of Indiana University student Jill Behrman made a fair trial impossible for the man later convicted of the crime, his attorney told an appeals panel Thursday.

The conviction of John R. Myers II also rests on prosecution missteps that his attorney said should have led to mistrial rulings; a wrongly excluded FBI report; and after-hours antics by the jury. Myers argued those contentions should persuade a three-judge Indiana Court of Appeals panel to overturn his 2006 conviction and 65-year prison sentence.
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"We believe this was an unfair procedure from the get-go," attorney Patrick V. Baker said. "The entire (jury) pool, we believe, was tainted."

A deputy Indiana attorney general disagreed, arguing that Baker was exaggerating the effects of trial mistakes and misbehavior by the jury -- including after-hours drinking -- while it was holed up in a hotel for more than two weeks. * * *

During an hour of argument in the Indiana Supreme Court's courtroom, Judges Carr L. Darden, Michael P. Barnes and Cale J. Bradford peppered each side with pointed questions. They will issue a decision later.

Watch the entire hour-long review here

[More] Deanna Martin has this report in the Louisville Courier Journal.

Posted by Marcia Oddi on Friday, March 21, 2008
Posted to Ind. App.Ct. Decisions

Thursday, March 20, 2008

Ind. Courts - Another case lost for months in the Clerk's Office

Check the docket to confirm that your case has, in fact, been transmitted to the Court of Appeals after being fully briefed, as emphasized in this footnote #1 in an opinion issued today: Jerry A. Gore v. State of Indiana (NFP), authored by Chief Judge Baker:

As we have pointed out in Lake County Board of Elections and Registration v. Copeland, --- N.E.2d ---, No. 45A04-071-CV-560, slip op. p. 5 (Feb. 27, 2008) and Gilbert v. State, 874 N.E.2d 1015, n.1 (Ind. Ct. App. 2007), we have recently become aware of some difficulties in receiving the prompt transmission of fully-briefed appeals to our court. Indeed, the case herein was fully briefed on June 21, 2007, but was not transferred to our court until February 26, 2008—a delay of over eight months. We remind counsel that a link to the Clerk’s online docket is available at http://www.in.gov/judiciary/cofc/ and counsel may check the docket to confirm that the case has, in fact, been transmitted to this court after being fully briefed.
For more on Copeland, see this ILB entry from Feb. 27th, headed "Ramifications of problems in the Clerk's Office continue."

Posted by Marcia Oddi on Thursday, March 20, 2008
Posted to Indiana Courts

Ind. Courts - City Court Judge Brandy Goodman proposes a probation department

From the Alexandra Times-Tribune, Randy Chambers reports:

Alexandria can maintain, and perhaps profit, from having its own probation department according to City Court Judge Brandy Goodman.
Living up to one of her campaign promises, Judge Goodman appeared before Alexandria City Council members Monday night and said she has submitted an ordinance proposal to City Attorney Jim Wilson.

“We are missing out on a lot of administrative and user fees that could sustain our own probation department and give us greater oversight of the people we have on probation,” Goodman said. “I’ve placed 18 people on probation already this month, and there are about 160 defendants from our court on probation through the Elwood Probation Department right now.”

Goodman proposes that the City create its own department by hiring one part-time probation officer to share space with Alexandria City Court staff.

Defendants sentenced to probation pay an administrative fee of $50 for each charge they are to serve probation for, and are then assessed a monthly user fee.

“We’ve lost a lot of money to other jurisdictions, and having our own probation department would help us keep in touch with our probationers,” Goodman said.

In addition, it could help the City develop a community service program in which defendants who do not have the means to pay fines or other costs could opt to perform various duties in the community.

A similar program was tried under former City Court Judge Jim King, but was discontinued do to a lack of supervising personnel.

In response to questions posed by Mayor Jack Woods and various City Council members, Goodman said probation was a viable alternative to jail for many defendants and can help alleviate overcrowding at the county jail.

Posted by Marcia Oddi on Thursday, March 20, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 12 today (and 24 NFP)

For publication opinions today (12):

Kevin Taylor v. State of Indiana - "Based upon the evidence submitted to the post-conviction court, the court did not err in finding that Taylor failed to establish that he received ineffective assistance of trial or appellate counsel. However, we conclude that Taylor was deprived of a procedurally fair hearing due to the performance of his post-conviction counsel. Therefore, we reverse and remand for a new post-conviction hearing."

Edward J. Allison and Henry Charles Safford v. Union Hospital and Wabash Valley Anesthesia, P.C. - "The appellants argue that the trial court erroneously entered summary judgment in the appellees’ favor on the appellants’ claims for tortious interference with contractual relationship against both appellees and constructive fraud and breach of the duty of good faith and fair dealing against Union. Finding that summary judgment was erroneously entered on the tortious interference claim against Union but properly entered on all remaining counts, we affirm in part, reverse in part, and remand for trial on the tortious interference claim against Union."

In Center Townhouse Corp et. al. v. City of Mishawaka , a 17-page opinion, Judge Kirsch summarizes:

Center Townhouse Corporation (“CTC”) and individual townhome owners John W. Schindler, Jr., Ann M. Schindler, Dennis Doordan, Marcia Rickard, Michael A. Nickol, Betty M. Nickol, Richard T. Johnson, and Jeffery A. Greco (“Owners”) brought an inverse condemnation action against the City of Mishawaka and its Parks and Recreation Board (collectively “the City”) relative to the construction of a pedestrian bridge connecting Lincoln Park and Kamm Island. Following a bench trial, the trial court determined that the City had taken property interests belonging to CTC and the Owners without just compensation. Subsequently, a jury trial was held on the issue of damages, and the jury returned a verdict of zero damages. In this appeal, Owners appeal the damages verdict and resulting judgment in favor of the City, and the City cross-appeals the decision that a taking occurred.

We consolidate and restate the issues raised by the parties as follows: I. Whether the trial court erred when it determined that the construction of the pedestrian bridge constituted a taking. II. Whether riparian rights in Indiana include the right to an unobstructed view of the body of water that created those riparian rights. III. Whether the trial court erred when it instructed the jury that it should not consider any loss of view when determining damages caused by the taking. We affirm.

In Larry Bowyer d/b/a Lakes Limited Liability Corp. v. Indiana Department of Natural Resources , a 15-page opinion, Judge Najam writes:
Larry Bowyer d/b/a Lakes Limited Liability Corp. (“Bowyer”) brings this interlocutory appeal from the trial court’s order establishing the average normal water level of Lake Cicott. Bowyer asserts three issues for review, which we consolidate and restate as: 1. Whether the trial court properly construed and applied Indiana Code Chapters 14-26-4 and 14-26-2. 2. Whether sufficient evidence supports the court’s determination of Lake Cicott’s average normal water level. We affirm.
In Elizabeth (Bevers) Dryden v. Kevin Bevers , a 13-page opinion, Judge Vaidik writes:
After a divorced couple and their three children all moved from Indiana to Florida, Kevin Bevers (“Father”) filed a motion to transfer the case. The trial court granted the motion and transferred the case to the State of Florida. Elizabeth Dryden (formerly Bevers) (“Mother”) filed a motion to correct error, alleging that the trial court erred in transferring jurisdiction over the case. The trial court denied her motion, and Mother appeals. She argues that Father waived the jurisdictional provisions of the Uniform Child Custody Jurisdiction Law (“UCCJL”) and the Uniform Interstate Family Support Act (“UIFSA”) by not objecting to the Indiana court’s exercise of jurisdiction at an earlier date and that Indiana must continue exercising jurisdiction pursuant to these statutes. Because the underlying dispute does not pertain to child custody matters, the UCCJL is irrelevant to this appeal. As it is unclear whether the trial court intended to transfer limited jurisdiction to enforce the order or exclusive jurisdiction to modify the order, we address both types of jurisdiction in this case. We conclude that Indiana has jurisdiction to enforce its order, and it was not an abuse of discretion to transfer the case to Florida for enforcement of the Indiana order. Regarding jurisdiction to modify Indiana’s order, while the Indiana statute indicates that we have continuing, exclusive jurisdiction over the parties’ child support order, we do not under the federal Full Faith and Credit for Child Support Orders Act (FFCCSOA). Because the FFCCSOA provides that Indiana no longer has continuing, exclusive jurisdiction over prospective modifications of the support order and because both Florida and Indiana have the authority to enforce the existing Indiana order, we affirm.
In Lake County Trust Company v. Advisory Plan Commission of Lake County, Indiana , a 20-page opinion, the Court discusses, on p. 19, "the requirements of the Open Door Law in the context of mediation."

In Darvous Clay v. State of Indiana , a 7-page opinion, CJ Baker writes:

Darvous Clay appeals his thirty-two-year sentence for Burglary,1 a class A felony. Specifically, Clay argues that (1) the provision of his plea agreement waiving his right to directly appeal his sentence is unenforceable, and (2) his sentence is inappropriate. We find the provision of the plea agreement in which Clay waived his right to directly appeal his sentence to be unenforceable because of the lack of evidence showing that Clay understood that he was waiving that right when he entered into the plea agreement. However, we do not find Clay’s sentence to be inappropriate and, thus, affirm the judgment of the trial court.

Garganus T. Moore v. State of Indiana

James Malone v. State of Indiana

Joshua E. Gale v. State of Indiana

Termination of Parent-Child Relationship of A.P.; Eduardo Perez v. Marion County Department of Child Services

In Maggie Bush and Leonard Bush v. State Farm Mutual Automobile Insurance Company , a 10-page, 2-1 opinion, Judge Kirsch concludes:

In the present case, we conclude that the language in State Farm’s policy, which purports to limit recovery of uninsured motorist benefits only to situations where the insured sustains bodily injury, violates Indiana’s uninsured motorist statute. As stated above, the statute mandates coverage (1) for the protection of persons insured under the policy (2) who are legally entitled to recover damages because of bodily injury, sickness, or disease, including death, (3) from the owner or operator of an uninsured motor vehicle. Here, the Bushes are persons insured under the policy, as they are the named insureds on the declarations page of the insurance policy. They are legally entitled to recover damages because of the death of Leonard. Pursuant to IC 34-23-1-2, the Bushes were entitled to recover damages for the loss and companionship of Leonard due to his death caused by the wrongful act or omission of another person. Additionally, the operator of the vehicle that caused Leonard’s death, Washington, was uninsured. Thus, the Bushes’ claim falls within the purview of Indiana’s uninsured motorist statute. State Farm’s requirement that bodily injury must occur to an insured precludes recovery of damages that the Bushes are legally entitled to recover. The policy requirement violates the statute and is therefore void. The trial court erred when it granted summary judgment in favor of State Farm. We reverse and remand with instructions for the trial court to enter summary judgment in favor of the Bushes. Reversed and remanded.

ROBB, J., concurs.
BARNES, J., dissents with separate opinion. [which begins] I respectfully dissent. I am unable to conclude that Indiana’s Uninsured Motorist Statute requires coverage for the Bushes under these facts. Despite the majority’s holding to the contrary, I believe this case must be controlled by our decision in Armstrong v. Federated Mutual Insurance Company,

NFP civil opinions today (10):

Susan Royer, DDS v. Four Season Group, LLC (NFP)

Clarence E. Lowe v. Northern Indiana Commuter Transportation (NFP)

In Re the Adoption of E.W.; Jeremy Behan v. Amanda & Brian Wawok (NFP)

William R. Knapp v. Kala M. Knapp (NFP)

A.R.B. by her Natural Parents and Friends v. Roy Defries, M.D., et al. (NFP)

Termination of Parent-Child Relationship of D.S.; Donald & Terri Stedman v. Greene County Department of Child Services (NFP)

Termination of Parent-Child Relationship of C.C. & A.M.; Eva A. Conrad v. Tippecanoe County Department of Child Services (NFP)

J.B. v. The Board of Trustees of Vincennes University (NFP)

In Re the Adoption of R.B.H.; Mark L. Harper v. David Eugene Elliott, Jr. (NFP)

Termination of Parent-Child Relationship of K.B. and T.B.; Tana Burwell v. Allen County Department of Child Services (NFP)

NFP criminal opinions today (14):

William White v. State of Indiana (NFP)

Denise Patton v. State of Indiana (NFP)

Gregory Flowers v. State of Indiana (NFP)

Garry Shidler v. State of Indiana (NFP)

Larry D. Winn v. State of Indiana (NFP)

Richard Harper v. State of Indiana (NFP)

Terrance Coody v. State of Indiana (NFP)

Charles E. Dumas v. State of Indiana (NFP)

Andre Raffaelle Vena v. State of Indiana (NFP)

Jerry A. Gore v. State of Indiana (NFP)

Ronnie Q. Henderson v. State of Indiana (NFP)

Herman J. Smiley v. State of Indiana (NFP)

Kurtis A. Guhl v. State of Indiana (NFP)

Akeem Aki-Khuam v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 20, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Zionsville schools health fee would become voluntary under settlement

Robert Annis of the Indianapolis Star reports today:

A lawsuit filed by the American Civil Liberties Union of Indiana over a controversial fee charged by Zionsville Community Schools may be settled by the end of the week.

Wayne Uhl, the school district's attorney, declined to provide details about the proposed settlement regarding the district's $45 health clinic treatment fee charged to parents, but said the fee would become a voluntary donation.
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He said the school district would not admit the fee was illegal or return previously charged fees.

Uhl said he thought the fee would withstand legal scrutiny "but in litigation, nothing is ever certain." * * *

The ACLU won a similar case in March 2006 in the Indiana Supreme Court against Evansville-Vanderburgh Schools. The district had been charging families a $20 "student services fee" that paid for nurse services and athletic programs.

After the court's decision, Zionsville administrators and attorneys studied the district's fees. Some were changed and others were dropped entirely, but the attorneys thought the health fee would withstand legal scrutiny, Robison said at the time.

Robison threatened possible cuts, either in health services or academic programs, if the fee disappeared.

The case referenced is the March 30, 2006 Supreme Court opinion in Frank Nagy, et al. v. Evansville-Vanderburgh School Corporation. See ILB summary here.

Posted by Marcia Oddi on Thursday, March 20, 2008
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals Court upholds Terre Haute City Council election

Reporting today on Tuesday's COA decision in the case of Dan Lockard v. Charles Miles and John Mullican, where Lockard failed to win despite the fact that his opponent had died after his his name was placed on the ballot, Howard Greninger of the Terre Haute Trib-Star writes in a story that begins:

The Indiana Court of Appeals has upheld a trial court’s denial of Dan “Buford” Lockard in his challenge to the results of the May 8 Democratic primary election.

The court ruled Tuesday that current Terre Haute City Councilman John Mullican, D-6th, was properly selected in a party caucus to fill the vacancy created by the April 18 death of incumbent Charles “Chuck” Miles.

P.J. Pierson, a Sullivan County Circuit Court judge who served as a special judge in the case, ruled against Lockard in August. Lockard then appealed that ruling.

“I just can’t believe that the Court of Appeals don’t follow the written law. It is a code and a statute. I just can’t believe that they allowed that to happen,” Lockard said Wednesday.

Lockard said he will talk with his attorney to determine if he will take his challenge before the Indiana Supreme Court.

“I am flabbergasted. The laws are written for all, not just a few, I believe,” Lockard said. “If common people can see this and what is written down, I don’t understand, but judges seem to do what they want and they wonder why people don’t go to vote.”

Mullican said he was pleased with the court’s ruling.

“Obviously I agree with their decision and we thought the proper procedure had been followed according to our reading of the statutes, and obviously the trial court felt that way and the appeals court basically agreed with that,” Mullican said.

Posted by Marcia Oddi on Thursday, March 20, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on "Judge upholds Plainfield sex offender ban"

Updating this ILB entry from March18th, Bruce C. Smith of the Indianapolis Star reports today in a story that begins:

Plainfield has won the latest round in its three-year legal battle to ban convicted sex offenders from town parks.

But the lawsuit of John Doe vs. Plainfield isn't settled.

Attorneys at the American Civil Liberties Union of Indiana said this week that they will appeal the latest Hendricks Superior Court ruling that found the town ordinance banning sex offenders to be constitutional.

ACLU legal director Kenneth J. Falk said Tuesday, "I've spoken with the client and he's authorized us to appeal."

Falk will continue to challenge the constitutionality of the town ordinance in a filing with the Indiana Court of Appeals within 30 days of Hendricks Superior Court Judge Robert Freese's March 13 ruling.

"We'll continue to argue that the ordinance is unconstitutional. One of the fundamental rights in Indiana is the right to go into public places, but this law attempts to extinguish that right," Falk said.

Posted by Marcia Oddi on Thursday, March 20, 2008
Posted to Ind. Trial Ct. Decisions

Wednesday, March 19, 2008

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

In JP Morgan Chase Bank N.A. v. Desert Palace, Inc., and Opbiz, LLC, a 15-page opinion, Judge Kirsch writes:

JPMorgan Chase Bank, N.A. (“Chase”) appeals the trial court’s dismissal of its action against Desert Palace, Inc. (“Caesar’s”) and Opbiz, LLC (“Aladdin”) (together, the “Casinos”) for lack of personal jurisdiction and on grounds of forum non conveniens. Chase raises the following restated issues on appeal: I. Whether the Casinos have sufficient minimum contacts to satisfy due process. II. Whether Indiana is an inconvenient forum for Chase’s action against the Casinos. We reverse. * * *

“The convenience of non-party witnesses is usually the most important factor to consider in deciding whether to depart from the plaintiff’s choice of forum.” In re Hanger Orthopedic Group, Inc. Sec. Litig., 418 F. Supp. 2d 164, 168 (E.D.N.Y. 2006). Here, non-party witnesses include employees of GGC and Chase, Gilliatte’s family, and Gilliatte’s attorney, Easter, all of whom are located in Indiana. The remaining witnesses are employees or agents of the Casinos. Contrary to the Casinos’ argument that their nexus with Indiana is involuntary, the Casinos voluntarily marketed their services to Gilliate in Indiana, voluntarily extended credit to him, knowing that he was an Indiana resident, and voluntarily took markers drawn on Indiana bank accounts.

For the foregoing reasons, we find the trial court abused its discretion in ruling Indiana is an inconvenient forum.

NFP civil opinions today (4):

Brandon Hooten v. Knox County Department of Child Services (NFP)

In the Matter of the Term. of the Parent-Child Rel. of K.F., A Child, and Michael B. v. Allen County Department of Chid Services (NFP)

In the Matter of the Term. of Parent-Child Rel. of O.A.G., Juan Pablo Gonzales v. St Joseph County Department of Child Services (NFP)

In Re: D.C., Jam.J., Jac.J.1, Jac.J.2; Janice Coleman v Allen County Department of Child Services (NFP)

NFP criminal opinions today (5):

Dennis Berger v. State of Indiana (NFP)

Darrien Allen v. State of Indiana (NFP)

Rogdrick Stewart v. State of Indiana (NFP)

Richard Morgan v. State of Indiana (NFP)

David L. Schneider v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 19, 2008
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: Allen County examines legal fees

This Feb. 12, 2006 ILB entry quoted a story in the Fort Wayne Journal Gazette headlined "County examines legal fees: Bills of $800,000 a year spur search for alternatives." The JG also published an editorial on the topic.

Today, over two years later, the JG has another editorial on Allen County legal costs. It begins:

Allen County officials have successfully reduced their legal fees for two of the last three years, but a comprehensive review of how the county pays its attorneys is still in order.

Among the issues the county commissioners should address: Is it appropriate to pay the county’s part-time attorneys benefits? Should attorneys receive salaries plus additional hourly expenses? Would it save money to hire full-time attorneys?

As Amanda Iacone’s and Robbie Ketcham’s story and graphics package Sunday demonstrated, county legal fees dropped nearly 4 percent in 2005 and an additional 6 percent in 2006. Fees likely would have remained stable or gone down slightly in 2007 if not for a complex legal case involving the assessed value of Glenbrook Square.

The ILB searched in vain for the "story and graphics package" mentioned. I dropped a note to one of the reporters, noting that the story would likely be of interest to Indiana lawyers and officials beyond the bounds of Allen County. I received a quick response:
I am sorry to report that the story, which really was a graphic package, was not put online for technical reasons. Although I'm told there are efforts underway to correct that.
The reporter also noted that others had also asked about Sunday's story. So, perhaps later.

Posted by Marcia Oddi on Wednesday, March 19, 2008
Posted to Indiana Law

Ind. Decisions - "Judges in custody cases consider parent's availability, time"

Pablo Ros of the South Bend Tribune writes today about the Court of Appeals January 14th decision in the case of Julie Ratliff v. Bryan Ratliff (NFP) - see ILB entry here, 2nd case. The lengthy story begins:

SOUTH BEND -- In a recent case in St. Joseph Superior Court, a judge gave custody of a 5-year-old girl to her father in part because the mother had what the judge considered a more demanding, time-consuming job than the father.

Other things being equal, judges give custody of a child to the parent who has more time available to spend with the child, regardless of the age of the child or whether or not the other parent has the better-paying job, according to a legal expert with the American Bar Association.

Posted by Marcia Oddi on Wednesday, March 19, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Intoxicated defendant's trial postponed"

Sophia Voravong reports today in the Lafayette Journal and Courier:

A Lafayette man was arrested and ordered held without bond after allegedly showing up intoxicated for the first day of his criminal jury trial.

James M. Coble, 55, is charged with two counts of burglary, a Class B felony; attempted theft, a Class D felony; theft, a Class D felony; and with being a habitual offender.

Prospective jurors reported Tuesday morning to Tippecanoe Superior Court 1 for what was slated to be a two-day trial. They were sent home after Judge Don Johnson noticed that Coble appeared impaired and smelled of alcohol.

Johnson had a probation officer give Coble a portable breathalyzer test, which registered 0.103 percent, Tippecanoe County Prosecutor Pat Harrington said. That's just above Indiana's legal limit of 0.08 percent to drive.

A new trial was rescheduled for March 25. Coble, meanwhile, is being held in the Tippecanoe County Jail.

Posted by Marcia Oddi on Wednesday, March 19, 2008
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - More on: Upcoming oral arguments this week

Updating this ILB entry from Monday, which lists the oral argument tomorrow, March 20th, before the Court of Appeals in the case of John R. Myers, II vs. State of Indiana, a brief item today in the Muncie Star Press notes:

The Indiana Court of Appeals will hear oral arguments in the murder case of a man convicted of killing a 19-year-old Indiana University student.

The three-member court will listen to both sides of the appeal on Thursday at 1:30 p.m. in Indianapolis.

In 2006, John Myers II was convicted of killing Jill 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.

Myers is serving a 65-year prison sentence.

The same story appeared Feb. 5th in the LCJ.

The arguments tomorrow will be webcast.

See a long list of earlier ILB entries on the Jill Behrman case here.

Posted by Marcia Oddi on Wednesday, March 19, 2008
Posted to Upcoming Oral Arguments

Tuesday, March 18, 2008

Law - "1.8 million pages of federal case law online, free of copyright or other restrictions, including all U.S. Supreme Court cases and all federal circuit decisions since 1950"

Robert J. Ambrogi of Law Technology News has a very informative column today on the "Online Legal Research Revolution."

Posted by Marcia Oddi on Tuesday, March 18, 2008
Posted to General Law Related

Law - A primer on how subprimes "work"

The Volokh Conspiracy this afternoon points to an "informative and amusing cartoon guide to the subprime debacle."

Posted by Marcia Oddi on Tuesday, March 18, 2008
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 today (and 18 NFP)

For publication opinions today (1):

In Dan Lockard v. Charles Miles and John Mullican , a 10-page opinion, Judge Vaidik writes:

Dan Lockard appeals the trial court’s order denying his petition for election contest. Specifically, Lockard argues that the death of his only opponent, Charles Miles, just weeks before the May 2007 Democratic Party primary election for a seat on the Terre Haute City Council rendered Miles ineligible, making Lockard the winner. Because a candidate vacancy that exists on a primary election ballot may not be filled for the primary election, Miles’ name properly remained on the ballot. Because Miles defeated Lockard in the primary election, leaving the Democratic Party without a candidate in the upcoming general election, the caucus process was triggered. The party caucus was held, and John Mullican was selected over Lockard to fill the vacancy created by Miles’ death and victory in the primary. Because Mullican was properly selected to fill the vacancy, we affirm the trial court.
NFP civil opinions today (6):

Delmas Sexton, II v. Lori Gross, et. al. (NFP) - "Appellees communicated their settlement offer on September 30, 2003. Three days later, on October 3, 2003, Sexton countered with his request for a settlement conference. Silence reigned since then. During the subsequent three years, Sexton did not even attempt to get in touch with Appellees’ counsel to ensure that she had actually received his counteroffer, let alone, undertake any significant action to bring his case to a conclusion. As we stated before, Sexton carried the burden of moving the litigation forward. See Benton, 622 N.E.2d at 1006. He clearly failed to do so here. Accordingly, we conclude that the trial court appropriately granted Appellees’ Motion to Dismiss. CONCLUSION Based on the foregoing, we conclude that the trial court did not abuse its discretion in dismissing Sexton’s cause of action pursuant to T.R. 41(E)."

Mari Schultz v. Franklin Logistics, Inc., Smith Transportation (NFP) - "Plaintiff-Appellant Mari A. Schultz (“Schultz”) appeals from a negative award entered against her by the Worker’s Compensation Board (“the Board”) in favor of Defendant-Appellee Franklin Logistics, Inc., (“Franklin”). We affirm."

In Re the Term. of Parent/Child Rel. of M.H., Deborah Schmidt-Mother, and Benjamin Hicks-Father, v. Allen County Department of Child Services (NFP) - "We reverse a termination of parental rights “only upon a showing of ‘clear error’ – that which leaves us with a definite and firm conviction that a mistake has been made.” Egly v. Blackford County DPW, 592 N.E.2d 1232 (Ind. 1992). We find no such error here, and therefore affirm the trial court."

Anna Calabrese v. Robert Calabrese (NFP) - "Anna’s briefing style is a rambling, disjointed recitation of facts without any legal support or recitation to precedents and essentially amounts to aggressive self-advocacy that has no place in appellate practice. For the use of impertinent, intemperate, and scandalous language in briefs on appeal impugning or disparaging the trial court or opposing counsel, we have the plenary power to order a brief stricken from our files and to affirm the trial court without further ado. See Clark, 578 N.E.2d at 748. While we choose not to strike Anna’s brief today, we will waive her argument for failing to comport with Indiana Appellate Rule 46(A)(8). However, we caution Anna not to confuse this with approval or condoning of the disrespectful, and at times, outrageous remarks and allegations made in the body of her brief and reply brief. We appreciate vigorous advocacy, but we will not countenance the sort of lawyering exhibited here. As such, we agree with Anna’s statement on the title-page of her brief, “Appellant in Want of Counsel.” CONCLUSION Based on the foregoing, we conclude we waive our review of Anna’s appeal of the trial court’s Order."

Lori (Faust) Montgomery v. Dennis Faust (NFP) - "Based on the foregoing, we conclude that the trial court committed prima facie error in determining the makeup of the marital pot. We therefore remand this cause to the trial court with instructions to include all marital assets and liabilities in the marital pot, including the property owned by Husband and Wife before the marriage and the medical bills incurred by Wife and her children during the marriage, but excluding Husband’s August 2006 profit sharing check."

In Re the Matter of M.J., Elika Jackson, and Carl Jackson v. Elkhart Office of Family and Children (NFP) - "Concluding that the evidence is sufficient to support the CHINS determination, we affirm the judgment of the juvenile court."

NFP criminal opinions today (12):

Carl McCutcheon v. State of Indiana (NFP)

Chester Lloyd v. State of Indiana (NFP)

Joshua Foster v. State of Indiana (NFP)

Christopher Cox v. State of Indiana (NFP)

Derele Thames v. State of Indiana (NFP)

Julie Curry v. State of Indiana )NFP)

Tyrone Hull v. State of Indiana (NFP)

Curtis McBride v. State of Indiana (NFP)

Vincent L. Walton v. State of Indiana (NFP)

Gary Seger v. State of Indiana (NFP)

Torey Walker v. State of Indiana (NFP)

Antoine Beech v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 18, 2008
Posted to Ind. App.Ct. Decisions

Courts - Another success for Merrillville native Maureen Mahoney

Here is a list of prior ILB posts on Merrillville native Maureen Mahoney. True, she hasn't lived in Indiana for many years, but then again, neither has John Wooden.

Today Ashby Jones of the WSJ Law Blog writes, under the heading "Mahoney Delivers Again, this Time for Joe Nacchio":

It must be the donuts. How else to explain Maureen Mahoney’s remarkable track record before various appellate courts? The Latham & Watkins litigator, who makes a practice of eating a donut before each argument, won again today, landing a reversal of former Qwest CEO Joe Nacchio’s insider-trading conviction.

“We are very grateful for this important victory,” said Mahoney. “If the government decides to retry the case, we expect him to be acquitted. The additional evidence will establish beyond any doubt that Mr. Nacchio did not commit a crime.”

We’ve rattled off Maureen Mahoney’s successes on this blog before. In 2005, she scored a victory for accounting giant Arthur Anderson when the Court overturned its criminal conviction, and successfully represented the University of Michigan Law School in its 2003 defense of its affirmative-action policy. According to this Denver Post article from last year, she has won 16 of the 18 high court arguments she’s taken on. And earlier this year, she seemed to have several of the justices on her side in a patent argument she handled on behalf of Quanta Computer Inc.

Late last year, the WSJ named her one of the 50 Women to Watch heading into 2008. She told the paper that she focused full-time on appeals in the late 1980s partly to avoid the travel associated with trial work. “I’d always been interested in it, but having two young kids is really what got me to make the move.”

The shift was one of few she has made in her career. Apart from a two-year stint as deputy solicitor general, she has spent the past 27 years at Latham & Watkins in Washington, D.C. “I’ve been married for 29 years, had the same secretary for 22 years and had the same housekeeper since our son [now 24 years old] was born,” she says. “I like stability.”

Posted by Marcia Oddi on Tuesday, March 18, 2008
Posted to Courts in general

Ind. Decisions - "DeBoy's killer wins appeal" is the headline

The Court of Appeals decision March 14th in the case of Cesar De La Rosa v. State of Indiana (NFP) is the subject of a story today reported by Curt Slyder in the Lafayette Journal and Courier, that begins:

The Indiana Court of Appeals on Friday overturned the sentence of a man whose car struck and killed a 9-year-old Lafayette boy in 2006.

The appellate court ruled that Tippecanoe Superior Court 1 Judge Don Johnson violated the terms of a plea agreement last June when he imposed four years of probation in the Department of Correction in addition to the agreed-upon 14-year prison term for Cesar De La Rosa.

The car De La Rosa was driving struck and killed Jimmy DeBoy, who was riding his bicycle on South Ninth Street. De La Rosa pleaded guilty to driving with marijuana in his system.

According to Tippecanoe County Prosecutor Pat Harrington, the ruling doesn't mean De La Rosa is a free man.

"He'll still serve 14 years," Harrington said, noting the state attorney general's office has 30 days to decide if it wants to appeal to the Indiana Supreme Court.

The issue, Harrington said, was that the sentence calls for the probation to be served in the Department of Correction.

"In theory that means he could have served it on work release," Harrington said.

The appellate court ruled the wording of the additional four years of probation for De La Rosa created an 18-year sentence, thereby exceeding the 14-year sentence agreed upon.

"Four years of probation is valid," Harrington said, but added that the probation order would have to be reworded. * * *

Ironically, on the same day the court of appeals made its decision, a bill went to the governor to sign that was named after Jimmy DeBoy.

That bill aims to impose harsher sentences on people who kill someone while driving under the influence of alcohol or drugs.

"This will change OWI laws forever in the state of Indiana," said Senator Ron Alting, R-Lafayette, who authored the "Jimmy DeBoy bill."

Under the proposed law, a person who kills someone while driving under the influence would be committing a violent crime, Alting said.

That means the sentences for that crime plus any other crimes committed at the same time must be served consecutively rather than concurrently, Alting said.

It would also give prosecutors the ability to require that license suspensions accompanying sentences beginning after the person convicted of DUI gets out of prison rather than while they are in prison.

The way the law reads right now "you can have your license suspended while you're in jail," Alting said.

Alting is confident Gov. Mitch Daniels will sign the bill, which would then likely go into effect this July.

Alting's original bill failed to pass the House, but reportedly the provisions were slipped into another bill. The ILB has been unable to locate that bill.

[More] I'm told the bill is HB 1052 (as does the story linked above). However, 1052 is not yet on the list of bills received by the Governor. Of course, neither is HB 1001.

Posted by Marcia Oddi on Tuesday, March 18, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Judge upholds Plainfield sex offender ban"

Bruce C. Smith reports in the Indianapolis Star:

PLAINFIELD -- In the latest court ruling in a long-running lawsuit, a Marion County man listed on the state's sex offender registry is still banned from Plainfield's town parks.

In a five-page opinion, Hendricks County Superior Court Judge Robert W. Freese has found the Plainfield ordinance banning registered sex offenders from the parks to be constitutional.

That means the man known in the legal dispute as John Doe is still prohibited from the town's parks where he sued to be allowed to take his son for recreation.

The man's real name has been sealed by an earlier court order because he feared public identification would open him and his family to more harassment and threats to his safety. * * *

The Plainfield Town Council passed a series of rules and regulations for the parks in 2002, just as the town began expanding its recreational facilities with new hiking and biking trails, new neighborhood parks and the $25 million Recreation Center and Splash Island water park.

Fines of $100 for the first offense and $200 for additional offenses could be levied on anyone on the state's sex offender registry who is found in a town park.

John Doe, whose real name and criminal history are visible on-line on the sex offender registry of the [ILB - sic.], was convicted of child exploitation and possession of child pornography. * * *

The ICLU filed a lawsuit challenging the constitutionality of the town ordinance in 2005. At that time, town council President Robin Brandgard said the ordinance was intended "to protect citizens of Plainfield, particularly the children."

Town officials sought to make Doe's name public. But in February 2007, he won an Indiana Court of Appeals ruling to stay anonymous as he continued to challenge the Plainfield ordinance banning him from the parks.

The ICLU argued in Hendricks Superior Court that banning the man, who has completed his punishment including probation, effectively piles on more punishment. And he was suing for the right to use the town parks and claimed the ordinance was unconstitutional.

However, Freese said in a ruling released on Friday that local ordinances are presumed to be constitutional unless specifically shown otherwise. He also cited earlier legal rulings that Indiana's legal history is to protect the welfare of children. He found that "at least some sexual predators prey upon those to whom they have access. And some offenders have a high incidence of re-offending."

The ordinance is a legitimate government interest to protect children by keeping sex offenders away from recreation areas where children are present, the judge wrote. And he wrote that the ordinance does not violate any constitutional right without justification.

For background, see this ILB entry from Dec. 14, 2005, headed "Man challenges Plainfield ordinance banning anyone listed on the Indiana Sex Offender Registry from entering all parks and recreational areas operated by the town." and this one from Nov. 27, 2006, headed "Sex offender sues Plainfield for anonymity." See also this entry from Feb. 13, 2007, headed "Sealed documents in otherwise "unsealed" cases," which links to the COA Feb. 6, 2007 decision in John Doe v. Town of Plainfield, Indiana.

Posted by Marcia Oddi on Tuesday, March 18, 2008
Posted to Ind. Trial Ct. Decisions

Monday, March 17, 2008

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

For publication opinions today (1):

In Rebecca Cox v. Harry Cox, a 10-page, 2-1 opinion, Sr. Judge Sullivan writes:

Appellant Rebecca Cox (“Wife”) appeals the trial court’s grant of Appellee Harry Cox’s (“Husband”) petition for modification of a maintenance order. We reverse and remand.

Wife raises one issue for our review, which we restate as: Whether the trial court erred when it modified Husband’s obligation to provide insurance coverage for Wife. * * *

In keeping with the decision in Erwin, we reverse the modification order of May 17, 2007, and remand for further proceedings. In doing so we recognize, as in McCormick, that the medical and economic situation of Wife may have substantially changed since the order was issued. It may also be that Husband’s economic situation has changed. The trial court is not precluded from hearing additional evidence upon such matters so as to make an appropriate determination as to Husband’s insurance maintenance obligation under the present circumstances as the parties, and the scope and extent of such obligation, if any.

The modification order is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.

ROBB, J., concurs.
FRIEDLANDER, J., concurring in part and dissenting in part with separate opinion. [which begins] I agree with the majority that the order modifying maintenance should be reversed. I respectfully disagree that the matter should be remanded to the trial court for further proceedings.

NFP civil opinions today (1):

In Rubertha J. Johnson et., al., v. Guide Corporation (NFP), a 14-page opinion, Judge Robb writes:

Rubertha Johnson and 317 other former employees of Guide Corporation (collectively, the “Employees”) appeal the trial court’s grant of Guide’s motion for summary judgment and denial of their motion for summary judgment. On appeal, the Employees raise four issues, one of which we find dispositive and restate as whether the trial court properly concluded the Labor Management Relations Act (the “LMRA”) preempted the Employees’ claims for liquidated damages and attorney fees under the Indiana Wage Payment Statute. Concluding the trial court properly applied the LMRA to preempt the Employees’ claims, we affirm and remand. * * *

The trial court properly concluded that section 301 of the LMRA preempts the Employees’ claims for liquidated damages and attorney fees under the Indiana Wage Payment Statute. Accordingly, we affirm and remand for further proceedings consistent with this opinion. On remand, the trial court should determine whether the CBA’s grievance and arbitration procedures apply to the Employees’ claims pursuant to federal labor law and, if so, whether the Employees failed to exhaust those procedural remedies. Affirmed and remanded.

NFP criminal opinions today (0):

Posted by Marcia Oddi on Monday, March 17, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues one Indiana decision today

In US v. Justin L. Hoffman (ND Ind., Judge Miler), a 9-page opinion, Judge Flaum concludes:

It is true that the presence of narcotics in a defendant’s car does not, by itself, establish probable cause to search his home, even if the car is registered to his address. United States v. Dickerson, 975 F.2d 1245, 1249-50 (7th Cir. 1992). However, participation in drug trafficking activities can create probable cause to search a participant’s residence, even without direct evidence that drug-related activity is occurring there, because “[i]n the case of drug dealers, evidence is likely to be found where the dealers live.” United States v. Lamon, 930 F.2d 1183, 1188 (7th Cir. 1991) (quoting United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986)). Indeed, the traffic stop and eventual discovery of nearly thirty grams of cocaine in separate baggies would lead an issuing judge to reasonably infer that Hoffman was involved in drug trafficking, and that the activity occurred in his home. Since there was no evidence that Hoffman was using another residence for his drug business, and since he was found with an amount of cocaine in his car that was almost identical to the quantity that he stated he was preparing in his home just minutes before, it was reasonable to find probable cause to search his apartment even if the challenged statements were eliminated.

Posted by Marcia Oddi on Monday, March 17, 2008
Posted to Indiana Decisions

Ind. Courts - "Suit filed over RCA Dome auction" [Updated]

Jeff Swiatek of the Indianapolis Star is reporting this afternoon:

An Indianapolis law firm has sued the Marion County Capital Improvement Board to prevent it from turning over money from auctioned RCA Dome items to the Indianapolis Colts Foundation and Indiana Sports Corp.

"This has a lot of people outraged that they are selling off public property, and none of it is going to benefit the taxpayers. It's a violation of the law," said Paul K. Ogden, an associate at Roberts & Bishop, which filed the complaint today in Marion Superior Court.

The four-page complaint asks the court to declare that the CIB "breached its fiduciary responsibilities by giving away publicly owned property within the RCA Dome."

The CIB, which owns and manages the soon-to-be-demolished stadium, is selling seats, pieces of turf and the fabric roof, and even urinals to the public in online auctions.

Auction proceeds could run in the millions of dollars, which the CIB intends to give to the Colts' foundation and the sports corporation. Both are nonprofit organizations.

The lawsuit seeks to return the money to taxpayers, perhaps to help pay off the portion of public debt that remains unpaid on the dome, Ogden said.

The law firm also wants its own legal fees to be paid from auction proceeds if its lawsuit is successful.

The Star provides a link to the 4-page complaint.

The Indianapolis Star had an editorial stating "Our position: RCA Dome memorabilia should be recognized as public property," on March 6th.

[Updated 3/18/07] The Star today has published an updated version of the story, including:

Bob Grand, newly named president of the improvement board, said the sports corporation and foundation deserve to receive auction proceeds, in part, because they are handling the auction for the board.

"It makes sense," he said. "We're not in the business of selling memorabilia. There's a lot of work that goes into this."

The Colts foundation is also entitled to money from the sale because the team is allowing its name and trademark to be put on items such as lockers, which makes them more valuable, Grand said.

Posted by Marcia Oddi on Monday, March 17, 2008
Posted to Indiana Courts

Ind. Courts - "Woman sues casino for flea bites under maritime law"

Grace Schneider has this interesting story today in the Louisville Courier Journal. Some quotes:

For nearly six years, the 5,000-passenger Glory of Rome riverboat that serves as the Caesars Indiana casino has seldom moved from its Harrison County dock.

But is it still a boat?

Lawyers for a former employee say it is, and they're seeking unspecified damages under federal maritime law for the woman's claims of serious medical complications caused by flea bites while she worked as a dealer at Caesars' poker tables.

The lawyers representing Tina Conder say the stakes are huge because the case could rewrite how American gambling boats are regulated and determine whether their workers are covered under the federal Jones Act. The 88-year-old law provides substantially higher benefits to injured maritime workers than they could expect to get under state workman's compensation laws. * * *

Conder sued in April 2005 seeking damages for medical expenses, legal fees and pain and suffering. While casino workers have seldom prevailed in past cases invoking maritime law, Conder cleared an initial hurdle when a local judge concluded she was covered. * * *

In her lawsuit, Conder claims the large steroid doses used to suppress her reaction to the flea bites caused two heart attacks. The suit accuses the casino of negligence for failing to maintain a seaworthy vessel in accordance with the Jones Act.

Enacted in 1920, the Jones Act ensures that maritime workers who risk the perils of sea duty receive ample compensation for injuries. Lawyers say claims made under the act generate generous benefits for "maintenance and care" -- paying medical fees and full back wages.

In December, Harrison Circuit Judge H. Lloyd "Tad" Whitis dealt Caesars a setback, ruling that Conder's duties as a dealer were part of the riverboat's mission of gambling and that she was a Jones Act seaman.

Caesars filed an appeal putting the case on hold while the state appeals court reviews the judge's ruling. The appeals court is expected to rule sometime this year.

Conder's lawyers expect the case to wind up in federal court.

Isaac Soileau, a New Orleans lawyer who is co-counsel for Conder, acknowledged that other cases -- including one in Indiana involving Belterra Casino upriver from Louisville -- have unsuccessfully sought to give casino workers Jones Act status.

But "we think those (rulings) are aberrations," Soileau said.

Many states now allow casinos to dock indefinitely, he said, but the boats don't lose their classification as a vessel unless they are placed in dry dock or a cofferdam. * * *

In a motion filed with the case, Caesars lawyers noted that the Chicago-based 7th U.S. Circuit Court of Appeals rejected an Illinois casino worker's attempt to claim Jones Act benefits. The court said that since the boat was an "indefinitely moored dockside casino" it no longer qualified as a vessel in navigation.

Posted by Marcia Oddi on Monday, March 17, 2008
Posted to Indiana Courts

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 Wednesday, March 19th:

11:15 AM - Nature's Link vs. Thomas & Amy Przybyla - Appellant-Defendant appeals the trial court's order granting Appellees-Plaintiffs' Motion for New Trial following a jury verdict awarding the Appellees-Plaintiffs zero dollars. The issues to be presented at argument are: (1) Whether the trial court erred in setting aside the jury's verdict under Trial Rule 59(J); and (2) Whether the trial court erred in setting aside the jury's verdict under Trial Rule 60(B)(3). The Scheduled Panel Members are: Judges Riley, Kirsch and May. [Where: Indiana Supreme Court Courtroom]

This Thursday, March 20th:

1:30 PM - John R. Myers, II vs. State of Indiana - Appellant-Defendant John R. Myers II appeals his conviction, following a jury trial, for Murder. Myers challenges his conviction by claiming the trial court erred on the following grounds: (a) by denying his motion for change of venue; (b) by denying his motions in limine seeking to exclude testimony of witnesses Betty Swaffard and Carly Goodman; (c) by admitting certain expert testimony regarding the uncharged crime of rape; (d) by admitting an interrogation tape without a proper admonition to the jury; (e) by excluding an FBI report which allegedly corroborated his alibi and pointed to others as perpetrators; (f) by denying his motion for a mistrial on the basis of an alleged violation of a separation-of-witnesses order; (g) by denying his motion for a mistrial on the basis of one witness's allegedly improper reference to a polygraph examination and another witness's allegedly improper statement that Myers knew certain unique facts of the crime; and (h) by denying his motion for a mistrial due to alleged jury misconduct. In further challenging his conviction, Myers points to the claimed cumulative effect of the above alleged errors and also argues that there was insufficient evidence to support a finding of guilt. The Scheduled Panel Members are: Judges Darden, Barnes 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, March 18th:

10:00 AM - Frederick W. Dennerline, et al vs. Jim Atterholt - After liquidating the failed Construction Industry Trust (ICIT), Insurance Commissioner Jim Atterholt filed suit against various parties to recover $17.9 million in unpaid health care claims. Frederick W. Dennerline III, a partner in the law firm of Fillenwarth, Dennerline, Groth & Towe, was ICIT's outside legal counsel. Atterholt sued both Dennerline and his firm for legal malpractice. Atterholt settled with all defendant's except Dennerline and his firm. A jury found Dennerline and his firm 100% at fault and awarded Atterholt $17.9 million in damages. Dennerline and his firm appeal several of the trial court's rulings and the jury's allocation of fault. The Scheduled Panel Members are: Judges Darden, May and Crone. [Where: Indiana Court of Appeals Courtroom]

This Wednesday, March 19th:

10:00 AM - Arthur B. Harris vs. State of Indiana - Arthur B. Harris was convicted of attempted voluntary manslaughter and carrying a handgun without a license after a jury trial. He raises several issues on appeal: (1) whether the trial court properly instructed the jury regarding the elements of attempted voluntary manslaughter when it failed to instruct that the jury must find that he had the specific intent to kill in order to convict him of that offense; (2) whether the State presented sufficient evidence to support his conviction for attempted voluntary manslaughter; (3) whether the trial court erred in permitting the State to amend the charging information from attempted murder to attempted voluntary manslaughter; and (4) whether the trial court abused its discretion when it admitted a video of Harris at the crime scene and his statements made at that time into evidence at the trial. The Scheduled Panel Members are: Judges Riley, Kirsch and May. [Where: Indiana Court of Appeals Courtroom]

Posted by Marcia Oddi on Monday, March 17, 2008
Posted to Upcoming Oral Arguments

Sunday, March 16, 2008

Ind. Courts - "Vanderburgh court records move to the Web"

Kate Braser of the Evansville Courier & Press reports today:

After years of planning, Vanderburgh County officials have approved a deal that will make court records available to the public on the Internet.

The records should be accessible online by the end of summer.

The deal means people who regularly squeeze into the cramped Room 219 of the Vanderburgh County Courthouse to look up a court record on one of the six public access computers will be able do it from home.

The Richmond, Ind.-based company Doxpop already is providing online records systems for 43 Indiana counties, including Spencer, Warrick, Daviess and Perry.

Rich Sinex, business development manager for Doxpop, said he believes the company's services will be offered in 50 of Indiana's 92 counties by the end of this year.

For about five years, Vanderburgh Superior Court Judge J. Douglas Knight has helped lead the effort to make the county's court records available online.

Knight said that according to the terms of the deal, Doxpop will pay for the expenses of setting the system up for the county, and then recoup those costs through user fees.

Sinex said he hopes to have the services available in Vanderburgh County sometime in July.

"The free access is often sufficient for the person who has very occasional need to look at court records," Sinex explained. "For tracking the parents' estate or domestic relations case or traffic infraction, free access will probably do, but for a person interested in any serious professional use of court records, one of the subscription plans really would be necessary."

A side-bar to the story provides more information about access.

For background see this ILB entry from Sept. 24, 2006 and this one from Oct. 9, 2005.

Posted by Marcia Oddi on Sunday, March 16, 2008
Posted to Indiana Courts

Ind. Courts - update on: "St. Joseph County judge has stopped sending female offenders to the Indianapolis Juvenile Correctional Facility"

The ILB has had a number of entries on this topic, based on a story published in the Indianapolis Star on Dec. 20, 2007.

Today Jeff Parrott of the South Bend Tribune reports:

St. Joseph County juvenile justice officials say they're cautiously optimistic about news last week that the Indiana Department of Correction will make sweeping changes to its Indianapolis juvenile facility.

The DOC has announced it will end a two-year-old arrangement to house boys and girls at the same Indianapolis Juvenile Correctional Facility by moving the boys to a recently renovated section of the Logansport Juvenile Correctional Facility.

"I think it may correct a lot of the problems I wrote the governor about," St. Joseph County Probate Court Judge Peter Nemeth said. * * *

Nemeth said he had stopped sending girls there and would not resume doing so until changes were made.

DOC officials have denied the changes are related to Nemeth's letter.

Posted by Marcia Oddi on Sunday, March 16, 2008
Posted to Indiana Courts

Saturday, March 15, 2008

Environment - "EPA Closure of Libraries Faulted For Curbing Access to Key Data"

A long-time ongoing story got more exposure yesterday with the release of a GAO study.

Christopher Lee reported in the Washington Post:

A plan by the Environmental Protection Agency to close several of its 26 research libraries did not fully account for the impact on government staffers and the public, who rely on the libraries for hard-to-find environmental data, congressional investigators reported yesterday.

The report by the Government Accountability Office found that the EPA effort, begun in 2006 to comply with a $2 million funding cut sought by the White House, may have hurt access to materials and services in the 37-year-old library network. * * *

The libraries provide technical information and documentation for enforcement cases and help EPA staff members track new environmental technologies and the health risks associated with dangerous chemicals.

They also are repositories of scientific information that is used to back up the agency's positions on new regulations and environmental reports and data that are tapped by people such as developers and state and local officials. The collections include hard-to-find copies of documents on federal Superfund hazardous waste sites, water-quality data and the health of regional ecosystems.

EPA officials have said that the goal of reorganizing the system was to create a more coordinated and efficient library network, in part by consolidating materials in fewer locations and digitizing many documents to make them available online.

Under the plan, EPA closed physical access to three regional office libraries in Chicago, Kansas City and Dallas, and to the headquarters library and the Chemical Library in Washington. Operating hours were reduced at libraries in Seattle, San Francisco, New York and Boston.

In early 2007, EPA officials enacted an indefinite moratorium on further changes amid congressional concerns about the reorganization. In December, Congress approved an additional $1 million for the libraries as part of a larger spending bill and directed the EPA to reopen the closed facilities. But the agency has not yet done so.

"Our vision is to be the premier model for the next generation of federal libraries by enhancing our electronic tools to complement our traditional library services," Molly A. O'Neill, the EPA assistant administrator who oversees the libraries, wrote in testimony submitted to the subcommittee.

But the GAO found that, because of copyright issues, only 51,000 of the system's more than 500,000 hard copies of books, reports, journals and maps are expected to be transferred to digital format. That means users in areas where libraries have closed must obtain materials through interlibrary loans, delaying access for as long as 20 days.

The GAO report faults the EPA for not consulting agency staff, outside experts or stakeholders before undertaking the reorganization, and failing to do a cost-benefit analysis or name a national manager to oversee the effort. Investigators noted that users of the Chemical Library -- which served EPA scientists who review industry requests to sell new chemicals -- did not learn of the facility's closure until after it occurred.

Here is a link to the 60-page GAO study, titled "EPA Needs to Ensure That Best Practices and Procedures Are Followed When Making Further Changes to Its Library Network."

Posted by Marcia Oddi on Saturday, March 15, 2008
Posted to Environment

Ind. Law - "Turnip that stirred panic was message to attorney"

Abby Slutsky reports today in the Fort Wayne Journal Gazette:

A packaged turnip that generated a local law firm’s suspicion Thursday was sent to attorney Mark GiaQuinta in what might have been an attempt to express that “you can’t get blood from a turnip,” GiaQuinta said.

On Thursday, the turnip, which was inside a gift bag and a post office package, was delivered to the law offices of Haller & Colvin, 444 E. Main St. Employees there contacted police because the sender, who has been sued by one of GiaQuinta’s clients, is known to be “volatile,” GiaQuinta said. * * *

The city’s bomb squad used robot Bob, an acronym for Battery Operated Bot, to carry the package out of the building’s lobby and then eventually destroy the package.

While the contents of the package led to some laughter among the police officers at the scene, it cost the city a bit of money. Police said four officers received overtime pay for the incident.

Posted by Marcia Oddi on Saturday, March 15, 2008
Posted to Indiana Law

Courts - "Kentucky Chief justice calls proposed budget cuts a terrible mistake"

Jason Riley reports in today's Louisville Courier Journal:

Kentucky Chief Justice Joseph Lambert says a proposed $55 million cut in the state judiciary budget over the next two years would have a devastating effect on the court system.

In a mass e-mailing this week, Lambert warned that the cut could result in staff layoffs, elimination of drug courts and a delay in building courthouses. And he urged judges, clerks and other court officials to press legislators to reverse the cuts.

"I think a terrible mistake has been made that will really harm" the courts, Lambert said in an interview yesterday.

Posted by Marcia Oddi on Saturday, March 15, 2008
Posted to Courts in general

Ind. Law - "Wineries lose again: Proposals to loosen Indiana’s distribution system fail"

That is the headline to this comprehensive story today by Jonathan Hiskes in the Indianapolis Business Journal. The story begins:

Oliver Winery considered starting a wine club that would ship to members through UPS, giving them access to boutique wines not available in stores. But the Bloomington business held off because it would have to exclude a key state: its home base, Indiana.

The state prohibits its wineries from shipping more than 3,000 cases a year in-state. Oliver is nearly spilling over that limit already, owner Bill Oliver said.

At IBJ press time, the General Assembly was set to close another session last week without significant change to the state’s complex alcohol distribution system, ensuring another year of wrangling between wineries and wholesalers.

A proposal to raise the direct shipping limit to 10,000 cases failed. So did a broader deregulation bill brought by a new Indiana wine drinker’s group, VinSense. * * *

State wineries grew 78 percent between 2000 and 2005, according to the Indiana Wine Grape Council. But growth has been more difficult since 2005, when the U.S. Supreme Court struck down Michigan’s practice of allowing in-state wineries, but not out-of-state ones, to ship directly to consumers. State legislatures, like Indiana’s, that had been giving their home wineries the same advantage had a choice: Loosen restrictions for out-of-state wineries or tighten them for in-state ones.

Indiana’s Legislature responded in 2006 with a series of new restrictions. One required buyers to complete a face-to-face transaction at a winery before having wine shipped to them. Another prevented wineries from shipping directly if they had their own wholesaler permit. This effectively kept all California, Oregon and Washington wineries from shipping to Indiana, because those states give their wineries wholesaler permits automatically. A lawsuit challenging the 2006 changes is pending in the 7th U.S. Circuit Court of Appeals in Chicago.

Through the disputes, wineries found themselves opposed by wholesalers, who had an interest in defending the “three-tier” producer-distributor-retailer system established at the end of Prohibition to thwart bootleggers.

Posted by Marcia Oddi on Saturday, March 15, 2008
Posted to Indiana Law

Ind. Courts - Even more on "Revised law in play on Wilkes sentence"

Updating this ILB entry from Jan. 28th, Kate Braser of the Evansville C&P reported Friday:

Attorneys representing death row inmate Daniel Ray Wilkes plan to appeal his death sentence to a higher court after a Vanderburgh County judge Thursday declined to set it aside.

During the hearing in Vanderburgh Circuit Court, attorney John Goodridge told Circuit Judge Carl Heldt he did not find fault with how the judge applied Indiana law to Wilkes' case, but with the law itself. Goodridge asked Heldt to find the law unconstitutional.

Heldt denied the request, and now Wilkes' attorneys have said they will file a notice of appeal with the Indiana Supreme Court.

On Jan. 25, Heldt sentenced Wilkes to death for the murders of Donna Claspell and her daughters, Avery Pike, 13, and Sydne Claspell, 8.

The death sentence ruling came after a jury deadlocked 11-1 over what punishment to render in the case. Its failure to reach a unanimous recommendation put the decision into Heldt's hands, and set up a special situation in Indiana death penalty case law.

Heldt's decision to sentence Wilkes to death marked the first time since Indiana law was changed in 2002 that a judge had to determine the sentence in a capital murder case after a jury deadlocked over the penalty.

The 2002 amendment required a judge to follow a jury's sentencing recommendation in capital cases. Before that, judges needed only to consider the jury's recommendation, but could enter a different penalty in a capital murder case.

"The court followed the statute and existing law," Goodridge said. "It's the statute that is flawed. I am asking you to declare the Indiana statute unconstitutional."

Posted by Marcia Oddi on Saturday, March 15, 2008
Posted to Ind. Trial Ct. Decisions

Friday, March 14, 2008

Environment - "Ozone Rules Weakened at Bush's Behest"

Juliet Eilperin of the Washington Post reports today in a front-page story that begins:

The Environmental Protection Agency weakened one part of its new limits on smog-forming ozone after an unusual last-minute intervention by President Bush, according to documents released by the EPA.

EPA officials initially tried to set a lower seasonal limit on ozone to protect wildlife, parks and farmland, as required under the law. While their proposal was less restrictive than what the EPA's scientific advisers had proposed, Bush overruled EPA officials and on Tuesday ordered the agency to increase the limit, according to the documents.

"It is unprecedented and an unlawful act of political interference for the president personally to override a decision that the Clean Air Act leaves exclusively to EPA's expert scientific judgment," said John Walke, clean-air director for the Natural Resources Defense Council.

The president's order prompted a scramble by administration officials to rewrite the regulations to avoid a conflict with past EPA statements on the harm caused by ozone.

Solicitor General Paul D. Clement warned administration officials late Tuesday night that the rules contradicted the EPA's past submissions to the Supreme Court, according to sources familiar with the conversation. As a consequence, administration lawyers hustled to craft new legal justifications for the weakened standard.

The dispute involved one of two distinct parts of the EPA's ozone restrictions: the "public welfare" standard, which is designed to protect against long-term harm from high ozone levels. The other part is known as the "public health" standard, which sets a legal limit on how high ozone levels can be at any one time. The two standards were set at the same level Wednesday, but until Bush asked for a change, the EPA had planned to set the "public welfare" standard at a lower level.

Posted by Marcia Oddi on Friday, March 14, 2008
Posted to Environment

Ind. Decisions - Transfer list for week ending March 14, 2008

Here is the Indiana Supreme Court's transfer list for the week ending March 14, 2008.

(Note that there are 4 pages to the list this week.)

There was one transfer granted this week, Kirk Reuille v. E.E. Brandenberger Construction, Inc.. The ILB entry summarizing the 9/6/07 COA ruling is available here, where the Court ruled: "Thus, even under current precedent, Reuille does not qualify as a prevailing party because, although the parties entered into a settlement agreement, Reuille had neither a consent decree nor an enforceable judgment entered along with his settlement agreement."

Among the cases not granted transfer was the case of Indiana High School Athletic Association, Inc. v. Angel Garcia (see ILB entry here - 3rd case), about which the Indianapolis Star reported at the time: "The Indiana Court of Appeals ruled today that students who go to court to fight an Indiana High School Athletic Association ruling do not have to do so in Marion County."

Also not granted transfer, Phyllis J. Wrogeman v. Mitch Robb, Secretary, Indiana Family and Social Services Administration (ILB here), where the COA held "In sum, we conclude that the trial court properly dismissed Wrogeman’s petition due to her failure to include a certified copy of the agency record with her petition for judicial review."

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, March 14, 2008
Posted to Indiana Transfer Lists

Courts - "Tort King's Path to Bribery Charge"

As interesting as the latest John Grisham novel, and set in the same locale, the WSJ has a front-page story ($$$) today that continues on to a full inside page, about an upcoming trial. It begins:

Last November, a lawyer who was working with famed plaintiffs' attorney Richard Scruggs entered the chambers of a local Mississippi judge and delivered the last chunk of a $40,000 cash payment. In return, the judge said he would issue a ruling favorable to Mr. Scruggs in a fee dispute with other lawyers.

Driving away after delivering the cash, the lawyer was pulled over by federal agents and confronted with videos of his visits. He soon agreed to wear a wire. Within a month, a federal grand jury had charged Mr. Scruggs, the architect of landmark litigation against cigarette makers, with conspiracy to bribe a state official.

Mr. Scruggs helped revolutionize American tort law starting in the 1980s and '90s. Pursuing not one client at a time but thousands, he and a handful of other enterprising lawyers from around the country assembled teams of attorneys to round up throngs of plaintiffs, then took on big companies from industries like tobacco, construction and pharmaceuticals. In the largest score, a Scruggs team wrested $206 billion from cigarette makers in 1998 on behalf of 46 states -- the subject of a movie, "The Insider," whose sets included Mr. Scruggs's beachfront mansion.

He thus has been a seminal player in the concept that where government fails to protect the public from businesses that pose risks to the public or workers, private litigation can step in. Now, a trial set to begin this month threatens the career of one of the most powerful and feared forces in product-liability litigation.

To many legal observers, the indictment raises a hard question: What could lead a lawyer who once earned nearly $1 billion on a single case, the tobacco litigation, to bribe a judge over a matter of a few million dollars?

The answer is simple -- he didn't -- says Mr. Scruggs's lawyer, John Keker. He says prosecutors have concocted a "manufactured crime" in which his client had no part. Whether that's so will be up to a jury to be empaneled starting March 31 in federal court in Oxford, Miss.

But late this morning, the WSJ Law Blog posted this breaking news: "Scruggs Pleads Gulty."

A new WSJ article ($$$), just posted and authored by the same reporters who wrote this morning's story, Ashby Jones and Paulo Prada, begins:

In a stunning end to a controversial and lucrative legal career, famed Mississippi plaintiffs attorney Richard "Dickie'' Scruggs pleaded guilty Friday morning to a charge of conspiracy in a judicial bribery case. Prosecutors were recommending up to five years in prison.

Posted by Marcia Oddi on Friday, March 14, 2008
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

In Knghtstown Banner, LLC v. Town of Knightstown, Governmental Insurance Managers, Inc., et al , a 24-page opinion, Judge Friedlander writes:

This is the second time this lawsuit between Knightstown Banner, LLC (the Newspaper) on one side and Town of Knightstown (the Town), Governmental Insurance Managers, Inc. (GIM), and Governmental Interinsurance Exchange (GIE) on the other has come before us. In this appeal, the Newspaper presents the following restated issues for review:
1. Did the trial court err in denying the Newspaper’s motion for summary judgment and instead permitting the Town to dismiss its counterclaim for attorney fees?
2. Did the trial court err in determining the amount of the Newspaper’s attorney fees award?
3. Did the trial court abuse its discretion in denying the Newspaper’s motion for change of judge?

We affirm in part, reverse in part, and remand with instructions. * * *

To summarize, Knightstown I involved a demand by the Newspaper under Indiana Access to Public Records Act (APRA) to view the settlement agreement between the Town and a former employee in a lawsuit filed by the employee alleging sexual harassment, physical assault, and intimidation. The trial court determined that the settlement agreement was not a public record and thus the Town was not required by APRA to produce it. We reversed that determination and held that the settlement agreement is a public record under APRA. We remanded to the trial court with instructions to order the Town to deliver to the Newspaper a copy of the settlement agreement.

NFP civil opinions today (2):

Estate of Walter O'Neal Hatfield by Pauline Hatfield v. John O. Hatfield (NFP) - This is a 2-1, 14-page opinion. "On behalf of the estate (“the Estate”) of Walter O’Neal Hatfield, personal representative Pauline Hatfield challenges the trial court’s denial of the Estate’s motions to amend its complaint against John O. Hatfield (“Hatfield”) to include a claim for waste, and for a determination of deficiency. We affirm in part, reverse in part and remand with instructions."

In the Matter of M.Y., Sherlene Y. v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. (NFP) - "Sherlene Y. (“Mother”) appeals the trial court’s involuntary termination of her parent-child relationship with M.Y., her minor child. On appeal, Mother raises one issue which we restate as whether Mother was denied due process because the trial court did not appoint counsel at the beginning of the Children In Need of Services (“CHINS”) proceedings. Concluding that Mother was not denied due process, we affirm."

NFP criminal opinions today (1):

Cesar De La Rosa v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, March 14, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Interesting non-Indiana 7th Circuit opinion today

In Chicago Lawyers' Committee for Civil Rights v. Craigslist, a 10-page opinion, Chief Judge Easterbrook writes:

Section 804(a) of the Fair Housing Act forbids discrimination on account of race, religion, sex, or family status when selling or renting housing. 42 U.S.C. §3604(a). This prohibition is accompanied by a ban on ads that state a preference with respect to any of the protected classes. * * * The Chicago Lawyers’ Committee for Civil Rights Under Law, on behalf of its members, contends in this suit that craigslist, which provides an electronic meeting place for those who want to buy, sell, or rent housing (and many other goods and services), is violating this statute. * * *

Using the remarkably candid postings on craigslist, the Lawyers’ Committee can identify many targets to investigate. It can dispatch testers and collect damages from any landlord or owner who engages in discrimination. See Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982); Gladstone, Realtors v. Bellwood, 441 U.S. 91 (1979). It can assemble a list of names to send to the Attorney General for prosecution. But given §230(c)(1) it cannot sue the messenger just because the message reveals a third party’s plan to engage in unlawful discrimination. AFFIRMED

Posted by Marcia Oddi on Friday, March 14, 2008
Posted to Ind. (7th Cir.) Decisions

Thursday, March 13, 2008

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Baker Machinery, Inc. v Superior Canopy Corp., et. al., a 14-page opinion, Judge Friedlander concludes:

In dismissing Baker’s case, the trial court considered the factors identified in Lee v. Friedman, 637 N.E.2d 1318 and concluded that (1) Baker had taken an unreasonable amount of time to take any action in prosecuting its case, (2) Superior and Mega had suffered prejudice as a result of the delay in that evidence has become stale and some witnesses could not be found, (3) generally, Baker had a lengthy history of having deliberately proceeded in a dilatory fashion in this lawsuit; and (4) Baker was “stirred into action” only by a threat of dismissal and not by diligence on its (Baker’s) part. We conclude that the evidence supports those findings and that the findings are legally sufficient to support the trial court’s T.R. 41(E) dismissal of Baker’s lawsuit. Judgment affirmed.
NFP civil opinions today (2):

Deborah L. Hack v Maxine L. Doyle (NFP) - "Looking at the four corners of the Agreement between Doyle and Hack, we agree with the trial court that the Agreement is a lease or rental agreement and not a contract for the sale of real estate. The inclusion of the option to purchase in the Agreement did not give Hack a right in the property but merely granted her the right—upon cash payment of $120,000 minus credit for any rental payments already made—to “purchase the Leased premises[.]” Accordingly, we conclude the trial court did not err when it determined that the Agreement was a rental agreement. Judgment affirmed.

Steven Sander Parfenoff v. Dawn Marie Parfenoff (NFP) - "The evidence supports the trial court’s determination that there has been a change in circumstances so substantial and continuing that it is in the children’s best interests that Mother be awarded sole physical custody."

NFP criminal opinions today (2):

James D. Hutton v. State of Indiana (NFP)

Rudy Cardwell v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 13, 2008
Posted to Indiana Decisions

Ind. Law - "Protests prompt near-total rewrite of lead-paint act"

The Fort Wayne Journal Gazette's Niki Kelly had an interesting back-story yesterday on the Senate Bill 143, which is currently in conference committee.

Read the story in conjunction with Kelly's lengthy March 9th report, headed "Lead poison bill faces slow death."

Posted by Marcia Oddi on Thursday, March 13, 2008
Posted to Indiana Law

Ind. Courts - Even more on: "Lawyer guilty of attack on woman in wheelchair"

Updating this ILB entry from March 11th, the Gary Post Tribune has a story today by Ruth Ann Krause that begins:

Former lawyer and elected official Michael B. Haughee, who is serving a one-year jail term for sexual battery, has been charged in Lake Superior Court with theft.

Haughee, 56, who practiced law in Griffith, is accused of collecting a $15,500 check on behalf of a client he represented in a December 2002 car accident in Merrillville. The Schererville woman told Griffith police she met with Haughee 10 to 12 times on the Merrillville accident case and a second one he filed on her behalf involving a subsequent car accident.

She thought he was making excuses as to why he wouldn't show her any court documents. In the meantime, the woman contacted another attorney who suggested she call police.

Posted by Marcia Oddi on Thursday, March 13, 2008
Posted to Indiana Courts

Ind. Courts - "New Marion County public defender will face budget cuts"

Jon Murray of the Indianapolis Star reports today on the appointment of a new Marion County public defender and the challenges he will face. Some quotes:

An Indianapolis defense attorney appointed Wednesday as Marion County’s chief public defender will face budget cuts and a thorny dispute over employees taking private clients.

Robert J. Hill Jr. will take over April 21 for David E. Cook. The Public Defender Agency’s board voted 7-0 to hire Hill over the other finalist, attorney Eric K.
Koselke, and the appointment now will go to the City-County Council for confirmation.

Hill, who stepped down from the board to seek the top position, worked for the agency from 1994 to 2000, including time as Cook’s deputy chief.

Since then, he has worked in private practice and as a contract public defender.

“It’s a passionate thing for me,” Hill told the board before the vote. “I think I can really make a difference in the office. As lawyers, if we don’t take care of those without money . . . I think the system will break down.”

The Public Defender Agency provides criminal defense for indigent clients in 37,000 cases a year in Marion Superior Court.

Cook has delayed his departure a second time to smooth the transition. He is leaving the post after 13 years to join Indianapolis law firm Gresk & Singleton.

For background, start with this ILB entry from March 7th.

Posted by Marcia Oddi on Thursday, March 13, 2008
Posted to Indiana Courts

Wednesday, March 12, 2008

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

Updating this ILB entry from Feb. 24th, Joe Palazzo of Legal Times reports today on John Ascroft's testimony yesterday before a House Judiciary subcommittee hearing on the "multimillion-dollar contract his company was awarded by the DOJ to monitor fraud settlements" relating to the Indiana company, Zimmer Holdings.

Posted by Marcia Oddi on Wednesday, March 12, 2008
Posted to Courts in general

Courts - Oklahoma Supreme Court "cuts off online access to records"

This could be ILB "pretty astonishing" #2 for the week. #1 was Monday's story on Elliot Spitzer.

Ron Jenkins of the AP reports:

The Oklahoma Supreme Court has adopted rules cutting off public access to court records now available on the Internet.

When the rules go into effect on June 10, online access to court documents in the Supreme Court and district courts would be limited to court dockets only.

"The individual pleadings and other recorded documents filed of record in state court actions shall not be publicly displayed on the Internet," according to an order signed by Chief Justice James R. Winchester and four other justices.

The order, released on Tuesday, described the new rules as an effort to balance the rights of privacy of individuals and public access.

Besides eliminating Internet access, the order puts new restrictions on what information the public can access from legal documents filed with court clerks.

When I first read this story I wondered, what does "court dockets only" mean. So I accessed the Court's opinion, In Re: Privacy and Public Access to Court Dockets, online. Paragraph V reads:
Restricting Website Access To Court Records. The Clerk of the Oklahoma Supreme Court, each district court clerk, and the Project Manager of the Oklahoma Court Information System are directed to immediately limit internet public access to court dockets only. The individual pleadings and other recorded documents filed of record in state court actions shall not be publicly displayed on the internet. Court documents may be viewed at the courthouse unless otherwise prohibited by law. This policy may be reviewed by this Court in the future.
Surely that does not include opinions, I wondered? And what about any pleadings? But then I read the dissent, starting with paragraph 2:
What I disagree with is the instantaneous restriction of public access to current public court documents online. The Court made this decision with input only from the court clerks, others directly affected by the decision -- the bar, the bench, the legislature and the public were not consulted. Courts have a responsibility to balance the risk of harm that may be rendered by the disclosure of sensitive information with the need for a "fully open" court record. Evidently the basis of the decision is that until all 77 counties are online and able to provide access to the information, none of them should be able to provide it. I disagree with this rationale and would have at the very least asked that this issue be addressed in cooperation with the Bar Association and with an opportunity for public comment. This public information which was previously available to the bench, bar, and litigants has been removed from viewing without any consideration for, or consultation with, lawyers and judges who use the information on a daily basis to do their jobs more efficiently or from public litigants attempting to seek legal redress. * * *

Para. 4. In this computerized, internet age, courts, with the help and the direction of legislatures, are taking fiscal responsibility by reducing paperwork, reducing copying costs, moving towards electronic filing and electronic transfer of records, and providing the public greater and easier access to information to which it is entitled. Court records are migrating from paper form to electronic form where information may be disseminated in bulk, accessed over the internet, or both. In a step towards this responsibility, the Court recently increased court costs by $15.00 to provide for improved computerization of all 77 county clerk dockets. However, as a result of the Court's order, not only is the Court taking a giant, thirty year leap backwards to a time when the personal computer was nonexistent, the public is now paying for access to a system which is made inaccessible by the order.

Posted by Marcia Oddi on Wednesday, March 12, 2008
Posted to Courts in general

Ind. Decisions - Madison school treasurer sentenced to 48 months following her guilty plea to embezzling more than $1,100,000

From a press release that begins:

Timothy M. Morrison, Acting United States Attorney for the Southern District of Indiana, announced that ANN GEYMAN, 54, Madison, was sentenced to 48 months imprisonment today by U.S. Seventh Circuit Court of Appeals Judge John D. Tinder, sitting by designation in the U.S. District Court. The sentence followed her guilty plea to embezzling more than $1,100,000 from a school corporation receiving federal funds and other private entities. While imposing sentence, Judge Tinder described the loss and scope of GEYMAN�s series of embezzlements as "absolutely astonishing" and that it likely had a "devastating effect" on the school corporation. GEYMAN was also convicted of three counts of filing false federal income tax returns.

This case was the result of a investigation by the Indiana State Board of Accounts, the Indiana State Police, the Internal Revenue Service-Criminal Investigation Division, and the Federal Bureau of Investigation, with the cooperation of the Switzerland County Prosecutor's Office.

GEYMAN served as the Treasurer of the Switzerland County School Corporation from January 20, 2003 to May 9, 2007. During this period, GEYMAN wrote 200 checks totaling $1,113,502.34 to various credit card companies to pay her personal credit card debts. None of these payments were approved by the Switzerland County School Corporation. GEYMAN altered bank statements and canceled checks to conceal her embezzlement, which was first discovered during an outside audit by the Indiana State Board of Accounts in May, 2007. It is a federal crime to embezzle funds from a governmental entity receiving more than $5,000 in federal funds in one year.

Posted by Marcia Oddi on Wednesday, March 12, 2008
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 6 today (and 17 NFP)

For publication opinions today (6):

In Steve Carter v. City of East Chicago, Indiana, East Chicago Second Century, Inc., Michael A. Pannos, et al , an 8-page opinion, Judge May writes:

The Indiana Attorney General appeals the dismissal of its counterclaim and crossclaim for imposition of a constructive trust and an accounting on money paid to East Chicago Second Century pursuant to a riverboat casino license agreement. We affirm. * * *

The Attorney General’s authority to bring its counterclaim and crossclaim was premised on its characterization of the Showboat agreement as establishing a “public charitable trust.” The agreement did not establish such a “charitable trust,” and therefore the dismissal of counterclaim and crossclaim was not error.

In Employee Benefit Managers, Inc. of America and Charles Belch v. Indiana Dept. of Insurance, a 12-page opinion, Judge Bailey writes:
Employee Benefit Managers, Inc. of America and its President, Charles Belch (“Belch”), (collectively, “EBM”) appeal a decision of the Allen Superior Court affirming an order of the Indiana Department of Insurance (“the Department”) that, in relevant part, revoked insurance licenses held by EBM. We affirm. * * *

The Department had jurisdiction over EBM to regulate activities where the practical function was the provision of insurance, and to oversee compliance with the Agreed Entry. The Department’s findings of fact with regard to non-compliance rested upon substantial evidence. Finally, EBM was not denied due process.

In the Matter of T.S., Ashley Shipley v. Marion Co. Div. of Family & Children, and Child Advocates, Inc. - "Ashley Shipley (“Mother”) appeals determination her son, T.S., is a child in need of services (“CHINS”). We affirm."

In Ava McSwane, Danielle Hays v. Bloomington Hospital and Healthcare System, Jean M. Eelma, M.D., a 29-page, 2-1 opinion with a dissent beginning on p. 21, Judge May writes:

Bloomington Hospital treated Malia Vandeneede for injuries she said she sustained when she fell off a horse onto some debris. After treatment, she was discharged into her former husband’s custody. He killed her on their way home, then killed himself. Ava McSwane, Malia’s mother and personal representative, sued the Hospital and Dr. Jean Eelma, who treated Malia, asserting they had a duty to protect her from the domestic violence. The trial court granted summary judgment for the Hospital and Doctor on the grounds they had no duty toward Malia and Malia was contributorily negligent. We affirm the summary judgment for the Doctor but reverse the summary judgment for the Hospital. * * *

A hospital has a statutory duty to report suspected abuse of an endangered adult, and its independent duty to safeguard its patient from dangers that might result from circumstances within the hospital’s control extends to the discharge of a patient into the custody of the person who allegedly inflicted the injuries that necessitated her hospitalization. The Hospital therefore should not have been granted summary judgment on the ground it owed Malia no duty. In light of the conflicting factual inferences as to Malia’s contributory negligence, summary judgment for the Hospital on that ground was also improper. Affirmed in part, reversed in part, and remanded.

ROBB, J., concurs.
BAKER, C.J., dissents with opinion. [which begins] I must dissent from the majority’s conclusion that the Hospital had a duty to Malia to refuse to discharge her to the care of her husband. In imposing this astonishingly broad duty upon medical caregivers, the majority essentially relies upon two rationales—the endangered adult statute and common law tort cases. I find both rationales to be fundamentally flawed.

In James and Elaine Whitman v. Edward and Robin Denzik, a 15-page opinion, Judge Crone concludes:
At this point, we observe that several legal principles may be gleaned from the facts of Searcy and Wilfong. To support a finding of permissive use, the servient owner must establish that he or she actually communicated, either explicitly or implicitly, to the adverse claimant that he or she was allowing the adverse claimant to use the disputed property at his or her sufferance. In this case, Mr. Taylor’s affidavit does not establish anything other than his state of mind, which is insufficient to demonstrate permissive use. Likewise, an adverse claimant must produce evidence that he or she actually communicated, either explicitly or implicitly, to the servient owner that he or she was using the disputed property under a claim of right; mere evidence of the adverse claimant’s state of mind would be insufficient to carry this burden.

In sum, the Denziks established that no genuine issue of material fact exists as to the existence of the prescriptive easement, and the Whitmans failed to designate any evidence precluding entry of summary judgment in favor of the Denziks. Therefore, we affirm.

In State of Indiana v. Ruth A. Hicks , a 9-page opinion, Judge Robb concludes:
We conclude that all the reasonable inferences from the evidence indicate that Hicks was not in custody when she told Officer Sherman that she had been driving the vehicle. Therefore, the trial court’s grant of Hicks’s motion to suppress that statement was contrary to law.

Conclusion. We conclude the trial court’s grant of the motion to suppress was clearly erroneous. We therefore reverse and remand for further proceedings.

NFP civil opinions today (4):

Jose and Nancy Olivares v. Toni Van Gompel (NFP) - "Because the collection of the evidence violated neither the Fourth Amendment nor Art. 1, Section 11, we reverse the trial court’s order suppressing the evidence."

Everlite, Inc. v. Jack Salts (NFP) - "EverLite appeals the denial of its motion to correct error, which alleged the jury verdict was excessive. Finding no abuse of discretion, we affirm."

Michael Humphrey v. City of Cannelton (NFP) - "The trial court did not abuse its discretion in adopting the Board’s proposed findings and conclusions granting the Board’s motion to correct error. The judgment of the trial court reinstating the Board’s disciplinary action against Humphrey is affirmed."

State of Indiana v. Derek Hollis and Antonio Graves (NFP) - "Because the collection of the evidence violated neither the Fourth Amendment nor Art. 1, Section 11, we reverse the trial court’s order suppressing the evidence."

NFP criminal opinions today (12):

Frank E. Goss v. State of Indiana (NFP)

Michael Wilson v. State of Indiana (NFP)

Troy Lynn Craig v. State of Indiana (NFP)

Kenneth Pitts v. State of Indiana (NFP)

Richard E. Carter v. State of Indiana (NFP)

Johney Muncy v. State of Indiana (NFP)

George Brandon Box v. State of Indiana (NFP)

Donald Perkins v. State of Indiana (NFP)

Norman L. West v. State of Indiana (NFP)

Michael Craig v. State of Indiana (NFP)

Timothy A. Johnson v. State of Indiana (NFP)

Marlon Porter v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 12, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: City of Hammond negotiating Mayes settlement

Updating yesterday's entry, Joe Carlson of the NWI Times reports today, in a story that begins:

With millions of dollars on the line, both sides took the sure thing rather than gambling for a better deal.

Attorneys for the city of Hammond and a Gary man who spent a third of his life in prison for a rape he did not commit agreed Monday to settle the man's lawsuit for $4.5 million rather than wait for a ruling on the case from an appeals court.

Posted by Marcia Oddi on Wednesday, March 12, 2008
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Clark Circuit Judge Dan Donahue "taking well-deserved retirement"

Columnist Dale Moss today has a lengthy tribute in the Louisville Courier Journal that begins:

Dan Donahue made jurors safe from flying water pitchers. Start there.

Look at Donahue's thick file of thank-yous, some if not many from sides he did not take. Consider how easily Donahue was re-elected, and re-elected, and re-elected. Keep in mind how infrequently he is reversed on appeal.

Or soak in this from Indiana Chief Justice Randall Shepard: "How fortunate we've been that he (Donahue) chose public service."

Shepard could not really know every judge in the state. He knows Donahue, the circuit judge in Clark County, well enough not only to praise him but to have leaned on him more than once to help reshape the do's and don'ts of Indiana justice.

Donahue's mark is long; his time is short. He will retire as judge June 1, having served more than 20 years.

"It is with mixed emotions, for sure," said Donahue, 67, before a recent batch of hearings.

He plans to work briefly as the county's chief deputy prosecutor, followed by a move way west to be nearer his daughter and two quickly growing grandchildren. The first stop is bureaucratic; a former prosecutor, Donahue can earn a full second pension if he returns to that office even for a short while. The slot is to be open June 1.

The timing of Donahue's ultimate relocation hinges on being able to sell his house on the Ohio River in this sluggish market. If need be, Donahue will sit regionally as a senior judge -- a fill-in -- until he and his wife, Barbara, are free to buy in their chosen retreat, the Puget Sound community of Anacortes, Wash.

The Donahues' daughter and her family live in Vancouver.

Posted by Marcia Oddi on Wednesday, March 12, 2008
Posted to Indiana Courts

Courts - "Kentucky judge's ban on prosecutorial objections rejected"

Jason Riley reports today in the Louisville Courier Journal:

A Jefferson Circuit Court judge yesterday ordered District Court Judge Sean R. Delahanty to at least temporarily stop enforcing his policy that forbids prosecutors from making objections in his courtroom.

Circuit Judge Susan Schultz Gibson said Delahanty's policy "imposes a significant limitation" on the Jefferson County attorney's office.

However, Gibson did not find the policy illegal, as the county attorney's office has requested, saying she needed more time to look into the arguments from both sides.

Last month, Delahanty threatened to hold a prosecutor in contempt of court if he objected during a probable-cause hearing, saying it violated a long-standing unwritten policy the judge had created.

At the time, Delahanty told County Attorney Irv Maze and several of his prosecutors that he was tired of certain prosecutors wasting court time by making "obnoxious, ridiculous, abundant and useless objections" during probable-cause hearings.

Under his policy, Delahanty said prosecutors have a "standing objection to each and every question" that defense attorneys ask of witnesses during probable-cause hearings. The hearings are held so a judge can decide if there is enough evidence for a case to continue.

Maze and his prosecutors say they have an obligation to object to what they believe are unfair or illegal questions defense attorneys ask during hearings, and to make sure the objections are noted for the record.

In a hearing in front of Gibson yesterday, Assistant County Attorney Dave Sexton said a judge is not allowed to create a court rule without approval from the state Supreme Court. And Sexton said that making prosecutors remain "mute" like a "potted plant" while defense attorneys question witnesses could allow the defense to get information it is not entitled to.

Posted by Marcia Oddi on Wednesday, March 12, 2008
Posted to Courts in general

Tuesday, March 11, 2008

Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

For publication opinions today (3):

In State of Indiana on the Relation of the Indiana State Police v. Chad Arnold, a 10-page opinion, Judge Darden concludes:

Indiana Code section 35-38-5-1(f) provides that the trial court shall grant a petition for expungement unless it finds that the conditions in subsection (a) have not been met; the petitioner has a record of arrests other than minor traffic offenses; or additional criminal charges are pending against the petitioner. * * * Thus, where, after a hearing, the trial court does not find that any of the factors listed in subsection (f) apply, it must grant—and therefore lacks the discretion to deny—the petition for expungement.

The legislature’s intent is clear as to when a trial court must grant a petition for expungement. We, however, are asked to address whether the legislature intended to deny expungement to petitioners who, as in this case, meet the conditions in subsection (a) yet have a record of unrelated arrests other than minor traffic offenses5 or have additional charges pending against them.

The mandatory language of “shall” in subsection subsection (f) only addresses the granting of a petition for expungement; it does not appear in subsection (f) as a directive regarding the denial of a petition for expungement. * * *

Given the legislature’s omission of language mandating the denial of a petition for expungement, we find that the legislature intended the granting or denial of a petition under Indiana Code section 35-38-5-1 to be within the trial court’s sound discretion where the petitioner meets the conditions of subsection (a) yet falls within subsection (f)(2) or (f)(3). * * *

Given this holding, we reverse the trial court’s order dated May 31, 2006, and remand for a new evidentiary hearing on Arnold’s petition for expungement of his arrest record for robbery.

In Eric D. Smith v. Indiana Dept. of Correction, et al, a 10-page opinion, Judge Darden writes:
Eric D. Smith, pro se, appeals the trial court’s grant of the motion for summary judgment made by the Indiana Department of Correction and Westville Control Unit in his action seeking injunctive and declaratory relief. We dismiss.

Cahisa Jones v.State of Indiana - "On May 10, 2007, Officer Greg Taylor of the Indianapolis Metropolitan Police Department received a dispatch concerning suspicious activity near a residence on 19th Street. Upon arriving at the scene, Officer Taylor noticed a car parked in a driveway behind a vacant house, next to an alley. Officer Taylor considered the driveway to be private property. Jones was inside the car, reclining in the front passenger seat and clearly intoxicated. There was a can of beer and a mostly empty whiskey bottle in the car. In the middle of the back seat of the car, approximately two feet away from Jones, was a handgun lying on top of a pile of clothes. The car was owned by and had been driven that evening by Leroy DeJourney, Jones’s cousin. * * *

"There is insufficient evidence to support Jones’s convictions for public intoxication and carrying a handgun without a license. We reverse both convictions."

NFP civil opinions today (7):

Shawn Karst v. The Town of Mount Etna, Indiana (NFP) "This case, however, does not involve Mt. Etna changing the zoning of Karst’s property or his continuation of a “non-conforming use.” Instead, this case involves Mt. Etna enacting an ordinance limiting nuisances and imposing fines for the failure to abate such. Unlike a non-conforming use associated with a zoning change, we cannot conclude that Karst had a vested right in continuing a nuisance simply because it was ongoing prior to the enactment of the Ordinance. Karst’s argument fails.

"Conclusion The trial court properly concluded that Karst’s dog breeding operation constituted a nuisance and imposed a fine pursuant to the Ordinance. We affirm."

In Indiana Dept. of Transportation v. U.S. Outdoor Advertising Company, Inc. (NFP), a 10-page opinion [which is inexplicably NFP], Judge Friedlander writes:

Indiana Department of Transportation (INDOT) appeals the trial court’s order on judicial review reversing INDOT’s decision to deny two of U.S. Outdoor Advertising Company, Inc.’s (U.S. Outdoor) applications for outdoor advertising sign permits. This case involves the continuing saga of two billboards that have remained standing along Interstate 70 for fourteen years after they were first determined by INDOT to be ineligible for outdoor advertising permits. This case returns to our Court approximately nine years after we remanded the case to INDOT for a definitive determination of the zoning for the properties on which the two billboards at issue are located. On remand, INDOT determined that the properties were zoned residential, and not commercial or industrial, thereby making the two billboards ineligible for outdoor advertising permits and requiring their removal. On judicial review, the trial court determined that although the properties were zoned residential under a zoning ordinance, the permitted uses in this residential zoning category allowed for commercial uses, such as agricultural activity, and reversed INDOT’s decision. INDOT presents the following restated issue for review: Did the trial court err by reversing INDOT’s denial of U.S. Outdoor’s sign permits? We reverse. * * *

The undisputed evidence reveals that the Bodkin sign and Shelby sign are located on properties that are zoned residential or R-1 under the Hancock County Zoning Ordinance. Under the plain language of 105 IAC 7-3-6(1) and the applicable definition in I.C. § 8-23-1-47, the signs are ineligible for permits. See id. (explaining that if the properties are zoned residential, the signs are ineligible to receive permits). Accordingly, we reverse the trial court’s order on judicial review.

Indiana Dept. of Environmental Management v.Subhen Ghosh (NFP) - "Ghosh failed to comply with the statutory procedure when he neither filed the agency record nor requested an extension for said filing within thirty days of his May 23, 2007, petition for judicial review. That failure was “cause for dismissal of the petition.” I.C. §4-21.5-5-13(b). Therefore, the trial court erred when it denied IDEM’s motion to dismiss. Reversed."

Brian Wuest v. Dawn M. Dickerson (NFP) - "We commend Wuest for his interest in B.W.’s welfare. Nevertheless, we conclude that the trial court did not abuse its discretion in concluding that Wuest did not prove a substantial change that would have warranted modification of custody."

Reanna Frye b/n/f Doretha Lee-Tutson v.City of South Bend d/b/a Erskine Municipal Golf Course, et al (NFP) - "Here, considering the facts in the light most favorable to the Appellants as the non-moving party and assuming that the paramedic told ReAnna that she was fine and faking, we can conclude as a matter of law that the paramedic’s conduct does not constitute “outrageous” behavior as contemplated by the narrow definition adopted from the Restatement. In other words, however insensitive the paramedic’s comment may have been, we cannot say that it was so extreme in degree as to go beyond all possible bounds of decency or can be regarded as atrocious and utterly intolerable in a civilized society. As this Court has observed: “The law does not provide a remedy for every annoyance that occurs in everyday life. Many things which are distressing or may be lacking in propriety or good taste are not actionable.” Branham v. Celadon Trucking Servs., Inc., 744 N.E.2d at 518 (citations omitted). Such is the case here. The trial court did not err in granting the City’s motion for summary judgment on the Appellants’ claim for intentional infliction of emotional distress."

Loretta S. Erikson v. Review Board and Bio Lab, Inc. (NFP) - "Erikson, however, failed to show good cause for not introducing the evidence during the hearing before the ALJ. Therefore, we find no abuse of discretion in not hearing additional evidence."

In the Matter of the Commitment of S.C. v. Wishard Health Services, Midtown Health Center (NFP) - "Dr. Kellams’s testimony was unequivocal. This evidence alone is clear and convincing evidence that S.C. is gravely disabled. The trial court’s commitment order is supported by sufficient evidence."

NFP criminal opinions today (6):

In the Matter of A.L. v. State of Indiana (NFP)

Ronald G. Wood v. State of Indiana (NFP)

Phillip Gregory Yeary v. State of Indiana (NFP)

John Keith Barkdull v. State of Indiana (NFP)

Jesse J. Blakey v. State of Indiana (NFP)

Johnnie Williams v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 11, 2008
Posted to Ind. App.Ct. Decisions

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

In St. Margaret Mercy v. NLRB, a 5-page opinion, Judge Posner writes:

The Labor Board found that St. Margaret, which owns and operates two hospitals in Indiana (but for the sake of simplicity we’ll assume they’re one), interfered with the right of the hospital nurses to organize and discriminated against one of the nurses, who was a union activist. The interference, the Board ruled, violated section 8(a)(1) of the National Labor Relations Act, and the discrimination section 8(a)(3). 29 U.S.C. §§ 158(a)(1), (a)(3). * * *

The hospital’s rule forbids solicitations in patient care areas, period, yet the only solicitations that have ever drawn a rebuke from management are, as the hospital’s lawyer acknowledged at argument, those in support of union activities. Moreover, it is far from obvious that a patient in intensive care will be less disturbed by a nurse hawking bikini lotion or organizing a birthday party than by a union organizer. Patients, especially those in intensive care, and their family members and friends, would like to think that nurses when on duty give their exclusive attention to their professional duties and are not distracted by engaging in charitable, social, or commercial activities. The singling out of the union-supporting nurse for rebuke was discrimination against union activities.

The Board’s order is amply supported, and so the petition for review is denied and the Board’s application for an order judicially enforcing its order is granted.

Posted by Marcia Oddi on Tuesday, March 11, 2008
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Central Indiana Podiatry, P.C. [CIP] v. Kenneth Krueger, Meridian Health Group, P.C., a 14-page, 3-2 opinion, Justice Boehm writes:

We hold that noncompetition agreements between a physician and a medical practice group are not per se void as against public policy and are enforceable to the extent they are reasonable. To be geographically reasonable, the agreement may restrict only that area in which the physician developed patient relationships using the practice group’s resources. * * *

The trial court’s order denying CIP a preliminary injunction is affirmed except as to Marion, Tippecanoe, and Howard counties, and this case is remanded to the trial court for disposition of CIP’s remaining claims.

Sullivan and Rucker, JJ., concur.
Shepard, C.J., dissents with separate opinion in which Dickson, J., joins. [The CJ's dissent concludes] The competitive reality is that these two areas [N. Marion C. and S. Hamilton Co.] function as one for commercial purposes. That a county line divides these two locations means very little to most customers or purveyors of service, and I wouldn’t regard it as grounds for a court voiding a contract by which two rela-tively sophisticated parties ordered their commercial relationship.

Posted by Marcia Oddi on Tuesday, March 11, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - City of Hammond negotiating Mayes settlement

Susan Brown reports today in the NWI Times:

HAMMOND | Five months after the city of Hammond asked a federal appeals court to overturn a $9 million judgment in the wrongful conviction lawsuit won by Larry Mayes, attorneys are expected to file a motion today asking the court not to rule in the case.

The motion, if successful, will clear the path for a negotiated settlement between Mayes and the city for a reported $4.5 million. * * *

The judgment stems from a 1982 case in which a jury sent Mayes to prison for abducting and raping a Hammond convenience store clerk.

Mayes served 20 years in prison before modern DNA analysis determined the semen recovered from the victim was not his.

Mayes subsequently filed a wrongful conviction lawsuit that resulted in a $9 million jury award in August 2006. Found liable along with the city was now-retired Capt. Michael Solan, who was chief of police at the time of Mayes' conviction.

As of January 2007, the case had cost the city more than $500,000 in legal fees.

At the time, Mayes' victory prompted his attorneys to petition the court for $1.4 million in legal fees, though a lower amount had been negotiated to be paid if the city's appeal fails. Separate legal fees to attorneys representing two officers involved in the case had reached more than $148,000.

Posted by Marcia Oddi on Tuesday, March 11, 2008
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Still more on: "Lawyer guilty of attack on woman in wheelchair"

Updating this ILB entry from March 7th, Bob Kasarda of the NWI Times reports today:

VALPARAISO | Former Hebron Town Council President and former Lake County Deputy Prosecutor Michael Haughee turned himself in at the county jail Monday morning to begin serving a one-year term for sexually assaulting a woman who uses a wheelchair.

Haughee had hoped to avoid going to jail until his appeal has been decided. [Porter Circuit Court Judge Mary Harper denied the delay.] * * *

Harper sentenced Haughee to one year in jail, which can be completed in half that time with good behavior. Upon his release, he is to spend a year on formal probation, register for 10 years as a sex offender and undergo HIV testing, sex offender treatment and a mental health evaluation.

Posted by Marcia Oddi on Tuesday, March 11, 2008
Posted to Indiana Courts

Monday, March 10, 2008

Law - Pretty astonishing

The NYT is reporting: "ALBANY - Gov. Eliot Spitzer has informed his most senior administration officials that he had been involved in a prostitution ring, an administration official said this morning."

[More]

ALBANY - Gov. Eliot Spitzer has been caught on a federal wiretap arranging to meet with a high-priced prostitute at a Washington hotel last month, according to a person briefed on the federal investigation.

Posted by Marcia Oddi on Monday, March 10, 2008
Posted to General Law Related

Ind. Decisions - "U. S. Steel Disappointed By Indiana Court of Appeals Ruling "

Friday's Court of Appeals opinion in the case of Northern Indiana Public Service Company v. United States Steel Corporation, (see ILB summary here - 2nd case) has occasioned a press release today from U.S. Steel, including the following:

The decision, handed down by the Court on Friday, March 7, 2008, held that a rate provision in a 1999 agreement between the parties applied to certain electric demand charges since October 1, 2005 -- that will continue until July 2009 -- and remanded the case to the IURC for calculation of the charges. U. S. Steel is surprised and disappointed over the outcome of the case, which it had won on a summary judgment motion before the IURC. U. S. Steel intends to seek a review of this decision by the Indiana Supreme Court, but expects to establish a pre-tax reserve of approximately $45 million in its first quarter results related to prior year effects.

Posted by Marcia Oddi on Monday, March 10, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues one Indiana decision today

In Asher B. Hill v. Sup't., Westville Correctional Fac. (ND Ind. Judge Simon), a 6-page opinion, Chief Judge Easterbrook writes:

Asher Hill entered a liquor store in Indianapolis, shot the clerk, and stole the contents of the cash register. For this conduct he has been convicted of several offenses and sentenced to life imprisonment without possibility of parole, because his many convictions make him a habitual offender under Indiana law. The clerk survived and was prepared to testify against Hill but suffered a heart attack just before trial. The judge postponed the trial for two months; Hill contends, in this proceeding under 28 U.S.C. §2254, that by doing this the judge violated two of his constitutional rights. The state judiciary rejected these arguments, Hill v. State, 773 N.E.2d 336 (Ind. App. 2002), 777 N.E.2d 795 (Ind. App. 2002), as did a federal district judge, Hill v. McBride, 2006 U.S. Dist. LEXIS 39599 (N.D. Ind. Mar. 30, 2006).

Hill invokes the speedy trial clause and the right to choose between counsel and self-representation. The state judge violated both rights at once, he maintains, by deferring the trial until the clerk had recovered. * * *

The best way to conduct analysis under §2254 is to assume that the state wants to act exactly as its officers (including its judges) have done, and then ask whether the federal Constitution countermands that decision. See, e.g., Gordon v. Degelmann, 29 F.3d 295, 300–01 (7th Cir. 1994); United States v. Martin, 399 F.3d 879 (7th Cir. 2005). The Constitution does not prevent a state from waiting two months for the principal witness (and victim) to recover and testify in person. See Barker, 407 U.S. at 521–22 (“If, for example, the State moves for a 60-day continuance, granting that continuance is not a violation of the right to speedy trial unless the circumstances of the case are such that further delay would endanger the values the right protects.”). It follows that Indiana has not contravened any clearly established rule of federal law.

Posted by Marcia Oddi on Monday, March 10, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 1 NFP)

For publication opinions today (3):

In George Snell v. C.J. Jenkins Enterprises, Inc., and Charles D. Jenkins, an 8-page opinion, the issue is whether appellant-plainiff, who delivered newspapers, was an independent contractor. Judge Bradford writes:

Upon appeal, Snell claims that the trial court erred in determining he was not Jenkins’s employee and granting summary judgment to Jenkins on that basis. We affirm. * * *

Both parties base their arguments upon the seven-factor test used by the Indiana Supreme Court in GKN Co. v. Magness, 744 N.E.2d 397, 403-03 (Ind. 2001) for purposes of determining the existence of an employer-employee relationship. In Moberly, 757 N.E.2d at 1009-10 n.3, the Indiana Supreme Court observed that this seven-factor test is better-suited for determining whether a person is an employee of two different employers, a common question in the Worker’s Compensation context. For purposes of determining whether an individual’s status is that of an employee or an independent contractor, the Moberly court indicated that it would continue to apply the ten-factor approach described in the Restatement (Second) of Agency § 220 (1958). * * *

Given the above factors, which largely weigh in favor of Snell’s status as an independent contractor, and in particular consideration of the leading factor of control, which also points to the conclusion that he was an independent contractor, we conclude Snell was an independent contractor rather than Jenkins’s employee and therefore affirm the trial court’s summary judgment in favor of Jenkins. Accordingly, we find it unnecessary to consider Snell’s additional claims for damages and fees. The judgment of the trial court is affirmed.

In James E. Johnson, Jr. v. Marcia Johnson, a 2-1, 13-page opinion, including a dissent beginning on p. 11, Chief Judge Baker writes:
Appellant-respondent James E. Johnson, Jr., appeals the trial court’s nunc pro tunc order granting appellee-petitioner Marcia Johnson’s motion to correct error regarding the parties’ marriage dissolution decree. Specifically, James argues that the trial court did not rule on Marcia’s motion to correct error within the confines of Trial Rule 53.3(A); thus, the motion was deemed denied thirty days after the hearing and Marcia did not file a notice of appeal. While James also attacks the merits of the trial court’s order granting Marcia’s motion to correct error, we find his procedural argument dispositive. Concluding that Marcia’s motion to correct error was deemed denied pursuant to Trial Rule 53.3(A) thirty days after the hearing and that Marcia did not file a notice of appeal, we reverse the trial court’s nunc pro tunc order and remand this cause to the trial court with instructions to vacate the order and reinstate the original marriage dissolution decree. * * *

BRADFORD, J., concurs.
DARDEN, J., dissents with opinion. [which concludes] I cannot find that equity would countenance the result reached by the majority. It was James’ attorney who failed to honor the obligation to which he had agreed, and I cannot accept a result that allows James to profit by that failure. Equity “looks to the substance and not the form,” and “a court of equity has the power to require that to be done which should have been done.” Walter v. Balogh, 619 N.E.2d 566, 568 (Ind. 1993). I believe that the trial court’s nunc pro tunc entry was a proper exercise of its equity power by the trial court. Therefore, I cannot agree that the trial court abused its discretion in that regard.

In South Bend Community School Corp. v. Mary A. Swartz , a 3-page opinion, CJ Baker writes:
The issue presented in this appeal is virtually identical to that decided recently in South Bend Community School Corporation v. Lucas, --- N.E.2d ---, 2008 WL 427637 (Ind. Ct. App. Feb. 19, 2008) (South Bend I), with the only difference being the identity of the appellee-employee. * * *

Here, likewise, we reach the same conclusion based on the same facts. Inasmuch as the legislature intended that Head Start be treated as an educational institution for the purpose of unemployment compensation, the Board’s decision in favor of Swartz was contrary to legislative intent and necessarily unreasonable. The judgment of the Board is reversed.

NFP civil opinions today (1):

Term. of Parent-Child Rel. of D.C. & A.C., and Justin Carter v. Madison County Dept. of Child Services (NFP) - "Appellant-respondent Justin Carter appeals the trial court’s order terminating the parental relationship between Justin and his children, D.A. and A.C. Justin argues that there is insufficient evidence supporting the trial court’s ruling. Finding no error, we affirm the judgment of the trial court."

NFP criminal opinions today (0):

Posted by Marcia Oddi on Monday, March 10, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Reports on bills of interest to the Judiciary

Friday, Feb. 29th, the Indiana Judicial Center posted the ninth installment of its very useful reports for 2008, which began:

We are nearing the end of this 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. The next communication on legislation will be the Final Legislative Update summarizing bills that have been signed into law.

Posted by Marcia Oddi on Monday, March 10, 2008
Posted to Indiana Courts

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

The Evansville Courier & Press' Bryan Corbin's review this Monday of the status of legislation in the General Assembly begins:

It's down to crunch time at the Indiana General Assembly.

State lawmakers have until midnight Friday to reach agreement on property tax relief, immigration reform and numerous other issues. Gov. Mitch Daniels said in January he would call legislators back in a special session if they failed to pass a property tax relief bill before adjourning.

The final days of the 2008 short session are dominated by four-member conference committees, where House and Senate members from both political parties try to hammer out differences between competing versions of bills.

Posted by Marcia Oddi on Monday, March 10, 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:

None scheduled.

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

This Tuesday, March 11th:

10:00 AM - Everdry Marketing & Mnagement vs. Steven Carter, Attorney General of Indiana - Everdry, an Ohio corporation, appeals a trial court order to enforce the Indiana Attorney General's civil investigative demand ("CID"). The AG received complaints from customers of Everdry's Indiana franchises claiming breach of warranties. Everdry claims it lacks minimum contacts with Indiana sufficient to establish personal jurisdiction. Issues include: timing of contacts, nature of a CID, and effect of changes in the Indiana statute pertaining to the AG's ability to bring an action on a CID. The Scheduled Panel Members are: Judges Darden, May and Crone

Posted by Marcia Oddi on Monday, March 10, 2008
Posted to Upcoming Oral Arguments

Sunday, March 09, 2008

Environment - Complaints that public isn't being given enough time to review BP draft air permit

On March 1, Gitte Laasby, environmental reporter for the Gary Post Tribune, wrote:

WHITING -- Environmentalists are frustrated and disappointed with Indiana Department of Environmental Management Commissioner Tom Easterly, who has refused to give them the time they say they need to review BP Whiting's proposed air permit.

A coalition of 12 environmental groups had requested a two-month extension of the deadline for public comment but were given two weeks. They say that's not nearly enough time to review the 1,351 pages of the permit itself -- or the 6,410-page total that includes appendices and compliance records.

"If someone were to spend just five minutes looking at each document, just that initial review would require more than 500 hours. And this is not even the complete set of documents," wrote Ann Alexander, senior attorney with the Natural Resources Defense Council in a letter to Easterly. "We encourage you to avoid the problems that attended issuance of BP's (wastewater) permit, which resulted in much public concern and anger over the perceived lack of transparency and opportunity for public participation."

In response, Easterly rescheduled the informational meeting and the public hearing to March 14. The coalition had asked for the meeting and hearing to be held on separate days. * * *

In response to the public's request, IDEM has rescheduled the date of the public informational meeting and the public hearing about BP Whiting's draft air permits to Friday, March 14," Easterly wrote. "This will provide the public additional time to analyze the permit and prepare comments. Other details of the meeting will remain the same."

In a story today, Laasby reports:
WHITING -- Approval of an air permit for BP is moving along faster than environmentalists would like -- and faster than IDEM's normal standards -- with BP standing to gain.

Environmentalists say IDEM's rushing undermines the public's opportunity to comment and that it happens at the expense of public health.

"This time frame is extremely rushed. It really is not a meaningful opportunity for public comment. Just to read the documents is more time than they've given us," Ann Alexander, senior attorney with the Natural Resources Defense Council, said.

When the Indiana Department of Environmental Management rescheduled the Feb. 25 public hearing on BP's air permit, it wasn't so much out of consideration for a coalition of environmental groups that asked for more time to review the thousands of pages in the permit -- although that's what IDEM has stated in a news release.

It was because IDEM failed to comply with state law when the agency first publicized the hearing. State law requires a minimum of 30 days' notice. IDEM provided only 20 days. If IDEM had not re-noticed the hearing, the permit could have been successfully challenged at the state or federal level.

The story also notes:
Time is of the essence in issuing the permit: BP relies on so-called emission credits to avoid stricter requirements about reducing certain types of pollution, including soot. But the credits expire on June 1.

That means if IDEM had given environmental groups the two months extra they requested, and the U.S. Environmental Protection Agency were to take the 45 days it is allowed to review the permit to make sure it meets Clean Air Act standards, the credits would expire before the permit is issued.

Posted by Marcia Oddi on Sunday, March 09, 2008
Posted to Environment

Environment - National study looking into release of toxic emissions

The EPA farm emissions study has been the subject of several ILB entries, including this one from April 4, 2005, and this one (2nd part of entry) from July 13, 2007.

Today Melissa Moody of the New Albany New&Tribune has this report on the ongoing study, involving participation by agricultural enterprises in an air quality compliance agreement with the U.S. EPA, in return for immunity. The story begins:

A study to measure air emissions of toxic animal waste at factory farms across the United States is being led by Purdue University’s Dr. Al Heber, a professor in agriculture and bioengineering.

The purpose of the National Emissions Air Monitoring Study is to discover if there are large farms — defined by the Environmental Protection Agency as confined animal feeding operations — exceeding emissions levels set by the EPA, and where those farms are located.

More than 1,000 farms are participating in the project, including some in Indiana. The Indiana Department of Environmental Management, or IDEM, monitors 625 confined animal feeding operations in the state, which comprise 20 percent of IDEM- regulated farms.

Heber is working with universities in other states to measure average hourly and daily emissions of ammonia and hydrogen sulfide, two major components in toxic animal waste emissions. The research team set up detection sites in 2007 and will monitor emissions for the next two years.

Heber gave the EPA the first set of emissions data from the study Feb. 29.

“It’s a huge study,” Heber said. “There are potential (federal) regulations in the future where this data is important and a lot of states are waiting for this study before moving forward with regulations.”

The study also will give researchers — and consequently federal and state regulators and farmers — an idea of what specific animal-related activities, such as feeding, are correlated to emissions.

“It will be helpful not only to the EPA, but producers themselves. They want to know this, they want to be better neighbors,” Heber said.

The impetus behind the study comes from lawsuits against large farms in several states, such as Missouri, Ohio and Oklahoma, over toxic emissions from animal waste exceeding acceptable levels.

The EPA told the livestock industry it would forgive participating producers’ past failures to report emissions for participating in the study and none of the participating farms would be sued.

Posted by Marcia Oddi on Sunday, March 09, 2008
Posted to Environment

Ind. Decisions - Several interesting evidence issues in recent trial court decision

Stan Maddux of the South Bend Tribune reports:

LAPORTE — Matching up a severed foot with the leg of its owner helped prosecutors land a conviction in a double drunk-driving fatality near Michigan City.

Benjamin Pomeroy, 28, of LaPorte was found guilty Tuesday during a bench trial of two counts of Class C felony operating while intoxicated causing death. * * *

LaPorte County Sheriff's Deputy Andy Hynek testified a tennis shoe with Pomeroy's right foot still inside was recovered between the brake pedal and accelerator.

“Where your feet would normally be while driving,” Hynek testified.

One of the emergency responders, Scott Erickson, said he found Pomeroy hanging halfway out the car with his pant leg caught in the driver's side door.

To bolster his case, LaPorte County Deputy Prosecutor Chris Fronk tried submitting possible incriminating statements posted on a MySpace Web page that appeared to belong to Pomeroy.

But LaPorte Circuit Court Judge Tom Alevizos ruled the statements were hearsay without proof Pomeroy actually created the Web site.

Even with code numbers and other security measures, defense attorney David Jones said, others can create a Web site under an assumed name.

“Anyone can put anything on the Internet,” Jones said.

Posted by Marcia Oddi on Sunday, March 09, 2008
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Shelbyville 4th Ward frustrations mount"

An interesting report in the Shelbyville News, reported by Ron Hamilton, includes this:

"I don't understand why Republican city council candidate Tamara Sullivan didn't give up her seat to Democrat candidate Val Phares after Judge Charles O'Connor issued a court order (Feb. 6) certifying Val as the winner," Democratic Party chairwoman Noell Krughoff said Friday, echoing a sentiment heard from Democrats all around the county these days.

Posted by Marcia Oddi on Sunday, March 09, 2008
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - Heightened interest in Indiana primary has its downsides

So writes Fort Wayne Journal Gazette Washington-based political columnist Sylvia A. Smith today. One example:

Clinton’s performance Tuesday means the Democratic Party will not have a nominee before the August convention, and that means Indiana will get the TV ads, the candidate visits and the national media attention normally reserved for States That Matter.

Yee-haw!

But it’s not all political hog heaven.

• The state also will be on the receiving end of heightened scrutiny of its electoral process.

Voting machine problems, the truncated Election Day (hardly any other state cuts off ballot access at 6 p.m.), the requirement for voters to produce a picture ID – all are topics that will become fresh news.

Some of these policies don’t put Indiana in the best light. The voter ID issue is already before the Supreme Court. It’s not inconceivable that other policies could lead to costly legal entanglements: Think the Clinton campaign’s protest over the execution of the Texas caucuses.

Posted by Marcia Oddi on Sunday, March 09, 2008
Posted to Indiana Government

Ind. Gov't. - Indiana, Land of Lincoln [Updated]

Columnist Bob Hill wrote in the Louisville Courier Journal Feb. 14th:

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.
Kentucky and especially Illinois make a big deal over Abraham Lincoln. The State of Indiana has done comparatively little. Now we read in the Fort Wayne Journal Gazette, in an opinion piece by renowned Lincoln scholar Harold Holzer:
For all the years I've been studying and writing about Abraham Lincoln, Fort Wayne's stupendous collection - whether it's been called the Lincoln National Life Foundation, the Louis A. Warren Lincoln Library and Museum or in its most recent incarnation, the Lincoln Museum - has remained an indispensable resource, a captivating public attraction, a reliable refuge for scholars and a safe home for its countless treasures.

That is why, together with so many of my colleagues in the field, I find myself in profound mourning over the unexpected news of its imminent loss. My fellow historians are disappointed and outraged. I share their pain. * * *

Clearly, the museum will be missed by everyone who seeks inspiration from Lincoln's words and deeds and everyone who delves deeply into the past to illuminate the future. For behind the superb public displays lies a staggeringly deep collection of manuscripts, art and artifacts without access to which dozens of the best Lincoln books published this century - check the acknowledgments - would have been the weaker. To prepare my own next book, I spent countless profitable hours in the museum's legendary clipping files, unearthing gem after obscure gem - reminiscences, editorials, firsthand accounts - all but impossible to find anywhere else. My book will also boast several images from the Lincoln Museum collection. What recent Lincoln book has not?

So now the obvious, troubling question: What will become of it all? We are told the material will be digitized - making it more accessible. Even if we accept the implied argument that virtual reality is equal to the real thing, will this commitment extend to the clippings? The prints? If not, where will they go, and when?

We hear that the museum must lock its doors because school visitation has dipped from 12,000 to 7,000. But what will replace this crucial educational experience for the 7,000 local students who still profit from it? If money is not the issue, why not invest more, not less, in the educational mission and rebuild school visitation instead of throwing out the baby with the bath water?

Finally, what of any museum's most sacred trust: its collections? The Lincoln Museum owns the last painting for which Lincoln ever sat (“horribly like the original,” he joked when he first saw it), copies of the Emancipation Proclamation and the Thirteenth Amendment, relics he used and touched, documents and manuscripts he wrote in his own hand, sculptures, broadsides, sketches and thousands of prints. Not to mention that Lincoln Family Album - the one-of-a-kind photos of his children he displayed in his own home, took with him to Washington. These are not surplus goods: They are the tangible lifelines to our greatest American.

In the end, I suppose a museum may elect to limit its public hours, or worse, shut its doors forever, whatever the impact on its public, its scholars or its home. But those of us who have revered and relied on the Lincoln Museum - and the institution's own benefactors - have a moral obligation to safeguard the holdings and ensure both perpetuation and access. Cohesiveness would be nice, too. The institution has worked so hard to amass its holdings. It would add insult to injury to scatter it, lock it away or sell it off. There are plenty of fine new spaces that lack collections of equal grandeur - like the new Tredegar Museum in Richmond, Va., or the soon-to-open Civil War Museum in Philadelphia. With apologies to Fort Wayne, why not a request for proposals to house and preserve the Lincoln Museum trove?

To be sure, Lincoln Financial has been heroic in its decades-long commitment to the museum. Its generosity has been extraordinary. But lock the doors, walk away, and scatter the collections it simply cannot do.

The is certainly an opportunity for the State of Indiana that likely will never come again.

[Updated] See this March 12th article by sometime Indianapolis Star columnist Andrea Neal, headed "Bicentennial's coming; save Lincoln collection."

Posted by Marcia Oddi on Sunday, March 09, 2008
Posted to Indiana Government

Saturday, March 08, 2008

Environment - Drafts of antidegradation rule not yet in a form reviewable by the public

A story in the Jan. 4 2008 NWI Times reported:

A wastewater permit for U.S. Steel's Gary Works is on hold until Indiana environmental regulators can come up with a new antidegradation regulation to protect Lake Michigan.

"We can't say they have met this rule until we know what this rule is," Indiana Department of Environmental Management Commissioner Thomas Easterly said Thursday. "Without a rule, no one knows if we're protecting the lake."

A wastewater permit for U.S. Steel's Midwest Division in Portage and three AcelorMittal steel production sites also are on hold.

Indiana's lack of an effective antidegradation policy was pointed out last month by Indiana University professor James Barnes in a report on IDEM's controversial wastewater permit for BP.

The report concluded the permit complied with state and federal rules, but it said Indiana's lack of clear antidegradation regulations prevented IDEM from getting complete information from BP. It also hindered the state agency's ability to defend the permit.

"We need speedy decisions but we also need decisions people can have confidence in," Easterly said in a review of the BP permit process. "That just didn't happen here." * * *

He told the committee -- made up of local elected officials and the leaders of a number of environmental groups -- that IDEM is reacting swiftly to lessons learned during the blowup over the BP permit. * * *

The EPA's antidegradation policy requires states to formulate regulations to prevent pollution that would endanger existing uses of state waters.

For "high quality" waters like lake Michigan, increases in discharges are only allowed after exhaustive review. The polluter also must show there are not feasible alternatives and that it serves an important economic or social purpose.

Implementing such a regulation has been thorny issue in Indiana. IDEM took public comment on a proposed regulation in 2003 and 2005, Easterly said. Both times it received many "negative" comments both from environmentalists and industry.

Easterly is now hopeful an antidegradation regulation can be in place by the end of this year. The usual process takes 18 months.

That means area steelmakers will continue to operate on administratively renewed permits, which generally do not have updated limits for discharges.

Reacting "quickly," two months later, March 7, 2008, IDEM called a meeting of stakeholders - here is the press release. The release seems at pains to make it clear that the meeting is not IDEM's idea:
In an independent review of the BP Whiting Refinery permit to discharge to Lake Michigan, James Barnes recommended that Indiana should clarify its antidegradation regulations for Lake Michigan to make them easier for permit applicants and the public to understand and for the agency to apply. At the request of Governor Daniels, and in response to the Barnes report, the Indiana Department of Environmental Management (IDEM) will meet with interested parties concerning the development of an antidegradation rule for the State of Indiana.
Various press reports today review yesterday's meeting. Rick Callahan reports for the AP:
Ambiguous water-quality rules at issue in last year's uproar over a new water permit for BP's Whiting oil refinery will be clarified and approved by December, Indiana's top environmental regulator said yesterday.

Environmentalists who attended a meeting yesterday on the so-called "antidegradation" rule, however, said they were surprised that the new rule wasn't ready for review.

Gary environmental activist Lee Botts said she and her colleagues expected that the draft rule would be released yesterday. Botts, 80, made the nearly 3-hour trip to Indianapolis to attend the 50-minute meeting.

"It's a long trip. Next time, we'll ask for confirmation that we're really going to have something to talk about," she said.

The Indiana Department of Environmental Management has been working for months on the revised rule, which applies to water permit requests for new or increased pollutant discharges into waterways. * * *

Aside from Botts, four other activists who attended the meeting expressed disappointment that state officials only presented background on the rule and a timeline for their goal of getting the new one approved.

"All these people drove, in the snow, to get to this meeting because we thought there would be something important for us to discuss, and there wasn't," said Rae Schnapp, the Hoosier Environmental Council's water-policy specialist.

Schnapp questioned whether IDEM will be able to get the new rule in place by year's end.

"They said they were going to be aggressive, but they're already behind schedule," she said.

IDEM spokeswoman Amy Hartsock said the agency "did not promise a draft of the rule at this meeting" and that the agency will issue the draft when it is ready.

James Barnes, the former dean of Indiana University's School of Public and Environmental Affairs, released a report last December on his analysis of the regulatory process Indiana used to approve a new wastewater permit for BP's Whiting refinery.

He concluded that the permit -- which allows the refinery to increase its pollution discharges into Lake Michigan -- fully complied with federal and state laws, despite protests raised in other states that reached the floor of Congress.

His report blamed the uproar over the permit largely on the state's antidegradation rules, which he called inconsistent and incomplete. In particular, Barnes said Indiana currently has two sets of antidegradation rules for Great Lakes waters.

One of those are for high-value waters that are part of the Great Lakes system, while the second applies to higher-quality waterways.

Barnes found that the rules for the high-value waters require an analysis that looks at the steps that could be taken to minimize or prevent effects on water quality. But he found that the second set of regulations, the ones that applied in the case of BP's permit, has no such requirement.

That, Barnes concluded, made it difficult for activists and the public to determine if the pollution increases the permit would allow were truly necessary and that BP had examined all possible ways to cut the pollution discharges.

Erik Potter reports in the Gary Post-Tribune:
At issue is the state's "anti-degradation" law that aims to keep the quality of water in the state from deteriorating.

Environmental groups and industry disagree over what deterioration actually means, with one side saying it means any additional pollution and the other saying it means turning water suitable for fishing and swimming into water unsuitable for fishing and swimming.

Further complicating matters is an exception in the law for deterioration that results in social benefits -- typically economic expansion.

What constitutes social benefit, and whether that benefit has to be greater than the environmental cost, is another area of dispute.

The disagreement crystallized last summer when BP Whiting received a wastewater permit that allowed it to discharge more pollutants into Lake Michigan, but at levels deemed low enough to not be dangerous.

Under direction from Daniels to flesh out an agreed set of rules to administer the water quality laws, IDEM on Friday outlined a rigorous calendar of meetings over the next year.

However, area business and environmental groups are looking to capitalize on the one-on-one negotiations that led to the passage of the Great Lakes Compact this spring and continue to meet on their own to address this issue.

"Do we have to get bogged down with IDEM in order to move on?" said Lee Botts, a Gary environmental activist.

Kay Nelson, director of environmental affairs at the Northwest Indiana Forum, said she also liked the idea of continuing negotiations in the region. "Our goal at the Forum is to find out where we agree and disagree up there, not down here."

From the NWI Times:
In what they deem an "ambitious time line," Indiana environmental regulators say they hope to adopt a new rule protecting state waters from increased water pollution by the end of the year.

The Indiana Department of Environmental Management met with industry, environmental and municipal leaders Friday to discuss how to overhaul the state's antidegradation rule, which aims to ensure water quality.

IDEM has developed new rule language, which will be reviewed internally and later by work groups of community leaders, Martha Clark Mettler, deputy assistant commissioner of IDEM's office of water quality said. * * *

IDEM Commissioner Thomas Easterly admitted Friday that addressing antidegradation has been "troublesome" and time consuming for Indiana regulators.

"We need to come to a solution that is both effective and workable for all," Easterly said. "I would like to finish this rule before I’m not the commissioner, whenever that is."

Easterly is in his fourth year as IDEM Commissioner.

Posted by Marcia Oddi on Saturday, March 08, 2008
Posted to Environment

Ind. Decisions - "Decision to void ordinance could stop ethanol plant"

Anita Munson of the South Bend Tribune reports today in a story that begins:

Judge Michael Cook's ruling that Argos' rezoning ordinance is unconstitutional and void has many residents wondering if the decision is the death knell for a proposed ethanol plant.

The town had used the ordinance to change the zoning of two parcels of real estate from agricultural to heavy industrial to allow Indiana Renewable Fuels LLC to build on the southeast side of Argos.

Neighbors of the proposed plant formed a corporation and filed suit in Marshall Circuit Court in February last year.

The suit claims the Argos Plan Commission's actions in the rezoning were "wholly illegal, arbitrary, capricious, unreasonable, an abuse of discretion, erroneous ... contrary to state law, contrary to the Argos Land Use and Development Code, and contrary to provisions of the Indiana and United States Constitutions."

Cook, on his last day on the bench before retirement Feb. 29, issued a summary judgment in agreement with the petitioners, who include Don Mahoney, Carl E. Smith, Martha A. Smith, Timmy Allen Bailey, Peggy Lea Jones, John F. Richard and Amanda K. Richard.

Cook, in his 14-page summary judgment, said Argos "... wholly failed to comply with the Site Development Plan procedures in the LUDC (Land Use and Development Code) with regard to IRF's ethanol facility ..."

Cook cited in his findings of fact several flaws regarding the process that town officials and IRF followed to permit the rezoning. They include:

-That IRF's zoning application "lacked most of the detailed information" required by the LUDC.

-The LUDC requires a Technical Review Committee -- composed of seven individuals -- to review and approve the site development plans, but Argos did not have a duly appointed TRC. Instead, Ron Gifford, town attorney, and Pam Bishop, town clerk, met Nov. 28, 2006, with Glen Bode, IRF president, and another corporation official to conduct the technical review.

No minutes or agenda were taken or kept, Cook found, making that a private meeting. It was not until Dec. 6, 2006, that the town officially designated Gifford and Bishop as the town's TRC. The designation still did not comply with the LUDC's mandate of a seven-person TRC, and no public meeting was held, as required.

-Cook also found that the town did not issue proper notice to "all interested parties" of a public hearing held Jan. 8, 2007, and that the notices that were mailed out failed to say that the Argos Plan Commission would "review or hear information on a proposed written commitment or a Site Development Plan." The Plan Commission decided following the Jan. 8, 2007, hearing to recommend approval of the site development plan and rezoning.

Cook also noted that Argos officials conceded in their summary judgment brief and during oral arguments that the LUDC is flawed and that its rezoning procedures violate Indiana law, making the rezoning ordinance illegal.

Marshall County Circuit Court Judge Michael Cook's retirement plans are detailed in this Jan. 23, 2008 ILB entry.

Posted by Marcia Oddi on Saturday, March 08, 2008
Posted to Environment | Ind. Trial Ct. Decisions | Indiana economic development

Ind. Courts - Prosecutor teaches lessons about MySpace and Facebook [Updated]

Sophia Voravong of the Lafayette Journal & Courier has a very interesting feature today on Tippecanoe deputy prosecutor Chuck Hagen, who oversees juvenile cases. Some quotes:

"I wanted mine low-profile. I think that's really important."

That kind of foresight is being stressed by Charles Hagen, a Tippecanoe County deputy prosecutor who oversees juvenile cases. He has his own MySpace and Facebook accounts to monitor the activity of local teenagers, several of whom he has encountered in court.

Among his troubling finds are numerous references to drug and alcohol use, claims of gang affiliation and provocative photos of underdressed girls.

One MySpace page he shared with the Journal & Courier is of a Lafayette teenager -- claiming to be older -- who has several men in their mid- to late-20s commenting on her body.

Hagen, who knows the girl through a case in juvenile court, said she's 14. He shared it with her parents, who he said did not seem bothered.

During a recent sentencing hearing for a Lafayette teenager accused of robbery, Hagen presented the court with pictures of the boy throwing alleged gang signs, along with other images that he found online.

"A lot of these kids don't realize that what might be fine today can come back and get you later," Hagen said. "Once you put something up, it's out there for the world. Anyone can do anything they want with your information." * * *

Hagen is pushing parents in Tippecanoe County to be more wary. He encourages them to set up their own accounts to see what their children are doing online.

That's exactly what Tim Graham of Lafayette did last year. His daughter, 14-year-old Cheyenne Graham, is an eighth-grader at Southwestern Middle School.

He and his wife had Cheyenne add them as her friends so they can monitor her comments and friends.

"We were all teenagers once, and I know what I was like back then," Graham said. "My worst fear is that she'll find a boyfriend like me. ... Letting your child on the computer -- not knowing what they're doing -- is the same thing as leaving a boy and a girl in a room alone."

Graham said it was relatively easy for him to learn how to navigate the site.

For parents who are less savvy, Detective Cindy Marion of the West Lafayette Police Department encourages them to ask their children how to use the Internet.

Marion has participated in online predator stings with other law enforcement agencies in the community and keeps up to date with popular networking sites.

Like Hagen, she has seen teens sharing pictures of drugs and guns.

"Not letting them on the Internet at all isn't the way, because the Internet is a vital tool," Marion said. "There's a lot of good in it, but it's just like a city: There are some good neighborhoods, there are some bad neighborhoods. There are good people and bad people.

"Ask your child to sit down with you and show you around. You'll learn a lot from these kids."

[Updated 3/9/08] Today the Washington Post has an article by Lori Aratani headlined "When Mom or Dad Asks To Be a Facebook 'Friend'".

Posted by Marcia Oddi on Saturday, March 08, 2008
Posted to Indiana Courts

Friday, March 07, 2008

Ind. Decisions - Transfer list for week ending March 7, 2008

Here is the Indiana Supreme Court's transfer list for the week ending March 7, 2008. Be sure to view all 4 pages.

No transfers granted this week; one transfer "that was granted on 1/18/08, is now Denied." That would be Maymon v. State, see ILB details here.

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, March 07, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 6 today (and 17 NFP)

For publication opinions today (6):

In Tony A. Bell v. State of Indiana , a 13-page opinion, CJ Baker wrties:

Appellant-defendant Tony A. Bell appeals his convictions for three counts of Dealing in Cocaine, a class A felony, and Possession of Cocaine, a class D felony. Bell argues that his class A felony convictions should be reversed because the State failed to establish a sufficient chain of custody of the drug evidence supporting his convictions. Additionally, Bell contends that he proved the statutory defense that he was within 1,000 feet of a public park at the request of an agent of a law enforcement officer.

Finding that Bell established that he was within 1,000 feet of a public park at the request of an agent of a law enforcement officer and finding no other error, we affirm in part, reverse in part, and remand with instructions to (1) amend the abstract of judgment by changing Bell’s convictions on three counts of dealing in cocaine from class A felonies to class B felonies; and (2) sentence Bell to twenty years imprisonment for each of the three class B felony dealing in cocaine convictions and three years for the class D felony possession of cocaine conviction, to be served concurrently, aggregating to a total sentence of twenty years imprisonment.

In Northern Indiana Public Service Company v. United States Steel Corporation, a 27-page opinion, Judge Bailey writes:
Northern Indiana Public Service Company (“NIPSCO”) appeals the Indiana Utility Regulatory Commission’s (“IURC” or “Commission”) grant of United States Steel Corporation’s (“U.S. Steel”) Motion for Summary Judgment. We reverse and remand. * * *

We review de novo an agency’s grant of summary judgment when it is based entirely upon principles of contract interpretation. Our analysis of the parties’ arguments leads consistently to the same conclusion. Regardless of whether the Contract for Power’s pricing provisions were ambiguous and regardless of whether its integration clause was ambiguous, summary judgment should be entered for NIPSCO.

We reverse and remand for the IURC to enter summary judgment for NIPSCO and to calculate the amount U.S. Steel owes NIPSCO for application of the market based price adjustment factor to the Demand Charge, effective October 1, 2005.

In Christine R.Scheible v. Fred Jackson, Ronald Smith, and Ray M. Scheible, a 17-page opinion, including a 4-page dissent, Judge Bailey concludes:
Control, rather than title, is the critical consideration in determining whether the vendor in a land-sale contract owes a duty to third parties. Whether Jackson exercised the requisite degree of control over the Property is a question of fact. We cannot say as a matter of law that Jackson lacked a duty of care to Travis. Therefore, the trial court erred in granting Jackson’s Motion for Summary Judgment. We remand this matter to the trial court for further proceedings. Reversed and remanded.

VAIDIK, J., concurs.
BAKER, C.J., dissents with opinion. [which begins] I respectfully dissent. I do not believe that there is a genuine issue of material fact regarding Jackson’s control of the Property. Furthermore, I believe that the result reached by the majority is extraordinarily bad public policy. This decision, which holds that a person who sells a parcel of land pursuant to a contract that explicitly transfers possession of the Property to the buyer and instructs the buyer to treat the Property as his own is somehow still responsible for conditions on that Property, extends liability to an uncomfortably attenuated degree.

In Derrick C. Smith v. State of Indiana , a 15-page opinion, CJ Baker writes:
A person commits aggravated battery by knowingly or intentionally inflicting injury on a person that causes protracted loss or impairment of the function of a bodily member or organ.1 The case before us requires us to address as an issue of first impression whether a tooth is a “bodily member or organ” within the definition of this statute. Relying on caselaw from other jurisdictions interpreting similar aggravated battery statutes, we conclude that a tooth is a “bodily member or organ” within the definition of Indiana’s aggravated battery statute.
Russell N. Carey and Lisa Carey v. Susan J. Haddock - "Russell N. Carey and Lisa Carey (collectively, “the Careys”) have filed a petition for rehearing asking that we reconsider our holding that their appeal is moot because they have accepted Susan J. Haddock’s payment in satisfaction of the judgment. See Carey v. Haddock, 877 N.E.2d 842 (Ind. Ct. App. 2007). In particular, the Careys assert that the trial court’s docket entries showing that their trial counsel filed a release of judgment against Haddock and obtained Haddock’s payment are erroneous entries. We grant the Careys’ petition but deny their requested relief."

William C. Nash v. State of Indiana - "In sum, there is sufficient evidence to support Nash’s conviction for Battery by Body Waste, as a Class C felony. Nash’s argument that the trial court did not assign enough weight to his mental illness as a mitigating circumstance is not an issue available for appellate review. Affirmed."

NFP civil opinions today (4):

In Re the Guardianship of M.E.T., a Protected Person v. Yolanda Poett and Julie E. Krcelich (NFP) - "Here, it is undisputed that M.E.T. had been living in Alabama with her daughter for six months before the petition for co-guardianship was filed in Indiana. There is no evidence that she was actually present in Indiana when the petition for co-guardianship was filed. Without actually being present in Indiana, M.E.T. was not a person residing in Indiana according to the statute. Thus, the trial court did not have subject matter jurisdiction, and its order is void ab initio. Reversed."

Metropolitan School District of Wabash County, Indiana v. Metropolitan School District of Wabash County Education Assn. (NFP) - "Nothing in the Contract prohibited the School Corporation from transferring teachers without regard to seniority so long as no teacher lost or would lose employment. Accordingly, the Arbitrator’s construction of the Contract so as to find a violation by the School Corporation is not a reasonably possible one. The School Corporation has met its burden to show that the Arbitrator’s decision should be vacated. The School Corporation, rather than the Association, is entitled to summary judgment. Reversed."

Erie Insurance Exchange, as Subrogee of Charles and Marlene Haskett v. Tom King, et al (NFP) - "Although it may have been preferable to consolidate both flooding instances into one lawsuit, each flooding occurrence creates a separate cause of action. The evidence potentially supporting each episode is not identical. Each flooding transpired on a different date, in a different bathroom, and caused different damage, including the degree of damage, to the Haskett’s home. Furthermore, the proceedings in Lawsuit I only referenced the flooding on August 11, 2003, and the resulting damage. The matter as to liability from the flooding on June 29, 2004, could not have been determined in Lawsuit I because that separate cause of action and its supporting evidence had not been presented to the trial court. * * * We therefore conclude that the trial court erred in granting summary judgment to King. Reversed and remanded."

Janeen L. Mathes v. Joseph W. Mathes (NFP) - "Appellant-respondent Janeen L. Mathes appeals the trial court’s order dissolving the marriage of Janeen and appellee-petitioner Joseph W. Mathes. Specifically, Janeen argues that (1) the trial court erred when it placed a value of $15,000 on the personal property it awarded to her and (2) the trial court erred when it divided the marital assets and debts of the parties. We affirm in part, reverse in part, and remand with instructions included herein."

NFP criminal opinions today (13):

State of Indiana v. Christopher Smith (NFP) - "Appellant-plaintiff State of Indiana (the State) appeals the trial court’s grant of appellee-defendant Christopher Smith’s motion to dismiss pending criminal charges based on an alleged violation of the Interstate Agreement on Detainers Act (IAD). Specifically, the State argues that the trial court’s grant of the motion to dismiss was premature because Smith failed to comply with the provisions regarding his request for a final disposition of charges pursuant to the IAD. Concluding that the trial court erred in granting Smith’s motion to dismiss, we reverse."

State of Indiana v. John J. Murphy (NFP) - "In sum, the trial court erred in suppressing the evidence seized from the garage and residence at 1110 East Copperline Road. The State acted pursuant to a valid search warrant supported by probable cause when it seized evidence from the garage. And the State lawfully seized evidence from within the residence after having been granted consent to search the residence by its owner, Peerman. However, the State failed to satisfy its burden to prove that the evidence seized from the truck was in accordance with established local policy. As such, we affirm only that part of the trial court’s order."

Gordon Mack Elkins v. State of Indiana (NFP)

Diaunte E. Adams v. State of Indiana (NFP)

Howard Harris v. State of Indiana (NFP)

Timothy Lee Richards, Sr. v. State of Indiana (NFP)

Ronnie Q. Henderson v. State of Indiana (NFP)

Greg Watkins v. State of Indiana (NFP)

Shaun A. Criglear v. State of Indiana (NFP)

Scott McIntire v State of Indiana (NFP)

Bobby A. Lomax v. State of Indiana (NFP)

Adrian Howard v. State of Indiana (NFP)

Norman Logan v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, March 07, 2008
Posted to Ind. App.Ct. Decisions

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

In Banco del Atlantico v. Woods Industries (SD Ind., Judge McKinney), a 9-page opinion, Judge Evans concludes:

For these reasons, we see no basis on which to find that the district judge abused his discretion in dismissing the case as a sanction for the violation of clear and reasonable orders. Accordingly, the judgment of the district court is AFFIRMED.
Some quotes from the opinion:
Understandably unsatisfied with the deposition, defendants moved to compel further testimony. In an April 28, 2006, order, Magistrate Judge V. Sue Shields called the deposition a “fiasco.”
So, later, did Judge McKinney. Judge Evans writes:
The question before us on the plaintiffs’ appeal is whether Judge McKinney abused his discretion in putting an end to this case. Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997). We have cautioned that a sanction of dismissal is a last resort which can only be employed in rare cases. See Schilling v. Walworth County Park & Planning Comm., 805 F.2d 272 (7th Cir. 1986). It is a “draconian” remedy, Marrocco v. General Motors Corp., 966 F.2d 220, 223 (7th Cir. 1992), which should be applied only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing. Webber v. Eye Corp., 721 F.2d 1067 (7th Cir. 1983). That doesn’t mean, however, that it can never be used. Even Draco got it right every once in awhile, and today, when district courts have several hundred cases on their dockets, there are times when the “draconian” remedy is appropos. And that time was reached in this case.

On appeal, the plaintiffs argue, among other things, that “there was no finding or record of delay, contumacious conduct, willfulness, bad faith or fault . . . .” The argument is—if nothing else—audacious. There is, in fact, little else in the record.

Posted by Marcia Oddi on Friday, March 07, 2008
Posted to Ind. (7th Cir.) Decisions

Courts - 8-Year-Old Passes Brazil's Law School Entrance Test

Tales Azzoni of the AP reports:

An 8-year-old boy with dreams of becoming a judge has passed a law school entrance exam -- shocking Brazil's legal profession and prompting a federal investigation.

The Universidade Paulista, a multi-campus private university, issued a statement acknowledging that Joao Victor Portellinha de Oliveira had passed the entrance exam and that it initially enrolled him. But he was turned away from classes when he showed up on Thursday with his father.

The school said that the fifth grader has to graduate from high school before he can enter the university. * * *

The Brazilian Bar Association said the boy's achievement should be a warning about the low standards of some of the nation's law schools. * * *

The school earlier said the "student's performance, considering his age and level of education, was good, especially in the essay test, which revealed his good capacity to express himself and handle the language."

"My dream is to be a federal judge," the boy said, according to Globo TV's Web site. "So I decided to take the test to see how I would do ... It was easy. I studied a week before the test."

Posted by Marcia Oddi on Friday, March 07, 2008
Posted to Courts in general

Ind. Courts - More on: "Marion County's chief public defender stepping down"

Updating this ILB entry from Dec. 7, 2007. quoting a story from the Indianapolis Star which began:

Marion County Chief Public Defender David E. Cook will leave his post in February after 12 years in charge of the agency that represents indigent defendants in Marion Superior Court, he confirmed this morning.

Cook resigned this week, but he won't step down until Feb. 15 to give county leaders time to appoint a successor.

Jon Murray of the Star reports today:
The two candidates for Marion County's chief public defender both have experience defending death-penalty clients and extensive ties to the agency. Robert J. Hill Jr. and Eric K. Koselke will be the choices when the Public Defender Agency's nine-member board meets Wednesday to vote.

The decision will determine the first new leader in 13 years for an agency that provides criminal defense for indigent clients in 37,000 cases a year. The board released the candidates' names Thursday.

Hill, who stepped down from the board so he could apply for the job, is a former deputy chief public defender under departing Chief Public Defender David E. Cook.

Koselke also has worked for the agency. Before its creation in the early 1990s, he was the chief public defender in Marion County's municipal courts.

Cook's last day is March 14. Jimmie McMillian, the board's chairman, said it may consider appointing an interim leader because ratification by the City-County Council may take a month or longer. The position pays a $110,500 salary.

The pool began with 10 applicants. A third candidate, Mark E. Kamish, made the short list but withdrew his name, McMillian said.

Wednesday's meeting, at 11:45 a.m. in Room 260 of the City-County Building, will be open to the public, with short final interviews with Hill and Koselke before the vote.

Posted by Marcia Oddi on Friday, March 07, 2008
Posted to Indiana Courts

Ind. Courts - More on: "Lawyer guilty of attack on woman in wheelchair"

Updating this ILB entry from Jan. 27th, Bob Kasarda of the NWI Times reports today:

VALPARAISO | Former Hebron Town Council President Michael Haughee was sentenced Thursday to one year in jail after being found guilty of sexually assaulting a woman who uses a wheelchair.

But the 56-year-old suspended attorney was not taken into custody.

Haughee asked Porter Circuit Court Judge Mary Harper to delay the sentence until his appeal has been decided, which could be a year or more.

Harper agreed to consider the request and said she will decide by 10 a.m. Monday. Haughee is required to turn himself in at the jail by that time if the delay is not granted. * * *

Deputy Prosecutor Cheryl Polarek opposed the delayed sentence, saying Haughee had earlier involvement with police, including accusations 20 years ago of having inappropriate contact with another woman.

Four people testified on Haughee's behalf, including his son, Frank Haughee, who said his father taught him respect for all people.

Harper sentenced Haughee to one year in jail, which can be completed in half that time with good behavior. Upon his release, he is to spend a year on formal probation, register for 10 years as a sex offender and undergo HIV testing, sex offender treatment and a mental health evaluation.

Posted by Marcia Oddi on Friday, March 07, 2008
Posted to Indiana Courts

Ind. Courts - More on: Cookie scandal hits Allen County Clerk's office; becomes national story

Updating yesterday's ILB entry, an editorial today in the Fort Wayne Journal Gazette is headlined "Cookiegate a crummy deal." The editorial begins:

Citizens want elected officials to be above reproach and uphold the public’s trust. But even to a demanding public, the recent firing of court record clerks over a good-natured joke seems like overkill.

Perhaps Therese Brown, who as Allen County clerk has become the public face of the episode, had good cause to fire two employees in her office and give a written reprimand to a third after they accepted a bag of cookies from a resident. She alleges the employees were using their office for personal gain. But the employees say, and the evidence seems to back them up, that a joke and a misunderstanding were at the root of the incident, not an attempt to use their positions for personal gain.

Posted by Marcia Oddi on Friday, March 07, 2008
Posted to Indiana Courts

Ind. Gov't. - Bill to clarify circumstances for awarding education credits by DOC goes to Governor

Updating this ILB entry from Feb. 12th, Lesley Stedman Weidenbener of the Louisville Courier Journal reports today in a story that begins:

A bill championed by a Southern Indiana family that would clarify how education credits can be used to reduce an inmate's prison sentence is now one step from becoming law.

House Bill 1271, which also lengthens sentences for violent sexual predators, won final legislative approval yesterday when the House passed it 94-1. That sends it to Gov. Mitch Daniels to consider whether to sign it, veto it, or allow it to become law without his signature.

Daniels said he had not read the bill and will review it when it reaches his office.

Kathy Gatz of Jeffersonville, whose family publicly questioned whether inmates should get dual credits for the essentially equivalent achievements of earning a GED and a high school diploma, praised the bill's passage.

"We're pleasantly surprised with how quickly it moved through both the House and Senate," Gatz said.

The bill's author, Rep. Steve Stemler, D-Jeffersonville, said he also was pleased.

"I am optimistic that the governor will take expedient action in passing this legislation into law," he said.

Stemler introduced HB 1271 after prison officials erred in determining a release date for Paige Grable. She was sentenced to 2½ years for a 2006 drunken-driving crash that killed Kathy Gatz's son.

Grable earned both her diploma and a GED while in prison and initially received early release credit for both, despite a Department of Correction policy banning it.

State officials corrected the mistake after the Gatz family raised the issue, and Grable's release was delayed until last month.

The family also testified in favor of the bill, which expressly prohibits inmates from receiving credits for both accomplishments.

The bill was nearly tripped up in the House when Republicans offered an amendment that would have required all prison inmates to serve at least 85 percent of their sentences.

Currently prisoners receive one day of early release credit for each day of good behavior. That means the vast majority of inmates serve no more than half of their sentences. Education credits can further shorten those sentences.

The 85 percent provision -- which passed the House easily with bipartisan support -- would have cost the state hundreds of millions of dollars annually for operations and new prisons. House and Senate fiscal leaders said that was too much.

Posted by Marcia Oddi on Friday, March 07, 2008
Posted to Indiana Government

Ind. Courts - Glitch may keep Elkhart Superior Court No. 5 candidate off ballot

John Kline reports today in the Goshen News:

A glitch in the filing process may keep Middlebury attorney Fay Schwartz from getting her name on the ballot for the upcoming primary election.

Schwartz is one of six Republican candidates currently vying for the nomination of Judge of Elkhart Superior Court No. 5, a position currently held by retiring Judge James Rieckhoff.

Also vying for the nomination are attorneys Peter Todd, Bruce Wells and Charles Wicks, Magistrate Thomas Murto and former county commissioner Martin McCloskey.

According to Wendy Hudson, chief deputy clerk for Elkhart County, Schwartz filed paperwork correctly with Elkhart County, however a mix-up down at the state resulted in her not filing her papers properly with the Indiana Election Commission in time for the filing deadline.

“She had to file a statement of economic interest with the State Court Administration, and she had to file her declaration with the Election Commission,” Hudson said. “She filed them both on time, but she didn’t send a copy of her statement of economic interest with her declaration to the Election Commission.

“She only sent it to the State Court Administration, and apparently it had to be filed at both places, so although she got it in on time, they are trying to decide whether or not to accept it,” she said.

Schwartz is not giving up on her chance to run, however, and plans to appeal to general council at the Election Commission in Indianapolis in order to get herself on the ballot.

“I will be down in Indianapolis next Wednesday to talk to them. They have their meeting on (Wednesday),” Schwartz said. “They have an agenda, and I have sent down a request to be put on the agenda.

“I certainly want to use every option I have to get on the ballot. I think that’s important,” she said.

Posted by Marcia Oddi on Friday, March 07, 2008
Posted to Indiana Courts

Thursday, March 06, 2008

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

For publication opinions today (2):

In Jerry and Becky French v. State Farm Fire & Casualty Co. and Jane Hodson, a 16-page opinion, Judge Najam writes:

Jerry and Becky French (the “Frenches”) appeal from the trial court’s order granting summary judgment in favor of Jane Hodson on the Frenches’ claim of negligent advice and procurement of insurance. The Frenches raise three issues for our review, which we restate as whether the trial court erred in granting summary judgment in favor of Hodson. We affirm. * * *

Although we have serious misgivings as to whether Hodson exercised reasonable skill, care, and diligence in the procurement of more than $200,000 in homeowner’s coverage for a $76,000 manufactured home, we need not address that issue. Assuming Hodson acted negligently, the Frenches have not suffered an injury proximately caused by her purported negligence. * * * Here, if Hodson was negligent, it was because she sold a policy to the Frenches with limits beyond that which they could reasonably expect to recover, thereby rendering the excess coverage illusory. Accordingly, the Frenches were damaged by having to pay a higher premium than they would have paid had Hodson procured the proper policy with the appropriate limits. The measure of the Frenches’ damages is the difference between those two premiums.

Further, it cannot be said that the Frenches’ costs in rebuilding their home is the appropriate measure of damages here. Before the Frenches began construction on their new home, State Farm informed them that it would only pay the replacement cost of the Manufactured Home, or about $80,000. Nonetheless, the Frenches chose to proceed with the construction of their new home, incurring approximately $185,000 in costs. Thus, the Frenches did not rely on Hodson’s conduct when, knowing that there was a coverage dispute, they chose to proceed with construction of the stick-built home. * * *

In sum, again, there are a number of reasons to question whether Hodson took the steps necessary to satisfy her duty to exercise reasonable skill, care, and diligence in the procurement of the Policy for the Frenches. But regardless of the alleged negligence, it cannot be said that such negligence was the proximate cause of an injury to the Frenches. And the Frenches did not rely on Hodson when they decided to proceed with construction of the stick-built home. We express no opinion on the ultimate resolution of the Frenches’ claims against State Farm for breach of contract. Rather, we hold only that the trial court did not err in granting summary judgment to Hodson.

In Larry Keesling, Vivian Keesling and Heritage Land Co. v. T.E.K. Partners, LLC., et al., a 9-page opinion, Judge Najam writes:
Larry Keesling and Vivian Keesling (“the Keeslings”) and Heritage Land Company (“Heritage Land”) appeal from the trial court’s in rem judgment in favor of T.E.K. Partners, L.L.C. (“T.E.K.”) on T.E.K.’s complaint on a 1999 installment promissory note (the “original note”) and to foreclose mortgages against the Keeslings and Heritage Land. The Keeslings and Heritage Land present three issues for our review:
1. Whether the trial court erred when it entered a final in rem judgment in the amount of $181,331.78.
2. Whether the trial court erred when it did not release a thirty-six-acre tract as collateral after the Keeslings and Heritage Land were discharged as sureties from their personal liability on the original note.
3. Whether the trial court erred when it ordered that the thirty-six-acre tract be sold first to satisfy the judgment.
We affirm in part, reverse in part, and remand with instructions.
NFP civil opinions today (2):

In the Matter of H.P., a Child Alleged to be in Need of Services, Nathanial R. & Desiree P. v. Franklin Co. Office of Family and Children (NFP) - "H.P. was adjudged to be a child in need of services by the Franklin Circuit Court. H.P.’s parents appeal the adjudication arguing that it is not supported by sufficient evidence. Concluding that the evidence is insufficient to support the CHINS adjudication, we reverse and remand for proceedings consistent with this opinion."

Invol. Term. of Parent-Child Rel. of B.S.; Dawn Lewis and Joe Smart v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. (NFP) - "Concluding that the evidence was sufficient, that termination does not violate the parents’ constitutional rights, and that termination was in accordance with the purpose of Title 31, we affirm."

NFP criminal opinions today (0):

Posted by Marcia Oddi on Thursday, March 06, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Cookie scandal hits Allen County Clerk's office; becomes national story

"National Public Radio's Morning Edition picks up Allen County court cookie story" is the headline to this item today in Mitch Harper's blog, Fort Wayne Observed.

Posted by Marcia Oddi on Thursday, March 06, 2008
Posted to Indiana Courts

Ind. Decisions - More on: Court has denied transfer in Home Place annexation case

Updating yesterday's entry, a story by Francesca Jarosz of the Indianapolis Star reports:

Lawyers for Home Place residents say the Indiana Supreme Court's denying to review their fight against annexation by Carmel mean the city has won half the battle.

The residents hope to win the war by returning the case to Hamilton Superior Court 3 to seek a ruling by Judge William Hughes on whether the community is self-sufficient. * * *

The Supreme Court notified Carmel and Home Place representatives this week that it would not review the case.

But Stephen Buschmann, Home Place's lawyer, said his side has another shot.

While Carmel's ability to afford to annex Home Place has been upheld, he said the city cannot annex Home Place if the area can prove several criteria, including its ability to get services such as fire and police without the city, and that the annexation would have a negative financial impact.

In 1999, the state legislature changed the law, allowing remonstrators to stop annexation by proving their ability to survive without city services. Even if a city's fiscal plan is upheld, it cannot annex an area involuntarily for four years if remonstrators successfully make that case.

Judge Hughes will make those determinations in Home Place using facts presented at the original trial in 2005.

Buschmann said he's optimistic about the outcome based on Hughes' evaluation of those criteria in Carmel's efforts to annex 8.3 square miles in southwest Clay Township.

See also this story today by John Tuohy and Francesca Jarosz, headed "Fishers, Home Place likely heading to court: Failure of anti-annexation legislation could lead to drawn-out battle."

Posted by Marcia Oddi on Thursday, March 06, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on challenges to St. Joe County's merit selection of judges

Updating this ILB entry from Feb. 28th, much of which dealt with efforts in the past two legislative sessions to change the way judges are selected in St. Joseph County, Pablo Ros has a story today in the South Bend Tribune headed "Judges defend selection by merit: They must be free to make unpopular calls, local judge says." Some quotes:

SOUTH BEND -- In an effort to educate people on an issue he feels strongly about, a St. Joseph Superior Court judge last week tacked a couple of news stories to the bulletin board showing daily court schedules at the courthouse.

Visitors glancing at the calendar of morning hearings may now also read highlighted portions of two media articles that warn against the pitfalls of an elected judiciary. One is an opinion piece by former U.S. Supreme Court Justice Sandra Day O'Connor published in Parade Magazine; the other is a column by New York Times journalist Adam Liptak.

The appearance of the postings on the first floor of the courthouse coincides with the failure last week of an amendment to a bill in the Indiana General Assembly that would have required St. Joseph County's eight Superior Court judges to stand for election. The amendment, supported by county Prosecutor Michael Dvorak, was a source of ill feeling among the judges, who were not consulted on the issue.

Judge Michael P. Scopelitis said Tuesday he posted the articles last week in a modest attempt to inform the public of the complexity of the issue. He also said he favors the county's system of merit selection because it allows judges to be fair and impartial.

"I did it because people in this county have judges who are merit selected," Scopelitis said, "... and merit selection is under attack."

Scopelitis said an elected judiciary may risk losing sight of its constitutional role, strictly to apply the law to the facts of a case to protect the individual against the will of the majority.

"It seems that if you don't like a judge's decision, the first visceral reaction is, 'Let's get rid of the judges,' instead of looking into whether or not the decision is the correct one or was made with the discretion allowed by the law," he said. * * *

Asked if he had been prompted to post those articles in the courthouse because he felt local media coverage had failed to present both sides of the issue, Scopelitis said that he had not.

But in reply to the same question, Chief Judge John M. Marnocha said "because the media deals with whatever issue is hot at the moment," it may fail to give the public "an adequate picture of what's going on."

Marnocha agreed with Scopelitis in opposing an elected judiciary for St. Joseph County.

Though supporters of the amendment that failed last week talked about judges' lack of accountability to the public, Scopelitis said judges are accountable to the public because they are appointed by the governor, who is elected, and because they must be periodically retained by vote.

Scopelitis also said the public may voice its complaints of judges to a commission on judicial qualifications for St. Joseph Superior Court or to the Indiana Supreme Court disciplinary commission.

The Feb. 24th Parade Magazine article by Justice O'Connor is available here; a Jan. 29th NYT column by Adam Liptak headed "Looking Anew at Campaign Cash and Elected Judges" is available here.

Posted by Marcia Oddi on Thursday, March 06, 2008
Posted to Indiana Courts

Environment - New Energy Corp. apparently protests South Bend's pretreatment permit requirements

Jamie Loo reports today in the South Bend Tribune:

New Energy Corp. has asked a judge for relief from a new, more stringent, city water discharge permit for its ethanol plant.

The company claims the city issued the new permit, which it considers inconsistent and arbitrary, in January without a proper hearing. New Energy asks St. Joseph Circuit Judge Michael Gotsch for a declaratory judgment to find the city's hearing process insufficient and void the permit.

New Energy and the city were negotiating an administrative order last summer, which led to an order New Energy claims it tried to appeal. An administrative order is a pretreatment program that asks an industry to treat a pollutant before discharging it into public waters.

The administrative order requires New Energy to pre-treat its wastewater, and to install meters and other equipment to test its wastewater discharge. It also asks New Energy to submit to a hydrogen sulfide management plan to lessen the alleged impact on the city's pipes downstream and the odors that come from it. Hydrogen sulfide is one of the causes of sewer odor.

The suit filed by New Energy says that after contacting the city to review and appeal the order in early September, the company received no other contact from the city until the water discharge permit was issued. The permit contains all of the elements New Energy objected to in the administrative order.

The organic waste from New Energy discharged into the sewers has been considered one of the causes of the noxious odors.

Posted by Marcia Oddi on Thursday, March 06, 2008
Posted to Environment

Wednesday, March 05, 2008

Ind. Courts - "Tinder joins the big leagues with seat on 7th Circuit"

Maria Kantzavelos has this article in the March 5th Chicago Lawyer. A few quotes from the lengthy article:

After 20 years on the federal bench in Indianapolis, in December [John Daniel] Tinder went from being the next in line for the position of chief judge of the district to becoming the “tail of the dog” as the most junior of the judges on the 7th U.S. Circuit Court of Appeals.

“It’s an exciting time for me, personally, to go through this,” Tinder said recently from a vacant office in the Dirksen Federal Courthouse. “Here I am at 57, approaching 58. Starting a whole new phase of a career is really energizing. It’s something that’s hard to stop smiling about.

“There’s no particular magic to it, but you can imagine after doing something for 20 years and being very comfortable in doing that and enjoying that, and to walk away from that and do something that might even be more interesting and more enjoyable — it’s a great opportunity.” * * *

Lawyers familiar with his work describe an expansive body of written opinions and scholarship that is meticulous and thorough. They said practitioners who appear before an appellate panel that includes Tinder can expect respectful, but pertinent questions from him.

“He’s not going to bully lawyers at oral arguments,” said Kathleen DeLaney, managing partner of the Indianapolis litigation firm DeLaney & DeLaney who tried three cases before Tinder in district court.

She offered this advice to practitioners appearing before him: “Don’t run from his questions.”

“If he asks a question, he wants to know the answer,” DeLaney said. “He won’t ask questions for the purpose of interrupting a lawyer’s flow or sending him off on a red herring. He will be asking questions designed to illicit [ILB - sic] information he thinks is important for the ultimate decision.”

Posted by Marcia Oddi on Wednesday, March 05, 2008
Posted to Indiana Courts

Ind. Decisions - 7th Circuit issues one Indiana decision

In United Rental Technologies v. Indiana Constructors (SD Ind., Judge Barker), a 14-page opinion, Judge Posner writes:

Anyone who travels on the interstate system in northern states understands the force of the dictum that on the interstate highways in those states there are only two seasons: winter and construction.

Road work in Indiana is done almost entirely by contractors who belong to a trade association called Indiana Constructors, which has for many years negotiated collective bargaining agreements for its members with the Laborers International Union (actually with its locals, but we can ignore that detail). In 2004, the collective bargaining agreement then in force was modified to forbid the association’s members to subcontract work at a construction site to a firm that had not signed a collective bargaining agreement with the Laborers Union. The union had pushed for the modification because it wanted as much work at construction sites as possible to be done by its members. This was a blow to United Rentals because it had a collective bargaining agreement with another union (also it didn’t want to bargain with the Laborers Union when that agreement expired); and so it filed a charge with the National Labor Relations Board that Indiana Constructors and the Laborers Union were violating the National Labor Relations Act’s “hot cargo” provision. NLRA § 8(e), 29 U.S.C. § 158(e). The provision forbids a union and employer to agree that the employer will refuse to deal with another employer (in this case a subcontractor), as Indiana Constructors has agreed with the Laborers Union to do with respect to United Rentals and any other subcontractor that does not have a collective bargaining agreement with that union.

But there is an exception to the hot cargo provision for “an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work,” id., including highways. * * * On the basis of the exception, the Board’s General Counsel declined to file a complaint against Indiana Constructors or the Laborers Union.

The company then filed this suit, which charges the contractors’ association and the union with conspiring to exclude United Rentals from the traffic control market in Indiana, in violation of section 1 of the Sherman Act, 15 U.S.C. § 1. * * *

The district court granted summary judgment in favor of the defendants on all counts, and United Rentals appeals. So we have an antitrust claim and a hot cargo claim to consider. We’ll start with the latter because the former is partly derivative from it. * * *

Given the absence of traditional antitrust concerns, a decision in United Rentals’ favor would be tantamount to holding that all hot cargo clauses in the construction industry violate the Sherman Act. A type of agreement affirmatively sanctioned by Congress cannot be deemed a per se violation of the Sherman Act. * * * To rule otherwise would be to make the Sherman Act, enacted in 1890, repeal a statutory provision enacted in 1959, reversing the arrow of time. AFFIRMED.

Posted by Marcia Oddi on Wednesday, March 05, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Gov. - Gov. Daniels issues statement about the death of attorney and State Senator David Ford

From the release:

“I knew Dave Ford as a fellow student early in life, as a legislator the last three years, and as a kind and thoughtful friend in between. I haven’t met a more insightful or harder working member of the General Assembly. I’m not sure a person like Dave Ford can be replaced.”

Governor Daniels will order flags at the State House to be flown at half-staff through the day of funeral services. Flags in Senate District 19 are to be flown at half-staff on the day of the funeral.

Posted by Marcia Oddi on Wednesday, March 05, 2008
Posted to Indiana Government

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

For publication opinions today (2):

In Bryan Pierce v. Walter Martin , a 10-page opinion, Judge Sharpnack writes:

Bryan Pierce appeals the denial of his petition for writ of habeas corpus filed against Walter Martin, Superintendent of the Miami Correctional Facility (“Superintendent”). Pierce raises four issues, which we consolidate and restate as whether the post-conviction court’s summary disposition of Pierce’s petition for writ of habeas corpus is clearly erroneous. We reverse and remand. * * *

The pleadings here do not show that the Superintendent is entitled to judgment as a matter of law. Even though Pierce may have only a remote chance of establishing his claim, we conclude that his petition should not have been disposed of by way of summary disposition. Consequently, we reverse the post-conviction court’s grant of summary disposition and remand for further proceedings.

In Leonard Titone v. State of Indiana , a 6-page opinion, Judge Vaidik writes:
Leonard Titone appeals his conviction for attempted obstruction of justice contending that the evidence is insufficient to support it. We conclude that Titone has waived this issue for review because he did not request a transcript of all the evidence from his entire jury trial. Given the nature of a sufficiency of the evidence challenge, Indiana Appellate Rule 9(F)(4) requires a defendant to request all the evidence from the entire trial. We therefore dismiss this appeal. * * *

It would be dangerous indeed to allow a defendant challenging the sufficiency of the evidence to select the portions of the trial testimony to be transcribed. As such, we hold that when a defendant challenges the sufficiency of the evidence, the defendant must request the transcript of all the evidence in the Notice of Appeal. And despite Titone’s suggestion on appeal, the State does not have an obligation to present the rest of the evidence. It is true that Appellate Rule 9(G) provides a mechanism whereby any party to an appeal may file a request for additional portions of the transcript. However, Appellate Rule 9(G) speaks in terms of “may,” while Appellate Rule 9(F)(4) speaks in terms of “must.” Titone has not met his obligation of presenting a sufficient record for us to fairly decide his sufficiency of the evidence challenge. Because Titone has waived this issue for review, we dismiss his appeal. Dismissed.

NFP civil opinions today (0):

NFP criminal opinions today (6):

Steven Harrington Embry v. State of Indiana (NFP)

Kyle J. Lewis v. State of Indiana (NFP)

Troy Earlywine v. State of Indiana (NFP)

D.B. v. State of Indiana (NFP)

David A. Palen v. State of Indiana (NFP)

Neftalie Alva v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 05, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court has denied transfer in Home Place annexation case

The Indianapolis Star is reporting:

An Indiana Supreme Court decision essentially gives Carmel the ability to annex the Home Place community.

The high court rejected 5-0 a request by Home Place residents to review the Indiana Court of Appeals' October ruling allowing Carmel to annex the 1.6-square-mile area of homes and businesses just north of Indianapolis.

Representatives from both sides received word Tuesday.

The ILB has not received notice of the transfer denial, but a check of the Clerk's docket shows that by a 5-0 order dated 2/28/08, the Supreme Court denied transfer in the case of CITY OF CARMEL,IN -v- CERTAIN HOMEPLACE ANNEXATION TERRITORY (29 A 04 - 0510 - CV - 00578).

This order was not listed on the Feb. 29, 2008 transfer list, posted here.

The ILB summary of the Oct. 17, 2007 COA opinion in the case is available here.

Posted by Marcia Oddi on Wednesday, March 05, 2008
Posted to Indiana Transfer Lists

Law - "Legal Aid Society of Evansville, and other members of the association offered their services as busboys, servers and dishwashers"

Kate Braser of the Evansville C&P reports:

A group of about 30 attorneys participated in the event, which kicked off the Legal Aid Society's yearlong 50th anniversary celebration.

The Legal Aid Society is a not-for-profit agency funded by the city of Evansville, Vanderburgh County, the state of Indiana and United Way of Southwestern Indiana. It was created in 1958 and serves low-income residents in civil cases.

On Tuesday, attorneys from the group paid for and prepared a lunch that included barbecued chicken, tossed salad, mashed potatoes, green beans, carrots, corn and rolls for at least 250 people. Four large cakes decorated with the seals of the city, county, United Way and Evansville Bar Association were served for dessert. * * *

The Rev. Mike Ballard, executive director of The Potters Wheel, said although community groups regularly donate money or food for the meals, Tuesday's lunch marked the first time a community group actually cooked the meal.

Posted by Marcia Oddi on Wednesday, March 05, 2008
Posted to General Law Related

Environment - "Indiana-made trailers in health tests"

"Trailers flow from Indiana to Gulf Coast" is the heading of a story quoted in this Sept. 28, 2005 ILB entry. See additional entries here.

Today Ted Evanoff of the Indianapolis Star reports:

A pair of congressional committees have opened inquiries into the high formaldehyde levels measured inside some of the travel trailers and mobile homes made expressly for more than 100,000 Louisiana and Mississippi residents displaced by the 2005 storm.

Indiana trailer makers, including Coachmen, Gulf Stream and Pilgrim, have until Friday afternoon to produce documents ordered by the House Oversight and Government Procurement Committee. The committee, chaired by Rep. Henry Waxman, D-Calif., is looking into the Federal Emergency Management Agency's response to reports that formaldehyde, a chemical used in wood adhesives and found in nature, was sickening trailer residents.

FEMA, a federal agency that provides disaster assistance, ordered 56,000 trailers and turned them over primarily to Katrina victims in 2005 and 2006 as temporary housing until their homes were restored.

On Monday, the Centers for Disease Control and Prevention identified eight manufacturers at the center of the formaldehyde controversy. Six have extensive operations in Indiana, where about 23,000 workers form the center of the nation's manufactured housing industry.

Posted by Marcia Oddi on Wednesday, March 05, 2008
Posted to Environment

Courts - More on: "Supreme Court Considers Protecting Drug Makers From Lawsuits"

Updating this ILB entry from Feb. 26 about the case of Warner-Lambert v. Kent, Linda Greenhouse reported yesterday, March 4, in the NY Times:

WASHINGTON — A 4-to-4 vote on Monday left the Supreme Court unable to decide a pharmaceutical pre-emption case that was argued a week ago.

The tie vote, with Chief Justice John G. Roberts Jr. not participating, will permit a lawsuit to proceed against the Warner-Lambert Company, the maker of a diabetes drug, Rezulin. The plaintiffs are 27 diabetes patients from Michigan who suffered liver damage while taking the drug. Rezulin was approved by the Food and Drug Administration in 1997 and withdrawn from the market three years later at the agency’s request.

A tie vote at the Supreme Court automatically affirms the lower court’s judgment. In this case, the federal appeals court in New York had rejected the company’s argument that the reasoning of a seven-year-old Supreme Court precedent barred individual damage suits that are based on the claim that a drug manufacturer obtained F.D.A. approval through fraud. Affirmance by a tie vote resolves only the particular dispute, without setting a precedent for other cases. * * *

This case, Warner-Lambert Co. v. Kent, presented a narrow slice of the broad pre-emption issue that the court will take up in its next term. In that new case, Wyeth v. Levine, the question is whether the Food and Drug Administration’s approval of a drug’s label precludes individual damage suits based on the claim that the label failed to include sufficient information or adequate warnings.

In essence, if the answer is yes, most individual lawsuits for damages caused by approved drugs would be pre-empted. Last month, in Riegel v. Medtronic Inc., the court interpreted a federal law, the Medical Device Amendments, as barring most individual lawsuits against manufacturers of approved medical devices.

The Warner-Lambert case, by contrast, specifically questioned the status of lawsuits alleging that F.D.A. approval was obtained by withholding or misrepresenting crucial information — in other words, by fraud. A 2001 Supreme Court decision, Buckman v. Plaintiffs’ Legal Committee, barred general claims of fraud.

But the lawsuit by the Rezulin patients was brought under the specific provisions of a Michigan law that, while prohibiting product liability suits against makers of approved drugs, specifically permits claims that the manufacturer withheld or misrepresented information that was important to the approval process. The question was whether the existence of the state law placed the lawsuit on a different footing for the purpose of pre-emption analysis.

Posted by Marcia Oddi on Wednesday, March 05, 2008
Posted to Courts in general

Tuesday, March 04, 2008

Ind. Courts - Federal Judge Theresa Lazar Springmann is the 2008 recipient of the Nancy A. Maloley Outstanding Public Servant Award

From a press release issued by the Indiana Republican Party:

Federal Judge Theresa Lazar Springmann is the 2008 recipient of the Nancy A. Maloley Outstanding Public Servant Award presented each year by the Richard G. Lugar Excellence in Public Service Series. * * *

Theresa Lazar Springmann serves as Judge, United States District Court for the Northern District of Indiana. Judge Springmann was born in Gary, Indiana, as the third of four children and the granddaughter of immigrants from Ireland and Russia. In 1977, she graduated summa cum laude from Indiana University Northwest and graduated from the University of Notre Dame Law School in 1980.

Following graduation from law school, Judge Springmann served as a law clerk to Judge James T. Moody, U.S. District Court for the Northern District of Indiana (1980-1983). She practiced law as an associate with Spangler, Jennings, Spangler & Dougherty in Merrillville from 1984-1992 and was a partner in that firm from 1993-1995.

In recognition of her legal expertise and experience, Judge Springmann was appointed as the United States Magistrate Judge, United States District Court for the Northern District of Indiana from 1995-2003. Distinguished in her role as Magistrate, she was confirmed as the United States District Court Judge of the District Court for the Northern District of Indiana (Fort Wayne Division) in 2003, the position in which she currently serves.

Posted by Marcia Oddi on Tuesday, March 04, 2008
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decides Illnois case re litigious softball parents

Read about it here in Robert Loblaw's Decision of the Day.

Posted by Marcia Oddi on Tuesday, March 04, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Adams Circuit Court Judge Fred A. Schurger suffers heart attack

From the Decatur Daily Democrat:

Adams Circuit Court Judge Fred A. Schurger, who suffered a "moderate" heart attack last week and had two stents placed in arteries over the weekend at Lutheran Hospital in Fort Wayne, is recovering well and may come home today for further recuperation.

Schurger, 61, was diagnosed last Friday as having had a heart attack a few days before without realizing it, his court administrator, Vickie Hammond, said on Monday.

She said the stents inserted in the judge's arteries corrected two major blockages: one of 85 percent and the other of 95 percent.

Local attorneys are taking turns serving as judge while Schurger is recovering.

Posted by Marcia Oddi on Tuesday, March 04, 2008
Posted to Indiana Courts

Ind. Decisions - Order vacating prior order granting transfer

Per this Feb. 25th ILB entry (3rd item), last week, on Feb. 27th, the Supreme Court held oral arguments in the case of Darrell Maymon v. State of Indiana. One may listen to the oral arguments here.

Today the Court has posted this order, which is actually dated Feb. 29th:

By order dated January 18, 2008, the Court granted a petition seeking transfer of jurisdiction over this appeal from the Court of Appeals to this Court. After further review, including oral argument, the Court has determined that transfer was improvidently granted. Accordingly, the order granting transfer is VACATED and transfer is DENIED. The Court of Appeals opinion reported as Mayman v. State, 875 N.E.2d 375 (Ind. Ct. App. 2007), is no longer vacated under Appellate Rule 58(A) and is REINSTATED as Court of Appeals precedent.

Pursuant to Appellate Rule 58(B), this appeal is at an end. The Court DIRECTS the Clerk to certify this order as final and to send copies of this order to the Hon. Thomas Newman, Jr., Judge, Madison Superior Court; Hon. John G. Baker, Chief Judge, Indiana Court of Appeals; Steve Lancaster, Court of Appeals Administrator; and all counsel of record.

Posted by Marcia Oddi on Tuesday, March 04, 2008
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

For publication opinions today (2):

In William E. Wright v. State of Indiana , a 13-page opinion, Judge Riley writes:

Appellant-Petitioner, William E. Wright (Wright), appeals the post-conviction court’s denial of his petition for post-conviction relief. We reverse and remand.

Wright raises two issues, one of which we find dispositive: Whether Wright’s trial and appellate counsel were ineffective for failing to challenge the enhancement of Wright’s sentence due to his status as a repeat sexual offender as defined by Ind. Code § 35-50-2-14. * * *

MAY, J., concurs.
KIRSCH, J., concurs with separate opinion. Stare decisis requires that we follow our Supreme Court’s decisions in Crawford v. State, 755 N.E.2d 565 (Ind. 2001) and Ellis v. State, 736 N.E.2d 731 (Ind. 2000).[2] If attempted murder is not a crime of violence, notwithstanding the fact that a victim is shot in the throat (Crawford) or in the face or hand (Ellis), I suppose attempted rape is not a sex offense. Accordingly, I concur, albeit reluctantly.
_____
[2] Following our Supreme Court’s decision in Ellis, the General Assembly amended Ind. Code § 35-50-1-2 to include attempted murder in the list of crimes of violence. Crawford, however, which relied on Ellis, was decided after the amending legislation.

In Village Commons, LLC. et al v. Marion County Prosecutors Office [MCPO], a 17-page opinion, Judge Riley writes:
Issues. Landlord raises three issues for our review, which we restate as:
(1) Whether the exclusive-remedy provision of the lease between Landlord and the MCPO barred the MCPO from asserting that it was evicted by acts or omissions of the Landlord;
(2) Whether the trial court’s findings that the MCPO was both actually evicted and constructively evicted were clearly erroneous; and
(3) Whether a provision limiting the MCPO’s time to sue barred the MCPO’s defenses and counterclaims. * * *

For the foregoing reasons we conclude that (1) the exclusive-remedy provision of the Lease did not bar the MCPO from asserting a wrongful eviction defense; (2) the trial court’s findings that the MCPO had been both constructively evicted and actually evicted were not clearly erroneous; and (3) the provision of the Lease defining the MCPO’s time to sue did not bar the MCPO from asserting wrongful eviction as a defense or bringing counterclaims when the Landlord initiated the action. Affirmed.

NFP civil opinions today (6):

Daniel V. Briles v. Maurice D. Cooper and Musselman Hotels, LLC (NFP) - "[W]e must conclude that there remain genuine issues of material fact relevant to a determination of respondeat superior that preclude summary judgment in Musselman’s favor. We therefore reverse and remand for further proceedings consistent with this opinion."

Timothy and Gloria Briesacher v. Specialized Restoration and Construction, Inc., et al (NFP)

Michael E. Wetzel v. Judith Ann Ferguson (NFP) - "Wetzel’s brief fails to present cogent arguments with supporting legal authority to establish trial court error. Therefore, Wetzel has failed to carry his appellate burden."

Charles Michael Myer v. Dee Dee (Myer) Franklin (NFP) - "Issue. Whether the trial court erred by ordering Father to pay for college expenses incurred by the parties’ daughter, Emily Myer."

Patricia and Ronald Skibins v. Joshua Cummings and Tammy Harlan (NFP) - "Patricia Skibins and Ronald Skibins, as co-personal representatives of the Estate of Kenneth Skibins (“Skibins”) (collectively, “the Estate”), appeal the trial court’s entry of summary judgment for Joshua Cummings on the Estate’s wrongful death claim and for Tammy Harlan on the Estate’s negligent entrustment claim. We reverse and remand.

"Issue. Does a genuine issue of material fact exist regarding whether Skibins was driving Harlan’s truck at the time of the accident that claimed his life?"

Toby J. Seiler v. Mark Dillman, et al (NFP) - "Seiler purports to raise several issues on appeal. However, because he has failed to provide any cogent argument, as required by Indiana Appellate Rule 46(A)(8)(a), he has waived all issues on appeal."

NFP criminal opinions today (5):

Michael Bell v.State of Indiana (NFP)

Donald E. Jones, Jr. v. State of Indiana (NFP)

Elliott Cunningham v. State of Indiana (NFP)

David L. Martin v. State of Indiana (NFP)

William Cass v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 04, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending February 29, 2008

Here is the Indiana Supreme Court's transfer list for the week ending February 29, 2008. Be sure to view all 3 pages.

Nearing four years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on Tuesday, March 04, 2008
Posted to Indiana Transfer Lists

Monday, March 03, 2008

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

In USA v. Martinez (SD Ind., Judge Barker), a 10-page opinion, Judge Rovner writes:
The jury was not asked to make a specific finding as to drug quantity but instead was told, apparently without objection from the defendants, that in order to convict on either count it had to find that the government proved the amount alleged in the indictment. Later at sentencing the district court concluded that the precise quantity equaled 1,407 kilograms, and used that figure in applying the sentencing guidelines. The court sentenced Martinez to 126 months’ imprisonment, but assessed Cardenaz three extra offense levels as a manager or supervisor of the conspiracy and sentenced him to 210 months. On appeal Martinez and Cardenaz contend that their convictions must be set aside because no rational jury could have found beyond a reasonable doubt that the charged offenses involved at least 1,000 kilograms of marijuana. Both appellants also contend that the jury, rather than the district court, should have decided the drug quantity used in applying the sentencing guidelines, and that the district court overstated the relevant amount. Finally, Cardenaz objects to the upward adjustment in offense level for his leadership role. For the reasons that follow, we affirm the convictions and sentences of both appellants.

Posted by Marcia Oddi on Monday, March 03, 2008
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (2):

In Jenean Roland and Carl J. Roland v. Kristen Shelton, a 14-page opinion, the inssue was whether the federal law pre-emplted state law claims re seatbelt design. Sr. Judge Hoffman writes:

In support of their view that FMVSS 208 is a minimum safety standard that may be augmented by state common law, the Rolands cite a 1980 letter sent to General Motors and other automobile manufacturers by Joan Claybrook, then administrator of NHTSA, in which she encouraged manufacturers to install lap/shoulder belts and air bags and described federal safety standards as “minimum standards.” Appellants’ App. at 311, 585. We conclude that a letter from a single NHTSA administrator, written nine years before the version of FMVSS 208 at issue here, is not indicative of NHTSA’s regulatory scheme as that scheme is set forth in Geier and various regulations.

We hold that the Rolands’ common law tort action is pre-empted on the narrow grounds that it conflicts with the deliberate and comprehensive regulatory scheme set forth in FMVSS 208. We do not join the above-cited courts in finding pre-emption based upon the broader grounds that any regulation which affords a choice to a manufacturer pre-empts the state action.

In Tom Shetler, Sr. and Suzan Nicholson v. Linda K. Durham, a 6-page opinion, the issue, as stated by Sr. Judge Hoffman, was "Whether the trial court erred as a matter of law by interpreting Ind. Code § 5-4-1-9 to allow an elected official to secure her bond after the date she was scheduled to take office.." The holding:
[W]e hold that the trial court was correct in determining that Ind. Code § 5-4-1-9 does not require Durham, the choice of the people for Knight Township Trustee, to forfeit her office absent evidence of fault on her part. Furthermore, because the Board does not argue or the record indicate the existence of such fault, the trial court’s determination must stand. Affirmed.

NFP civil opinions today (3):

Cheryl Koopmans-Clark v. Kenneth J. Clark (NFP) - "According to the unambiguous language of the prenuptial agreement, Wife agreed to sign a waiver of her rights to Husband’s retirement and pension plans, and—given the dissolution proceedings—the time has now come for her to do so. Accordingly, the trial court properly determined that the plans are Husband’s individual property and ordered Wife to execute the necessary paperwork waiving her rights in them. We affirm."

Janet Wilke v. Erie Insurance, Fink & Co., Inc., and Last Chance Wrecker & Sales (NFP) - "Wilke is correct that Fink’s motion to set aside the default judgment did not specifically mention a meritorious defense. However, at the time he filed the motion to set aside, Fink had already filed an answer to Wilke’s complaint, which denied liability. Therefore, the trial court had before it filings which advised it that Fink had a meritorious defense."

In the Matter of R.W. and M.W.; and D.W. v. Lake County Dept. of Child Services (NFP) - "On appeal, Mother claims she was denied her constitutional right to due process when the termination hearing was held in her absence and without the benefit of counsel. Mother further asserts that the juvenile court’s judgment terminating her parental rights to her children was not supported by clear and convincing evidence. Concluding that Mother’s constitutional right to due process was not violated and that the juvenile court’s judgment was supported by clear and convincing evidence, we affirm."

NFP criminal opinions today (3):

Douglas Pirtle v. State of Indiana (NFP)

Ryan J. Howell v. State of Indiana (NFP)

Aaron Williams v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 03, 2008
Posted to Ind. App.Ct. Decisions

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 Monday, March 3rd:

2:00 PM - Jeffrey Kochis vs. City of Hammond, et al - When the newly-elected mayor of the City of Hammond appointed a new Fire Chief and Deputy Fire Chief, the former Deputy Fire Chief was transferred to the Assistant Fire Chief/Drillmaster position which had been held by Kochis. Kochis was then demoted to his previous position of Captain. Kochis' lawsuit argues the demotion cannot stand because the City of Hammond failed to provide him the due process required by statute. 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:

None scheduled.

Posted by Marcia Oddi on Monday, March 03, 2008
Posted to Upcoming Oral Arguments