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Wednesday, April 30, 2008

Ind. Gov't. - More on: Wondering if you can vote in the Democratic primary?

Updating this ILB entry from March 27th, West Coast law professor Rick Hasen of the Election Law Blog has a piece today in Slate that begins:

Set aside, for a moment, the Supreme Court's decision Monday upholding Indiana's voter-identification law. It's another little-noticed election law in the state that could come into play during next week's Clinton-Obama contest for the Democratic presidential nomination. Republicans and independents can vote in Indiana's Democratic primary. But this quirky state law gives voters the right to challenge other voters at the polls for not being sufficiently loyal to the political party in whose primary they are voting.

Posted by Marcia Oddi on Wednesday, April 30, 2008
Posted to Indiana Government

Courts - "Supreme Court is rejecting broad legal challenges"

A must read analysis today of several recent Supreme Court rulings, by David G. Savage of the Los Angeles Times, deals with facial challenges and narrowly drafted opinions. A few quotes:

The Supreme Court's recent rulings upholding Indiana's voter ID law and Kentucky's use of lethal injections reflect a subtle but profoundly important shift in how the justices decide constitutional questions.

In the past, the court was willing to strike down laws before they went into effect out of concern that the rights of some people might be violated. For example, the justices used that approach to void laws that regulated abortion or restricted pornography on the Internet.

But since Chief Justice John G. Roberts Jr. joined the court three years ago, that approach has been cast aside. Broad and sweeping attacks on state laws have met with defeat.

Instead, Roberts and his colleagues have been sending a new, sterner message to legal advocates: Produce evidence that a law has actually violated someone's rights, and name names if you can. Only then might the court rule that a law is unconstitutional for those in the same situation.

The high court's newfound skepticism toward broad legal challenges was on display Monday when the justices, in a 6-3 decision, upheld Indiana's law requiring voters to show photo identification at their polling places.

As with recent rulings rejecting broad challenges to laws on "partial-birth" abortions and lethal injections to carry out the death penalty, the court ruled that the plaintiffs had failed to prove their cases. In Indiana, for example, the challengers did not point to a single voter who had been deterred or discouraged from casting a ballot because of the need to obtain a photo identification from the state. * * *

"On the basis of the record that has been made in this litigation, we cannot conclude that the [Indiana] statute imposes excessively burdensome requirements on any class of voters," Stevens wrote. * * *

Election law experts were quick to say it was a mistake to have rushed the voter ID case to the Supreme Court before there was any evidence of its actual effects.

Ohio State University law professor Daniel P. Tokaji said the Indiana ruling carried "an important lesson for voting rights lawyers who lose in lower courts: Think long and hard before seeking Supreme Court review," he wrote on an election law blog. "It's fair to point out that plaintiffs' lawyers put together a pretty weak case."

After losing before a judge in Indiana and the U.S. Court of Appeals in Chicago, they took their case to the Supreme Court, and finished 0 for 3.

Posted by Marcia Oddi on Wednesday, April 30, 2008
Posted to Courts in general

Ind. Decisions - Supreme Court declares search illegal in decision today

In Sergio Campos v. State of Indiana, a 13-page, 5-0 opinion, Justice Boehm writes:

This case involves a traffic stop resulting in a vehicle search that uncovered cocaine. We hold that there was no probable cause to conduct the search, so consent was required. Because the officer communicated to the occupants of the car that consent to search was “necessary,” the ensuing purported consent was invalid. The search therefore violated both the Indiana and Fed-eral Constitutions, and the seized cocaine may not be admitted in evidence.

A second issue arises because the two occupants of the car were seated in a police cruiser while the search proceeded, and they made incriminating statements which were recorded on the cruiser’s video-tape of the stop. The recorded statements are admissible in evidence. Although the statements were an indirect product of an unlawful search, they were freely given and not the result of unlawful interrogation.

Posted by Marcia Oddi on Wednesday, April 30, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 21 NFP), including an appeal lost in the Clerk's office until last month [UPDATED]

For publication opinions today (3):

In Cory Pierce, Judith McIntosh, Thomas Ferrara, Judy Willis, et al v. State of Indiana Dept. of Correction, et al , a 28-page opinion, Judge Sharpnack writes:

Cory Pierce, Judith McIntosh, Thomas Ferrara, Judy Willis, Linda McHargue, and all other institutional teachers at a juvenile correctional facility who are not certified for teaching special education (the “Teachers”) appeal the trial court’s denial of their motion for judgment on the record. The Teachers raise one issue, which we revise and restate as, whether the trial court erred by affirming the State Employees’ Appeals Commission’s (“SEAC”) decision that the Indiana Department of Correction (“DOC”) could require all juvenile correctional facility teachers to obtain special education licenses. On cross-appeal, the DOC, et al., argue that the trial court improperly ordered the DOC to comply with the SEAC’s recommendations. We affirm in part and reverse in part. * * *

In summary, we conclude that the administrative law judge and the SEAC did not exercise jurisdiction over the issues the recommendations address. Any “recommendation” made by the SEAC did not involve a specific case and therefore does not constitute a mandatory recommendation. Thus, the trial court improperly ordered the DOC to comply with the SEAC’s recommendations.

In City of Clinton, Indiana v. Todd Goldner, a 15-page opinion, Judge Sharpnack writes:
The City of Clinton appeals the trial court’s grant of summary judgment to Todd Goldner. The City raises three issues, which we revise and restate as: I. Whether the trial court erred by granting Goldner’s motion for summary judgment; and II. Whether the trial court abused its discretion by awarding Goldner liquidated damages and attorney fees pursuant to the Wage Payment Statute. We affirm in part, reverse in part, and remand. * * *

Here, the designated evidence reveals that the Mayor told Goldner that his request to return to work would be granted as soon as work became available. In effect, the Mayor suspended him for more than five days.3 Ind. Code § 36-8-3-4 grants the Board, not the Mayor, the power to suspend Goldner. See Town of Highland v. Powell, 168 Ind. App. 123, 127-128, 341 N.E.2d 804, 807-808 (1976) (holding that police officer was discharged in violation Ind. Code § 18-1-11-3, a predecessor to Ind. Code § 36-8-3-4). Thus, we conclude that the trial court did not err by granting Goldner’s motion for summary judgment and by denying the City’s motion for summary judgment. * * *

Here, Goldner did not render labor or service for the period between October 24, 2005, and April 12, 2006. Thus, we conclude that the Wage Payment Statute is not applicable. * * * Thus, we conclude that the trial court abused its discretion by awarding Goldner liquidated damages and attorney fees. * * *

For the foregoing reasons, we affirm the trial court’s grant of Goldner’s motion for partial summary judgment, reverse the trial court’s award of liquidated damages and attorney fees, and remand for proceedings consistent with this opinion. Affirmed in part, reversed in part, and remanded.

In Jamie Hieston v. Gregory Hendricks, et al, a 14-page opinion, Judge Vaidik writes:
Brown v. Brown, 849 N.E.2d 610 (Ind. 2006), established a bright-line test for determining when Social Security disability payments should be credited toward a child support arrearage. Brown determined that a disabled parent is entitled to credit against the parent’s child support obligation for Social Security benefits paid to a child effective as to the date the parent files a petition to modify a support order. Accordingly, we find that Mother cannot receive credit for the lump sum payments of retroactive Social Security disability paid to her children for arrearages accumulated before she filed a petition to modify her child support. This is so even though the trial court and the Title IV-D Prosecutor were aware that she had filed a Social Security disability claim nearly two years before she filed her petition to modify support.

Further, Brown dictates that any prospective Social Security disability payments that exceed the modified child support amount are to be considered as a gratuity to the children and shall not be applied as a credit toward any arrearages. As such, the trial court erred in crediting those prospective payments toward the arrearage. We, therefore, affirm in part, reverse in part, and remand.
----------------
[1] As we have pointed out in Lake County Board of Elections & Registration v. Copeland, 880 N.E.2d 1288, 1290-91 (Ind. Ct. App. 2008), reh’g denied, and Gilbert v. State, 874 N.E.2d 1015, 1015 n.1 (Ind. Ct. App. 2007), trans. denied, we have recently become aware of some difficulties in receiving the prompt transmission of fully-briefed appeals to our court. Indeed, briefing was complete in the present case on July 31, 2007, when Mother filed her Reply Brief, but the case was not transferred to our court until March 18, 2008—a delay of over seven 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.

NOTE that this case was lost in the Clerk's office until last month. And although the Court urges attorneys to check the online docket to make sure their briefed cases have been submitted to the judges, the Clerk has inexplicably been removing entire categories of appeals, such as juvenile appeals, completely from the online docket.

For example, here is an opinion issued last Friday, April 25th, in the case of In The Matter of B.F. and T.F., Children in Need of Services, Audrey Faver v. Marion County Department of Child Services, and Child Advocates, Inc. . The docket number is 49A05-0709-JV-515. The ILB just looked up that case in the online Clerk's docket. It does not exist in the docket.

In other words, anyone looking to see if the case had been appealed would not find it in the docket; the first notice of the appeal would have been the issuance of the COA's opinion. And no attorney in the case would have been able to check the online docket, as the COA appeals has been suggesting, because there is no docket at all for the case.

For background, start with this ILB entry from April 3rd.

[UPDATED] Here is a case that the ILB had not caught before, an April 10th NFP opinion in the case of Term. of Parental Rights of A.B., Violet Tunstall v. Dearborn County Div. of Child Services. The Court included the same footnote, ending with: "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." So the ILB just checked the docket for the docket number 15A01-0612-JV-540. There is NO online docket for this case!

NFP civil opinions today (7):

Candice Lloyd v. Terry Lloyd (NFP) - "Candice Lloyd appeals from the trial court’s order dissolving the marriage between her and Terry Lloyd, dividing their marital property, and denying her request for attorney’s fees. Candice raises three issues, which we restate as: 1) whether the trial court abused its discretion in awarding Terry more than half of the marital estate; 2) whether the trial court’s valuation of Terry’s pension is clearly erroneous; and 3) whether the trial court abused its discretion in denying Candice’s request for attorney’s fees. Concluding that the trial court’s finding regarding the value of Terry’s pension is clearly erroneous, we reverse and remand. However, we affirm the trial court in all other respects."

Donald Smith v. Beth (Smith) Dial (NFP) - "The trial court concluded that Father’s current child support obligation is offset by the Social Security disability payments currently received by Mother, but that Father was not entitled to credit against his support arrearage for the Social Security disability payment. The court also concluded that parties never agreed that Father’s child support obligation should be permanently modified to $40 per week. Father appeals and argues that the parties agreed to modification of child support in 2004, and therefore, he is entitled to credit against his support arrearage for the 2006 Social Security disability payment. We affirm."

Keith Myers v. Wesley C. Leedy (NFP) - "Myers raises one issue, which we restate as whether the trial court’s conclusion that Leedy’s interest in the property as a tenant survived the forfeiture of his landlord’s land sale contract is clearly erroneous. We reverse and remand."

Regina C. Kerber and Dennis L. Guthrie v. Don C. Guthrie (NFP) - "Concluding that the trial court could not order reformation when it was not requested by the parties but that the trial court’s findings and conclusions support the imposition of a constructive trust as sought in Dennis and Regina’s complaint, we reverse and remand."

Timothy A Thomas v. City of Hammond (NFP) - "Timothy A. Thomas appeals the termination of his employment as a member of the Hammond Police Department by the City of Hammond Board of Public Works and Safety (“the Board”). We affirm."

Janet H. Devittorio v. Joseph M. Devittorio (NFP) - "The trial court’s findings and conclusions in favor of Joseph on the issues of modification of the property equalization payment and mortgage/alimony payments is supported by the evidence. The trial court did not err."

Invol. Term. of Parent-Child Rel. of D.D. and Rhonda D. v. Marion Co. Dept. of Family & Children and Child Advocates (NFP) - "Rhonda D. (“Mother”) appeals the termination of her parental rights to her son, D.D. As the juvenile court’s judgment is supported by clear and convincing evidence, we affirm."

NFP criminal opinions today (14):

Michael A. Allen v. State of Indiana (NFP)

Otis Freshwater v. State of Indiana (NFP)

Fernando R. Ramirez v. State of Indiana (NFP)

Craig Reveter v. State of Indiana (NFP)

Nathanial Dodson v. State of Indiana (NFP)

Phillip Collins v. State of Indiana (NFP)

Leo Dent v. State of Indiana (NFP)

Christopher Gibbs v. State of Indiana (NFP)

Robert Karr v. State of Indiana (NFP)

Kathy Jo Ward v. State of Indiana (NFP)

Steven Winners v. State of Indiana (NFP)

Montaz Lewis v. State of Indiana (NFP)

Ronald Adamson v. State of Indiana (NFP)

Michael L Schidler v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 30, 2008
Posted to Ind. App.Ct. Decisions

Environment - "CAFOs rule Randolph commissioner race"

Randolph County has been the site of many CAFO battles, including an "intensive agricultural district " for Randolph County that would occupy 75.88 % of the county, and a moratorium on CAFOs. See ILB entries from Jan. 8th and Feb. 9th. Today Joy Leiker of the Muncie Star-Press, in writing about the upcoming contests for county council and board of commissioners, reports that:

The regulation of confined animal feeding operations (CAFOs) in Randolph County remains the biggest and most emotional issue in the county. After five years of study and discussion by the planning commission and a number of spin-off committees, county commissioners in January rejected an ordinance that would have created two agricultural districts in the county and limited CAFOs to an intensive district.

Posted by Marcia Oddi on Wednesday, April 30, 2008
Posted to Environment | Indiana Government

Law - Interesting juxtaposition of legal views this week

Earlier this week the ILB pointed to Justice Scalia's 60 Minutes interview. After reading Jon Murray's story in the Indianapolis Star this morning headed "Brizzi aims to expand fetal homicide laws: Deaths of unborn twins lead prosecutor to seek language that includes any child in the womb," I Iooked back at the Scalia transcript to locate this quote:

"What is the connection between your Catholicism, your Jesuit education, and your judicial philosophy?" Stahl asks.

"It has nothing to do with how I decide cases," Scalia replies. "My job is to interpret the Constitution accurately. And indeed, there are anti-abortion people who think that the constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that's still in the womb the way you treat other human beings. I think that's wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons. You don't count pregnant women twice."

Posted by Marcia Oddi on Wednesday, April 30, 2008
Posted to General Law Related | Indiana Law

Ind. Law - Well-known Merrillville attorney killed in car crash

From the Chicago Sun-Times:

CROWN POINT. A woman and three men -- including a well-known lawyer -- were killed Tuesday night in a three-vehicle crash in Crown Point, Ind. * * *

Garry Weiss, 53, of the 1700 block of Beachview Court in Crown Point, was dead on the scene with multiple blunt force trauma injuries, according to the spokesman, who said Weiss was driving the car.

Weiss was a well-known lawyer who recently defended Gary firefighter Carlton Davis Jr., who was convicted Tuesday of running a dogfighting operation out of his home. He was one of three full-time attorneys at the Law Offices of Garry A. Weiss P.C., in Merrillville, Ind.

The Gary Post-Tribune today has a report by Andy Grimm on yesterday's dogfighting verdict. It begins:
Animal rights activists Tuesday morning were applauding the conviction of Gary firefighter Carlton Davis Jr. on charges he trained fighting dogs and promoted dog fights.

"When I heard about it I cried," said Betty Clayton, director of the Humane Society of Northwest Indiana, who attended parts of Davis' six-day trial.

Posted by Marcia Oddi on Wednesday, April 30, 2008
Posted to Indiana Law

Ind. Law - Is ACLU-Indiana on a losing streak?

Ken Kusmer of the AP uses the ACLU-Indiana loss Tuesday before the SCOTUS in the voter ID case to explore the question -- is the local ACLU on a losing streak? Some quotes:

The U.S. Supreme Court ruling that upheld the state's voter-ID law marked the latest in a series of high-profile setbacks for the American Civil Liberties Union of Indiana, but observers say that the trend speaks mostly to the conservative bent of the federal judiciary.
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Monday's 6-3 ruling, in which the court said states can require voters to produce photo IDs came on the heels of failed ACLU-Indiana challenges this month of Indiana's "In God We Trust" license plates and of a Bureau of Motor Vehicles policy to revoke driver's licenses if information doesn't match Social Security records.

It also followed a 7th U.S. Circuit Court of Appeals ruling in October tossing out an ACLU-brought lawsuit challenging sectarian prayer in the Indiana House because a group of taxpayers who sued over the practice did not have legal standing to do so.

Whether one supports the mission of the ACLU or opposes it, experts said, the losing streak underscores the conservative shift of the federal courts, especially since the confirmations of Chief Justice John Roberts and Associate Justice Samuel Alito more than two years ago.

"There is a losing streak of sorts in some of these high-profile cases," said Daniel Conkle, a First Amendment and constitutional law expert at Indiana University School of Law-Bloomington. However, that doesn't diminish the ACLU's role, he said.

"A group like the ACLU plays an important function in society in bringing cases that might be controversial," he said.

What does Kevin Falk have to say? Kusmer's story continues:
Ken Falk, ACLU-Indiana's legal director, rejected the notion that he was on a losing streak. He noted he and his two colleagues at ACLU-Indiana win many cases that go unnoticed by the media.

For instance, Falk said a case brought by inmates over conditions at the Elkhart County Jail resulted in the construction of a new $97.3 million lockup there in a case resolved earlier this month. Also, Franklin Community High School cleared a student's record and withdrew threats to punish him for refusing to stand during the Pledge of Allegiance after the ACLU threatened a lawsuit.

The very fact that the ACLU wins some of those cases underscores an important quality about U.S. law.

"We do nothing but take umbrage at what the government does," Falk said. "The fact that we are as successful as we are speaks to the strength of the American legal system."

He was philosophical about Monday's ruling. It was clearly a loss for the ACLU, he said, but the court left open the possibility it will reconsider such laws if attorneys can show they place an unreasonable burden on voters. "The law that's been established allows for future challenges. I think everybody would agree with that," Falk said.

More from the story:
Sheila Kennedy was ACLU-Indiana's executive director from 1992 to 1998 before becoming an assistant professor of law and public policy at IU's School of Public and Environmental Affairs in Indianapolis. She noted that in the House prayer case, Falk won in U.S. District Court before the appeals court ruled that the group of taxpayers he represented did not have the legal standing to sue the government.

"And that's scary: There is an entire category of plaintiffs that are not going to get their day in court," said Kennedy, a former Republican candidate for Congress. "This is a Supreme Court that favors government over individuals, and I find that very troubling."

When it comes to ACLU fundraising, Kennedy said, donors to the nonprofit pay little attention to big-case losses because they support the broader mission of the group to challenge government intrusions on individual rights.

Federal courts are less protective of civil rights than in years past, but civil-liberties groups still need to litigate good-faith claims to test laws, said Ivan Bodensteiner, a constitutional law expert at the Valparaiso University School of Law. If lawyers want only to win cases, they won't bring many.

Posted by Marcia Oddi on Wednesday, April 30, 2008
Posted to Indiana Law

Ind. Law - More on: Sommer Barnard may merge with Cincinnati firm

Updating this ILB entry from yesterday, Alexander Coolidge of the Cincinnati Enquirer reports today:

In its largest acquisition ever, downtown Cincinnati law firm Taft Stettinius & Hollister will acquire Indianapolis-based law firm Sommer Barnard.

The deal will add more than 100 attorneys to Taft's roster for a total of about 320 in nine offices across Ohio, Kentucky and Indiana as well as in China as of next month.

Financial terms were not disclosed. The merger will vault the regional practice to the nation's 125th-largest firm, up from 200th. The deal is expected to be final today.

"Greater scale enables us to do greater things," said Thomas Terp, Taft's managing partner. "This deal provides our clients a bigger and better toolkit."

Terp noted that both firms have strong corporate practices, but added that Sommer will provide Taft with attorneys specializing in insurance regulation, white-collar criminal defense and internal investigations.

He said Taft will provide Sommer clients with deeper labor law, tax, municipal finance and intellectual property expertise. No jobs will be eliminated, both sides said.

Though neither firm publishes a list of regular clients, the acquisition adds medical device giant Cook Group of Bloomington, Ind.; broadcaster Emmis Communications, and private-equity firm Hammond Kennedy Whitney & Co. to Taft's other high-profile client list that includes U.S. Bank, AK Steel, Children's Hospital and the Bengals.

Sommer's managing partner, Roberts Hicks, said law firms are under pressure to bulk up as corporate clients go multinational and their legal needs become more complex. * * *

Hicks will become partner-in-charge of Taft's Indianapolis office, which will become Taft's second-largest with 105 attorneys, compared with the Cincinnati office that has almost 130.

The new deal, which was negotiated over two years, easily dwarfs past Taft acquisitions.

Posted by Marcia Oddi on Wednesday, April 30, 2008
Posted to Indiana Law

Tuesday, April 29, 2008

Ind. Gov't. - "Advocacy groups say Indiana's law, regulations are among top 6 in nation"

The Indianapolis Star has a story today by David Crary of the AP, along with Tim Evans of the Star, which begins:

NEW YORK -- Indiana was cited among national leaders for its policies and laws regarding the release of information about deadly and life-threatening child abuse cases, according to a new report today by two child advocacy groups.

Indiana was among six states to receive a grade of A or A minus in the report issued by First Star, a national nonprofit that advocates for abused children, and the University of San Diego School of Law's Children's Advocacy Institute.

"The reason Indiana did so well is because they have a state law that is easy to access and, most importantly, makes the release of information mandatory," said Amy Harfeld, First Star's executive director and a co-author of the report.

Harfeld said Indiana got the A minus because the state law on what should be released is "fairly vague."

The report, "State Secrecy and Child Deaths in the United States," a report by the Children's Advocacy Institute at the University of San Diego and First Star, is available here.

[Possibly more later]

Posted by Marcia Oddi on Tuesday, April 29, 2008
Posted to Indiana Courts | Indiana Government | Indiana Law

Ind. Decisions - Court of Appeals issues 6 today (and 5 NFP)

For publication opinions today (6):

In General Casualty Insurance Co. v. Diana Bright, a 5-page opinion, Judge Sharpnack writes:

General Casualty Insurance Company (“General Casualty”) appeals the trial court’s grant of Diana Bright’s motion to dismiss. General Casualty raises one issue, which we revise and restate as whether the trial court erred when it dismissed General Casualty’s complaint. We reverse and remand. * * *

We hold that the clause providing that a suit be brought within one year after the date of the loss unambiguously refers only to suits against General Casualty, as its heading indicates, and not to General Casualty’s claim against Bright.

In Fifth Third Bank v. PNC Bank, Indiana, Inc., John O. Sturdy, Jr., Diana K. Sturdy, Sturdy Construction, John W. Waggoner, Young, Lind, Entres & Kraft Title Co. LLC. , a 7-page opinion, Judge Bradford concludes:
Fifth Third contends that the trial court abused its discretion in that its order did not punish PNC, the disobedient party. We agree with Fifth Third. Both the wording of Trial Rule 37 and our jurisprudence indicate that the sanctions to be imposed pursuant to a violation of a discovery order should be to the detriment of the offending party, and we see none to PNC here.1 Although there was some benefit conferred on YLEK, an order issued for the purpose of benefiting the offended party does not serve any of the purposes for Trial Rule 37 that we have recognized unless it also punishes the offending party.2 Here, due to the relationship between the parties, the trial court’s order has benefited YLEK and harmed Fifth Third, without punishing PNC in the least. In the end, we fail to see how an order that does not punish PNC would aid in ensuring compliance with future discovery orders or prevent PNC from profiting from its intransigence. We therefore conclude that the trial court abused its discretion in crafting an order that failed to punish PNC and reverse its dismissal of YLEK from the case. On remand, if the trial court concludes that sanctions are still justified, it is instructed to impose sanctions in a manner consistent with this opinion and Trial Rule 37 that serves to punish PNC for its failure to comply with discovery orders.
In In the Matter of the Adoption of L.M.R., Ricky Rybolt and Margaret Rybolt v. Bobbie Sue Brooks, a 14-page opinion, Judge Riley writes:
Appellants-Petitioners and Respondents, Margaret (Grandmother) and Ricky Rybolt (Grandfather) (collectively, the Grandparents), appeal the trial court’s Order denying their Petition for Adoption of L.M.R. in favor of Appellee-Respondent and Petitioner, Bobbie Sue Brooks (Brooks). We affirm.
Joyce Hawkins v. State of Indiana - "The trial court did not abuse its discretion by allowing Sergeant Kelly to testify regarding his opinion of how Tim was shot and a crime concealed. The trial court properly admitted Joyce’s confession, prison phone calls, and prison letters. The trial court did not err in excluding the other conversations on the CD. Additionally, the evidence was sufficient to support Joyce’s conviction for murder. Affirmed."

Gary D. Beer v. State of Indiana - "For the foregoing reasons, we affirm Beer’s convictions and sentence for three counts of dealing in cocaine as class A felonies, unlawful possession of a firearm by a serious violent offender, dealing in a narcotic drug with intent to deliver, and maintaining a common nuisance as a class D felony. Affirmed."

In Leslie G. Miller v. State of Indiana, a 17-page opinion, Judge Riley concludes:

Based on the foregoing, we conclude that the evidence is sufficient to support Miller’s conviction for child molesting as a Class A felony; that the trial court did not violate Miller’s Blakely rights in sentencing him; that Miller’s sentence is not inappropriate; and that the trial court erred in failing to inquire into Miller’s ability to pay before making the payment of $10,770.00 to the Jennings County Prisoner Reimbursement Fund a condition of Miller’s probation. Therefore, we remand this cause to the trial court to either make a proper inquiry into Miller’s ability to pay or to remove the reimbursement order as a condition of Miller’s probation.
NFP civil opinions today (2):

Thomas Pottschmidt v. GDI Construction Corp. (NFP) - "Appellant/Plaintiff/Cross-Appellee Thomas Pottschmidt appeals from the trial court’s order granting Appellee/Defendant/Cross-Appellant GDI Construction’s (“GDI”) motion for summary judgment. Specifically, Pottschmidt contends that issues of material fact remain and thus the granting of GDI’s motion for summary judgment was inappropriate. Pottschmidt also contends that, as a matter of law, an oral employment contract cannot be altered by a subsequent offer of employment letter. On cross-appeal, GDI challenges whether the trial court improperly dismissed its request for attorney’s fees and costs incurred in defending Pottschmidt’s claims. We affirm."

Commitment of H.H. v. The Health and Hospital Corp. of Marion County, d/b/a Wishard Health Services, et al (NFP) - "H.H. appeals an order granting the petition, filed by the Health and Hospital Corporation of Marion County, d/b/a Wishard Health Services/Midtown Community Mental Health Center (“Midtown”),1 for his involuntary regular commitment. H.H. asserts that there was insufficient evidence to establish that he was dangerous to others. We affirm."

NFP criminal opinions today (3):

Dean Maust v. State of Indiana (NFP)

Kelli Plump v. State of Indiana (NFP)

Bertha Bedwell v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 29, 2008
Posted to Ind. App.Ct. Decisions

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

In Gerald C. Ellis v. United Parcel (SD Ind., Judge Young), a 14-page opinion, Judge Evans writes:

This case centers around United Parcel Service’s nonfraternization policy, which forbids a manager from having a romantic relationship with any hourly employee, even an employee the manager does not supervise. The purpose of this policy, according to UPS, is to prevent favoritism and the perception of favoritism. The policy extends to workers outside of a manager’s supervisory authority because UPS says it frequently transfers managers and a manager could end up supervising any hourly employee. Unsurprisingly, this policy does not stop Cupid’s arrow from striking at UPS. As the discovery taken in this case reveals, intracompany dating is prevalent, although employees often take precautions to keep their relationships secret. Gerald Ellis was one such employee, but, unfortunately for him, he got caught. Ellis, who is an African-American, sued UPS claiming it fired him because of his race and because he is married to a white woman, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and 42 U.S.C. § 1981. The district court granted summary judgment for UPS, and Ellis appeals.

[Judge Evans, who concludes that UPS was entitled to summary judgment on all counts, then writes:]

In closing, we emphasize that our decision today should not be construed as an endorsement of the UPS nonfraternization policy. When a company like UPS runs expensive ads that ask “What can Brown do for you?” it might be wise for it to ask if this policy is really worth all of the fuss this case has created. As we observed in Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1353 (7th Cir. 1995):

As the work force grows and people spend more of their time at work, the workplace inevitably becomes fertile ground for the dating and mating game. It is certainly not unusual, and it may even be desirable, for love to bloom in the workplace. Contiguity can lead to sexual interest, which can lead to soft music, candlelight dinners, serious romance, and marriage, or any stops along the way.
By all accounts, Ellis was a good employee. He started with UPS as a driver right out of high school in 1979 and worked his way up to a managerial position. After 21 years with the company, he met a woman, apparently fell in love, and, after a 4-year relationship, got engaged. A year later he got married. That’s a fairly nice story, and so is the fact that Ellis and his wife were smooching at a summer concert several months after their wedding. Heck, some marriages today don’t even last that long. Although UPS, for the reasons we have stated, comes out on top in this case, love and marriage are the losers. Something just doesn’t seem quite right about that. The judgment of the district court is AFFIRMED.

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

Ind. Decisions - Supreme Court rules re duty of broker

In Tonda Beth Nichols v. Rex David Minnick & R. David Minnick, Inc., d/b/a Commercial Properties, an 8-page, 5-0 decision, Justice Boehm writes:

We hold that a broker who breaches his fiduciary duty to disclose material information to his client loses his right to receive a commission for his services. * * *

The trial court’s order is reversed and the case is remanded with instructions to enter judgment ordering Minnick to assign to Nichols the note representing his commission and to disgorge to Nichols any payments received on that note, with interest on those payments at the statutory rate of eight percent per annum pursuant to Indiana Code section 24-4.6-1-101 (2004).

Posted by Marcia Oddi on Tuesday, April 29, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Appeals court upholds Glenn murder conviction"

The April 15th decision of the Court of Appeals in the case of Ronald Glenn v.State of Indiana (see ILB entry here - 3rd case) was the subject of a story yesterday in the Martinsville Reporter-Times by Keith Rhoades. A quote:

The court ruled the 30-year sentence for his conviction of robbery causing serious bodily injury, however, violated the double jeopardy standard and his prison sentence for that charge should be vacated by the trial court.

The court ruled that even though Judge Brian H. Williams did merge the sentences, he did so after announcing them. The court said the merging should have been done before announcing the sentences.

Robert Cline, Morgan County chief deputy prosecutor/acting prosecutor, said the court ruling will not affect the amount of time Glenn spends in prison.

Cline said it is a technical matter in the case. He said for the state to charge felony murder, it had to have the robbery charge. Cline said Glenn still has the 50 year sentence that means he will spend at least 25 years in prison.

Posted by Marcia Oddi on Tuesday, April 29, 2008
Posted to Ind. App.Ct. Decisions

Ind. Law - Sommer Barnard may merge with Cincinnati firm

Ted Evanoff of the Indianapolis Star reports today in a story that begins:

Partners at the Indianapolis law firm Sommer Barnard will vote today on merging their company into Taft Stettinius & Hollister of Cincinnati, two people knowledgeable about the deal confirmed Monday.

A merger would unite nationally known Taft, a law firm that traces to the 1880s, with far-younger Sommer, a 100-attorney Indianapolis firm reputed to be a tenacious defense litigator.

Although a deal would bring a new rival into the Indianapolis legal business, it was not clear Monday how Taft might differentiate itself from the established law firms already in place. About 1,500 lawyers are associated with the metro area's dozen largest legal firms.

Law firms searching for higher revenue have been merging throughout the nation for more than a decade, a trend that experts say is not expected to catch on soon in Indianapolis for reasons peculiar to the legal business. Experts suggest a deal could help Taft gain clients in Indianapolis, which has one of the Midwest's strongest economies, and enhance the Ohio firm's corporate defense practice.

"Taft is known as what you might call a silk stocking firm, doing primarily corporate and defense work,'' said Indianapolis lawyer Irwin Levin, managing partner at Cohen & Malad. "I would say, just by reputation, the Sommer Barnard lawyers are known as being very innovative. It's not perceived as being a stuffy law firm. One can only wonder what the culture will be'' after a merger.

Posted by Marcia Oddi on Tuesday, April 29, 2008
Posted to Indiana Law

Courts - Still more on: Supreme Court rejects voter ID law challenge

New or expanded stories today in the Indiana voter ID ruling yesterday by the Supreme Court.

Lesley Stedman Weidenbener of the LCJ reports here. The Fort Wayne Journal Gazette's Sylvia Smith's story has been expanded and appears here.

Tony Mauro of Legal Times writes:

The Indiana law won the support of six justices, who divided on the rationale. The main opinion in Crawford v. Marion County Election Board, authored by Justice John Paul Stevens, found that the state's interest in protecting the integrity of the voting process outweighed the insufficiently proven burdens the law imposes on voters.

"The evidence in the record is not sufficient to support a facial attack on the law," wrote Stevens, who was joined by Chief Justice John Roberts Jr. and Justice Anthony Kennedy.

The Stevens opinion also acknowledged that all of the state's Republican legislators, and none of the Democrats, voted for the law in 2005. But partisan motivation does not invalidate a law, Stevens said, as long as there are "valid neutral justifications" such as reducing voter fraud.

Justice Antonin Scalia, joined by Justices Clarence Thomas and Samuel Alito Jr., wrote separately to assert that the burden on voters imposed by the law is "minimal and justified" and therefore no further inquiry about the nature of the burden is needed.

While the opinion leaves open the possibility of an "as applied" challenge by actual voters who show the law disadvantaged their right to vote, analysts on both sides indicate the Court's opinions will make it difficult for those suits to succeed.

Even the dissenters recognized the state's interest in preserving the integrity of the elections, and none of the justices embraced the difficult-to-meet strict scrutiny standard urged by the challengers to Indiana's law, says Thor Hearne of Lathrop & Gage.

"This should shut the door on efforts to manipulate the election process by lawsuit," says Hearne, who wrote a brief for members of Congress who favored the Indiana law.

"This opinion will be read as a green light for the enactment of more partisan election laws in an attempt to skew outcomes in close elections," wrote Richard Hasen, a professor at Loyola Law School Los Angeles, on his widely read Election Law Blog. Hasen wrote a brief on the side of challengers to the law.

Hasen adds that if laws like Indiana's must now be challenged "as applied," that is "going to make it tough for a lot of plaintiffs who are burdened" to make their case.

Robert Barnes' story yesterday for the Washington Post is expanded here this morning.

Warren Richey of The Christian Science Monitor has this story, subheaded "Monday's ruling gives a green light to aggressive antifraud efforts often favored by the GOP."

Linda Greenhouse of the NY Times has a lengthy story this morning. Some quotes:

Six states in addition to Indiana — Florida, Georgia, Hawaii, Louisiana, Michigan, and South Dakota — now require voters to provide photo identification before casting a ballot. Bills are pending in two dozen other states, although they are not likely to pass this year in more than a handful, due to short legislative sessions and Democratic opposition.

The Indiana law, adopted by the Republican-controlled legislature in 2005 without a single Democratic vote, is regarded as the strictest in the country. It requires a voter to present a photograph as part of an unexpired document issued either by Indiana or the federal government, a requirement that in most cases can be satisfied only by a current driver’s license or a passport. The state’s motor vehicle agency provides a free photo ID card for people who do not drive, but obtaining it requires a “primary document” like an original birth certificate or a passport. * * *

The Indiana law was challenged in separate suits filed by the Indiana Democratic Party and by another group of plaintiffs that included elected officials and community groups. The plaintiffs argued that the state had failed to justify a requirement they said would place a special burden on thousands of eligible voters in Indiana who lack driver’s licenses, a group that disproportionately includes the poor, the elderly and people with disabilities.

The plaintiffs lost, both in Federal District Court in Indianapolis and in the United States Court of Appeals for the Seventh Circuit, in Chicago. Writing for the 2-to-1 majority at the appeals court, Judge Richard A. Posner agreed with the plaintiffs that the law would have the greatest impact on people who were “low on the economic ladder and thus, if they do vote, are more likely to vote for Democratic than Republican candidates.” While that fact gave the Democratic Party standing to sue, he said, it did not make the law unconstitutional.

The suits were filed before the statute took effect, challenging the law “on its face.” This technique, known as a “facial challenge,” has been a staple of election litigation, based on the notion that once an election has taken place, the asserted damage has been done and it is too late to make judicial amends.

A debate over the legitimacy of a facial challenge in the voter ID context did not enter this case until the Bush administration filed a brief at the Supreme Court stage supporting Indiana. Solicitor General Paul D. Clement told the court in his brief that, as a facial challenge, the suit was premature and based on nothing more than “speculation and as-yet untested evidence.” In the decision on Monday, Crawford v. Marion County Election Board, No. 07-21, the Supreme Court did not go quite so far as to make facial challenges unavailable. But Justice Stevens said in his opinion that in their effort to invalidate the statute in all its applications, the plaintiffs failed to carry their “heavy burden of persuasion,” given the weight of the state’s interest in election integrity.

In his dissenting opinion, which Justice Ginsburg also signed, Justice Souter examined the case from the opposite end of the telescope. Given that there was “no evidence of in-person voter impersonation fraud in a state, and very little of it nationwide,” he said it was Indiana’s job to justify placing even a slight burden on even a limited number of people. “The interest in combating voter fraud has too often served as a cover for unnecessarily restrictive electoral rules,” Justice Souter said.

Justice Breyer, in a separate dissenting opinion, compared Indiana’s law with those in Georgia and Florida, which also require photo identification but accept a range of more broadly accessible documents. Florida accepts student identification cards, employee badges and cards from neighborhood associations, for example, and accepts a provisional ballot as long as the voter’s signature matches one on file. Indiana has not justified its “significantly harsher” requirements, he said.

The vote of Justice Stevens, a reliable anchor of the court’s liberal bloc, was something of a surprise. Some speculated that his strategic aim was to keep Chief Justice Roberts and Justice Kennedy from joining the Scalia camp. Edward B. Foley, an election law expert at Ohio State University, said the Stevens opinion might represent an effort to “depoliticize election law cases.”

Also in the NY Times today, a report by Ian Urbina headed "Decision Is Likely to Spur Voter ID Laws in More States," that examines the potential impact of the decision.

For earlier ILB coverage on yesterday's opinion and what led up to it, see this long list of ILB entries on "voter ID".

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

Monday, April 28, 2008

Courts - More on: Supreme Court rejects voter ID law challenge

Maureen Groppe of the Indianapolis Star Washington Bureau has this coverage of today's voter ID decision. Sylvia Smith, the Fort Wayne Journal Gazette's Washington editor, has this report.

David Stout of the NY Times has this article this afternoon. Robert Barnes of the Washington Post has this story. David Savage of the LA Times reports here.

Ben Adller of Politico has a story headlined: "Activists: Ruling hurts youth voters." Some quotes:

In Indiana, voters must present a government-issued photo identification card with the one’s current address at the voting booth.

Young people, because they move residences frequently, are less likely to have such an ID. For instance, Rock the Vote’s February poll of 18-29 year olds found that 19 percent of respondents did not have a photo ID with their current address on it.

Student voting-rights activists had hoped that the Indiana law would allow a broader spectrum of identification cards, including student IDs, to meet the requirement. But many schools’ identification cards will not qualify.

“Student identification from a private university in Indiana is not an acceptable form of identification,” explained Tova Wang, Common Cause’s vice president for research. “It’s now been reported that public universities like Ball State and Purdue won’t be able to use IDs because they don’t have expiration dates, which are required,” she added. * * *

Other youth activists point out that many young people do not have driver’s licenses. “This will particularly affect young voters in larger cities who do not have cars,” B. Lee Drake, southwest regional director of the College Democrats of America, wrote in an email. “In addition to making it more difficult for younger people to vote, this also adversely affects the poorer members of Indiana communities who don’t have photo ID.”

In Milwaukee County, Wisconsin, nearly three-quarters of African Americans and fully two-thirds of Hispanics aged 18 to 24 did not have a valid driver’s license.

Here is the ILB's entry from earlier today.

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

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In Jon S. Johnson v. Stephon Blackwell, et al , a 12-page opinion, Judge Vaidik writes:

Following his conviction in federal district court for possession with intent to distribute crack cocaine, the Seventh Circuit reversed Jon S. Johnson’s conviction in 2005, and the indictment against him was dismissed in 2006. Nearly four years after his February 27, 2003, arrest, Johnson filed a complaint against Stephon Blackwell, Cliff Cole, the Anderson Police Department, and the Madison County Sheriff’s Department (collectively “Defendants”) on November 21, 2006, in Marion Superior Court alleging civil rights violations, false imprisonment/false arrest, wrongful infliction of emotional distress, and invasion of privacy by intrusion. Finding that these causes of action accrued when Johnson was arrested or bound over for trial in 2003 and that the doctrines of continuing wrong and fraudulent concealment do not operate to toll the statute of limitations, we conclude that Johnson’s complaint is barred by the two-year statute of limitations for injury to person. We therefore affirm the trial court.
NFP civil opinions today (2):

Jan Hayden v. Thomas Lilley (NFP) - "Jan Hayden appeals the trial court’s decision in a contract dispute involving the failed sale of her property to Thomas Lilley. * * *

"The trial court’s conclusions regarding Lilley’s breach and the return of the $110,000 are contradictory and not supported by the findings. We also conclude that Hayden is entitled to the attorney fees accrued defending Lilley’s action. We reverse and remand."

Joseph A. Galus v. Marycatherine Galus n/k/a Marycatherine Papp (NFP) - "Joseph A. Galus (“Husband”) appeals the trial court’s judgment ordering him to pay a portion of his child’s post-secondary education expenses. He raises one issue, which we restate as whether the trial court erred in its division of the parental portion of college expenses because the division was not in proportion to the parents’ resources. We affirm."

NFP criminal opinions today (4):

Dale C. Englehardt v. State of Indiana (NFP)

Raynard Shank v. State of Indiana (NFP)

Jonathan J. Birk v. State of Indiana (NFP)

Antonio Jefferson v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 28, 2008
Posted to Ind. App.Ct. Decisions

Courts - Supreme Court rejects voter ID law challenge [Updated]

See the writeup by Lyle Denniston of SCOTUSBlog here. Some quotes:

The Supreme Court, voting 6-3, on Monday rejected a constitutional challenge to Indiana’s law requiring voters to show a photo ID before they may cast a ballot. Three Justices said the evidence offered against the requirement in Indiana did not support a challenge to the law as written — that is, a “facial” challenge, and three others said the law only imposed a minimal and justified burden on voters. Three Justices dissented. The decision, in the case of Crawford v. Marion County Election Board (07-21) and a companion case, was the only ruling of the day. * * *

Putting together the three votes of Justices who found the particular challenge to Indiana’s law wanting on the evidence, with the votes of the three dissenters, means, however, that a majority of the Court has not barred all future challenges to voter ID laws, provided future cases seek to test such laws as they were actually applied in a specific election. Still, the plurality opinion that announced the Court’s judgment – written by Justice John Paul Stevens — probably means that any such “as-applied” challenges would not be easy to make.

Here is the opinion. Here is initial AP coverage.

[Updated] Here is Rick Hasen's initial take on the ruling, via the Election Law Blog.

Posted by Marcia Oddi on Monday, April 28, 2008
Posted to Courts in general

Law - More on "Ave Maria Law Wants To Sell Its Naming Rights"

Updating this entry from Dec. 19, 2007, a brief article by Julie Kay in today's National Law Journal is headed "Ave Maria to Relocate Law School Once Again." Some quotes:

Ave Maria School of Law, apparently unable to sell naming rights to its planned new building in Ave Maria, Fla., will instead move to an older building in nearby Naples. * * *

When the school started by Domino's Pizza founder Thomas Monaghan first announced in February 2007 it was moving from Ann Arbor, Mich., to the town Monaghan was starting in southwest Florida, the plan was to relocate to a posh new building. Drawings of the new school were even released.

The first signs of financial woe came in December 2007 when Ave Maria announced it wanted to sell naming rights to the building for $20 million to fund construction.

Apparently, there have been no takers. Instead, according to the press release, the school will move into modest digs -- the former Ave Maria University temporary campus 35 miles away.

Posted by Marcia Oddi on Monday, April 28, 2008
Posted to General Law Related

Courts - Justice Scalia interview

CBS 60 Minutes host Leslie Stahl conducted a remarkable interview of Justice Antonin Scalia, broadcast last evening. You can read the transcript here, but I highly recommend that you watch the interview - links to Part I and Part II are available here.

Posted by Marcia Oddi on Monday, April 28, 2008
Posted to Courts in general

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Wednesday, April 30th:

9:00 AM - James Butler v. Indiana Dep't of Insurance - After a partial settlement of this medical malpractice case, the Marion Superior Court held a bench trial and entered judgment for the Indiana Department of Insurance, Administrator of the Patient's Compensation Fund; the court ruled that Butler, personal representative of a deceased patient's estate, was not entitled under the Adult Wrongful Death Statute to recover damages for medical expenses originally billed but later written off. The Court of Appeals affirmed. Butler v. Indiana Dep't of Ins., 875 N.E.2d 235 (Ind. Ct. App. Oct. 22, 2007) [See ILB entry here - 10th case]. Butler has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorney for Butler; James Young of Indianapolis, IN. Attorneys for Indiana Dep't of Ins.; A. Richard M. Blaiklock and Stephanie L. Cassman of Indianapolis, IN. Attorneys for Amicus Curiae The Indiana Trial Lawyers Ass'n; Mark Scott of Kokomo, IN and Susan Rempert of Indianapolis, IN. Attorneys for Amicus Curiae Ins. Institute of Indiana, Inc.; Bryan Babb and Kelly Scanlan of Indianapolis, IN. Attorneys for Amicus Curiae Defense Trial Counsel of Indiana; James Johnson of Evansville, IN and Christine Stach of Fort Wayne, IN.

9:45:AM - In the Matter of J.C.C. v. State of Indiana - The trial court ordered J.C.C., who had been adjudicated delinquent for acts that would be child molesting if committed by an adult, to register as a sex offender, and denied J.C.C.’s motion to set aside the adjudications. The Court of Appeals affirmed in an unpublished decision. J.C.C. v. State, No. 49A02-0403-JV-266 (Ind. Ct. App., Dec. 28, 2007), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. For Appellant J.C.C.: Katherine A. Cornelius. For Appellee State of Indiana: Zachary J. Stock. Online

Webcasts will be available here.

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

None scheduled.

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

None scheduled.

Posted by Marcia Oddi on Monday, April 28, 2008
Posted to Upcoming Oral Arguments

Sunday, April 27, 2008

Environment - "Interpretation of state law led to 20-day BP public hearing notice"

The Gary Post-Tribune's awarding-winning environmental reporter, Gitte Laasby, has this story today:

Indiana Department of Environmental Management officials acted against advice from the U.S. Environmental Protection Agency to check state law when IDEM provided 20 days’ notice of a public hearing on BP Whiting’s air permit in Hammond.

State law requires 30 days. IDEM asked the EPA in January how much advance notice was required and was told state law applies, according to e-mails the Post-Tribune obtained under a Freedom of Information Act request from the U.S. Environmental Protection Agency.

State law specifies 30 days’ notice is required.

“With regard to BP’s public hearing, (...) do you believe we need to provide 30 days notice for a formal Hearing?” chief of IDEM’s Office of Air Quality permits branch Matt Stuckey asked in an e-mail to Sam Portanova, an environmental engineer with the U.S. Environmental Protection Agency, on Jan. 21.

Portanova replied the next day.

“Regarding public hearing requirements, to my knowledge there aren’t any public hearing requirements in the federal regs for minor construction permits. Therefore, the need to provide notice would be based on Indiana rules,” Portanova replied.

Despite the advice from EPA, IDEM went ahead and scheduled a hearing without the required 30 days’ notice for minor modifications. IDEM first notified the public of a Feb. 25 hearing this via e-mail on Feb. 5 — 20 days in advance.

The legal ad announcing the hearing, which counts for legal purposes, was scheduled to run in the Post-Tribune Feb. 7 — 18 days in advance — but was canceled before it ran.

IDEM Commissioner Tom Easterly said he knew IDEM talked to EPA, but that IDEM’s lawyers did not believe 30 days’ notice was required.

“We’d have to get our legal people to find the real answer, but their interpretation at the time was that we didn’t have to do that,” Easterly said in an interview with the Post-Tribune Friday. “But it doesn’t matter because we decided to do it. It wasn’t worth the discussion. People asked for more time so that was one thing we could do.”

Asked whether Stuckey checked with legal counsel on the notice requirement after receiving the note from EPA that state law applies, Easterly said, “I can’t speak for what somebody else did.” * * *

On Feb. 11, IDEM ran a new legal ad in the Post-Tribune, announcing the hearing date as Friday, March 14, in Hammond.

“We provided additional time for the public to participate in the review process while still ensuring effective review and meeting our statutory requirements for issuing a decision,” IDEM spokesman Rob Elstro explained.

If IDEM had not renoticed the hearing, the permit could have been successfully challenged at the state or federal level for lack of notice. Construction can’t start until the permit is in hand.

The Friday night hearing seemed unusual to many, including former IDEM Assistant Commissioner Janet McCabe. McCabe had never experienced a hearing on a Friday night and wrote current IDEM Assistant Commissioner of Air Quality Dan Murray to ask for an explanation.

“Ran out of date options,” Murray replied on Sunday, Feb. 10, in an e-mail released by IDEM in a response to a public information request by the Post-Tribune.

McCabe, who is now the executive director of Improving Kids’ Environment, pressed Murray on the issue in another e-mail. Murray elaborated, but suggested a hearing was not required.

“I hope this is you and I discussing this,” Murray wrote. “We started at Feb. 25th and pushed it back due to pressure. We wanted it early than the 14th, but the facility wasn’t available. The 14th is as far back as I’m willing to push it back and is more than we’ve done in the past.”

McCabe replied: “My concern is that there’s a growing feeling that IDEM is not interested in public input and just does what the businesses want, after checking with them. Agree with it or not, scheduling a public hearing on a Friday — when people may have to choose between going to that and going to their kids’ basketball game — just fuels that fire.”

Murray replied: “You understand the unfortunate reality of source mods (modifications), there are projects and schedules involved.”

Easterly said IDEM ran into problems with availability of personnel and space to hold the hearing and didn’t have many other dates available.

“We had trouble getting the room. We don’t own these rooms. And while we had it all set up for the first meeting, there was very little time that they gave us to choose to use it again,” Easterly said.

He said people should have time to comment on what they heard at the hearing. The e-mail released by EPA said BP had a “June 1 commence construction deadline.”

The story is accompanied by this timeline of events:
Feb. 5, 2008: IDEM announces BP’s air permit meeting and hearing on Feb. 25 via its listserv.
Feb. 7: Legal ad announcing the meeting and hearing on Feb. 25 is scheduled to run in the Post-Tribune, but an IDEM employee cancels the ad before it runs. The law requires at least 30 days’ notice.
Feb. 8: IDEM reschedules the meeting and hearing, announcing via its listserv that the event is now March 14.
Feb. 11: A new legal ad runs in the Post-Tribune, announcing the meeting and hearing on March 14. This time, the notice is 32 days in advance.

Posted by Marcia Oddi on Sunday, April 27, 2008
Posted to Environment

Ind. Courts - Even more on "Judicial Candidates Sue to Protect Judicial Speech Rights"

Updating earlier ILB entries from April 18th, April 21st and April 23rd, the Richmond Palladium Item has an editorial today, titled "Let judges express their views." It reads:

Two Indiana judicial candidates have joined the Indiana Right to Life Committee as plaintiffs in a federal lawsuit seeking to block enforcement of Indiana rules the judges say prohibit them from explaining their views on abortion, euthanasia and other hot-button, divisive issues.

This one is not easy, but critically important.

The issue arises from a preliminary advisory opinion from the state's Judicial Qualification Commission warning that judicial candidates who make "broad statement on disputed social and legal issues" run the risk of violating the Indiana Code of Judicial Conduct.

Several candidates for Indiana judgeships declined to respond to a Right to Life survey, citing the Indiana code.

The 7th U.S. Circuit Court of Appeals tossed out the case, initially filed by Indiana Right to Life, saying there was no evidence that a judicial candidate faced commission reprisal for answering the survey.

But that was before the two judicial candidates -- Marion Superior Court Judge David Certo and Torrey Bauer, a candidate for judge in Kosciusko County Superior Court -- joined plaintiff Right to Life, saying they did in fact fear reprisal for answering.

In the 2002 case of Minnesota Republican Party v. White, the U.S. Supreme Court struck down the "announce clause" in Minnesota's Code of Judicial Conduct that said that a judge shall not "announce his or her views on disputed legal or political issues." A similar "announce clause" in Indiana's code of judicial conduct was subsequently removed.

In its advisory opinion, the commission seems to acknowledge the pre-eminence of First Amendment free speech guarantees and the Supreme Court's ruling in the Minnesota case, but then goes on to split legal hairs over how a judicial candidate may or may not answer position questions.

The commission has an obvious interest, one shared by a conscientious public, to assure judicial independence and neutrality -- far apart from the kind of pandering and promise making that accompanies the rawness of political campaigns.

Judicial candidates, if they feel a need to respond at all -- and they are not required to do so -- are well advised to remind Right to Life or any other lobby or interest seeking to impose a dangerous political litmus test on their appointment or election, that they will rule on the law, without sway of personal view. Who could ask for more?

Meanwhile, Indiana's Commission on Judicial Qualifications should take to heart its own opinion, notably the part that quotes Justice John Paul Stevens in his dissent in the Minnesota case. Stevens noted that even if a judicial conduct code may not sanction judicial candidates from exercising free speech rights in their views on issues, the commission holds full free speech rights of its own. It can, for example, publicly draw attention to "the speaker's unfitness for judicial office" where his or her remarks or promises compromise judicial integrity.

"If the solution for harmful speech is more speech," Stevens wrote, "so be it."

It's a time-honored, deserving principle that the nation's finest justices have advanced.

The April 21st ILB entry includes links to most of the documents filed so far in the suit, including the "preliminary advisory opinion" referenced in the editorial.

Posted by Marcia Oddi on Sunday, April 27, 2008
Posted to Indiana Courts

Saturday, April 26, 2008

Law - U.S. Senate kills bill to right the wrongs of Ledbetter

Remember Ledbetter v. Goodyear Tire & Rubber Co ., the Supreme Court decision from last May, where, to quote Steven Greenhouse of the NYT, "the Supreme Court ruled that workers generally lose their right to sue for pay discrimination unless they file charges within 180 days of a specific event, like a boss giving a worker a smaller raise because of her sex. Establishing a pattern of discrimination over several years will no longer be possible."

Dahlia Lithwick of Slate has an article today that begins:

On Wednesday, Senate Republicans blocked a bill that would have overturned a Supreme Court ruling that sharply limited pay-discrimination suits based on gender under Title VII. In Ledbetter v. Goodyear (2007), the Supreme Court, by a 5-4 margin, held that the clock for the statute of limitations on wage discrimination begins running when the employer first makes the decision to discriminate, and does not run for all the subsequent months—or in this case, years—that the disparate paychecks are mailed. Justice Samuel Alito, writing for the court, found that the plaintiff in this case, Lilly Ledbetter, was time-barred from filing her discrimination suit because it took more than 180 days after she first got stiffed to discover that she was being stiffed on account of her gender. The court agreed her jury verdict should be overturned.
See also this ILB entry from June 16, 2007.

Posted by Marcia Oddi on Saturday, April 26, 2008
Posted to General Law Related

Friday, April 25, 2008

Ind. Decisions - Transfer list for week ending April 25, 2008

Here is the Indiana Supreme Court's transfer list for the week ending April 25, 2008.

There were four transfers reportedly granted this week. Three were summarized in this ILB entry from earlier today - it is the entry immediately below. However, these transfer grants are not on the list just posted.

Instead, a single transfer is on the list: Indiana Department of Environmental Management v. Raybestos Products Company. See the ILB summary of the 11/15/07 COA decision here (2nd case), which concludes: "Clearly, an agreement which would permit cleanup levels over twenty times that of the applicable federal regulations would be contrary to public policy, and Raybestos may not rely upon such an agreement or recover for any breach thereof by IDEM. We therefore reverse the judgment of the trial court."

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, April 25, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - Court grants transfer in three cases

The formal transfer list will follow later today, but the ILB has received notice that three cases have been granted transfer:

Michael Hill v. State of Indiana - an Oct. 23, 2007 NFP opinion, which concluded:

Based on the foregoing, we conclude that (1) the trial court did not err by permitting the State to amend the charging Information by adding Count III, attempted sexual misconduct with a minor, after the omnibus date; and (2) the State did not present sufficient evidence to convict Hill of attempted sexual misconduct with a minor. As a result we remand to the trial court to vacate Hill’s conviction for Count III, attempted sexual misconduct with a minor. Reversed and remanded with instructions.

State v. Raymond Washington, an Oct. 22, 2007 2-1 opinion: "The sole restated issue is whether, when a person is stopped for a traffic infraction and there are no indicia of criminal activity, the police officer violates Article 1, Section 11 of the Indiana Constitution against unreasonable searches and seizures when he asks the individual if he is in possession of drugs. We affirm."

John Roberts, MD v. Community Hospitals of Indiana., Inc. - a Dec. 12, 2007 14-page opinion that concluded: "For the foregoing reasons, we conclude that Roberts has been prejudiced by the trial court’s failure to provide clear and unambiguous notice prior to consolidation of the preliminary injunction hearing with the trial on the merits and remand for further proceedings. Reversed and remanded."

Posted by Marcia Oddi on Friday, April 25, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - "This is one of those cases that gives lawyers a bad name"

An opinion issued yesterday in the case of Cheryl Janky v. Speros Batistatos et al., by Judge Simon, ND Ind., has this catchy introduction:

This is one of those cases that gives lawyers a bad name. It began as a routine copyright infringement dispute but has deteriorated into a nuclear arms race of costly litigation tactics and the worst kind of mean spirited attorney game-playing. It has spawned two federal cases, three appeals, one state case, a judicial recusal and multiple instances of court-imposed sanctions. Some of the low lights include the filing of spurious motions and a letter from one party to another containing bad poetry composed by one of the lawyers.

Posted by Marcia Oddi on Friday, April 25, 2008
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Kenneth Hay v. Wanda J. Hay, a 5-page opinion, Judge Barnes writes:

Kenneth raises two issues, which we consolidate and restate as whether the trial court properly ordered the sale of property that Kenneth held jointly with Wanda. * * *

Referencing Indiana Code Section 32-17-4-12(a),3 which permits the trial court to “order the whole or any part of the land to be sold,” Kenneth claims that the trial court should have ordered the sale of Wanda’s interest only. This section, however, provides for the sale of a portion of the land, not a portion of the co-tenants’ interests in the land. Our reading of the statute is in keeping with the holding that “the trial court does not have the power to order one tenant to sell his interest to the other, while allowing the tenant in possession the right to retain the entire tract.” * * * There is no indication that the trial court was permitted, let alone required, to order the sale of only Wanda’s interest in the property. The trial court properly granted Wanda’s motion for summary judgment.

In State of Indiana v. Tracey Lamont Martin, a 7-page opinion, Judge Crone writes:
The State of Indiana appeals from the trial court’s directed verdict in favor of Tracey Lamont Martin, who was charged with domestic battery as a class D felony. We reverse.

Issue. The State raises as a reserved question of law the issue of whether the trial court erred in determining that a witness’s pretrial statements were testimonial and thus inadmissible at trial. * * *

In sum, we must conclude that the circumstances of the officers’ interrogation of Brooks objectively indicate that its primary purpose was to assist police in resolving an ongoing emergency. Therefore, Brooks’s statements to police were nontestimonial, and the trial court abused its discretion in excluding them. Reversed.

NFP civil opinions today (1):

In In The Matter of B.F. and T.F., Children in Need of Services, Audrey Faver v. Marion County Department of Child Services, and Child Advocates, Inc. (NFP), a 7-page opinion, Judge Crone writes:

Audrey Faver (“Mother”) appeals from the trial court’s denial of her request for visitation with her children, B.F. and T.F., during the pendency of child in need of services (“CHINS”) proceedings and the trial court’s failure to appoint a public defender to represent her in the CHINS proceedings. Mother also alleges that she was denied the effective assistance of counsel in violation of the state and federal constitutions. We dismiss Mother’s appeal for lack of jurisdiction. Issue. The dispositive issue is whether we have jurisdiction to consider Mother’s appeal. * * *

The trial court’s order does not fall under any of the categories enumerated in Appellate Rule 14(A); thus, Mother was not entitled to an interlocutory appeal as a matter of right. Because Mother did not seek to file a discretionary interlocutory appeal pursuant to Appellate Rule 14(B) and no basis exists for a statutory interlocutory appeal pursuant to Appellate Rule 14(C), we hereby dismiss Mother’s appeal for lack of jurisdiction. See, e.g., Moser v. Moser, 838 N.E.2d 532, 534 (Ind. Ct. App. 2005) (“This court may dismiss appeals upon its own motion when it discovers it does not have jurisdiction. An appeal from an interlocutory order is not allowed unless specific authority is granted by the Indiana Constitution, statutes, or the rules of court. Moreover, any such express authorization for an interlocutory appeal is strictly construed.”) (citations and quotation marks omitted), trans. denied (2006). Dismissed.

NFP criminal opinions today (3):

Jerome Lee Fine v. State of Indiana (NFP)

Billy J. Freeman v. State of Indiana (NFP)

Trenell C. Bright v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, April 25, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on Monroe County Circuit Judge Division 6 primary race

A story ($$$) in the Bloomington Herald-Times today begins:

Four Democrats are seeking the nomination for Monroe County Circuit Judge, Division 6. Republican Joby Jerrells is running unopposed for his party’s nomination.

Seat 6, which now handles civil cases, divorce proceedings and protective orders, is the seat being vacated by Democrat David Welch, who announced earlier this year he would not seek re-election.

The seat is one of nine judgeships in the unified court system, which expanded to that number in January with the addition of the ninth court. The ninth seat also is on the ballot in the fall. Candidates for nomination for Seat 9 will be profiled in a coming edition of The Herald-Times.

The candidates are profiled, followed by their individual answers to the following questions:
1) Which qualities of the judges you’ve observed would you most want to emulate if you were on the bench?

2) How do you think the current space/resource crisis at our jail should be addressed?

3) What is the most important job of a judge?

Posted by Marcia Oddi on Friday, April 25, 2008
Posted to Indiana Courts

Ind. Decisions - Even more on: Jeffersonville bans sex offenders from parks

Updating this ILB entry from April 3rd, Ben Zion Hershberg of the Louisville Courier Journal reports today:

Jeffersonville City Court Judge Ken Pierce rejected a man's request for an exemption from the city's ban on sex offenders using city parks yesterday, citing other court cases faced by the man who said he wanted to watch his son play baseball.

Eric Dowdell, 34, argued that he had completed his 1996 sentence for sexual battery and no longer was required to register with the state's registry of sex offenders.

At a hearing on his request April 11, Dowdell submitted letters from the president of the Clarksville Little League, which is using the Jeffersonville Little League Ballpark this year, and from the mother of a friend of his son supporting the request.

Dowdell also submitted documentation showing he had successfully completed counseling and probation for the conviction and testified that he has coached his son and others in sports.

But under questioning by Larry Wilder, a lawyer for the city, Dowdell acknowledged that he has faced several other charges since the conviction, although none were for a sexual offense. Some of the charges are pending and some have been dismissed, Dowdell said, and he pleaded guilty to domestic battery and battery.

Pierce cited those convictions and pending charges in denying the exemption.

Posted by Marcia Oddi on Friday, April 25, 2008
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "ACLU to appeal loss in BMV case"

A story today in the Indianapolis Star via the AP reports:

The ACLU of Indiana will appeal a court ruling that allows the state to revoke driver's licenses if information on them doesn't match Social Security records.

Marion Superior Court Judge Kenneth Johnson on Wednesday denied the ACLU's request to halt the Bureau of Motor Vehicles' invalidation process. The BMV has a strong interest in maintaining accurate records to reduce fraud and identity theft, Johnson said in the ruling.

But state law and the Indiana Constitution do not allow the BMV to revoke licenses just because records don't match, said Ken Falk, legal director for the ACLU of Indiana. Falk said Thursday he would appeal the ruling.

"The BMV has to follow the law," he said. "The BMV can't decide on its own how it's going to prevent fraud."

Posted by Marcia Oddi on Friday, April 25, 2008
Posted to Ind. Trial Ct. Decisions

Thursday, April 24, 2008

Ind. Decisions - "Dueling awareness days and accompanying t-shirts"

Nuxoll v. Indian Prairie School District, an opinion in a case out of Illinois issued late yesterday by the 7th Circuit, is discussed last evening in this entry by Gary Welsh of Advance Indiana.

The ruling is also featured in Robert Loblaw's Decision of the Day. A quote:

Judge Posner’s lead opinion is worth reading, as always. But so is Judge Rovner’s concurrence. While Judge Posner scratches his head wondering why kids are so silly and why anyone would be offended at a t-shirt, Judge Rover spills an inordinate amount of ink explaining why the slogan is derogatory. But she spills even more ink explaining why speech in schools is so important. It is a breath of fresh air after decisions like this and this, in which judges have openly disdained students who pursue First Amendment crusades.
Indeed. Here is a quote from Judge Rovner's dissent, at p. 16:
Moreover, I heartily disagree with my brothers about the value of the speech and speech rights of high school students, which the majority repeatedly denigrates. Youth are often the vanguard of social change. Anyone who thinks otherwise has not been paying attention to the civil rights movement, the women’s rights movement, the anti-war protests for Vietnam and Iraq, and the recent presidential primaries where the youth voice and the youth vote are having a substantial impact. And now youth are leading a broad, societal change in attitude towards homosexuals, forming alliances among lesbian, gay, bisexual, transgendered (“LGBT”) and heterosexual students to discuss issues of importance related to sexual orientation. ... The young adults to whom the majority refers as “kids” and “children” are either already eligible, or a few short years away from being eligible to vote, to contract, to marry, to serve in the military, and to be tried as adults in criminal prosecutions. To treat them as children in need of protection from controversy, to blithely dismiss their views as less valuable than those of adults, is contrary to the values of the First Amendment.

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

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

For publication opinions today (0):

NFP civil opinions today (2):

Susan Crager v. John Crager (NFP) - "Appellant-respondent Susan Ann Crager appeals the decree of dissolution of her marriage to appellee-petitioner John Crager, as modified by the trial court’s ruling following Susan’s motion to correct error. We summarize and restate Susan’s arguments as follows: (1) the trial court erroneously valued certain real property; and (2) the trial court erroneously found John’s testimony regarding his assets and income to be credible. Finding no error, we affirm."

Bryan Woodard v. City of New Albany (NFP) - "Appellant-plaintiff Bryan Woodard appeals the trial court’s order granting summary judgment in favor of appellee-defendant City of New Albany (New Albany) and affirming the decision of New Albany’s Board of Public Works and Safety (Safety Board) to terminate Woodard’s employment as a firefighter. Woodard raises a number of arguments on appeal, many of which have been waived, and we combine and restate the non-waived arguments as follows: (1) the trial court erred by striking a portion of Woodard’s designated evidence and brief in opposition to New Albany’s motion for summary judgment; and (2) the trial court erroneously affirmed the Safety Board’s decision, which was arbitrary and capricious and not based on substantial evidence. Finding no error, we affirm."

NFP criminal opinions today (8):

Teresa J. Jackson v. State of Indiana (NFP)

Leslie Stone v. State of Indiana (NFP)

Paul R. Wallace v. State of Indiana (NFP)

Brent Minard v. State of Indiana (NFP)

Jon J. Reid v. State of Indiana (NFP)

Emmett White v. State of Indiana (NFP)

Christopher Stephens v. State of Indiana (NFP)

Derick Walker v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 24, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Veolia accused of failing to read meters regularly and overestimating usage"

John Russell reports in the Indianapolis Star today on a lawsuit filed yesterday against the company managing the Indianapolis Water Company. Some quotes:

Veolia Water is being sued for allegedly failing to read the meters of its customers at least every two months, as required under law, and overestimating water usage for hundreds of thousands of customers.

The lawsuit against Veolia Water was filed Wednesday in Marion Superior Court by two residential customers, who are seeking class-action status on behalf of more than 250,000 customers.

Veolia Water North America, a subsidiary of a French company, has managed the city-owned Indianapolis Water Co. since 2002. It is responsible for reading meters, billing, and handling service calls, along with treating and distributing water.

In recent weeks, dozens of customers have complained to The Indianapolis Star of overbilling by Veolia Water, claiming the company hasn't read their meters in months, despite a law that requires the company to read meters at least once every two months. The lawsuit refers to Star articles and letters to the editor as part of its allegations.

The lawsuit's two plaintiffs make similar allegations. David Lear, Indianapolis, alleges Veolia has read his meter only twice in the past 17 months and overestimated his usage. Jason Bond, Zionsville, alleges Veolia hasn't taken an actual meter reading at his house in more than five months.

"I think these are very typical stories," said their lawyer, Peter S. Kovacs of the Indianapolis law firm Stewart & Irwin. "I've looked at a number of bills, and it shows a very similar story of overcharging." * * *

According to the suit, Veolia is entitled to earn incentives for meeting certain benchmarks, including customer service. Under the management agreement, Veolia received $9.2 million in incentive payments from the city for 2007. For meeting the "meter reading" incentive, Veolia received $334,976 last year. That is in addition to the annual service fee received by Veolia from the city, which exceeds $33 million a year, the suit said. * * *

The suit accuses Veolia Water of deceptive practices and fraud and seeks up to $1,000 per violation, plus attorneys' fees. The suit said Veolia breached its management agreement by using a flawed methodology for estimating residential customers' water bills, which it said unfairly inflates water usage during typically lower-consumption months.

It also accuses Veolia of unfairly imposing late charges on estimated bills, which in turn "are inflated by virtue of the fact that the bills are themselves overestimated." Late fees are calculated as a percentage of the bill.

Access a copy of the 14-page complaint and 1-page "2007 monetary incentive summary" (Ex. B) here, via the Indianapolis Star website. The 289-page Exhibit A, which contains the agreement between USFiler and Indianapolis Waterworks, is available here, via the Stewart & Irwin site.

Posted by Marcia Oddi on Thursday, April 24, 2008
Posted to Indiana Courts

Ind. Law - More on "Vigo’s Ephedrine ordinance could be revamped"

On April 17 the ILB quoted from a Terre Haute Trib-Star story about Vigo County's local ordinance on meth ingredients. Today the same Trib-Star reporter, Howard Greninger, writes:

Vigo County law enforcement officers will no longer issue tickets against retailers because a county ordinance aimed at ingredients used to make methamphetamine cannot supersede state law, County Attorney Robert Wright said.

In addition, the county has received a cut in grant funds that helped pay for a computer analysis of required documents from retailers showing who is buying ephedrine products. The result is the county will no longer consistently track that data, said Vigo County Sheriff Jon Marvel.

Vigo’s 2004 ordinance targets ephedrine, pseudoephedrine, ephedrine hydrochloride, pseudoephedrine hydrochloride, pseudoephedrine sulfate and phenylpropanolamine, substances used to make meth.

Vigo County is the only Indiana county with such a local ordinance because it was passed before a state law took effect in 2005.

However, some officials last week voiced concern that the county ordinance has a loophole, as it does not hold sellers responsible.

The ordinance restricts buyers from purchasing more than two packages in seven days; however, buyers have been violating that provision. The county ordinance limits sellers to no more than two packages to a customer, but has no provision for the seller to limit that number in a seven-day period.

State law also has that loophole, Wright said.

“The existing ordinance that we have is a good law,” Wright told the county Board of Commissioners on Tuesday. “The one thing that creates a problem for Vigo County to amend their existing law is that that state law reads that a governmental unit may not adopt an ordinance after Feb. 1, 2005, that is more stringent than” state law. * * *

Wright said county officials would have to seek an amendment in state law.

Posted by Marcia Oddi on Thursday, April 24, 2008
Posted to Indiana Law

About this blog - Still more on: Announcement from the ILB editor

Updating the initial ILB entry on this topic from August 20, 2007, and this update from February 11, 2008, I am happy to report that yesterday I completed my final radiation treatment. What remains? I feel extremely fortunate to be able to report that all that is on the agenda are quarterly checkups to make sure things remain good. Hopefully, then, this is my final report to you on this topic. As before, your thoughts and prayers have been, and continue to be, much appreciated.

Posted by Marcia Oddi on Thursday, April 24, 2008
Posted to About the Indiana Law Blog

Wednesday, April 23, 2008

Ind. Decisions - Court of Appeals issues 5 today (and 11 NFP)

For publication opinions today (5):

In Prime Mortgage USA, Inc. and David M. Law v. Delie T. Nichols, a 67-page (!) opinion, Judge Robb writes:

Prime Mortgage USA, Inc. (“Prime”), and David Law (referred to collectively as the “Defendants”) appeal following the trial court’s order of default judgments in favor of Delie Nichols as a penalty for the Defendants’ discovery violations. The trial court held a hearing on damages, and awarded roughly eight million dollars to Nichols. In a subsequent proceedings supplemental, the trial court issued an order of garnishment on a life insurance policy held by Law. * * *

We conclude that Nichols’s claims were not barred by the statute of limitations or the doctrine of unclean hands and that the trial court did not abuse its discretion in denying the Defendants’ request for a jury trial or in entering a default judgment based on the Defendants’ discovery violations. We further conclude that the trial court’s award of damages was within the scope of the evidence. We also conclude that Nichols’s compensation constitutes a “wage” for purposes of the Wage Payment Statute. However, we conclude that it was improper to grant a judgment against Prime on Nichols’s claim for breach of fiduciary duty, and reverse the trial court’s order in this regard. Finally, we remand with instructions that the trial court determine whether any of Law’s life insurance policy is exempt from execution. Affirmed in part, reversed in part, and remanded.

In Cory L. Bowman v. State of Indiana , a 10-page, 2-1 opinion, Judge May writes:
Cory L. Bowman appeals the denial of his motion for discharge and dismissal. He alleges his prosecution was barred by Indiana Criminal Rule 4(C), the Sixth Amendment to the United States Constitution, and Article 1, Section 12 of the Indiana Constitution. We affirm. * * *

[Re 4(C)] His arrest placed him on notice the State was interested in filing charges against him. See id. at 617-18 (arrestee “is aware he must face a charge of committing a crime on a particular date”). Simple measures, such as leaving a forwarding address or updating his address with the Bureau of Motor Vehicles, would have made it possible for the State to notify Bowman of the charges against him. When the State has made reasonable efforts to locate an arrestee, it cannot be found at fault for delay caused by the accused’s disappearance. To hold otherwise would create an incentive for arrestees to relocate in the hope they will not be found within a year. The trial court did not abuse its discretion by determining the delay was chargeable to Bowman.

[Re constitutional argument] In sum, two of the factors – the length of the delay and Bowman’s prompt assertion of his right to a speedy trial – weigh in favor of Bowman. However, the other two factors – fault and prejudice – weigh against him. As Bowman acknowledges, we have traditionally placed the greatest weight on whether the defendant will be prejudiced. (Appellant’s Br. at 19.) Furthermore, because Bowman could have prevented the delay, we believe his prompt assertion of his right after receiving notice is entitled to little weight. Therefore, we conclude the balance of the factors indicates Bowman’s right to a speedy trial has not been violated. Affirmed.

RILEY, J., concurs.
KIRSCH, J., dissenting with opinion: I respectfully dissent.

The State took no action to notify him of the charges for four and one-third years after learning that Bowman no longer resided at the address that it had for him. There is no evidence that it made any attempt whatsoever to acquire an updated address. There is no evidence that the State even checked the records of the Bureau of Motor Vehicles to determine whether Bowman had updated his address. Indeed, when Bowman did update his address with the Bureau in February 2006, the State still took no action to notify him of the charges. Had Bowman not been stopped for speeding in Illinois, this matter would still be pending with no notice to the defendant.

My colleagues hold that the State did what it reasonably could to notify Bowman of the charges. I disagree. From my perspective, the State did virtually nothing. I believe the trial court erred in determining that the four-year, four-month delay was attributable to Bowman. I would reverse the trial court’s order and remand with instructions to dismiss the pending charge.

ILB Note: The April 8th, 2-1 decision by another COA panel , in the case of Robert Jeffrey Pelley v. State of Indiana (see list of ILB entries here), which reversed a murder conviction under the speedy trial provision, is not referenced in today's opinion. The April 8th panel was Sharpnack, and Riley, with Friedlander dissenting; today's panel was May and Riley, with Kirsch dissenting.

Charles Sweeney v. State of Indiana - "Sweeney did not present any testimony at the post-conviction hearing from which the post-conviction court could make a factual determination as to whether or not Clark County officials or State of Indiana officials were accompanied by a federal official when transporting Sweeney from Kentucky to Indiana. No statutory violation was established. Also, Sweeney does not present legal authority for the proposition that his Indiana sentence was “stopped,” illegal, or subject to “correction” if challenged by appellate counsel.

"In light of the foregoing, Sweeney has not established that he received ineffective assistance of appellate counsel due to counsel’s failure to fully develop an ineffectiveness argument pertaining to trial counsel."

In Nicole A. Schaffer v. Robert J.Schaffer, an 11-page opinion, Judge Vaidik writes:

Nicole A. Schaffer appeals the trial court’s denial of her request to terminate third party stepparent Robert J. Schaffer’s visitation rights with her daughter, M.S. Specifically, Nicole argues that the trial court’s denial violated her due process rights because the court failed to apply a parental presumption favoring her decisions regarding the care, custody, and control of M.S. Finding that this parental presumption applies to initial visitation proceedings but that Nicole did not appeal the order establishing visitation between Robert and M.S., we conclude that the parental presumption does not apply to the modification of visitation. As such, because Nicole has failed to prove that it is in the best interests of M.S. to terminate visitation with Robert, we affirm the judgment of the trial court.
Mario L. Sims, Sr. v. Linda Lopez - "Mario Sims appeals the trial court’s affirmation of a protective order requested by Sims’ ex-wife Linda Lopez and entered ex parte. We remand so the trial court may determine whether the protective order would prevent Sims from prosecuting any pre-existing civil cases."

NFP civil opinions today (2):

In Re: The Marriage of Christopher Mark Kincaid v. Shelley Rae Kincaid (NFP) - "Christopher Mark Kincaid appeals the trial court’s calculation of child support. Because two of the court’s findings of fact are clearly erroneous, we reverse and remand for the court to re-determine Christopher’s weekly income and recalculate support using corrected incomes for both Christopher and his ex-wife, Shelley."

Michelle L. Wood (Mulhern) v. Terry L. Wood (NFP) - "Michelle L. Wood (n/k/a Mulhern) appeals the order dissolving her marriage to Terry L. Wood. She asserts error in the admission of evidence, determination of custody, and assignment of income to her for child support purposes. We affirm."

NFP criminal opinions today (9):

Brian K. Wynne v. State of Indiana (NFP)

Robert Hicks v. State of Indiana (NFP)

William Tyrone Thomas v. State of Indiana (NFP)

James Williams v. State of Indiana (NFP)

David Long v. State of Indiana (NFP)

Lana Thomas v. State of Indiana (NFP)

Jason A. Nicely v. State of Indiana (NFP)

James Love v. State of Indiana (NFP)

Marvin Lee Kelly v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 23, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Indiana photo-ID decision coming tomorrow?

Updating this ILB entry from Monday, the blog, Ballot Access News, edited by Richard Winger, reports today:

No U.S. Supreme Court Election Law Decision on April 23: Although the U.S. Supreme Court issued an opinion on April 23 in a non-election law case, it did not issue the Indiana photo voter ID decision. The next possible date for that decision is April 28, Monday. The Court will be sitting in April, May and June for the sole purpose of issuing decisions; the oral arguments for this session will be over by noon on Wednesday, April 23.

Posted by Marcia Oddi on Wednesday, April 23, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Still more on "Judicial Candidates Sue to Protect Judicial Speech Rights"

Updating this ILB entry from April 21st, James Bopp has has sent out this update to the lawsuit:

This is an update on the case filed last week against Indiana's judicial canons which prevent judicial candidates from answering a candidate questionaire distributed by Indiana Right to Life.

(1) Judge Miller of South Bend has recused himself and the case has been assigned to Judge Springmann of Ft. Wayne.

(2) Judge Springmann has set a hearing on the plaintiffs' Motion for Preliminary Injunction for April 30th at 11:00 am in federal district court in Ft Wayne.

(3) The Indiana Attorney General will be filing their response to the plaintiffs' motion by noon on April 29th.

Posted by Marcia Oddi on Wednesday, April 23, 2008
Posted to Indiana Courts

Ind. Courts - More on: Muncie and Terre Haute mayoral election contests continue

Yesterday Arthur E. Foulkes of the Terre Haute Trib-Star reported in a story that begins:

Lawyers for former Terre Haute Mayor Kevin Burke have filed what could be the final brief in the legal battle for Terre Haute City Hall.

Burke’s attorneys, Ed DeLaney and Amanda Couture of Indianapolis, filed papers Monday with the Indiana Court of Appeals in response to papers filed by Bennett at the end of March.

Burke lost the Nov. 6 election to Bennett by 110 votes.

Burke later appealed that result in Vigo County Circuit Court claiming Bennett should not be named mayor because he was in violation of the federal Hatch Act while running for office.

Today Nick Werner of the Muncie Star-Press reports in a story that begins:
Democrat James Mansfield is not giving up in the battle for mayor.

Mansfield announced Tuesday that he would ask the Indiana Court of Appeals to review an election deadline he believed was unconstitutional.

A favorable ruling by the appeals court could help Mansfield win a special election in Precinct 46, where a problem with absentee ballots cost him the election.
"I don't think it would be fair for the 6,000-plus individuals who supported me in this campaign to drop anchor and not do anything," Mansfield said during a press conference Tuesday at Delaware County Democratic Party Headquarters.

Efforts by Mansfield earlier this year to win a special election in Precinct 46 failed after a judge dismissed two lawsuits.

In dismissing at least one of the lawsuits, special Judge Joel Roberts ruled that Mansfield missed a statutory deadline to file the lawsuit.

Posted by Marcia Oddi on Wednesday, April 23, 2008
Posted to Indiana Courts

Tuesday, April 22, 2008

Ind. Courts - Indiana Court Times, March/April 2008, is available online

The Indiana Courts website announces today that the 16-page March/April issue of Indiana Court Times is available online.

Posted by Marcia Oddi on Tuesday, April 22, 2008
Posted to Indiana Courts

Courts - Intensive competition for Supreme Court clients described

From Howard Bashman's How Appealing today:

"Supreme Court - The Hottest Docket in Town; Firms Clamor to Be Among the Few To Go Before the Nation's Final Arbiter": Brent Kendall has this very interesting front page article today in The Daily Journal of California.
Don't miss this.

Posted by Marcia Oddi on Tuesday, April 22, 2008
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 3 today (and 16 NFP)

For publication opinions today (3):

In Jamie L. Freyn v. State of Indiana, a 4-page opinion, defendant appeals his sentence for domestic battery, as a Class D felony, Ind. Code § 35-42-2-1.3. Judge Riley writes:

Freyn argues that the trial court erred by sentencing him to a two-and-one-half-year sentence for Count II, domestic battery, as a Class D felony. Specifically, Freyn contends that a consecutive sentence beyond the advisory is prohibited by Indiana Code § 35-50-2-1.3, citing Robertson v. State, 860 N.E.2d 621 (Ind. Ct. App. 2007), trans. granted, vacated by Robertson v. State, 871 N.E.2d 280 (Ind. 2007). * * *

Since Freyn filed his Appellant’s Brief, our supreme court has overruled our decision in Robertson by explaining that a trial court is not limited to imposing the advisory sentence when imposing a consecutive sentence, unless (1) the consecutive sentence is imposed for nonviolent felony convictions arising out of a single episode of criminal conduct in accordance with Indiana Code section 35-50-1-2, (2) the consecutive sentence is an additional fixed term to an habitual offender under Indiana Code section 35-50-2-8, or (3) the consecutive sentence is an additional fixed term to a repeat sexual offender under Indiana Code section 35-50-2-14. Robertson, 871 N.E.2d at 285 (citing I.C. § 35-50-2-1.3(c)). Freyn does not allege that any of these three exceptions apply requiring the trial court’s imposition of the advisory sentence. Therefore, we conclude that Indiana Code section 35-50-2-1.3 did not prohibit the trial court’s imposition of a consecutive sentence in excess of the advisory for Freyn’s conviction for domestic battery, as a Class D felony.

In Indi Investments, LLC. v. Credit Union 1, an 8-page opinion, Judge Sharpnack writes:
Indi Investments, LLC (“Indi Investments”), appeals the trial court’s denial of its motion to set aside a sheriff’s sale. Indi Investments raises two issues, which we consolidate and restate as whether the trial court abused its discretion by denying Indi Investments’s motion to set aside the sheriff’s sale. We affirm. * * *

Here, Indi Investments had the means of obtaining information regarding the Waterfield mortgage. Indi Investments could have performed a title search or simply reviewed the trial court’s file and the Judgment to discover that the property was being sold subject to the Waterfield mortgage. However, Indi Investments failed to do so. Indi Investments is charged with actual notice of the Waterfield mortgage and, consequently, is not a bona fide purchaser. See, e.g., Vonderahe v. Ortman, 128 Ind. App. 381, 389-390, 146 N.E.2d 822, 826 (1958) (holding that the purchaser of property from an estate’s executor had a duty “to search the records as to the source of their title and determine therefrom the rights, duties and limitations of the executor” and the principle of caveat emptor applies “in sales by executors and administrators”). We conclude that the trial court did not abuse its discretion by denying Indi Investments’s motion to set aside the sheriff’s sale.

In Rebecca Lohmiller v. State of Indiana , a 23-page opinion, Chief Judge Baker writes:
Appellant-defendant Rebecca D. Lohmiller appeals her convictions and sentence for six counts of Forgery, a class C felony, and twenty-one counts of Practicing Nursing without a License, a class B misdemeanor. Specifically, Lohmiller argues that (1) the trial court erred by denying her pretrial motion to sever the charges; (2) the evidence presented was insufficient to sustain her convictions for forgery; (3) the trial court infringed on her right to testify by limiting her testimony regarding her previous involvement with the federal Witness Protection Program; (4) the trial court abused its discretion by not allowing a proffered expert witness to testify; (5) the trial court erred by denying the jury’s request for a dictionary during deliberations and its question regarding two jury instructions; (6) her convictions violate the double jeopardy clause of the Indiana Constitution; and (7) the trial court committed fundamental error by ordering her to pay $25,000 in restitution. Finding that the trial court committed fundamental error when it ordered Lohmiller to pay restitution, but finding no other error, we affirm in part, reverse in part, and remand with instructions contained herein.
NFP civil opinions today (4):

Victoria Robinson v. St. Joseph County Department of Child Services (NFP) - "Mother raises one issue for our review: was the evidence sufficient to support the termination of Mother’s parental rights. We affirm."

John C. Lewis v. Tradewinds Marine, Inc. v. Dearborn Savings Assoc., F.A. & American State Bank (NFP) - "Lewis appeals the trial court’s order denying his motion to correct error, arguing that there is insufficient evidence supporting the amount of the judgment in favor of appellee-plaintiff American State Bank (the bank). Finding no error, we affirm."

Nancy Olivares v. Carol White (NFP) - Pro se procedural errors, affirmed.

Bruce McAlvain v. Andrew Beagle (NFP) - "Bruce McAlvain appeals the trial court’s judgment awarding damages to Andrew Beagle in the amount of $417,357.13 and costs, expenses, and attorney fees in the amount of $11,066.17. McAlvain raises two issues, which we revise and restate as: I. Whether the trial court abused its discretion by admitting exhibits of Beagle’s expenses; II. Whether the trial court abused its discretion by awarding Beagle damages in excess of the earnest money. We affirm."

NFP criminal opinions today (12):

Hythoris Beard v. State of Indiana (NFP)

Terry W. Helsley v. State of Indiana (NFP)

Theodore Johnson v. State of Indiana (NFP)

Catina King v. State of Indiana (NFP)

Danny J. Shuler v. State of Indiana (NFP)

Phillip Patterson v. State of Indiana (NFP)

Richard King v. State of Indiana (NFP)

Brian D. Burns v. State of Indiana (NFP)

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

Darby Hahn v. State of Indiana (NFP)

Kenneth Dodd v. State of Indiana (NFP)

Henry Garcia v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 22, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Favorite headlines this morning

Slow news day, so far. But two favorite headlines this morning:

From the Gary Post-Tribune: "Judge folds in a lecture after man pleads guilty".

From the Evansville Courier & Press: "Defense spins paper cocoon around Brooks".

Posted by Marcia Oddi on Tuesday, April 22, 2008
Posted to Indiana Courts

Monday, April 21, 2008

Ind. Decisions - More on: Supreme Court holds Three Strikes Law unconstitutional

Writing about the Supreme Court decisions April 8th on the "three-strike" law (see ILB entry here), the Indianapolis Star's Jon Murray has a lengthy and comprehensive report today on the ramifications. Some quotes:

Locked away for setting an apartment fire, Eric D. Smith filed dozens of lawsuits against the prison system. He penned threats to the judge who sent him there. And he declared civil war against Indiana.

Now he's a precedent-setter.

One of his lawsuits spurred the Indiana Supreme Court this month to overturn a four-year-old law barring inmates from suing if courts had deemed three previous suits frivolous.

The dissenting justices in the 3-2 decision predicted a new influx of lawsuits would slow the gears of the court system for other Hoosiers.

As the attorney general's office looks for ways to salvage the law by loosening the restriction, it is bracing for more serial-filers like Smith, 29, now at Indiana State Prison in Michigan City.

One state attorney said Smith had filed 67 suits or claims since he was sentenced less than seven years ago by a Marion County judge.

In its April 9 decision, the Supreme Court ruled the law's absolute restriction against repeat-filers violated the open courts clause of the Indiana Constitution.

"This does not mean that meritless claims may not be summarily dismissed under the Frivolous Claims Law," said the opinion, written by Justice Theodore R. Boehm. "It does mean that an individualized assessment of each claim is required." * * *

The Supreme Court has sent the case back to Marion Superior Court to address whether it is frivolous.

When state legislators passed the so-called "three strikes" law, they sought to deter the flow of litigation from prisons full of amateur lawyers with plenty of time on their hands.

Since then, the number of inmate suits against the Indiana Department of Correction has decreased by nearly half, Erdmann said. Last year, state lawyers handled 148 lawsuits filed by inmates, not including some ruled frivolous.

The three-strikes law provided an exemption for prisoners in immediate danger of serious bodily injury.

Not enough, the Supreme Court said; that could still block an inmate who suffered a property theft or other wrong.

Advocates for prisoners' rights say laws that crack down on frivolous filers must be crafted so legitimate claims also aren't axed. * * *

Other states and federal law require inmates who file too many lawsuits to pay full court fees or ask a court's permission to file another claim. Indiana was the only state to cut off access to the courts, the Indiana opinion says.

The decision dismisses the concerns of dissenting Chief Justice Randall T. Shepard and Justice Frank Sullivan Jr. by noting a court's review of a suit for frivolity takes a little more time.

The same day the court issued the Smith decision, it reversed Court of Appeals rulings barring three suits by another inmate, James Higgason Jr., because of the three-strikes law.

But in those decisions, the Supreme Court threw out Higgason's claims -- all dealing with copying fees charged for legal documents -- because they are outside the courts' jurisdiction.

Posted by Marcia Oddi on Monday, April 21, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on "Judicial Candidates Sue to Protect Judicial Speech Rights" [Updated]

Updating Friday's ILB entry, today the documents filed April 18th in the suit filed in ND Indiana by James Bopp, Torrey Bauer, et al. v. Randall T. Shepard, et al., are available via PACER.

The ILB has downloaded them; paying the hefty fee of about $14.00. Much of that goes for the appendices to the complaint:

Main Document - 21 pages
Exhibit 1 - Articles of Incorporation - 25 pages
Exhibit 2 - Bylaws - 12 pages
Exhibit 3 - IN Commission on Judicial Qualifications Preliminary Advisory Opinion - 6 pages
Exhibit 4 - Letter for IRL Questionnaire - 2 pages
Exhibit 5 - IRL Questionnaire - 6 pages
Exhibit 6 - IRL Questionnaire Responses Part 1 (A) - 25 pages
Exhibit 6 - IRL Questionnaire Responses Part I (B) - 31 pages
Civil cover sheet - 1 page
In addition, there is the 32-page "Memorandum in support of plaintiffs' motion for a TRO," and the 5-page "Motion for the TRO."

Posted by Marcia Oddi on Monday, April 21, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In Town & Country Ford, Inc. v. Robin A. Davis (NFP), a 6-page opinion, Judge Vaidik writes:

In this small claims action, the trial court, in construing an installment contract for the purchase of a used vehicle and a service contract for an extended service plan on the vehicle, found an ambiguity existed and entered judgment in favor of the purchaser, Robin A. Davis, and against the dealership, Town & Country Ford, Inc. (“Town & Country”). Finding no ambiguity in the contracts, we conclude that the trial court erred by entering judgment in Davis’s favor and reverse. * * *

Construing these two documents, we conclude that there is no ambiguity. The Installment Contract makes reference to a sixty-month Service Contract, and the Service Contract unambiguously provides that the sixty months was to begin on April 29, 2000 (which is apparently the date the vehicle was originally purchased) and was to end on April 29, 2005.

Here, Davis purchased her used 2000 Ford Ranger in January 2003. At that time, she purchased an extended service plan, thereby extending the warranty on the vehicle to sixty months from April 29, 2000 to April 29, 2005. Davis had problems with her engine in September 2005, which was beyond the date of coverage for the extended service plan. Accordingly, we must reverse the trial court’s judgment entered in favor of Davis. Reversed.

In Tri-County Conservancy District v. Gradex, Inc. (NFP), a 14-page opinion, Judge Barnes wrties:
Tri-County Conservancy District (“Tri-County”) appeals the trial court’s award of prejudgment interest in the amount of $200,437.65 on a judgment totaling $283,149.38 entered in favor of Gradex, Inc. We affirm.

The restated issues before us are: I. whether the trial court properly determined that Gradex is entitled to prejudgment interest; and II. whether the accrual of prejudgment interest should have partially stopped after Tri-County tendered $218,870.62 to the trial court clerk at an earlier stage of the litigation. * * *

Conclusion. The trial court did not err in awarding prejudgment interest to Gradex in the amount of $200,437.65. We affirm.

NFP criminal opinions today (4):

Connie M. Hensley v. State of Indiana (NFP)

Jason Foster v. State of Indiana (NFP)

Yolanda Weathers v. State of Indiana (NFP)

Earnest Webb v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 21, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Indiana photo-ID decision coming tomorrow?

The blog, Ballot Access News, edited by Richard Winger, reports today:

The U.S. Supreme Court did not release any full opinions on April 21, but it probably will on April 22. That might include the Indiana government photo-ID case for voting at the polls.

Also, on April 22 the Court hears arguments in Davis v Federal Election Commission, the case over the part of the McCain-Feingold law called the “Millionaires’ Amendment.”

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

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Thursday, April 24th:

9:00 AM - State of Indiana v. Charlene Davis - Davis was found to be incompetent to stand trial on certain criminal charges, and it was determined that she would not likely be restored to competence within the foreseeable future. The Marion Superior Court granted Davis's motion to dismiss the criminal charges. The Court of Appeals reversed in State v. Davis, 875 N.E.2d 779 (Ind. Ct. App., Nov. 8, 2007) (see ILB summary here). Davis has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorneys: For Appellant State of Indiana: Cynthia L. Ploughe, Indianapolis, IN. For Appellee Charlene Davis: Anna E. Onaitis, Indianapolis, IN. Attorneys for Amicus American Civil Liberties Union of Indiana: Kenneth Falk, and Gavin Rose, Indianapolis, IN. [Note: Arguments apparently will not be webcast.]

9:45 AM - Kirk Reuille v. E.E. Brandenberger Construction, Inc. - After the parties in this case reached a private settlement on all claims except for attorney fees, the trial court denied the plaintiff's request for attorney fees under the parties' written contract that allowed the prevailing party to collect fees. The Court of Appeals affirmed, holding that the plaintiff did not qualify as a prevailing party. Reuille v. E.E. Brandenberger Constr., Inc., 873 N.E.2d 116 (Ind. Ct. App., Sept. 6, 2007), vacated (see ILB summary here). The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Reuille; Craig Patterson of Fort Wayne, IN. Attorneys for E.E. Brandenberger Constr., Inc.; A. Dale Bloom and Jeremy J. Grogg both of Fort Wayne, IN.

Webcasts will be available here.

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

None scheduled.

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

This Monday, April 21st:

3:00 PM - Tim Sinks v. Krista L. Caughey - Defendant appeals denial of motion to dismiss plaintiff's complaint arising from automobile accident on basis of statute of limitations (SOL). Trial court found that although amended complaint was filed after SOL had run, it related back to date of filing original complaint pursuant to Trial Rule 15(c). The Scheduled Panel Members are: Judges Sharpnack, Vaidik and Barnes. [Where: Valparaiso University School of Law.]

This Tuesday, April 22nd:

10:30 AM - James H. Helton v. State of Indiana - Petitioner was charged with possession of methamphetamine and possession of marijuana. After a trial started he decided to plead guilty to possession of methamphetamine and the State agreed to dismiss the other charge. He was sentenced, filed a petition for post-conviction relief, which the court denied. Petitioner now appeals. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and May. [Where: Springs Valley Jr/Sr High School, 326 S. Larry Bird Blvd., French Lick, Indiana.]

This Thursday, April 24th:

9:30 AM - Jerald J. Womack vs. State of Indiana - Jerald J. Womack appeals from his Kosciusko County convictions for Class D felony marijuana possession and for being a habitual controlled substance offender as well as the sentence imposed. The convictions are based on evidence that marijuana was found in a car in which Womack had been driving and that he had a certain number of prior controlled substance convictions. Womack contends that the police search of the car violated his rights under the Indiana and federal constitutions and that the State failed to prove that he possessed the marijuana that was found, he was driver of the car, and he was the person convicted of a prior crime that then supported the finding that he was a habitual controlled substance offender. Womack also contends that his aggregate nine-year sentence is inappropriate in light of the nature of his offenses and his character. The Scheduled Panel Members are: Chief Judge Baker, Judges Crone and Bradford. [Where: Wawasee High School, 1 Warrior Path #1, Syracuse, Indiana.]

Posted by Marcia Oddi on Monday, April 21, 2008
Posted to Upcoming Oral Arguments

Sunday, April 20, 2008

Ind. Courts - "If the public is to not only understand the procedures in place for protecting children from abuse and neglect, but also to influence change in those procedures when necessary, it must have information"

Near the end of 2007 the ILB had a number of entries, including this one from Dec. 24, 2007, involving Marion County juvenile court Judge Marilyn Moores' order to release of the juvenile court file and the much larger DCS case file in TaJanay Bailey case.

Last Tuesday, April 15th, Kate Braser of the Evansville Courier & Press reported:

Seven of Amanda Brooks' and Terry Lay's children are scattered among relatives and foster homes in Indiana and Illinois.

That is according to records released Monday by Vanderburgh Juvenile Court Judge Brett J. Neimeier regarding the children's ongoing custody.

Prosecutors last week charged Brooks and Lay with murder in connection with the alleged beating death of 3-year-old Kalab Lay. The couple are also accused of abusing Kalab's twin sister. * * *

Illinois Department of Children and Family Services officials previously said Kalab and the three siblings were placed in foster care in Illinois in July 2004 after their parents were arrested on methamphetamine charges. On Dec. 18, 2007, Saline County Circuit Court Judge Todd Lambert ordered Kalab and his twin be sent for an extended visit with their parents.

The order was granted against the recommendation of the Lutheran Social Services and the Illinois Department of Children and Family Services.

And, in records submitted to Vanderburgh County Juvenile Court, a local Department of Child Services caseworker wrote that the placement was also against the recommendations of the Indiana Interstate Compact Unit. Indiana Department of Child Services officials previously have explained that when a child removed from a home is scheduled to come to Indiana from another state to visit with a parent for more than 30 days, the child's state of origin should request an Interstate Compact for the Placement of Children.

According to paperwork explaining the family's history, when Brooks and Lay were arrested in the Saline County case, the four children found living with them in the alleged methamphetamine lab were "in poor physical condition and undernourished."

The Vanderburgh Juvenile Court case was not opened until after rescue crews were called to the family's mobile home at 2417 Long Point Drive on March 31 for a report of a 3-year-old not breathing. When they arrived, they learned that besides Kalab, a newborn boy, Kalab's twin sister and a 1-year-old lived in the home.

A side-bar to Tuesday's story reports:
In an order issued Monday, Vanderburgh County Juvenile Court Judge Brett J. Niemeier wrote "due to our community's interest in the ongoing welfare of the Lay children, this Court is granting access to the media so the public will gain new insight into the workings of the Court and Department of Child Services."

The judge added that "due to the graphic nature or identifying features in photographs, the Court will not release the photographic evidence which was presented to the Court."

Niemeier cited specific Indiana Code stating "the juvenile court may grant any person having a legitimate interest in the work of the court or in a particular case access to the court's legal records. In exercising its discretion, the court shall consider that the best interests of the safety and welfare of the community are generally served by the public's ability to obtain information about the alleged commission of an act that would be murder or a felony if committed by an adult or the alleged commission of an act that would be part of a pattern of less serious offenses."

Niemeier said such access has been granted to media representatives before, in September 2000 and in May 2007.

He said media representatives will be allowed to attend future hearings in his courtroom regarding the custody of the youngest children of Amanda Brooks and Terry Lay, but the names of the children will not be made public.

From an editorial today in the C&P:
If the public is to not only understand the procedures in place for protecting children from abuse and neglect, but also to influence change in those procedures when necessary, it must have information.

But that information is not always easy to come by, given the confidentiality built into the system for the protection of children. In addition, some believe that same built-in secrecy can protect child protection systems in Indiana and other states from public scrutiny.

These issues have come to the forefront of public attention in recent weeks because of the tragic case of 3-year-old Kalab Lay. Emergency workers found him on March 31 not breathing, the victim of a beating at the Evansville home of his parents where he was on an extended visit from foster care in Illinois.

One of the key unanswered questions in this case is what information led a judge in Saline County, Ill., to order Kalab and his twin sister returned to their parents, Terry Lay and Amanda Brooks — each with criminal records — for the extended visit, and against the recommendations of two agencies, Lutheran Social Services and the Illinois Department of Children and Family Services.

Unfortunately, that Illinois judge, Todd Lambert, has declined to discuss the case, citing an open juvenile case. However, another judge, Brett Niemeier, who presides over Vanderburgh County Juvenile Court, on Monday granted the news media access to Vanderburgh records regarding Kalab Lay and his twin sister.

We believe Niemeier has it right in his statement on the release of the records, and we applaud him for not only assisting, but also trusting the public.

He wrote in his order that "due to our community's interest in the welfare of the Lay children, this court is granting access to the media so the public will gain new insight into the workings of the court and Department of Child Service."

Precisely.

He said that in exercising the court's discretion to release records, "the court shall consider that the best interests of the safety and welfare of the community are generally served by the public's ability to obtain information about the alleged commission of an act that would be murder or a felony if committed by an adult or the alleged commission of an act that would be part of a pattern of less serious offenses."

Posted by Marcia Oddi on Sunday, April 20, 2008
Posted to Indiana Courts

Ind. Gov't. - "Some county departments have cut paperwork"

The South Bend Tribune's Nancy J. Sulok writes today:

A couple of county councilmen are studying ways to cut the amount of paperwork they encounter. Heath Weaver, D-District H, and Mark Catanzarite, D-District G, traveled to LaPorte County earlier this month to observe the paperless trends there.

But some county government departments here in St. Joseph County already have grasped the digital concept.

Bill Bruinsma, director of the Thomas N. Frederick Juvenile Justice Center, said the JJC started moving toward a paperless operation in 1997, and "it's one of the most difficult things I've ever done."

"We're pretty much trying not to use paper as much as possible," said Jerry L. Johnson, chief probation officer for the county. His department's move away from paper started in 2000.

They are just two of the government departments moving away from paper.

Every department within the JJC is on a computer program known as Quest, Bruinsma said. Not much paper is kept, he said. The biggest bulk of paperwork is from documents coming into the JJC from outside, he said. But even that is scanned into the system and kept electronically.

"The filing cabinet has gone away,'' Bruinsma said.

It's gone away in the Adult Probation Department, too, Johnson said.

His department uses a program called DocuWare to keep records of everyone sentenced in the county. Records are kept from the time of sentencing until seven years after a person is discharged from the system. For a criminal who receives a long sentence, that could mean keeping records for 30 or 40 years, Johnson said.

In 2000, he said, he was looking at the potential need for dozens, if not hundreds, of file cabinets to store the 2 million documents he has on file. Storage was consuming too much office space.

Now, Johnson said, records are stored electronically and hard copies are destroyed. Out of that, he continued, came the use of e-mail to replace faxes, saving not only paper but also time and money.

Johnson said he is looking at a time when he could be totally paperless, but until the courts and the clerk's office join the effort, "we're stuck dealing with paper.''

Going paperless does not necessarily save a lot of money, Johnson said. Instead of buying file cabinets, he's buying computers, software and related items.

Posted by Marcia Oddi on Sunday, April 20, 2008
Posted to Indiana Government

Law - Another update on efforts to receive compensation for land taken to build Kentucky Camp Breckenridge

This ILB entry from May 22, 2007 began:

The ILB has had four earlier entries about Kentucky families' "long legal fight to get compensation for land taken from their families by the federal government to make way for a World War II training camp."
Today the Evansville Courier & Press carries this story that begins:
LOUISVILLE, Ky. — A federal judge has recommended a $34.3 million award to a group of former landowners in Western Kentucky whose property was taken to create a World War II-era military training post.

Judge Susan Braden of the U.S. Court of Federal Claims in Washington, D.C., recommended that Congress appropriate at least $34,303,980.42 in restitution for land and mineral rights lost by the landowners when the government appropriated their land to create Camp Breckinridge.

Braden issued a 53-page ruling late Friday, saying the amount represents only 27 percent of the $127 million benefit the government received from taking the land and mineral rights.

"In considering this recommendation, Congress should be mindful that the entire amount of revenue that the government received for the lease and sale of these rights is unknown, because the government failed to produce or destroyed relevant documents that would verify the correct amount," Braden wrote.

The former landowners and their heirs were finding out about the decision Saturday.

"We ought to get more than that," said William Griggs, 83, whose grandparents were forced off their land in 1942. "But if we get that much, we're fortunate." Braden's decision now goes before a three-judge panel. If the panel approves Braden's recommendation, the measure will go to Congress, which must appropriate the money before the landowners are compensated.

The long-running dispute over Camp Breckinridge involves more than 1,000 former landowners and their families in Western Kentucky that was brought against the federal government in 1993.

Posted by Marcia Oddi on Sunday, April 20, 2008
Posted to General Law Related

Ind. Courts - Madison County courts change to Superior

Today in the Anderson Herald Bulltetin, Derek Reiff reports:

On Jan. 1, 2009, Madison County will no longer operate county courts. A bill originally written and introduced by state Sen. Tim Lanane, D-Anderson, will take effect shortly after the November 2008 county elections.

The county currently operates Superior Courts 1, 2 and 3, in addition to County Courts 1 and 2.

The final draft, House Bill No. 1096, would abolish the only county courts remaining in Indiana. * * *

The new Superior Courts will have more jurisdiction and a broader scope of case types, with the intention of both sharing more load and moving cases through the building more quickly.

The differences in court functions are levels of severity. County Courts are allowed to see only claims below $10,000, and, in, criminal cases, County Courts can see only Class D felonies while Superior Courts can rule on Class A, B and C felonies.

Small-claims, cases involving less than $3,000, will still be handled by an established small-claims division.

Residents of Madison County will not see effects of the change.

“The current judges assured me that there would be no additional expenses; they will be able to function in the same facility and with the same staff,” Lanane added.

This page from the Indiana Courts site sets out the current Madison County court system.

Posted by Marcia Oddi on Sunday, April 20, 2008
Posted to Indiana Courts

Saturday, April 19, 2008

Ind. Courts - "Man Kicked Out Of Court"

Kaitlin Vanderpool reports today in the Michigan City News-Dispatch:

LA PORTE - A man sitting in the gallery was thrown out of La Porte Circuit Court Friday morning after Judge Thomas Alevizos saw him "flashing gang signs" at defendants allegedly involved in a stabbing last weekend.

"If anyone thinks this courtroom is an appropriate place to flash gang sings, you're wrong," Alevizos said, before telling the man he was not to be seen in the courtroom again unless he was a defendant.

"In which case, I'd be glad to see you in orange," Alevizos said.

The individual may have been in court Friday to witness five suspects speak in their initial hearings following what police say might have been a gang-related stabbing around 6 a.m. Saturday, April 12, in the 300 block of Maple Avenue.

Gang signs? According to this site on gang signs and symbols:
Most gangs use hand signs to identify their gang and as a form of communication. Hand signs are also used to "flash" a warning or a threat to rival gangs. Some gangs have elaborate hand and body signals, so advanced, that they can have complete conversations without saying a word. These signs are frequently used when they don't want others to know what they are about to do.
The Route 222 Corridor Anti-Gang Initiative website, sponsored through the Office of U.S. Attorney Patrick Meehan, Eastern Pennsylvania District, has an extensive section on gang signs.

Posted by Marcia Oddi on Saturday, April 19, 2008
Posted to Indiana Courts

Ind. Courts - Delaware County "Judicial races drawing most local campaign donations"

Rick Yencer reports today in the Muncie Star-Press:

Delaware County's contested judicial races -- especially the campaign for the Democratic nomination in Circuit Court 5 -- are drawing the most money in advance of the May 6 primary election.

Friday marked the deadline for pre-primary reports of candidates seeking election in the primary.

"With high interest in presidential and gubernatorial contests, there has been a strain on money coming to local candidates," said Allie Craycraft, vice chairman of the Delaware County Democratic Central Committee.

Muncie City Court Judge Linda Ralu Wolf -- in a Democratic primary race with Deputy Prosecutor Joe Orick for the Circuit Court 3 nomination -- donated the entire $8,000 in contributions reported by her campaign committee, spending $6,702 on billboards and advertising.

Orick raised $13,121, from friends, relatives and fellow members of Prosecutor Mark McKinney's staff. He also donated $3,050 to his campaign.

In the Democratic race for judge of Circuit Court 5, Democrats Tom Cannon Jr., Ron Henderson and Kimberly Dowling had combined raised more than $45,000, making it the biggest spending of the local races.

Cannon raised the most money of any judicial candidate, $21,097, with Henderson next at $14,250, and Dowling third at $10,045.

"We have not had a lot of fundraisers," said Larry Dailey, Cannon's campaign treasurer.

Cannon and his wife put $10,000 of their money into the campaign while Dailey, and attorney and son of Circuit Court 2 Judge Richard Dailey, added another $2,500, with the balance from other contributors.

Henderson -- who has had fundraisers at Democratic Party headquarters -- contributed $6,400 to his own campaign, with the rest of his money coming from about 20 other contributors.

In the Republican race for Circuit Court 3 judge, Mark Delgado reported $8,536 in contributions, while GOP primary opponent Judi Calhoun had $3,598. Both candidates listed largely unitemized contributions.

"For the most part, we have not used our own money," said Delgado, who held a fundraiser Friday and maintained no one had turned him down for a contribution.

Longtime Circuit Court 3 Judge Robert Barnet Jr. has announced plans to retire at year's end, while Circuit Court 5 Judge Wayne Lennington has resigned effective next month in the wake of criminal and professional misconduct investigations. Both men are Democrats.

Posted by Marcia Oddi on Saturday, April 19, 2008
Posted to Indiana Courts

Environment - "Corn-Based Ethanol Tied to Higher Food Costs"

Siobhan Hughes of the WS Journal reports today:

Energy Secretary Samuel Bodman said Friday that the growing emphasis on corn-based ethanol has contributed to higher food prices, and he said the nation should begin "moving away gradually" from ethanol made from food such as corn.

"As we pursue diversity in our overall energy mix, we must also pursue diversity in our biofuels," Mr. Bodman said at a conference in Alexandria, Va. "This means moving away gradually from ethanol produced from foodstocks like corn."

Mr. Bodman's remarks come as efforts to make motor-vehicle fuels from grains such as corn are coming under fire amid soaring world food prices and food riots in several countries. A U.N. report Tuesday called biofuels a "crime against humanity."

Also today, a brief story by Joy Leiker in the Muncie Star-Press, headed "Court decision looming for Blue River Ethanol plant." Some quotes:
On Friday, Randolph County Judge Peter Haviza, the special judge appointed to the Henry County case, heard a final hour's worth of arguments from six attorneys representing various parties, including residents who live near the Mount Summit site, landowners, the planning commission and zoning administrator

His decision will come nearly a year after a group of residents, those who live closest to the plant site along Henry County Road 400-N, sued. Until the litigation is settled, there will be no construction.

Posted by Marcia Oddi on Saturday, April 19, 2008
Posted to Environment

Friday, April 18, 2008

Ind. Decisions - No transfer list for week of April 18th, 2008

No transfer list was issued by the Supreme Court for the week ending April 18, 2008.

Posted by Marcia Oddi on Friday, April 18, 2008
Posted to Indiana Transfer Lists

Ind. Courts - "Judicial Candidates Sue to Protect Judicial Speech Rights"

From a press release this afternoon from Indiana attorney James Bopp, Jr.:

Two Indiana judicial candidates filed suit today in federal court to block enforcement of Indiana rules prohibiting them from responding to a survey asking their views on abortion, euthanasia, and other issues. Judge David Certo, a Superior Court Judge in Marion County, and Torrey Bauer, a candidate for Superior Court Judge in Kosciusko County are joined in the suit by Indiana Right to Life Committee, a non-profit organization.

The case arises out of a survey Indiana Right to Life sent to candidates for judicial office in the May 2008 election, requesting that they state their views on policies and court decisions related to abortion, euthanasia, and other related issues . Several of the judicial candidates refused to do so, especially in view of a Preliminary Advisory Opinion issue by the Commission on Judicial Qualifications that warned that judicial candidates who make “broad statements on disputed social and legal issues” run the risk of violating the Indiana Code of Judicial Conduct.

Indiana Right to Life had previously challenged these Indiana rules during the 2004 election. But while a federal district court initially found the Canons in question unconstitutional, the case was ultimately dismissed on the grounds that Indiana Right to Life had not shown there were any judicial candidates who wanted to answer its questions.

That’s not a problem this time, as two of Indiana Right to Life’s co-plaintiffs are candidates for judicial election in 2008.

According to Terre Haute attorney James Bopp, Jr., lead counsel for the plaintiffs, the Indiana rules “contradict the U.S. Supreme Court, which clearly stated that judicial candidates have a right to respond to surveys like this and that voters have a right to hear what they have to say.” Bopp, who argued the case challenging the Minnesota judicial rule struck down by the U.S. Supreme Court in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), stated that Indiana’s rules and policy were being interpreted to suppress the same sort of free speech that Minnesota had tried to punish. “Judicial candidates should be able to respond to questions about their beliefs so that voters will have something more to vote on other than their names, law school rank, and date of birth,” said Bopp.

Plaintiffs have asked for a temporary restraining order so that judges may respond to Indiana Right to Life’s survey without fear of disciplinary action prior to the May 6 primary.

The case is Bauer v. Shepard, et al., No. 08-CV-196 (N.D. Ind. Apr. 18, 2008). Links to follow.
Judge Certo was appointed to the Marion County bench by Governor Daniels. Mr. Bopp is Indiana Republican National Committeeman, appointed by Governor Daniels.

Posted by Marcia Oddi on Friday, April 18, 2008
Posted to Indiana Courts

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

For publication opinions today (1):

In Robert & Melinda Sexton, Stephanie & Craig Flinn, David & Gail Helt, et.al. v. Jackson County Board of Zoning Appeals and members, et.al., an 11-page opinion, the dispositive issues were:

I. whether the trial court properly determined that the Appellants did not have standing to petition for the writ of certiorari; and II. whether the trial court abused its discretion in determining that no violation of the Indiana Open Door Law (“IODL”) occurred.
At issue is the Jackson County Board of Zoning Appeals (“BZA”) grant of a special exception to build and operate a concentrated animal feeding operation (“CAFO”). The Appellants lived near the site of the proposed CAFO, ranging from 1200 feet away to a half a mile away.

Judge Barnes writes:

[I. Standing] We conclude that the proximity of the Appellants’ properties to the alleged harm is not dispositive in determining whether they have standing. The Appellants presented evidence showing that they will suffer a pecuniary loss by the granting of Lykins’s permit. This is sufficient to show that they are “aggrieved” and therefore sufficient to establish that they have standing to petition for a writ of certiorari. The trial court’s findings and conclusions to the contrary are clearly erroneous.

Although the trial court concluded that the Appellants did not have standing, it appears to have analyzed whether there is sufficient evidence to support the BZA’s approval of Lykins’s application and concluded that there was sufficient evidence to support the BZA’s decision. This analysis, however, did not address all of the Appellants’ claims. Based on our conclusion today, we remand for consideration, or reconsideration as the case may be, of the claims in the Appellants’ petition for writ of certiorari in light of the fact that they have standing to pursue the claims. * * *

[II. Indiana Open Door Law] The Appellants also argue that the trial court improperly failed to consider supplemental evidence relating to its IODL claim. Specifically, during the October 11, 2005 BZA hearing, approximately twenty-two minutes are not included in the transcript after the first vote but before the second vote. The Appellants allege that during this time, the four BZA members “deliberated, in whispering tones out of earshot of the public and their recording equipment.” In their petition, the Appellants alleged that this action was in violation of IODL. * * *

We cannot resolve this question, however, because the Appellants were not permitted to supplement the record. During the trial court proceedings, the Appellants sought to supplement the record with a videotape of the October 11, 2005 hearing, an advisory opinion for the Indiana Public Access Counselor, and a letter from the Jackson County Council notifying a BZA member that his appointment to the BZA had been revoked. The trial court ultimately struck the supplemental evidence and concluded that no IODL violation occurred. * * *

Although the trial court was not required to consider supplemental evidence, it should have done so here. At issue is the conduct of the BZA members during the hearing—certainly the Appellants should have been able to supplement the record with evidence of what happened during the hearing. Further, Lykins and the BZA’s arguments against the supplementation of the record go to the weight of the evidence, not to whether the record should be supplemented. * * *

Conclusion. The Appellants are aggrieved by the BZA’s decision and have standing to petition for a writ of certiorari. The trial court improperly failed to supplement the record regarding the Appellants’ IODL claim. Accordingly, we reverse and remand for the trial court to consider the merits of the Appellants’ claims in light of our decision. We reverse and remand. Reversed and remanded.

NFP civil opinions today (3):

Regina Webb v. Review Board of Ind. Workforce Development and Veterans of Foreign Wars (NFP) - "We restate the issue presented by Webb as whether the Board erred in concluding that she left her employment without good cause in connection with her work. We affirm."

Lloyd E. Philpott v. Nola L. Philpott (NFP) - "In light of the foregoing evidence most favorable to the trial court’s judgment, we conclude that Husband has failed to establish that the trial court abused its discretion in dividing his pension and the equity in the marital residence equally between the parties. See Grimes v. Grimes, 722 N.E.2d 374 (Ind. Ct. App. 2000) (finding no abuse of discretion in equal division of husband’s retirement plan, where parties were separated eight years prior to wife petitioning for dissolution and wife did not work for first nineteen years of marriage), trans. denied. Consequently, we affirm the dissolution decree. Affirmed."

Barry Geyer v. Terry (Geyer) Serie (NFP) - "In rare cases, one parent has been ordered to reimburse the other parent for college expenses already paid. * * * Such circumstances as fraud or contempt of court are not present here.

"Here, the trial court concluded that Mother was not required to reimburse Father for tuition payment made to the university because (1) Father failed to move to stay the execution of the trial court’s judgment pursuant to Indiana Trial Rule 62(B)(5) or to post bond to stay upon appeal pursuant to subsection (D); and (2) Mother did not mislead Father or reap a direct financial benefit to herself. The evidence of record supports the trial court’s refusal to order reimbursement upon equitable grounds. Father has demonstrated no clear error. Affirmed."

NFP criminal opinions today (8):

Buford Earls v. State of Indiana (NFP)

Cero W. Russell v. State of Indiana (NFP)

Dennis Mikel v. State of Indiana (NFP)

Raymond Cowan v. State of Indiana (NFP)

Joseph Pryor v. State of Indiana (NFP)

Joe E. Markley v. State of Indiana (NFP)

Jason Aliff v. State of Indiana (NFP)

Kevin R. Perkins v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, April 18, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Memorandum Decisions Reclassified as For Publication"

This is great. I just noticed it today, although it may have been up for much longer. It is something this blog in the past has mentioned as needed.

The Indiana Appellate Opinions page now has a link to a list of "Memorandum Decisions Reclassified as For Publication," with the explanation:

The Indiana appellate opinions below were originally classified as Not-for-Publication Memorandum Decisions when handed down by the Court of Appeals, see Ind. Appellate Rule 65(A), but later reclassified as For Publication by Court order. Opinions are listed in reverse chronological order by date of the order reclassifying the opinion. The "Decision Issued" column lists the original date of issuance. This list includes only opinions ordered published after 01/01/2007.
The list, as of today, contains 22 opinions, since the beginning of 2007, reclassified from NFP to FP. This means that the limitation of Rule 65(D) not longer applies to these reclassified opinions:
(D) Precedential Value of Not-For-Publication Memorandum Decision. Unless later designated for publication, a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.

Posted by Marcia Oddi on Friday, April 18, 2008
Posted to Ind. App.Ct. Decisions

Courts - "When the Ex Blogs, the Dirtiest Laundry Is Aired"

Leslie Kaufman of the NY Times has this long story today. Some quotes on the legal aspects:

In separation, of course, one person’s truth can be another’s lie. Often the postings are furtive. But even when the ex-spouse is well aware that he or she is starring in a blog and sues to stop it, recent rulings in New York and Vermont have showed the courts reluctant to intervene. * * *

In a decision only weeks ago, however, a justice of the Supreme Court of the State of New York said his complaints [a husband who sued arguing his ex-wife's podcast contained "statements that were 'obnoxious, derogatory or offensive' and that they violated the terms of the divorce settlement that she not 'harass' or 'malign' him"] were not grounds for blocking the podcast. While Laurie’s statements may be “ill-advised and do not promote co-parenting,” the court wrote, they were covered by the First Amendment.

Obviously, divorce lawyers are taking note. Deborah Lans of Cohen Lans, a Manhattan law firm with a thriving matrimonial practice, said, “The last thing you want to see is angry people making uncontrolled statements.”

Ms. Lans said her divorce agreements included a confidentiality provision that forbade either party to publish even fictionalized accounts of the marriage, but not every lawyer insists on that. The judge in Laurie’s case explicitly noted that her agreement did not have such a provision.

Earlier this year, a court in Vermont did tell William Krasnansky to take down his lightly disguised account of his divorce, in which he described his ex-wife in an unflattering light and blamed her for forcing him to sell their home at “a ruinous loss.” Mr. Krasnanksy’s ex-wife had complained that it was “defamatory.” But weeks later, after a firestorm of criticism, the court reversed itself and gave him the right to continue to publish.

Posted by Marcia Oddi on Friday, April 18, 2008
Posted to Courts in general

Ind. Decisions - "Who gets bill for juvenile facilities?"

Yesterday afternoon a panel of the Indiana Court of Appeals heard oral arguments in the case of Marion County, et al vs. State of Indiana, et al.. (See ILB "Upcoming oral arguments" entry, from April 14th.)

Jeff Parrott of the South Bend Tribune reports on the case today. Some quotes:

St. Joseph County and the state of Indiana moved closer Thursday to resolving their long-standing dispute over who should pay for juvenile detention costs by arguing their cases before the Indiana Court of Appeals.

The property tax overhaul bill signed into law this year by Gov. Mitch Daniels shifts those costs to the state, and reduces the county tax levies by which counties raised those funds, effective July 1. But the legal case covers costs incurred in 2003, 2004 and part of 2005.

The county, along with co-plaintiff Marion County, sued the state in 2005 after the state tried to recover $75 million it had spent in operating juvenile detention facilities. The state said Marion County owed it $67 million in arrearage, while St. Joseph County owed more than $7 million.

A Shelby County trial court judge last spring ruled in favor of the state, prompting the counties to appeal.

The state pays to house adults in prison but traditionally has made counties share half the costs of detaining juveniles.

The state constitution declares that "The General Assembly shall provide institutions for the correction and reformation of juvenile offenders." But the legislature in 1953 enacted a law allowing the state to charge counties for housing juveniles in the Indiana Boys' and Girls' Schools.

The counties say that law violated the constitution.

The state argues, among other things, that the counties lack legal standing to sue the state over such a constitutional claim, and that the counties are instead trying to assert the rights of their residents, according to a synopsis of the case provided by the Court of Appeals staff. The counties have standing only to assert rights belonging to the counties as entities, the state argues. * * *

The three-judge appeals panel heard the arguments, limited to 20 minutes by each side, at the University of Southern Indiana in Evansville. The court took the case under advisement and will issue a ruling later.

Posted by Marcia Oddi on Friday, April 18, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: "Judge: 'God' plates OK without fee"

Niki Kelly's story in the Fort Wayne Journal Gazette this morning adds:

The American Civil Liberties Union of Indiana filed suit last April on behalf of Fort Wayne resident Mark E. Studler.

The lawsuit alleged that the BMV gave preferential treatment to motorists wanting the plates, which also feature the American flag, because they don’t have to pay the $15 administrative fee that the agency collects on sales of most other Indiana specialty plates.

The BMV charges the administrative fees in addition to other costs of up to $25, with proceeds supporting the causes of the groups or universities.

“We weren’t challenging the message of ‘In God We Trust,’ just that any other message plate has a cost to it,” ACLU-Indiana attorney Ken Falk said.

He said the trial court accepted the state’s argument that the “In God We Trust” plate is a regular plate and not a specialty plate, and therefore not a violation of the Indiana Constitution.

But Falk said an appeal to the Indiana Court of Appeals is likely.

Studler’s phone number is unlisted and he could not be reached by The Journal Gazette.

At the time Studler filed the lawsuit, he said he liked the “In God We Trust” plate but it irked him that for years, he has had to pay a $15 administrative fee to the BMV for his specialty environmental plate.

It’s about fairness, Studler told The Journal Gazette in April 2007. If he has to pay a fee, then so should the people who buy the “In God We Trust” plates. Either that or the administrative fee for other specialty plates should be eliminated, he said.

Posted by Marcia Oddi on Friday, April 18, 2008
Posted to Ind. Trial Ct. Decisions

Thursday, April 17, 2008

Ind. Decisions - "Judge: 'God' plates OK without fee"

That is the headline to this story by the Indianapolis Star's Jon Murray, posted on the Star site late this afternoon:

A Marion Superior Court judge has ruled that Hoosier motorists can purchase "In God We Trust" license plates without paying the extra fee charged for other specialty plates.

The American Civil Liberties Union of Indiana had challenged the plate, introduced by state law last year. It has since been slapped on the back of more than 1.6 million vehicles, according to the Indiana Bureau of Motor Vehicles.
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But the plate does not carry a $15 administrative fee charged for dozens of other specialty plates that push messages supporting the environment, education, colleges and universities, and other causes.

Judge Gary Miller granted the BMV's motion for summary judgment against the ACLU and plaintiff Mark E. Studler, Allen County. The ruling, stamped April 10 but issued Wednesday, says the new plate is different from the Indiana Environmental Trust Plate; BMV is required to monitor sales of that plate and collect and transfer group fees to the Indiana Heritage Trust, its beneficiary.

"In contrast, the In God We Trust Plate is comparable to the Standard Plate," the ruling says. "There is no group that benefits from the sale of In God We Trust Plates. Furthermore, it was designed by a process similar to the Standard Plate, mass produced like the Standard Plate, and widely distributed like the Standard Plate based on consistently high sales. The so-called 'preferential treatment' it receives under Indiana law -- i.e., not being subject to an administrative fee -- is also the same as the Standard Plate."

ACLU of Indiana legal director Ken Falk, said the organization planned an appeal of the ruling.

Here are some quotes from an an AP story:
"Courts are not to second-guess the Indiana General Assembly when it comes to calculations of this sort," Miller wrote, contrasting the 'In God We Trust' plates with other specialty plates that require the payment of administrative fees.

Miller said the issuance of the plates did not violate the section of the Indiana Constitution that forbids the Legislature from granting special privileges or immunities not available to all citizens.

The ruling, issued April 10, denies a motion for summary judgment in the suit by the ACLU on behalf of Mark E. Studler, an Allen County resident who has an Environmental Trust plate for which he had to pay extra fees.

Ken Falk, legal director of the ACLU of Indiana, said today the ruling would be appealed to the Indiana Court of Appeals.

"We're obviously disappointed," Falk said. "It's our position still that the differential treatment afforded between the environmental plate and the 'In God We Trust' plate ... is unconstitutional, that the Legislature doesn't have the power to say the 'In God We Trust' plate is free whereas the environmental plate carries an administrative fee. * * *

The lawsuit claimed the BMV gave preferential treatment to motorists wanting the plates, which also feature the U.S. flag, because they don't have to pay the $15 administrative fee that the agency collects on sales of most other Indiana specialty plates.

The 2006 legislation creating the plates specified the state could charge no more for the "In God We Trust" plates than for the standard plates.

Posted by Marcia Oddi on Thursday, April 17, 2008
Posted to Ind. Trial Ct. Decisions

Environment - John Graham to lead IU SPEA

A press release today from Indiana University includes the following:

INDIANAPOLIS -- John D. Graham, a former Harvard faculty member and top official with the White House Office of Management and Budget, has been named dean of the Indiana University School of Public and Environmental Affairs.

The appointment, subject to approval by the IU Board of Trustees, was announced today by Charles Bantz, chancellor of Indiana University-Purdue University Indianapolis. It takes effect Aug. 1. * * *

Graham spent 16 years at the Harvard School of Public Health, where he was a faculty member, deputy chairman of the Department of Health Policy and Management and founding director of the Center for Risk Analysis, which he led from 1989 to 2001.

At the Office of Management and Budget from 2001 to 2006, he oversaw for President Bush federal regulatory policy, statistical policy and information, and directed a staff of 50 career policy analysts with backgrounds in science, engineering, economics, statistics and law. * * *

Graham has a doctorate degree in urban and public affairs from Carnegie-Mellon University, a master's degree in public affairs from Duke University and a bachelor's degree with honors in economics and politics from Wake Forest University. He is the author or co-author of seven books on safety, regulation and risk assessment and more than 140 published papers and reports. He is married and has two daughters. * * *

William Ruckelshaus, an Indiana native who became the first head of the U.S. Environmental Protection Agency in 1970, said, "I've known John Graham for over 25 years. He has had a long career assessing and managing the risks to public health and the environment. He has always been scrupulous, honest and thorough in his actions. SPEA is fortunate in having a person of Graham's stature as its new dean."

Created in 1972, the IU School of Public and Environmental Affairs has earned national distinction for innovative educational programs that combine administrative, social, economic, financial and environmental disciplines. It was ranked No. 2 for graduate programs in public affairs last month by U.S. News & World Report.

Posted by Marcia Oddi on Thursday, April 17, 2008
Posted to Environment

Ind. Decisions - Court of Appeals issues 2 today (and 26 NFP)

For publication opinions today (2):

In Thelma M. Nornes v. Raymond M. Nornes , a 6-page opinion, Judge Kirsch writes:

Thelma M. Nornes (“Wife”) appeals the trial court’s Decree of Dissolution claiming that the trial court abused its discretion in dividing the marital property by requiring her to pay the entirety of her student loan liabilities. We reverse and remand with instructions. * * *

We hold that, in the absence of an agreement of the parties to the contrary, where the parties divide between themselves a part of the marital estate and leave the division of the balance to the discretion of the trial court, the trial court should assume that the property that the parties have already divided was divided justly and reasonably and shall divide the remainder of the assets and liabilities of the parties as if they were the entirety of the marital estate. Thus, it should first determine if the fifty/fifty presumption should be applied. If so, it should divide the remainder of the assets and liabilities equally. If the presumption is not to be applied, the court should apply the statutory factors to determine the percentage that each party should receive and divide the remainder accordingly. By doing so, the parties will maximize the value of their settlement and the trial court will have a basis for its property division that conforms to the statute.

Here, the Wife’s student loans were marital obligations. The trial court erred by assigning the Wife’s student loans on the basis that Wife has the degree and she should now pay for it. While tying debts to respective assets may be appropriate in some property divisions (as where a trial court assigns the marital real estate to one party subject to the mortgage liability thereon), a degree is not an asset. * * *

Accordingly, we vacate the trial court’s entry as to Wife’s student loans and remand with instructions to divide the loans in accordance with this decision. We instruct the trial court to determine whether the fifty/fifty presumption should be applied or whether another division is reasonable and then to divide Wife’s student debt between the parties in accordance with that division.

In Allianz Insurance Company, et. al. v. Guidant Corporation, et. al., a 32-page opinion, Chief Judge Baker writes:
At the heart of this monstrosity of a litigation that has crossed state lines and caused all parties to behave inexplicably at times, is a fairly straightforward dispute about when and whether an insurer’s duty to defend has been triggered. We confess our frustration that the parties have forced the Indiana courts to take part in a race to the finish with the courts of Illinois.

Appellants-defendants Allianz Insurance Company (Allianz) and others (the Excess Insurers) (collectively, the Insurers) appeal the trial court’s orders (1) granting partial summary judgment in favor of appellees-plaintiffs Guidant Corporation (Guidant) and others (collectively, the Policyholders) on the Policyholders’ claim that the Insurers breached their duty to defend; and (2) striking an affidavit and attached exhibits supporting the Insurers’ opposition to summary judgment.

Additionally, the Policyholders cross-appeal the trial court’s order denying their motion for judgment on the pleadings on Allianz’s affirmative defense of fraud. They argue that inasmuch as Allianz has elected not to rescind the contract and has retained all premiums paid pursuant to the insurance policy at issue, it has waived an argument that the policy is void due to alleged fraud. Finding that the trial court erroneously denied the Policyholders’ motion for judgment on the pleadings and erroneously granted partial summary judgment in favor of the Policyholders, we reverse and remand for further proceedings consistent with this opinion.

Some of you may remember the March 24th ILB writeup preceding the oral arguments in this case, which noted CJ Baker's docket entry directing the parties: "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." Beginning on p. 3 of today's opinion, under the heading "Preliminary Issue: Public Access," CJ Baker discusses Indiana Administrative Rule 9's presumption of open public access to court records, and specifically 9(H), which sets forth the procedures to be followed by litigants and the trial court if one or more parties desire that certain information be shielded from public access. This discussion, which is must reading, is followed by the application in this case:
In this case, the parties explained at oral argument that the trial court entered a protective order that essentially sealed the entire case from public view. Although there is nothing inherently improper about such an order, here, the trial court neglected to hold a public hearing first, as required by Rule 9(H)(2). In all likelihood, the trial court decided not to do so because the parties agreed to the confidentiality of the litigation. The rule, however, does not include an exception for such a circumstance. Indeed, it is in precisely such a situation that a public hearing and a trial court’s thoughtful weighing of the interest of public access against the parties’ joint request are sorely needed, because in their absence, there is no advocate for sunlight. Thus, the trial court’s order sealing the litigation from public view violated Administrative Rule 9(H) and was thereby improper. [Emphasis by ILB.]

Moreover, our review of the record, the briefs, and the issues has revealed no confidential information to which we need refer in resolving this appeal—which, at its heart, is a contractually-based insurance coverage dispute. Therefore, we need not and will not restrain ourselves—even in this public forum—from a full description of the facts, the parties’ arguments, and our resolution thereof.

NFP civil opinions today (7):

Norman Lipp v. Girl Scouts of America (NFP) - "In other words, because Norman accepted third-party settlements, the Girl Scouts’ liability terminated without regard for Carolyn’s right to benefits arising out of the same injuries. This result is not unfair where, as here, Norman and Carolyn received full compensation during Norman’s life, and it is consistent with the purpose of the statute."

Robin Burmeister v. Midwest Logistics a/k/a Staffing Services, Inc. (NFP) - "Burmeister presents a single issue for our review, namely, whether the Board erred when it determined that her alleged injuries did not occur either in the course or in the scope of her employment with Midwest Logistics (“Midwest”). We affirm."

Darren A. Hestad v. Mary K. Hestad (NFP) - "Husband presents a single issue for our review, namely, whether the trial court abused its discretion when it ordered him to pay Wife’s attorney’s fees. We affirm."

In William A. SerVaas v. Indiana Dept. of Environmental Management (NFP), a 6-page opinion, Judge Kirsch concludes:

SerVaas filed his complaint seeking compensation for the alleged taking of his personal property, specifically arguing that IDEM “seized and destroyed” his personal property, the USTs, without just compensation. SerVaas based his claim upon his phone conversation with an unidentified IDEM employee in 1991, which he contended gave him no alternative but to remove his two USTs rather than use them as tornado shelters. SerVaas admits that the USTs were personal property. Indiana law provides a two-year statute of limitations for damage to personal property. IC 34-11-2-4. “In determining when either a claim of breach of a written contract or tort claim accrues, Indiana follows the ‘discovery rule.’” Strauser v. Westfield Ins. Co., 827 N.E.2d 1181, 1185 (Ind. Ct. App. 2005). Under this rule, a cause of action accrues, and the statute of limitations begins to run, when the plaintiff knew or in the exercise of ordinary diligence could have discovered that an injury had been sustained as a result of a tortious act of another or that the contract had been breached. Id.; Del Vecchio v. Conseco, Inc., 788 N.E.2d 446, 449 (Ind. Ct. App. 2003), trans. denied. The exercise of reasonable diligence means that “an injured party must act with some promptness where the acts and circumstances of an injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist.” Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 683, 689 (Ind. Ct. App. 2006).

Here, assuming that SerVaas had a claim arising out of the removal of his USTs, the dates of the alleged loss occurred when he removed his USTs in 1991 and on March 31, 1998 based upon the phone conversation he had with the unidentified IDEM employee in 1991. Any cause of action that he had against IDEM accrued as of these dates. SerVaas did not file his Notice of Tort Claim until May 1, 2004, and he did not file his complaint until April 7, 2006. Therefore, neither of these was filed within two years of when SerVaas’s loss occurred. Affirmed.

A Child's World v. Review Board (NFP) - "Appellant-respondent A Child’s World appeals the decision of the Review Board of the Department of Workforce Development (the Board) affirming an Administrative Law Judge’s (ALJ) determination that Melissa Hodde, a former employee of A Child’s World, is entitled to unemployment compensation. A Child’s World argues that the Board erroneously refused to consider certain supplemental evidence and rendered a judgment that was not supported by the evidence. Finding no error, we affirm."

Shawn Kelley v. National Check Bureau, Inc. (NFP) - "In sum, Kelley did not timely object to the admission of the Agreement and Exhibit 1 into evidence. As such, he has waived his argument that those documents were improperly admitted into evidence. Further, the trial court did not commit reversible error in the admission of either Exhibit 3 or Exhibit 7. Accordingly, we affirm the court’s judgment against Kelley."

Amy Fetz v. Thomas Fetz, Sr. (NFP) - "Appellant-Petitioner Amy Fetz (“Mother”) appeals the custody provisions of the dissolution decree ending her marriage to Appellee-Respondent Thomas Fetz, Sr. (“Father”). We affirm."

NFP criminal opinions today (19):

Kevin D. Morris v. State of Indiana (NFP)

Michael Gaynor v. State of Indiana (NFP)

Charles Moore v. State of Indiana (NFP)

Alfredo Gonzalez v. State of Indiana (NFP)

James C. Chester v. State of Indiana (NFP)

Melburne Leitzow v. State of Indiana (NFP)

Lea D. Daulton v. State of Indiana (NFP)

Leonard Brewer, Jr. v. State of Indiana (NFP)

Marco Washington v. State of Indiana (NFP)

Lynn A. McNulty v. State of Indiana (NFP)

John H. Redmond v. State of Indiana (NFP)

Debra Kern v. State of Indiana (NFP)

Atashia Wildey v. State of Indiana (NFP)

Marcel Edmond State of Indiana (NFP)

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

Ernest E. Atkinson, Jr. v. State of Indiana (NFP)

Myron Hottell v. State of Indiana (NFP)

R.C. v. State of Indiana (NFP)

Sandro Medina v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 17, 2008
Posted to Ind. App.Ct. Decisions

Ind. Law - More on "Should sex offenders' wrongs cost them their civil rights?"

Following up on reporter Laura Lane's comprehensive look yesterday at the issues posed by sex offender statutes (see ILB entry here), today the Bloomington Herald-Times adds its editorial voice ($$$):

In 2003, the Indiana General Assembly established Indiana’s sex and violent offender registry, giving the public free online access to photographs, addresses, employers and conviction information for thousands of convicted sex offenders.

Soon after its enactment, the law was challenged and upheld by the Indiana Supreme Court. Accepting the legislative premise that disclosure of such information is necessary for the protection of public safety, the court ruled that “Zachary’s Law” — named for the 10-year-old boy who was murdered by a convicted sex offender — did not violate privacy and reputation rights granted by the Indiana Constitution.

The General Assembly has continued to amend the law to further restrict sex offenders. One amendment, currently being challenged on constitutional grounds, prohibits an offender from living within 1,000 feet of a school, day-care center or youth program.

Effective July 1, a new Indiana law will require sex offenders to sign a consent form authorizing law enforcement authorities to search their computers and monitor their Internet usage. The American Civil Liberties Union of Indiana recently has filed a lawsuit alleging that requiring such “consent” — which is hardly consent if required by law — violates constitutional protections against unreasonable searches and seizures.

Keeping children safe should be a priority of all three branches of government. Sentences for sex offenders should be meted out and enforced. But the General Assembly should not be allowed to use its legislative power to create constitutionally suspect restrictions that last far longer than a completed sentence.

Neither the 1,000-foot rule nor the computer-search consent rule distinguishes between low-risk and dangerous offenders. Nor is there a demonstrated correlation between residency and sex offense; the latest law merely creates an illusion of safety. Experts agree that most offenders are not strangers but persons known to the victim’s family.

Describing the situation of a convicted offender who has served his sentence but lives just within 1,000 feet of a school, Monroe County Sheriff Jim Kennedy said of the overreaching nature of the law: “Taking people and moving them from homes they have owned for decades, with no subsequent behavior problems, I have a bad feeling about that.”

There is also no demonstrable interest in singling out sex offenders through the 1,000-foot rule. Citizens arguably have just as much interest in knowing whether convicted drunken drivers are living close to where their children will be walking home from school. And some parents might be just as interested in a gun registry, which would reveal whether the parents of their children’s friends own firearms.

Instead of more arbitrary restrictions for sex offenders, Indiana should focus on better education and reporting of abusive behavior. Where appropriate, more treatment options should be provided to offenders. Ultimately, we must develop ways to keep our children safer without abrogating fundamental civil rights.

Posted by Marcia Oddi on Thursday, April 17, 2008
Posted to Indiana Law

Ind. Courts - "Suit blames Alcoa for toxins"

Mark Wilson reports today in the Evansville Courier & Press:

Alcoa should be held responsible for exposing miners and others to toxic waste it disposed of at a Warrick County coal mine more than 20 years ago.

That was the argument Wednesday by an attorney representing former miners at the Squaw Creek mine near Boonville, Ind., before Vanderburgh County Superior Court Judge Scott Bowers.

Not to do so, argued attorney Peter Racher of the Indianapolis law firm Plews, Shadley, Racher and Braun, would be "illogical and bad public policy."

But lawyers for Alcoa argued the company should be shielded from the lawsuits by the workers' compensation law.

Bowers, who was appointed a special judge in two Warrick Circuit Court cases involving the waste disposal, began hearing oral arguments from attorneys from both sides Wednesday.

The lawsuits originally were filed in Warrick Circuit Court in 2006, and Alcoa unsuccessfully sought to have the case moved to federal court.

Cassandra Collins and Alexandra Cunningham, Alcoa attorneys, argued that the matter should not be decided by the court but instead by the state's workers' compensation board.

Even if the lawsuit moves forward, some of its elements should be dismissed, they argued.

The mine near Boonville is the subject of two lawsuits filed by former mine employees. They allege that from 1965 through 1979, the company dumped 65 million gallons of cancer-causing coal tar pitch and 74 million cubic feet of chromium and chromium sludge and other toxic wastes into mine pits.

They also allege that the toxins possibly were dumped onto haul roads and other areas of the 5,000-acre section of the mine called the North Field.

The mine workers claim that unlike Alcoa employees, they never were told about the waste content or that it was toxic and were not given any special safety instructions or protective clothing.

Collins argued the mine was operated as a joint venture with Peabody Coal Co., making the workers employees of both companies. Because of this, she argued, Alcoa should be shielded from legal actions by immunity clauses in workers' compensation law.

But Racher said the two-year statute of limitations on compensation claims expired by the time workers realized they were having health problems that may have been linked to workplace exposures.

He also argued many people other than the workers were exposed through recreational use of the property and exposure to contaminated soil brought home on the workers' clothing.

Dozens of former workers and their family members have testified in recent years at various depositions and hearings related to the mining permit that they have experienced various cancers and other health issues.

However, an independent health assessment paid for by Alcoa and offered to the miners concluded in January, after examining more than 200 former mine employees and family members, that any exposure they may have had to the waste did not result "in an excess number of any medical condition," including cancer.

See earlier related ILB entries from Nov. 18, 2006, Nov. 13, 2006, and Feb. 20, 2006.

Posted by Marcia Oddi on Thursday, April 17, 2008
Posted to Indiana Courts

Ind. Law - "Vigo’s Ephedrine ordinance could be revamped"

Howard Greninger reports today in the Terre Haute Tribune-Star in a story that begins:

A county ordinance aimed at ingredients used in over-the-counter allergy and congestion medicines should be amended to account for sellers of the product, said Vigo County Sheriff Jon Marvel.

The sheriff wants to hold sellers responsible for the number of packages sold weekly

“There is a loophole in [the ordinance] we found … that makes it difficult to enforce, as [the ordinance] is not specific enough,” Marvel said.

Vigo’s 2004 ordinance targets ephedrine, pseudoephedrine, ephedrine hydrochloride, pseudoephedrine hydrochloride, pseudoephedrine sulfate and phenylpropanolamine, substances used to make methamphetamine.

The county ordinance was passed before a state law that also targets meth ingredients.

Vigo is the only county with a local ordinance because it was passed before the state law took effect.

Later in the story:
The county attorney will prepare an amendment, however he voiced concern about “what effect the state ordinance might have, if that precludes us from amending our ordinance. I will check into that.”

[County Attorney Robert Wright] said if county officials want the amendment, it could place the county under the state law, which means the county prosecutor’s office would be responsible for enforcing the law, instead of the county attorney.

Posted by Marcia Oddi on Thursday, April 17, 2008
Posted to Indiana Law

Ind. Decisions - Still more on: Lethal injection case heard before SCOTUS; Indiana implications

Updating this ILB entry from yesterday, several stories today cite Justice Ginsburg's dissent contrasting the Kentucky procedure with that of several other states, including Indiana. The discussion begins at p. 93 of the PDF document (p. 7 of the dissent):

Recognizing the importance of a window between the first and second drugs, other States have adopted safeguards not contained in Kentucky’s protocol. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 19– 23. * * *

In Indiana, officials inspect the injection site after administration of sodium thiopental, say the inmate’s name, touch him, and use ammonia tablets to test his response to a noxious nasal stimulus. See Tr. of Preliminary Injunction Hearing in 1:06–cv–1859 (SD Ind.), pp. 199–200, online at http://www.law.berkeley.edu/clinics/dpclinic/ LethalInjection/Public/MoralesTaylorAmicus/20.pdf (hereinafter Timberlake Hearing). [ILB - This 211-page transcript is available here.]

These checks provide a degree of assurance—missing from Kentucky’s protocol—that the first drug has been properly administered. They are simple and essentially costless to employ, yet work to lower the risk that the inmate will be subjected to the agony of conscious suffocation caused by pancuronium bromide and the searing pain caused by potassium chloride. The record contains no explanation why Kentucky does not take any of these elementary measures.

Linda Greenhouse's lengthy story today in the NY Times includes the following:
While the 7-to-2 ruling did not shut the door on challenges to the lethal injection protocols in other states, it set a standard that will not be easy to meet. Chief Justice John G. Roberts Jr. said in the court’s controlling opinion that challengers must show not only that a state’s method “creates a demonstrated risk of severe pain,” but also that there were alternatives that were “feasible” and “readily implemented” that would “significantly” reduce that risk.

“A slightly or marginally safer alternative” would not suffice, the chief justice said. He added: “Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual” under the Eighth Amendment.

Dozens of executions have been delayed around the country in recent months. Gov. Tim Kaine of Virginia, a Democrat, announced within hours of the ruling that he was lifting a moratorium on executions he had imposed, and other states were expected to follow.

The Supreme Court itself had not imposed a general moratorium, instead granting individual stays of execution in cases that reached the court. Those stays will dissolve automatically when the justices deny the underlying appeals, as they are expected to do in the next week or two.

At issue in the Kentucky case was not the constitutionality of lethal injection itself, the method specified by 35 of the 36 states that have the death penalty. (Nebraska is the exception.) Rather, the challenge was to the details of the injection’s administration: the chemicals used, the training of the personnel, the adequacy of medical supervision, and the consequences and risk of error.

The legal question was what standard to apply in evaluating the risk. The appeal, brought by two men on Kentucky’s death row, Ralph Baze and Thomas C. Bowling, each convicted of double murders, asked the court to find the Kentucky protocol unconstitutional if it imposed an “unnecessary risk” of error in light of potential alternatives. Chief Justice Roberts, applying the more rigorous standard he outlined, said that the risks identified by the inmates were not “so substantial or imminent as to amount to an Eighth Amendment violation.”

While most states use a method similar to Kentucky’s, a number of them have adopted additional safeguards to ensure that an inmate is properly anesthetized by the initial drug in the sequence, a barbiturate, before administration of the second two, which paralyze the muscles and stop the heart.

In fact, Justice Ruth Bader Ginsburg, in a dissenting opinion, listed several of these states and described the extra steps they have taken, to show that Kentucky could and should be required to do a better job. The states she named were Alabama, California, Florida, Indiana and Missouri. The other dissenter, Justice David H. Souter, signed her opinion.

The Indianapolis Star story today links to a "history on Indiana’s death row and background on the inmates housed there."

The Fort Wayne Journal Gazette carries the Washington Post's report, along with a side-bar quoting from Justice Ginsburg's dissent and quoting Indiana Deputy Attorney General Steve Creason: "Creason said he doesn’t expect an execution to take place in Indiana for at least a year. Sixteen people are on death row; the state is appealing court decisions setting aside the death penalties of four others."

Posted by Marcia Oddi on Thursday, April 17, 2008
Posted to Indiana Decisions

Wednesday, April 16, 2008

Courts - "Defense Builds 'Supermax' Cell Replica For Inmate Trial"

Talk about a courtroom exhibit. The Crime & Justice News has this entry today:

Charles Packard and nine contractors built an exact replica of a cell at the "Supermax" facility at the federal prison in Florence, Co., It's the cell where Rudy Sablan lived with his cousin, William, and Joey Estrella. Rudy Sablan is charged with first-degree murder in the 1999 death of Estrella; prosecutors seek the death penalty. Opening statements in his trial are today at the Denver federal courthouse. William Sablan was convicted last year and sentenced to life in prison without the possibility of parole.

A key part of the defense case is the cell they occupied. Defense attorneys want to draw attention to conditions at the prison. The 7-by-11-foot cell the three men shared was intended for a single man. To convey the emotional reality, Packard was hired to build a cell accurate to within a quarter of an inch. He is scheduled as an expert witness to testify about his design, which cost about $15,000.

Read the whole story, reported by Lisa Bornstein of Rocky Mountain News. A measured drawing of the cell is here.

Posted by Marcia Oddi on Wednesday, April 16, 2008
Posted to Courts in general

Ind. Law - "Should sex offenders' wrongs cost them their civil rights?" [Updated]

The Court of Appeals heard oral arguments March 31st in the case of State of Indiana vs. Anthony Pollard. Here is the case summary.

Today Laura Lane of the Bloomington Herald-Times takes a comprehensive look at this case and the issues posed by sex offender statutes in a story headed "Should sex offenders' wrongs cost them their civil rights?"

When it comes to balancing the rights of people convicted of sex crimes with the obligation to protect children from harm, you won’t find many standing up for the bad guy.

“When you have children on one side and sex offenders on the other, it’s hardly surprising that society is willing to surrender the rights of the sex offender,” said Craig Bradley, an Indiana University School of Law professor who specializes in criminal law and the Constitution.

In 2003, Indiana established a sex offender registry that offers the public a Web site featuring photographs, addresses, employers and conviction information of the more than 8,000 residents convicted of sex-based charges ranging from sexual battery to child molesting.

Since the law’s passage, amendments have made it more restrictive for offenders, adding requirements such as prohibiting a convicted sex offender from living within 1,000 feet of a school, day-care center or youth program.

Another, which goes into effect July 1, requires sex offenders to sign a consent form authorizing authorities to search their computer and monitor their Internet usage.

The trend leaves some wondering if the state is going too far in limiting the rights of citizens who for a period of 10 years to their entire lifetime must publicly register as sex offenders.

They stay under state control long after they have served their time in jail, years after their release from probation.

“Certainly, that argument has been made, but in the case of sex offenders, it generally has not been successful because people are afraid of sex offenders,” Bradley said. “And judges are afraid to strike down laws that protect children.”

But the law has seen some recent challenges. Earlier this month, the Indiana Civil Liberties Union (ICLU) filed a class-action lawsuit against the state’s sheriffs and prosecutors. The lawsuit alleges that the blanket consent for computer searches violates the Fourth Amendment to the U.S. Constitution, which protects citizens from unreasonable searches.

In most criminal situations, police must prove there is probable cause to believe that a person in engaging in illegal activity before a search can be executed. But that standard has been put aside when it comes to sex offenders.

“Since these offenders are no longer under state control, it really seems to be way beyond the scope of what the Fourth Amendment allows,” said Ken Falk, ICLU legal director. He filed the lawsuit in the computer-access case.

“If you have committed a crime in the past and are off probation and free from the legal system, all of your constitutional rights are restored,” Falk said, “except when the Legislature says you surrender your Fourth Amendment protection.”

He called the most recent legislation unique in the United States. “There’s no jurisdiction that ever tried to do this because it is so blatantly unconstitutional,” Falk said.

In March 2007, a Blackford County judge ruled the 1,000-foot rule unconstitutional. Anthony Pollard, convicted in 1997 for a sex offense against a child, was arrested Jan. 26, 2007, and charged with a felony for living within 1,000 feet of a school.

He had owned the property for 20 years, and vacating his residence was not a condition of his sentence. The 1,000-foot rule went into effect after he had served his time and moved back home with his wife.

Judge John Forcum determined that forcing the man to move retroactively increased the punishment for the crime, in violation of the Costitution.

The prosecutor sought a hearing before the appeals court, arguing that the state has a right “to impose regulations that promote order, safety, health, morals and the general welfare of society.”

Two weeks ago, a panel of three Indiana Court of Appeals judges heard oral arguments in the Pollard case. They have not yet issued a ruling.

Some states have upheld such laws; others have struck them down

Monroe County Sheriff Jim Kennedy is paying close attention. There’s a convicted Monroe County sex offender living with his wife within 1,000 feet of a local school, and Kennedy is obligated by law to move him out.

But he is reluctant, concerned about the implications of a law that continues to punish people long after they have served their time.

“My whole premise on this is that the law is vague in some aspects and perhaps overreaching in others, and it is my feeling that it should be interpreted by the judiciary branch of government before the executive branch acts,” he said.

“Taking people and moving them from homes they have owned for decades, with no subsequent behavior problems, I have a bad feeling about that.”

He said the man lives just within 1,000 feet of the school; the law would not apply to him if his home was a few feet farther away.

“The original offense did not involve school children, and he has had absolutely no problems with the law whatsoever since his release,” the sheriff said.

Brown, Greene, Lawrence, Monroe, Morgan and Owen counties have a total of 300 sex offenders listed on the registry.

Among them: a 21-year-old Indiana University student convicted of sexual battery in Kentucky in 2005, a 46-year-old Bedford woman convicted of sexual misconduct with a minor in 1998 and a 68-year-old Martinsville man convicted of child molesting 19 years ago. None of them can leave behind the convictions that taint their pasts, like other criminals can.

Violent offenders, too, are listed on the registry for life. They include a 51-year-old Lyons woman who spent a decade in prison after a 1992 conviction for voluntary manslaughter and a 61-year-old Bedford man convicted of murder in 1991 who was released after 10 years behind bars.

No one questions that sex offenders must be held accountable for their crimes and pay the price the justice system metes out. Trouble arises when the punishment goes on after a person is released from the judicial system.

“It seems scary to me that you can tether them for the rest of their lives,” said Bradley, the law professor.

“It seems to me that at some point, it exceeds the state’s legitimate interest in keeping track of sex offenders and becomes unnecessary additional punishment.

“In general,” he said, “any time the government gets a little too frisky about protecting us, you need to be concerned.” [Posted with permission.]

[Updated] Here is a related story in today's Martinsville Reporter-Times, reported by Keith Rhoades, along with the notation "Bloomington Herald-Times reporter Laura Lane contributed to this report."

Posted by Marcia Oddi on Wednesday, April 16, 2008
Posted to Indiana Law

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

The 7th Circuit today issues a combined opinion for three cases, including Darrell Bruce v. KeyBank (ND Ind., Judge Lozano). Judge Easterbrook:

We have grouped for decision three appeals under the Fair Credit Reporting Act presenting issues that have arisen in numerous suits throughout the circuit. Each of the appeals presents at least two issues, several of which recur in multiple appeals. We therefore organize the opinion around these issues rather than the facts of the cases, which we use to illustrate the problems.

1. Must an offer of credit be valuable to all or most recipients? * * *

2. Does a promise of “free” merchandise mean that an offer is not one “of credit"? * * *

3. Must the initial flyer contain all material terms? * * *

4. Does a power to vary the deal’s terms make the offer not “firm"? * * *

5. Is six-point type “conspicuous"? * * *

6. Is the use of 6-point type a “willful” violation of FCRA? * * *

To sum up:

In Murray, the offer of a free phone in connection with a service plan is an offer of credit. Although the disclosure required by 15 U.S.C. §1681m(d) was not conspicuous, Cingular did not wilfully violate FCRA because it was not reckless. The district court did not anticipate Safeco’s adoption of a recklessness standard but came to the same ultimate conclusion on each issue, 432 F. Supp. 2d 788 (N.D. Ill. 2006), and its judgment is affirmed.

In Bruce, the circular made a “firm offer of credit” despite the omission of some material terms and the reservation of a power to change terms. The district court erroneously held otherwise, see 2006 U.S. Dist. LEXIS 91371 (N.D. Ind. Dec. 15, 2006), but went on to conclude that the violation was not willful because KeyBank did not know that it was violating the Act. That approach, too, is erroneous in light of Safeco (which was released after the district court’s opinion). Neither of the district court’s missteps calls for a remand. Because we hold that there was no violation, the judgment is affirmed.

In Price, the district court held that the omission of a minimum line of credit is compatible with a “firm offer of credit” and entered judgment for Capital One Bank. 2007 U.S. Dist. LEXIS 37796 (E.D. Wis. May 22, 2007). We agree with this conclusion and affirm.

Posted by Marcia Oddi on Wednesday, April 16, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

For publication opinions today (3):

Arthur Harris v. State of Indiana - "Attempted voluntary manslaughter with a deadly weapon is a Class A felony and carries the same penalty as attempted murder. See IC 35-41-5-1; IC 35-42-1-3. Because prosecutions for attempted voluntary manslaughter have both the higher sentencing range and the ambiguities involved in the proof of attempted murder prosecutions, we conclude that attempted voluntary manslaughter is not a lesser offense of attempted murder, and therefore the Spradlin rule applied. Therefore, the trial court erred in failing to instruct the jury that the State was required to prove that Harris acted with the specific intent to kill. We reverse his conviction for attempted voluntary manslaughter and remand for a retrial."

Yolanda Poole v. Tom Naquin Chevrolet Nissan, Inc., and Jet Leasing, Inc. - "Poole contends that the damages award is inadequate because she proved actual damages pursuant to the Odometer Act and is entitled to trebling of that amount. * * *

"Naquin and Jet Leasing complain that Poole presented no expert testimony. However, the Odometer Act provisions do not require expert testimony to prove actual damages. See Nigh v. Koons Buick Pontiac GMC, Inc., 143 F. Supp. 2d 535 (E.D. Va. 2001) (observing that expert testimony is not necessary to prove a claim under the Odometer Act). Poole and her husband testified without objection that Johnston, an employee of a dealership selling over 1,000 vehicles per year, opined shortly after the sale that the Cadillac purchased for $11,746.05 was worth only $3,000. We conclude that the evidence of record establishes that Poole sustained actual damages of $8,746.05.3 She is entitled to have this amount trebled, yielding a judgment of $26,238.15. She is also entitled to the attorney’s fees of $7,060."

In Lawrence E. Newbill v. State of Indiana , a 26-page opinion, Judge Darden writes:

Lawrence E. Newbill appeals his conviction, after a jury trial, on one count of rape, as a class B felony. We affirm.

Issues. 1. Whether insufficient evidence of force supports the jury’s conclusion that Newbill committed rape. 2. Whether the trial court committed reversible error in its instruction of the jury. 3. Whether the prosecutor committed misconduct. 4. Whether the trial court committed reversible error in the admission of evidence. 5. Whether the trial court’s admission of some testimony by a sexual forensic nurse examiner constituted fundamental error. 6. Whether cumulative trial error combined to deny Newbill a fair trial.

NFP civil opinions today (4):

In the Matter of T.A., A.B., Mother v. Elkhart County Department of Child Services (NFP) - "A.B. (“Mother”) appeals the trial court’s order terminating her parental rights to her son, T.A. (“T.”). We affirm."

Term. of Parent-Child Rel. of A.C., Child, and S.F. and A.K., Parents v. Porter Co. Dept. of Child Services, and CASA Program of Porter County (NFP) - "S.F. (“Mother”) appeals the termination of her parental rights as to her daughter, A.C. We affirm."

In Meldon Wayne Smith v. JPMorgan Chase Bank, N.A. (NFP), a 13-page opinion, the issue was "Whether the trial court properly found that no genuine issues of material fact existed as to Smith’s mental capacity or his subsequent ratification of the contract at issue." Judge Darden concludes:

The designated evidence contains facts and circumstances from which Smith’s knowledge of all material facts may be inferred. The relevant 2002 loan documents appear to bear Smith’s signature. Moreover, Chase designated the transcript of a deposition conducted on September 26, 2006, wherein Smith acknowledged the signatures as his own. It is well settled under Indiana law that a person is presumed to understand the documents that he signs. Robert’s Hair Designers, Inc. v. Pearson, 780 N.E.2d 858, 869 (Ind. Ct. App. 2002).

The foregoing facts and circumstances constitute an adequate basis from which to infer Smith’s knowledge of material facts such that he ratified the 2002 loan. Because the designated evidence supports this conclusion, we find no error in the trial court’s conclusion that no genuine issue of material fact exists as to whether Smith subsequently ratified the 2002 loan. Affirmed.

In James V. Lemmon, et al v. James A. Herman, et al (NFP), a 9-page opinion, Senior Judge Barteau writes:
In April 2005, an Allen County Prosecutor’s Office employee incorrectly keyed in data during the issuance of an arrest warrant. The warrant should have been for James E. Lemmon, but the name keyed in was James V. Lemmon. As a result of the error, police arrested James V. Lemmon at his home in front of his wife, Jill, and daughter, Madison. Lemmon was incarcerated for several hours before the error was discovered.

The following year, Lemmon, his wife, and his daughter filed a nine-count complaint against the Allen County Sheriff, the Sheriff’s Department, unnamed employees of the Sheriff’s Department, the Allen County Prosecutor, the Prosecutor’s Office, and unnamed employees of the Prosecutor’s Office, (collectively, the Defendants). The complaint included the following counts: 1) false arrest; 2) false imprisonment; 3) battery; 4) false light invasion of privacy; 5) negligence in preparation of a warrant; 6) negligence in service of a warrant; 7) negligent infliction of emotional distress; 8) intentional infliction of emotional distress; and 9) invasion of privacy. The Lemmons also sought punitive damages.

The Defendants filed motions to dismiss pursuant to Trial Rule 12(B)(6) wherein they alleged that the Lemmons had failed to state claims for relief. The trial court granted the motions, and the Lemmons appeal. * * *

The Lemmons first argue that the trial court erred in granting the motion to dismiss filed by the Allen County Prosecutor, the Prosecutor’s Office, and unnamed employees of the Prosecutor’s Office, in their official capacities. The defendants from the Prosecutor’s Office argue that they have immunity under the Indiana Torts Claims Act because the Lemmons’ losses resulted from the initiation of a judicial proceeding. The Lemmons respond that pursuant to Ind. Code § 34-13-3-3(8), the immunity does not extend to their claims of false imprisonment and false arrest. * * * We find no. error. * * *

Our review of the complaint reveals that the defendants from the Sheriff’s Office, like the defendants in Long, were immune because they were executing a facially valid warrant. The deputies were also immune from liability on an individual basis because the Lemmons’ factual allegations as to the deputies’ conduct does not reflect any conduct that could reasonably be found to be malicious or willful and wanton. Rather, as in Long, the deputies were simply executing a facially valid warrant.

We therefore affirm the trial court’s dismissal of the Lemmons’ claims against the Sheriff, his department, and his unnamed deputies. However, as we did in Long, we strongly admonish the personnel involved in drawing up arrest warrants that the ultimate consequence of their errors should not be forgotten.

NFP criminal opinions today (9):

Christopher France v. State of Indiana (NFP)

Rayna R. Bushrod v. State of Indiana (NFP)

Donald Edward Baker v. State of Indiana (NFP)

Jacob Lewandowski v. State of Indiana (NFP)

Robert J. Bassett, Jr. v. State of Indiana (NFP)

Douglas Wright v. State of Indiana (NFP)

Daniel Harvey v. State of Indiana (NFP)

Dion Lane v. State of Indiana (NFP)

Sammie L. Booker v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 16, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still more on: Judicial mandate mentioned in Carroll County

The confrontaion continues between the Carroll County Council and the Carroll County judiciary, as is apparent in reveiwing these quotes today from a story by Debbie Lowe in the Carroll County Comet:

Department heads were invited to appear and address budget reduction questions and concerns. Although many departments were represented, only a few spoke, including Carroll Superior Court Judge Jeffrey Smith and Circuit Court Judge Donald Currie.

Smith explained, with a comparison chart visual aid, how his court could not continue to function with the latest proposed budget reductions. He said superior court would lose a court reporter.

"The council is engaged in mystical thinking," he said as he explained the workload of court staff.

"We aren't dreaming this up," council member Steve Ashby said. "We are struggling as you are. If we don't cut it to $5 million, we're dead in the water."

Council member Rob Baker confronted Smith about the allegation that joint courts would be losing $50,000. He said the salaries for probation office staff would be paid out of user fees instead of from the general fund.

"You still have the money," he said. "It's just been moved."

"I'm amazed at the offices who have tried to work with us," Baker continued. "We're doing this because we have to."

Currie reminded council members the courts have tried to work in conjunction with them as he described what hardships the current round of budget decreases would cause circuit court. He advised his court employs three staff, as it has since 1980.

"I cannot operate the court with two employees," he said. "You're asking me to operate at a level that no other court in the state operates at."

Currie reviewed 2006 cases handled by circuit court, case-type by case-type. After each example, he paused and asked council members if they were willing to forego addressing that type of case in his court.

"Oh come on," Baker exclaimed. "You guys are grand-standing pretty good."

"What services are you asking us to cut?" Cripe asked.

"I'm not asking you to cut any services," Currie retorted before sitting down.

Posted by Marcia Oddi on Wednesday, April 16, 2008
Posted to Indiana Courts

Ind. Decisions - More on: Lethal injection case heard before SCOTUS; Indiana implications

Updating this Jan. 8, 2008 ILB entry, today the AP's Mark Sherman reports "Supreme Court upholds use of lethal injections." The long story begins:

WASHINGTON (AP) -- The Supreme Court on Wednesday upheld the most common method of lethal injection executions, likely clearing the way to resume executions that have been on hold for nearly 7 months.

The justices, by a 7-2 vote, turned back a constitutional challenge to the procedures in place in Kentucky, which uses three drugs to sedate, paralyze and kill inmates. Similar methods are used by roughly three dozen states.

"We ... agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment," Chief Justice John Roberts said in an opinion that garnered only three votes. Four other justices, however, agreed with the outcome.

Roberts' opinion did leave open subsequent challenges to lethal injection practices if a state refused to adopt an alternative method that significantly reduced the risk of severe pain.

Justices Ruth Bader Ginsburg and David Souter dissented.

Executions have been on hold since September, when the court agreed to hear the Kentucky case. There was no immediate indication when they would resume, but prosecutors in several states said they would seek new execution dates if the court ruled favorably in the Kentucky case.

Today's decision is here - Baze v. Rees.

Posted by Marcia Oddi on Wednesday, April 16, 2008
Posted to Indiana Decisions

Ind. Courts - Yet more on: "Lawyer guilty of attack on woman in wheelchair"

Updating this ILB entry from March 11th, Bob Kasarda of the NWI Times reports today in a story that begins:

VALPARAISO | One month after he was sentenced to jail for sexually assaulting a woman who relies on a wheelchair, Michael Haughee was brought back to court Tuesday to request the opportunity to bond out to pursue his appeal.

The former Hebron Town Council President and former Lake County Deputy Prosecutor said he needs to be out of jail to properly pursue his appeal.

He said he has access to just a small amount of his records at the jail and no real access to a law library.

Haughee said he dismissed his defense attorney, Garry Weiss, and plans to initially pursue the appeal on his own. Haughee has worked as an attorney, but his law license is currently suspended.

Posted by Marcia Oddi on Wednesday, April 16, 2008
Posted to Indiana Courts

Ind. Courts - Evansville attorney pleads to some meth charges

The ILB had a number of entries in 2007 re several Evansville attorneys charged with meth-related offenses. The most recent, from Nov. 14th, 2007, referenced the stories by Kate Braser as "a valuable continuing series of stories on young Evansville attorneys with methamphetamine addictions."

Today Braser of the Evansville Courier & Press reports in a story that begins: "The sentencing of an Evansville attorney facing methamphetamine-related charges is in the hands of a judge. In front of a courtroom of supporters on Tuesday, Teresa Perry, 34, pleaded guilty to some of the charges."

Posted by Marcia Oddi on Wednesday, April 16, 2008
Posted to Indiana Courts

Ind. Decisions - "Appeals court rules against Hyte board"

April 8th's COA ruling in the case of Charles Hyte Comm. Center Assoc. of Terre Haute v. City of Terre Haute Park Board (ILB summary here) was the subject of a brief story yesterday in the Terre Haute Tribune Star. Some quotes:

TERRE HAUTE — The Indiana Court of Appeals has ruled against the Charles T. Hyte Community Center board of directors in its case against the city of Terre Haute.

The court, in a ruling issued April 8, affirmed a lower court decision that granted the city a summary judgment against Hyte. The summary judgment denied a Hyte Center request for a jury trial to determine ownership of the former Hyte Center building at 13th Street and College Avenue in Terre Haute. * * *

The dispute boils down to an argument over who owns the property at 1101 S. 13th St. where the former Hyte Center stood. Ellis said the Hyte board presented around 15 affidavits from people who remember the city granting the property to the Hyte Center board of directors. He also says local volunteers raised over $200,000 to build Hyte Center in 1969 and that other money for the project came from a U.S. government grant.

“There were no local tax dollars that went into that,” Ellis said. “The city didn’t pay for anything.” Federal dollars for the project passed through the city of Terre Haute because of government regulations, he said.

The appeals court ruled that the city of Terre Haute presented “undisputed evidence” of its ownership of the former Hyte Center property. The court also found that affidavits asserting ownership by the Hyte Center board did not raise “genuine issues of material fact regarding ownership.”

Posted by Marcia Oddi on Wednesday, April 16, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Court sides with teacher accused of slapping girl"

Yesterday's 2-1 Court of Appeals decisions in the case of State of Indiana v. Paula J. Fettig (see ILB entry here, second case) is featured on the front page of today's Indianapolis Star, in a lengthy story reported by Jon Murray that begins:

Indiana's corporal punishment laws protect a Beech Grove gym teacher accused of slapping a student from facing battery charges, the state Court of Appeals ruled Tuesday.

The panel upheld a Marion Superior Court judge's dismissal last year of the case against Paula J. Fettig on the grounds that the teacher was trying to restore order to her class.
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A 15-year-old girl accused Fettig of slapping her in January 2007 during a physical education class at Beech Grove High School. The girl, unnamed in court records, was helping an injured classmate.

Fettig denies slapping her and has said she only gripped her chin.

None of the conflicting accounts amounts to cruel or excessive physical punishment, Judge Patricia A. Riley wrote in the 2-1 decision.

Posted by Marcia Oddi on Wednesday, April 16, 2008
Posted to Ind. App.Ct. Decisions

Tuesday, April 15, 2008

Courts - "Bankruptcy Filings Rebound in Calendar Year 2007" [Updated]

So reports the Administrative Office of the U.S. Courts in this release, stating:

Filings rebounded from a 70 percent drop in calendar year 2006, which was the first full 12-month period after the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) took effect.

An historic high in the number of bankruptcies filings was seen in calendar year 2005, when over 2 million bankruptcies were filed, mainly because, in October of 2005, many of the provisions of BAPCPA were enacted. Filings fell through 2006, but started their gradual climb back up in 2007.

However, as shown in the chart included in the release, labeled "Total Bankruptcy Filings by Bankruptcy Chapter Calendar Years, Period Ending December 31, 2003-2007", 2007 filings are still nowhere near the 2004 levels.

 

Chapter

Year

7

11

12

13

2007

519,364

6,353

376

324,771

2006

360,890

5,163

348

251,179

2005

1,659,017

6,800

380

412,130

2004

1,137,958

10,132

108

449,129

2003

1,176,905

9,404

712

473,137

[Updated 4/16/08] Here is a story from the AP headlined "Indiana bankruptcies among highest in U.S."

Posted by Marcia Oddi on Tuesday, April 15, 2008
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 5 today (and 8 NFP)

For publication opinions today (5):

Margarita Overholtzer v. Mark S. Overholtzer - "Margarita raises one issue on appeal, which we restate as: Whether the trial court properly decided that Margarita is not entitled to her share of the cost of living increases on Mark’s retirement benefits from the date the trial court granted the dissolution of marriage to the date of Mark’s actual retirement. Affirmed."

In State of Indiana v. Paula J. Fettig, a 13-page, 2-1 opinion, Judge Riley writes:

The State argues that the trial court abused its discretion when it granted Fettig’s motion to dismiss. Specifically, the State argues that although teachers are permitted to use reasonable corporal punishment when disciplining children, whether Fettig’s actions were a form of reasonable corporal punishment is a question of fact that must be determined by a trier of fact. * * *

The State argues that since the justification for teachers to corporally punish is limited by notions of reasonableness, the issue must be presented to a jury. However this is the very issue which our appellate courts have removed from the discretion of the jury by reversing verdicts finding battery by teachers who have hit students to inflict punishment. * * *

Having reviewed the longstanding precedents of Vanvactor, Danenhoffer, and Marlsbary, we note that they demonstrate the ability of the judiciary to determine whether a teacher has acted within the bounds of her authority to discipline when striking a student. Considering the facts here—no weapons, no closed fist, no repeated blows, no verbal abuse, and the only alleged injury being a stinging sensation—in context with the right of teachers to be free from criminal prosecution for physical punishment that is neither cruel nor excessive, we conclude that the trial court did not abuse its discretion by dismissing the information charging Fettig with battery.

CONCLUSION. Based on the foregoing, we conclude that the trial court did not abuse its discretion when it dismissed the Information charging Fettig with battery. Affirmed.

MAY, J., concurs.
KIRSCH, J., dissents with separate opinion. [which begins] We do not know whether Ms. Fettig’s slapping of one of the students under her care was an appropriate exercise of discipline or a battery punishable under our criminal laws. It could have been either. That’s why we have trials.

We do not know whether the Beech Grove school system has a policy regarding corporal punishment, and we do not know whether Ms. Fettig followed it. That’s why we have trials.

We do not know whether Ms. Fettig was lashing out in anger when she struck the student or whether she was exercising the restraint we should expect from those to whom we entrust our children. That’s why we have trials.

My colleagues cite three cases as authority for upholding the trial court’s action. All three date from the 19th century. The world has changed greatly since that time, and standards of student discipline have also changed greatly.

Ronald Glenn v.State of Indiana - "Based on the foregoing, we conclude that the trial court did not err in refusing to dismiss the prosecution against Glenn based on the delay in bringing charges, the evidence is sufficient to support Glenn’s conviction for felony murder, and the trial court did not commit fundamental error in instructing the jury. However, we find that Glenn’s convictions and sentences for both felony murder and robbery resulting in bodily injury violate the prohibition against double jeopardy. We therefore remand this cause to the trial court with instructions to vacate Glenn’s conviction and sentence for robbery resulting in bodily injury. Affirmed in part and remanded in part with instructions."

Demario L. Banks v. State of Indiana - "[W]e conclude that the post-conviction court did not err when it found that Banks had not received ineffective assistance of trial or appellate counsel, and denied Banks’ Petition for Post-Conviction Relief."

In Brian Mehring v. State of Indiana , a 21-page, 2-1 opinion on an interlocutory appeal, Judge Friedlander writes:

Mehring contends that the ten-month, nineteen-day delay between when the FBI agent downloaded the child pornography images from Mehring’s IP address (May 4, 2005) to when IPD Detective Spivey applied for the search warrant (March 23, 2006) rendered the information stale for the search warrant. * * *

With this caselaw to guide us, we conclude the information in this case was not stale. While a ten-month lapse between the initial discovery of child pornography on Mehring’s IP address and the application for the search warrant is, on its face, cause for concern, this is just one factor in our determination of staleness. Considering the nature of the crime (possession of child pornography, which is a crime commonly committed in secret and the evidence of which is likely to be kept in a safe and private place like a home) and the nature and type of evidence sought (digital or computer images saved to a computer hard drive or to other types of digital media that can be shared yet still retained), in conjunction with the information provided by Detective Spivey—based on his training and experience as a vice detective—regarding the retention habits of people having child pornography, we agree with the trial court that the ten-month time period did not render the information stale. * * *

Ruling affirmed.
ROBB, J., concurs.
MATHIAS, J., dissents with separate opinion. [which begins] I am very sensitive to the tragedy of child pornography, but eleven months is a very long time, especially when one of the most important criteria for the issuance of a search warrant is the accuracy of the facts alleged. Such accuracy usually has an inverse relationship to the age of the facts alleged. This is precisely why stale information cannot and should not support the finding of probable cause. Instead, such stale information gives rise only to a mere suspicion, “especially when the items to be obtained in the search are easily concealed and moved.” Id. It is hard to imagine something that can be more easily concealed, moved, or even destroyed than a digital image. Indeed, such images are a mouse-click away from being moved or deleted. If deleted with today’s computer utility software, such files may well not be recoverable, even with the best forensic software and techniques.

I would also note that in the Indiana cases cited by the majority, the staleness of the information did not even approach eleven months.

NFP civil opinions today (1):

Versto, Inc. d/b/a/ BVD Trucking v. James Smith (NFP) - "Versto, Inc., d/b/a BVD Trucking (“BVD”), appeals the decision of the Indiana Worker’s Compensation Board (“the Board”)1 finding that James Smith is permanently and totally disabled and awarding him worker’s compensation benefits. We affirm."

NFP criminal opinions today (7):

John Wayne Miller v. State of Indiana (NFP)

Alaska Reeves v. State of Indiana (NFP)

Robert W. Anderson v. State of Indiana (NFP)

John Willis Williams, III v. State of Indiana (NFP)

Jessica Iles v. State of Indiana (NFP)

Lawrence H. Lein, III v. State of Indiana (NFP)

Starla Holder v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 15, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "4 vie for Lake county District 3 judgeship"

Related to this entry last weekend re "Lake incumbent judges get nod from lawyer group," Marisa Kwiatkowski of the NWI Tmes reported yesterday:

CROWN POINT | Three newcomers are vying to unseat incumbent Lake County Superior Court Judge Julie Cantrell in the May Democratic primary.

Cantrell, 40, has served as the District 3 court judge for 11 years. She is running for her third term and is the only judge facing opposition to the bench.

"I love what I do," the Crown Point resident said. "I recognize that I can't fix everybody."

Cantrell's re-election is being challenged by Democratic attorneys Randy Godshalk, Nancy Moore Tiller and Jeremiah Sheets. * * *

A recent Lake County Bar Association survey ranked the candidates, and others, on the basis of their professional competence, temperament and general character.

Cantrell scored 64 percent approval for re-election, results show. Godshalk scored 23 percent, 11 percent picking Tiller and 2 percent selecting Sheets.

Posted by Marcia Oddi on Tuesday, April 15, 2008
Posted to Indiana Courts

Ind. Courts - Vanderburgh "teen court" program

John Martin of the Evansville Courier & Press reports:

In more than 30 cases last year, the fate of offenders in Vanderburgh Juvenile Court cases were decided not by Judge Brett J. Niemeier, but by a jury of teenagers.

Youth Resources of Southwestern Indiana put its Teen Court program on public display Tuesday night in the Courts Building, with an abbreviated version of a recent real case decided by a teen jury.

A teen prosecutor and defense attorney jousted during the mock trial over the fate of a student who admitted to pilfering alcoholic beverages from a neighbor's garage.

The offender "violated the personal space of another human being," argued prosecutor Christie Kelley of Mater Dei High School.

Countered defense attorney Jordan Whitledge of North High School, "Ever since Eve ate that fateful apple, none of us has been perfect ... she understands what she did was wrong."

The jury decided to require community service of the defendant, as well as a written letter of apology to the victim.

Niemeier told the audience at the mock trial that only issues of punishment are decided in Teen Court, not guilt or innocence.

Among the offenders who went through the program last year, only 6 percent committed a subsequent offense, which Niemeier said speaks to the value of peer mediation.

He said the experience is valuable for the young volunteers, and if some of them eventually do go to law school and become attorneys, "there couldn't be a better legacy for this program."

Posted by Marcia Oddi on Tuesday, April 15, 2008
Posted to Indiana Courts

Ind. Courts - "Tippecanoe courts 'out of space' for juvenile cases"

Dorothy Schneider of the Lafayette Journal & Courier reports:

About 10 years ago, the Tippecanoe County's juvenile court handled just fewer than 600 cases.

In 2007, that number was 2,254. Because there are more cases and many of them stretch on for months, County Clerk Linda Phillips said it's important the county look at adding a court as part of the planned juvenile justice center.

"We are out of space in the courthouse," she said last week during a county brainstorming session on the project. "There's no place to put another warm body."

When county officials met with architects last week to weigh in on the design of the planned juvenile justice center, much of the discussion centered on whether new courts and associated office space should be included.

But cost estimates for a center that includes detention and intake, alternative services and courts with office space have ranged as high as $22 million, a figure some believe is swaying public opinion against the project.

Posted by Marcia Oddi on Tuesday, April 15, 2008
Posted to Indiana Courts

Ind. Courts - "Sex offender wants off registry"

Bob Kasarda reports today in the NWI Times:

VALPARAISO | Officials were surprised Monday when a convicted sex offender walked into court carrying a toddler to ask the judge to relieve him of the obligation of registering for life for his crime.

Johnnathan Fuller, 34, of Michigan City, who also has gone by the name Geoffrey Jacobs, said when he pleaded guilty to two counts of sexual battery in 1998, he was required to register as a sex offender for 10 years.

The law subsequently changed, and, because both of his victims were under the age of 12, Fuller now is required to register for life, Deputy Prosecutor Cheryl Polarek said. * * *

Porter Superior Court Judge Roger Bradford took the request under consideration.

Neil Hannon, chief of Porter County Adult Probation, said while Fuller still is required to register as a sex offender, he has been off probation for seven years and is allowed to be around children.

Polarek said this is the first petition of this sort to make it to court.

Perhaps the first to make it to court in Porter County.

Posted by Marcia Oddi on Tuesday, April 15, 2008
Posted to Indiana Courts

Monday, April 14, 2008

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

For publication opinions today (5):

In Patrick A. Cleary, M.D., and Ball Memorial Hospital v. Konnie A. Manning, on Her Own Behalf and as the Personal Representative of Paul Manning, Deceased, a 10-page opinion, Judge Barnes writes:

Dr. Patrick Cleary and Ball Memorial Hospital (collectively “the Defendants”) appeal the denial of their motion for summary judgment against Konnie Manning. We affirm.

Issue. The sole issue is whether the trial court properly concluded that Manning could rely on the doctrine of res ipsa loquitur in her medical malpractice action against the Defendants. * * *

There is no question that Dr. Cleary was in direct control of one of the injuring instrumentalities, the Bovie, at the time of the fire. The Hospital does not dispute that it apparently supplied the Bovie to Dr. Cleary, or that it controlled the supply of oxygen that Dr. Caldwell used and provided the drapes that were supposed to isolate the oxygen-rich air around Paul’s head from the surgical field. This is enough to allow res ipsa loquitur to be invoked against Dr. Cleary and the Hospital, despite Dr. Caldwell’s absence from the case.

Moreover, we note that application of res ipsa loquitur only allows an inference of negligence and shifts the burden of production to a defendant. Gold, 720 N.E.2d at 1182. It is not a conclusive finding of negligence. The Defendants here certainly are free to present evidence and argue to the ultimate fact-finder that they did nothing negligent to cause the fire, and the fact-finder would be entitled to accept such an argument. * * *

The trial court properly concluded that Konnie could invoke res ipsa loquitur against the Defendants and, therefore, properly denied the Defendants’ motion for summary judgment. We affirm.

In Everdry Marketing and Management, Inc. v. Steve Carter, Attorney General of Indiana , a 16-page opinion, Judge Crone writes:
Everdry Marketing and Management, Inc. (“Everdry”), appeals a trial court order granting the Indiana Attorney General’s petition to enforce a civil investigative demand (“CID”). We affirm.

Issue. The dispositive issue is whether the trial court erred in asserting personal jurisdiction over Everdry for purposes of enforcing a CID. * * *

Everdry contends that the trial court lacked personal jurisdiction over it and therefore erred in granting the Attorney General’s petition to enforce the CID. At the outset, we note that this appears to be an issue of first impression in Indiana. We first address the general nature of a CID, then examine traditional jurisdictional concepts, and finally apply them in the context of CID enforcement.

A CID is a pre-litigation tool used by the Attorney General to determine whether a violation of Indiana law has occurred. * * *

In Brenda & Darren Wagner v. Bobbi J. Yates, et al , a 6-page opinion, Judge Mathias writes:
Brenda and Darren Wagner (“the Wagners”) appeal from the Floyd Superior Court’s grant of a motion for summary judgment in favor of American Standard Insurance Company of Wisconsin (“American Family”). The Wagners argue whether the terms of American Family’s underinsured motorist policy reduce American Family’s risk exposure under the policy to zero. We affirm. * * *

Because we conclude that American Family may set-off payments made by State Farm, we do not need to address the issue of whether an anti-stacking clause exists in the policy. If State Farm pays the limits of its policy, then American Family could set off an additional $50,000. If American Family set off both the $50,000 paid by Allstate and the $50,000 hypothetically paid by State Farm, then American Family would have reached its policy limits and have no further exposure under its policy.

Wendy Cook and Guy Cook, Jr. v. Bricklayers Local Union 19 of Indiana Retirement Plan , a 9-page opinion, Cheif Judge Baker writes:
This case involves the question of when—not if—a former spouse is entitled to receive benefits from a Qualified Domestic Relations Order (QDRO) that was entered to satisfy a child support arrearage. Appellant-petitioner Wendy R. Cook appeals the trial court’s grant of appellee-intervenor Bricklayers Local Union 19 of Indiana Retirement Plan’s (Bricklayers) motion to correct error, claiming that the trial court erred in denying her request for pension benefits under her former husband’s retirement account pursuant to a QDRO that was entered after the dissolution of the parties’ marriage. Specifically, Wendy argues that a public policy exception under the Employee Retirement Income Security Act (ERISA) to the prohibition regarding the alienability of pension benefits requires that a support recipient who receives a QDRO towards the satisfaction of a child support arrearage should receive funds “sooner rather than later.” Appellant’s Br. p. 2. Concluding that the trial court properly determined that Bricklayers was not obligated to disburse the funds immediately to Wendy from her former husband’s pension plan, we affirm.
In Kerry J. Greenwell v. State of Indiana , an 18-page opinion, Judge Bradford writes:
Appellant-Petitioner Kerry J. Greenwell appeals from the denial of his petition for post-conviction relief (“PCR”). Greenwell contends that the post-conviction court used the wrong standard in evaluating the potential effect of new DNA testing, that a recantation by a state’s witness constitutes newly discovered evidence, and that he received ineffective assistance of appellate counsel. We affirm. * * *

We conclude that the post-conviction court properly denied Greenwell’s claims that DNA test results and newly discovered evidence entitled him to relief and that he received ineffective assistance of appellate counsel. We affirm the judgment of the post-conviction court.

NFP civil opinions today (4):

Mark L. Tyler v. Renee A. Highsmith (NFP) - "In this pro se appeal, Appellant-Respondent Mark L. Tyler challenges the trial court’s order granting Petitioner Renee Highsmith’s petition for a protective order. Upon appeal, Tyler claims that the evidence was insufficient to support the trial court’s order and that the order was entered in violation of his due process rights to a fair hearing. We affirm."

Russell Dennis v. Eddie Egbert, et al (NFP) - "Based upon the foregoing discussion and authorities, we conclude that Dennis did not waive his appellate argument because the issue he raised was included within the substantive question on appeal. Further, based upon the university’s articles of incorporation and the Indiana Nonprofit Corporation Act, the vote of the board of trustees on December 28, 2006 to remove Dennis from the office of the president of the university was proper. Finally, Appellees failed to make a showing that Dennis engaged in either substantive bad faith or procedural bad faith."

Indiana Insurance Company v. Todd and Susan E. Hall, Brian D. Burnell, Cincinnati Insurance Company, Joseph R. Colemann, Deobolique L. Mavity and Jose Garcia (NFP) - "Appellant/Cross-Claim Plaintiff Indiana Insurance Company (“Indiana”) appeals from the trial court’s grant of summary judgment in favor of Appellee/Cross-Claim Defendant Joseph R. Coleman, who was injured in a 2003 automobile accident. Indiana contends that the trial court erroneously concluded that it has a duty to defend and indemnify Brian Burnell, the driver of one of the vehicles involved in the accident and against whom Coleman has filed a negligence suit. Concluding that two genuine issues of material fact remain, we reverse and remand with instructions."

Heather Parks v. Indiana Dept. of Child Services (NFP) - "Thus, we conclude that the trial court’s decision to terminate the Parkses’ parental rights as to B.P. and J.P. was not clearly erroneous. The judgment of the trial court is affirmed."

NFP criminal opinions today (12):

Thomas Farmer v. State of Indiana (NFP)

Justo A. Chagoya v. State of Indiana (NFP)

Ryan Roberts v. State of Indiana (NFP)

Randall J. Scott v. State of Indiana (NFP)

Lu Long v. State of Indiana (NFP)

Freddie Carroll v. State of Indiana (NFP)

Jerry Faber v. State of Indiana (NFP)

Michael Mead v. State of Indiana (NFP)

Detra M. Gray v. State of Indiana (NFP)

Ronnie C. Smith v. State of Indiana (NFP)

Richard Green v. State of Indiana (NFP)

Danny Quick v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 14, 2008
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: Indiana, Land of Lincoln

Updatng this ILB entry from March 9th, where I wrote: "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" that the nationally known Lincoln Museum] is closing its doors and selling off its collection, today Emma Downs of the JG reports:

The Lincoln Museum will close its doors in June. But a new home for its $20 million collection will not be decided until early 2009, a spokeswoman for Lincoln Financial Foundation said Friday.

“This will be a very thorough process,” said Sandy Kemmish, director of the foundation.

“We expect to narrow it down to three organizations by August or September. Following that, we will visit their organizations by October or November. All this will happen before we make our decision.”

Representatives from 35 organizations – including the Allen County Public Library and the Friends of the Lincoln Museum – attended an informational meeting Thursday at Lincoln headquarters in Philadelphia, during which the process for choosing the new owner of the museum’s collection was discussed.

At the meeting, groups interested in acquiring all or part of the collection were told what will be expected of the new owner or owners. * * *

Although Kemmish did not name all of the organizations represented at the meeting Thursday, museums and organizations from as far away as California were in attendance, as were representatives from Indiana, she said.

But the library is hopeful that it will end up as one of the organizations in the running to house the Lincoln documents, Ferverda said.

“We are very cognizant that many other organizations are vying for this collection and, specifically, these documents,” she said. “But we would love to see those documents stay in Indiana and stay in Fort Wayne. And we would hope we would be the obvious place for that.”

Posted by Marcia Oddi on Monday, April 14, 2008
Posted to Indiana Government

Courts - "Supreme Court Justices Turn to Ex-Clerks for Unusual Role"

Tony Mauro of Legal Times has an interesting story today that begins:

On Jan. 7, Jay Jorgensen took an unusual call from his former boss, Supreme Court Justice Samuel Alito Jr.

Alito's request: Would Jorgensen have time to argue a Supreme Court case in April -- a case Jorgensen had never heard of -- for free?

In Greenlaw v. United States, it seems the government had decided that it agreed with plaintiff Michael Greenlaw on the main sentencing-related issue in the case. So the Court needed someone else to argue against lawyers for Greenlaw, a Minneapolis drug dealer.

Jorgensen, a partner with Sidley Austin, eagerly agreed to the invitation, and on Tuesday he will make his debut before the high court. In doing so, he follows a little-known and rarely available pathway that has launched the Supreme Court appellate careers of several former high court clerks. Among them: John Roberts Jr., now chief justice, and Maureen Mahoney, who heads the appellate and constitutional practice at Latham & Watkins.

Even more rare is the fact that Jorgensen won't be the only lawyer arguing as an appointed counsel under these circumstances on Tuesday. In a separate sentencing case called Irizarry v. United States, Catholic University law professor Peter "Bo" Rutledge, a former Clarence Thomas clerk, will also be appearing as "amicus curiae in support of the judgment below," as the Court phrases it. This will also be Rutledge's first time before the Court.

"I've been talking to Bo. We're both honored and both scared," says Jorgensen. Rutledge declines comment.

These once-in-a-lifetime opportunities to argue before the Court arise when, as in Greenlaw, the respondent abandons the lower court decision that the petitioner is challenging. That scrambles the usual adversary nature of Supreme Court cases, because it means, in essence, that both sides think the lower court decision was wrong or should be vacated.

In that circumstance, which has not arisen for five years before this term, the Court appoints a lawyer -- almost always a former clerk -- to make the orphaned argument.

Posted by Marcia Oddi on Monday, April 14, 2008
Posted to Courts in general

Ind. Law - "Little progress with state's wine laws"

Dan and Krista Stockman, of the excellent Saturday wine column, "Uncorked," in the Fort Wayne Journal Gazette, wrote on the 12th:

It could have been a lot worse.

For wine lovers who were hoping the Indiana General Assembly would make life easier for those who want to buy wine online and have it delivered to their homes, there was little, if any progress.

For wineries both inside and outside the state who were hoping the General Assembly would reduce the amount of paperwork involved, there was no progress at all.

But for Indiana wineries who feared a repeat of last year – when they came within a vote of being put out of business entirely thanks to the wholesalers and their lobbyists and the representatives who shill for them – it was a great sigh of relief because for the most part, almost nothing changed.

Let’s get to the bad news first.

The General Assembly finally defined grocery stores and convenience stores. The implication for wine lovers is that in cities at or beyond their limits for the number of retail alcohol licenses, stores such as Wine Time and Wine Styles have been able to open by being licensed as a grocery store because they also sell some food items. Wine Time, for example, carries a variety of cheeses – many you would have difficulty finding anywhere else – crackers and even a gallon of milk. While it appears such stores will be able to stay open, they won’t be able to open new locations – a big blow to Wine Styles, which is a national franchise.

Wine Time owner Jeff Armstrong said Indiana is anything but business-friendly compared with other states when it comes to wine stores. Because he’s licensed as a grocery store, for example, to have a wine tasting, he has to have the tasting outside the building and have the mayor and police chief sign off on the event.

“It’s interesting how oppressive and backwards Indiana is as far as wine shops,” Armstrong said.

His current license expires in October. The state says he’ll be grandfathered in, but he’s hoping the changes don’t cause problems for him later on, and we hope so, too. Both Wine Time and Wine Styles offer wines the major stores don’t sell and both provide expertise and customer service that can’t be beat.

The other bad news is what didn’t happen – the state had a chance to ease direct-shipping restrictions but did not.

Currently, the law states that wineries can ship wine directly to customers only if they have first bought wine face-to-face at the winery. That part of the law was struck down by a federal court, but it’s still on the books even though it cannot be enforced. Instead, the state requires customers to first send a photocopy of their driver’s license and sign an affidavit that they are at least 21 before the winery can ship the wine. And wine stores outside the state, such as Sam’s Wine & Spirits in Chicago, are still not allowed to ship to Indiana consumers at all.

That’s the bad news. But the legislature did do a few good things, too.

It increased the size limits on wineries that can ship directly to consumers, although other restrictions remain. It spelled out in the law that an instructor teaching a college course on wine appreciation can serve wine as part of the course without having to get a permit, allowed the sale of packaged alcohol on New Year’s Day, and provided progressively harsher penalties for repeat offenders who sell alcohol to minors.

We appreciate the state penalizing those who do nothing to prevent alcohol sales to minors, especially since selling to minors is often an excuse used in limiting or prohibiting Internet sales. But the current requirement of providing a photocopy of an ID does nothing more to prevent abuses than are already in place. Kids are not going to be ordering wine from wineries – that has never been a problem in any state that has allowed shipping. And even if they were going to do it, requiring a photocopied ID first is certainly not going to get in their way.

So the legislature made minor improvements but did nothing to solve the major problems Hoosier wine lovers currently face. But at least they didn’t make things any worse.

Cheers!

For more on wine shipping, see this ILB list.

Posted by Marcia Oddi on Monday, April 14, 2008
Posted to Indiana Law

Ind. Decisions - "Jeffersonville will ask the Indiana Supreme Court this week to immediately review the city's annexation of the Oak Park Conservancy"

Ben Zion Hershberg of the Louisville Courier Journal, writes in a lengthy story today:

Larry Wilder, the lawyer for Jeffersonville, said he expects to file the request with the Supreme Court by midweek and the city hopes to avoid a lengthy appeal of a lower-court ruling in favor of the annexation.

"It is of grave public importance" for the Supreme Court to make the state's annexation laws as clear as possible, Wilder said.

If the court accepts the request, the case would bypass the Indiana Court of Appeals, possibly cutting the appeal process to a year, Wilder said.

Bruce Herdt, a leader of efforts to challenge the annexation, said he's not concerned about which court considers the appeal first.

The main goal, Herdt said, is that "we'd like everyone to know what a problem the annexation law has become" in Indiana.

Herdt said his experience leads him to believe the courts aren't willing to oversee annexations.

The Jeffersonville City Council voted last year to annex about 9,000 residents and 7,800 acres in six areas mostly east of the city's old boundaries, with the annexation to take effect Jan. 1.

Residents of the Oak Park Conservancy, immediately southeast of Jeffersonville, and of Bethany Farms, a subdivision farther east, off Ind. 62, challenged the annexation.

Clark County Circuit Judge Daniel Donahue rejected the challenge by residents of the Oak Park Conservancy in February because the signatures of 2,600 residents opposed to the annexation were filed two days after a deadline. * * *

The specific issue Donahue based his decision on -- that the required signatures of the annexation opponents were filed late by Wilson, the lawyer for the residents -- is new, Wilder said.

Wilson argued during a hearing in February that the signatures were compiled by the deadline. He didn't have time to copy them all by the deadline and argued that he had the right to file them as a timely amendment to the lawsuit against the annexation, which was filed on time.

Wilder argued that state law sets a strict deadline for submitting signatures to the court, and Donahue agreed with his view. Wilson couldn't be reached for comment Friday.

While the appeal of Donahue's decision works its way to a higher court, the legal challenge by residents of the Bethany Farms area is still to be considered.

The Bethany Farms residents -- who aren't being annexed themselves -- are arguing that Jeffersonville's annexation of about 160 acres of neighboring land is improper because the property isn't contiguous to Jeffersonville's old boundaries, as required by state law.

They also are arguing that zoning was approved for the area improperly by the City Council because the residents and other neighbors weren't notified about the zoning changes, as required by law.

Posted by Marcia Oddi on Monday, April 14, 2008
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Indiana near top in locking up kids"

Bob Kasarda of the NWI Times writes today:

Indiana has been locking up a higher percentage of its young people than all but three other states, according to a recently released report on the well being of children in the United States.

Indiana's per capita juvenile incarceration rate is topped only by Florida, South Dakota and Wyoming, according to "Geography Matters: Child Well-Being in the States," prepared by the nonprofit and nonpartisan Every Child Matters Education Fund.

Vermont is locking up the lowest percentage of its young people and Illinois follows in 11th place.

The results are not surprising when you look at priority spending in the states, said Michael Petit, president and founder of the fund.

He said Indiana's high incarceration rate stems, at least in part, from the state's poor ranking in other areas looked at in the report, such as child welfare expenditures, infant mortality and births to teen mothers.

"When they're popping out on the planet, they're not misbehaving," he said of newborns.

The report was of interest to juvenile judges in Porter and Lake counties, who said they are doing what they can to reduce the need to lock up juveniles.

Porter County Circuit Court Judge Mary Harper said the county, which had 565 admissions at its detention center in 2007, sent just seven juveniles to the Indiana Department of Correction last year.

The DOC commitments were far less than the number sent by comparable counties such as Tippecanoe with 24 and Vanderburgh with 34, she said. This was accomplished, she said, by a series of local programs aimed at addressing the needs of young offenders.

Dan Rau, who heads up Porter County's Juvenile Justice Services program, said the young offenders are evaluated in eight potential areas of risk, including substance abuse, family life, education level, recreational activities, peer behavior and personality type.

Lake County has a similar effort in place, in addition to a program to bring young people back early from the DOC, which seems to be successfully reducing repeat offenses, said Lake County Juvenile Court Judge Mary Beth Bonaventura.

It is her belief that lockups should be the last resort for juvenile offenders since it does the least to accomplish the mandated goal of rehabilitation.

Lake County, which has just more than three times the population of Porter County and more urban areas, sent 102 juveniles to the DOC last year and 83 the year before, Bonaventura said.

The state announced plans to take over the entire cost of juveniles sent to the DOC as part of the recently approved property tax reform bill, but Harper and Bonaventura said the change will not lessen the commitment to keeping young people out of custody.

"It's not going to alter the way I do business one bit," Bonaventura said.

Posted by Marcia Oddi on Monday, April 14, 2008
Posted to Indiana Courts

Law - "Law Firms Curtail Associate Programs As Economy Slows"

That is the headline to this story ($$$) this morning by Ashby Jones of the WSJ. It begins:

For associates at law firms, how quickly things have changed.

This time last year, salaried lawyers at many of nation's largest firms had just scored a pay bump, as business was blazing and firms were scrambling to keep talent. Now, due largely to a slowdown in work relating to mortgages, real estate, mergers and private equity, some firms are taking such measures as rescinding offers to incoming associates and summer associates, asking first-year lawyers to start several months later and shortening their summer programs to save money.

See also this entry this morning in the WSJ Law Blog.

Posted by Marcia Oddi on Monday, April 14, 2008
Posted to General Law Related

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 NOT be webcast:

This Tuesday, April 15th:

10:30 AM - Gary and Katherine Hoesman v. Daniel Sheffler, et al - After the initial trustee died, Julia Sheffler was appointed successor trustee of the Ann Klapper Testamentary Trust. Over several years, Sheffler converted trust assets, which resulted in her removal as trustee and the Trust obtaining a judgment against her in the amount of $288,144.95. The Trust also sought to obtain judgments against Sheffler's husband, Sheffler's mother individually, and Sheffler's mother in her capacity as trustee of two revocable trusts, on theories of constructive trust and fraudulent transfer. The trial court, however, granted Sheffler's husband and Sheffler's mother summary judgment. The Trust appeals these rulings. The Scheduled Panel Members are: Judges Riley, Kirsch and Robb. [Where: Cecilian Auditorium, Conservatory of Music Building, St. Mary-of-the-Woods College]

1:30 PM - Otis Freshwater vs. State of Indiana - Appellant-Defendant Otis Freshwater appeals his conviction, following a jury trial, for Armed Robbery and Residential Entry. Freshwater challenges his conviction by claiming that the trial court erred on the following grounds: (a) by admitting hearsay statements from Officer Leland Smith over Freshwater's objection; and (b) by denying Freshwater's motion for a directed verdict on the evidence as to Count 2, Residential Entry. The Scheduled Panel Members are: Judges May, Barnes and Bradford. [Where: Heritage Christian School, Indianapolis, Indiana]

This Thursday, April 17th:

2:00 PM - Marion County, et al vs. State of Indiana, et al, - Marion and St. Joseph counties brought an action against the State after the State tried to recover from the counties some $75 million it spent to operate juvenile detention facilities in the two counties. The Indiana constitution provides the General Assembly "shall provide institutions for the correction and reformation of juvenile offenders." A statute purports to allow the State to recover such expenses from counties, but until 2005 it addressed only two juvenile facilities. The State won summary judgment on the grounds the statute is constitutional, the counties lacked standing to bring the action, and the action was barred by laches and the statute of limitations. The Scheduled Panel Members are: Chief Judge Baker, Judges Darden and May. [Where: University of Southern Indiana, Mitchell Auditorium of the Health Professions Building, Evansville, Indiana]

Posted by Marcia Oddi on Monday, April 14, 2008
Posted to Upcoming Oral Arguments

Sunday, April 13, 2008

Ind. Decisions - More on: Court of Appeals reverses murder convictions under Indiana’s Criminal Rule 4(C)

Updating this ILB entry from April 8th, re the Court of Appeals decision last week in Robert Jeffrey Pelley v. State of Indiana, Pablo Ros of the South Bend Tribune reported April 9th:

The trial of a Lakeville man convicted of killing his family should not have taken place, the Indiana Court of Appeals ruled Tuesday.

That means Robert Jeffrey Pelley, who is serving a 160-year sentence in prison for the murders of his parents and two of his siblings, may become a free man unless the Indiana Supreme Court overrules the appellate court decision.

The office of Indiana Attorney General Steve Carter plans to ask for transfer of the case to the Supreme Court for review, a spokeswoman there said Tuesday. Such a request must be made within 30 days.

If the Supreme Court accepts the case, it may be months or even a year before it rules on the matter, Stacy R. Uliana, an Indianapolis-based attorney who handled Pelley's appeal, said Tuesday. * * *

[T]he Court of Appeals that reviewed the case did not have to delve into the evidence to reverse Pelley's conviction. It found that Pelley's trial took place under a violation of Criminal Rule 4 (C), which guarantees a defendant a speedy trial.

In other words, prosecutors took too long after charging Pelley with the crimes in 2002 to take him to trial.

Andre Gammage, a South Bend-based attorney who was part of Pelley's defense team, explained that the delay originated in a demand that prosecutors made to the Family & Children's Center for counseling records of the Pelley family.

Citing privacy laws, the Family & Children's Center refused to hand over the documents, sparking a legal battle with prosecutors that ultimately led the Indiana Supreme Court to rule in favor of prosecutors, who were given access to the Family & Children's Center records.

But by then, it was too late. Almost three years had elapsed since Pelley's arrest.

Pelley's defense team asked St. Joseph Superior Court Judge Roland W. Chamblee Jr. at the time to dismiss the charges against Pelley based on a violation of Pelley's right to a speedy trial, but the judge declined. * * *

Gammage said any of the following could take place:

-If the Indiana Supreme Court refuses to accept transfer of Pelley's case or affirms the appellate court decision, then Pelley would be freed and could not be tried again.

-If the Supreme Court overrules the appellate court decision and rejects the other issues raised, then Pelley's conviction would stand.

-If the Supreme Court overrules the appellate court decision, it could still grant Pelley a new trial based on the other issues raised in Pelley's appeal.

Posted by Marcia Oddi on Sunday, April 13, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: "Sex Offender Files Suit Against Every Sheriff, Prosecutor In Ind."

Updating this ILB entry from April 8th, Harold J. Adams of the Louisville Courier Journal reports today:

The American Civil Liberties Union of Indiana has filed suit to block a new law aimed at tracking the activities of convicted sex offenders on the Internet.
Advertisement

Kenneth Falk, executive director of ACLU Indiana, said that the law passed last month by the Indiana General Assembly and scheduled to take effect July 1, "is blatantly unconstitutional."

State Rep. Scott Reske, D-Pendleton, one of the original sponsors of the measure, said he believes the law is justified.

The suit was filed April 8 in U.S. District Court in Indianapolis on behalf of two registered sex offenders in Marion and Scott counties and all other current and future registrants who are not on probation or parole.

It asks for an injunction to block enforcement of the new law and ultimately that the measure be struck down as a violation of the protection against unreasonable search and seizure contained in the Fourth Amendment to the U.S. Constitution.

The new law requires that sex offenders, who already must provide details about where they live and work to local authorities along with recent photographs, must also supply any e-mail addresses and online user names that they use or intend to use.

But it is two other related new requirements that have drawn the ACLU's fire. Registered sex offenders would be required:

To sign consent forms authorizing the search of any personal computers or other devices with Internet access at any time.

To allow authorities to install hardware or software on those devices to monitor Internet usage and be required to pay the costs of meeting the requirement.

Anyone who doesn't comply with the law could be charged with a Class D felony.

Falk said: "The state might very well say that it would be nice to be able to go into people's homes and look for drugs to protect children or…to look for other things to protect other groups. But that doesn't give you the right to waive the Fourth Amendment."

"This law says at 2 in the morning, someone can come by and say, 'We're coming into your house now.' In that situation, the Supreme Court has always required there be probable cause and a warrant," he added. * * *

The suit names all 92 Indiana county prosecutors, 91 sheriffs and the mayor of Indianapolis as defendants because they would be responsible for carrying out the new law's provisions. * * *

U.S. District Court Judge David Hamilton scheduled a conference with Falk and attorneys representing the state respondents for tomorrow to outline future proceedings, Falk said.

This ILB entry from April 3rd includes links to the 11-page complaint, as well as to SEA 258.

Posted by Marcia Oddi on Sunday, April 13, 2008
Posted to Ind Fed D.Ct. Decisions | Indiana Courts

Ind. Courts - Monroe County plans new "justice campus"

Bethany Nolan reports today ($$$) in the Bloomington Herald Times:

A Bloomington firm will develop a financial plan for capital and operating costs for a justice campus proposal that calls for building a new county jail, sheriff’s office and juvenile center on the city’s south side.

The Monroe County Commissioners inked a deal Friday with Financial Solutions Group Inc. for the work.

The contract won’t exceed $10,000, and will include developing an overall financial plan for the project and determining the most economical way to fund it, including identifcation of sources of revenue.

“This is the first piece of what we anticipate will be a major project involving a strategic plan for a justice campus,” commissioners president Pat Stoffers said.

Back in October, the justice campus plan was backed by all three county commissioners, the sheriff, five of the seven members of the county council and the county’s board of judges.

That proposal calls for building a new county jail, sheriff’s office and juvenile center on an 85-acre site just off South Rogers Street commonly known as the former Thomson/RCA property.

After that, the plan calls for renovating the Justice Building — which houses the current jail on its top floors — to make more space for courts and other county offices.

“It’s incredibly critical this year that the county and commissioners do a financial analysis with the changes in property tax law,” commissioner Joyce Poling said. “What are the changes? What is the impact? We have lots of work to do.”

Posted by Marcia Oddi on Sunday, April 13, 2008
Posted to Indiana Courts

Ind. Gov't. - Yet more on Attorney General race [Updated]

Lesley Stedman Weidenbener 's Louisville Courier Journal column this weekend is headed "Indiana's GOP attorney general scrap could be North vs. South." It begins:

INDIANAPOLIS -- The race for the GOP nomination for attorney general shook out last week as New Albany native Greg Zoeller and Valparaiso Mayor Jon Costas announced their candidacies and at least two prominent Republicans dropped out.

There's still time for others to enter the race. The nominee is chosen by delegates to the state Republican convention, which is June 2.

But Costas and Zoeller may be it. If so, it could set up a battle between delegates from Northern and Southern Indiana.

[Updated] Patrick Guinane reports today in the NWI Times:
Valparaiso Mayor Jon Costas left a mammoth Indianapolis law firm to return home to Northwest Indiana, a career turn his mentor and former boss says has made him a strong candidate for Indiana attorney general.

Robert Grand is the managing partner for the Indianapolis office of Barnes & Thornburg, the largest law firm in Indiana. It's where Costas landed as a litigation attorney after graduating Valparaiso University School of Law in 1989.

"He did extraordinarily well in law school, obviously," Grand said. "And if you interview with him, I think it becomes pretty apparent that he's a hell of a guy."

Costas said he stayed with Barnes & Thornburg less than three years before yearning to return home to Valparaiso, where he would go on to become a city councilman and mayor. Last week he announced plans to seek the Republican nomination for attorney general.

Grand, a Munster High School graduate and top GOP fundraiser, said the experience Costas has acquired would serve him well as the state's top lawyer.

"He's going to be managing one of the largest law firms in downtown Indianapolis (as attorney general)," Grand said. "I think that skill set is an executive skill set, and it's an ability to recognize and identify problems. And I think that's where he's fantastic."

But the other Republican hopeful for attorney general also boasts a managerial background.

Greg Zoeller, a New Albany native, unsuccessfully sought the GOP nomination in 1996. He has served as Attorney General Steve Carter's chief deputy since 2001 and says he knows what it take to manage a team of 140 lawyers.

"It'll be a gentlemen's race," Zoeller said. "I think it's a healthy test of our candidates."

Zoeller served 10 years as an aide to Dan Quayle, and the former U.S. senator and vice president released a statement Friday supporting Zoeller's candidacy.

Costas and Zoeller are the only Republican candidates to announce, although potential candidates have until May 19 to file for the nomination, which will be decided at the state party convention in June.

"I think everybody is waiting for the governor to weigh in on this," Costas said. "If he shows his support for me, then I anticipate that I will get that nomination. I will not continue my seeking the nomination if the governor lets me know he chooses someone else."

Daniels and Carter declined to comment on the race. Carter recently announced he would forgo a bid for a third term.

Posted by Marcia Oddi on Sunday, April 13, 2008
Posted to Indiana Government

Saturday, April 12, 2008

Courts - More on: New York judges may sue for raises

Updating this ILB entry from April 2nd, Joel Stashenko and Daniel Wise of the New York Law Journal reported yesterday:

Stymied for a fourth straight fiscal year in securing a pay raise for New York state court judges, Chief Judge Judith S. Kaye sued the New York Legislature and Gov. David A. Paterson Thursday to force the first judicial salary increase in New York since 1999.

At about the time attorney Bernard W. Nussbaum was filing the complaint in Supreme Court in Manhattan at 60 Centre Street, Chief Judge Kaye and Chief Administrative Judge Ann Pfau sent a message to the 1,300 judges saying that the exclusion of a pay raise in the budget adopted in Albany on Wednesday was the last straw.

"At this point, we are left with no choice but to take legal action to address this intolerable situation," the judges said. They called the need to file a suit, first threatened by the chief judge in April 2007 but often cited by her since then as a last resort, as "regrettable."

The complaint, Kaye v. Silver, names the chief judge and the Unified Court System as plaintiffs. The defendants are Assembly Speaker Sheldon Silver, Senate Majority Leader Joseph Bruno, Paterson and the state of New York.

Here is extensive NY Times coverage of the lawsuit.

Posted by Marcia Oddi on Saturday, April 12, 2008
Posted to Courts in general

Ind. Courts - Lake incumbent judges get nod from lawyer group

Bill Dolan reports today in the NWI Times:

CROWN POINT | A group of Lake County lawyers is praising three Superior Court County Division incumbents who will face the voters next month.

In the Lake County Bar Association survey, Judge Julie Cantrell scored better than her 3 Democratic challengers in the May 6 primary.

Also receiving positive reviews were judges Nicholas Schiralli and Sheila Moss. Each is unopposed.

The Lake County Bar Association released Friday the results of its survey of judges, their assistant magistrates and lawyers who are running for election.

A total of 265 lawyers rated the current and aspiring judicial officers on the basis of their professional competence, temperament and general character.

Scott Yahne, county bar association president, said Friday that 82 percent support Schiralli's re-election and 84 percent back Moss.

Some 64 percent support Cantrell over her challengers: Randy Godshalk, Jeremiah Sheets and Nancy Moore Tiller.

Only 23 percent support Godshalk's candidacy, 2 percent back Sheets and 11 percent support Tiller.

About 24 percent of the lawyers considered Cantrell at least minimally qualified as a judge, while 25 percent thought her well-qualified. Thirty-six percent said she is exceptionally well-qualified. About 20 percent rated her as either less than qualified or unqualified.

About 69 percent of the lawyers gave positive ratings to Godshalk, 57 percent to Sheets and 46 percent to Tiller.

Posted by Marcia Oddi on Saturday, April 12, 2008
Posted to Indiana Courts

Ind. Gov't. - Still more on Attorney General race

Patrick Guinane of the NWI Times reports today:

INDIANAPOLIS | Valparaiso Mayor Jon Costas gained an opponent and an endorsement Friday in the Republican race for state attorney general.

Greg Zoeller, a New Albany, Ind., native who has served as chief deputy to Indiana Attorney General Steve Carter since 2001, officially announced his candidacy Friday.

"In the next seven weeks, I intend to canvas the state seeking support from the 2,086 delegates who will nominate our candidate to carry on the work as our state’s attorney general," Zoeller said. "For most of my career, I have served the people of the state of Indiana and would consider it the highest honor as an attorney to serve them as attorney general."

Meanwhile, Kyle Hupfer, a former director of the Indiana Department of Natural Resources under Republican Gov. Mitch Daniels, announced he will not seek the GOP nomination. Hupfer, now an Indianapolis-based vice president and general counsel for ProLiance Energy, said he spoke with Costas recently and decided to endorse the Valparaiso mayor.

"I think having someone who is a successful, proven vote-getter in Northwest Indiana on the ticket is very helpful to Republicans," Hupfer said. "Again, the most important thing is to re-elect the governor."

Republicans will select an attorney general nominee at their June 2 state party convention. Candidates have until May 19 to file for the office. * * *

Linda Pence, an Indianapolis attorney, so far is the only Democrat to publicly express interest in the party's nomination for attorney general.

Posted by Marcia Oddi on Saturday, April 12, 2008
Posted to Indiana Government

Friday, April 11, 2008

Ind. Decisions - Transfer list for week ending April 11 2008

Here is the Indiana Supreme Court's transfer list for the week ending April 11, 2008.

There were four transfers granted this week, each with opinion. All were summarized in this ILB entry from April 9th, under the heading "Supreme Court holds Three Strikes Law unconstitutional."

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, April 11, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)

For publication opinions today (3):

In AGS Capital Corp., Inc., et. al. v. Product Action International, LLC, a 42-page, 2-1 opinion on an interlocutory appeal re the trial court’s grant of preliminary injunction to Product Action International, LLC, Judge bailey concludes:

In sum, we hold that IUTSA does not preempt a civil RICO claim because such a claim is an additional punishment made available by our General Assembly for particular schematic violations of Indiana’s criminal law. Product Action presented a prima facie case under IUTSA and RICO, supporting the trial court’s imposition of a preliminary injunction. We also affirm the trial court’s alter ego determination as to AGS and Fast Tek. While the majority of the terms of the preliminary injunction are not overbroad, the provision prohibiting the participation of AGS, Symons and Weaver in the operation of Fast Tek is overbroad. Accordingly, we reverse that particular provision of the preliminary injunction and affirm the remaining provisions. We reverse the award of attorney’s fees to Product Action as the prevailing party has yet to be determined by a trial on the merits. Finally, the Appellants have not carried their burden to establish that the injunction bond is inadequate. Affirmed in part, reversed in part, and remanded for further proceedings.

BAKER, C.J., concurs.
VAIDIK, J., concurs in part and dissents in part with opinion.

Morgan County Hospital, Richard J. Eisenhut, M.D., Unity Physicians, et al v. Maria Upham, et al - "Morgan County Hospital, Dr. Richard J. Eisenhut, Unity Physicians, Kendrick Family Practice, and Dr. Donald Baird (collectively Appellants) appeal the trial court’s denial of their motions for summary judgment on Maria Upham’s claims relating to the death of her husband Wilbur A. Upham. Appellants raise the following restated issue: Did the trial court properly deny Appellants’ motions for summary judgment? We affirm. * * *

"Appellants argue that the trial court erred in denying their motions for summary judgment. Appellants specifically contend that Upham’s action against them is subject to judicial estoppel because Upham did not disclose this action as an asset in her bankruptcy proceeding."

In Eula Jackson v. IFSSA & Indiana Department of Child Services, a 16-page opinion, Judge Vaidik writes:

Eula Jackson appeals the trial court’s dismissal of her petition for judicial review, which challenged the Indiana Family and Social Services Administration’s (“FSSA”) revocation of her child care home license, for failing to timely comply with the court’s order to make a more definite statement pursuant to Indiana Trial Rule 12(E). Because dismissal of a case for noncompliance with Trial Rule 12(E) is a harsh penalty that should be used only as a last resort and the facts of this case do not merit such a penalty, we conclude that the trial court abused its discretion in dismissing Jackson’s petition for judicial review. We also find error because the trial court did not hold a hearing before dismissing this case. In addition, because a relevant law changed after the FSSA revoked Jackson’s child care home license but before final disposition of Jackson’s petition for judicial review and the new provision may control the outcome in this case, the new provision applies to Jackson and we order the trial court to remand this case to the FSSA with directions for that agency to conduct further factfinding on the issue of whether the substantiation of abuse against Jackson should be reversed. Finally, because the trial court dissolved its previously entered stay when it dismissed this case and we conclude that the trial court abused its discretion in dismissing this case, we reinstate the stay during the pendency of any further proceedings in this case.
NFP civil opinions today (3):

In the Matter of A.G. & M.G., and M.G., Father v. Hamilton County Dept. of Child Services (NFP) - Appellant-Respondent M.G. (“Father”) appeals the trial court’s denial of his Motion to Dismiss a petition by Hamilton County Department of Child Services (“HCDCS”) alleging his children, A.G. and M.G., to be children in need of services (“CHINS”). Father contends that the trial court lacks subject matter jurisdiction over the pending matters because it failed to conduct a fact-finding hearing within the statutorily prescribed time limitations set forth in Indiana Code section 31-34-11-1 (2006). Concluding that the trial court lacked subject matter jurisdiction, we reverse."

In Warren P. Thayer, Jr. v. Joan C. Thayer (NFP), a 12-page, 2-1 opinion, Judge Robb writes:

Warren Thayer appeals the trial court’s order requiring him to pay his ex-wife, Joan Thayer, half of the value of their marital residence pursuant to the terms of an antenuptial agreement. On appeal, Warren raises one issue, which we restate as whether the trial court properly concluded Joan was entitled to half of the value of the marital residence. Concluding the trial court’s decision to award half of the value of the marital residence to Joan was proper, we affirm. * * *

MATHIAS, J., concurs.
FRIEDLANDER, J., dissents with separate opinion. [that concludes] I would reverse and apportion the marital residence consistent with the views expressed in this separate opinion.

In Cynthia Miller v. Mark D. Bousman (NFP). an 11-page, 2-1 opinion, Judge Robb writes:
Cynthia Miller appeals the trial court’s order granting Mark Bousman, Miller’s ex-husband, relief from judgment. On appeal, Miller raises three issues, which we consolidate and restate as whether the trial court properly granted Bousman relief from judgment. We reverse and remand, concluding the trial court improperly granted Bousman relief from judgment. * * *

Reversed and remanded.

MATHIAS, J., concurs.
FRIEDLANDER, J., dissents with separate opinion. [which begins] I believe the trial court was correct in granting relief under Trial Rule 60(B)(8) and therefore respectfully dissent from the decision to reverse that judgment.

NFP criminal opinions today (9):

Robert Oldham v. State of Indiana (NFP)

Joseph B. Tague v. State of Indiana (NFP)

Desiree Munz v. State of Indiana (NFP)

Jose Tinder v. State of Indiana (NFP)

Aljonon Duvall Coleman v. State of Indiana (NFP)

Andrea Amore v. State of Indiana (NFP)

Stephen L. Bailey v. State of Indiana (NFP)

Rick Lee Enis v. State of Indiana (NFP)

Keith Billingsley v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, April 11, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still more on: Marion County Judge Hawkins, Master Commissioner Broyles charged by Disciplinary Commission

Jon Murray of the Indianapolis Star has an expanded story this morning; access it here.

Check here for background from the ILB.

Posted by Marcia Oddi on Friday, April 11, 2008
Posted to Indiana Courts

Ind. Courts - "Conviction is upheld in '06 Allen murder," most notable because mother took court records

Rebecca S. Green of the Fort Wayne Journal Gazette reports today on the Court of Appeals decision yesterday in the case of Daniel Favela v. State of Indiana (NFP):

In September 2006, a jury convicted Daniel Favela, 30, of murder in the shooting death of his estranged wife’s boyfriend, 22-year-old Jeffrey Kramer of Churubusco. A month later, Allen Superior Court Judge Fran Gull sentenced Daniel Favela to 60 years in prison.

He appealed his conviction. But his mother, Adela Favela, then 58, nearly brought the appeals process to a halt last fall when she refused to return the official court record of the trial.

Adela Favela obtained the file from her son’s then-appellate attorney Robert Gevers II, or someone in his office, and refused to return the 13-volume file.

The file included not just the transcript of the proceedings but also physical pieces of evidence, DVD presentations seen by the jury and other items impossible to reproduce. For reasons never made clear during the multiple hearings on the matter, Adela Favela broke the file into two sections, wrapped them in aluminum foil, placed them inside plastic grocery bags sealed with clear tape and then hid them in pieces of furniture inside her teenage daughter’s bedroom.

It took two weeks in the Allen County jail for Adela Favela to return the file, but Gull then sentenced her to 90 days in jail for contempt of court.

After the file was returned, Daniel Favela’s appeal began. * * * [I]n a memorandum decision issued Tuesday, a three-judge appellate court panel upheld the guilty verdict.

Here is a list of ILB entries on the case.

Posted by Marcia Oddi on Friday, April 11, 2008
Posted to Ind. App.Ct. Decisions

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

Updating this ILB entry from March 31st, Kate Braser of the Evansville Courier & Press reports today in a story that begins:

The seven inmates who stepped in front of a camera at the Vanderburgh County Jail to hear charges in felony cases on Wednesday made history.

Their cases were the first ever transmitted via a live feed between the jail and Vanderburgh Superior Court. Court officials launched the video arraignment system in courtroom 126A of the courthouse at 9:30 a.m.

Posted by Marcia Oddi on Friday, April 11, 2008
Posted to Indiana Courts

Environment - Who cleans up if a hog farm goes bankrupt?

Seth Slabaugh of the Muncie Star-Press has a story today that begins:

EATON -- The Indiana attorney general's office recently asked a judge to order a pork producer to explain why he should not be found in contempt of court for violating environmental laws again.

On Feb. 25, an inspection of Muncie Sow Unit, 17123 N. Delaware County Road 350-E, found that manure in a 12-million-gallon lagoon was again less than two feet from overflowing, according to the Indiana Department of Environmental Management.

The inspection by Randy Jones also found a collapsing hog barn.
Last month, Valerie Tachtiris, a deputy attorney general, filed a motion asking Delaware Circuit Court 1 Judge Marianne Vorhees to order Jacobus Tielen, 39, to appear before her and explain why he was not in contempt for violating a restraining order issued by the judge three years ago.

In a lawsuit filed June 8, 2005, IDEM accused Tielen of knowingly or intentionally failing to maintain at least two feet of freeboard in the lagoon as required by state law. Criminal charges were filed against Tielen on Oct. 12, 2005, dismissed on April 4, 2006, and refiled the next day. The criminal charges remain pending.

"There has been no intentional disobedience of the court's order that could justify contempt sanctions," defense attorney Todd Janzen told Vorhees in court documents.

In late 2007, Muncie Sow Unit "succumbed to mounting pressure from the farm's creditors" -- feed provider Matthews Feed & Grain and mortgage lender Kokomo Grain Co., Janzen explained.

"Today, the farm is broke," Janzen said. "Soon it will be empty, closed and hopefully sold to pay off its creditors. The hog industry in Indiana and throughout the nation is in great economic distress due to rising feed prices and other production costs coupled with low market prices for swine."

According to Purdue University, 2008 could be the worst year for pork producers in modern history because of high feed costs and too many hogs.

Posted by Marcia Oddi on Friday, April 11, 2008
Posted to Environment

Ind. Decisions - Court of Appeals rules case against ex-priest can go on

Sue Loughlin of the Terre Haute Trib-Star reports today:

An Indiana appeals court has given a green light to a civil lawsuit that alleges a former Catholic priest sexually abused a boy and the Archdiocese of Indianapolis covered up the priest’s prior history of sexual abuse.

In a two-page order issued Monday, the Indiana Court of Appeals declined to hear an appeal by lawyers for the Indianapolis Archdiocese.

It gave no reason for the decision.

The defendant in the case is Harry E. Monroe, a former Catholic priest accused of molesting numerous boys between 1974 and 1984 at churches in Indianapolis, Terre Haute and Perry County in southern Indiana.

The archdiocese has been named as a co-defendant. The lawsuit accuses the archdiocese of fraud, alleging the church deceived members of an Indianapolis parish that Monroe was suited to minister to young boys when it knew he had a history of molesting boys.

“Placing a priest in a church with access to children in a way represents to a parish that the priest is safe,” said Patrick Noaker, the attorney representing the victim. “If church officials know differently, as in this case … It is fraud to the parish families and children.”

Archdiocese attorneys claim that the alleged victim of Monroe waited too long to take legal action and that his case should be tossed out.

In reaction to the Court of Appeals decision, Greg Otolski, archdiocese spokesman, stated, “I think there are probably still several steps in the legal process.” * * *

Noaker said he expects the archdiocese to challenge the lawsuits “at every place they can.”

The Court of Appeals is saying in its order that “this issue is not proper for appeal at this time. The trial court had gotten it right,” Noaker said.

Presumably this was an appeal from Marion Superior Court Judge David A. Shaheed's Dec. 20th opinion, referenced in this ILB from Dec. 28, 2007, including this quote from a story by Jon Murray in the Indianapolis Star:
A judge has refused to throw out a lawsuit claiming the Archdiocese of Indianapolis covered up abuse by a former Catholic priest three decades ago.

The ruling by Marion Superior Court Judge David A. Shaheed means the suit could be the first of 13 against the archdiocese to move forward to trial. It alleges fraud, arguing the archdiocese knew of previous abuse by the Rev. Harry Monroe when it moved him in 1976 to St. Catherine's Parish in Indianapolis.

No one disputes that the plaintiff suffered abuse, Shaheed wrote. The former altar boy at the Southside parish is called John Doe NM in court documents.

His abuse-related claims have been withdrawn, since the statute of limitations ran out long ago. But the judge ruled Dec. 20 against the archdiocese's motion for summary judgment, which sought dismissal of the suit, writing that the six-year statute of limitations on fraud began running only in 2005, when the plaintiff learned that the archdiocese had known of other abuse before Monroe's transfer.

Former priest Harry E. Monroe is referenced in a number of earlier ILB entries.

Posted by Marcia Oddi on Friday, April 11, 2008
Posted to Ind. App.Ct. Decisions

Thursday, April 10, 2008

Law - Interesting business model

Sheri Qualters of The National Law Journal has a story today that begins:

E. James Perullo realized that switching from an information technology career to the law would be daunting at age 42, so he's keeping his day job while building an evening-hours law firm.

Bay State Legal Services in Boston, which Perullo has branded and trademarked as After-Hours Law, is a collection of 14 lawyers and four paralegals who meet clients at their downtown Boston office Monday through Friday between 6 p.m. and 10 p.m. and by appointment at other places and times.

Bay State Legal's practice areas run the gamut of small-firm offerings, including bankruptcy, consumer protection, criminal defense, divorce and family law, immigration, intellectual property, real estate and wills and trusts.

Perullo, who is now 43, specializes in wills and trusts. He said the firm's attorneys are targeting small-business owners and working-class clients. Leaving work during standard business hours to see a lawyer is difficult for both types of clients, Perullo said.

"The idea behind the business model is convenience for clients," Perullo said.

Posted by Marcia Oddi on Thursday, April 10, 2008
Posted to General Law Related

Ind. Courts - More on: Marion County Judge Hawkins, Master Commissioner Broyles charged by Disciplinary Commission

Updating the ILB entry earlier this afternoon, the Indianapolis Star has now made available online the "Notice of the institution of formal proceedings and statement of charges" filed by the Indiana Commission on Judicial Qualifications against Commissioner Nancy L. Broyles (pp. 1-11 of the online document) and the Notice against Judge Grant W. Hawkins (pp. 11-22).

Posted by Marcia Oddi on Thursday, April 10, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 6 today (and 19 NFP)

For publication opinions today (6):

In James Hicks v. Gary and Judy Larson, a 12-page, 2-1 opinion concerning grandparent visitation, Judge Mathias writes:

Gary and Judy Larson filed in Gibson Circuit Court a petition for grandparent visitation. The Larsons (“Grandparents”) are the maternal grandparents of the children of James Hicks (“Father”). Father objected to Grandparents’ petition. The trial court granted Grandparents’ petition for visitation. Father appeals and argues that his due process rights were violated when the court ordered grandparent visitation over his objection, and the evidence does not support the court’s finding that visitation is in the children’s best interests. We reverse and remand for proceedings consistent with this opinion. * * *

Trial courts are to “presume that a fit parent’s decision is in the best interests of the child” in deciding whether to grant or deny a grandparent’s request for visitation. Crafton v. Gibson, 752 N.E.2d 78, 96 (Ind. Ct. App. 2001) (citing Troxel v. Granville, 530 U.S. 57, 69 (2000)). Acting under this presumption, trial courts must give special weight to a parent’s decision to deny or limit visitation. However, the presumption is rebuttable. Grandparents bear the burden of rebutting the presumption that Father’s decision to deny visitation was made in his children’s best interests. * * *

Moreover, the parties concede that Father is a fit parent, and therefore, he is entitled to a presumption that his decision to deny visitation with Grandparents was made in the children’s best interests. Because the DFC caseworker and investigating detective opined that K.H. was touched inappropriately and in a sexual manner by Grandfather, we conclude that Grandparents failed to rebut the presumption accorded to Father. For all of these reasons, we reverse the trial court’s order awarding visitation to Grandparents.

FRIEDLANDER, J., concurs.
ROBB, J., dissents with separate opinion. [which concludes] My concern with the majority’s statement is that it could give a parent almost carte blanche to deny grandparent visitation for any reason or no reason at all. The trial court, after listening to the testimony, concluded that the parent’s reasons for denying visitation were unfounded and that awarding grandparents visitation with the children was in the children’s best interests; thus, visitation in at least some form should be allowed.

Olugbala P, Suggs v. State of Indiana - "The next issue is whether the trial court committed fundamental error by admitting copies of certified court documents in the habitual offender proceedings. * * * Suggs argues that fundamental error occurred when the trial court admitted State’s Exhibits 16, 17, and 18 during the habitual offender phase of Suggs’s trial. State’s Exhibits 16, 17, and 18 are copies of certified copies of court records evidencing Suggs’s prior convictions for robbery as a class B felony and theft as a class D felony. Suggs points out that the court clerk’s seals or certifications on the documents are not the originals. Rather, copies of the certified documents were entered into evidence. * * *

"Suggs is correct that an original certification was necessary for State’s Exhibits 16, 17, and 18 to be admissible. * * *

"Despite this error, Suggs has not shown that he is entitled to relief because he has failed to demonstrate fundamental error. Suggs makes no argument that the documents are not authentic. Further, Suggs conceded during his habitual offender closing argument that he had the prior robbery and theft convictions. We conclude that the fact that the certifications were copies rather than originals did not deprive Suggs of a fair trial and did not result in fundamental error."

In City of Terre Haute, Engineers Office of the City of Terre Haute, et. al., v. Annette Parish, a 16-page, 2-1 opinion, the question is "Whether the City is immune from liability for Pairsh’s injuries pursuant to the Indiana Tort Claims Act (ITCA), Indiana Code § 34-13-3-1." Judge Riley concludes:

Pairsh dedicates the rest of her brief to discussing the elements of a negligence action. But, as our supreme court stated in Peavler, “Immunity assumes negligence but denies liability. Thus, the issues of duty, breach and causation are not before the court in deciding whether the government entity is immune.” 528 N.E.2d at 46. Because Pairsh failed to designate any evidence to contradict the City’s evidence supporting its claim of discretionary function immunity, we do not reach the elements of negligence.

CONCLUSION Based on the foregoing, we conclude that the trial court erred in denying the City’s motion for summary judgment. Therefore, we remand this cause to the trial court with instructions to enter summary judgment in favor of the City. Reversed and remanded.

KIRSCH, J., concurs.
MAY, J., dissents with [7 page] opinion. [that begins] The evidence the City designated does not establish as a matter of law that its decision not to repair the sidewalk where Pairsh fell was performance of a discretionary function that entitles the City to tort immunity. I therefore believe the denial of the City’s summary judgment motion was correct, and I must respectfully dissent.

Michael Jason Surber v. State of Indiana - "For the foregoing reasons, we affirm Surber’s conviction for child molesting as a class A felony."

In Chris and Diann Drenter v. Sue N. Duitz , a 17-page opinion, Chief Judge Baker writes:

The appellants and the appellees disagree about whether the Subdivision’s restrictive covenants permit a property owner to erect a shed on his property and, if so, the process for obtaining approval. * * *

Specifically, the Drenters argue that the trial court erroneously construed the Subdivision’s restrictive covenants to require a property owner to engage in a multi-step approval process before erecting a shed on his property. We agree with the Drenters that the trial court improperly relied on extrinsic evidence to support its finding that the restrictive covenants require a property owner to obtain the signatures of all of the Subdivision’s property owners before erecting an outbuilding. However, we conclude that the trial court properly construed the restrictive covenants to require a property owner to obtain the written approval of the Subdivision’s Developer or its assignee before erecting an outbuilding. Because the Drenters did not obtain the written approval of the Subdivision’s Developer and there is no evidence that there is an assignee, we affirm in part, reverse in part, and remand with instructions contained herein [regarding "What happens to the shed the Drenters erected on their property?"].

In H.D., John and June Doss v. BHC Meadows Hospital, Inc., a 12-page opinion, Judge Riley writes:
Appellants-Plaintiffs, H.D., John Doss (Father), and June Doss (Mother) (collectively, the Dosses), appeal the trial court’s dismissal of their claims against Appellee-Defendant, BHC Meadows Hospital Inc. d/b/a Bloomington Meadows Hospital (Meadows), for lack of subject matter jurisdiction. We reverse and remand.

The Dosses raise one issue for our review, which we restate as: Whether the Indiana Medical Malpractice Act applies to the Dosses’ claims against Meadows.

NFP civil opinions today (6):

Laura Vass v. Michael Vass (NFP) - "Laura Vass appeals the division of marital property and child support order in this dissolution action from her ex-husband, Michael Vass. We affirm."

Dean Rainey, et al v. Jerry Rainey (NFP) - "Finding that Jerry did not breach his fiduciary duty to the estate by distributing mementos of limited monetary value, that he did not engage in self-dealing, and that Jerry is not an unsuitable personal representative, we conclude that the trial court did not abuse its discretion by denying the petition for removal. We therefore affirm."

In Re S.T., Donald and Carol T v. Johnson County Department of Child Services (NFP)

Guardianship of D.D., Jeanne Dale Freeman v. Perry County Dept. of Child Services (NFP)

Term. of Parental Rights of A.B., Violet Tunstall v. Dearborn County Div. of Child Services (NFP)

Estate of Margaret Prickett v. Marilyn Prickett Womersley (NFP) - "Appellant-respondent Estate of Margaret H. Prickett (the Estate) brings this interlocutory appeal challenging the trial court’s denial of its motion for summary judgment regarding appellee-petitioner Marilyn Prickett Womersley’s claim for compensation and reimbursement “for the time that [she] spent attending to [her mother’s] needs.” The Estate contends that Womersley’s request for compensation was time-barred and that the trial court erred in denying its motion to strike certain affidavits that Womersley filed in opposition to the Estate’s motion for summary judgment. Finally, the Estate argues that summary judgment should have been granted in its favor because the designated evidence established as a matter of law that that the services Womersley provided to Prickett were gratuitous. Finding no error, we affirm the judgment of the trial court."

NFP criminal opinions today (13):

Edward P. Johnson v. State of Indiana (NFP)

Timothy Dion Hampton v. State of Indiana (NFP)

Bruce Jackson v. State of Indiana (NFP)

Anthony Richardson v. State of Indiana (NFP)

Daniel Favela v. State of Indiana (NFP)

Wai Chung v. State of Indiana (NFP)

Joshua B. Smith v. State of Indiana (NFP)

Celso Hernandez v. State of Indiana (NFP)

Terrence Chaney v. State of Indiana (NFP)

Jerry Griffin, III v. State of Indiana (NFP)

Anthony J. Akins v. State of Indiana (NFP)

Michael Ward v. State of Indiana (NFP)

Darrell Burton v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 10, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Marion County Judge Hawkins, Master Commissioner Broyles charged by Disciplinary Commission

Updating this ILB entry from Jan. 16th, quoting from a Jon Murray report in the Indianapolis Star about Harold David Buntin, who "served 13 years for a rape that DNA evidence proved he didn’t commit," including two year after a judge had cleared him: "Now Buntin, 38, is suing Marion Superior Court for mishandling the May 2005 ruling that should have set him free but instead sat inside his file in storage, unseen by nearly anyone," the story continued. More from the Jan. 16th story:

“Somebody should be held accountable,” he said. “I lose 11 years of my life over something I didn’t ever do, and you turn around and cheat me out of two more years? * * *

His wrongful detention lawsuit against Criminal Court 5, filed Friday in Marion Superior Court’s civil division, also names the clerk, the county and the state of Indiana as defendants. His lawsuit against Rader has been pending since August.

Judge Grant Hawkins, who presides in Court 5, declined to comment Tuesday, and a phone message left at the office of the city’s attorney, the corporation counsel, was not returned. Rader also did not return a message.

When Hawkins ordered Buntin’s release in April, he apologized.

He and Master Commissioner Nancy L. Broyles, who had issued the 2005 ruling, explained in a written notice at the time that the decision was never entered into the court’s record or sent to the defendant or prosecutors. Either a bailiff failed to follow handwritten instructions, the notice says, or a deputy clerk did not fulfill her duties. * * *

After a court hearing in early 2005, [Buntin] waited for Broyles’ ruling. And waited.
He wrote at least five letters to the court, the lawsuits say, and more to his attorney. When Rader responded, Buntin said, she urged patience. Family members called the court, but the computer system showed there had been no ruling yet.

“I couldn’t believe it,” Buntin said, and he remembered thinking: “This doesn’t make no sense, like there’s some kind of conspiracy. This shouldn’t happen. … I was exonerated by DNA.”

Finally, Buntin filed a “lazy judge” complaint, prompting Hawkins and Broyles to review the case and retrieve the file from court archives.

This afternoon reporter Murray has posted this story, headed "Judge, aide face inquiry over delay in freeing inmate." Some quotes:
Disciplinary charges have been filed against a Marion Superior Court judge and a commissioner who presided over the case of a man who was exonerated of rape, but not released for two years.

The Indiana Commission on Judicial Qualifications filed notice in the Indiana Supreme Court Wednesday of 11 charges against Judge Grant Hawkins and 10 charges against Master Commissioner Nancy L. Broyles.

The disciplinary action, which could take several months to resolve, could result in punishment ranging from reprimand to suspension without pay to removal from office. The disciplinary process allows Hawkins and Broyles 20 days to file an answer to the charges, then could be forwarded to panels of three active or retired judges who will recommend sanctions to the Supreme Court. * * *

The disciplinary notices say Hawkins and Broyles were unable to explain some of the delays. They also question whether Broyles actually signed the order in May 2005, since the order issued in March 2007 was newly revised, but dated May 20, 2005, with no copy remaining of the original order.

The charges "allege delay and dereliction of their duties as the judicial officers responsible for Harold D. Buntin's post-conviction case and as the judicial officers responsible for providing reliable and timely information about the court's delay in the Buntin case."

Posted by Marcia Oddi on Thursday, April 10, 2008
Posted to Indiana Courts

Ind. Gov't. - More on Attorney General race

From a report today in the Louisville Courier Journal:

New Albany native Greg Zoeller said yesterday that he is planning to seek the Republican nomination for Indiana attorney general at the party's convention in June.

But Zoeller, chief deputy to outgoing Attorney General Steve Carter, stopped short of making a formal announcement, saying he wants to talk with more Republican leaders before making his candidacy official.

Posted by Marcia Oddi on Thursday, April 10, 2008
Posted to Indiana Government

Ind. Decisions - COA panel hears arguments at Indiana University Southeast

Yesterday's oral argument before a Court of Appeals panel in the case of Charles Sweeney vs. State of Indiana, heard at Indiana University Southeast, is the subject of a story this morning by Dick Kaukas of the Louisville Courier Journal. (See the case summary here, from Monday's ILB "Upcomng Oral Arguments" entry. Some quotes from the story:

The oral arguments presented yesterday were part of an appeal by Charles Sweeney, a Clark County resident who was convicted of the 1991 murder of Danny Guthrie and is now in the Indiana penitentiary in Wabash Valley.

A key issue was whether Sweeney was adequately represented by his lawyers in the case, both at trial and on appeal.

Before his trial, Sweeney was in federal custody, accused of putting a pipe bomb under a detective's car. As part of a plea agreement, Sweeney entered a guilty plea, according to a court synopsis of the case, and told officers the location of the body of Danny Guthrie.

Sweeney revealed that information, the court documents say, because he thought he was immune from prosecution under the agreement his lawyer said had been made.

As it turned out, however, Sweeney never had immunity because such agreements have to be in writing and meet other requirements. Ultimately, the information about the body was used to convict Sweeney of murder. He was sentenced to 60 years in prison in 1995.

Susan Schultz, a Corydon lawyer represented Sweeney, argued that his case was inadequately presented by his lawyer on an earlier appeal.

More from the story:
The visit by presiding Judge L. Mark Bailey, and Judges Melissa May and Cale Bradford was part of a program designed to educate the public about the workings of the court by seeing the judges in action. * * *

Those attending were told that 15 judges on the appeals court, who sit in panels of three, are appointed by the governor and are subject to voter review in "retention" ballots, first after serving two years and then every 10 years.

During a question-and-answer session, Mark Porter, a member of Leadership Southern Indiana, a nonprofit group that conducts programs to help people learn more about their community, asked the judges how Indiana voters can tell whether members of the appeals panel are "doing a good job" or not.

After all, the judges work in groups of three so it can be tough to tell what an individual is doing, said Porter, executive director of the Center for Lay Ministries in Jeffersonville.

Bradford, who has been on the appeals court since August, told Porter that some information about the judges is available on state Web sites, and that lawyers rate the appeals panel on a regular basis.

Floyd Circuit Judge J. Terence Cody, who was in the audience, said the Indiana system allows appeals court judges "to be truly independent in the cases they decide" because they aren't subject to the public pressures of partisan elections.

Posted by Marcia Oddi on Thursday, April 10, 2008
Posted to Ind. App.Ct. Decisions

Wednesday, April 09, 2008

Ind. Gov't. - Valpo mayor Costas enters GOP attorney general field

So reports Patrick Guinane in this story today in the NWI Times. Some quotes:

VALPARAISO | Mayor Jon Costas hopes to appear on the Republican ticket in November as the party's nominee for Indiana attorney general, the two-term city leader announced Tuesday.

Costas said he began considering the statewide post three weeks ago, after Republican Attorney General Steve Carter announced he would forgo a third term. * * *

Four other prominent Republican lawyers have expressed interest in the nomination. But one of them, Indiana Secretary of State Todd Rokita, on Tuesday said he'd step aside for Costas

"I would support his candidacy 100 percent, not only for the strong leadership he will provide to another corner of the Statehouse, but (because) it would allow me to continue my current service as secretary of state and spend more time with our newborn this year," Rokita, a Munster native, said in a statement.

Costas, who drew no Democratic opponent on the way to a second mayoral term last year, could help bring regional balance to the November GOP ticket. It will be headlined by Republican Gov. Mitch Daniels, who has no primary opponent. * * *

Costas, now a part-time attorney specializing in elder law for the Valparaiso office of Burke Costanza & Cuppy, said he would stay on as mayor if he secures his party's nomination. Local Republican precinct officials would select a new mayor if Costas ultimately were elected attorney general in November.

Greg Zoeller, Carter's chief deputy, also has expressed interest in the GOP nomination for attorney general, along with Kyle Hupfer, a former director of the Indiana Department of Natural Resources, and Tom Wheeler, the chairman of the Indiana Election Commission.

Posted by Marcia Oddi on Wednesday, April 09, 2008
Posted to Indiana Government

Ind. Courts - More on: Judicial mandate mentioned in Carroll County

Expanding upon this ILB entry from yesterday evening, Debbie Lowe of the Carroll County Comet reports today:

Carroll County Council met twice last week in an attempt to develop a budget to stop constant overspending of projected income by department heads. They were successful in that endeavor. However, the budget, adopted Thursday morning, may have to be trimmed even further before it is submitted to the Indiana Department of Local Government Finance (DLGF) for approval. * * *

Council decided to discuss the most current budget reductions with department heads in a Thursday morning public meeting. During the meeting, department heads reacted with a wide range of emotions. Some accepted their fated numbers and agreed to work within the new limitations. Two did not accept what they were handed.

Carroll Superior Court Judge Jeffrey Smith and Carroll Circuit Court Judge Donald Currie strongly objected to further reductions in what both considered "bare bones" current appropriations.

"There are no more cuts to be made," Smith said. "I think you've asked us to do the impossible."

"What services are we supposed to do without?" he questioned council president Nancy S. Cripe.

"That's up to you," Cripe responded.

When it was suggested the courts share employees in order to eliminate one full-time position, Smith contested the idea.

"You're asking us to do the impossible," he said.

"People have their right to their day in court," Currie said and suggested council members fully consider the courts' budget reductions before they decided to subsidize residents at Carroll Manor. He challenged the council to look at other departments and analyze whether they have made equal reductions in spending as he and Smith have done.

"You're asking us to eliminate two more deputies," Cripe told the judges about their refusal to accept the council's budget numbers.

"It's clear we have the authority to do what we need to do," Smith said referencing a previous judicial mandate from him for an additional employee at the time for his court.

The judges reiterated their threat in writing the following day. Cripe was presented with a letter signed by both judges dated April 4. It read in part "….If the council can successfully persuade the Indiana Supreme Court that the courts of Carroll County should be relieved of any of the responsibilities currently required by law due to the fiscal circumstances of the county, then possibly further cuts could be made. However, at present funding levels, it will be a challenge to meet our mandated requirements and any further reductions would necessitate the courts cutting essential services to the community. Therefore, the courts of Carroll County are not in any position to further reduce the 2008 budgets."

[More] This story in the Lafayette Journal & Courier reports:
County commissioners approved two funding requests by the county council that could bring the 2008 budget below the $5 million state-mandated level. The slashing of $1.8 million was achieved through deep reductions in emergency services and reallocation of funds.

But Superior and Circuit Court judges have issued a letter refusing $90,000 of the cuts unless the council can persuade the state Supreme Court to relieve them of constitutionally mandated cases and services.

"It would become impossible for us to do the job of the court if our staff is reduced," Superior Court Judge Jeffrey R. Smith said, who added his court staffing has not increased since 1975.

Posted by Marcia Oddi on Wednesday, April 09, 2008
Posted to Indiana Courts

Ind. Decisions - Supreme Court holds Three Strikes Law unconstitutional

In Eric D. Smith v. Indiana Dept. of Correction, et al, a 15-page, 3-2 opinion, Justice Boehm writes:

In 2004, Indiana enacted a “Three Strikes Law” providing that an inmate “may not file a complaint” if the inmate has filed three prior lawsuits that were dismissed as frivolous under the “Frivolous Claim Law.” Other jurisdictions seek to curb litigant abuses by imposing conditions on lawsuits by “frequent filers.” Indiana’s Three Strikes Law goes further and purports to close the courthouse door altogether. We hold that this legislation violates the Open Courts Clause of the Indiana Constitution. * * *

The trial court’s order dismissing Smith’s complaint under the Three Strikes Law is reversed. This case is remanded to the trial court to address whether complaint should be dismissed under the Frivolous Claim Law.

Dickson and Rucker, JJ., concur.
Shepard, C.J., dissents with separate opinion.
Sullivan, J., dissents with separate opinion.

In James H. Higgason, Jr. v. Indiana Dept. of Correction, a 4-page, 5-0 opinion, Justice Boehm writes:
For the reasons given in Smith v. Indiana Department of Correction, No. 49S02-0804-CV-166, __ N.E.2d __ (Ind. April 9, 2008), also decided today, we agree with Higgason and Judge Sullivan that the Three Strikes Law violates the Open Courts Clause of the Indiana Constitution. Higgason’s claim may not be dismissed solely because of his earlier litigation.
James H. Higgason, Jr. v. Indiana Dept. of Correction - same reasoning.

James H. Higgason, Jr. v. Indiana Dept. of Correction - same reasoning.

Posted by Marcia Oddi on Wednesday, April 09, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

Roy Bennett v. State of Indiana - "The trial court sentenced Bennett to a term of two years for each of the Class D felonies, and to a term of seven years for two of the Class C felonies, and a term of six years for the third Class C felony conviction. The trial court then ordered Bennett to serve twenty years executed with five years suspended to probation. Clearly, there was a mathematical error in the computation of the aggregate sentence. Therefore, we exercise our authority to correct Bennett’s sentence to a term of twenty years executed, with four years suspended to probation.

"Bennett’s maximum sentence exposure after his convictions was thirty years. Bennett received a twenty-four year sentence with twenty years executed and four years suspended to probation. Children were victimized in each of the felonies resulting in conviction. Bennett has failed to establish that his sentence is inappropriate in light of the nature of the offense and the character of the offender. Affirmed."

NFP civil opinions today (1):

In the Matter of the Supervised Administration of the Estate of Martha Wakefield, Deceased, Cinda Bartley v. The Estate of Martha Wakefield (NFP) - "Because the trial court’s order of August 2, 2006, does not specify what sanctions it is imposing other than the imposition of the money judgment and the order of September 21, 2006, bases the dismissal of Bartley’s claim on violations of the August 2, 2006, order−an impermissible sanction for failure to pay a money judgment−we conclude that the trial court abused its discretion by dismissing Bartley’s claim without a hearing or providing findings of what, if any, discovery violations would support dismissal. Accordingly, we conclude that the trial court abused its discretion in denying Bartley’s motion to correct error. We therefore reverse the trial court’s denial of Bartley’s motion to correct error and remand with instructions to order a hearing on Burns’s motion for sanctions. Reversed and remanded."

NFP criminal opinions today (2):

Meta I. Jones v. State of Indiana (NFP)

Carmon Perdue v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 09, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Jury award upheld against doctor in bullying case"

Yesterday's Supreme Court decision in the case of Daniel H. Raess, M.D. v. Joseph E. Doescher (ILB summary here) is the subject of a story today in the Indianapolis Star by Jeff Swiatek. Some quotes:

The Indiana Supreme Court on Tuesday affirmed a jury award of $325,000 to a former St. Francis Hospital employee who accused a prominent heart surgeon of bullying him.

Joseph E. Doescher, a former heart-and-lung-machine operator, won his case against Dr. Daniel H. Raess. Doescher accused the doctor of yelling at him while on the job. The trial drew national attention as an example of workplace bullying. But the doctor appealed the case, and the Indiana Court of Appeals ordered a new civil trial in 2006.
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The 4-1 decision Tuesday by the state's highest court overturned the appellate court's order to hold a new trial. The justices found none of Raess' five appeals claims was valid. They included the claims that testimony by a national expert on workplace bullying shouldn't have been allowed and that the jury award was excessive.

The 11-page Supreme Court decision amounts to a final legal win for Doescher, said one of his attorneys, Sandra Blevins. * * *

The appeals court had held that Marion Superior Court Judge Cale Bradford allowed testimony in the 2005 trial that unfairly prejudiced the jury against Raess.

The disputed testimony by Gary Namie, director of the Workplace Bullying & Trauma Institute in Washington state, "allowed the jury to infer that Raess committed assault because that is what 'bullies' do," the appeals court said in its eight-page ruling.

Doescher claimed a workplace confrontation with Raess led to a severe case of depression and forced him to leave his job, which paid about $100,000 a year. He worked side-by-side with Raess during surgeries, running the heart-and-lung machines that keep patients alive. * * *

The claim of workplace bullying generated much attention from the media and from professional publications such as American Medical News and HR Answers.

Doescher works now in customer service for a health insurer, Blevins said. Raess quit his medical practice and left St. Francis in 2006 to work for a medical device maker.

Posted by Marcia Oddi on Wednesday, April 09, 2008
Posted to Ind. Sup.Ct. Decisions

Tuesday, April 08, 2008

Ind. Courts - Judicial mandate mentioned in Carroll County

From 18 WLFI, Lafayette, this story today:

DELPHI, Ind. -

Carroll County took steps Monday to ease budget woes.

County leaders moved some funds around internally and are waiting to see if the courts will reduce their spending.

Friday, the County Council requested the courts cut $90,000 from Superior, Circuit, and Joint Court Funds.

But, in a letter to the council, Superior Court Judge Jeffery Smith and Circuit Court Judge Donald Currie said it would impossible to make the cuts with the court's current workload.

If the courts do not reduce their budgets, Council President Nancy Cripe said the council may be forced to make more cuts in other areas.

She said the judges can file a mandate to make the council fund the $90,000 reduction.

"If they think it's reasonable expense to run their courts they do have the power to mandate that line item," she said.

Judge Currie and Judge Smith both refused an on-camera interview. In their letter to the council, they said "The remaining budget allowances are essential and necessary for the courts to fulfill the statutory and constitutional mandates required by the courts."

Cripe said if the courts do not make the cuts, additional reductions could be necessary. She said some of those cuts could still come from emergency services, which took the brunt of previous budget cuts.

Posted by Marcia Oddi on Tuesday, April 08, 2008
Posted to Indiana Courts

Ind. Courts - More on: Other blogs chime in

Updating this ILB entry from April 4th re other Indiana blogs chiming in "on the failure of the Supreme Court and its JTAC committee to allow private companies to access to the data stream from the Monroe County case management system," the Kentucky Law Blog chimes in here, commenting: "Sooner or later this issue will not be unique to Indiana regarding court records and access by private data companies."

Posted by Marcia Oddi on Tuesday, April 08, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals reverses murder convictions under Indiana’s Criminal Rule 4(C)

Today's Court of Appeals 26-page, 2-1 decision in Robert Jeffrey Pelley v. State of Indiana is the subject of this story this evening via South Bend's TV 16. Some quotes:

Jeff Pelley was found guilty by a jury in 2006 for the 1989 murders of members of his family. Today, his conviction was thrown out by the Indiana Court of Appeals.

In April 1989, Reverend Robert, Dawn, Janel, and Jolene Pelley were all murdered in Lakeville. Jeff Pelley, then 17 years old, was a suspect in the murders.

Pelley was not charged with the crimes until August 10, 2002. He was found guilty by a jury in 2006. Prosecutors argued that Pelley shot his family members to avoid being grounded on the night of his high school prom.

By a vote of two to one, the Court of Appeals reversed the convictions. The majority of the court ruled that Pelley's motion to dismiss the case, before it ever went to trial, should have been granted.

The controversy developed around a subpoena that was issued on August 22, 2002. The State asked for records pertaining to the Pelley family from the Family and Children’s Center.

On February 26, 2003 the FCC filed a motion against the subpoena, saying the records were privileged based upon the counselor/client privilege. The prosecutor argued that since it was related to a homicide, the subpoena should stand.

After debates over those records were finally settled, a trial date of July 10, 2006 was agreed upon.

On January 4, 2006 Pelley filed a motion to dismiss under Indiana’s Criminal Rule 4(C).

Criminal Rule 4(C) states that a person charged with a crime has one year from the date he/she is charged to be brought to trial, unless the delay is caused by the defendant, by court congestion or by a court-declared “emergency.”

The court denied Pelley’s motion.

Pelley’s jury trial began on July 10, 2006. The jury found Pelley guilty and he was sentenced to serve consecutive 40 years sentences, totaling 160 years.

On Tuesday, the Indiana Court of Appeals reversed the 2006 conviction. In its written decision, the Court of Appeals said:

“This case confronts this Court with an extremely unpleasant but compelling responsibility. We realize that the defendant was ultimately convicted following an arduous jury trial. Such cases extract an enormous personal toll from the witnesses, jurors, and others participating. Resulting costs are significant and burden our taxpayers, and the time devoted to such trials and subsequent proceedings operate to delay the resolution of other pending controversies. It is with extreme reluctance that we must consider setting aside the defendant’s conviction, thus rendering futile the results of the jury trial which found the defendant guilty beyond a reasonable doubt.”
Officials indicate that the Attorney General will file a petition for the Indiana Supreme Court to accept transfer of the case for an ultimate appellate review of decision made by the Court of Appeals.
Note that at the time this case was posted, it was listed on the Clerk's site as Not for Publication. That has now been remedied.

Posted by Marcia Oddi on Tuesday, April 08, 2008
Posted to Ind. App.Ct. Decisions

Ind. Law - Ghost employment charged for work at cemetery

Douglass Walker of the Muncie Star-Press reports today:

UNION CITY -- Union City's ex-park and cemetery superintendent faces criminal charges over allegations he assigned a city employee to close graves at a privately owned cemetery, then pocketed the money that was paid for the work.

Lee J. Rains, 58, 1464 Turner St., was charged Friday with three counts each of ghost employment and official misconduct, all Class D felonies carrying standard 18-month prison sentences.

According to court documents filed by Randolph County Prosecutor David Daly's office, Rains instructed an on-duty city employee, using city-owned equipment, to fill the graves at St. Mary's Catholic Cemetery.
The alleged incidents took place on three occasions -- in October 2005, July 2006 and June 2007.

A police report by Union City police Capt. Dennis Smith indicated Reichard Funeral Home issued three checks, totaling $900, for the work done at St. Mary's.

Smith reported he could find no indications that the money was subsequently deposited in city accounts.

Posted by Marcia Oddi on Tuesday, April 08, 2008
Posted to Indiana Law

Ind. Courts - "Sex Offender Files Suit Against Every Sheriff, Prosecutor In Ind."

That is the headline to this story posted on the 32 WLKY website out of Louisville. Some quotes:

SCOTT COUNTY, Ind. -- A man filed a lawsuit against every sheriff and prosecutor in the state of Indiana.

Steve Morris wants a new law, designed to protect children, thrown out. The plaintiff is a sex offender.

The law that goes into effect in July would allow law enforcement to search his computer at any time.

Morris' attorney said it's a clear violation of the Fourth Amendment.

"The Civil Liberties Union is more worried about his rights than the rights of victims in southern Indiana," said Scott County Sheriff John Lizenby.

Apparently this story is about the case filed in federal court last week by the ACLU and reported on in this April 3rd ILB entry.

Posted by Marcia Oddi on Tuesday, April 08, 2008
Posted to Indiana Courts

Ind. Courts - COA hears oral arguments in Hammond

Yesterday morning a panel of the Indiana Cuort of Appeals heard oral arguments in the case of Gladys E. Tobias vs. Margaret & Thomas Mannella in a courtroom in Hammond Indiana. (The case was listed in Monday's ILB "Oral arguments this Week." Both NW Indiana papers covered the event.

Marisa Kwiatkowski of the NWI Times reports today:

The Indiana Court of Appeals sought to uncloak its "aura of mystery" Monday through an on-the-road hearing in Hammond.

Appellate court judges Patricia Riley, James Kirsch and Margret Robb listened Monday to a case pitting Gladys Tobias, of Whiting, against Margaret and Thomas Mannella, of Pewaukee, Wis., over the sale of property owned by the Mannellas but occupied by Tobias. Tobias is seeking a share of the profits from the land sale, claiming she made improvements to the property.

The judges heard oral arguments from both sides before fielding questions from Munster and Hanover Central high school students, area judges and attorneys as part of its traveling program to educate the public on the court process. The court won't issue an opinion on the case for several weeks.

"It's always good to see court in action," Lake Superior Court Judge Julie Cantrell said. "There is an aura of mystery -- secrecy -- to the Court of Appeals because it's not in front of the public."

Most of the appellate court process takes place in Indianapolis.

Michelle L. Quinn writes in the Gary Post-Tribune:
Students who participate in the "We the People" constitutional law program furthered their education by sitting in on a Monday morning court case.

The case wasn't a jury trial but a genuine appeals case, which students from Munster and Hanover Central High Schools weren't expecting to observe. Instead of one judge, there are three, and there are no witnesses, for example.

Even the arguments by the attorneys were different, the students learned in Judge Diane Kavadias-Schneider's Lake Superior courtroom.

"When you first start out, you spend hours making this fabulous outline, but the truth is you get into about two minutes worth of it," said David Weigle, who argued on behalf of the defendants. "I've trained myself instead to formulate answers to the weaknesses of the case."

The case in question, Tobias vs. Mannella, had Gladys Tobias arguing she should be paid reimbursements for improvements she had made to a house that she and Matt Swierczynski had been renting from Margaret and Thomas Mannella, Swierczynski's sister and brother-in-law.

The Mannellas claim that Tobias was only renting and had her evicted from the property, which they later sold, when Tobias and Swierczynski stopped making payments.

A previous court ruled that though Tobias wasn't entitled to reimbursements nor advancement on the property's purchase price like she'd claimed, she was entitled to $9,044.54 in overpaid rent.

Kavadias-Schneider and the three judges hearing the case, James Kirsch, Pat Riley and Margaret Robb, all of Indianapolis, said they are always pleased to have students watch the process.

Indiana has 15 appellate judges who travel around the state and preside over hearings.

"I wish I had more space for the students," Kavadias-Schneider said. "It's good for them to see how the court operates."

Martha Minich and Lorien Estes, juniors at Munster High, said they were fascinated by the process. As members of the school's debate team, they have experience with briefs similar to the ones the judges use to render their decisions.

"In transcripts, you lose the tone of what is meant," Lorien said. "It wasn't boring."

Posted by Marcia Oddi on Tuesday, April 08, 2008
Posted to Ind. App.Ct. Decisions

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

Updating this ILB entry from April 6th, Dick Kaukas of the LCJ reports today:

A lawsuit by the New Albany City Council challenging no-bid contracts awarded by the city's sewer and storm water boards that was dismissed by a judge isn't dead yet.
Advertisement

Last night, the council approved a resolution to continue the litigation.

Patrick McLaughlin, the council member who introduced the measure, said it was "a step toward finding out why" the suit was dismissed last month by Floyd Circuit Judge J. Terrence Cody. McLaughlin added, without elaborating, that an appeal would not necessarily be part of the process.

In his ruling, Cody said a $3.3 million annual contract awarded by the sewer board to Environmental Management Corp. to run the sewer system, and a $600,000 annual contract awarded to the same company by the storm water board, did not have to be bid under state law.

Cody said the contracts were for "professional and technical services," for which bids are not mandatory. Bids would have been required, however, if the contracts had been for "a public work."

McLaughlin said information gathered in pursuing the case would help the council decide whether to draft an ordinance specifying when bids for contracts should be sought.

Posted by Marcia Oddi on Tuesday, April 08, 2008
Posted to Indiana Government

Ind. Courts - More on: Marion County Judge Richard P. Good, Jr. dies

Updating this ILB entry from Monday, Jon Murray of the Indianapolis Star has this feature, headlined "Longtime public servant: He kept working well into his 70s through all 3 branches of government," that begins:

Richard Good never quite got the hang of retirement.

After stepping down from the Marion Superior Court bench six years ago, he worked shifts as a senior judge and as an assistant to Indiana's chief justice. He ran the juvenile court when it was between presiding judges, and a year ago, he filled in as the court system's interim administrator.

Soon after that, Good would learn that cancer had returned. He died at home Saturday at age 76.

Colleagues from his legal career, which spanned all three branches of state government, remembered Good on Monday for a tireless work ethic and a friendliness that crossed party lines.

Posted by Marcia Oddi on Tuesday, April 08, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP)

For publication opinions today (3):

In Charles Hyte Comm. Center Assoc. of Terre Haute v. City of Terre Haute Park Board, an 8-page opinion, Judge Vaidik writes:

The Charles T. Hyte Community Center Association of Terre Haute, Inc. (“Hyte”) appeals the trial court’s grant of the City of Terre Haute Park Board’s (“the City”) motion for summary judgment. Specifically, Hyte argues that the trial court erred in granting the City summary judgment because there are genuine issues of material fact regarding the ownership of the real estate in question and that the court erred by not issuing findings of fact and conclusions of law. Finding that there are no genuine issues of material fact and that the trial court did not need to issue findings of fact and conclusions of law, we affirm.
Stanley R. Reid v. State of Indiana - "Here, as in Townsend, Reid failed to submit any evidence to support his petition. Without evidence regarding his diligence and lack of fault, Reid cannot have met his burden of proof. The trial court erred when it granted his petition to file a belated notice of appeal, and we dismiss Reid’s appeal for lack of jurisdiction. Dismissed."

Carl and Theresa Fitz v. Rust-Oleum Corporation. - "Third-Party Plaintiffs/Defendants/Appellants Rust-Oleum Corporation and ROC Sales, Inc. (collectively “Rust-Oleum”) appeal the trial court’s entry of summary judgment in favor of Third-Party Defendant/Appellee United States Can Company (U.S. Can). We reverse in part, affirm in part and remand."

NFP civil opinions today (5):

Robert E. Smithson v. Kelli L. Smithson (NFP) - "Robert E. Smithson (“Father”) appeals the trial court’s denial of his petition for registration of foreign child support order as well as the trial court’s award of attorney fees to Kelli L. Smithson (“Mother”). We reverse in part, vacate in part, and remand."

In Re. the Term. of the Parent-Child Rel. of J.M. and Nicole R. v. Delaware County Department of Child Services (NFP) - "Concluding that the trial court’s judgment terminating Mother’s parental rights was not clearly erroneous, we affirm."

William and Ruth Finke v. Northern Indiana Public Service Co., Mercantile National Bank, et al (NFP) - "William and Ruth Finke appeal an entry of summary judgment in favor of Northern Indiana Public Service Company (NIPSCO) and the Town of Highland (Highland) on the basis that the Finkes’ claim is barred by res judicata in this quiet title action involving a tract of land that was formerly part of a railroad corridor, since abandoned. The Finkes present several issues for review but we address only one, which we deem to be dispositive. That issue is: Is the Finkes’ quiet title action barred by res judicata? We affirm."

In Re. the Invol. Term. of the Parent-Child Rel. of N.T. and R.T., Father v. Tippecanoe County Department of Child Services (NFP) - "R.T. (“Father”) appeals the involuntary termination of his parental rights to his son, N.T. We affirm."

Wickes Furniture v. Borce Gorgijovski (NFP) - "Appellant-Defendant Wickes Furniture Company (“Wickes”) appeals from the decision of the Indiana Worker’s Compensation Board (“the Board”) awarding Appellee-Plaintiff Borce Gorgijovski medical expenses and temporary total disability benefits for injuries sustained during his employment. Upon appeal, Wickes raises several issues, one of which we find dispositive: whether the Board’s findings of fact were inadequate to permit appellate review. Determining that the Board’s findings do not contain the requisite specificity to permit meaningful review, we reverse and remand for proceedings consistent with this opinion."

NFP criminal opinions today (10):

Brian K. Morgan v. State of Indiana (NFP)

Jeremy A. Britton v. State of Indiana (NFP)

Ronald D. Fields v. State of Indiana (NFP)

Daniel Wolfe v. State of Indiana (NFP)

Omar Abdi Abshir v. State of Indiana (NFP)

William Smiechowski v. State of Indiana (NFP)

Robert Jeffrey Pelley v. State of Indiana (NFP) [NOTE: As of this evening, this case, originally listed as "NFP", is now listed as For Publication on the Clerk's website. See the ILB entry here.]

Kevin E. Dean v. State of Indiana (NFP)

Julie D. Gray v. State of Indiana (NFP)

Terri Cole v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 08, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one today, upholding $325,000 jury verdict in "workplace bullying" case

In Daniel H. Raess, M.D. v. Joseph E. Doescher, a 16-page, 4-1 opinion, argued Oct. 10, 2007, Justice Dickson writes:

This is an appeal by defendant Daniel Raess, M.D., a cardiovascular surgeon, challenging a $325,000 jury verdict and judgment on a claim for assault brought by plaintiff Joseph Doescher, a hospital operating room perfusionist (the person who operates the heart/lung machine during open heart surgeries). The Court of Appeals reversed and remanded for a new trial. Raess v. Doescher, 858 N.E.2d 119 (Ind. Ct. App. 2006), aff'd on reh'g,. 861 N.E.2d 1216 (Ind. Ct. App. 2007). We granted transfer and now affirm the judgment of the trial court. * * *

Shepard, C.J., and Rucker, J., concur.
Sullivan, J., concurs in result with separate opinion.
Boehm, J., dissents with separate opinion. [which begins] I respectfully dissent from the majority’s conclusion that challenges to Dr. Namie’s testimony were not preserved for appeal. I also conclude that his testimony was inadmissible and prejudicial.

I agree with the majority that a pretrial motion alone is insufficient to preserve for appellate review a claim of error in admitting evidence. I also agree that to preserve a claimed error at trial, a party must “make a contemporaneous objection that is sufficiently specific to alert the trial judge fully of the legal issue.” . I dissent because I believe Dr. Raess established that the trial court was alerted to the issue, and therefore the issue of admissibility of Dr. Namie’s testimony was preserved for appeal. * * *

I believe the defendant’s objections were well grounded. Evidence Rule 702 permits expert opinion testimony as to “scientific, technical, or other specialized knowledge” to “assist the trier of fact to understand the evidence or to determine a fact in issue.” Dr. Namie testified that in his opinion, the November 2, 2001 incident was “an episode of workplace bullying.” He also testified that “based on what I heard and what I read that Dan Raess is a workplace abuser, a person who subjected Mr. Doescher to an abusive work environment.” Nowhere, however, does Dr. Namie explain what a workplace bully is. Dr. Namie by his own testimony is not a clinical psychologist and is not qualified to testify as to how workplace bullying affected the plaintiff, and he did not testify on that subject. This is testimony characterizing an event, but offering no assistance to interpret or understand it. Without any context, the “workplace bullying” label is nothing more than highly prejudicial name-calling of no help to the jury. * * *

A “verbal assault” is not a legal assault, placing the victim in fear, stressful as it may be. Dr. Namie’s labeling of the defendant amounted to purported expert testimony that the defendant had bullied the plaintiff. The erroneous admission of his testimony was therefore not harmless. I would remand for a new trial.

The ILB has posted a number of entries on this case, beginning with this one from March 5, 2005, quoting an Indianapolis Star story announcing the trial court decision, with this lede: "In a potentially landmark case involving workplace bullying, a jury in Marion Superior Court on Friday ordered St. Francis Hospital's chief heart surgeon, Dr. Daniel H. Raess, to pay a former hospital employee $325,000."

Posted by Marcia Oddi on Tuesday, April 08, 2008
Posted to Ind. Sup.Ct. Decisions

Monday, April 07, 2008

Law - Look at your charge receipt; it's likely you too can bring a class action

"Landslide of Suits Over Data on Receipts: 16-month-old statute decried as a 'gotcha' law brings 300 class actions," is the headline to this story today by Tresa Baldas of The National Law Journal. It begins:

A 16-month-old federal law designed to keep private information off customer receipts has triggered an onslaught of class actions against businesses.

Since the law went into effect, defense counsel say more than 300 class actions have been filed against a number of companies, including Toys "R" Us Inc., Inter IKEA Systems B.v. and AMC Entertainment Holdings Inc.. They are accused of printing on receipts too much credit card information, thus increasing the likelihood of identify theft. Several of the class actions have been certified.

Online retailers are also getting hit. A federal judge in Florida recently held that the law covers both Internet and store receipts. Grabein v. 1-800-Flowers.com Inc., No. 07-22235-CIV (S.D. Fla.).

Under the law, known as the Fair and Accurate Credit Transaction Act (FACTA), it is illegal to print on a receipt more than the last five digits of a credit card number or the card's expiration date.

Lawyers warn that one technical mistake could be disastrous because plaintiffs need only prove a willful, technical violation -- not actual harm -- to be entitled to statutory damages between $100 and $1,000 per violation. Add up every noncompliant receipt, and a company could be facing huge penalties.

[More] Read the above in conjunction with "Costco, Kinko's Battle Trial Lawyers Over Credit-Card Receipts", by Cynthia Cotts of Bloomberg News.

Posted by Marcia Oddi on Monday, April 07, 2008
Posted to General Law Related

Ind. Decisions - More on: So far "McKinney lawsuit costs BSU $650,000"

"Defense bill of BSU cop involved in shooting reaches $1.3 million" is the headline to a story today by Seth Slabaugh of the Muncie Star-Press, updating this ILB entry from June 11, 2007, when the total was half that. Some quotes from today's story:

MUNCIE -- Ball State University has spent nearly $1.3 million so far successfully defending ex-police officer Robert Duplain, and the excessive-force complaint against him still isn't fully resolved.

After a two-week civil trial, a federal court jury on Feb. 4 found Duplain not liable for the 2003 shooting death of BSU senior Michael McKinney.

But attorneys for Timothy McKinney, who represents his son's estate, have filed a motion for a new trial, the first step toward an appeal.

Since the lawsuit was filed four years ago, Ball State has spent $1,296,638 to defend Duplain, and that includes expenses only through Jan. 31, which don't include the last two days of the trial.

"These expenses are being submitted as a claim to our insurance company, which we expect will cover all but our deductible -- $100,000," said university spokesman Tony Proudfoot.

BSU has paid $394,101 to the Muncie law firm DeFur Voran, plus $772,779 to the Indianapolis law firm Ice Miller, as well as $76,981 to the Indianapolis law firm Ruckelshaus Roland Kautzman Blackwell & Hasbrook. Ball State also has paid $52,777 for expert witnesses, consultants and other miscellaneous expenses.

The law firms succeeded not only in winning the trial but in getting Gene Burton, BSU's police chief, dismissed from the lawsuit before it went to trial.

A list of ILB entries on the cases is available here.

Posted by Marcia Oddi on Monday, April 07, 2008
Posted to Indiana Courts

Ind. Courts - "Lake County courts' use of translators up"

Marisa Kwiatkowski of the NWI Times reports today in a story that begins:

Justice is supposed to speak a universal language, but the cost of crossing criminal court defendants' language barriers to dole out justice can add up, Lake County records show.

Since 2003, the number of Lake County court cases requiring an interpreter has doubled to more than 300 annually, a Times review of county applications for state court interpreter grants shows. That caseload translated to more than 600 hours of interpreting in 2006, records show. At $45 an hour or more for the service, the county spent at least $27,000 that year.

"I don't see it as a burden to our budget," Senior Lake Criminal Court Judge Salvador Vasquez said. "The use of interpreters is necessary. With our population in Lake County, I don't see how we could ever function without them."

About 13.5 percent of Lake County households spoke a language other than English at home as of the 2000 census. That is more than double the 6.8 percent of foreign language households in Indiana.

Lake County also has more than three times the Hispanic population of the rest of the state, statistics show.

Spanish interpreters are most commonly needed in the courts, but there also is a rising demand for American Sign Language interpreters.

The county's criminal courts use the bulk of interpretation services.

State law requires criminal courts to provide the service to defendants, while people in civil cases usually foot the bill for their own interpreters.

The county has received between $9,500 and $10,000 in state grant money annually since 2004, records show. The remaining funding came from Lake County's general fund.

Spanish language interpreters are the cheapest, costing about $45 to $60 an hour, records show. Other languages can be more expensive.

Vasquez said there was a recent case in which the defendants spoke Mandarin Chinese. An interpreter had to be pulled in from Chicago, costing the county hundreds of dollars for a half-day of work, he said.

The Indiana Supreme Court also is pushing the use of certified professional interpreters.

Posted by Marcia Oddi on Monday, April 07, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (4):

Jack L. Smith, Sr. v. State of Indiana (NFP)

Michael Wilson v. State of Indiana (NFP)

Isaiah Mosby v. State of Indiana (NFP)

Travis Eppert v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 07, 2008
Posted to Ind. App.Ct. Decisions

Law - More on "High Stakes for Regulated Industry in Supreme Court Pre-emption Cases"

Updating this ILB entry from Dec. 1, 2007, and this list of entries on protecting drug makers from lawsuits, Gardiner Harris Alex Berenson had this report in Sunday's NY Times. The article begins:

For years, Johnson & Johnson obscured evidence that its popular Ortho Evra birth control patch delivered much more estrogen than standard birth control pills, potentially increasing the risk of blood clots and strokes, according to internal company documents.

But because the Food and Drug Administration approved the patch, the company is arguing in court that it cannot be sued by women who claim that they were injured by the product — even though its old label inaccurately described the amount of estrogen it released.

This legal argument is called pre-emption. After decades of being dismissed by courts, the tactic now appears to be on the verge of success, lawyers for plaintiffs and drug companies say.

The Bush administration has argued strongly in favor of the doctrine, which holds that the F.D.A. is the only agency with enough expertise to regulate drug makers and that its decisions should not be second-guessed by courts. The Supreme Court is to rule on a case next term that could make pre-emption a legal standard for drug cases. The court already ruled in February that many suits against the makers of medical devices like pacemakers are pre-empted.

Posted by Marcia Oddi on Monday, April 07, 2008
Posted to General Law Related

Ind. Courts - Judge Richard P. Good, Jr. dies

Judge Richard P. Good, Jr. was appointed to the Marion County Superior Court by Governor Frank O'Bannon in 1997. He served in the Criminal Division. Previously he had served for many years as the Executive Director of the Indiana Prosecuting Attorneys' Council, and he was a respected figure around the Statehouse. Access his complete obituary here, via the Indianapolis Star.

Posted by Marcia Oddi on Monday, April 07, 2008
Posted to Indiana Courts

Courts - "Fear, Paranoia and, Yes, Some Loathing in Alabama State House"

Remember this ILB entry from April 17, 2007 on the award of a Pultizer to a reporter who investigated the Alabama junior college system, including this quote from the Birmingham News:

Mr. Blackledge, 43, won for his work exposing extensive corruption and cronyism in Alabama’s network of 26 two-year colleges and training schools.

Mr. Blackledge’s reporting has led to the chancellor’s dismissal and to a move by the governor to ban the hiring of any state legislator by any of the colleges.

Yesterday the NY Times had this report by Adam Nossiter that began:
MONTGOMERY, Ala. — There is fear in the halls of the Alabama State House. Your colleague may be wired. Somebody may be watching you. An indictment looms.

After a dozen legislators received subpoenas one day last month in a criminal investigation, an atmosphere of paranoia and anxiety has descended on the gleaming white building that houses the State Legislature, many of its occupants say.

Legislators are sweeping their offices for bugs. Routine horse-trading for votes is stymied, for fear it could be misinterpreted. A wary lawmaker agrees to meet a reporter only in a wide-open parking lot. After-hours get-togethers are off.

The concern is a result of a long-running federal investigation into corruption within the state’s system of two-year colleges that has led to guilty pleas on bribery and corruption charges by one state lawmaker and the system’s former chancellor. The Birmingham News reported in 2006 that a quarter of the 140 members of the Legislature had financial ties to the college system, with most of the jobs or contracts going to lawmakers or their relatives. Recent reports indicate the number has grown to nearly a third of the Legislature.

See also this ILB entry from Sept. 30, 2007, headed "Should legislators be allowed to serve as officers or directors of state universities and schools?."

Posted by Marcia Oddi on Monday, April 07, 2008
Posted to Courts in general

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 NOT be webcast:

This Monday, April 7th:

10:00 AM - Gladys E. Tobias vs. Margaret & Thomas Mannella - Gladys Tobias and Margaret Mannella entered into a lease under which Tobias agreed to rent property that the Margaret and Thomas Mannella were in the process of purchasing. Several years after entering into this agreement, the Mannellas initiated a suit to evict Tobias from the property. The trial court entered an order granting possession to the Mannellas, who subsequently sold the property at a considerable profit. At the subsequent hearing on damages, Tobias claimed that she had an oral agreement with the Mannellas under which Tobias was the true owner of the property, and that the lease was a sham agreement. The trial court rejected this argument, finding that the written lease defined the party's relationship and obligations. The trial court found that Tobias had been paying rent in excess of the amount indicated in the lease, and awarded her a judgment in the amount that she had exceeded her obligation under the lease. Tobias appeals the trial court's judgment arguing that the trial court should also have awarded her damages for the profit made on the property's sale. The Scheduled Panel Members are: Judges Riley, Kirsch and Robb. [Where: Lake County Superior Court, Civil Division 1 Courtroom, Hammond, Indiana]

This Tuesday, April 8th:

10:00 AM - Victor Vega Torres vs. State of Indiana - Torres pled guilty to child molesting, a Class C felony, and was sentenced to eight years, with two years suspended, at the Department of Correction. Torres appeals, contending that his enhanced sentence is inappropriate primarily because he pled guilty and admitted responsibility for his crime and he has a significant history of mental illness. The Scheduled Panel Members are: Judges Friedlander, Robb and Bradford. [Where: Ivy Hall at Ivy Tech, Lafayette, Indiana]

2:00 PM - W. Houser Canter v. City of New Albany - Houser Canter applied for a building permit and for a conditional use permit, but placed a manufactured home in New Albany without receiving either. After a hearing, New Albany's Board of Zoning Appeals denied his application for a conditional use. The Floyd Circuit Court affirmed the BZA's denial. Canter now appeals, raising a series of constitutional, statutory and common law issues, as well as seeking damages and attorney fees for inverse condemnation and deprivation of a federal property right. The Scheduled Panel Member are: Judges Najam, Bailey and Crone. [Where: Indiana Court of Appeals Courtroom]

5:00 PM - Thomas Williams and Sanford Kelsey v. Kelly E. Tharp and Papa Johns USA, Inc. - Two men went to a Papa John's restaurant in Westfield to pick up a pizza they had ordered. An employee falsely reported one of the men pulled a gun. A number of police officers surrounded the men's vehicle when they returned home with the pizza. Police detained the men, in handcuffs and on their knees, for an hour and a half while they investigated. The men sued Papa John's and its employee for defamation, false imprisonment, negligence, and intentional infliction of emotional distress. The trial court excluded evidence the men offered in the form of the police in-car video recording and some statements by a police officer. It then granted summary judgment for Papa John's and the employee on the grounds the complaint included no defamatory statement; the employee's statement was privileged; and the employee did not act intentionally or in an extreme and outrageous manner. The Scheduled Panel Members are: Judges Kirsch, Riley and May. [Where: IU-School of Law, Indianapolis, Indiana]

This Wednesday, April 9th:

12:30 PM - Charles Sweeney vs. State of Indiana - After his counsel erroneously advised him that he had a use immunity agreement with a prosecutor, Charles Sweeney divulged the location of the body of murder victim Daniel Guthrie. Sweeney's statements were used against him, he was convicted of murder, and sentenced to sixty years imprisonment. His conviction was affirmed on direct appeal and he was denied federal habeas corpus relief. He now seeks post-conviction relief, alleging ineffectiveness of appellate counsel. The Scheduled Panel Members are: Judges Bailey, May and Bradford. [Where: Indiana University-Southeast, New Albany, Indiana]

5:30 PM - Indiana Department of Natural Resources vs. Lake George Cottagers Association - The Lake George Cottagers Association obtained a judgment that the State owns the real estate underneath a dam and is therefore responsible for repairing it. The State argues on appeal it is not the owner because a statute declaring the State holds in trust all public freshwater lakes for the benefit of the citizens of Indiana gives the State only limited control over the lakes to regulate public access, and both the Association and the State have behaved since the time the land was deeded to the Association as if the Association owned the Dam. The Scheduled Panel Members are: Judges Bailey, May and Bradford. [Where: Sherman Minton Inns of Court, Kye's I, 500 Missouri Avenue, Jeffersonville, Indiana]

Posted by Marcia Oddi on Monday, April 07, 2008
Posted to Upcoming Oral Arguments

Sunday, April 06, 2008

Environment - More on "Benton County remains knee-deep in CAFO issues"

Updating this ILB entry from Jan. 14th, Joe Larson of the Lafayette Journal & Courier reports today in a story headed "Legal fight delaying hog farm operation," that briefs now have been filed before the Court of Appeals. Some quotes:

BOSWELL -- A controversial confined hog operation planned for two sites near this town is still being held up by legal wrangling, despite being granted special exceptions by the Benton County Board of Zoning Appeals last month.

The Benton County Board of Zoning Appeals voted March 10 to grant special exceptions to Kokomo-based North Fork Farms LLC. North Fork hopes to build a 10,000-head farrowing operation near 5501 S. Benton County Road 600 West and a 6,000-head finishing farm near 4280 S. Benton County Road 200 West.

But a decision by a special judge last summer about who could sit on the Board of Zoning Appeals to consider North Fork Farms request is now under appeal in the Indiana Court of Appeals.

John Casey, the Rensselaer attorney representing the remonstrators, said he is challenging whether or not the Board of Zoning Appeals has the jurisdiction to disqualify members that it believes have conflicts of interest.

Posted by Marcia Oddi on Sunday, April 06, 2008
Posted to Environment

Environment - Of hogs and corn and ethanol

Jeff Swiatek of the Indianapolis Star has a long story today in the business section of the Indianapolis Star headed "Hoosier pig farmers are struggling with rising feed costs and a market oversupply that's pinching swine producers." Some quotes:

Farmers are losing $20 to $30 for every hog raised to market weight of about 240 pounds, creating a financial crisis that could be the most damaging period ever for the nation's hog farmers, worse even than the record low prices of 1998-99.

The reasons for the pig farm downturn are twofold: An oversupply of pork has sent market prices down and the jump in grain prices has sent feed costs way up. Hogs are voracious eaters and feed makes up half the cost of raising them. * * *

The hit to pig farmers is especially painful to Indiana, the nation's fifth-largest hog-producing state. And it imperils Gov. Mitch Daniels' ambitious goal to double the state's hog production by 2025. * * *

One of the largest planned hog operations in the state, run by North Carolina-based Maxwell Foods, has put on hold its plans to locate 30,000 sows in Eastern Indiana. So far, Maxwell has populated eight buildings with 10,000 sows.

"It sure put a damper on our business plan," said George Pettus, environmental manager in Indiana for Maxwell. "Basically, we put a hold on it right now until we see an increase in protein prices . . . and until we can see these grain prices stabilize."

Maxwell sees Indiana as a good spot to grow its hog business, taking advantage of the state's ready supplies of corn and land -- to spread manure from pigs. North Carolina has had a building moratorium on large hog factory farms.

From the April 1st LA Times, a story by Jerry Hirsch that begins:
The U.S. Agriculture Department sent shudders through much of the food industry Monday when it released estimates that showed farmers would plant 8% less corn this year.

With corn prices already pushing up food prices, a spokesman for the Grocery Manufacturers Assn. called the projection "alarming" and warned that the estimate bodes ill for consumers at the supermarket.

"Food prices are rising twice as fast as inflation, placing significant pressure on American families who are already suffering from economic uncertainty," spokesman Scott Faber said. "It's time for Congress and the administration to offer families some relief and stop food inflation."

In particular, the association is protesting federal energy policies that have created increased competition between the nation's food producers and energy companies for corn.

Pam Tharp writes today in the Richmond Palladium Item:
Corn prices have nearly tripled since 2005. Prices for both grains improved this week after the report. Cash corn on Friday was about $5.50 a bushel and soybeans about $12.25 a bushel.

Ethanol subsidies are also being blamed for higher corn prices. The number of corn-based fuel plants has almost tripled since 1999 and more are being built, according to the Renewable Fuels Association. The plants could gobble up more than a quarter of the country's corn crop.

"Food prices being driven by the food-to-fuel mandates will most significantly affect the working poor," said Scott Faber of the Grocery Manufactures Association.

Taking a long range view, Anne Kibbler of the Bloomington Herald Times writes today in a story ($$$) headed "Ethanol: A price too high? Questions surround homegrown answers to energy production.". Some quotes:
But not all the news about ethanol is positive. A study by Purdue University agronomy professor Tony Vyn says increased corn production for ethanol could result in more soil erosion, a decrease in air and water quality and an increased risk of weeds, insects and disease. A paper published by Science magazine in February said corn-based ethanol production would almost double greenhouse gases worldwide over a 30-year period because of the carbon that would be released by ploughing forests and grassland. And the U.S. Geological Survey says fertilizer runoff from corn and soybean crops in Indiana contributes to a “dead zone” in the Gulf of Mexico.

In economic terms, ethanol production has far-reaching consequences. Purdue agricultural economists Corinne Alexander and Chris Hurt estimate that U.S. consumers paid $15 billion more for food, based on 2007 farm level crop prices, than they did in 2005 because of the increased demand for crops grown for fuel.

And while ethanol can play a role in reducing U.S. dependence on imported oil, an entire corn crop converted to ethanol would yield only enough to cover 15 percent of the nation’s gasoline use, says Purdue agricultural economist Otto Doering. By 2012, the country will use about one-third of its corn crop for ethanol, producing about 5 percent of gasoline use.

What’s more, while energy plants are forging ahead with the production of biofuels, the U.S. Government Accountability Office says the Department of Energy hasn’t done enough to ensure there’s an infrastructure in place — including appropriate vehicle production — to deal with the new market.

Still more questions. Bob Bent, an emeritus professor of physics at Indiana University who has spent years studying global energy problems, raises larger questions about the drive to produce ethanol.

“My main worry is that the human species, which already appropriates 40 percent of the productivity of the Earth’s biosphere, will ruin the planet in desperate and futile attempts to solve the ‘energy problem’ by endless increases in supply, which obviously isn’t possible on a finite planet,” he said. “The question regarding ethanol is, ‘How much, under what conditions, and with what environmental impacts?’ The answer seems to be that although the biofuel contribution can be positive, it will remain small, being restricted by the ability of the natural environment to provide both fuel and food for a large and energy-demanding world population. How these restrictions will apply remains to be seen.”

Posted by Marcia Oddi on Sunday, April 06, 2008
Posted to Environment

Environment - Does IDEM favor business to the detriment of the environment?

That is the question addressed in this story today by Gitte Laasby of the Gary Post-Tribune, which begins:

For nearly a year, the Indiana Department of Environmental Management has been under fire from environmentalists for being soft on business in permits for BP and U.S. Steel.

Some say the agency prioritizes economic development even when it conflicts with IDEM's core mission of protecting human health and the environment.

"They make it clear they see it as their jobs to issue more permits for businesses that can expand from jobs. They've been clear that's how they see their main role although they say they protect the environment," Bowden Quinn, a former environmental liaison with IDEM, now a conservation director with the Hoosier chapter of the Sierra Club, said.

"I think a lot of people would feel there's a lot of underlying tension there. In most cases, when there's a judgment call, IDEM under the current administration tends to decide in favor of economic development rather than environmental protection."

Posted by Marcia Oddi on Sunday, April 06, 2008
Posted to Environment

Environment - "'Toxic trailers' raise fears about RVs"

The ILB has had several entries about FEMA "toxic trailers". Start here for background. Today Ted Evanoff of the Indianapolis Star has a long story about how issues arising from the trailers shipped to house Katrina survivors by FEMA, many of which were produced in Indiana, may impact future RV sales.

Oddly, the most interesting part of the story, the last section consisting of nearly a dozen paragraphs, does not appear on the Star website, or in the syndicated version on the Muncie Star-Press website.

Posted by Marcia Oddi on Sunday, April 06, 2008
Posted to Environment

Saturday, April 05, 2008

Ind. Courts - Porter County Courthouse to be scene for movie shots

Jane Huh of the Gary Post-Tribune reports:

VALPARAISO -- An independent Chicago filmmaker plans to shoot scenes in the Porter County Courthouse this summer.

Following last month's Hollywood visit to Crown Point in Lake County, it's Valparaiso's turn at getting some exposure, albeit on a smaller scale.

Joel Sacramento, the film's co-producer and cinematographer, has colleagues and family members who live in the region. He said the crew plans to shoot the scene in late June.

"It's a beautiful courthouse for sure ... not to be done up by Crown Point and Johnny Depp," said Sacramento, referring to the Michael Mann-directed project that brought Johnny Depp to shoot scenes at the Old Lake County Jail in Crown Point last week.

The Dillinger/Depp Indiana courtroom scenes were actually filmed in courthouses in the State of Wisconsin, as reported in an ILB entry from March 26th titled "Dillinger movie shot at Wisconsin locations representing Indiana courtrooms."

Posted by Marcia Oddi on Saturday, April 05, 2008
Posted to Indiana Courts

Ind. Courts - More on "Muncie judge calls it quits"

Updating this ILB entry from March 28th, Rick Yencer of the Muncie Star-Press reports:

Gov. Mitch Daniels will have the Republican nominee to consider when appointing a successor to Delaware Circuit Court 5 judge Wayne Lennington, whose resignation is effective May 15.

Chris M. Teagle, 48, a first-time candidate, said Thursday that he planned to apply for the vacancy created by Lennington's decision to step down from the bench amid judicial misconduct and criminal investigations.

The Indiana Judicial Qualifications Commission had been investigating alleged conflicts between Lennington's financial interests and judicial decisions and agreed to end the review after Lennington resigned. A criminal investigation is still pending.
Daniels' office sent an e-mail to Delaware County lawyers last week, notifying them of the vacancy and setting an April 11 deadline for applications. The governor will try to fill the post before May 15, according to spokesman Jane Jankowski.

The new judge's time on the bench could be brief given voters on Nov. 4 will elect a Circuit Court 5 judge to a six-year term.

Teagle, who has practiced law for 20 years, is unopposed for the Republican nomination, while the Circuit 5 race on the Democratic Party ticket is likely the most competitive of any of the three judicial races in 2008.

"This could give me a chance to show what I can do," said Teagle, who also served as a public defender and did some pro tem work for the late Judge A.J. Hall.

None of the Democrats seeking the nomination for Circuit 5 are applying for the temporary appointment.

"That should be filled by the election process," said attorney Tom Cannon Jr., a former juvenile referee.

Cannon also thought a senior judge might make more sense given the short term of the appointee.

Deputy Prosecutor Ron Henderson, another Democrat, said he would be amazed if anyone except the Republican nominee would be appointed.

Attorney Kim Dowling agreed with the idea of appointing a senior judge, saying the governor still had the authority to make the appointment.

Delaware Circuit Court 1 Judge Marianne Vorhees, the county's presiding judge, said the current process of other judges sharing Lennington's caseload would continue.

"If nobody is appointed by May 15, we would like a senior judge to cover the gap," she said.

Posted by Marcia Oddi on Saturday, April 05, 2008
Posted to Indiana Courts

Ind. Courts - More on: Sierra Club files suit against Duke Energy

Updating this ILB entry from April 3rd, Bryan Corbin of the Evansville Courier & Press reports today:

The Sierra Club has accused Duke Energy Indiana Inc. of artificially inflating the amount of air pollution a proposed coal-to-gas power plant planned for Knox County would be allowed to emit.

In a lawsuit filed Thursday in U.S. District Court here the San Francisco-based environmental group alleges Duke Energy did not install required pollution-control equipment at its old coal-fired plant or obtain necessary permits.

And that, the club charges, artificially inflated the amount of air pollution its replacement plant will be allowed to emit. * * *

Duke Energy counters that the Sierra Club is incorrect, that the Edwardsport plant complied with the Clean Air Act and that the environmental group simply wants to block the coal-to-gas power plant from being built.

"They are trying to stop any plant that is a coal plant, even if it is a clean-burning one," Duke Energy spokeswoman Angeline Protogere said.

At issue is the 630-megawatt power-generating plant Duke is building to replace its existing 130-megawatt plant in northern Knox County. * * *

In the lawsuit, the Sierra Club alleges that Duke Energy and its Cinergy predecessors made repeated modifications to boilers and associated equipment at the old Edwardsport plant over the years without installing additional pollution controls or obtaining permits, violating the New Source Review provision of the Clean Air Act.

That provision requires the oldest and dirtiest power plants and refineries to install modern pollution controls whenever they make major modifications that substantially increase pollution.

The suit asks the federal court to stop Duke from proceeding with the new plant or operating the old one until pollution-control measures are installed and permits are obtained.

"We're saying that they should be held to a higher standard for pollution reductions than they are asking for in the permit — and we're saying they should have to reduce their pollution more than they want to; and our argument is based on the New Source Review requirements," said Bill Hayden, chairman of the Sierra Club's Hoosier Chapter executive committee.

Posted by Marcia Oddi on Saturday, April 05, 2008
Posted to Ind Fed D.Ct. Decisions

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

Updating this ILB entry from March 28th, Dick Kaukas of the Louisville Courier Journal reports today:

The New Albany City Council may decide next week whether to appeal the dismissal of its lawsuit challenging two no-bid contracts awarded last year by the city's sewer and storm water boards.
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In a ruling last week, Floyd Circuit Judge J. Terrence Cody threw out the lawsuit as requested by lawyers for the boards.

Cody concluded that the contracts were for "professional and technical services," which do not require bidding, and were not for "a public work" such as constructing a building, which must be bid under state law.

The ruling was a setback for the council, which has been grappling with the issue since last summer. * * *

Last week, after Cody dismissed the complaint, the council held another executive session in the offices of its lawyer, Jerry Ulrich. Members said afterward that no decision on what to do about the lawsuit had been reached.

Meanwhile, Mayor Doug England's administration has been looking at agreements that have privatized some city operations, including running the sewer and storm-water systems and picking up garbage.

In his "state of the city" address to the council last month, England said his staff was "assessing whether any of these services should be returned to City Hall and performed in-house with city personnel."

Such decisions, however, apparently would have to wait until the expiration of current contracts, such as those with EMC.

Posted by Marcia Oddi on Saturday, April 05, 2008
Posted to Indiana Government

Law - Adam Liptak to succeed Linda Greenhouse at NYT

Updating this March 27th ILB entry reporting that Linda Greenhouse had accepted a buyout package from the NYT, there is news of her successor. The SCOTUSBlog's Lyle Denniston had this report yesterday that begins:

The New York Times indicated on Friday that its new Supreme Court reporter will be Adam Liptak, succeeding Linda Greenhouse, who is headed for an academic appointment at Yale Law School. Mr. Liptak has been The Times’ national legal correspondent.

Posted by Marcia Oddi on Saturday, April 05, 2008
Posted to General Law Related

About this blog - Kudos from Kentucky Law Blog

Thanks to Michael Stevens of the Kentucky Law Blog for his kind entry re the ILB's 5th birthday!

Here is a link to the ILB's 5th birthday announcement from Tuesday.

Posted by Marcia Oddi on Saturday, April 05, 2008
Posted to About the Indiana Law Blog

Friday, April 04, 2008

Ind. Gov't. - Coach Crean's contract online

Coach Crean's $18 million contract is a 3-page "memo of understanding", plus a signature page and an exhibit. Access it here from the Indianapolis Star website.

The Star's Terry Hutchens has the story on the contract details, here. The story notes:

The Memorandum, signed by both Crean and IU athletic director Rick Greenspan, is not the official contract; that hasn't been drawn up yet. But it presents "the material terms" of the contract and specifies that those won't be changed or renegotiated.

Posted by Marcia Oddi on Friday, April 04, 2008
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending April 4, 2008

Here is the Indiana Supreme Court's transfer list for the week ending April 4, 2008.

There were no transfers granted this week.

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, April 04, 2008
Posted to Indiana Transfer Lists

Ind. Courts - Other blogs chime in

Sunday's ILB entry tiled "Vanderburgh court records move to the Web", commenting on the failure of the Supreme Court and its JTAC committee to allow private companies to access to the data stream from the Monroe County case management system, is picked up and expanded upon by Richmond attorney E. Thomas Kemp of Kemplog, in this post today.

Re issues with the Clerk of the Court's office, Bloomington attorney Michael Ausbrook writes today in his blog, INCourts, about "Sealed Cases & Oral Argument" here, and "Time Stamps Bloat Court PDF Files," here.

Posted by Marcia Oddi on Friday, April 04, 2008
Posted to Indiana Courts

Ind. Decisions - 7th Circuit issues one Indiana opinion

In U.S. v. Ivory Griffin (ND Ind., Judge Sharp), a 7-page opinion, Judge Kanne writes:

Ivory Griffin pled guilty to one count of possessing an unregistered firearm, 26 U.S.C. § 5861(d), and one count of possessing a firearm after having been previously convicted of a felony, 18 U.S.C. § 922(g)(1). The district court sentenced him to a total of 146 months’ imprisonment on both counts. On appeal, Griffin seeks to withdraw his guilty pleas on the basis that the court conducted an incomplete plea colloquy. See Fed. R. Crim. P. 11(b). Griffin also challenges his sentence on the grounds that the court (1) denied him his right to allocution before imposing sentence; and (2) inappropriately entered a corrected judgment. We affirm Griffin’s convictions. However, we vacate his sentence and remand for resentencing. * * *

Despite conducting an otherwise thorough Rule 11 colloquy, the district court did not specifically advise Griffin that he would have had the right to present evidence or that he could have compelled the attendance of witnesses through the court’s subpoena power. See Fed. R. Crim. P. 11(b)(1)(E). And although the court informed Griffin that he would “be sentenced under the appropriate [Sentencing] Guidelines,” the court did not explain that it had the authority “to depart” from the applicable guidelines range. See Fed. R. Crim. P. 11(b)(1)(M).

This is not the first time that we have addressed a challenge to a Rule 11 colloquy when counsel failed at the plea hearing to inform the district court of its omissions. And it is difficult to understand why counsel here did not help the court avoid correctable omissions. Confusion over Rule 11’s requirements should not be the reason; the Rule is not new, unclear, or even difficult to access. Not only should counsel for the government, as well as for the defendant, be familiar with Rule 11 before even walking into a plea hearing, but it would also be a good practice for them to have a copy of the Rule handy so they can follow along with the court’s colloquy. That way, if the court overlooks one of the Rule’s provisions, counsel can bring the omission to the court’s attention and avoid any later grief. We would like to think that any sentencing judge would not only correct the omissions that he or she made while conducting the colloquy, but would appreciate the opportunity to do so.

Moreover, counsel have nothing to gain by remaining silent about the district court’s omissions. * * *

The fact remains, however, that Rule 11 is controlling law in federal criminal matters. See Fed. R. Crim. P. 1(a)(1). As such, counsel have a professional duty to speak up if they notice that the court happens to forget a portion of the colloquy. See Ind. Rules of Prof’l Conduct R. 3.3(a)(2) (“A lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”) * * *

With that said, we turn to Griffin’s challenge to his sentence, which, unlike his attempt to withdraw his guilty pleas, has merit. Griffin argues that his sentence should be vacated and his case remanded for resentencing on the ground that the district court violated his right to a meaningful allocution by announcing the sentence it intended to impose before affording him the opportunity to speak. The government agrees. We do as well; a district court plainly errs by announcing its intended sentence before a criminal defendant’s allocution. * * *

Griffin’s convictions are AFFIRMED. His sentence, however, is VACATED, and his case is REMANDED to the district court for resentencing.

Posted by Marcia Oddi on Friday, April 04, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP), including a criminal appeal lost in the Clerk's office for nearly sixteen months

For publication opinions today (1):

In David Keown v. Cynthia Marie Keown, a 13-page opinion, Chief Judge Baker writes:

If a trial court orders a party to sell the marital residence, can it take into account the amount of necessary repairs and the costs of sale when valuing the property for the division of the marital estate? We hold that because a party was ordered to sell the marital residence, the trial court did not abuse its discretion by reducing the value of the property by the cost of necessary repairs and the costs of sale as long as those amounts are based on evidence in the record.
NFP civil opinions today (2):

In Re the Adoption of G.E.L., Heidi J. Franks v. Darla and Jason Lippert (NFP) - "In sum, Mother has waived her appeal of the adoption court’s decision to exclude the evidence listed in the Protective Order. Further, because G.E.L.’s interests were being represented by Raatz, the court did not abuse its discretion in denying Mother’s motion for the appointment of another guardian ad litem. Accordingly, we must affirm the adoption court’s decision to grant the adoption petition and deny Mother’s motion to contest G.E.L.’s adoption. Affirmed."

Marnie Lynn Clark v. Michael Allen Clark (NFP) - "Appellant-respondent Marnie Lynn Clark appeals the trial court’s order granting appellee-petitioner Michael Allen Clark’s petition to modify child custody. Marnie makes the following arguments: (1) the trial court erroneously excluded certain evidence; (2) the trial court erroneously placed the burden of proof on Marnie; (3) the trial court behaved in ways that render the judgment unfair and deprived Marnie of due process; and (4) Michael failed to meet his burden of showing that a change in custody was warranted and the trial court improperly relied on speculation in awarding custody to Michael. Finding no error, we affirm the judgment of the trial court."

NFP criminal opinions today (5):

Christopher Neal v. State of Indiana (NFP) - Includes this footnote: "1 As we have pointed out in Lake County Board of Elections and Registration v. Copeland, --- N.E.2d ---, No. 45A04-0710-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 November 1, 2006, but was not transferred to our court until March 2008—a delay of nearly sixteen months." This follows upon the ILB entry from April 3 and is the sixth such case that has surfaced so far.

Rashurd Smith v. State of Indiana (NFP)

Kevin L.Hampton v. State of Indiana (NFP)

Tammy Childers v. State of Indiana (NFP)

Julie A. Gardiner v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, April 04, 2008
Posted to Ind. App.Ct. Decisions

Ind. Law - "New law will require passengers to get help"

A story today, via the AP, begins:

A new law will prevent passengers from walking away from car wrecks without alerting authorities and helping injured people if the driver cannot do so.

Lawmakers approved the passenger responsibility law, which was inspired by a 2005 fatal car crash in Noble County. Thomas Hoopingarner, 17, was found dead after a crash left his vehicle inverted and underwater in a pond in northern Indiana. Two 15-year-old passengers left the scene without seeking help or alerting police, authorities say, but there was no law on the books to support charges against them.

The new law only applies to passengers involved in accidents who are over age 18 or who are at least 15 years old and have a learner's permit or driver's license. If a driver involved in a wreck is unable to notify police or aid injured people, passengers must do so. A violation of the law would be a Class C misdemeanor, punishable by up to 60 days in jail and a maximum $500 fine.

Current law already requires drivers to stop at the scene, notify police and seek help if they are involved with an accident that results in an injury or death of a person. The new law expands that provision to also require drivers to call for help if a person is trapped in a vehicle.

The new law is HEA 1052.

Posted by Marcia Oddi on Friday, April 04, 2008
Posted to Indiana Law

Ind. Decisions - "Carmel can regulate mines"

The City of Carmel, Indiana v. Martin Marietta Materials, Inc., issued late yesterday afternoon by the Supreme Court (see ILB summary here), is the subject of a story today by the Indianapolis Star's Francesca Jarosz. A quote:

The decision in Carmel's favor could provide some relief to homeowners in the Kingswood subdivision bordering Martin Marietta. For years, they have fought the company's attempts to expand its operations.

But one of Carmel's lawyers in the case says the ruling won't end the city's struggle with the mining operation.

The city has a separate lawsuit pending in the U.S. District Court in Indianapolis that Martin Marietta filed in 2006, accusing Carmel Mayor Jim Brainard of using political power to stop the company from expanding its mine.

It was not immediately known whether a hearing has been set for that case. [ILB - see a list including ILB entries re federal suit here.]

In the trial court where the mining ordinance issue was originally heard, Martin Marietta set forth other arguments in contending the ordinance was invalid. The company could raise those arguments again if litigation continues.

Posted by Marcia Oddi on Friday, April 04, 2008
Posted to Ind. Sup.Ct. Decisions

Thursday, April 03, 2008

Ind. Courts - Sierra Club files suit against Duke Energy

The ILB has received a release from the Hoosier Chapter of the Sierra Club, headed "Sierra Club Challenges Duke Energy’s Emissions Scheme: Pollution Limits on New Coal Plant Artificially Inflated," that begins:

The Sierra Club today took steps to hold Duke Energy accountable for failing to install modern pollution controls at its coal-fired power plant in Edwardsport, Indiana. Specifically, Sierra Club filed a citizen enforcement action in federal court in Indiana seeking an order prohibiting Duke’s illegal pollution. Since pollution limits for Duke’s new integrated gasification combined cycle (IGCC) coal plant will be set based on the amount of pollution released from the current Edwardsport plant, the failure to install modern pollution controls will allow Duke to release illegally high amounts of pollution from its new plant for decades to come.
Here is a copy of the 14-page complaint, filed today in the SD of Indiana.

Posted by Marcia Oddi on Thursday, April 03, 2008
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - ACLU files suit challenging new sex offender law [Updated Again]

Jon Murray reports this afternoon in the Indianapolis Star in a story that begins:

The American Civil Liberties Union of Indiana filed a lawsuit today challenging a new provision of the state sex offender law that will require those who register to agree to searches of their computers.

Passed earlier this year by the Indiana General Assembly, Senate Bill 258, which takes effect July 1, addresses several issues related to sex offenders. One is that when a sex offender begins probation, parole or enrolls in the state's sex offender registry, they must sign a consent form agreeing to searches of computers or Internet-enabled devices at any time. Also, they must agree to install software that monitors Internet usage at their own expense.

The lawsuit, filed in U.S. District Court in Indianapolis, says placing the restriction on sex offenders who aren't in probation or still on parole violates the U.S. Constitution's protection against unreasonable searches and seizures. Sex offenders generally must register for 10 years after their release from prison, though some must register for life.

[Updated] Here is a copy of the 11-page complaint, posted by the ILB.

[Updated 4/4/08] The Star this morning has an expanded report, including:

Starting July 1, it will require sex offenders enrolling in the state's public registry to submit e-mail addresses and user names for instant messaging, chat rooms and social networking sites.

Offenders who provide that information must sign a consent form allowing searches of their computers or other Internet-enabled devices at any time. Also, they must install software that monitors their Internet activity at their expense.

Such restrictions already are used as conditions of probation. The ACLU is challenging their use for sex offenders who still must register but have finished serving parole or probation.

"It seems to be, in our estimation, a pretty clear violation of the Fourth Amendment when you're not on parole or probation," said Ken Falk, the ACLU of Indiana's legal director.

Posted by Marcia Oddi on Thursday, April 03, 2008
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Supreme Court decides Carmel gravel mining case

In The City of Carmel, Indiana v. Martin Marietta Materials, Inc., a 13-page, 5-0 opinion, Justice Sullivan writes:

The City of Carmel enacted an ordinance regulating mining within the City. The trial court prohibited enforcement of the ordinance based on the argument of Martin Marietta Materials, Inc., a mining concern, that the City did not follow the statutory requirements applicable to enacting zoning ordinances. We find that the City was not required to utilize the zoning process in order to regulate mining in this way. * * *

[T]he General Assembly has set forth a number of explicit procedural requirements for local units of government to exercise its powers and Martin Marietta is certainly correct that the mandates of the statutes as to the enactment of ordinances must be followed for those ordinances to be valid. * * *

In summary, the City has enacted the Ordinance in a general exercise of its authority to “regulate conduct, or use or possession of property, that might endanger the public health, safety, or welfare” as authorized by I.C. § 36-8-2-4 without complying with the special requirements applicable to zoning ordinances mandated by the 600 Series Procedures. Martin Marietta believes that a city ordinance regulating mining may be enacted only by complying with the 600 Series Procedures. The trial court agreed and entered a preliminary injunction prohibiting enforcement of the Ordinance on this basis. The Court of Appeals affirmed on this basis as well.

We do not agree with Martin Marietta’s view that the language of title 36, article 7 indicates that the General Assembly intended to subject the regulation of mining exclusively to the zoning process. * * *

[S]everal Indiana decisions have upheld ordinances that regulated how property was used and maintained, but were not zoning ordinances. See, e.g., Spitler v. Town of Munster, 214 Ind. 75, 14 N.E.2d 579 (1938) (regulating the maximum length of stay and minimum size of sleeping rooms in tourist camps); Mathys v. City of Berne, Inc., 501 N.E.2d 1142, 1143 (Ind. Ct. App. 1986) (prohibiting storage of inoperative cars or scrap metal on one’s personal premises); Starzenski v. City of Elkhart, 659 N.E.2d 1132, 1140 (Ind. Ct. App. 1996), trans. denied (prohibiting the storage of excess trash and debris on one’s personal premises).

To repeat, a unit’s zoning power is a subset of its police power; they are not mutually exclusive. But the fallacy in Martin Marietta’s argument is its contention that when a unit exercises its police power, at least with respect to mining, the unit is compelled to utilize the zoning process. When dictating what type of land use is permitted and where, a unit must employ the zoning process and follow the 600 Series Procedures. But beyond that, a unit may, but is not required to, use the zoning process to regulate mining. In the alternative, the City may proceed as it did here. * * *

Conclusion. The decision of the trial court is reversed.

The ILB has posted a number of entries on the efforts of the Cities of Carmel and Martinsville to regulate grvel mining within their jurisdictions. Access a list here.

Posted by Marcia Oddi on Thursday, April 03, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More "Governor appoints Bluffton City Judge"

Updating this ILB entry from Feb. 28, quoting from the Governor's press release appointing Bob Bate, and this one from Jan. 19, quoting a Fort Wayne Journal Gazette story that reported in part:

Markley took office Jan. 1 and quit 14 days later. The part-time job pays less than $9,500 and involves handling traffic tickets, ordinance violations and other small civil matters.

On Jan. 15, Markley submitted his resignation to Bluffton Mayor Ted Ellis, blaming poor record keeping by his predecessor, Markley’s own “limited technology skills” and a “lack of knowledge of the requirements of the court system,” according to his resignation letter.

Yesterday the Bluffton News-Banner reported, in a story by Glen Werling:
April 15 is the target date to reopen city court, according to newly-appointed Judge, Bob Bate.

Bate was appointed to the position by Gov. Mitch Daniels Feb. 28 following the resignation of Gary Markley, who defeated long-time incumbent Lyle Cotton in last November’s election.

Even though the court has been essentially “closed” since Cotton’s last day on the job in December—Markley never held court before resigning—Bate said that payments for tickets are still being accepted at the Bluffton Police Department.

“We’re still taking care of people, we’re just not holding any court right now,” said Bate. However, if anyone wishes to pay a ticket, they may bring it to the Bluffton Police Department during business hours of 8 a.m. to 4 p.m. and pay the receptionist either cash or money order for the fine and fees.

“We will not accept personal checks,” iterated Bate. * * *

The delay in getting started with court has partly to do with the changes that Bate plans to implement to make the court more user friendly.

“We’re going to hire a full time person who will split time between the police department and the city court so that people can come in and pay tickets anytime. They won’t have to come in on just Tuesdays or Thursdays,” said Bate.

The delay has also been caused by a need to do some house cleaning, admitted Bate.

“We’re going through and rearranging some things and we’ve applied with the state to get some of the older records destroyed,” said Bate, adding, “Some of those records go way, way back. We’re just trying to clean house.”

Posted by Marcia Oddi on Thursday, April 03, 2008
Posted to Indiana Courts

Law - "Lawyers Fight DNA Samples Gained on Sly"

A long and very interesting front-page NY Times article today on “surreptitious sampling” of DNA, reported by Amy Harmon. Some quotes:

The two Sacramento sheriff detectives tailed their suspect, Rolando Gallego, at a distance. They did not have a court order to compel him to give a DNA sample, but their assignment was to get one anyway — without his knowledge.

Recently, the sheriff’s cold case unit had extracted a DNA profile from blood on a towel found 15 years earlier at the scene of the murder of Mr. Gallego’s aunt. If his DNA matched, they believed they would finally be able to close the case.

On that spring day in 2006, the detectives watched as Mr. Gallego lit a cigarette, smoked it and threw away the butt. That was all they needed.

The practice, known among law enforcement officials as “surreptitious sampling,” is growing in popularity even as defense lawyers and civil liberties advocates argue that it violates a constitutional right to privacy. Mr. Gallego’s trial on murder charges, scheduled for next month, is the latest of several in which the defense argues that the police circumvented the Fourth Amendment protection against unreasonable search and seizure.

Critics argue that by covertly collecting DNA contained in the minute amounts of saliva, sweat and skin that everyone sheds in the course of daily life, police officers are exploiting an unforeseen loophole in the requirement to show “probable cause” that a suspect has committed a crime before conducting a search.

“The law cannot tolerate such back-door methods, which seize something that any reasonable person expects to remain private,” Mr. Gallego’s lawyer, David Lynch, wrote in a motion to suppress the DNA evidence extracted from the cigarette butt.

Posted by Marcia Oddi on Thursday, April 03, 2008
Posted to General Law Related

Law - "Private data tossed in the trash by businesses trigger a crackdown"

Tresa Baldas of The National Law Journal writes today in a story that begins:

Shred it, or regret it.

That's the message that attorneys, and state and federal authorities, are sending out to companies that throw sensitive and confidential information into the trash, an illegal yet widespread practice that has triggered litigation and legislation in several states.

The practice has become particularly prevalent in the crippled banking and mortgage industries.

"Local offices are being closed. Local mortgage companies are going out of business. There is so much information left behind when that happens," said attorney Luis Salazar, a member of the data privacy and security law group in Greenberg Traurig's Miami office.

But the problem goes far beyond foundering mortgage loan companies.

Texas Attorney General Greg Abbott has filed six lawsuits against companies in the past year, including CVS Caremark Corp., RadioShack Corp. and Select Medical Corp., alleging illegal disposal of records.

Most recently, Abbott announced a judgment on March 26 against CVS, which will pay $315,000 and overhaul its information security program to settle claims that hundreds of customer records were dumped behind a CVS store in Liberty, Texas. Texas v. CVS Pharmacy, No. CV-72881 (Liberty Co., Texas, Dist. Ct.).

CVS spokesman Michael DeAngelis said that all 6,200 CVS stores have policies in place to protect the privacy of their customers. He also said that no personal customer information was disclosed in the Liberty incident.

SPREADING CRACKDOWN

In Indiana, the attorney general
has filed 36 complaints with the state pharmacy board against 18 pharmacies -- including CVS and Walgreens Co. -- and 18 pharmacists for allegedly throwing personal medical information into the trash.

In Kentucky, an investigation by the state attorney general's office last fall revealed that 33 companies were illegally dumping private records into the trash. Charges were not filed, but the attorney general's office said that it is working with the companies to bring them into compliance with state disposal laws.

Posted by Marcia Oddi on Thursday, April 03, 2008
Posted to General Law Related

Ind. Courts - Yet more on the sealing of records in the Clerk of the Courts Office

Perhaps related to the total disappearance of some cases from the Clerk's docket, so that even the fact of their existence is no longer discernible, an attorney who recently visited the clerk's office sends this note this morning:

I saw your posts about the juvenile records, and realized that I had seen a notice on the cabinet where extra copies of briefs and motions are shelved awaiting pick up by attorneys who want file-stamped copies back.

The notice reads: "If you are looking for extra copies of a filing from a Juvenile matter (JV) please see a Case Manager for assistance. Those items will no longer be placed on this bookshelf for pick-up."

See this post from yesterday.

And to quote again from the ending of the original post on this topic yesterday:

The first time one of my cases was sealed, I called the Clerk's office to inquire and was told that one of the parties must have requested it. Uh, no. That would have required a filing of some sort, I would imagine. And as the attorney of record, I didn't receive anything.

I just checked one of my old TPR cases I did from earlier this year. Completely missing from the docket. No record found. Yet that case was not sealed the entire time I was progressing through the Court. And interestingly, the opinion issued and posted online used the parties' names (since they were adults) but changed the child's name to initials. Why would that case need to be sealed? Yet while searching for that TPR case, I found other TPR cases that were NOT sealed.

The ILB had a number of entries last year on the topic of secret dockets - i.e. court cases being kept off the public docket so that not even the fact of their existence is knowable. To review these entries, start with this post from Oct. 18, 2007. The examples, however, involve wrongful sealing by judicial order, not by administrative action.

Posted by Marcia Oddi on Thursday, April 03, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP), including an interlocutory appeal lost in the Clerk's office for eight months

For publication opinions today (2):

In State of Indiana v. Harold Lewis, a 10-page opinion, Judge Crone writes:

On interlocutory appeal, the State challenges the granting of a motion in limine filed by defendant Harold Lewis. The State asserts that in this trial on a charge of criminal recklessness resulting in serious bodily injury, the State should be permitted to present evidence of the victim’s death, which occurred after Lewis allegedly shot him. We reverse and remand. * * *

Applying the aforementioned law to the present dispute, we must conclude that while Lewis was free to request a stipulation regarding serious bodily injury, the State was not required to agree. Moreover, the State is entitled to prove that Lewis committed criminal recklessness resulting in serious bodily injury by evidence of its own choice. Thus, assuming admissibility decisions are based upon our Indiana Rules of Evidence, gory photographs, the fact that Hensley died some time after the incident, other evidence, and/or some combination thereof, may all be fair game. Accordingly, we must reverse the grant of Lewis’s motion in limine and remand for proceedings consistent with this opinion.
_____________
Ftnote 1 [on p. 6] Although briefing was complete in June 2007, we did not receive this case from the Clerk’s office until February 28, 2008. We regret the delay – particularly in an interlocutory appeal.

This follows upon the ILB entry from March 27th and is the fifth such case that has surfaced so far. And this one is an interlocutory appeal, which as such is supposed to be expedited according to Appellate Rule 21(A).

Although in the March 27th opinion, CJ Baker advised counsel 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). However, as we learned yesterday from several readers, some cases have been totally (and inexplicably) "disappearing" from the online docket.

In Progressive Halcyon Insurance Company v. Michael and Autumn Petty, a 17-page opinion, the question is whether Michael and Autumn are entitled to underinsured motorist (“UIM”) coverage under Autumn’s policy with Progressive. The trial court said yes. Judge Crone writes:

In sum, we conclude that Michael and Autumn are not entitled to UIM coverage under the Policy. Therefore, we reverse and remand with instructions to grant summary judgment in Progressive’s favor.
NFP civil opinions today (0):

NFP criminal opinions today (4) [Link to Cases]:

Jill A Hayden v. State of Indiana (NFP)

Julie A. Gardiner v. State of Indiana (NFP)

Sammy Davis v. State of Indiana (NFP)

Felix Hernandez v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 03, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Questions posed to candidates in Floyd County Superior Court 3 Democratic Primary

The New Albany News & Tribune is running Q&As in contested primary races, including The Superior Court 1 & 3 Democratic primaries. Take a look here at Court 3 and here at Court 1. Several interesting questions are asked and answered.

Posted by Marcia Oddi on Thursday, April 03, 2008
Posted to Indiana Courts

Ind. Law - Yet more on: Jeffersonville bans sex offenders from parks

Updating this ILB entry from Sept. 13, 2007, Ben Zion Hershberg of the Louisville Courier Journal reports today in a story that begins:

A convicted sex offender who is banned by a Jeffersonville ordinance from entering city parks has asked a judge for permission to watch his son play baseball in the city's Little League complex.
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An April 11 hearing is set in Jeffersonville City Court to consider the request by Eric Dowdell, 34, who said he will seek an exemption from the ban based on his completion of counseling, probation and other requirements set by the ordinance for an exemption.

"I do think kids needs to be protected," Dowdell said. But he said he believes a distinction should be made between someone like him, who made a mistake years ago and has been a good parent, and someone who might harm children.

Dowdell was convicted of sexual battery in 1996, according to the Indiana Sheriff's Registry of Sex Offenders, and was no longer required to register as an offender after 2006.

Although Dowdell lives in Clarksville and his 11-year-old son plays in the Little League there, the games will be played in the Jeffersonville complex this year because the Clarksville site is undergoing a $5.3 million renovation.

Dowdell also sought a Jeffersonville exemption last year to attend games that his son played there, but the request was denied by then-City Judge Scott Lewis because Dowdell didn't have all the documentation required under the ordinance to obtain an exemption.

Posted by Marcia Oddi on Thursday, April 03, 2008
Posted to Indiana Law

Ind. Decisions - "Dad wins due-process appeal: Parental rights wrongly severed"

Yesterday's COA decision in the case of Term. of Parent-Child Rel. of S.F. and J.F., and Michael Farley v. Allen County Child Services (ILB entry here) is the subject of a story today in the Fort Wayne Journal Gazette. Reporter Niki Kelly writes:

An Allen County judge violated a Fort Wayne man’s due process rights when he used information from an outside investigation to terminate the man’s parental rights, the Indiana Court of Appeals ruled Wednesday.

In 2005, two of Michael Farley’s children were found to be in need of services based on one of them having scabies and lice, as well as overall concerns regarding the children’s living conditions.

The Allen County Department of Child Services then filed a petition in July 2006 to terminate Farley’s rights to the two children.

A trial took place in December 2006, and in February, the trial court issued an order saying “additional investigation is required” and requesting an inspection of Farley’s home by the Fort Wayne-Allen County Health Department.

Two judges are listed on Wednesday’s court ruling – Allen Superior Court Judge Charles Pratt and Senior Judge William Briggs – but the decision is unclear as to which judge acted in the case.

After receiving a report from the health department, the judge issued an order in April terminating Farley’s rights as a parent, finding “there is a reasonable probability that the conditions that resulted in the child’s removal and the reasons for the placement of the child outside the home will not be remedied.” * * *

Farley sued, alleging the trial court’s independent investigation about 45 days after the conclusion of the trial violated his due process rights. He said that after the trial court received the report, no further proceedings were held and that he was not given an opportunity to cross-examine the health department inspector or to offer his own evidence contradicting the report.

The Indiana Court of Appeals agreed, saying that if the state had met its burden in providing clear and convincing evidence that the conditions that led to the children’s removal had not been remedied, the additional inspection would have been unnecessary.

“Here, not only did the trial court conduct an independent investigation, it did so without giving Farley an opportunity to respond. This is fundamental error,” the appellate ruling said.

Posted by Marcia Oddi on Thursday, April 03, 2008
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Colleagues in politics salute Okeson's service"

Niki Kelly of the Fort Wayne Journal Gazette reports today on the death of Indiana attorney and Fort Wayne native John Okeson. Some quotes:

Former Republican state officeholder John Okeson, who died suddenly late Tuesday after a short illness, strived to leave every place or situation he was in at least a little better than he found it.

Friends and colleagues said Wednesday that he did just that.

The news of Okeson’s death shocked those in Fort Wayne and Indianapolis, where he split time as a father of three, a lawyer and public servant.

“There have been a lot of tears around here today, and some of them are mine,” Gov. Mitch Daniels said. “He was wise and calm under pressure. I learned a lot from him.”

Okeson worked as Daniels’ senior legislative counsel for nearly two years. * * *

Okeson graduated from Carroll High School and Indiana University-Purdue University Fort Wayne before receiving a law degree from Indiana University in 1989. He was considering a run for county auditor when several local politicos convinced him to think bigger.

Instead he ran for Indiana clerk of courts – and was elected at age 33 in 1994. Bucking conventional political wisdom, he didn’t seek a second term because he felt he had accomplished what he could. The office is now an appointed position.

That wasn’t the first time Okeson would make news not running for office. In the years to follow, his name popped up as a potential candidate for dozens of posts – from mayor to state party chairman to lieutenant governor to attorney general.

“He was always the guy who was Mr. Clean and when people wanted to have an outstanding candidate with impeccable credentials and background, his name would always surface,” said Steve Shine, Allen County Republican Party chairman. “All I can say is I am shocked, and it’s a tragedy to lose someone so young and vigorous.”

Mitch Harper of Fort Wayne Observed posted a number of entries yesterday on Mr. Okeson's passing. He reports:
The funeral service for John Okeson will be held at 1 PM Saturday at Trinity English Lutheran Church in downtown Fort Wayne.

Calling hours are 2 PM to 4 PM and 6 PM to 8 PM at the church at 405 W. Wayne Street. Burial will be in Highland Park Cemetery on Fort Wayne's north side.

Posted by Marcia Oddi on Thursday, April 03, 2008
Posted to Indiana Government

Wednesday, April 02, 2008

Ind. Courts - Even more on the sealing of records in the Clerk of the Courts Office

Yet another reader writes in response to this post this morning:

I agree with many of the concerns you posted from a reader earlier today. Some of my juvenile cases have disappeared from the docket; others are still there. Although I am quite concerned about juvenile privacy rights, I would never have suggested removing a case from the docket. The online docket in no way violates a juvenile's privacy rights. It does, however, provide very important and timely information to counsel.

I'm not sure who made this decision or when, but I think it is ill-advised and hope it will be changed.

Posted by Marcia Oddi on Wednesday, April 02, 2008
Posted to Indiana Courts

Ind. Courts - Yet more on the sealing of records in the Clerk of the Courts Office

Updating this ILB entry from this morning, another reader writes:

I too have had a case go from present online with "sealed" annotation to completely missing.

Posted by Marcia Oddi on Wednesday, April 02, 2008
Posted to Indiana Courts

Ind. Law- More on: 2008 US News Law School Rankings now available

Updating this ILB entry from last Friday, the WSJ Law Blog has an interesting entry this morning about how the U.S. News rankings are unrealistic because they rank the handful of national schools along with regionally-based schools which have "strong local ties," and treat law schools as "interchangeable commodities."

Posted by Marcia Oddi on Wednesday, April 02, 2008
Posted to Indiana Law

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

For publication opinions today (2):

In Term. of Parent-Child Rel. of S.F. and J.F., and Michael Farley v. Allen County Child Services, a 15-page opinion, Judge Barnes writes:

Michael Farley appeals the termination of his parental rights to his children, J.F. and S.F. We reverse and remand.

Issue. Farley raises three issues. We address the dispostive issue, which we restate as whether Farley was denied due process when the trial court conducted an independent investigation and did not allow Farley an opportunity to respond. * * *

Because of the trial court’s independent investigation and the trial court’s failure to provide Farley an opportunity to respond to the Health Department’s report, Farley was denied due process. We reverse and remand with instructions for the trial court to conduct another trial.

In Marlene Decker v. David K. Zengler, et al, a 12-page opinion, Judge Sharpnack concludes:
The Siblings and the Estate have produced no evidence that, at the time Helbling and Decker created the joint accounts, Helbling did not intend for Decker to have a right of survivorship, or that Helbling’s intent later changed and she notified the financial institution in writing to this effect. Accordingly, there is no genuine issue of material fact about these issues. The Siblings and the Estate have failed to overcome the statutory presumption in favor of a right to survivorship, and we therefore hold that Decker is entitled to summary judgment as a matter of law. See, e.g., Freidline v. Shelby Ins. Co., 774 N.E.2d 37, 42-43 (Ind. 2002) (holding that the trial court correctly entered summary judgment in favor of defendant and denied plaintiff’s motion for summary judgment where plaintiff failed to establish by clear and convincing evidence that defendant breached its duty to act in good faith).

For the foregoing reasons, we reverse the trial court’s grant of the motion for summary judgment filed by the Siblings and the Estate and the trial court’s denial of Decker’s motion for summary judgment and remand for proceedings consistent with this opinion.

NFP civil opinions today (0):

NFP criminal opinions today (6):

Brian E. Kemp v. State of Indiana (NFP)

David D. Darr v. State of Indiana (NFP)

Shan Vandervliet v. State of Indiana (NFP)

Sylvester Anderson v. State of Indiana (NFP)

William Long v. State of Indiana (NFP)

Jerry Larkey v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 02, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on the sealing of records in the Clerk of the Courts Office

The ILB has posted a number of entries on sealed cases. A good wrap-up is provided by this ILB entry from July 12, 2007.

A very big concern is that when an entire case is sealed, the case must least be listed in the Clerk's docket, with at a minimum a notation that the case has been sealed. Otherwise, there is no way for the public to know that the case is in the system. Another concern may be that cases are "sealed" arbitrarily and not listed at all.

This morning the ILB received several communications from reader who does a lot of appeals. With permission, here are some quotes:

I am a faithful reader of your blog and have been watching the discussions closely about the Appellate Courts' Clerk's Office. I practice regularly in the Court of Appeals and have had up to this point no problems with the Clerk's Office. I read most of the opinions handed down by the Court, so I've read the Court's multiple footnotes about cases that have been "lost" in the Clerk's office. Usually the Court warns that attorneys need to keep on top of our cases by checking the online appellate docket regularly. Which I do. However, recently the Clerk's office has begun "sealing" cases that deal with juvenile delinquency matters and TPR/CHINS matters. No big deal, except for two things: (1) they do not inform the attorneys of record when they do this; and (2) they have begun completely removing any information about the case from the online docket, even the case's very existence.

Case in point: I am currently working on an appeal in a juvenile delinquency case. Over a week ago, I filed a motion for extension of time within which to file my brief * * *. I then heard nothing about my motion. Because my brief was due tomorrow and concerned that something might have happened, I contacted a staff attorney at the Court of Appeals and was told my motion had already been granted, but that he could not give me details about the Order. However, he assured me the information would be posted on the online docket quickly. I checked the online docket yesterday afternoon and found that the Order still had not been posted, only my motion. I arrive at work this morning to check again; only this time, there is no record of the case. I search my last name, the client's last name, the old cause number, and the new cause number...nothing. I finally call the Clerk's office and am told that the case is sealed, so I will no longer be able to access information about the case online.

What seems particularly odd to me is that juveniles' names are initialed in all of our filings, in the opinion itself, and on the online docket in order to maintain their anonymity. Why would there be a further need to completely remove the online docket information? Furthermore, how are we as attorneys supposed to make sure our cases are "transmitted" to the Court of Appeals in a timely fashion if we cannot check their progress on the online docket?
More:
What is weird is that when they began "sealing" the cases online, there used to be a notation when you looked the case up on the online docket that it was "sealed." Now there is no record of the case at all. It just makes no sense, considering that the opinion issued in these cases will all be posted online for all to read, so why would the docket, which really contains very little useful information to anyone other than the parties, not be allowed to be posted at all?

The first time one of my cases was sealed, I called the Clerk's office to inquire and was told that one of the parties must have requested it. Uh, no. That would have required a filing of some sort, I would imagine. And as the attorney of record, I didn't receive anything.
More:
I just checked one of my old TPR cases I did from earlier this year. Completely missing from the docket. No record found. Yet that case was not sealed the entire time I was progressing through the Court. And interestingly, the opinion issued and posted online used the parties' names (since they were adults) but changed the child's name to initials. Why would that case need to be sealed? Yet while searching for that TPR case, I found other TPR cases that were NOT sealed.

Posted by Marcia Oddi on Wednesday, April 02, 2008
Posted to Indiana Courts

Courts - New York judges may sue for raises

Joel Stashenko of the New York Law Journal reports today:

As the New York Legislature prepared to begin passing the 10th consecutive budget that does not contain a pay raise for judges, Chief Judge Judith S. Kaye's attorney on Monday outlined her possible suit to force lawmakers and the governor to break the salary impasse.

"This is a legitimate case, a legitimate legal case," attorney Bernard W. Nussbaum told more than 100 judges and other supporters of a judicial pay raise who gathered Monday at New York State Bar Association headquarters in Albany.

Though Chief Judge Kaye continued to insist that a pay suit by the judiciary against the other two branches of state government was a last resort, she spoke for the first time of when she was prepared to bring the action.

"I would say shortly, during April," she said. "Earlier rather than later." * * *

Kaye said the problem with the judicial pay increase was, once again, the refusal of some lawmakers to depart from tradition and raise judges' salaries without also increasing their own. Neither judges nor legislators have gotten a raise since January 1999, and the chief judge said judges have since suffered a 26 percent erosion in salary due to inflation.

For a number of reasons -- chiefly, the poor economy and the fact it is an election year for all state lawmakers -- legislative leaders have discouraged their members from seeking a pay raise in the budget. More typically, lame-duck Legislatures return after Election Day to approve pay-raise bills in the increases that have been enacted over the past two decades.

Kaye said Monday that court administrators and judges are tired of being given lip service that a judicial pay increase is "right on the horizon." * * *

Kaye has retained Nussbaum, a former White House counsel and litigation partner at Wachtell Lipton Rosen & Katz, to represent her in the threatened suit against the governor and Legislature. Nussbaum is working pro bono.

If it comes to a suit, Nussbaum said the action would probably be filed in Manhattan Supreme Court. The judiciary would seek to have the case heard as expeditiously as possible, he said.

"We're going to call the chief judge to the stand -- she's the plaintiff -- so she can describe some of the things she described today," Nussbaum told the pay advocates at the state bar Monday. "And then we're going to call [Assembly] Speaker [Sheldon] Silver to the stand, and we're going to call Sen. Bruno to the stand. ... We'll call [Gov.] David Paterson to the stand. And let them explain the hostage-taking. Let them explain why, for over a decade, they've allowed judges' pay to be cut by 26 percent. That'll be our case, and that'll be my arguments."

He said a suit by the judiciary would accuse the other two branches of failing their constitutional obligation to provide for an independent judiciary by not voting a raise sooner. The chief judge's suit would also contend that judges are being singled out for unfair pay treatment in a state government where, virtually, all other employees get cost-of-living adjustments and other salary increases.

The action also would argue that judges' constitutional protection against having their salaries diminished is being violated by denying them raises for nearly a decade. The effects of inflation during the period effectively represents a reduction in salary for judges, Chief Judge Kaye said.

According to Nussbaum, top state courts in both Pennsylvania and Illinois have upheld suits seeking higher judicial pay on grounds similar to those he would argue in New York on behalf of the chief judge.

Posted by Marcia Oddi on Wednesday, April 02, 2008
Posted to Courts in general

Ind. Decisions - "Ex-professor loses appeal over lawsuit"

The Supreme Court's decision yesterday in the case of Virginia Hartman and Suzanne Swinehart v. Dr. Gabe Keri (ILB entry here - 2nd case) is the subject of a story today in the Fort Wayne Journal Gazette. Niki Kelly reports:

The Indiana Supreme Court ruled Tuesday that a former IPFW professor cannot sue two students who filed complaints against the teacher under the school’s anti-harassment procedure.

“We hold complaints made by a current student pursuant to a university anti-harassment policy are protected by an absolute privilege and cannot serve as the basis for civil liability to a person who is the subject of the complaint,” the court found in a unanimous decision.

Gabe Keri had sued Virginia Hartman and Suzanne Swinehart in Allen Superior Court for alleged slander, libel and malicious interference with Keri’s employment contract. The trial court refused to grant summary judgment to the women, which would have ended the case.

The Indiana Supreme Court took the case on interlocutory appeal to address an issue of first impression in Indiana – or a subject that has not yet been ruled on. * * *

Keri sued Purdue University in federal court, but the court eventually granted summary judgment on behalf of the school. He also sued Hartman and Swinehart in state court.

“Hartman and Swinehart acted under the procedure Purdue established,” the Supreme Court opinion said.

“Protecting their complaints with anything less than an absolute privilege could chill some legitimate complaints for fear of retaliatory litigation.”

The ruling also noted that Purdue’s procedure is orderly and reasonably fair and requires discipline for those who file knowingly false or malicious complaints.

“If Keri has been unfairly treated, his complaint is against Purdue University as the architect and implementer of the policy and procedures, not the students who invoked the process,” the decision said.

Karen Orr, attorney for Swinehart and Hartman, said she and her clients were pleased with the decision.

Keri’s attorney did not return several messages left Tuesday.

Posted by Marcia Oddi on Wednesday, April 02, 2008
Posted to Ind. Sup.Ct. Decisions

Tuesday, April 01, 2008

Ind. Decisions - "High Court Upholds Life Sentence In Child's Torture, Murder" [Updated]

Channel 6 News, Indianapolis, reports this afternoon on the Supreme Court's decision earlier today in the case of Michelle Gauvin v. State, summarized here in the ILB.

[Updated 4/2/08] "Court upholds sentence: Stepmother will serve life term for Aiyana's death" is the headline to this report on the decision by Sophia Voravong of the Lafayette Journal & Courier.

Posted by Marcia Oddi on Tuesday, April 01, 2008
Posted to Ind. Sup.Ct. Decisions

Courts - Do state courts flout Supreme Court precedent?

An article in the March 2008 issue of Cornell Law Review, authored by Frederic M. Bloom, Assistant Professor of Law, Saint Louis University, and titled "State Courts Unbound", begins:

State courts live by simple rules. One rule holds that state courts may adjudicate federal questions—or most of them, at least. Another rule permits state courts to play a pivotal role in the “elaboration of federal constitutional principles.” But still another rule says that state courts may not reject binding Supreme Court precedent—or so we tend to think.

There are good reasons to believe this third rule still holds true. Venerable doctrine, long-enforced court hierarchies, and deepseated fears of jurisprudential “chaos” all teach a now-familiar lesson: state courts must abide Supreme Court doctrine on questions of federal law. This is a brute fact of adjudication, a now-standard legal refrain.

But like any refrain too many times repeated, this one has grown a bit stale. So confident are we that state courts will not disregard Supreme Court doctrine that we scarcely notice when and why they actually do.

And state courts do flout Supreme Court precedent. In fact, state courts have done so very recently and very insistently, nowhere more clearly than in cases highlighting the Court’s recent docket—like Lockyer v. Andrade, Roper v. Simmons, and Smith v. Texas.

Thanks to How Appealing for the link.

Posted by Marcia Oddi on Tuesday, April 01, 2008
Posted to Courts in general

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

Jason Thomas reports this afternoon in the Indianapolis Star that:

An interstate pipeline company has reached an agreement with a group of landowners that were the target of a federal lawsuit filed by the pipeline last month to gain immediate access to their property.

Rockies Express, LLC was seeking the court's permission to access the land to conduct surveys to finalize the 638-mile route of Rockies Express - East, the final leg of a more than 1,600 mile pipeline project stretching from Colorado to Ohio.
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The landowners and the pipeline company reached an agreement this morning prior to a hearing on the lawsuit, which asked for temporary restraining orders to allow the survey work.

U.S. District Court Judge Richard L. Young granted restraining orders against seven property owners who did not appear at today's hearing.

The request for restraining orders were dropped against those landowners who reached an agreement with the pipeline company.

As part of the agreement, the pipeline company must give 48 hours notice before entering onto the property owners' land.

Posted by Marcia Oddi on Tuesday, April 01, 2008
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Supreme Court issues a third opinion today

In Theron W. Hunter v. State, a 7-page, 4-1 opinion, in a case argued Nov. 15, 2007, Justice Dickson writes:

The determinative issue in this case is whether there was sufficient evidence to support the revocation of the defendant's probation for violating a probation condition of disputed mean-ing. We conclude that the condition lacked sufficient clarity to provide the defendant with fair notice that the conduct at issue would constitute a violation of probation. * * *

The specific probation condition alleged to have violated required:

The defendant must never be alone with or have contact with any person under the age of 18. Contact includes face-to-face, telephonic, written, electronic, or any indirect contact via third parties. You must report any incidental contact with persons under age 18 to your probation officer within 24 hours of the contact.
This probation condition was expressly stated in the trial court's sentencing judgment. The trial court revoked probation, ordered the remaining sentence served, and imposed additional sanctions. The Court of Appeals affirmed by memorandum decision. Hunter v. State, 69C01-9912- CF-43 (Ind. Ct. App. June 21, 2007). We granted transfer and now reverse. * * *

If the trial court intended a condition of probation to prohibit the defendant from the be-havior shown by the evidence in this case, effective deterrence and fair advance notice necessi-tate that the choice of language must clearly describe the prohibited conduct. The probation condition in this case lacked sufficient clarity to provide the defendant with fair notice that the conduct at issue would constitute a violation of probation. * * *

Boehm and Rucker, JJ., concur.
Shepard, C.J., concurs in result.
Sullivan, J., dissents with separate opinion.

Posted by Marcia Oddi on Tuesday, April 01, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Michael R. Craig v. State of Indiana, an 11-page opinion, Judge Barnes concludes:

The trial court erroneously denied Craig’s motion to withdraw his guilty plea because the double enhancement was improper based on Mills. There is sufficient evidence to support Craig’s conviction for possession of a firearm by a serious violent felon. Craig’s twenty-year sentence is not inappropriate. We affirm in part, reverse in part, and remand for the vacation of the habitual offender enhancement.
NFP civil opinions today (3):

In Thelma Retz, Robert Lee - Allen County Treasurer, and Therese Brown - Allen County Auditor v. Swami, Inc. (NFP), a 4-page opinion, Judge Crone writes:

Swami, Inc., petitions for rehearing in Retz v. Swami, Inc., No. 02A03-0706-CV-254 (Ind. Ct. App. Jan. 25, 2007), in which we reversed the trial court’s grant of Swami’s motion for relief from judgment. We grant Swami’s petition for the sole purpose of clarifying the basis for our decision but affirm our decision in all respects.

In our memorandum decision, we determined that Swami’s claim that the auditor failed to provide constitutionally adequate notice to Swami of a tax sale and issuance of the tax deed was available at the time of the underlying litigation, and therefore Swami was barred by the doctrine of res judicata from presenting this argument in its motion for relief from judgment. * * *

Simply put, Swami had an opportunity to present a claim that the auditor’s notice failed to comply with constitutional due process in the underlying litigation and chose not to pursue that line of argument; Swami may not take a second bite at the apple. We affirm our original decision in all respects.

In Michael W. Thomas v. Salin Bank and Trust Company (NFP), a 10-page opinion, Judge Crone writes:
Michael W. Thomas appeals a summary judgment award of $122,492.92 to Salin Bank and Trust Company (“Salin Bank”). We reverse and remand.

We re-state the issues as follows: I. Whether the trial court erroneously concluded that Thomas waived the argument that his liability was limited to fifty percent of the principal debtor’s indebtedness due to Salin Bank; and II. Whether the trial court erroneously interpreted Thomas’s Third Commercial Guaranty when calculating the damage award.

In Eli Lilly and Company and Mark Hughes v. Charles Green (NFP), an 11-page, 2-1 opinion, Judge Friedlander writes:
Eli Lilly and Company and Mark Hughes (collectively Appellants) appeal the trial court’s denial of their motion for summary judgment on Charles Green’s intentional infliction of emotional distress claim. Appellants raise the following restated issue: Did the trial court properly deny Appellants’ motion for summary judgment on Green’s intentional infliction of emotional distress claim? We reverse. * * *

Appellants contend that they are entitled to summary judgment on Green’s intentional infliction of emotional distress claim because no genuine issues of material fact exist about whether Hughes’ conduct was extreme or outrageous. “Liability for intentional infliction of emotional distress is found only if there is extreme and outrageous conduct.” Bradley v. Hall, 720 N.E.2d 747, 752 (Ind. Ct. App. 1999). * * *

Hughes’s conduct is not of the same nature as that seen in Bradley. Hughes’s comments did not concern personal aspects of Green’s life, his relatives, or his physical attributes. Instead, they centered on work-related matters. Additionally, Hughes’s comments were not sexually explicit and did not use profane language. Therefore, Bradley is distinguishable. * * *

We conclude as a matter of law that Hughes’s conduct does not constitute extreme or outrageous behavior sufficient to support a claim for intentional infliction of emotional distress. Therefore, the trial court erred in denying Appellants’ motion for summary judgment on Green’s intentional infliction of emotional distress claim. Judgment reversed.

MATHIAS, J., concurs.
ROBB, J., dissents with separate opinion. [that begins] I respectfully dissent. I acknowledge that the conduct in this case is not of the same nature as that in Bradley. However, I believe at least as important as the nature of the conduct is the range and frequency of the conduct.

NFP criminal opinions today (4):

Richard Canterbury v. State of Indiana (NFP)

Joshua Steelsmith v. State of Indiana (NFP)

Oliver H. Williams v. State of Indiana (NFP)

Derek L. Carter v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 01, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides two today

In Michelle Gauvin v. State of Indiana, an 11-page, 4-1 opinion, in a case argued Nov. 14, 2007, Chief Justice Shepard writes:

Appellant Michelle Gauvin pled guilty to the confinement, neglect, and murder of her four-year-old stepdaughter. The trial court imposed life without parole.

Gauvin’s sentence rests in part on a finding that she tortured the child. Gauvin contends she was correcting the child’s misbehavior. Parental supervision is crucial to rearing children, but the duration and severity of the pain and suffering Michelle’s stepdaughter endured adequately established torture as an aggravating circumstance.

Gauvin also claims that her sentence is inappropriate. We affirm. * * *

Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., dissents with separate opinion [which begins] I respect the analysis of Michelle’s sentence by the trial court and my colleagues and agree with it in many respects. But this Court has never affirmed a sentence of life without possibility of parole for a mother who has pled guilty to killing her child or stepchild and I do not believe we should do so here.

In Virginia Hartman and Suzanne Swinehart v. Dr. Gabe Keri, a 12-page opinion, in a case argued Nov. 24, 2007, Justice Boehm writes:
We hold complaints made by a current student pursuant to a university anti-harassment policy are protected by an absolute privilege and cannot serve as the basis for civil liability to a person who is the subject of the complaint. * * *

At least three states have held that communications to school authorities raising complaints against educators enjoy the same absolute privilege the law accords to statements in judicial proceedings. * * *

Hartman and Swinehart acted under the procedure Purdue established. Protecting their complaints with anything less than an absolute privilege could chill some legitimate complaints for fear of retaliatory litigation. Other faculty-student disputes would result in traditional litigation rather than academic resolution to avoid any risk of loss of the absolute privilege accorded statements in judicial proceedings. A university should be given the latitude to tailor its processes to the educational environment without degrading the protection the law gives to com-plaints of misconduct in the educational setting. * * *

This case is remanded to the trial court with instructions to grant the defendants’ motion for summary judgment.

Shepard, C.J., and Dickson and Sullivan, JJ., concur.
Rucker, J., concurs in result with separate opinion

Posted by Marcia Oddi on Tuesday, April 01, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on "McManus returns to death row: State reverses ruling"

The ILB has a long list of entries on Paul M. McManus. The most recent quoted from this June 28, 2007 story by Bryan Corbin of the Evansville Courier & Press that began:

An Evansville man convicted of killing his wife and two children is not mentally retarded and therefore is eligible for the death penalty, the Indiana Supreme Court ruled Tuesday.

The state's highest court overturned a lower-court ruling that had declared Paul M. McManus could not be executed because he met the legal standard for mental retardation.

Today Kate Braser of the C&P reports:
The U.S. Supreme Court will not hear an appeal from death row inmate Paul McManus.

But the decision by the nation's highest court this week does not mark an end to McManus' potential appeals.

Vanderburgh County Prosecutor Stan Levco learned of the decision Monday. He said he was satisfied, but predicted it still will be "many years" until McManus runs out of appeals.

"He does have federal appeals left," Levco said, adding he was not surprised by the court's decision.

"I have thought that is the right decision, but there is still a ways to go," he said.

The decision comes a little more than one year after the Indiana Supreme Court overturned a lower-court ruling that had declared McManus could not be executed because he met the legal standard for mental retardation.

The state court ruled that McManus, of Evansville, is not mentally retarded and therefore is eligible for the death penalty.

Posted by Marcia Oddi on Tuesday, April 01, 2008
Posted to Ind. Sup.Ct. Decisions

About this blog - 5th birthday of ILB; new supporter signs on

5th Birthday. The Indiana Law Blog had its 5th Birthday on March 16th. To see the first entry you'd have to go back to March 2003 on the Old Blog Site. Starting on January 29, 2004, the ILB moved to the NewBlog Site - the one you are reading now.

High Stats. The ILB quietly made its SiteMeter stats accessible some weeks ago. In addition, check Justia, a site that ranks around 2,000 law blogs. The ILB consistently ranks in the top ten.

Supporters. Many thanks to the Indiana State Bar Association, which signed on as an annual supporter last July 1st. And welcome today, for the start of the 2nd quarter, Doxpop, LLC.

Become an Annual Supporter. Your firm or company can join the list of annual ILB supporters. I hope you will consider doing so, thereby permitting me the time to keep the ILB operating at a consistently high level.

What will be your benefits? Your name listed as a supporter in the right-hand column and on the supporters' page with a link to your site. Exposure to a statewide and national legal readership. The knowledge that you are contributing to an effort that has demonstratively enhanced communication and knowledge, both within the Indiana legal community, and with the general public.

Non-benefits of supporting the ILB. The ILB speaks with an independent voice, supporters have no influence on our editorial judgment.

Contact me to find out about adding your firm or organization to the list of annual supporters of the Indiana Law Blog.

Individual Donations. Of course, individual donations also are very welcome. Check here for information (donations made via this link are anonymous). Unfortunately, this route has had very limited success - over the years the ILB has received less than $100 total in individual donations!

Posted by Marcia Oddi on Tuesday, April 01, 2008
Posted to About the Indiana Law Blog