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Saturday, May 31, 2008

Ind. Courts - "Conviction overturned in minor-drinking case"

The Fort Wayne Journal Gazette has a brief report today on Thursday's COA NFP decision in the case of Hostetler v. State:

The Indiana Court of Appeals on Friday overturned the conviction of a LaGrange County man who threw a party in July 2006 and was later convicted of contributing to the delinquency of a minor.

Marlin Hostetler – then 25 – had a party at his home, where he lived with his parents and siblings, when his parents were out of town. About 50 to 200 people eventually came to the party, some of them underage.

Hostetler and others drank alcohol at the party while some drank Pepsi and Red Bull.

The next morning, police arrived to find about 20 vehicles in the driveway and about 50 people sleeping inside the vehicles. One of them was an underage girl who tested positive for alcohol.

Prosecutors charged Hostetler for contributing to the delinquency of a minor. He was convicted at a bench trial and received a 60-day suspended jail sentence.

The appellate court said the evidence did not show that Hostetler encouraged the girl to drink and that he hadn’t even invited her to the party. Also, she obtained alcohol directly from her boyfriend, who brought his own alcohol and stored it in his truck. The court ordered the conviction be vacated.

See also "Ex-Colts QB Trudeau, wife to pay $5,000 fine in teen party case."

Posted by Marcia Oddi on Saturday, May 31, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Key Hoosier Lottery case up for oral argument" before the 7th Circuit

The ILB has had a number of entries on various aspects of Indiana's quasi-public agencies. For instance, this Sept. 1, 2004 entry headed "Another indictment of an Indiana quasi-public entity" referenced the Intelenet Commission, PERF, the Indiana Economic Development Commission (IEDC), and the BMV Commission.

Other quasi-publics mentioned in ILB entries include include the state Lottery Commission, the State Office Building Commission and the Toll Road Commission.

This ILB entry from August 30, 2004, quoting from a story by Michele McNeil Solida, then of the Indianapolis Star, details the woes that can befall a quasi-public state agency:

Scales' conduct at the academy highlights significant problems with checks and balances at Indiana's Intelenet Commission, which oversaw Scales and the work going on at the academy.

The Intelenet Commission was created by the General Assembly in 1986 to start and operate a statewide telecommunications network for public agencies and libraries. It doesn't fall under many of the controls of state government because it's a quasi-public agency. It has its own personnel rules. It handles its own bills and check-writing instead of using the state auditor's office.

Nobody in the governor's office directly controls Intelenet, although the governor hires the executive director and appoints five of the 16 members of the commission's board. The commission, like the state's other quasi-public agencies, operates free from many government rules, so it can get things done much faster. And the commission, which managed $49 million last year, didn't have many of its own controls in place.

There was no policy for criminal background checks, no policy to regulate what expenses employees could get reimbursed and little training in government ethics. The policy on tuition reimbursement wasn't enforced.

Can an Indiana quisi-public agency maintain its exemption from state law requirements while at the same time asserting that it is immune from federal rules because it is a state agency? Ed Feigenbaum looks at that question in the June 2nd issue of Indiana Gaming Insight ($$$ only), under the heading "Key Hoosier Lottery case up for oral argument":
Oral argument is slated before a panel of the U.S. Court of Appeals for the Seventh Circuit on Friday, June 6 in Burrus v. State Lottery Comm’n of Indiana, No. 08-1142.

This is the case we have been telling you about which involved eight African-American former Hoosier Lottery employees sueing the Lottery under §1981 and Title VII for race discrimination, claiming that they were all terminated between January and August 2005 because of their race, which the Lottery denies. Six of the workers who filed the lawsuit had been employed by the Lottery since its creation in 1989. The Lottery contended that it was immune from the claims in federal court because it is a state agency. Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana denied the Lottery’s jurisdictional motion, finding the Lottery was not a state agency entitled to 11th Amendment sovereign immunity. [Here is Judge Barker's opinion.]

This case is important not only on a macro basis because of its implications for the immunity of similar quasi-state entities, but also on a micro basis for the Lottery. Soon after the Jan. 7th Burrus ruling, in Shisler v. State Lottery Comm’n of Indiana, No. 1:07-cv-01190 (4/25/08), Judge Larry J. McKinney, also of the U.S. District Court for the Southern District of Indiana, denied the Hoosier Lottery’s Motion to Dismiss for Lack of Jurisdiction in the high-profile job discrimination claim filed against the Lottery by its former general counsel, Janna Shisler. As we told you, Judge McKinney relied heavily on Judge Barker’s analysis in the Burrus ruling to agree with her finding that the Lottery was an independent agency and, thus, not entitled to sovereign immunity. As he put it in the Shisler opinion, which drew liberally from Burrus, “The Court cannot disagree with Judge Barker’s analysis.”

Posted by Marcia Oddi on Saturday, May 31, 2008
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions | Indiana Government

Environment - "One new gasification proposal survives in the United States"

"Mounting Costs Slow the Push for Clean Coal" was the headline to a story yesterday on the front-page of the NY Times. Some quotes from thelengthy story:

WASHINGTON — For years, scientists have had a straightforward idea for taming global warming. They want to take the carbon dioxide that spews from coal-burning power plants and pump it back into the ground.

President Bush is for it, and indeed has spent years talking up the virtues of “clean coal.” All three candidates to succeed him favor the approach. So do many other members of Congress. Coal companies are for it. Many environmentalists favor it. Utility executives are practically begging for the technology.

But it has become clear in recent months that the nation’s effort to develop the technique is lagging badly.

In January, the government canceled its support for what was supposed to be a showcase project, a plant at a carefully chosen site in Illinois where there was coal, access to the power grid, and soil underfoot that backers said could hold the carbon dioxide for eons.

Perhaps worse, in the last few months, utility projects in Florida, West Virginia, Ohio, Minnesota and Washington State that would have made it easier to capture carbon dioxide have all been canceled or thrown into regulatory limbo.

Coal is abundant and cheap, assuring that it will continue to be used. But the failure to start building, testing, tweaking and perfecting carbon capture and storage means that developing the technology may come too late to make coal compatible with limiting global warming. * * *

Plans to combat global warming generally assume that continued use of coal for power plants is unavoidable for at least several decades. Therefore, starting as early as 2020, forecasters assume that carbon dioxide emitted by new power plants will have to be captured and stored underground, to cut down on the amount of global-warming gases in the atmosphere.

Yet, simple as the idea may sound, considerable research is still needed to be certain the technique would be safe, effective and affordable.

Scientists need to figure out which kinds of rock and soil formations are best at holding carbon dioxide. They need to be sure the gas will not bubble back to the surface. They need to find optimal designs for new power plants so as to cut costs. And some complex legal questions need to be resolved, such as who would be liable if such a project polluted the groundwater or caused other damage far from the power plant.

Major corporations sense the possibility of a profitable new business, and G.E. signed a partnership on Wednesday with Schlumberger, the oil field services company, to advance the technology of carbon capture and sequestration.

But only a handful of small projects survive, and the recent cancellations mean that most of this work has come to a halt, raising doubts that the technique can be ready any time in the next few decades. And without it, “we’re not going to have much of a chance for stabilizing the climate,” said John Thompson, who oversees work on the issue for the Clean Air Task Force, an environmental group.

The fear is that utilities, lacking proven chemical techniques for capturing carbon dioxide and proven methods for storing it underground by the billions of tons per year, will build the next generation of coal plants using existing technology. That would ensure that vast amounts of global warming gases would be pumped into the atmosphere for decades. * * *

Most worrisome to experts on global warming, the utilities have recently been canceling their commitments to a type of plant long seen as a helpful intermediate step toward cleaner coal.

In plants of this type, coal would be gasified and pollutants like mercury, sulfur and soot removed before burning. The plants would be highly efficient, and would therefore emit less carbon dioxide for a given volume of electricity produced, but they would not inject the carbon dioxide into the ground.

But the situation is not hopeless. One new gasification proposal survives in the United States, by Duke Energy for a plant in Edwardsport, Ind.

Posted by Marcia Oddi on Saturday, May 31, 2008
Posted to Environment

Ind. Courts - "Intricate political web unravels at Cantrell trial"

Although the ILB has had plenty of mentions of various members of the Cantrell family in Lake County, it has avoided the current federal trial of Robert Cantrell until now.

This story from May 16th by Joe Carlson of the NWI Times gives basic background:

HAMMOND | The trial of political insider Robert Cantrell is scheduled to begin with jury selection May 27. Cantrell appeared in federal court in Hammond Friday for his final pretrial conference. The trial is expected to last three and a half weeks and to include more than 30 witnesses.

One of the government's star witnesses is Hammond attorney John Cantrell, Robert Cantrell's son. Defense attorney Kevin Milner, who represents Robert Cantrell, called his client's son, "an important witness."

Robert Cantrell, 65, of Schererville, was charged in April 2007 with 11 counts of defrauding the public of honest services while working for a public entity. He is also accused of defrauding an insurance company by having a township contractor insure two of his adult children and failing to report kickbacks he received from the contractor for work he steered to them.

The allegations center around Cantrell's dealings with township contractor Nancy Fromm, who owned Hammond-based Addiction and Family Care and has publicly admitted to paying Cantrell a "referral fee" for township business.

This story from May 17th by Andy Grimm of the Gary Post-Tribune provides more detail:
CROWN POINT-- After multiple continuances, Lake County political insider Robert Cantrell appears set to stand trial on fraud and tax evasion charges later this month.

At a hearing Friday, U.S. District Court Judge Rudy Lozano set the trial to start May 27 -- more than a year after Cantrell was charged.

Prosecutors said they may call more than two dozen witnesses to prove Cantrell defrauded taxpayers when he received a six-figure payout from a family friend who ran a counseling service that had accounts with numerous Lake County agencies, including Cantrell's daughter, Lake County Judge Julie Cantrell.

His daughter, who won re-election handily in the May 6 primary, is likely not the only political name to be introduced during a lengthy trial. Though he has never held elected office, Cantrell is as influential as any of the political players indicted in the U.S. Attorney's Restore Public Integrity corruption probe.

The former head of the East Chicago's Republican Party, Cantrell has varied and shifting ties to numerous Lake County political figures, including East Chicago Mayor George Pabey and former Lake County Democratic Party Chairman Stephen Stiglich.

Over the years, Cantrell has found his name on the payrolls of many government entities, including the North Township Trustee's office, which hired family friend Nancy Fromm's Addiction and Family Care (AFC) to provide counseling services.

Prosecutors allege Cantrell accepted more than $270,000 from 2000 to 2003 from AFC for helping the company win contracts with government entities. They also say Cantrell committed fraud by not disclosing his ties to AFC to a trustee, and that some $150,000 of his AFC income was not reported to the IRS.

Witness lists have not been made public record, but in court Friday, defense attorney Kevin Milner asked prosecutors to provide evidence related to possible testimony by Cantrell's son, John, a Lake County attorney.

Asked if he had been subpoenaed to testify against his father, John Cantrell said Friday, "I would love to comment, but I can't."

Now jump to today's stories. Joe Carlson reports:
HAMMOND | In a classic courtroom betrayal by a crony-turned-government-witness, Nancy Fromm on Friday described political fixer Robert Cantrell at the height of greed and paranoia.

In 2003, with the feds on their trail and literally stacks of cash in the backroom office, Fromm said she and Cantrell would grab for themselves pocketfuls of the money that had been collected from addicts attending counseling.

"We didn't talk in the office. He would just point to the drawer, and I would give him the cash," Fromm said. "He thought (investigators) had put bugs in, and I did, too."

But why should anyone believe anything Fromm says? Defense attorney Kevin Milner got Fromm to admit in cross-examination she was a liar and a thief who often blamed others for her own misfortune.

Fromm also has great motive to lie, because she's an admitted felon who is hoping to avoid jail time by cooperating with federal prosecutors in the case against Cantrell.

Fromm, 67, is owner of Addiction and Family Care Inc., a counseling firm that paid Cantrell hundreds of thousands of dollars for using his political connections to "get business" for the firm between 1999 and 2005.

Primarily, the business consisted of court-ordered drug and alcohol therapy and anger management classes for criminal offenders who were sent to AFC by judges who were friends of Cantrell, Fromm said.

The firm also provided educational classes and counseling to public employees in North Township, which also was Cantrell's employer at the time -- between 2000 and 2005.

Cantrell admits receiving some money from AFC. But one key question for the jury will be whether Cantrell received any money that related directly to the North Township work because that would be an illegal conflict of interests. He denies it.

Fromm and Cantrell were once very tight because so much of her revenue depended on him -- revenue she was secretly skimming for herself.

She even lied to investigators to protect Cantrell, although she also was lying to him at the same time about her true income and whether she had shredded incriminating records.

On Friday, she said she decided to come clean.

She said Cantrell got business for her firm using political influence with Sheriff Rogelio "Roy" Dominguez; North Township Trustee Greg Cvitkovich; County Commissioners Rudy Clay and Gerry Scheub; Lake Superior Court Judges Nicholas Schiralli, Sheila Moss and Jesse Villalpando; East Chicago Judge Eduardo Fontanez; Lake Station Judge Kris Kantar; Schererville Town Judge Deb Riga; and Kevin Pastrick, son of East Chicago Mayor Robert Pastrick.

Cantrell received nearly half of the money from clients referred to her through contracts approved by all of those officials, Fromm said.

Andy Grimm's report today:
Jurors in the trial of political kingmaker Robert Cantrell on Friday got a crash course on how to win friends and influence government contracting Friday, the fourth day of the corruption trial of the legendary political fixer.

In her second day on the witness stand, prosecution witness Nancy Fromm laid out the web of political connections that were the lifeblood of her counseling service, with Cantrell brokering dozens of contracts for her Addiction & Family Care.

Cantrell's handwritten notes were quickly added to contracts with his close friends, North Township Trustee's office, the East Chicago City Court and City Hall. He negotiated fees and smoothed over political rifts, then kept nearly half the company's fees and split another $300,000 in off-the-books cash with Fromm over six years.

"The truth is, I never really looked at these (contracts)," Fromm told Assistant U.S. Attorney Orest Szewciw. "I signed them and trusted Mr. Cantrell to do the negotiating."

At Cantrell's advice, Fromm said, she burned some records and hid others from the FBI, and lied to State Police investigators to protect their booming business when a contract with indicted Schererville Town Judge Deborah Riga came under scrutiny. Initially, she tried to cover up for Cantrell when his full-time employer, North Township Trustee Greg Cvitkovich, was brought up on federal charges.

Fromm would eventually fail her political godfather, first by not taking his advice and destroying other incriminating records, and then by agreeing to testify against him after federal prosecutors charged her with obstruction of justice and tax fraud.

Thanks to the many off-the-books transactions and missing records, Fromm's statements are prosecutors' best evidence in the case against Cantrell, who faces an 11-count indictment alleging he violated state ethics laws by not disclosing the thousands he earned from AFC while he was also on the township payroll.

Defense attorney Kevin Milner painted Fromm as willing to lie not just to investigators, but to her business partner. Fromm, who faces as long as 13 years in prison, had no records to show if Cantrell received cash, and she admitted altering business records so that she would have to share less of her take with Cantrell.

Fromm testified that at Cantrell's request, she paid his son, John, for a no-show consulting job and falsified insurance forms to put John and Cantrell's daughter, Jennifer, on AFC's group insurance plan.

But, Milner pointed out, Cantrell also insisted he protect his daughter Julie, a Lake County judge, by not accepting any share of the nearly $600,000 AFC collected for counseling services for defendants in her court.

"Didn't you think it was odd he went to such lengths to protect his daughter Julie and hung his son John out to dry?" Milner asked.

The trial, scheduled to take as long as three weeks, will resume Monday with Fromm still on the stand.

See also the NWI Times Bob Cantrell Trial Blog.

Posted by Marcia Oddi on Saturday, May 31, 2008
Posted to Ind Fed D.Ct. Decisions

Friday, May 30, 2008

Law - More on: E-mails and the statutes of frauds

Updating this ILB entry from May 22nd, FindLaw has an article by law prof Anita Ramasastry titled "A New York Appellate Court Holds that an Email Message Can Amend an Employment Contract: Why the Decision Was Correct, and What It Means for Employees." It begins:

Last month, in the case of Stevens v. Publicis, a New York intermediate appellate court held that a series of emails was sufficient to modify an employment contract, because the emails (which included signature lines) counted as “signed writings,” provided details as to the contract modifications and clearly expressed both parties' unqualified acceptance of the modifications.

Businesses and/or employees can avoid the effect of the ruling by amending their original agreements to forbid email modification. But if they do not do so, they should be on notice that a few emails may result in major changes to a contract.

As the article notes:
The key issue arose under the New York Statute of Frauds, which requires the material terms of certain legally enforceable agreements to be memorialized in a writing signed by the parties to be charged (that is, the parties who will have to fulfill the responsibilities the agreement imposed).

Posted by Marcia Oddi on Friday, May 30, 2008
Posted to General Law Related

Ind. Decisions - Transfer list for week ending May 30, 2008

Here is the Indiana Supreme Court's transfer list for the week ending May 30, 2008. Note that there are four pages. [Note: Link is fixed now.]

There were two transfers granted May 29th. They are summarized in this ILB entry from earlier today. However, they are not on today's (May 30th) transfer list.

The two cases on today's list, Pinnacle Properties and Bailey v. Mann, were granted transfer May 27th and May 22nd, respectively. The ILB entry on the Pinnacle COA opinion, dated 10/22/07, is here - 7th case. It deals with the collection of sewer bills,

The Feb. 20th 2-1 COA opinion in Bailey v. Mann (NFP) is here. It involves the trial court’s interpretation of language in the property settlement agreement incorporated into the dissolution order.

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, May 30, 2008
Posted to Indiana Transfer Lists

Ind. Law - "City considers allowing golf carts on streets"

Our most recent entry on golf carts on city streets was dated May 16th.

Today Jenny Peter of the Vincennes Sun Commercial reports:

The Board of Works is looking into allowing residents to drive golf carts along many of the city's streets.

Police Chief Tom Grove presented to the board Tuesday afternoon a proposed ordinance that would govern the use of golf carts. Each cart would have to be inspected by the VPD and be issued a sticker of compliance that must be displayed on the cart. Drivers also would have to have a valid driver's license and liability insurance.

Golf carts wouldn't be allowed to operate on the city's streets a half hour after sunset or a half hour before sunrise, and the carts would be prohibited from traveling along all state and national highways as well as Sixth, 15th, Hart, Willow and St. Clair streets. They also would be required to have working headlights, tail lights and brake lights as well as display a slow moving vehicle sign.

Those found to be in violation of any of these requirements would be issued a fine of no more than $200 per offense.

Mayor Al Baldwin said he supported the proposed ordinance but said it's likely changes would be made to it before it's sent to the city council for approval.

"I don't particularly object to this, but we want to do it in an orderly manner," Baldwin said. "They need to be safely equipped, and we need requirements that will make the streets safe but afford (drivers) the opportunity to save some money."

Baldwin and Grove said other surrounding communities, namely Oaktown, have similar ordinances involving golf carts.

Posted by Marcia Oddi on Friday, May 30, 2008
Posted to Indiana Law

Ind. Decisions - Court grants transfer in two cases

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

State of Indiana v. Kimco of Evansville, Inc., n/k/a KCH Acquisition, Inc., The Franklin Life Ins. Co., and Vanderburgh County, Indiana, - where the issue was whether Kimco was entitled to damages for its loss of access to a public thoroughfare. See 10/31/07 ILB summary of COA opinion here - 4th case.

Dennis Conwell, Frank Splittorff, and Piece of America, LP v. Gray Loon Outdoor Marketing Group, Inc. (NFP) - a contracts case involving payments for making alterations to a web site. See ILB summary of the 9/7/07 COA opinion here - 3rd case.

Posted by Marcia Oddi on Friday, May 30, 2008
Posted to Indiana Transfer Lists

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

In Harney, Brian v. Speedway SuperAmerica (SD Ind., J. McKinney), a 16-page opinion, Judge Bauer writes:

Plaintiffs brought a class action lawsuit against their employer, Speedway SuperAmerica LLC, alleging that the manner in which Speedway pays and forfeits its employees’ bonuses violates Indiana’s Wage Payment Statute and Wage Claims Statute. The district court granted summary judgment to Speedway, finding that Plaintiffs’ bonuses did not constitute “wages” under Indiana law, and therefore the two statutes did not apply. At best, the district court held, the bonuses were a form of “deferred compensation,” which were forfeited when Plaintiffs failed to meet the bonuses’ condition of continued employment with Speedway. Plaintiffs now appeal the district court’s grant of summary judgment to Speedway, claiming that the district court erred in determining that the bonuses were not “wages” under Indiana law, and that the retention element of Speedway’s bonus programs violates Indiana law.

We have reviewed the issues addressed by the district court and have determined that it ruled appropriately and without error in granting Speedway’s motion for summary judgment. Accordingly, we adopt the district court’s thorough and well-reasoned order, dated September 13, 2007, as our own and affirm the judgment of the lower court on all counts. A copy of the district court’s order is attached and incorporated herein.

Plaintiffs also move to certify certain questions of state law to the Indiana Supreme Court, and to stay this appeal pending a decision from the Indiana Supreme Court. Plaintiffs contend that there is no clear controlling precedent to guide the state law issues of (1) whether the Plaintiffs’ bonuses constitute “wages” under Indiana law; (2) whether the retention element of Speedway’s bonus programs violates Indiana law (specifically, Indiana’s Ten Day Rule) and is void as a matter of law; and (3) whether Speedway’s bon uses constitute “present” or “deferred” compensation. * * *

Our analysis in this case involves the interpretation of a specific bonus program of a single Indiana employer as applied to Plaintiffs’ particular factual circumstances. It is difficult to see how the determination of these employees’ personal circumstances could have a far-reaching precedential effect for others. As the district court’s opinion makes clear, the Indiana Supreme Court has provided guidance on when bonuses constitute “wages” under Indiana law. Because Plaintiffs are merely seeking a determination that their bonuses constitute wages, this case is not appropriate for certification.

We affirm the district court’s grant of summary judgment to Speedway and deny Plaintiffs’ request for certification.

Posted by Marcia Oddi on Friday, May 30, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 17 NFP)

For publication opinions today (5):

In John R. Myers, II v. State of Indiana , a 44-page opinion, Judge Bradford writes:

Today we state once again that a defendant is entitled to a fair trial, not a perfect trial. Concluding the imperfections in the murder trial of John Myers II did not deprive him of a fair trial, we affirm. * * *

We acknowledge that the case against Myers was entirely circumstantial and that there were certain discrete imperfections in his trial, specifically Dr. Radentz‟s references to rape, Detective Crussen‟s reference to a polygraph, and Detective Lang‟s reference to Myers‟s knowledge of the case. Upon a thorough review of the record, however, we are convinced that these imperfections, occurring over the span of a two-week trial, were more isolated than pervasive in nature, and that they did not create the cumulative effect of depriving Myers of his right to a fair trial. Both Detective Crussen‟s and Detective Lang‟s impermissible statements were countered by strict and thorough admonitions by the trial court, and Dr. Radentz‟s rape references, which were directed at the condition of Behrman‟s remains rather than the identity of the perpetrator, were thoroughly explored by defense counsel on cross-examination and demonstrated to be unconnected to any evidence specific to Behrman. As the State conceded at oral argument, Myers‟s trial may have been cleaner without these imperfections, but, separately or jointly, they were not sufficiently egregious to undermine our confidence in the trial proceedings leading to his conviction sufficient to constitute reversible error. A defendant is entitled to a fair trial, not a perfect one. See Averhart v. State, 614 N.E.2d 924, 929 (Ind. 1993). John Myers II received a fair trial. The judgment of the trial court is affirmed.

For background, start with this March 21 ILB entry, headed "Jill Behrman murder trial unfair, lawyer tells appeals court", and these from March 21 and March 19, with links.

Term. of Parent-Child Rel. of A.B., and Dawn B. v. Dept. of Child Services - "Appellant Dawn B. (“Mother”) appeals the involuntary termination of her parental rights, in Allen Superior Court, to her daughter A.B. We affirm."

Narendra Parbhubhai Patel v. United Inns, Inc. - "In sum, the trial court did not err in concluding that Patel breached his contractual obligation under the Patel Contract. Nor did the court err in granting partial summary judgment to United Inns on the issue of the validity of the liquidated damages clause in the Patel Contract. We therefore affirm the trial court’s order on summary judgment and entry of judgment after the bench trial. Affirmed."

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

Indiana Code section 9-19-10-2 (the seatbelt statute) provides, in relevant part, that each occupant of a motor vehicle equipped with a safety belt “shall have a safety belt properly fastened about the occupant’s body at all times when the vehicle is in forward motion.” Is an occupant who has the lap belt fastened but who is not wearing the shoulder belt across his shoulder violating the statute? The purpose of the seatbelt statute and the language chosen by the legislature lead us to conclude that an occupant must have the lap belt fastened and wear the shoulder strap of the seatbelt across his shoulder to comply with the statute. * * *

Because the seatbelt’s shoulder strap was not positioned across her shoulder, the juvenile was not properly wearing her seatbelt and Massey, as the driver, had committed an infraction. I.C. § 9-19-11-3.3. Because Massey had committed an infraction, Officer Ferrer had statutory authority to detain her for the time sufficient to ask for her name and driver’s license. I.C. § 34-28-5-3. Thus, we conclude that the trial court erred as a matter of law when it granted Massey’s motion to suppress and we reverse and remand for further proceedings. The judgment of the trial court is reversed and remanded for further proceedings.

In Julie Moore Walker, et al v. James Thad Martin, et al , a 21-page opinion, Judge Kirsch writes:

Julie Moore Walker and Scot Moore, individually and as co-representatives of the Estate of Christopher Scot Moore, Deceased (“Christopher”) (collectively “the Moores”) appeal the trial court’s grant of summary judgment in favor of Timothy LaFountaine, individually and d/b/a LaFountaine Logging (“LaFountaine”). The Moores raise the following restated issues:

I. Whether the trial court erred in determining as a matter of law that truck driver, James Thad Martin (“Martin”), was an independent contractor rather than an employee of LaFountaine;

II. Whether LaFountaine owed a non-delegable duty to Christopher and was thus vicariously liable under one of the exceptions to the general rule that a principal is not liable for the negligence of an independent contractor; and

III. Whether a joint venture existed between LaFountaine and Martin.

We affirm.

NFP civil opinions today (5):

Howard Slusher v. Elizabeth Slusher Rogers (NFP) - "We remand this case to the trial court to enter an order containing: (1) a proper determination of Father’s credit for his prior born child; (2) findings as to whether Mother was voluntarily unemployed and a proper calculation as to her imputed income; and (3) correct calculations of Father’s share of the uncovered medical costs and a proper determination of Mother’s credit for insurance premiums paid. Therefore, we vacate the trial court’s modification order and remand for proceedings consistent with this opinion. Vacated and remanded with instructions."

Christopher Harrison v. Sheena Harrison (NFP) - "Christopher Harrison (“Father”) appeals a trial court judgment awarding primary physical custody of his son, Z.H., to Sheena Harrison (“Mother”). We affirm."

Bret D. Shaw v. American Family Mutual Insurance Co. (NFP) - "Bret D. Shaw appeals the trial court’s order granting summary judgment in favor of American Family Mutual Insurance Company (“American Family”) on Shaw’s bad faith and breach of contract claims based on American Family’s denial of coverage under his homeowner’s insurance policy. We affirm."

Guardianship of A.N.B. and J.N.B., William Baker v. Christine Leigh Baker n/k/a Christine Leigh Weitzenfeld (NFP) - "William Baker (“Father”) appeals from an order granting guardianship of Father’s children, A.B. and J.B. (collectively “the children”), to Mark Weitzenfeld (“Stepfather”) and Claudia St. Germain (“Grandmother”). Father presents a single issue for review, namely, whether the evidence is sufficient to support the guardianship order. We affirm."

T.S. v. Marion Co. Dept. of Child Services and Child Advocates, Inc. (NFP) - "Tiwanna S. (“Mother”) appeals the involuntary termination of her parental rights to her children, H.S. and A.S. Mother raises one issue on appeal, which we restate as whether the juvenile court’s judgment terminating Mother’s parental rights to the children is supported by clear and convincing evidence. We affirm."

NFP criminal opinions today (12):

Raymond East v. State of Indiana (NFP)

Payne T. Randle v. State of Indiana (NFP)

Kelly S. Thomas v. State of Indiana (NFP)

T.L.R. v. State of Indiana (NFP)

Kyle A. Aubuchon v. State of Indiana (NFP)

Tony E. Fields v. State of Indiana (NFP)

Joshua B. Wild v. State of Indiana (NFP)

Sajjad Q. Rasheed v. State of Indiana (NFP)

Luis Raul Lopez v. State of Indiana (NFP)

Nicholas J. Barnhill v. State of Indiana (NFP)

Perry L. Hicks v. State of Indiana (NFP)

Joe Huff, et al v. Stan Sadler (NFP)

Posted by Marcia Oddi on Friday, May 30, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Ind. high court considers jury selection in Ward appeal"

Yesterday's oral arguments before the Supreme Court in the direct appeal case of Roy Lee Ward v. State are the subject of a story today in the Evansville Courier & Press reported by Bryan Corbin. Some quotes:

Stacy Payne's name barely was mentioned Thursday as the Indiana Supreme Court considered an appeal by her admitted killer.

The justices are being asked to determine if Roy Lee Ward's death sentence for raping and murdering the Spencer County teen should stand, or if the case should be sent back to the trial court for resentencing.

Ward's attorneys do not dispute that Ward killed Payne on July 11, 2001, and he pleaded guilty to the charges. * * *

At issue in the appeal is the fairness of the jury selection process in the sentencing phase of his 2007 trial.

Ward, now 35, had been found guilty and sentenced to death in Payne's slaying, but the Indiana Supreme Court reversed that conviction in 2004 and ordered a new trial, finding the Spencer County jurors had been tainted by pretrial publicity.

The 2007 trial was heard by jurors from Clay County in west central Indiana, with Vanderburgh County Superior Court Judge Robert J. Pigman presiding.

All that was left for the jury to decide was whether he should be sentenced to death, life in prison or a specific prison term.

The second jury deliberated less than 45 minutes before returning a unanimous verdict of death, and Pigman ordered the death sentence.

Ward's attorney, Steven Ripstra, argued Thursday that the Clay County jurors should have been questioned individually, with other potential jurors out of the room, so that one person's answers wouldn't be overheard and influence the next person's.

That is how the two-day jury selection process started, Ripstra said, but by the end of the process, the 120 prospective jurors were lumped into groups of 10 to 20, he said. That prevented Ward from getting a fair retrial, Ripstra contended.

Ripstra and Ward's other attorney, Lorinda Meier Youngcourt, theorized that if jury selection had continued longer, different jurors might have been selected, and they might have decided on a different sentence.

Arguing for the prosecution, deputy state attorney general James B. Martin said Ward's jury was selected fairly.

"Ward got what he wanted: He got another county (Clay), he got a fair trial," Martin told the supreme court. "The main point is, these (defense) claims are without merit." * * *

Ward's death sentence means he receives an automatic appeal before the Indiana Supreme Court. This is the first step in what is likely to be a lengthy appellate process, however. Death sentences can be appealed through the state courts and the federal court system, which typically means years can elapse before an execution is carried out.

Besides jury selection, Ward's defense team is raising several other grounds for appeal. They contend Clay County jurors should not have been shown gruesome autopsy photographs and that evidence collected from Ward during a police search should not have been allowed.

Posted by Marcia Oddi on Friday, May 30, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Channel 8 didn't defame pharmacy firm, judge rules"

Kevin O'Neal reports in the Indianapolis Star today:

A federal judge dismissed a defamation lawsuit against WISH (Channel 8) on Thursday.

The judge ruled that the station's report on a Canadian pharmacy benefit company that sells drugs to Americans was covered by Indiana's Anti-SLAPP Act, which protects reporters against lawsuits as long as the reporting is done in what the law says was "good faith."

WISH asked U.S. District Judge Larry McKinney to dismiss the suit in late February. The suit was filed by CanaRx Services, a Canadian company that sells prescription drugs by phone and online.

The suit was a response to a November 2007 series of reports on Internet prescriptions titled "Bad Medicine" by reporter Karen Hensel. According to the court ruling, the U.S. Food and Drug Administration had been investigating CanaRx since 2003 and had criticized the Canadian company for making illegal drug imports to the U.S.

The WISH report referred to the FDA's criticism of CanaRx. The Canadian company said that reference, along with quotes from the FDA saying 80 percent of prescriptions ordered from the Internet were counterfeit, defamed it.

McKinney rejected CanaRx's arguments in his Thursday decision granting WISH's motion to dismiss the case.

Here is a copy of federal Judge MCKinney's 17-page opinion. [Note: Fixed now!]

Posted by Marcia Oddi on Friday, May 30, 2008
Posted to Ind Fed D.Ct. Decisions

Thursday, May 29, 2008

Ind. Decisions - Tax Court finds RV Park eligible for a religious purposes exemption [Updated]

In Cedar Lake Conference Association v. Lake County Property Tax Assessment Board of Appeals, a decision dated May 28th, 2008, Indiana Tax Court Judge Fisher writes:

Cedar Lake Conference Association (CLCA) challenges the final determination of the Indiana Board of Tax Review (Indiana Board) which upheld the Lake County Property Tax Assessment Board of Appeals’ (PTABOA) denial of CLCA’s application for a religious purposes exemption on its real property for the 2000 tax year (year at issue). The question before this Court is whether the Indiana Board’s final determination is supported by substantial evidence.

CLCA is an Indiana not-for-profit corporation whose stated purpose is “to conduct religious services and promote religious education.” CLCA owns and operates the Cedar Lake Bible Conference Center RV Park and Campground in Cedar Lake, Indiana. * * *

During the year at issue, CLCA used the RV Park in conjunction with the Conference Center “to promote Christian principles to youth and adults in a camp environment.” As such, participants of CLCA’s programmed events used the RV Park (“affiliated” individuals). The RV Park was also used by “non-affiliated” individuals (i.e., those who did not attend CLCA’s programmed events), other non-profit organizations, churches, and prison ministries. * * *

While property tax exemption statutes are strictly construed against the taxpayer and in favor of the State, an exemption will not be construed so narrowly that the legislature’s purpose in enacting it is defeated or frustrated. * * * Thus, the fact that the RV Park and the Conference Center are delimited (i.e., they are separate parcels with distinct key numbers) neither alters the manner in which CLCA used those properties nor diminishes CLCA’s religious purpose. * * * Furthermore, the fact that some recreational activities may have taken place on the RV Park does not necessarily lead to the conclusion that CLCA’s use of the property does not further its religious purposes. * * * Consequently, when the evidence and testimony presented by CLCA are viewed in their entirety, it is apparent that CLCA predominately used the RV Park for religious purposes.

CONCLUSION For the above stated reasons, the Indiana Board’s final determination is not supported by substantial evidence and is therefore REVERSED. The matter is REMANDED to the Indiana Board so that it may instruct the appropriate assessing officials to take actions consistent with this opinion.

Readers may recall this ILB entry from May 26th headed "Exemptions for Charities Face New Challenges."

[Updated 5/30/08] "Tax Court reverses rulings denying religious tax exemption" is the headline of an AP story today. Some quotes:

A Christian campground is entitled to a religious tax exemption even though some recreational activities may have occurred there, the Indiana Tax Court has ruled.

The ruling overturned decisions by the Indiana Board of Tax Review and Lake County Property Tax Assessment Board of Appeals denying the religious exemption for the Cedar Lake Conference Association, which owns and operates the Cedar Lake Bible Conference Center RV Park and Campground.

The association is a not-for-profit corporation whose stated purpose is "to conduct religious services and promote religious education," according to court documents. The 27-acre RV park, which includes an archery range, walking trails and a prayer garden, was used by churches, prison ministries and other organizations as well as by people who did not attend its programmed religious events. * * *

The state board had found that the association failed to prove that the RV park was predominantly used for religious purposes because it did not document a breakdown of the time spent on religious and non-religious activities.

But the tax court found that the association had maintained the RV park was integral to its religious mission and that more than 67 percent of the park's income came from individuals who participated in its religious programs.

The tax court found that "it is apparent that CLCA predominantly used the RV Park for religious purposes" and "the fact that some recreational activities may have taken place on the RV Park does not necessarily lead to the conclusion that CLCA's use of the property does not further its religious purposes."

Posted by Marcia Oddi on Thursday, May 29, 2008
Posted to Indiana Decisions

Ind. Courts - "Bloomington Attorney Charged in Securities Scam"

From a press release issued today by the Indiana Secretary of State's office:

Bloomington police arrested attorney Phillip Chamberlain overnight on charges of misconduct involving his clients and violations of Indiana's Securities Act. The arrest comes after a joint investigation conducted by the Bloomington Police Department and Indiana Secretary of State Todd Rokita's Prosecution Assistance Unit (PAU). Monroe County Prosecuting Attorney Chris Gaal filed the criminal charges. Chamberlain faces five felony counts and could face up to eight years in prison for each charge. * * *

The charges filed indicate that a client of Chamberlain sought legal advice related to investing in rental properties. Chamberlain allegedly offered his client an alternative whereby the client would loan Chamberlain and others money for the development of a golf course and construction of a home in Lawrence County. Instead of investing the client's funds, Chamberlain is being charged with stealing a large portion. He also allegedly forged an endorsement signature on one of the client's checks and then deposited the check into his own bank account.

Specific charges against Chamberlain include two counts of Fraudulent or Deceitful Acts with the Offer, Sale or Purchase of a Security, one count of Forgery, one count of Offer or Sale of an Unregistered Security and one count of Transacting Business as an Unregistered Broker-Dealer or Agent - all Class C felonies. The charges described are merely an accusation. The defendant is presumed innocent until and unless proven guilty.

Posted by Marcia Oddi on Thursday, May 29, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 15 NFP)

For publication opinions today (2):

In In the Matter of the Adoption of D.C.; H.R. v. R.C., a 16-page opinion, Judge Bradford writes:

Appellant-Respondent H.R. (“Biological Mother”) appeals the trial court’s order denying her motion to set aside an adoption decree in favor of Appellee-Petitioner R.C. (“Adoptive Mother”) on the basis that Indiana Code section 31-19-14-4 bars her challenge as untimely. Upon appeal, Biological Mother claims that the adoption decree, which was entered without notice to her, was void for lack of personal jurisdiction and violated her due process rights. Concluding that Indiana Code section 31-19-14-4 is unconstitutional as applied to the instant circumstances, we reverse and remand to the trial court for a hearing on the merits of Adoptive Mother’s adoption petition. * * *

We conclude that section 31-19-14-4, when applied to bar Biological Mother’s challenge to the adoption proceedings in this case, creates an unconstitutional due process violation. Biological Mother has the fundamental right to make decisions regarding the care, custody, and control of her children, and this right falls within the protections of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

R.J.G. v. State of Indiana - "Appellant-Respondent R.J.G. appeals from the juvenile court’s disposition following his admission that he committed what would have been, if committed by an adult, Class C felony Criminal Recklessness and Class A misdemeanor Marijuana Possession. We affirm in part, reverse in part, and remand with instructions."

NFP civil opinions today (5):

James A. Gates, IV v. Kelly Wilder Gates (NFP) - "Appellant James A. Gates IV (“Father”) appeals from the trial court’s December 23, 2007 order regarding his ability to exercise his parenting time over the 2007 Christmas holiday and his child support obligation. On appeal, Father contends that the trial court abused its discretion in modifying the Mediated Settlement Agreement (“divorce agreement”), failing to enforce the agreement, finding that Father was voluntarily unemployed or underemployed, and imputing $50,000 annual income to Father for the purpose of figuring his child support obligation. Concluding that the trial court did not abuse its discretion in any regard, we affirm."

State of Indiana v. Tina S. Weatherwax-Ausman (NFP) - "We cannot conclude that two individuals arriving at a superstore parking lot together and separately proceeding to purchase one box of pseudoephedrine each is in and of itself a reasonable basis for intruding on one’s privacy. Although Trooper Burgess has extensive training and knowledge of methamphetamine-related crimes, Bulington’s holding stands. Without more, there was an insufficient basis to support the stop of Weatherwax-Ausman. Again, the State has not established that all reasonable inferences lead to a conclusion opposite that reached by the trial court."

Dennis Peterson v. Miami Correctional Facility, et al (NFP) - "The Facility was entitled to retain possession of and ultimately destroy Peterson’s hotpot, notwithstanding the not guilty finding in the disciplinary action. We affirm the small claims judgment in favor of the Facility."

Elaine Reynosa v. Review Board of the Indiana Dept. of Workforce Development, and Indianapolis Public Schools (NFP) - "Elaine Reynosa appeals the decision of the Review Board of the Indiana Department of Workforce Development (the “Board”) that she was discharged for just cause and the resulting denial of her unemployment benefits. Reynosa claims that there was insubstantial evidence to support the Board’s decision. We affirm."

Donald E. Beatty v. Stacy Beatty (NFP) - "The trial court properly modified Donald’s weekly child support obligation."

NFP criminal opinions today (10):

John Hollins v. State of Indiana (NFP)

Matthew R. Johnson v. State of Indiana (NFP)

Abjul K. Johnson v. State of Indiana (NFP)

Jerry Craig v. State of Indiana (NFP)

Jerry Shipley v. State of Indiana (NFP)

Ira L. Wilson v. State of Indiana (NFP)

James Rose v. State of Indiana (NFP)

Berry A. Sauer v. State of Indiana (NFP)

Marlin D. Hostetler v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Thursday, May 29, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Unsolved Tippecanoe County Courthouse bombing nearly ten years old

Updating this May 10th ILB entry, Sophia Voravong of the Lafayette Journal Courier reports today in a story that begins:

For nearly 10 years, authorities have been storing the stolen Ford F-250 pickup truck that drove into the Tippecanoe County Courthouse, bursting into flames and causing extensive first-floor damage.

The hope is that the person or people responsible for the attempted bombing on Aug. 2, 1998, will be caught and that the charred vehicle would be compelling evidence.

"I feel strongly that there is someone in our community who has that little piece of information," Tippecanoe County Sheriff Tracy Brown said. "We want a citizen to come forward and do the right thing. We're hoping that this will put us in a position so that we can close the case."

Brown and David Capp, interim U.S. Attorney for the Northern District of Indiana, announced Wednesday that reward money for information that would lead to an arrest and conviction in the case has been raised from $10,000 to $50,000.

The announcement comes just two months before a 10-year federal statute of limitations for arson and related crimes runs out.

Posted by Marcia Oddi on Thursday, May 29, 2008
Posted to Indiana Courts

Ind. Courts - Who am I? Why am I here?

Joy Leiker of the Muncie Star-Press reports today:

WINCHESTER -- Where is the front of the Randolph County Courthouse?

The answer to that question could determine when construction of a two-story annex and renovation of the existing 131-year-old courthouse could finally begin.

It's the latest twist to an unending spiral of problems with the courthouse project. This one comes a week after the Board of Zoning Appeals denied a variance for the annex and courthouse. County commissioners had requested the variance because the structure will be too close -- less than 25 feet -- from the right of way on the south side of the downtown courthouse square. (The courthouse sits in the middle of downtown WInchester, nearly centered on a square.)

But the variance was rejected, and now it seems the county is going to settle this latest dispute with a legal fight, one that centers on finding the front of the building.

During a special commissioners meeting Wednesday night, County Attorney John Tanner contended the BZA misunderstood its own rules, and that the 25-foot setback applies only to the front of the courthouse. He said the front of the courthouse is on the east side and faces Main Street, since its address is 100 S. Main St. He wants a judge to decide for sure, and plans to file a writ of certiorari once the minutes to last week's BZA meeting are complete.

But Area Planning Executive Director Cathy Flatter disagreed with Tanner, and said the courthouse has not one front, but four -- one on each side of the courthouse square. In her loud exchange with Tanner, where each one interrupted the other to make a point, Flatter said the definition of frontage in the county code has nothing to do with a building's address.

"The courthouse has four front setback requirements because you have four streets," Flatter said.

And just as that was left unanswered Wednesday night, so was the question of what happens next.

See also May 20th ILB entry, headed "Setback requirement deals setback to Randolph County courthouse project".

Posted by Marcia Oddi on Thursday, May 29, 2008
Posted to Indiana Courts

Law - "37 fired attorneys at Sonnenschein represent about 5 percent of the firm's 691 lawyers"

The Chicago Tribune reports today:

Sonnenschein Nath & Rosenthal, one of Chicago's biggest corporate firms, broke with that tradition Wednesday, acknowledging that the lackluster economy is taking a toll on billings and that it has laid off 124 employees, including 37 attorneys, six of whom are partners.

Most law firms hate to admit the need to downsize to avoid any sign of financial weakness in an intensely competitive industry, and a mass layoff such as Sonnenschein's is even more out of the ordinary.

But over the past decade, the law business has undergone a fundamental change, outgrowing its conservative, clubby ways to engage in some of the most common business practices: mergers, the hiring away of talent and, increasingly, layoffs. Partners are being held to specific profit goals, and those benchmarks are being chronicled in legal magazines, increasing the pressure on firm management to take bold steps such as demoting weaker partners or pushing them out the door. * * *

The 37 fired attorneys at Sonnenschein represent about 5 percent of the firm's 691 lawyers. Of the 37, six are partners, four are "of counsel" and 27 are associates, a firm spokeswoman confirmed. The Above the Law blog first reported Sonnenschein's layoffs Tuesday night.

The majority of the layoffs involved paralegals, secretaries and other administrative staff. The total of 124 represent about 7 percent of Sonnenschein's workforce of more than 1,700 in 13 U.S. cities and Brussels.

The Chicago office, where the firm was founded, is its largest and was the hardest hit by the cuts. Ten lawyers and 30 support employees were let go out of a total of 691 employees in the Sears Tower.

The most affected practice areas were real estate and litigation, the firm's largest practices and traditional strengths. Financing for new real-estate projects has dried up after a mortgage crisis locked up credit markets. The cuts in litigation were more surprising, observers said, because the practice is typically countercyclical. * * *

Because of a more bottom-line focus, law firms are more reluctant to carry people in down times, legal recruiters said. Associates are especially vulnerable in the current economic environment because they usually don't have big-money clients. They are also more expensive after last year's salary bump. The salary for many entry-level lawyers at big law firms in Chicago is $160,000. * * *

Last year, Chicago firm Mayer Brown fired or demoted 45 partners as a means of winnowing less-productive members of the firm. The news, reported by the Tribune, stunned others in the legal community because the firm starkly framed its downsizing as a means of improving profitability.

The cuts at Sonnenschein came after a rapid expansion in recent years. The firm hired dozens of partners from other firms and opened five new offices in smaller markets such as Phoenix and Charlotte. It also quietly trimmed less profitable practices, resulting in the demotion or involuntary departure of more than two dozen partners, according to published reports.

The moves are part of an ambitious strategy to lift Sonnenschein's profitability from the middle of the nation's 100 largest firms into the top echelon. But the growth plans have not materialized as quickly as firm management had expected.

The firm hoped to boost its profits-per-partner, a key benchmark, from about $800,000 in 2005, to $1.4 million by 2008. In 2007, the firm's profits-per-partner came in at $915,000, according to American Lawyer magazine.

The economic downturn has not stopped Sonnenschein's recruitment efforts. It has hired about 50 lawyers, including associates, Portnoy said.

He added: "It's not inconsistent at all to add lawyers in areas where there is strong client need and strategic priority while simultaneously reducing lawyers in some areas."

Posted by Marcia Oddi on Thursday, May 29, 2008
Posted to General Law Related

Ind. Courts - More on: "McShurley vs. McKinney feud lands in Indiana Supreme Court"

"Allegation a 'disbarment offense'" is the headline to Muncie Star-Press reporter Seth Slabaugh's story today, updating this ILB entry from yesterday. The lengthy story begins:

If Delaware County Prosecutor Mark McKinney misled local courts as alleged by Mayor Sharon McShurley, he could lose his license to practice law.
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But the two judges who were allegedly misled about where assets seized from drug dealers were deposited aren't commenting yet.

"I don't dare make any public comment on that," said Circuit Court 2 Judge Richard Dailey. "Obviously, whatever was done (in court) is a public record."

Judge John Feick of Circuit Court 4 said: "If there's an investigation going on, I should stay out of it. I should keep my mouth shut."

The mayor filed a complaint against McKinney with the Indiana Supreme Court Disciplinary Commission on May 19.

"I can't really say anything," McKinney said Wednesday night. "She has filed a complaint with the disciplinary commission."

"I have to answer it through that forum, so I really can't comment until that process runs its course."

One of McShurley's allegations repeats a finding in the 2007 audit of the city of Muncie by the State Board of Accounts.

Going back to at least 1999, the Muncie-Delaware County Drug Task Force (DTF) has ignored a state law requiring cash and proceeds from the sale of other property seized from drug dealers to be deposited in the general fund of the governmental unit employing the DTF officers, according to state examiners.

Posted by Marcia Oddi on Thursday, May 29, 2008
Posted to Indiana Courts

Ind. Gov't. - IU's legal bills for Sampson issues are $203K so far

Mark Alesia reports this morning in the Indianapolis Star:

Indiana University's athletic department spent $203,000 through March on outside legal fees connected to allegations of NCAA rules violations by former men's basketball coach Kelvin Sampson and his staff.

The legal bills were obtained Wednesday through a public records request by The Star.

IU spokesman Larry MacIntyre said the school has not yet been billed for work beyond March. But there likely will be additional legal charges connected to IU's lengthy written response to NCAA allegations, filed earlier this month, and its appearance at an infractions committee hearing June 13 in Seattle.

The expenses through March included $178,000 to the Indianapolis firm Ice Miller. The firm conducted an investigation and prepared a report to the NCAA in October 2007 about infractions IU discovered last summer.

Posted by Marcia Oddi on Thursday, May 29, 2008
Posted to Indiana Government

Ind. Decisions - A reminder of this morning's oral arguments before the Supreme Court

This morning the Supreme Court will hold oral arguments in three cases, beginning at 9 AM with IDEM v. Raybestos Products Co., where the COA concluded: "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."

See this ILB entry from Monday for details on all three cases to be argued this morning. Webcasts will be available here.

Posted by Marcia Oddi on Thursday, May 29, 2008
Posted to Upcoming Oral Arguments

Wednesday, May 28, 2008

Ind. Courts - More on "Four eye Clark judicial post: Governor's appointee will fill rest of term" [Updated]

Updating this ILB entry from May 22nd, which included this quote from the LCJ:

Floyd County Deputy Prosecutor Abe Navarro, 36, and Jeremy Mull, 34, a former Clark County deputy prosecutor now working in Afghanistan for a State Department contractor, have applied for the job, Jankowski said, and Daniels is expected to choose one of them.

[Judge] Donahue will depart next Thursday after more than two decades on the bench.

This afternoon from the LCJ:
Gov. Mitch Daniels today announced the appointment of Abe Navarro as Clark Circuit Court judge. Navarro, 36, will succeed Judge Daniel Donahue, who is retiring.

The appointment takes effect Sunday. Navarro, of Jeffersonville, has been a Floyd County deputy prosecutor since 2002.

The appointee will fill out the remainder of Judge Donahue's term; it is up for election in November.

[Updated 5/29/08] Ben Zion Hershberg of the LCJ has a story today on the appointment of "Abe Navarro, a 36-year-old Republican from Jeffersonville, [to] take office as Clark County circuit judge on Sunday."

Posted by Marcia Oddi on Wednesday, May 28, 2008
Posted to Indiana Courts

Ind. Decisions - More on: A reminder of today's COA oral argument in Orange County casino case

The ILB posted Monday and early this morning that:

This morning at 11:45 AM in the COA Courtroom, a panel of the Court of Appeals will hear oral arguments in the case of Lauth Indiana Resort & Casino, LLC v. Lost River Development. Unfortunately, the hearing will not be webcast.
But the ILB messed up. The arguments began at 11:00 AM, NOT 11:45 AM.

At least one person missed the oral arguments because they relied on the ILB.

My sincerest apologies - I will try to make sure it doesn't happen again!

Posted by Marcia Oddi on Wednesday, May 28, 2008
Posted to Upcoming Oral Arguments

Courts - More on "GE Suffers a Redaction Disaster"

Updating this ILB entry from earlier today, if your opponent does ineffectually redact information, can you look?

Presumably redacted material is the same as any other metadata, there have been several articles addressing this issue; the most recent is this one by David Hricik and Chase Edward Scott, of Mercer Law School. A quote:

Can You Look?

Given that metadata is a relatively new concern for lawyers, it is not surprising that formal ethical rules do not yet directly address the question of whether it is proper for a lawyer to search an electronic file sent by another lawyer to see if any useful embedded data is present. However, like most states, Georgia has a general catchall rule that prohibits "professional conduct involving dishonesty, fraud, deceit or misrepresentation." Although the Georgia Bar has not yet addressed the question of whether it is dishonest to look for metadata in a document exchanged between counsel, bar associations in other jurisdictions have and may provide some guidance to Georgia lawyers.

Unfortunately, however, the bar associations that have analyzed the issue have openly split on whether it is ethical for a lawyer to look for metadata. And the split is deep, direct, and irreconcilable.

On one end of the spectrum, the bars of New York, Florida, Arizona, and Alabama have concluded that conducting a purposeful search for metadata is unethical. The New York Bar Association emphasized that "it is a deliberate act by the receiving lawyer, not carelessness on the part of the sending lawyer, that would lead to the disclosure of client confidences and secrets" in the embedded data. Alabama's Bar similarly condemned the act of mining for metadata as "a knowing and deliberate attempt by the recipient attorney to acquire confidential and privileged information in order to obtain an unfair advantage against an opposing party." Florida's Bar also agreed but more softly wrote that a recipient should not try to view metadata the lawyer knows or should know was not intended for his or her viewing. Most recently, Arizona's Bar issued an opinion advising lawyers that as a general rule a lawyer may not "mine" documents from opposing counsel for metadata.

On the other end of the spectrum, both the American Bar Association ("ABA") and the Maryland Bar Association found nothing unethical with deliberately mining documents sent by opposing counsel outside the context of discovery for metadata. The ABA expressed its disagreement in mild terms, however, stating only that "the Committee does not believe that a lawyer . . . would violate" his or her professional duties by mining for metadata. Taking a slightly more nuanced approach, the District of Columbia Bar reasoned that viewing metadata was dishonest only if, before viewing it, the lawyer actually knew that the metadata had been inadvertently sent.

Perhaps representing the more balanced view is a very recent opinion from the Pennsylvania Bar Association. After noting the split detailed above, the Pennsylvania Bar refused to take a bright-line position on whether mining for metadata is unethical. Instead, it stated that "each attorney must determine for himself or herself whether to utilize the metadata contained in documents and other electronic files based upon the lawyer's judgment and the particular factual situation." Similarly, the Pennsylvania Bar stated that whether the information should be used turned upon "the nature of the information received, how and from whom the information was received, attorney-client privilege and work-product rules, and common sense, reciprocity and professional courtesy."

For more, see this article from earlier this year by Marcia Coyle of The National Law Journal titled "Metadata, can you get it, can you use it?" and this one by by Donald R. Lundberg, Executive Secretary of the Indiana Supreme Court Disciplinary Commission, titled "Mining for Metadata: Ethics Questions Surrounding Inadvertently Sent Embedded Data."

Posted by Marcia Oddi on Wednesday, May 28, 2008
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 11 NFP)

For publication opinions today (0):

NFP civil opinions today (4):

Bayview Trading Group v. City of Marion Board of Public Works & Safety, and Downtown City Center (NFP) - "Based on the facts and circumstances before us, we conclude that the Board’s decision regarding the demolition order, and the trial court’s affirmation of that decision was not arbitrary, capricious, an abuse of discretion, unsupported by the evidence, or in excess of statutory authority."

Term. of Parent-Child Rel. of H.S., Thomas Smith and Sheila Smith v. Wayne Co. Dept. of Child Services (NFP) - "Thomas and Sheila Smith appeal the termination of their parental rights to their daughter, H.S. We affirm."

Jamie Elaine Dunnivan v. ETS, Inc. and Jayne Hanson (NFP) - "Jamie Elaine Dunnivan appeals the trial court’s order granting summary judgment in favor of ETS, Inc. and Jayne Hanson on Dunnivan’s complaint alleging false imprisonment, false arrest, and malicious prosecution. Dunnivan presents three issues for review. But we address a single dispositive issue, namely, whether Dunnivan has presented a cogent argument on appeal. We affirm."

W. Houser Canter v. New Albany Board of Zoning Appeals, City of New Albany, Ted R. Fullmore, et al (NFP) - "The BZA’s denial of Canter’s application was based upon substantial evidence. Neither the City nor the BZA denied Canter his right to due process. The trial court did not err in denying Canter’s claims for inverse condemnation and equitable estoppel. Affirmed."

NFP criminal opinions today (7):

Brandon Rogers v. State of Indiana (NFP)

Felipe Gonzalez v. State of Indiana (NFP)

Ronald Mitchell v. State of Indiana (NFP)

Gary Rutherford v. State of Indiana (NFP)

Tammy M. Wade v. State of Indiana (NFP)

John King v. State of Indiana (NFP)

Allen Bolden v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 28, 2008
Posted to Ind. App.Ct. Decisions

Courts - "GE Suffers a Redaction Disaster"

So reads the headline to an instructive (but not instructive enough, see below) story today by Douglas S. Malan of The Connecticut Law Tribune. Some quotes:

Lawyers involved in the class action sex discrimination case against Fairfield, Conn.-based General Electric in 2007 would rather you not read passages from various filings.

After all, the plaintiffs' firm, Sanford, Wittels & Heisler in Washington, D.C., took the time and effort to black out reams of pages in numerous briefs to make them inaccessible to the public -- or so they thought.

But as of late last week, you could download several documents through PACER's federal court filing system, copy the black bars that cover the text on the screen and paste them into a Word document.

Voilà. Information about the inner-workings of GE's white, male-dominated management and their alleged discriminatory practices against women, which is supposed to be sealed by court order, appears with little technical savvy required. * * *

Late last week, Shea contacted Sanford to discuss the matter. Sanford, the plaintiff's lawyer, then called the Law Tribune to shed more light on the matter.

"I wasn't aware of the severity of this problem," he said. "Certain documents have been filed improperly by us. If this redacted material is in the public domain, it becomes a problem for GE and for us.

"We're going to try to take steps to correct that error. We're doing everything we can today (last Thursday)" to make emergency, corrected filings with federal court clerks who are aware of the problem, Sanford said.

PACER account representative Shawn Robledo, who works in PACER's service center in San Antonio, also was unaware of the problem until she was guided through the process of downloading, copying and pasting.

"We need to report this to the court," she said. "We've never had this problem come up. I've been here for years and have never seen [a redaction] done like this."

The PACER service center is operated by the Administrative Office of the U.S. Courts in Washington, D.C.

Spokesman Richard Carelli said PACER employees do not check filings to make certain that redacted information actually is inaccessible. "The total responsibility rests with the lawyers" to redact properly, he said. * * *

The security breach in her case underscores a hot issue in the legal profession involving uncovered trails of electronic data, known as metadata. Where once a black marker strike on a piece of paper was sufficient, redaction in the digital world requires special software and the know-how to delete the words behind the shield.

Sloppy information management "has been a huge problem" for lawyers, said Connecticut Chief Disciplinary Counsel Mark Dubois. "Metadata is a fascinating area of developing law. It is much discussed in the fields of risk aversion and risk management."

Dubois said a lawyer or law firm who has insufficiently redacted information in a case could be in violation of a host of ethical rules and an easy target for a malpractice lawsuit.

Redaction problems often arise when people use old versions of Adobe software, which turns paper documents into an easy-to-read electronic Portable Document Format, the format of choice for PACER and many other web sites with multiple documents.

There are ways to hide the text in older versions of Adobe, but the process is "cumbersome" and requires multiple programming steps, said Glastonbury attorney N. Kane Bennett, a member of the Connecticut Bar Association's Legal Technology Committee.

"With the newest version of Adobe, it is pretty simple to hide the text with a black box and then scrub the hidden text behind it," said Bennett, who was unfamiliar with problems in the Schaefer case. "This prevents people from copying and pasting into a Word document." * * *

In 2005, the Department of Defense suffered through a similar dispersion of classified information. Redacted segments of an investigative report on the shooting death of an Italian journalist by U.S. soldiers in Iraq could be copied and pasted from a PDF into a Word document.

The article could be more instructive. This is not a new problem, there have been a number of similar stories over the past several years.

Here, for instance, is a NYT story from 2003 that begins:

An internal report that harshly criticized the Justice Department's diversity efforts was edited so heavily when it was posted on the department's Web site two weeks ago that half of its 186 pages, including the summary, were blacked out.

The deleted passages, electronically recovered by a self-described ''information archaeologist'' in Tucson, portrayed the department's record on diversity as seriously flawed, specifically in the hiring, promotion and retention of minority lawyers.

See this Oct. 23, 2003 article from a British publication, The Register.. It talks about the Justice Dept. mistake, and others:
It turns out the report began its life as a Microsoft Word document, and whoever was in charge of sanitizing it for public release did so by using Word's highlight tool, with the highlight color set to black, according to an analysis by Tim Sullivan, CEO of activePDF, a maker of server-side PDF tools. The simple and convenient technique would have been perfectly effective had the end product been a printed document, but it was all but useless for an electronic one. "Using Acrobat, I'm actually able to move the black boxes around," says Sullivan. "The text is still there." [ILB - emphasis added]

In 2000, the ,New York Times made a similar error in publishing on its website a classified CIA file documenting American and British officials' engineering of the 1953 coup that overthrew Iran's elected leadership. Before releasing the document as a PDF file, the paper blacked out the names of Iranians who helped with the plot. But online intelligence archivist John Young published an unsanitized version of the report after discovering that the opaque black lines and boxes concealing the names could easily be removed.

Both cases demonstrate that what you see is not always what you get in electronic documents. Censors could have more effectively eliminated the text by deleting it, rather than painting it over. Additionally, commercial software is available that's designed specifically to help government agencies redact PDF files for release under FOIA and the Privacy Act. Pennsylvania-based Appligent even sells its "Redax" Acrobat plug-in to the Justice Department. "The amazing thing is that there are different divisions in the Department of Justice that are using our software, so it's a little shocking that they would do this in Word," says company president Virginia Gavin.

Here is a May 25, 2005 article (3 years ago!) in New Orleans attorney Ernest Sveenson's blog, PDF for Lawyers, answering Q & As on PDF redaction.

For more, see this June 2006 article from Adobe titled "Redacting PDF files: A survey of tools."

Posted by Marcia Oddi on Wednesday, May 28, 2008
Posted to Indiana Courts

Ind. Courts - "Attorney's meth case ends in six-year prison sentence"

The ILB has had a number of entries on Teresa Perry, the young Evansville attorney charged with meth-related offenses.

Today reporter Kate Braser writes in a long story that begins:

As he pleaded with a judge to spare his client from jail time for her meth convictions, attorney Doug Walton said when he took the LSAT with Teresa Perry years ago, he never imagined he'd one day defend her in court.

"She was bright-eyed and pursuing her goal of becoming a lawyer," Walton said, describing his client as "truly remorseful."

After listening to more than an hour of arguments by attorneys, Vanderburgh Superior Court Judge Wayne Trockman sentenced Perry to a total of six years in the Indiana Department of Correction.

Perry wept throughout the sentencing, as did many of the more than 20 people who crowded into the courtroom to support her.

Her pastor, the Rev. Jeffrey Stratton of American Baptist East Church, has been active in her recovery. During Tuesday's sentencing, he told Trockman he did not believe Perry should serve jail time.

"When my own brother was in the midst of his addiction, I testified in court that he needed prison time," Stratton said. "But I see this case as a success story. A tremendous amount of resources have been brought to bear, and that shouldn't be held against her."

Perry attended an inpatient treatment program and has continued recovery efforts through other local programs since her arrest.

The judge acknowledged that Perry, 34, a licensed attorney, has been proactive in her recovery, but he said evidence uncovered in the investigation pointed to Perry being more than an addict.

Perry was arrested in May 2007, accused of selling drugs to a police informant. Investigators discovered what they described as a meth lab inside her home in the 3300 block of Waggoner Avenue, near McGary Middle School.

She previously pleaded guilty to two counts of dealing in a controlled substance, a class B felony; two counts of dealing in methamphetamine, a class B felony; and possession of methamphetamine, a class D felony.

Her plea was open, meaning it was up to Trockman to determine her sentence.

Trockman said he considered that Perry was charged with a nonviolent crime, has no previous record, has engaged in voluntary treatment and is unlikely to reoffend.

However, Trockman said he was concerned that some of the drug-related activity took place at Perry's rental home near a school, and he did not believe the items found at her home and law office reflected her as merely an addict.

"And although you did not manufacture drugs in the traditional sense, you were processing them at your home and office to make them more pure," Trockman said.

"This leads me to the most troubling aspect of this crime. Ms. Perry is an addict, and may very well succeed, and we hope that she will, but addicts don't have to be as engaged in the drug culture as Ms. Perry was."

Posted by Marcia Oddi on Wednesday, May 28, 2008
Posted to Indiana Courts

Ind. Courts - "McShurley vs. McKinney feud lands in Indiana Supreme Court"

Nick Werner reports today in the Muncie Star-Press in a lengthy story that includes these quotes:

MUNCIE -- The feud between Mayor Sharon McShurley and Delaware County Prosecutor Mark McKinney has now escalated into a legal battle.

McShurley, a Republican, last week filed a formal ethics grievance against McKinney, a Democrat, with the Indiana Supreme Court's disciplinary commission alleging he deceived local courts while handling forfeiture cases involving thousands of dollars in money and assets seized from drug dealers.

In doing so, McShurley alleged, McKinney diverted money toward the Muncie-Delaware County Drug Task Force that rightfully belonged to the City of Muncie general fund.

"I believe the city is entitled to reimbursement and has never received it," McShurley said Tuesday.

McKinney, however, denied he or anyone else in the Delaware County prosecutor's office did anything wrong, calling the grievance a political assassination attempt.

McKinney declined to talk about specific allegations, saying he had not seen the grievance as of Tuesday. * * *

McShurley's grievance centers around McKinney's years as a deputy prosecutor, from the late 1990s through 2006, when he was in charge of the drug forfeiture process in Delaware County.

McKinney, as prosecutor, has the authority to file lawsuits against drug dealers seeking the forfeiture of cash, cars and other property that might have been the end result of an illegal operation.

Among other purposes, profits from drug money and the auction of forfeited property should have been used to reimburse the city for costs related to the drug investigations, McShurley said.

"None were," her grievance said.

The grievance alleged that McKinney tricked the Delaware Circuit Court system into diverting all forfeiture money into a fund set up for the drug task force.

Furthermore, the grievance claims, McKinney entered into confidential agreements with drug dealers, whereupon they would voluntarily surrender seized money and assets to a Drug Task Force fund, avoiding a forfeiture lawsuit.

In an interview, McShurley said criminal charges were often dismissed as part of the agreements, which is not by itself a violation of ethics or laws.

The problem, according to the McShurley grievance, is that the agreements were not filed in courts under the scrutiny of a judge, therefore constituting fraud and a "failure of candor toward the courts."

The grievance included an agreement from 2002 where a drug defendant agreed to give over $8,631, drug scales and a cell phone.

Charges against that defendant were dismissed 19 days later.

The grievance did not say how much total money McKinney allegedly diverted away from the city and into the drug task force fund during his time as deputy prosecutor.

The 15-page complaint filed by Mayor McShurley with Don Lundberg of the Supreme Court Disciplinary Commission has been posted here by the Muncie Star-Press.

Posted by Marcia Oddi on Wednesday, May 28, 2008
Posted to Indiana Courts

Ind. Courts - Plea deal pulled in attorney sex-attack case

Updating this ILB entry from Nov. 7, 2007, headed "New Albany lawyer charged ," Harold J. Adams of the Louisville Courier Journal reports today:

A New Albany attorney charged with sexually attacking a 16-year-old girl is scheduled to go on trial in July after a judge yesterday granted a prosecution motion to withdraw a plea agreement.
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Anthony Wallingford is charged with sexual battery and criminal deviate conduct stemming from an April 14, 2007, incident at the girl's Elizabeth home during a social gathering. He is accused of entering the girl's bedroom and committing sex acts.

Harrison County Superior Judge Roger Davis granted the motion of Special Prosecutor David Powell to withdraw a plea bargain that would have let Wallingford, 38, avoid registering as a sex offender and spend no more than 90 days in jail.

The two sides reached and filed a plea agreement on April 8, but Powell moved to back out two weeks later when the girl and her family withdrew their support for the deal. Wallingford's attorney, James Voyles, told Davis yesterday that talks aimed at reaching a new deal are "at an impasse."

Posted by Marcia Oddi on Wednesday, May 28, 2008
Posted to Indiana Courts

Ind. Courts - Carroll County Comet reports resolution of judges' issues today

The Carroll County Comet is a weekly paper that comes out every Wednesday. Today it has several interesting front-page stories, plus this editorial thanking the attorney who helped negotiate an agreement between the County Ciouncil and the county's two judges:

Thank you, Mr. Huffer: In the spirit of cooperation, great things can happen. All it takes is a willingness to work toward a solution with the idea that some compromising might be necessary along the way.

The agreement reached last week between the Carroll County Council and Carroll Superior Court Judge Jeffrey Smith and Circuit Court Judge Donald Currie may not be what either side really wanted, but it was deemed doable by both sides and it alleviated a mandate by the judges.

The agreement would never have happened without the intervention of Delphi attorney James Huffer. Representing the council, he negotiated the agreement with the judges. He did that at no charge to county taxpayers. He believed he could help facilitate change, and he did.

A willingness to chip in and help out and not want anything in return except the satisfaction of helping
out your county and fellow citizens is what it’s going to take to get this county moving in the right direction.

Mr. Huffer’s desire to step forward and offer his personal and professional assistance should be an example to all of us to look for ways we, too, can help make Carroll County a better place.

This ILB entry from May 23rd, reported that an agreement had been reached. The Comet has the story in today's edition, written by Jenna Buehler, staff writer intern,. It begins:
Carroll County Council met in executive session May 22 for approximately one hour to discuss potential litigation and then for ten minutes to approve an agreement with Carroll County Superior Court Judge Jeffrey Smith and Circuit Court Judge Donald Currie, to avoid a mandate. The agreement, proposed last week and adopted with minor wording changes Thursday night, was to restore in part budget reductions made by the council in April to both courts and the joint courts line items. The agreement was negotiated for the council by local attorney James Huffer.

Council members approved a resolution to thank Huffer for his effort, which resulted in no litigation with the judges and came at no legal expenses to the county for his services.

A second matter affecting the Carroll County judiciary was reported on here yesterday in the ILB, under the heading "Judicial Commission Admonishes Carroll Circuit Court Judge Currie." Today's Comet report, headed "Judge Currie receives public admonition," quotes the text of the admonition itself.

Posted by Marcia Oddi on Wednesday, May 28, 2008
Posted to Indiana Courts

Ind. Decisions - A reminder of today's COA oral argument in Orange County casino case

This morning at 11:45 AM in the COA Courtroom, a panel of the Court of Appeals will hear oral arguments in the case of Lauth Indiana Resort & Casino, LLC v. Lost River Development. Unfortunately, the hearing will not be webcast. Check Monday's ILB entry for more information.

Posted by Marcia Oddi on Wednesday, May 28, 2008
Posted to Upcoming Oral Arguments

Tuesday, May 27, 2008

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

Updating this ILB entry from May 7th about HEA 1042, NPR's All Things Considered this afternoon had a feature by Adam Ragusea titled "Indiana Law Targets 'Explicit' Books". The blurb:

A new Indiana law — due to take effect July 1 — would force any bookstore that sold even one book that could be broadly described as "sexually explicit" to pay a $250 license fee and be classified as an "adult bookstore."
Audio for this story will be available here at approx. 7:00 p.m. ET.

Posted by Marcia Oddi on Tuesday, May 27, 2008
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 7 today (and 16 NFP)

For publication opinions today (7):

In Robert Thornberry v. City of Hobart, a 20-page opinion, Cheif Judge Baker writes:

Appellant-plaintiff Robert Thornberry appeals the trial court’s grant of summary judgment in favor of appellee-defendant City of Hobart (Hobart) regarding the termination of his employment with the Hobart Police Department (Police Department). Specifically, Thornberry argues that the grant of summary judgment was erroneous because the designated evidence established as a matter of law that Hobart violated certain provisions of the Open Door Law1 with regard to the termination proceedings and because there were genuine issues of material fact as to whether Thornberry was properly notified that his leave under the Family Medical Leave Act (FMLA) would run concurrently with his paid leave that Hobart provided. Moreover, Thornberry argues that the Hobart Public Works & Safety Board’s (Board) decision to terminate his employment was arbitrary, capricious, and not supported by sufficient evidence. Finding no error, we affirm the judgment of the trial court. * * *

[Open Door Law claim] It is undisputed that the Board complied with the Open Door Law in conducting the March 1 meeting, and it is apparent that the Board merely took action at that time to correct its previous error. Thus, voiding the final action would merely require the Board to reconsider the same evidence for a third time. And voiding the final action would only serve to impose a punishment at the public’s expense for a technical violation of the Open Door Law.

As a result, we conclude that the trial court did not abuse its discretion when it refused to void the Board’s final action that was taken at the January 10, 2006, public meeting. Hence, Thornberry does not prevail on this claim. * * *

[Summary judgment claim] Thus, the Board properly exercised its authority when it terminated Thornberry’s employment as of that date, pursuant to Indiana Code section 36-8-3-3 and the Police Department’s rules and regulations. Accordingly, we conclude that the trial court properly granted Hobart’s motion for summary judgment. The judgment of the trial court is affirmed.

Dennis W. Toomey, Jr. v. State of Indiana - "Dennis Toomey, Jr., appeals the revocation of his placement in community corrections. He claims the court was without authority to revoke his commitment to home detention based on a violation of his commitment to work release. We affirm. * * *

"Toomey admitted he failed to return to Community Corrections for four days; that violation was grounds for revocation of home detention, regardless whether he was told that commission of a crime would result in revocation of that privilege."

Pansy M. Ickes v. Gregory K. Waters, Esq. - "Pansy M. Ickes petitions for rehearing of our opinion in Ickes v. Waters, 879 N.E.2d 1105 (Ind. Ct. App. 2008). We grant her petition for the limited purpose of clarifying a factual misstatement in our previous opinion, and we reaffirm our original decision."

Jimmie A. Batalis v. State of Indiana - "Jimmie A. Batalis appeals his convictions of murder and attempted murder. Batalis argues the trial court erred by submitting special verdict forms to the jury and he cannot be convicted of both murder and attempted murder. The State concedes he cannot be convicted of both offenses, and we vacate his conviction of attempted murder. Finding no reversible error in the submission of the special verdict forms, we affirm his conviction of murder."

In Jeffrey Young v. State of Indiana , a 6-page opinion, Judge May writes:

Jeffrey Young appeals his conviction of possession of cocaine, a Class D felony.1 He argues the cocaine was seized in violation of the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. We reverse.

On June 9, 2007, Officer Greg Milburn stopped a vehicle because he could not see its license plate. As Officer Milburn approached the vehicle, he saw a temporary license plate attached to the inside of the rear window. Officer Milburn approached the driver and asked for identification. The driver identified himself as Jeffrey Young. Officer Milburn discovered that Young’s license was suspended and he had a prior conviction of driving while suspended. Officer Milburn arrested Young. While searching Young’s vehicle in preparation for impoundment, Officer Milburn found cocaine.

At a bench trial, Young moved to suppress the evidence Officer Milburn obtained after he learned Young had a valid license plate. The trial court took the motion under advisement and allowed the State to introduce evidence pending the court’s ruling. After the close of evidence, the trial court denied Young’s motion to suppress and found him guilty of possession of cocaine. * * *

In the absence of language to the contrary, we cannot say the legislature intended to punish the common and sensible practice of displaying a temporary license plate in the rear window.

Young did not commit an infraction by displaying his temporary license plate in the rear window, and the purpose of the traffic stop was satisfied when Officer Milburn determined Young had a valid license plate. The evidence seized thereafter was obtained in violation of the Fourth Amendment. See Meredith, 878 N.E.2d at 456. Therefore, we reverse Young’s conviction.

In State of Indiana v. Grant Gibson, a 6-page opinion, Judge May writes:
The State of Indiana appeals the suppression of evidence collected from Grant Gibson’s car. Because the dog sniff herein did not violate the Fourth Amendment to the United States Constitution or Article 1, Section 11 of the Indiana Constitution, we reverse and remand.

On April 13, 2007, North Vernon Police Officer Craig Kipper stopped Gibson’s car because the license plate was not properly illuminated.1 Officer Kipper obtained Gibson’s license and registration and returned to his patrol car to check the status of Gibson’s license and to write a warning ticket. While Officer Kipper was completing these tasks, Officer Taylor arrived on the scene with his police dog. Officer Taylor told Gibson he would be using the dog to conduct an open-air sniff around the car. Officer Taylor asked Gibson if there was anything in the car the officer should know about prior to the sniff, and Gibson handed him a bag of marijuana. As the dog walked around the car, it indicated the car contained additional drugs, and paraphernalia was recovered from the car’s ashtray.

The State charged Gibson with possession of marijuana and possession of paraphernalia. Gibson moved to suppress the evidence. The court granted the motion after finding “no reasonable suspicion to have the dog sniff the car.” * * *

The record does not suggest Officer Taylor had any suspicion or knowledge Gibson was in possession of drugs or paraphernalia. Nevertheless, because Gibson was being detained while Officer Kipper completed his traffic stop, Officer Taylor did not intrude into Gibson’s freedom of movement. As for the extent of law enforcement needs, we note the trafficking of illegal drugs frequently associated with violence and no simpler method exists for detection of hidden drugs than a dog sniff. Under the totality of the circumstances herein, Officer Taylor’s decision to walk his dog around Gibson’s car was not unreasonable under Article 1, Section 11 of the Indiana Constitution.

Because the dog sniff violated neither the United States Constitution nor the Indiana Constitution, we reverse and remand.

In Aaron Kemp v. State of Indiana , an 8-page opinion, Chief Judge Baker writes:
Appellant-defendant Aaron Kemp appeals the sentence imposed by the trial court after Kemp pleaded guilty to four counts of Forgery, a class C felony, four counts of Theft, a class D felony, and one count of Corrupt Business Influence, a class C felony. Kemp argues that the aggregate thirty-two year sentence and the executed twenty-year sentence are inappropriate in light of the nature of the offenses and his character. Finding the sentence to be inappropriate, we reverse and remand with instructions.

Kemp was the administrator for Greenwood United Methodist Church (the Church) from January 2002 through June 2005. Kemp kept the Church’s books and controlled the Church’s bank accounts. * * * By June 2005, Kemp had stolen approximately $350,000 from the Church. * * *

The nature of Kemp’s offenses is undeniably despicable. He abused a position of trust with the Church, ruined the credit rating of a fellow Church employee, and caused potentially irreversible damage to the congregation and its pastor. He stole repeatedly and without cessation and went to great lengths to conceal his unauthorized activities. We must also consider Kemp’s character, however, and we place great weight on the complete absence of a prior criminal history. Similarly, it is significant that Kemp immediately admitted to his crimes and pleaded guilty as charged. Ultimately, we find the nature of the offenses and Kemp’s character to be in equipoise and conclude that the sentences imposed by the trial court were inappropriate.

In light of the nature of the offenses and Kemp’s character, we direct the trial court to amend the abstract of judgment to reflect the following sentences: (1) four years each for the four class C felony forgery convictions, to be served consecutively; (2) one and one-half years each for the four class D felony theft convictions, to be served concurrently with the forgery sentences; and (3) three years for the class C felony corrupt business influence conviction, to be served concurrently with the forgery sentences. Thus, Kemp faces an aggregate sentence of sixteen years. We remand to the trial court with instructions to decide how Kemp should serve those sixteen years, keeping the goal of monetary restitution to the Church in mind.

The judgment of the trial court is reversed and remanded with instructions set forth above.

NFP civil opinions today (5):

Term. of Parent-Child Rel. of A.R.C., and Marcus C. v. St. Joseph Co. Dept. of Child Services (NFP) - "Marcus C. (“Father”) appeals the termination of his parental rights. Because the evidence supports the court’s decision, we affirm."

Steven Evans v. Natalie Fabian Evans (NFP) - "The trial court did not abuse its discretion in admitting Page’s testimony, valuing the Chevy Blazer, or dividing the marital estate. We find that any issues regarding dissipation of marital assets have been waived. We remand this case to the trial court for a recalculation and redistribution of the marital debt incurred regarding the legal fees payable to Cohen & Thiros. We affirm in part and remand."

Sharon Doyle and John Doyle v. Rex and Linda Snyder (NFP) - "In this appeal from a small claims judgment, tenants Sharon Doyle and John Doyle Jr. (collectively, “the Doyles”) contend that the small claims court erroneously denied their request for the return of their $1000 security deposit and their claim of constructive eviction. The Doyles further contend that the small claims court erroneously awarded their landlords, Rex and Linda Snyder (collectively, “the Snyders”), $5426.27 in damages. The Snyders, in turn, request appellate attorney’s fees pursuant to Indiana Appellate Rule 66(E). Concluding that the small claims court’s order was not erroneous, we affirm. Additionally, we decline the Snyders’ request for attorney’s fees."

Gladys Tobias v. Margaret and Thomas Mannella (NFP) - "Following a bench trial, Gladys Tobias appeals the trial court’s judgment awarding her $9,044.54 for overpaid rent on a piece of real estate the trial court found was owned by Margaret and Thomas Mannella. On appeal, Tobias argues that the trial court should have awarded her a portion of the profit made by the Mannellas when they sold the property, that the trial court improperly relied on the statute of frauds in rendering its judgment, and that the trial court improperly found that the parties’ status and rights regarding the property were governed by a written lease. The Mannellas also raise the issue of whether Tobias is barred from arguing that she was an owner of the property based on the trial court’s previous order evicting her from the property. Concluding Tobias is not barred from making her argument, but that the trial court’s judgment is not clearly erroneous, we affirm."

In Term. of Parent-Child Rel. of R.H., and Bethany Manfred and Sean Hansen v. Porter Co. Office of Family & Children, and CASA Program of Porter Co. (NFP), a 14-page, 2-1 opinion, Chief Judge Baker writes:

Appellant-respondent Sean Hansen appeals the trial court’s order terminating his parental relationship with his minor son, R.H., arguing that there is insufficient evidence supporting the order. We find that the evidence relied upon by the trial court is insufficient to support the termination of Sean’s parental rights, though we observe that it may be relevant to issues of custody and/or guardianship of R.H. We reverse and remand for proceedings consistent with this opinion. * * *

In sum, we find that although evidence of Sean’s lackluster efforts to communicate and visit with R.H., Sean’s refusal to relocate to Indiana, and R.H.’s strong bond with his grandparents would be relevant to a determination of custody and/or guardianship, it is insufficient on its own to support the radical act of severing the parent-child relationship. We acknowledge that we are not permitted to reweigh the evidence or judge witness credibility, and we have not done so. Instead, we have accepted all of the trial court’s findings and conclusions—save the ultimate conclusion—as true, and have simply found that they do not support a decision to terminate Sean’s parental rights. We remand, therefore, and leave the trial court with the option of holding a hearing to determine issues of custody and guardianship.

The judgment of the trial court is reversed and remanded for proceedings consistent with this opinion.

ROBB, J., concurs.
RILEY, J., dissents with opinion. [which reads in full] I respectfully dissent. The trial court’s judgment is not clearly erroneous and it is firmly based on the evidence. The State has met the criteria necessary to terminate the parent-child relationship by clear and convincing evidence.

NFP criminal opinions today (11):

John Jordan, II v. State of Indiana (NFP)

Victor Vega Torres v. State of Indiana (NFP)

Matthew R. Reed v. State of Indiana (NFP)

Shavaughn Carlos Wilson-el v. State of Indiana (NFP)

Bernardo Garcia v. State of Indiana (NFP)

Carlos Y. Santiago v. State of Indiana (NFP)

Curtis Godfrey v. State of Indiana (NFP)

Steve M. Sprinkle v. State of Indiana (NFP)

Carlos Mendoza Robles v. State of Indiana (NFP)

William Allsup v. State of Indiana (NFP)

Shavaughn Carlos Wilson-el v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 27, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court requires AG's CID to be by verified petition or other admissible evidence presented at a hearing

In Nu-Sash of Indianapolis, Inc. d/b/a McKee Sunroom Designs v. Steve Carter, Indiana Attorney General, a 6-page, 4-0 opinion, Justice Boehm writes:

The Attorney General is authorized by statute, Ind. Code §§ 4-6-3-1 to -12 (2004), to seek a court order enforcing a civil investigative demand for information relevant to an investigation of potential violations of specified laws. In addition to meeting the requirements listed in sections 4 and 5 of the statute, the Attorney General must meet the requirement in section 6 that the Attorney General “demonstrate to the court that the demand is proper.” We hold that section 6 requires that the Attorney General establish by evidence or other procedure authorized by the Indiana Trial Rules that an investigation is being conducted concerning potential violation of a statute enforced by the Attorney General, and that there are reasonable grounds to believe that the person to whom the CID is directed has information relevant to the investigation. * * *

The parties dispute whether filing an unsworn petition is a sufficient showing for enforcement of a CID, assuming the requirements of sections 4 and 5 of the statute are met. Nu-Sash points to the requirement in section 6 that the Attorney General “demonstrate to the court that the demand is proper.” Nu-Sash contends that this language “puts some type of affirmative burden on the attorney general other than simply the filing of the Petition to Enforce.” Nu-Sash explains that if the Attorney General needed only to file a petition, alleging that the CID met the statutory requirements, the trial court would serve merely as a “rubber stamp.” Nu-Sash points out that the statute does not permit the Attorney General to enforce a CID without judicial action, and argues that the need to invoke the judicial process is in place to protect citizens and businesses from unnecessary intrusion and the expense of responding to unjustified CIDs.

We agree with Nu-Sash that the requirement of section 6 that the Attorney General “demonstrate to the court that the demand is proper” places a burden, albeit a small one, on the Attorney General. The Attorney General needs to establish only that there is an investigation and that there are reasonable grounds to believe that the person to whom the CID is directed has information relevant to that investigation. * * * Demonstration can be by a verified petition, affidavit, or testimony or other admissible evidence presented at a hearing. But naked allegations in a petition are insufficient. * * *

There is no allegation of abuse in this case, but history teaches that power can be and has been abused. Requiring the Attorney General to provide at least a verified petition to enforce affords all citizens some protection against “fishing expeditions” or retaliatory or abusive CIDs that are unrelated to legitimate investigations, and imposes a mild deterrent to arbitrary use of government authority. * * *

The order of the trial court requiring compliance with the CID is reversed.

Shepard, C.J., concurs, understanding that had the petition in this case been verified the trial court’s order would have been affirmed.
Dickson and Sullivan, JJ., concur.
Rucker, J., did not participate.

Posted by Marcia Oddi on Tuesday, May 27, 2008
Posted to Indiana Decisions

Ind. Courts - "Judicial Commission Admonishes Carroll Circuit Court Judge Currie"

Posted today on the Indiana Court website:

The Indiana Commission on Judicial Qualifications issued today a Public Admonition of Judge Donald Currie, Carroll Circuit Court. The Commission is a seven-member body comprised of the Chief Justice of Indiana, three lawyers elected by lawyers throughout the State, and three non-lawyers appointed by the Governor. Supreme Court rules give the Commission the discretion to issue a Commission Admonition instead of proceeding to formal charges when the judge consents to that resolution and when the Commission determines that a Public Admonition sufficiently addresses the misconduct alleged.
The "Public Admonitions" page states: "Under Admission and Discipline Rule 25VIII E(7), the Commission may, in its discretion and with the judge's consent, resolve a misconduct case in which the members have voted to file disciplinary charges by publicly issuing a Commission Admonition in lieu of filing charges." It lists a total of 15 public admonitions, issued from June 26, 1992, to May 27, 2007. Judge Currie's public admonition reads in part:
On December 23, 2007, Judge Currie was arrested for Public Intoxication after a police officer observed him outside his car near Interstate 65. Judge Currie later pled guilty in the Boone Circuit Court to Public Intoxication, a Class B Misdemeanor. He currently is serving a one-year probationary sentence in Boone County. Judge Currie acknowledges he consumed too much alcohol to have attempted to drive from Indianapolis to Carroll County; he had discontinued his trip home when the police officer encountered and arrested him.

Judge Currie and the Commission agree that his conduct not only violated the law but also violated the high standards of conduct expected of Indiana’s judges. He has expressed his remorse and has apologized to the community he serves.

The Commission now admonishes Judge Currie for violating the Code of Judicial Conduct and the laws of the State. This Admonition concludes the Commission’s investigation, and Judge Currie will not formally be charged with ethical misconduct.

For background on the Judge Currie incident, start with this Feb. 4, 2008 ILB entry.

Recall also the Marion County Superior Court Judge John F. Hanley incident, that ended May 31, 2007 with this Supreme Court public reprimand.

There is a distinction between when to issue a Public Admonition and when to proceed to a Public Reprimand. The Judicial Disciplinary Opinions page, where the opinion re Judge Hanley is found, provides:

When the Qualifications Commission files formal charges against a judge, judicial officer, or judicial candidate, only the Supreme Court may resolve the case, either after the Commission and the judge enter into a settlement agreement or after a panel of Masters preside over an evidentiary hearing and report to the Court.
The list includes nearly 40 reprimands, going back to 1986.

Posted by Marcia Oddi on Tuesday, May 27, 2008
Posted to Indiana Courts

Ind. Courts - Transforming juvenile justice in Marion County

Jon Murray of the Indianapolis Star has a lengthy story today that begins:

Far fewer youths file into Marion County's juvenile lockup each day, a key result of a reform effort that has reduced crowding and diverted thousands of children into programs outside the center's walls.

But architects of the overhaul of the juvenile justice system see the changes as only a starting point. In the third year of a program fueled by a national advocacy group, officials are aiming at ending racial disparities in punishment and transforming a system that many see as perpetuating delinquency rather than healing it.
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Changes have come quickly. The county's juvenile court judge and magistrates reject more delinquency cases submitted by prosecutors or schools. Some get resolved short of court by involving offenders' families in the case.

And a reception center screens youths more stringently, sending more lower-risk offenders home before trial instead of locking them up.

That might sound like a way to promote crime rather than stop it. But juvenile court Judge Marilyn Moores says data collected through the project have helped earn police support for the approach.

"Kids who are low-level offenders need to be out in the community and stay connected with the community, because it positively affects them," she said.

In detention, "the low-level offenders become high-level offenders."

The Annie E. Casey Foundation selected Indianapolis as a new site for its three-year Juvenile Detention Alternatives Initiative in 2005. The program began two years ago, just as crowding and unsafe conditions inside the center brought heavy outside scrutiny.

The Marion Superior Court's executive committee took the reins of the center, installing a new director and overhauling security and other procedures. A settlement agreement this year with the U.S. Department of Justice ushered in federal monitoring for up to three years.

The Casey program provides $100,000 a year for a coordinator, travel to previous Casey sites and other expenses. It also provides experts who have brought the reforms to dozens of cities and states, including Cook County, Ill., home to Chicago.

Posted by Marcia Oddi on Tuesday, May 27, 2008
Posted to Indiana Courts

Environment - "Just what is an antidegradation policy?"

Reporters in Northwest Indiana have been doing yeoman's work in the environmental area. Today Christine Kraly of the NWI Times has a story headed "IDEM water rule process ongoing." Her long report begins:

Until it is given a makeover, its unclear focus has put on hold wastewater permits for U.S. Steel and ArcelorMittal facilities.

It has been called the "heart" of the controversy surrounding the BP Whiting refinery's wastewater permit.

But just what is an antidegradation policy?

The Indiana Department of Environmental Management for years has been revamping its rule, which protects state waters against degrading discharges.

IDEM has drafted rule language, now being reviewed internally, along with stakeholder comments, IDEM spokeswoman Amber Finkelstein said. As this is happening, other IDEM staff continue working on draft permits for U.S. Steel and ArcelorMittal plants.

"Permitting processes can be complicated, and there are other elements apart from antidegradation that we can continue to review," Finkelstein said.

IDEM officials have acknowledged their commitment to develop a new rule by the end of the year is an "ambitious timeline."

But Great Lakes advocate Lee Botts, one of the rule-making stakeholders, said she felt the process is progressing, finally.

"They've been horrendous, they've gone on for years," Botts said of past rule processes. "There's a sense of involvement now."

The U.S. Environmental Protection Agency charges states with adopting rules to implement the federal Great Lakes antidegradation law, which addresses hikes in specific chemicals, but not others, including ammonia.

As is, Indiana's rule attempts to minimize new or increased dumping into sensitive waters by requiring facilities to show that the discharges are necessary as part of important economic or social benefits to the community.

Last summer's outcry regarding BP's wastewater permit prompted concerns that Indiana's law does not do enough to protect water quality.

IDEM has said its goals for a new rule include creating one meeting Clean Water Act requirements that complies with state law, and that can be implemented in a clear, consistent and streamlined process.

Posted by Marcia Oddi on Tuesday, May 27, 2008
Posted to Environment

Ind. Courts - More on: Interim Legislative Committees to study court issues

Updating this ILB entry from May 23rd, here is more detailed information from Legislative Council Resolution 08-01 (as adopted May 22, 2008), on the charge to the Commission on Courts:

5. COMMISSION ON COURTS (IC 33-23-10-1)

THE COMMISSION IS CHARGED WITH STUDYING THE FOLLOWING TOPICS:

A. Judicial mandates and alternatives to the current system of judicial mandates (Senator Long)

B. Election of Court of Appeals judges and information distribution to the public regarding retention votes (Senator Long)

C. Potential creation of an additional Court of Appeals panel (Senator Long)

D. Whether judges in St. Joseph County should be selected by election or appointment and if the selection process is changed, how should it be changed and how should the changes be implemented (SEA 329-2008 - SEC. 25, p. 23)

E. Modernization of the system of filing mechanic's liens through the incorporation of a statewide online registry for mechanic's liens (SEA 257-2008)

Posted by Marcia Oddi on Tuesday, May 27, 2008
Posted to Indiana Courts

Courts - Tennessee's "Missouri plan" for judicial selection expires

Apparently, it was subject to a "Sunset"-type provision.

From a May 10th WSJ article:

Since the 1970s, Tennessee has used a modified Missouri Plan for choosing its judges, known to its proponents as "merit selection." Intended as a way to keep politics out of judicial selection, the method has instead given disproportionate influence to the state trial bar and tilted state courts leftward. The Tennessee plan is set to expire this summer, requiring it to be renewed, reformed, or left to disappear when the legislative session ends this month.

Not if the trial lawyers can help it. Under the current process, nominees to the state appellate court and state supreme court are chosen by a 17-member nominating commission, of which 14 are lawyers and 12 are chosen from among five lawyer groups, including the Tennessee Association for Justice (aka the Tennessee tort lawyer lobby), the Tennessee Bar Association, the District Attorneys General Conference and the Association of Criminal Defense Lawyers. The commission selects a slate of three judges from which the Governor can pick.

From the May 14th Nashville City Paper, a story by John Rodgers that begins:
One of the signature achievements of former Lt. Gov. John Wilder’s legacy — Tennessee’s method for selecting judges — took another step toward extinction Tuesday as tempers flared and accusations of mistreatment flew in the Senate.

Wilder (D-Mason), a member of the Senate for 44 years and lieutenant governor and speaker for 36 of those years, is retiring this year. The state’s current method for picking judges, called the Tennessee Plan, is one of his top achievements.

The Tennessee Plan though may be retiring on July 1, 2009 after the Senate Government Operations Committee, which has a Republican majority, on Tuesday effectively killed for the year a Wilder-sponsored bill extending the life of the Judicial Selection Commission.

The Judicial Selection Commission recommends potential justices for the Tennessee Supreme Court to the governor to choose among as well as recommending future state appellate and trial court judges. It is a main cog of the Tennessee Plan.

After the legislative action, the move caused one GOP senator to shout at least one expletive at the Senate’s Democratic leader in the hallway.

If the bill doesn’t pass this year, the judicial commission will go into a one-year wind down starting July 1 before expiring next year. * * *

The Senate Republicans, led by current Lt. Gov. Ron Ramsey (R-Blountville), are holding up the renewal of the selection commission, as well as 53 additional agencies slated to start winding down July 1, as leverage to push reforms to the way the state picks judges. They argue that system is too controlled by special interests.

From an editorial today in the WSJ:
It was sunny in Tennessee last week, when the state's controversial method of picking judges was allowed to expire amid high-stakes legislative wrangling. The change marks the first time a merit selection plan has been ousted in any state that has adopted it.

The plan's demise was finalized last Tuesday after an 11th-hour attempt to save it by state Senator John Wilder. On his last day in office before retirement, Mr. Wilder attempted a rare legislative maneuver to bring it directly to the floor for a vote. No dice.

The so-called merit selection plan will now go into a one-year wind-down, after which Tennessee will revert to its constitutionally mandated method of choosing judges by direct election. That means less influence from the coterie of lawyers groups that had controlled the Judicial Selection Commission and become a thorn in the side of even Democratic Governor Phil Bredesen, who balked at their manipulation of his appointments. * * *

The Tennessee plan was devised to reduce the role of politics in judicial selection. But as the political drama surrounding it amply demonstrated, the reality has been anything but nonpartisan. Tennessee now has a chance to restore transparency and accountability to judicial nominations – and to show other states the way.

Posted by Marcia Oddi on Tuesday, May 27, 2008
Posted to Courts in general

Monday, May 26, 2008

Environment - Rhode Island's Massive Lead Paint Tort Case

The ILB has had a number of entries on lead paint and on the Rhode Island suit - see the list here.

For even more, see this Findlaw column by Anthony J. Sebok, a professor at Benjamin N. Cardozo School of Law, dated May 20th, that begins:

Last week, hundreds, if not thousands, of Wall Street analysts, business journalists and lawyers listened, either in person or via webcast, to a fascinating, historic four-hour oral argument at the Rhode Island Supreme Court. The argument concerned whether the lead paint industry will have to pay up to $2 billion to remove lead paint from 180,000 homes in the state. (Interested readers can find the webcast here.)

In this two-part series of columns, I will discuss the core legal issue at the heart of the appeal.

Posted by Marcia Oddi on Monday, May 26, 2008
Posted to Environment

Law - "Technical glitch" necessitates farm bill do-over

This ILB entry is not about the pros or cons of the farm bill, but about how a technical glitch can impact an enrolled bill, and is aimed at pulling this information together for legislative process wonks. (It also serves to reinforce previous ILB points with respect to the Indiana Code and Rules that technical errors happen, even in the digital age.)

From the May 21st CQ Politics:

Hours after the House voted overwhelmingly to override a farm bill veto, leaders agreed that a paperwork snag is forcing them to reconsider the bill again.

Lawmakers discovered Wednesday that one of the 14 titles of the bill (HR 2419) — the trade title that deals with foreign food aid, among other things — was inadvertently dropped from the version sent to President Bush. Bush vetoed the bill Wednesday and the House then voted, 316-108, to override, a tally that exceeded the needed two-thirds majority.

But that left lawmakers in a quandary about how to restore the missing title. Republicans questioned the constitutionality of a proposal to pass the dropped section separately, contending that it could open the entire farm bill to legal challenge.

After negotiations among top Democrats and Republicans and consultations with the House parliamentarian, Majority Leader Steny H. Hoyer , D-Md., said the House would probably take up the full farm bill again Thursday under a new bill number, though it might just vote on the deleted title. * * *

The error in the enrolled version sent to the White House was traced to an electronic printing machine used to print the parchment copy of the bill.

Hoyer said the White House did not catch the omission because administration officials looked at the printed conference report, rather than the single copy of the enrolled bill printed on parchment.

House Parliamentarian John Sullivan advised lawmakers in both parties that, based on Supreme Court precedents, the flawed enrolled copy of the bill would be regarded as the text of what Bush had vetoed.

“The courts have ruled that the parchment is the statute,” Hoyer said. “That’s what they look at.”

From the May 22nd issue of The Hill, in a story by Mike Soraghan:
A clerical error caused widespread confusion on Capitol Hill Thursday, stealing the spotlight from Democrats hoping to tout the second veto override of President Bush’s reign.

Democrats in the House and Senate won enough votes to override Bush’s veto, but one of the farm bill’s 15 titles was omitted from the official “parchment” copy sent to the White House.

Democratic leaders said the veto and the subsequent override by both chambers are still valid, and that most provisions of the bill are now law. They also noted that Bush mentioned the missing section — Title III on trade — in his veto message, suggesting he intended to veto that part of the bill. * * *

House Democrats on Thursday quickly passed a second, full version of the 1,768-page bill on the House floor, again by a veto-proof 306-110 count. The Senate, however, did not take up the House-passed bill. Instead, it simply completed the override.

Senators indicated all that needs to be done is to pass the missing title, but House plans to vote on a stand-alone bill containing that language were scuttled after angry Republican leaders lined up against it.

House Republican leaders, including those who supported the bill, complained that the measure is more vulnerable to lawsuits because of the error unless a whole new version is devised. They also complained that Democrats were not aboveboard in how they handled it. * * *

Ironically, the tables were reversed when a similar problem occurred during Republican rule of the House.

In 2005, an undetected clerical error led the House and Senate to approve slightly different versions of the Deficit Reduction Act. Bush signed the Senate-passed language into law.

House Democrats at the time argued the entire bill was unconstitutional and Pelosi, then the minority leader, demanded that the House vote again on the same bill. Republicans refused, brushing off the 2005 typo as a non-issue.

That led several Democrats to file lawsuits seeking to overturn the law. Judges ruled that what Congress certifies as the legitimate document is the legitimate document.

The House parliamentarian is now using that same 1892 Supreme Court precedent, now accepted by Democratic leaders, to say that the farm bill is law.

“Fourteen of 15 titles in this farm bill are now law,” said Senate Agriculture Committee Chairman Tom Harkin (D-Iowa). Of that remaining title, he said, “We’ll deal with that at some other point. It shouldn’t be much of a problem.” * * *

The episode opened a window onto the little-known world of what happens with a bill after it gets passed but before it gets to the White House, and how traditions established in the 1800s have passed into the digital generation.

BlackBerry-wielding lawmakers, reporters and staffers more accustomed to discussions of fundraising and infighting found themselves parsing the meaning of the “trail of the parchment.”

Pelosi told reporters she takes responsibility for the problem. But in a letter to House leaders, House Clerk Lorraine Miller said the problem stemmed from a process adopted 10 years ago, when Republicans were in charge. In order to save money, the official “parchment” copy was not proofread. Miller said that process is being changed.

But she also said “leadership and the committee” called the enrolling staff to hurry the process along. That point was raised in Boehner’s call for an ethics investigation.

More details from a story by Jluie Hirschfield Davis of the AP, dated May 23rd:
The missing section, on trade and international food aid, had cleared Congress, but apparently got lost in the shuffle when House staff aides performed the antiquated ritual of printing out the legislation on heavy parchment paper to be sent to the White House.

Things started going awry Tuesday, as staffers scrambled to complete the bill — called "enrolling" — so it could be signed by the House speaker and Senate president pro tempore and sent to the White House.

House leaders — eager to complete the popular farm bill and override Bush before Congress adjourned for a weeklong Memorial Day break — were pressuring the staff to go faster. In a memo about the mistake obtained by The Associated Press, Lorraine C. Miller, the House clerk, said the enrolling staff reported receiving direct calls from leaders and the Agriculture Committee urging them to hurry.

When it came time to print the legislation, one of the bill's 15 titles never made it onto parchment. The clerk in charge of poring over the final version — known as the enrolling clerk — apparently did not notice the omission.

Such errors — albeit not of this size — happen all the time. One possible reason for this week's goof: Congressional staff aides stopped proofreading the parchment copies of legislation a decade ago, citing the high cost of the paper.

That policy "has been rescinded effective immediately," Miller told congressional leaders in the memo. "We are working diligently to make sure it will not happen again."

"This happens more times than I would like to admit," said Robert B. Dove, a former Senate parliamentarian. "You don't want to see how sausage is made, and you definitely don't want to see how laws are made."

Dove should know. In 1986, he said he secretly agreed to re-enroll and essentially re-enact a massive spending bill that Ronald Reagan had signed and was already the law of the land.

Staff aides discovered that the part of the measure to pay for lighting and heating government buildings had never made it to the White House, and Congress had already adjourned for the year, with Election Day just one week away. Staff quietly prepared a complete copy of the bill, had House and Senate leaders sign it and sent it to Reagan for a second signature.

"Nobody picked up on it, and I never told anyone," Dove said. "It was, to me, the best of a miserable situation."

But it probably wasn't constitutional. "You don't get two chances" to enact the same bill, he said.

Jacob Leibenluft, who writes the Slate column, The Explainer, which answers questions about the news, had an excellent article Thursday, May 22nd about this situation.and about the general question of what happens if the bill contains an error. Some quotes:
How do bills get sent to the president?

They are delivered by hand on "parchment." Once a bill has been approved by both houses of Congress, the clerk of the House or the secretary of the Senate—depending on where the bill originated—is tasked with preparing the legislation to go to the White House. An enrolling clerk is responsible for ensuring that he or she has the final language of the bill in hand and then printing it onto a special kind of paper called parchment as prescribed by federal law. * * * According to news reports, the missing pages from the farm bill were left out during the parchment-printing process, and the president vetoed the bill based on a conference report that reflected the complete legislation.

After the bill has been printed, a certificate is attached to the last page to be signed by the clerk of the House or the secretary of the Senate, the speaker of the House, and the presiding officer of the Senate. Once the congressional officers have signed the bill, it is then hand-delivered to the executive clerk of the White House for the president's OK. * * *

What happens if the bill contains an error? * * *

Ever since an 1892 Supreme Court case (Field v. Clark) concerning a tariff act that went to the president with a paragraph on tobacco taxes missing, the courts have generally ruled that the version of a bill signed by the officers of both houses of Congress and the president stands, even if the language differs from what Congress voted on. So, if the mistake changes the substance of the legislation, then the erroneous language is usually law unless Congress decides to do something about it. In that case, Congress can pass "technical corrections" in separate legislation to remedy the mistake.

From the May 23rd Washington Post:
With an overwhelming 82 to 13 vote, the Senate yesterday completed the override of President Bush's veto of a comprehensive farm bill, shrugging off Republican concerns about an embarrassing legislative glitch to make the $307 billion bill the law of the land.

House GOP leaders continued to grumble that Democrats had violated the Constitution by pressing forward with the veto override after they discovered that a whole section of the bill on trade policy had been inadvertently dropped from the version vetoed Wednesday.

But Democratic leaders said they had court precedent and constitutional scholars on their side. * * *

Lawmakers said they would take up the farm law's trade section as a separate bill and pass it after their Memorial Day break.

An enrolling clerk dropped the section, which includes international food aid programs, as the measure was being sent to the White House. The glitch gave Republican leaders, who were badly divided by the bill itself, a chance to unite around a new cause. House Minority Leader John A. Boehner (R-Ohio) took to the floor to call for an ethics committee investigation, which was voted down on party lines.

House Democratic leaders did push the entire farm bill back through the House again yesterday, in case they decide to start the process over again. But that appeared doubtful after the Senate's action.

Citing the Supreme Court's 1892 decision in Field v. Clark, House parliamentarian John Sullivan released a statement yesterday saying that "the law that would result from a bicameral override of the President's veto on H.R. 2419 would be the text that was presented to the President on parchment, notwithstanding its omission of the congressionally intended [trade] title."

Manu Raju reports today, May 26th, in The Hill:
But House Republicans and other critics argued that the new law violates the Constitution, which requires each chamber of Congress and the president to consider identical bills.

In interviews, however, each of these groups said that it would be difficult to prove they had legal standing to sue. Even if they were successful on that front, Congress could easily quash the lawsuits by taking up the entire farm bill again and passing it by healthy margins, making litigation futile, the critics say. * * *

Supporters of the law say that they are on solid legal ground, pointing to an 1892 Supreme Court precedent in arguing that Congress has the last say in determining what is a legitimate document. In 2005, an undetected clerical error led the House and Senate to approve slightly different versions of the Deficit Reduction Act, which President Bush signed into law. Lawsuits seeking to overturn that law were unsuccessful because of the 1892 decision.

In addition, legal scholars say that courts may be wary of stepping into the dispute if both the legislative and executive branches agree that the measure is the law.

Posted by Marcia Oddi on Monday, May 26, 2008
Posted to General Law Related

Law - "Exemptions for Charities Face New Challenges"

So reads the headline to this lengthy, front-page story by Stephanie Strom in today NY Times. Some quotes:

RED WING, Minn. — Authorities from the local tax assessor to members of Congress are increasingly challenging the tax-exempt status of nonprofit institutions — ranging from small group homes to wealthy universities — questioning whether they deserve special treatment.

One issue is the growing confusion over what constitutes a charity at a time when nonprofit groups look more like businesses, charging fees and selling products and services to raise money, and state and local governments are under financial pressure because of lower tax revenues.

And there are others: Does a nonprofit hospital give enough charity care to earn a tax exemption? Is a wealthy university providing enough financial aid?

In a ruling last December that sent tremors through the not-for-profit world, the Minnesota Supreme Court said a small nonprofit day care agency here had to pay property taxes because, in essence, it gave nothing away.

The agency, the Under the Rainbow Child Care Center, charges the same price per child regardless of whether their parents are able to pay the full amount themselves or they receive government support to cover the cost. * * *

The idea behind tax exemptions is that the organizations provide a public service or substantially reduce the burdens of government. Standards from property-tax exemptions are set by the states, while the federal exemption means charities are not taxed on their income.

Almost 88 percent of overall nonprofit revenues in 2005, the most recent year for which figures are available, came from fees for services, sales and sources other than charitable contributions, according to the National Center for Charitable Statistics. Nonprofit health care providers, day care centers and retirement homes, among others, are often difficult to distinguish from their tax-paying competitors.

“We’re all seeing the growth of revenue in this area we call earned income,” said Audrey R. Alvarado, executive director of the National Council of Nonprofit Associations, adding that the Minnesota court decision “is saying, ‘Wait a minute, charities are supposed to give things away for free.’ ”

“It goes to the core of how nonprofits are classified and defined,” she said, “and I think it is an example of the confusion in the public, and even among folks in the sector itself, about what a nonprofit is.”

Evelyn Brody, a professor at Chicago-Kent College of Law and an expert on nonprofits and property taxes, said that, in studying the issue in 2002 and revisiting it last year, she had seen an explosion of cases across the country in which charities were challenged to say why they deserve their property tax exemptions.

The Minnesota Supreme Court opinion, dated Dec. 6, 2007, in Under the Rainbow Child Care Center v. Goodhue County, is available here - it is cited in this article from Charity Governance Consulting LLC.

See this list of ILB entries on the charitable exemption and the Indiana property tax.

Posted by Marcia Oddi on Monday, May 26, 2008
Posted to General Law Related

Courts - Chicago courtroom artist who covered Chicago 7 and Gacy trials writes book

Natasha Korecki, federal courts reporter for the Chicago Sun-Times, writes today:

[Courtroom artist Andy Austin] uses more than illustrations to take readers on a historical tour of famous Chicago trials. She proves herself a sharp observer -- a true reporter -- whose neutral status in the courtroom gives her a singular relationship with many of the parties.

She's stared at the likes of serial murderer John Wayne Gacy and hit man Harry Aleman. She's drawn the same man -- Thomas J. Maloney -- as a judge and a defendant.

She drew the Chicago 7 trial in the late 1960s, where Black Panther Bobby Seale was famously bound and gagged. In that same trial, anti-war activist Abbie Hoffman passed her a note, which a deputy marshal snatched, read, smiled and passed on.

"What's a good-looking girl like you doing in a corrupt society like this?" the note said.

Austin has heard it all. Her most typical requests: "Can you give me more hair? Can you give me fewer chins?"

[Her book, Rule 53 (Lake Claremont Press), named after the rule barring cameras inside a courtroom] is part history, dealing with grotesque testimony in Gacy's trial for instance, and part memoir, weaving in the devastating loss of her 15-year-old son, John.

Posted by Marcia Oddi on Monday, May 26, 2008
Posted to Courts in general

Ind. Courts - "Clark's chief deputy prosecutor to retire"

Harold J. Adams reports today in the Louisville Courier Journal in a story that begins:

William Clifton Grimes has spent more than 26 years as a prosecutor, including eight years in the commonwealth's attorney's office in Louisville and the past eighteen years in Jeffersonville as chief deputy prosecutor for Clark County.
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"The guys that I sent away over in Louisville are now getting out (of prison). It's weird," Grimes, known as Bill, said last week.

Now, at age 63, he's getting out too. Grimes will retire at the end of this week after all of those years of doing what he says was the only thing he ever really wanted to do. "I'm just a prosecutor. All I ever wanted to do is try cases," he said.

Grimes once tried defense law "for nine months, 13 days and about seven hours" and hated it, he said. "The defendants either wanted you to make up a story for them or it's somebody else's fault."

Those who shared courtroom time with Grimes, either as defense attorneys fighting his every move or as judges neutrally refereeing the adversarial action, say he has been anything but "just a prosecutor."

"Bill is quite honestly everything a prosecutor should be," said defense attorney Bart Betteau, who crossed legal swords with Grimes numerous times in Clark County courtrooms.

"He is fair, he is honest and from the advocate's standpoint he is, to say the least, great competition. He knows exactly what he's doing, but he'd never do anything underhanded," Betteau said.

And former Clark Superior Court Judge Jerry Jacobi, who watched Grimes in action for 12 years in his court, said: "Bill Grimes … was unquestionably the most effective trial advocate that ever presided in my court."

Posted by Marcia Oddi on Monday, May 26, 2008
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Thursday, May 29th:

9:00 AM - Indiana Dep't of Envtl. Mgmt. v. Raybestos Products Co. - Raybestos Products Company file a complaint against the Indiana Department of Environmental Management ("IDEM") alleging IDEM breached an agreed order for the cleanup of hazardous substances. The Marion Superior Count entered partial summary judgment for Raybestos on the issue of breach of contract and later entered a judgment for Raybestos. The Court of Appeals reversed. Indiana Dep't of Envtl. Mgmt. v. Raybestos Prod. Co., 876 N.E.2d 759 (Ind. Ct. App., Nov. 15, 2007), vacated. [See ILB summary here - 2nd case.] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorneys for IDEM: David L. Steiner, Frances H. Barrow, Timothy J. Junk. Attorneys for Raybestos: George M. Plews, Brett E. Nelson, Indianapolis, IN.

9:45 AM - Roy Lee Ward v. State - Appellant Ward was convicted of murder and other offenses. Appellant was sentenced to death by the Spencer Circuit Court. In this mandatory direct appeal, appellant argues the convictions and sentence should be reversed. Attorneys for Ward: Steven Ripstra, Jasper, IN; Lorinda Meier Youngcourt, Huron, IN. Attorney for State: James Martin, Indianapolis, IN.

10:45 AM - Juanita Ivers v. Jeremy Hensley - The Crawford Circuit Court granted a father’s petition to modify custody of his child from the child’s maternal grandmother, who had previously been appointed the child’s guardian, to the father. The Court of Appeals reversed and remanded in an unpublished memorandum decision. In re Paternity of K.I.: J.I. v. J.H., No. 13A05-0706-JV-329 (Ind. Ct. App. Jan. 29, 2008), vacated. [See ILB summary here - 5th case.] The Supreme Court has granted a petition to transfer the case, thus vacating the decision of the Court of Appeals, and has assumed jurisdiction over the appeal. Attorney for Ivers: Nicholas Haverstock, Corydon, IN. Attorney for Hensley: Mary Beth Mock, Madison, IN. [Note: A search of the Clerk's Docket by both COA and SC case numbers returns "No records found for this search."]

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 Wednesday, May 28th:

11:45 AM - Lauth Indiana Resort & Casino, LLC v. Lost River Development - Appellant-Defendant Lauth Indiana Resort & Casino, LLC partnered with Appellee-Plaintiff Lost River Development, LLC, et al., in a joint venture to submit a proposal to the Indiana Gaming Commission for the development and operation of a casino project in Orange County. Their joint venture agreement had no explicit termination date. The Commission did not select the parties' proposal, but eventually issued another request for development proposals. Lauth then partnered with another company to submit a proposal which the Commission ultimately selected. Lost River, et al., brought suit against Lauth, claiming a breach of their joint venture agreement and violation of various duties owed to the other members of the joint venture. The trial court denied Lauth's motion for partial summary judgment, and the legal effect of their joint venture agreement is before the court. The Scheduled Panel Members are: Judges Najam, Vaidik and Mathias. [Where: Indiana Court of Appeals Courtroom]

Posted by Marcia Oddi on Monday, May 26, 2008
Posted to Upcoming Oral Arguments

Sunday, May 25, 2008

Courts - Two interesting recent NYT stories on courts and judiciary

The lede to Linda Greenhouse's May 23rd story in the NYT: "Where have all the 5-to-4 decisions gone? And whatever happened to the “Kennedy Court”?" A quote:

Something is happening, clearly. The question is what. The caveats against drawing any hard conclusions at this stage are obvious. For one thing, the term is functionally only half over, with 35 cases down and 32 to come. And it is common for the hardest-fought decisions to come at the very end. The District of Columbia gun control case, the latest case on the rights of the Guantánamo detainees and a case on whether the death penalty is a constitutional punishment for raping a child are yet to be decided.

Still, there is a clear pattern in the cases the court has already decided this term. The court upheld Kentucky’s method of execution by lethal injection by a vote of 7 to 2. It upheld Indiana’s law requiring photo identification at the polls by a vote of 6 to 3. The justices voted 7 to 2 on Monday to uphold the latest federal effort to curb trade in child pornography.

All were major cases, all plausible candidates for 5-to-4 outcomes. All were government victories, hardly surprising coming from a conservative court. But even Justice John Paul Stevens, the leader of the court’s beleaguered liberal bloc, voted with the majority in all three cases. The surprise was that the government side won each so handily.

It would be too simplistic an explanation to say that the liberal justices, at least some of them, have simply given up. Something deeper seems to be at work. Each of those three cases might have received a harder-edged, more conclusively conservative treatment at the hands of the same five-member majority that controlled the last term.

Adam Liptak's lengthy NYT feature this Sunday focuses on "something that is routine in the United States but virtually unknown in the rest of the world," the election of judges. Some quotes:
The question of how best to select judges has baffled lawyers and political scientists for centuries, but in the United States most states have made their choice in favor of popular election. The tradition goes back to Jacksonian populism, and supporters say it has the advantage of making judges accountable to the will of the people. A judge who makes a series of unpopular decisions can be challenged in an election and removed from the bench. * * *

Nationwide, 87 percent of all state court judges face elections, and 39 states elect at least some of their judges, according to the National Center for State Courts.

In the rest of the world, the usual selection methods emphasize technical skill and insulate judges from the popular will, tilting in the direction of independence. The most common methods of judicial selection abroad are appointment by an executive branch official, which is how federal judges in the United States are chosen, and a sort of civil service made up of career professionals.

Outside of the United States, experts in comparative judicial selection say, there are only two nations that have judicial elections, and then only in limited fashion. Smaller Swiss cantons elect judges, and appointed justices on the Japanese Supreme Court must sometimes face retention elections, though scholars there say those elections are a formality.

Posted by Marcia Oddi on Sunday, May 25, 2008
Posted to Courts in general

Ind. Gov't. - "Officials debate whether to reboot Lake government's computer provider"

Bill Dolan has an interesting report today in the NWI Times. Some quotes:

CROWN POINT | Workers still were feeding floppy disks into Commodore 64 personal computers and the Internet was just a rumor in 1992, the year Lake County officials hired Cenifax Management Services as its data processor.

But as Lake County is poised to continue the no-bid contract with Cenifax, a 2007 Good Government Initiative study would have county officials look elsewhere for computer services.

The Lake County Council approved a contract extension with Cenifax earlier this month, and county commissioners now must give the deal a final stamp of approval.

Mark Pearman, executive director of Cenifax, said, "We have survived because we are professional and do a good job." He said the company deserves the council-approved contract extension, worth $1.9 million for the next four years.

But critics of the proposal contend Cenifax has thrived in the absence of competitive bidding.

The 2007 Good Government study recommended the county "seek new proposals for a contract service provider to test both the price competition as well as service delivery capacity of the open market."

Several questions occur to the ILB: What was the term of the initial contract? Is a copy of the contract available? How many times has the contract been extended in this manner?

Posted by Marcia Oddi on Sunday, May 25, 2008
Posted to Indiana Government

Saturday, May 24, 2008

Ind. Decisions - More on: Supreme Court bars Geoffrey N. Fieger from temporary admission

Updating this ILB entry from yesterday, the South Bend Tribune has an AP story today that begins:

The Indiana Supreme Court banned a high-profile Michigan attorney from seeking temporary admission to the Indiana bar for two years Friday because of professional misconduct.

The high court ruled that Geoffrey Fieger, best known for representing assisted suicide advocate Jack Kevorkian and running for Michigan governor in 1998, misrepresented the status of a disciplinary action pending against him in Michigan when he applied for temporary admission to the bar in St. Joseph County in 2005.

The court said Fieger asserted under oath that no "formal disciplinary proceedings" were pending against him, saying he altered the form to insert the word "formal." But the court said the Michigan Supreme Court at the time was considering whether Fieger should be reprimanded for "vulgar and crude" attacks against appeals court judges.

The court said Fieger testified he intentionally added the word "formal" to protect himself from a charge of dishonesty in case there was some "complaint floating out there that I don't even know about or that I don't recall. ..."

The court said if that were true, it would have made more sense to say no "known" disciplinary proceedings were pending.

The Indiana Supreme Court also said a "probable cause panelist" of the State Bar of Arizona, where Fieger is also admitted to practice, had issued a finding that probable cause existed for filing a disciplinary complaint against Fieger when he applied for the temporary admission.

See also this ILB entry from Dec. 10, 2007, quoting from a story of that date in the Muncie Star-Press: "Well-known Michigan attorney Geoffrey Fieger is the lead counsel in a wrongful-death lawsuit brought by the estate of Michael McKinney, a Ball State University senior who was shot to death four years ago by a rookie Ball State police officer."

Posted by Marcia Oddi on Saturday, May 24, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Still more on: "Jury rejects pollution suit against New Albany power plant"

A story today in the Indianapolis Star by John Russell and Erika D. Smith clarifies two fragments of the story posted in separate entries yesterday (here and here) by the ILB. Some quotes from the Star story:

A coal-burning plant in West Terre Haute violated the U.S. Clean Air Act when it substantially upgraded several areas more than a decade ago without installing pollution controls. But changes at four other plants were cleared.

The ruling, handed down by a federal jury in Indianapolis, raises questions about whether the Wabash plant's owner will have to install costly new scrubbers or instead might shut down several units where the violations were found.
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The plant was owned by Cinergy, based in Cincinnati, at the time of the upgrades. Cinergy was bought by Duke Energy of Charlotte, N.C., two years ago for $9.1 billion.

The jury said Thursday that Cinergy Corp. violated environmental law on four projects at the plant from 1989 to 1992.

The jury, however, cleared Cinergy on 10 additional projects at four other power plants in Indiana and Ohio.

Duke and other industry officials called it a victory.

"We're pleased with the decision," Duke spokeswoman Angeline Protogere said.

The penalty phase of the trial will begin in December.

From a side-bar:
The jury ruled in favor of Cinergy on 10 projects at four other plants:
» The W.C. Beckjord power plant in New Richmond, Ohio.
» The Gallagher power plant in New Albany, Ind.
» The Gibson Station power plant in Gibson County, Ind.
» The Miami Fort power plant in Lawrenceburg, Ind.
Here is a copy of the verdict form.

[More] Here is today's report from the Terre Haute Trib-Star.

Posted by Marcia Oddi on Saturday, May 24, 2008
Posted to Environment | Ind Fed D.Ct. Decisions

Friday, May 23, 2008

Ind. Decisions - More on: "Jury rejects pollution suit against New Albany power plant"

Updating this ILB entry from earlier today re the Gallagher plant in New Albany, the Indianapolis Star this afternoon has this report on another [aspect of the same] jury decision, this one involving the Wabash River plant in Vigo County:

A federal court jury in Indianapolis has found that Cinergy Corp., bought by Duke Energy two years ago, violated the U.S. Clean Air Act when it made upgrades to a coal-fired power plant in Vigo County.

Bloomberg news reported that Thursday's verdict involving the Wabash River Station came after a two-week trial. Duke was cleared of wrongdoing at four other sites.

Both the U.S. Environmental Protection Agency and Duke claimed victory. Duke officials believe they won't have to pay fines but simply install up-to-date pollution controls at the site, Bloomberg reports.

Posted by Marcia Oddi on Friday, May 23, 2008
Posted to Environment | Indiana Decisions

Ind. Decisions - Transfer list for week ending May 23, 2008

Here is the Indiana Supreme Court's transfer list for the week ending May 23, 2008.

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, May 23, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - Another Supreme Court decision today

Troy Monroe v. State of Indiana - Transfer was granted, with opinion by Justice Rucker, today in this sentencing case.

Posted by Marcia Oddi on Friday, May 23, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 24 NFP)

For publication opinions today (1):

In Irmscher Suppliers, Inc. v. Capital Crossing Bank, a 9-page opinion, Judge Crone writes:

Irmscher Suppliers, Inc. (“Irmscher”), appeals the trial court’s final judgment of foreclosure in favor of Capital Crossing Bank (“Capital Crossing”). We affirm.

Issues. We restate the issues as follows: I. Whether Irmscher has preserved any claim of error regarding the litigation of the same action in two Indiana courts; and II. Whether the trial court erred in finding that Irmscher did not have an interest in the real estate at issue. * * *

[T]he mere fact that the same action is being prosecuted simultaneously in two Indiana courts does not implicate jurisdictional concerns. As such, a party involved in the same action in two Indiana courts must file either a motion to dismiss one of those actions pursuant to Trial Rule 12(B)(8) or a responsive pleading asserting the defense to avoid waiving any claim of legal error in that regard.

Here, Irmscher never claimed that the trial court had no power to hear and determine foreclosure cases or that it did not effect appropriate process over the parties. In other words, Irmscher never challenged the trial court’s subject matter and personal jurisdiction.3 Likewise, Irmscher never filed either a motion to dismiss pursuant to Trial Rule 12(B)(8) or a responsive pleading asserting a defense to that effect as required by Trial Rule 12(H)(1)(b). Accordingly, we conclude that Irmscher has waived any claim of legal error in Capital Crossing’s prosecution of this foreclosure action in the trial court. * * *

Irmscher also contends that the trial court erred in finding that it had no interest in the real estate at issue. * * *

In this case, although Irmscher’s counsel entered an appearance, Irmscher failed to file an answer asserting whatever interest it had in the property. As such, we conclude that the trial court did not err in finding that Irmscher had no interest in the property. Consequently, we affirm.

NFP civil opinions today (7):

In the Matter of the Involuntary Termination of the Parent-Child Relationship of S.F. and S.J., Minor Children and their Father Stephen J. v. Tippecanoe County Department of Child Services (NFP) - "Issue: whether the Tippecanoe County Department of Child Services (“DCS”) presented clear and convincing evidence to support the termination of Father’s parental rights as to the Children. We affirm."

In In the Matter of Membership of Benton County Board of Zoning Appeals (NFP), a 6-page opinion, Judge Mathias writes:

The Benton County Board of Zoning Appeals (“BZA”) filed a complaint for declaratory judgment in Benton Circuit Court. David Geswein and Dennis Foster, (“Remonstrators”), intervenors in the declaratory judgment complaint, appeal the determination of the trial court. Remonstrators appeal. We raise sua sponte the following issue of whether the trial court erred in granting request for a declaratory judgment. We reverse and remand for proceedings consistent with this opinion. * * *

Before a declaratory judgment may be entered, the party seeking such a judgment must show that they have standing under the Act to seek such relief. Thus, the BZA must put before the trial court a justiciable controversy. * * *

In this case, there was and is no substantial present interest in the relief sought. The BZA merely sought the trial court’s answer to eight different questions proffered in their complaint. The parties must show that their “rights, status, or other legal relations” will be “directly affected.” The Remonstrators may have a hypothetical controversy, i.e. if the BZA members have conflicts of interest that would prevent them from impartially considering the North Fork application and that application is approved. Alternatively, the BZA could deny North Fork’s application and the Remonstrators would have no actual controversy.

While the BZA’s attempt to ward off any question regarding conflicts of interest is laudable, the attempt was premature. The BZA and the Remonstrators failed to show that an actual, justiciable controversy existed at the time they requested a declaratory judgment. Therefore, the trial court should have denied the BZA’s request for a declaratory judgment. Because the declaratory judgment was premature, we reverse and remand with instruction to dismiss the declaratory judgment.

Abra Katterhenry v. Hartland Real Estate (NFP) - "Abra Katterhenry (“Katterhenry”) appeals the denial of an Indiana Trial Rule 60(B) motion to set aside a default judgment obtained by Hartland Real Estate (“Hartland”). We reverse. * * *

"When, as here, an appellee fails to submit a brief, an appellant may prevail by making a prima facie case of error. Rzeszutek v. Beck, 649 N.E.2d 673, 676 (Ind. Ct. App. 1995), trans. denied. The prima facie error rule protects this Court and relieves it from the burden of controverting arguments advanced for reversal, a duty that properly remains with counsel for the appellee. * * *

"Katterhenry has made a prima facie showing of trial court error and Hartland has failed to file an appellee’s brief. Therefore, Katterhenry is entitled to have the default judgment against her set aside. Reversed."

Marilyn Lowe v. Melvin Lowe (NFP) - In a 2-1 opinion, Judge Kirsch concludes: "In light of the total distribution of marital property, the trial court did not abuse its discretion in declining to award Wife Husband’s survivor benefit. However, we remand with instructions to the trial court to vacate Wife’s award of rehabilitative maintenance and to provide incapacity maintenance. Affirmed in part and reversed in part."

Term. of Parent-Child Rel. of C.W., A.W., and J.W., and Patricia W. v. Vanderburgh County Dept. of Child Services (NFP) - "Mother raises one issue on appeal, which we restate as whether the trial court’s judgment terminating Mother’s parental rights to her children is supported by clear and convincing evidence. We affirm."

Salvador Alcantar v. Review Board of Indiana Department of Workforce Development and Calumet Pallet Company, Inc. (NFP) - "Appellant Salvador Alcantar, pro se, appeals the decision of the Review Board of the Indiana Department of Workforce Development (“the Board”) denying his request for unemployment insurance because he voluntarily left his employment with Calumet Pallet Company, Inc. We affirm."

Donald & Barbara Barnes v. Michael E. McCarty and State Farm Insurance Company (NFP) - "Based on the facts and circumstances of this case, we conclude that the trial court did not err when it granted summary judgment in favor of State Farm. We also conclude that the trial court did not abuse its discretion when it admitted an affidavit of a State Farm agent."

NFP criminal opinions today (17):

Brent Bailey v. State of Indiana (NFP)

John T. Mann v. State of Indiana (NFP)

Carl Boards v. State of Indiana (NFP)

Calvin T. Brown v. State of Indiana (NFP)

Nicole (McClure) Maslin v. State of Indiana (NFP)

William D. Abernathy v. State of Indiana (NFP)

Sean Hadley v. State of Indiana (NFP)

Jerald J. Womack v. State of Indiana (NFP)

Audrain Jones v. State of Indiana (NFP)

Veronica Garcia v. State of Indiana (NFP)

Bradd Stoops v. State of Indiana (NFP)

Clinton W. Young v. State of Indiana (NFP)

Ross Hunt v. State of Indiana (NFP)

Dennis Barnett v. State of Indiana (NFP)

Brandon M. Skinner v. State of Indiana (NFP)

Dequincy Lopez v. State of Indiana (NFP)

Brian Pinner v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 23, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court bars Geoffrey N. Fieger from temporary admission

In the Matter of Geoffrey N. Fieger is an 8-page per curiam opinion:

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action," and on the post-hearing briefing by the parties. We find that Respondent, Geoffrey N. Fieger, engaged in attorney misconduct by making material misrepresentations in a sworn application for temporary admission (also known as admission pro hac vice) in an Indiana court.

The Respondent's temporary admission to this state's bar subjects him to this Court's disciplinary jurisdiction. USeeU IND. CONST. art. 7, § 4. For his misconduct, we find that Respondent should be prohibited from seeking temporary admission to the bar of Indiana for a period of two years. * * *

Shepard, C.J., Boehm, J., and Rucker, J., concur.
Dickson, J., dissents regarding the sanction and would bar Respondent permanently from temporary admission to the Indiana bar.
Sullivan, J. dissents and would adopt the analysis and conclusion of the hearing officer, as described in the Court's opinion.

Posted by Marcia Oddi on Friday, May 23, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on "Supreme Court hears appeal of ex-trooper's murder convictions"

Updating yesterday's entry, Lesley Stedman Weidenbener of the Louisville Courier Journal has this longish report today on yesterday's oral arguments that begins:

The jury that convicted David Camm of killing his family should have been told that his co-defendant had a fetish for women's feet that could have been a motive for the crimes, Camm's lawyer argued yesterday.

By excluding information about Charles Boney's criminal past -- which included attacks on women -- the trial court violated Camm's constitutional right to present a full defense, attorney Stacy Uliana told the Indiana Supreme Court.

Uliana also contended that the trial court exacerbated the problem by allowing Floyd County Prosecutor Keith Henderson to say that Camm killed his family to cover up sexual abuse of his 5-year-old daughter -- even though there was no evidence directly linking Camm to the allegations.

"The trial court abused its discretion when it allowed the state to pursue an unsupported, uncharged and inflammatory accusation that David Camm molested his child," Uliana told the Supreme Court.

"With such a horrendous motive for David Camm and absolutely no motive for Charles Boney to be at the scene, there's no wonder that the jury found" Camm guilty, she said.

The two points seemed to strike a chord with some of the five justices, who asked repeated questions about evidence issues.

The updated version of Bryan Corbin's story for the Evansville Courier & Press is available here.

Posted by Marcia Oddi on Friday, May 23, 2008
Posted to Indiana Courts

Courts - Still more on "Pa. justices won raise for upholding slots law, lawsuit claims"

This ILB entry from May 21st included this quote from the Patriot-News of Harrisburg, Pennsylvania: "The chief justice of the Pennsylvania Supreme Court said the League of Women Voters 'slanders' the court and its former chief justice in a federal lawsuit, and he warned the group and its attorney could face repercussions."

An editorial from the same paper yesterday concluded:

We appreciate Castille's anger at having his court's integrity questioned, though we note that neither he nor the court was named as a defendant in the suit. But we were shocked that the judge who presides over a statewide judicial system that exists to hear any citizen's grievance would suggest that citizens who challenge the actions of their elected officials in court might face judicial retaliation.

The courts are the proper venue for consideration of such complaints. Castille surely can defend his court and his colleagues without appearing to intimidate anyone.

Posted by Marcia Oddi on Friday, May 23, 2008
Posted to Courts in general

Environment - "Judge sets June 16 prehearing on BP air permit appeals"

Gitte Laasby of the Gary Post-Tribune reports today:

The scene is set for a standoff between environmentalists and BP this summer. A judge scheduled June 16 prehearings on three appeals of BP Whiting's air permit Thursday.

At three separate hearings in July, the parties will talk about whether construction should be halted.

Environmentalists intend to argue that construction on the refinery should stop completely until disagreements about the legality of the construction permit have been resolved.

"They shouldn't build anything until they get what we think is an appropriate determination of how they should build it. It seems logical not to build it until they have the appropriate permit," said Ann Alexander, senior attorney with the Natural Resources Defense Council.

The Indiana Department of Environmental Management said the permit complies with state and federal regulations as is. BP said the company intends to proceed with the project.

"We're confident our permit will stand up to any challenge. That's why we've begun construction of what will represent the largest private investment in Indiana history, creating thousands of jobs and making more gas from North-American crude oil," BP spokesperson Scott Dean said.

At the prehearing conference, the parties will explore settlement possibilities, talk about facts of the case and disagreements, and set dates for future hearings, said Mary Davidsen, chief environmental law judge with the Office of Environmental Adjudication, who issued the notice of the prehearings. The OEA reviews IDEM's permit decisions.

The stay hearings will be held July 1, 7 and 15. So far, the parties have given no indication they intend to settle.

See also this report by Christine Kraly of the NWI Times.

Posted by Marcia Oddi on Friday, May 23, 2008
Posted to Environment

Ind. Decisions - "Liability in office battery argued" before Supreme Court

Niki Kelly reports today on yesterday's oral arguments before the Supreme Court in the case of Debra Barnett v. Camille Clark - see ILB entries from earlier this week here and here. Some quotes:

The Indiana Supreme Court heard arguments Thursday on whether former Pleasant Township Trustee Camelia Clark can be held legally responsible for the sexual battery committed by one of her employees – and husband – Donald Clark.

Donald Clark pleaded guilty in 2005 to sexual battery and battery involving two women who came to the trustee’s office seeking temporary financial assistance. * * *

[T]he trial court granted summary judgment in favor of Camelia Clark.

The Indiana Court of Appeals overturned the ruling in December 2007, finding that an employer can be liable for the criminal acts of an employee if the employee’s actions were at least for a time authorized.

The Indiana Supreme Court vacated that decision and listened to lawyers from both sides Thursday, where the arguments centered on a legal doctrine used in the case called “respondeat superior.” This generally means an exception to liability where none would usually exist.

Christopher Wheeler argued on behalf of the victim that Donald Clark was doing authorized acts during part of the time he was with Barnett – such as instructing her on filing, reviewing her work and seeking her signature on paperwork.

“This case is about whether or not my client should have the opportunity to bring her case to a jury,” he said.

But Robert Keen Jr., attorney for Camelia Clark, said the authorized acts aren’t closely related enough to the battery to allow them to use the narrow exception.

For instance, he said a person injured by a bouncer – who is authorized to have physical contact with patrons – could sue the employer if injured.

Justice Frank Sullivan Jr. appeared bothered by the facts of the case.

“What concerns me most about this case is the vulnerability of an individual who is so down and out on her luck that she is seeking public assistance, … and a public employee who takes advantage of that situation,” he said.

He further said he thinks employers should be required to guard against that.

Keen agreed and noted that Barnett could have sued for negligent supervision or negligent hiring but did not.

Posted by Marcia Oddi on Friday, May 23, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Jury rejects pollution suit against New Albany power plant"

James Bruggers of the Louisville Courier Journal reports this morning in a story that begins:

Jurors decided yesterday that improvements at the Gallagher power plant in New Albany, Ind., a decade ago did not trigger a requirement for additional pollution controls as the federal government had claimed.

The U.S. District Court jury in Indianapolis said a "reasonable power plant operator" would not have expected the improvements to cause additional sulfur dioxide pollution.

In a 1999 lawsuit, the Clinton administration alleged that Cinergy substantially upgraded and extended the life of six of its power plants in Indiana and Ohio without installing required modern pollution controls.

It was one of several similar lawsuits involving older plants filed under the New Source Review provisions of the federal Clean Air Act. New Source Review ensures that air quality is not significantly degraded by the addition of new or modified factories, industrial boilers and power plants, according to the Environmental Protection Agency.

The unanimous decision yesterday was part of a larger ruling involving the six plants, formerly owned by Cinergy, now part of North Carolina-based Duke Energy. Duke won decisions on 10 of 14 projects at the six plants.

The four it lost were related to work at the Wabash River Power Station in West Terre Haute, Ind., between 1989 and 1992.

Duke spokeswoman Angeline Protogere said the company was "pleased" with the decisions, which showed the projects did not result in additional pollution.

Justice Department spokesman Andrew Ames said the government was pleased to have won the Wabash decisions but "disappointed the jury didn't agree with our position on the other plants."

Ames said the government is weighing whether to appeal those verdicts.

Posted by Marcia Oddi on Friday, May 23, 2008
Posted to Environment | Ind Fed D.Ct. Decisions

Ind. Courts - Interim Legislative Committees to study court issues

Ed Ronco of the South Bend Tribune reports today:

Whether St. Joseph County judges should be elected will get a closer look from state legislators this summer, along with a host of other issues.

The Indiana General Assembly formed its interim study committees Thursday afternoon -- groups of lawmakers who gather throughout the summer to brainstorm what issues might need to be dealt with in the law. * * *

The issue of electing Superior Court judges in St. Joseph County, where they are appointed by the governor, is not new. Currently, residents vote on whether to retain the eight judges at the ends of their terms, but do not vote on open seats.

It was brought up in February by state Rep. Ryan Dvorak, who tried to amend a judge's pension bill to allow for the elections.

The move by Dvorak, D-South Bend, would have set up non-partisan elections for the judges, but it failed in late February by a 49-45 vote.

Niki Kelly's report in the Fort Wayne Journal Gazette mentions:
Potential creation of an additional Court of Appeals panel.
For background on the St. Joseph judges selection issue, start with this ILB entry from March 6, 2008.

Posted by Marcia Oddi on Friday, May 23, 2008
Posted to Indiana Courts | Indiana Government

Ind. Courts - Still more on: Carroll County judges find their voice

Updating this ILB entry from yesterday, May 22nd, which reported that negotiations were underway, today the Lafayette Journal & Courier has a story headed "Carroll County Council, judges reach compromise on budget." Some quotes:

DELPHI -- The Carroll County Council found compromise Thursday night with two judges over ongoing budget cuts.

During a special meeting the council unanimously voted to accept an approximately $41,000 reduction in the courts' budgets, said Nancy Cripe, council president.

"We had originally asked for $90,000," she said. "So we kind of met halfway." * * *

A lawyer for the council worked with the judges to create a financial compromise, Cripe said.

The judges must now sign the agreement for it to be official, which Cripe said she expects will happen.

The county's financial problems stem from officials erroneously adding investments into the county's general fund. Believing it had more money than it did, the council ended up underfunding this year's budget by approximately $1.8 million when the state realized the error.

Posted by Marcia Oddi on Friday, May 23, 2008
Posted to Indiana Courts

Thursday, May 22, 2008

Ind. Decisions - Supreme Court issues two late this afternoon

In Rosalio Pedraza v. State of Indiana, a 7-page, 5-0 opinion, Chief Justice Shepard writes:

Appellant Rosalio Pedraza contends that the trial court improperly used the same prior conviction both as an element of one of his present offenses and as an aggravating circumstance supporting an increased sentence. We conclude that under Indiana’s new “advisory” sentencing scheme, such use of a prior conviction does not amount to an impermissible double enhancement.
In Michael Sweatt v. State of Indiana, a 9-page opinion, Chief Justice Shepard writes:
Michael Sweatt appeals from convictions for possession of a handgun by a serious violent felon and burglary. He argues that the trial court erred by enhancing his sentence for burglary under the general habitual offender statute based on the same prior felony conviction supporting the serious violent felon count. While we conclude that the enhancements themselves were proper, it nonetheless constituted error to order Sweatt’s sentences to run consecutively, creating a double enhancement similar to the one we disapproved in Mills v. State. * * *

Conclusion. We affirm Sweatt’s convictions. We summarily affirm the Court of Appeals’ disposition of Sweatt’s other allegations of error. Ind. Appellate Rule 58(A). Except as otherwise indicated, we affirm.

Sullivan, and Rucker, JJ., concur.
Boehm, J., concurs in part and dissents in part with separate opinion, in which Dickson, J., concurs. [which begins on p. 6 of 9] I respectfully dissent. In Pedraza v. State, No. 49S04-0711-CR-516, ___ N.E.2d ___ (Ind. May 22, 2008), also decided today, this Court holds that the same prior conviction may serve to elevate a charge and as an aggravating circumstance at sentencing. In this case, the majority holds that the same prior felony may constitute an element of the crime of unlawful possession of a firearm by a serious violent felon, Ind. Code § 35-47-4-5 (2004), and also support a finding that the defendant is a habitual criminal under section 35-50-2-8. Slip op. at 5-6. But the majority holds that if the two convictions occur in the same trial, consecutive sentences cannot be imposed. Id. at 5. For several reasons, I do not believe the statutes support the second conclusion.

Posted by Marcia Oddi on Thursday, May 22, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Four eye Clark judicial post: Governor's appointee will fill rest of term"

So reads the headline to a story by Ben Zion Hershberg in today's Louisville Courier Journal. Some quotes:

As Clark County Circuit Court held a retirement party yesterday for Judge Daniel Donahue, Gov. Mitch Daniels' office was considering which of two young Republican lawyers to appoint to serve the rest of Donahue's term.
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At least two Democratic candidates also were making plans for a party caucus next month that will nominate a candidate to run against the governor's appointee in November.

"An appointment is expected next week," said Jane Jankowski, Daniels' press secretary.

Floyd County Deputy Prosecutor Abe Navarro, 36, and Jeremy Mull, 34, a former Clark County deputy prosecutor now working in Afghanistan for a State Department contractor, have applied for the job, Jankowski said, and Daniels is expected to choose one of them.

Donahue will depart next Thursday after more than two decades on the bench. * * *

Rod Pate, the Clark County Democratic chairman, said lawyers David Lewis and Dan Moore have told him they will run at the party's June 17 caucus for the nomination.

See also this ILB entry from March 12, 2008, headed "Clark Circuit Judge Dan Donahue taking well-deserved retirement."

Posted by Marcia Oddi on Thursday, May 22, 2008
Posted to Indiana Courts

Ind. Courts - "Supreme Court hears appeal of ex-trooper's murder convictions"

Two stories now have been posted on this morning's oral arguments in the David Camm murder appeal.

Bryan Corbin of the Evansville Courier & Press wrote this report -- some quotes:

Lawyers this morning have finished making their arguments to the Indiana Supreme Court as to whether or not a former State Police trooper convicted of killing his family should receive a third trial.

A Warrick County jury two years ago convicted David Camm of triple murder in the slayings of his wife Kim Camm, 35, son Bradley Camm, 7, and daughter Jill Camm, 5, in their Southern Indiana home in September 2000.

Camm, a former state trooper, was sentenced to 195 years in prison. He is appealing his convictions, and this morning the five-member state Supreme Court heard arguments on the case from lawyers for Camm and the prosecution.

It could take one year for the Supreme Court to issue its ruling in the case. In the meantime, Camm remains in prison. His co-defendant who was convicted in a separate trial, Charles Boney, is serving 225 years. The defense contends Boney acted alone and that Camm had an alibi; the prosecution contended Camm and Boney acted together to kill Camm's family.

Camm was not in the supreme court's courtroom today, but television news cameras were. Although cameras normally are not permitted in Indiana courtrooms except as part of a limited pilot project, the supreme court does allow its proceedings to be photographed.

Rick Callahan of the AP has this report, that begins:
An attorney for a former state trooper convicted of murdering his wife and two young children told the Indiana Supreme Court on Thursday that his conviction should be overturned because the judge who presided over the trial committed numerous errors.

Stacey Uliana, an attorney for David Camm, told the five justices during oral arguments in Camm’s appeal that, among other things, the judge should not have allowed prosecutors to claim during the 2006 trial that he had molested his daughter shortly before her slaying.

For more, start with this ILB entry.

[More] Ed Feigenbaum of Indiana Daily Insight wrote earlier today:

To give you an idea of the regional and national interest in this case, CBS's 48 Hours will provide the main pool camera, and WHAS-11 (ABC Louisville) will have the second spot inside the courtroom and provide a secondary pool feed as well. Two still news cameras will be allowed inside the courtroom to provide pool photographs to any news organizations present at the courtroom. One spot will be reserved for the Louisville Courier-Journal.

Posted by Marcia Oddi on Thursday, May 22, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Special judge named to preside over bribery case"

From a story today by Rick Yencer in the Muncie Star-Press:

A special judge has been named in the high-profile bribery cases of attorney Michael Alexander, 61, and his longtime investigator Jeff Hinds, 41.

Jay Circuit Court Judge Brian D. Hutchison was appointed recently by the Indiana Supreme Court to preside over the cases. Alexander's trial on conspiracy to commit bribery is set for July 28, while Hinds' trial on bribery is set for July 14.

Alexander, a former county prosecutor, was accused of conspiring with Hinds and a client, Christopher Bryant, to bribe witnesses Stanley Chrisp and his sons, Adrian Kirtz and Stanley Wills. The trio is accused of asking the witnesses to change their testimony and give false statements in a criminal case targeting Bryant, who is identified as a co-conspirator in the bribery case.

Delaware Circuit Court 3 Judge Robert Barnet Jr. recused himself from the cases and sought appointment of a special judge.

Posted by Marcia Oddi on Thursday, May 22, 2008
Posted to Indiana Courts

Ind. Courts - "Judge passes first confirmation hurdle" to SD Indiana seat

Maureen Groppe of the Star Washington Bureau reports that "the nomination of U.S. Magistrate Judge William T. Lawrence to serve as U.S. District Court Judge for Indiana's southern district" was passed out of U.S. Senate committee and on to the full Senate this morning.

Sen. Richard Lugar is hopeful the full Senate will consider the nomination next month, said Lugar spokesman Andy Fisher. * * *

Lawrence would succeed John Daniel Tinder, who was elevated last year to the 7th U.S. Circuit Court of Appeals.

For more on Lawreence, see the first four or five entries in this ILB list.

Posted by Marcia Oddi on Thursday, May 22, 2008
Posted to Indiana Courts

Ind. Decisions - "7th Circuit Ruling a Big Win for Mutual Fund Advisers"

Zach Lowe of The American Lawyer reports on the 7th Circuit's decision Monday, May 19th in the case of Jones v. Harris Associates, in a story that begins:

A federal appeals court judge ruled on Monday that courts should not cap fees for mutual fund advisers in a decision that could change the way such fees are regulated.

In his decision in Jones v. Harris Associates, in which several investors accused the fund adviser of deceiving investors and receiving excessive compensation, Judge Frank Easterbrook of the 7th U.S. Circuit Court of Appeals in Chicago said courts should play no part in determining whether fees for mutual fund advisers are reasonable. Market forces guarantee fees will be fair, Easterbrook wrote, and investors will leave a fund if advisers are getting paid too much.

"The trustees [and ultimately investors, who vote with their feet and dollars], rather than a judge or jury, determine how much advisory services are worth," Easterbrook wrote.

The decision upheld fees paid to Harris Associates, the advisers who oversaw the Oakmark Funds in Chicago, says John Donovan, a litigation partner at Ropes & Gray who represented Harris in the case.

Donovan says the ruling could scuttle pending cases against mutual fund advisers and reverse the precedent, set in the 1980s, of allowing judges to regulate fees.

At least a dozen plaintiffs classes have filed suit in the last five years charging fund advisers with receiving excessive compensation, according to Donovan.

Posted by Marcia Oddi on Thursday, May 22, 2008
Posted to Ind. (7th Cir.) Decisions

Law - E-mails and the statutes of frauds

Although based on New York law, this article, "E-Mail Meets the Statute of Frauds", by Stephen M. Kramarsky New York Law Journal, takes a good look at an issue of growing importance.

Posted by Marcia Oddi on Thursday, May 22, 2008
Posted to General Law Related

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

In Gregory Samuelson v. LaPorte Community School (ND Ind., CJ Miller), a 17-page opinion, Judge Ripple affirms the district court's grant of summary judgment on Samuelson's First Amendment claims.

A. We first consider whether LSC’s chain-of-command policy, Guideline 1110, constitutes a prior restraint. * * *

The guidelines merely establish a chain of command in order to maintain efficient resolution of issues that an employee’s duties require him to address in the course of his employment. Such expression, the Supreme Court has made clear, is not protected by the First Amendment. See Garcetti, 547 U.S. at 421-22. Consequently, restriction of that expression cannot constitute a prior restraint. See NTEU, 513 U.S. at 465-66; Crue, 370 F.3d at 678. The district court properly granted summary judgment for LSC on this claim. * * *

B. We next consider Mr. Samuelson’s allegation that LSC retaliated against him for engaging in speech protected by the First Amendment. * * *

In short, Mr. Samuelson has failed to establish that the instances that he claims are protected expression played a role in the decision of the Board. Consequently, the district court properly granted summary judgment to LSC on Mr. Samuelson’s First Amendment retaliation claims.

Conclusion. Accordingly, we affirm the judgment of the district court.

Posted by Marcia Oddi on Thursday, May 22, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (1):

Kevin Moncrief v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 22, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Carroll County judges find their voice

Updating this ILB entry from May 6th, the Carroll County Comet's reporter, Debbie Lowe, had a story May 14th headed "Judges employ modern technology to plead their case."

Carroll County judges Donald Currie and Jeffrey Smith are having a difference of opinion with the county council about where to make the latest round of budget reductions. The judges indicated their departments suffered enough decreases before the last set. The council believes the latest cuts are necessary to prevent further reduction of already diminished county emergency services or perhaps force the closure of Carroll Manor.

The judges have appeared at council meetings to discuss the situation. Council members remain firm in their position and so do the judges.

However, the judges can legally issue a mandate ordering the council to come around to their point of view. A mandate is a court order which would force the council to fund the amount the judges believe they should be appropriated to provide the services they state must be provided.

Judge Smith imposed a mandate approximately 18 months ago to hire and pay personnel to do the work of a staff member who was on extended medical leave. * * *

The judges have intimated they might issue another mandate to gain funding for their budgets, which are superior, circuit and joint courts. Although this situation has been reported at various times in the Comet, the judges do not believe their message has been adequately represented.

So, to reach the masses, they went hi-tech and started a "blog" on the internet. * * * It includes a video of the judges explaining their position. [Access the judges' blog here.]

"WHY A BLOG?" the page begins. "It has been difficult for us to adequately convey our position and provide important information to the citizens of Carroll County through local media. It is our hope that through this Blog you will be better informed about the business of the Carroll County Courts."

Readers are encouraged to visit the judges' blog site to understand their position about further budget reductions.

Yesterday, May 21st, the Comet ran this story by Ms. Lowe, headed "Council negotiates with judges for mandate resolution." It reports that on the 15th the Council had voted to "authorize attorney James R. Huffer, for no expense to the county, to negotiate with the judges for an agreed reduction in their 2008 proposed budget for court and other related areas." The story continues:
Huffer achieved a proposition to the budget issues with Carroll Superior Court Judge Jeffrey Smith and Circuit Court Judge Donald Currie by Monday afternoon. A proposed compromise between the two parties was released to the Comet.

"I met with the judges from 11 a.m. to 12:30 p.m. last Friday," Huffer said Monday. "I told them the council wanted to prevent a mandate and reach a final resolution of the 2008 budget."

"By reason of the written agreement presented, the judges shall not find it necessary to mandate the council," he added.

The preliminary agreement brokered by Huffer has not been approved by the council nor was it signed by the judges Monday afternoon. The council scheduled an executive session for May 22 at 6 p.m. and an open meeting at 7.

The agreement reads in part, ... "The following agreement reduces expenditures in the general fund, allows previous reductions to remain in effect and provides a means of avoiding additional appropriations for the cost of indigent counsel later in the year. It also allows the Courts to retain the staff essential for the operation of the Courts and provides funds for public defenders to indigent defendants as required by the United States and Indiana Constitutions."

The agreement calls for salaries for the chief probation officer, probation secretary and second deputy probation officer to be paid from probation user fees, however salaries for the first two will be paid out of the general fund in 2009. Reductions in the joint courts fund included the appropriation for indigent counsel reduced from $12,000 to $10,600, public defender appropriation from $70,000 to $64,000 and additional pauper counsel reduced from $71,050 to $62,050.

The judges agreed to make available funds in the Drug and Alcohol Fund for public defender, additional pauper defender, indigent counsel or guardian ad litem expenses before seeking additional appropriations from the general fund if expenditures exceed the 2008 appropriation. The parttime reporter fund in Superior Court will be reduced from $15,225 to $12,225.

According to Cripe, the judges' proposed reductions total less than half of the $90,000 reduction by the council in the latest round of budget cuts. However, she remained optimistic.

"I am so appreciative to Jim Huffer for offering to negotiate on behalf of the council at no cost to the county," Cripe said in a prepared statement Monday. "I am also relieved that the judges were willing to work with Jim to reach an agreement rather than filing a mandate."

Posted by Marcia Oddi on Thursday, May 22, 2008
Posted to Indiana Courts

Ind. Decisions - More on: Supreme Court holds that a defendant may waive the right to appellate review of his sentence as part of a written plea agreement

Yesterday's Supreme Court decision in the case of Timothy Ray Creech v. State of Indiana is the subject of a story today in the Fort Wayne Journal Gazette, reported by Niki Kelly:

The Indiana Supreme Court ruled Wednesday that a Huntington County child molester could not appeal his sentence, which was the result of a voluntary plea agreement.

Timothy R. Creech, 49, pleaded guilty in late 2006 to fondling a young girl on multiple occasions. Part of the plea agreement read, “I hereby waive my right to appeal my sentence so long as the judge sentences me within the terms of my plea agreement."

But Creech appealed anyway, and the Indiana Court of Appeals ruled he had given up his right to do so.

Complicating the matter is that the trial judge told him at his original sentencing hearing that he could appeal the sentence and the prosecutor did not correct him.

Indiana doesn’t allow defendants to appeal in cases of fixed plea agreements, such as when the prosecution and defense agree to an exact sentence of 10 years.

But this case involved an open plea agreement in which the judge still had some discretion. The molesting conviction carried a possible sentence of between two years and eight years in prison, and the agreement capped the executed portion of the sentence at six years.

He received a six-year sentence.

The Indiana Supreme Court heard the case late last year and issued an opinion Wednesday that first clarified that defendants may waive their right to appeal a discretionary sentencing decision as part of a plea agreement.

As for Creech specifically, the court noted that he did not claim the language of the plea agreement was unclear or that he misunderstood the terms of the agreement when he signed it.

“Creech argues that he did not knowingly and voluntarily waive his right to appeal, despite the express language in the written plea agreement, because the court made statements at the close of the sentencing hearing that led him to believe that he retained the right to appeal.

“While we take this opportunity to emphasize the importance of avoiding confusing remarks in a plea colloquy, we think the statements at issue are not grounds for allowing Creech to circumvent the terms of his plea agreement.”

Posted by Marcia Oddi on Thursday, May 22, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Reminder: Supreme court to hear David Camm case and Steuben County official's sex case this week

The oral arguments are at 9:00 AM (Camm) and 9:45 AM (Clark) this morning. Watch the webcasts here.

See the case summaries from this ILB entry Monday, and the newspaper previews here.

Posted by Marcia Oddi on Thursday, May 22, 2008
Posted to Upcoming Oral Arguments

Wednesday, May 21, 2008

Ind. Decisions - 7th Circuit's Chief Judge asks lawyers to keep lookout for cranky judges

Lynne Marek of The National Law Journal reports today:

Chief Judge Frank Easterbrook, who presides over the 7th U.S. Circuit Court of Appeals, asked lawyers and judges to be on the look-out for aging, cranky, deteriorating judges who might need a call from the top judicial officer in the circuit.

"I urge all of you -- judges and lawyers alike -- to keep in mind that you are the chief judge's eyes and ears in dealing with any issues that may develop," Easterbrook told some 400 lawyers and judges attending a lunch at the 7th Circuit Bar Association's annual meeting this week in Chicago.

"Judges are not immune from the risks of aging. When a judge slows down, or becomes cranky, or shows signs of losing a step mentally, I need to know."

Easterbrook made the plea as he delivered the report on the state of the circuit at the meeting, noting that often "a simple intervention" can solve the problem. Anyone can make a complaint about judges under the Judicial Conduct and Disability Act of 1980 and chief judges of a federal appellate court have the authority to remove judges if necessary.

Easterbrook gave his listeners a variety of ways to report on federal judges who might not be keeping pace. Ring up Easterbrook himself, talk to the executive of the circuit, Collins Fitzpatrick, or, for those that are more wary and want a bit of anonymity, they can share their insights with the bar association, which will pass along the information to the chief judge.

"The more I know about how well the courts of this circuit are functioning, the better we can administer justice," Easterbrook said.

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

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Invol. Term. of Parent-Child Rel. of N.S., and Dorothy M. v. Marion Co. Dept. of Child Services, and Child Advocates (NFP) - "The DCS established by clear and convincing evidence the requisite elements to support the termination of Mother’s parental rights to N.S. Affirmed."

NFP criminal opinions today (0):

Posted by Marcia Oddi on Wednesday, May 21, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court holds that a defendant may waive the right to appellate review of his sentence as part of a written plea agreement

In Timothy Ray Creech v. State of Indiana, a 7-page, 5-0 opinion, Chief Justice Shepard writes:

The question here is whether a criminal defendant can, as part of a plea agreement, waive his right to appeal a discretionary sentencing decision. We hold that a defendant can do so, as long as the waiver is knowing and voluntary. * * *

Though the weight of Creech’s brief is to urge that his agreement to waive appeal was not voluntary and intelligent, he also presents a question of first impression: whether such waivers should be enforceable at all. The opportunity for appeal is the prevailing rule. If a defendant’s sentence is not fixed by a plea agreement, for example, a defendant “who pleads guilty is entitled to contest on direct appeal the merits of a trial court’s sentencing decision.” Collins v. State, 817 N.E.2d 230, 231 (Ind. 2004). The same is true even when the defendant agrees to a sentencing cap or range. Childress v. State, 848 N.E.2d 1073 (Ind. 2006).

The issue here is whether, through a plea agreement, a defendant can waive altogether this right to appellate review of his sentence. * * *

The Seventh Circuit has declared, aligning itself with virtually every other federal court of appeals, that defendants “may waive their right to appeal as part of a written plea agreement . . . as long as the record clearly demonstrates that it was made knowingly and voluntarily.” United States v. Williams, 184 F.3d 666, 668 (7th Cir. 1999). The Seventh Circuit “has consistently upheld valid appeal waivers and dismissed appeals taken in contravention.” * * *

While the matter is not free from doubt, we find this reasoning persuasive. Accordingly, we hold that a defendant may waive the right to appellate review of his sentence as part of a written plea agreement. This holding does not affect our very long-standing policy that a defendant who can establish in a post-conviction proceeding that his plea was coerced or unintelligent is entitled to have his conviction set aside. * * *

Moreover, we do not mean to alter our case law invalidating provisions that waive post-conviction rights. * * *

Creech argues that, despite the express language of the written plea agreement, he should not be deemed to have waived his right to appellate review of his sentence because (1) the judge advised him that he retained the right to appeal and (2) the trial judge made no express or implied finding that Creech intended to waive his appellate rights. We disagree. * * *

Creech does not claim that the language of the plea agreement was unclear or that he misunderstood the terms of the agreement at the time he signed it, but rather claims that his otherwise knowing and voluntary plea lost its knowing and voluntary status because the judge told him at the end of the sentencing hearing that he could appeal. * * *

By the time the trial court erroneously advised Creech of the possibility of appeal, Creech had already pled guilty and received the benefit of his bargain. Being told at the close of the hearing that he could appeal presumably had no effect on that transaction. The federal authorities appear to take the same view. * * *

As to Creech’s second argument that the trial court should have made an express finding as to whether he intended to waive his appellate rights, neither the Indiana Rules of Criminal Procedure nor Indiana Code requires trial courts that accept plea agreements to make express findings regarding a defendant’s intention to waive his appellate rights. Acceptance of the plea agreement containing the waiver provision is sufficient to indicate that, in the trial court’s view, the defendant knowingly and voluntarily agreed to the waiver.

Conclusion We affirm the trial court’s sentence.

Posted by Marcia Oddi on Wednesday, May 21, 2008
Posted to Ind. Sup.Ct. Decisions

Courts - More on "Pa. justices won raise for upholding slots law, lawsuit claims"

Updating this ILB entry from yesterday, Howard Bashman of How Appealing has today gathered a number of new Pennsylvania press stories. For instance, Bashman writes:

The Patriot-News of Harrisburg, Pennsylvania today contains an article headlined "Chief justice warns League, attorney of repercussions" that begins, "The chief justice of the Pennsylvania Supreme Court said the League of Women Voters 'slanders' the court and its former chief justice in a federal lawsuit, and he warned the group and its attorney could face repercussions."

Posted by Marcia Oddi on Wednesday, May 21, 2008
Posted to Courts in general

Ind. Decisions - "State court cuts 100-year cocaine term"

That is the headline to a story today by Niki Kelly of the Fort Wayne Journal Gazette, reporting on the Court of Appeals NFP decision yesterday in the case of Sharico Devon Blakely v. State of Indiana.

In the opinion, Judge Kirsch concludes:

Blakely challenges his sentence of one hundred years arguing that the trial court incorrectly weighed the aggravating and mitigating circumstances and that the sentence is inappropriate considering the nature of the offense and his character. Because we no longer review the weight a trial court assigns to aggravating and mitigating circumstances, and because Blakely has a substantial criminal history of dealing narcotics, we do not address Blakely’s first argument and will only review his sentence for appropriateness. * * *

Blakely contends that his sentence of one hundred years was inappropriate in light of the nature of the offense and his character and, therefore, that it should be revised. We agree.

Ordering consecutive, enhanced sentences is appropriate for only the worst of crimes by the worst of offenders. Perry v. State, 751 N.E.2d 306, 308 (Ind. Ct. App. 2001). Here, while Blakely’s character as reflected in his prior criminal history, justifies enhancing his sentence or making the advisory sentences consecutive, it does not justify doing both, and we conclude that a one-hundred-year sentence is inappropriate. We remand with instructions to enter the advisory sentence of thirty years on all counts with Counts I, II, and III to run concurrently to each other, and Count IV to run consecutively to the others for a total of sixty years executed.

From Kelly's story:
The Indiana Court of Appeals on Tuesday sliced a 100-year cocaine sentence nearly in half and upheld two felony murder convictions in unrelated Allen County cases.

The appellate judges first ruled that Allen Superior Court Judge Kenneth Scheibenberger’s 100-year sentence for convicted drug dealer Sharico Devon Blakely was inappropriate.

After Blakeley rejected a plea agreement, a jury found him guilty in 2007 of three counts of dealing cocaine and possession with intent to distribute. During his sentencing hearing, he often interrupted his lawyer and the prosecutor, and challenged Scheibenberger.

For instance, Blakeley, 29, at one point told the judge, “I’ll be back. Soon.”

Scheibenberger replied, “The last guy that said that to me is still in prison.”

“I’m an innocent man,” Blakely protested.

“So is Charles Manson,” Scheibenberger responded.

In the end, Scheibenberger sentenced Blakely to 100 years in prison – 50 years for the three dealing charges, to run concurrently, and an additional 50 years for the possession with intent charge, to run consecutively.

“The jury found you guilty,” Scheibenberger said. “The reality is you’re a dealer for profit. You’re a person who spreads this poison in our community. Given your record, you have proven you can’t reform your actions, thereby forfeiting your right to live among the law-abiding citizens.”

But the appeals court said “ordering consecutive, enhanced sentences is appropriate for only the worst of crimes by the worst of offenders.” * * *

The appeals court remanded the case and ordered Scheibenberger resentence Blakely to a total of 60 years in prison. Under Indiana’s good-time-credit rules, this means he will likely serve only 30 years.

Posted by Marcia Oddi on Wednesday, May 21, 2008
Posted to Ind. App.Ct. Decisions

Environment - "Gulls of another color seen in NW Ind."

The Indianapolis Star picked up an AP story this morning that reports:

PORTAGE, Ind. -- Some gulls around northwestern Indiana have been looking a little blue the past week, and the state Department of Natural Resources is trying to figure out why.

Josh McClellan and his mom, Debbie, saw a gull with a blue head at a baseball field in Portage on Saturday.
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"We saw it up close because people were feeding the birds on the ground at the field," Debbie McClellan said.

DNR public information officer Gene Davis said the agency's Lake County office had five or six calls on pink and blue gull sightings in the Hammond area. Davis said he called DNR district biologists Monday.

DNR conservation officer Aaron Mullet said the agency did not know what caused the discoloration, which has been spotted among the gulls in Lake and Porter counties along Lake Michigan.

The ILB can solve the mystery -- the answer was in yesterday's Chesterton Tribune, in a story by Kevin Nevers:
The blue-bellied Ring-billed Gulls observed over the last week or so in Northwest Indiana haven’t been paint-balled. They haven’t fallen afoul (afowl?) of any toxic waste. They haven’t been abused in any way, as the Post-Tribune speculated in a story published in this morning’s edition and headlined “Blue tint baffles experts.”

Instead, the gulls have been dyed as part of a long-term management program implemented by the City of Chicago and the Chicago Park District in conjunction with the U.S. Department of Agriculture’s Wildlife Services.

According to a statement released on May 8 by Chicago and the Park District, Ring-billed Gulls in two colonies—in Chicago and East Chicago—are being marked with various shades of non-toxic dye in an effort to determine their origin and “to aid in the development of long-term management strategies.” * * *

As for the dyed gulls, the region’s birding community has been asked to report sightings of color-marked birds to track their movements and migratory patterns.

The Chesterton Tribune has received reports of blue-dyed gulls in Prairie Meadow Park in Westville, at the INDOT drainage basin at the intersection of U.S. Highway 6 and McCool Road in Portage, and at Miller Beach in Gary.

Posted by Marcia Oddi on Wednesday, May 21, 2008
Posted to Environment

Tuesday, May 20, 2008

Not law - Turkey at Texas Courthouse, Deer at Purdue's Lilly Hall

Both broke windows. Both apparently were unharmed.

"Turkey flies through Lubbock County Courthouse window, unharmed by hit" reads a story today flagged by How Appealing. Don't miss the photo of the "cartoon-like hole in the glass" - here. Hmm, Lubbock, I wonder if hunter Bob Knight still calls it home.

"Deer survives crash through window at Purdue"
is the headline of this story today from the Lafayette Journal Courier:

A small male deer was expected to recover after smashing a window at Purdue University Monday morning.

Police responded to a call around 8:10 a.m. that a deer had jumped into a window well above the downstairs hallway connecting Lilly Hall and Life Science Plants and Soils Laboratory.

Fortunately for the deer, Purdue has a vet school:
Anesthesiologists from the Large Animal Hospital came to the scene around 9 a.m. and tranquilized the deer, which was estimated to weigh about 100 pounds. * * *

Michele Barletta, who administered the tranquilizers, said the buck, which had cuts to the face and leg but no apparent broken bones, would survive best if released to the wild.

Animal control officers took the animal and planned to release it.

"It's in its best interest to let it out in a field rather than take it back to the hospital," Barletta said.

Posted by Marcia Oddi on Tuesday, May 20, 2008
Posted to Environment | General News

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

For publication opinions today (3):

In JPMorgan Chase Bank N.A. v. Laura & Dennis Brown, et al, an 8-page opinion, Chief Judge Baker writes:

The parties’ arguments require us to interpret Indiana Code section 28-9-4-2. Specifically, we must determine whether a depository financial institution that has received notice of garnishment proceedings pursuant to Indiana Code section 28-9-3-4(d) is required to restrict withdrawal of funds that are subsequently deposited into the account.

Appellant-garnishee-defendant JPMorgan Chase Bank (JPMorgan) appeals the small claims court’s order finding it in contempt and entering judgment of $1,045.99 in favor of appellees-plaintiffs Laura Brown, Dennis Brown, and Green, Richard & Trent (the Collection Agency) (collectively, the appellees). Specifically, JPMorgan argues that the trial court erroneously found it to be in contempt because, pursuant to the applicable provisions of the Indiana Financial Institutions Adverse Claims Act (the Act), JPMorgan was only required to restrict withdrawal of funds in an amount equal to the balance of appellee-defendant Rebecca Recht’s account at the time JPMorgan received notice of the garnishment proceedings.

In light of the amendment the legislature made to Indiana Code section 28-9-4-2 in 1998, we conclude that JPMorgan was only required to restrict withdrawal of funds in an amount equal to the balance of Recht’s account at the time it received notice. Thus, we reverse the small claims court’s decision to hold JPMorgan in contempt for failing to restrict withdrawal of funds that were subsequently deposited into Recht’s account. * * *

In light of the legislature’s amendment to Indiana Code section 28-9-4-2, we agree with JPMorgan that the statute only required it to restrict withdrawal of the balance in Recht’s account at the time it received the documents and process required by Indiana Code section 28-9-3-4(d). The legislature’s decision to omit the words “or subsequently deposited into” from Indiana Code section 28-9-4-2 is irrefutable and, as required by the rules of statutory construction, we will not reinsert the omitted language into the statute when construing the statute. Thus, we agree with JPMorgan that the trial court erred by finding it in contempt for failing to restrict withdrawal of funds that were subsequently deposited into Recht’s account. Consequently, we reverse the judgment of the small claims court with regard to the contempt order.5 The judgment of the small claims court is reversed.

In Katherine and Gary Hoesman v. Daniel Sheffler and Constance Pleasant, a 23-page opinion, Judge Robb writes:
This case involves an attempt by Katherine and Gary Hoesman to collect a judgment ordered in their favor and against Julia Sheffler, who converted money from a trust fund established for the benefit of the Hoesmans. The Hoesmans appeal the trial court’s order granting summary judgment to Constance Johnson, Julia’s mother, and denying the Hoesmans’ motions to amend their complaint and to consolidate this case with another. On appeal, the Hoesmans raise four issues, which we consolidate and restate as:

1. Whether the trial court improperly granted summary judgment on the Hoesmans’ fraudulent transfer claim;
2. Whether the trial court improperly granted summary judgment on the Hoesmans’ claim that they held a statutory lien on property transferred to Constance and that this lien has priority over a security interest held by Constance; and
3. Whether the trial court abused its discretion in denying the Hoesmans’ motions to amend their complaint and their motions to consolidate this suit with a prior related suit.

Daniel Sheffler, Julia’s husband and a defendant in this suit, also raises the issue of whether the trial court’s denials of the Hoesmans’ motions for leave to amend their complaint and to consolidate are issues properly before this court.

We conclude the trial court’s denial of the Hoesmans’ motions to amend and to consolidate are not properly before this court, and therefore do not address the propriety of these decisions. Concluding that the trial court improperly granted summary judgment in favor of Constance on the Hoesmans’ claims regarding fraudulent transfers and the priority of their lien, we reverse the trial court’s grant of summary judgment and remand for further proceedings.

In Paternity of R.J.S., Robert and Linda Mullen v. Anthony and Mary Stockton, Amanda Stockton, a 9-page opinion, Judge Barnes writes:
Robert and Linda Mullen appeal the dismissal of their petition to establish paternity of R.J.S. We affirm.

Issue. The dispositive issue is whether the Mullens, as alleged paternal grandparents, have standing to seek an order establishing paternity of R.J.S. * * *

The trial court’s dismissal of the Mullens’ petition to establish paternity of R.J.S. was proper because they lack standing to file such a petition.

NFP civil opinions today (5):

Charles Garrido, Jr. v. Key Bank, N.A. (NFP) - "The sole restated issue is whether a release Garrido signed after termination of his employment with McDonald Investments, Inc., absolved him of liability for a Key Bank promissory note that he co-signed. * * *

"Genuine issues of material fact exist with respect to the intended scope of the release Garrido executed. We reverse the grant of summary judgment in favor of Key Bank and remand for further proceedings consistent with this opinion."

Termination of Parental Rights of B.S.; Deborah S. v. Marion County Department of Child Services and Child Advocates, Inc. (NFP) - Termination; affirmed.

Steven C. Dodds and Kellie R. Dodds v. Stephen Hay, et al. (NFP) - "Appellants-plaintiffs Steven C. Dodds and Kellie R. Dodds appeal the judgment entered in favor of appellees-defendants Stephen M. Hay, Nura K. Turner, and John P. Turner (collectively, the appellees) following a bench trial on the Doddses’ complaint against the appellees for declaratory judgment and to quiet title. Specifically, the Doddses raise the following arguments: (1) the trial court erroneously found that they were collaterally estopped from making certain arguments because of an order entered in a 1987 quiet title action; and (2) the trial court erroneously found that the Doddses have failed to establish title to a portion of their driveway encroaching on the appellees’ property by adverse possession or a prescriptive easement. Finding no error, we affirm."

Wayne E. Sinn v. Pen Products, Nancy Broglin, et al (NFP) - "Based on the foregoing, we conclude that Sinn has waived his arguments on appeal by failing to support them with cogent reasoning."

In Kelley Partners, Inc. v. Quailty Oil Company, Inc. (NFP), a 7-page opinion, Judge Kirsch writes:

Quality Oil Company, Inc. (“Quality Oil”) filed a complaint against Kelley Partners, Inc. (“Kelley Partners”) alleging breach of contract. Kelley Partners appeals the trial court’s determination that Indiana had personal jurisdiction over Kelley Partners in this matter, claiming that it did not have sufficient minimum contacts with Indiana and that maintenance of the suit against it offended traditional notions of fair play and substantial justice. We reverse. * * *

We do not believe the contacts in this case are such as to permit Indiana courts to exercise jurisdiction over Kelley Partners. Kelley Partners is not generally engaged in business in Indiana. Its agents did not come to Indiana to offer or negotiate an agreement with Quality Oil. Its contact with the state was initiated by Quality Oil and consisted of interstate phone calls and faxes to place orders with Quality Oil and three visits to Indiana by Mr. Kelley over a ten-year period. Kelley Partners does not have the minimum contacts required to establish personal jurisdiction. Therefore, the trial court erred in its determination that Indiana had personal jurisdiction over Kelley Partners, and Kelley Partners’ motion to dismiss should have been granted. Reversed.

NFP criminal opinions today (11):

Theodore Johnson v. State of Indiana (NFP)

Toby J. Maxwell v. State of Indiana (NFP)

Eric S. Jett v. State of Indiana (NFP)

Jason Burnam v. State of Indiana (NFP)

Travis Ratliff v. State of Indiana (NFP)

Leighann J. Mitchell v. State of Indiana (NFP)

Sharico Devon Blakely v. State of Indiana (NFP)

Yvonne M. Broadnax v. State of Indiana (NFP)

Carissa A. Miller v. State of Indiana (NFP)

Laron W. Edwards v. State of Indiana (NFP)

Anessa B. Bennett v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 20, 2008
Posted to Ind. App.Ct. Decisions

Courts - "Pa. justices won raise for upholding slots law, lawsuit claims"

[Howard Bashman of How Appealing has posted the links to this story and has uploaded the complaint.]

The AP is reporting today:

HARRISBURG -- The League of Women Voters sued Pennsylvania's former chief justice yesterday, alleging that the Supreme Court upheld the state's slot machine gambling law in exchange for approval of a judicial pay raise.

The lawsuit, filed in federal court in Harrisburg, names former Chief Justice Ralph J. Cappy and cites allegations and information provided by unnamed legislators. It says Justice Cappy used secret meetings with legislators to negotiate the ruling on the slots law and pay raises for more than 1,000 judges, including himself and six other Supreme Court justices.

The 17-page lawsuit cites an allegation by an unnamed senator, although it does not say how the senator knows about the alleged deal.

The lawsuit claims Justice Cappy told legislators of one particular caucus during a meeting that "he needed the pay raise to secure the votes of Republican justices" on cases important to them.

Posted by Marcia Oddi on Tuesday, May 20, 2008
Posted to Courts in general

Environment - More on: Appeals filed with OEA over BP air construction permit grant

Updating this ILB entry from May 13th, Gitte Laasby of the Gary Post-Tribune reports today:

BP Whiting's contentious air permit hit another bump in the road Monday. A coalition of environmental groups filed a 37-page appeal with a request to temporarily halt construction. A federal lawsuit is also on the way in the coming weeks.

The coalition said BP and the Indiana Department of Environmental Management failed to account for thousands of pounds of potential emissions from three new flares, and that including them would have required BP to use additional pollution control equipment. The groups also want the permit to regulate greenhouse gases.

Tom Anderson, executive director of Save the Dunes Council, said the groups were disappointed the Indiana Department of Environmental Management wasn't willing to address concerns they raised in public comments.

"We are extremely disappointed to have to take this step, but IDEM's unwillingness to address the environmental community's concerns has forced our hand," Anderson said in a statement. "This is about protecting public health and ensuring that the communities around this facility are not subjected to more air pollution than the law allows."

Save the Dunes filed the appeal along with the Natural Resources Defense Council, the Hoosier chapter of the Sierra Club, the Hoosier Environmental Council, and Highland residents Susan Eleuterio and Tom Tsourlis represented by the Legal Environmental Aid Foundation of Indiana and the Environmental Law and Policy Center. * * *

The NRDC expects to file another appeal in federal court in the coming weeks.

The Calumet Project, a grassroots group from Hammond, and the Global Community Monitor filed the first appeal of the permit on May 10, arguing additional pollution would overburden low-income and minority residents who live near the refinery. The Office of Environmental Adjudication has yet to determine whether the appeal can be accepted because the filing did not include the permit.

Christine Kraly of the NWI Times has this report that begins:
BP Whiting and its controversial air permit face a possible federal lawsuit and a new appeal citing a slew of alleged legal grievances, environmentalists said Monday.

A group of environmental groups and individuals filed an appeal of BP's air permit Monday with the Indiana Office of Environmental Adjudication, the office that reviews Indiana Department of Environmental Management decisions.

The Natural Resources Defense Council filed the petition for administrative review on behalf of the Save the Dunes Council.

Tom Coyne, reporting for the AP, writes:
Three environmental groups are trying to stop BP from continuing its expansion of an oil refinery near Lake Michigan, contending in an appeal yesterday that an air permit granted to the company was improperly granted.
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The Natural Resources Defense Council filed the appeal with the Indiana Office of Environmental Adjudication on behalf of the Save the Dunes Council, the Sierra Club's Hoosier chapter, the Hoosier Environmental Council and two Lake County residents. They argue that the state Department of Environmental Management made factual and legal errors in granting the permit. They also requested that the adjudication office issue a stay on BP's work until it decides on the appeal.

BP PLC began its $3.8 billion expansion at its Whiting refinery within hours of receiving the permit May 1. BP says it was properly obtained.

The Defense Council also announced that it planned to file a federal lawsuit to try to stop the expansion. The Council's senior attorney, Ann Alexander, said the group believes as a national organization that a federal suit was the best forum to argue its case. "We wish none of us had to spend our time this way, but the state has forced us all to continue to fight by failing to fix the serious legal problems we identified in our comments, or even respond meaningfully to them," she said.

BP spokesman Scott Dean said the company is confident its permit will stand up to any challenge.

Robert Elstro, spokesman for the Indiana Department of Environmental Management, said that the permit "meets all applicable state and federal requirements."

Posted by Marcia Oddi on Tuesday, May 20, 2008
Posted to Environment

Ind. Courts - Tippecanoe County Sheriff's Department to list active warrants online

From a story today in the Lafayette Journal Courier:

The Tippecanoe County Sheriff's Department is partnering with a Fort Wayne-based company to list more than 4,000 active felony and misdemeanor warrants online.

The Web site, www.indianasmostwanted.com, started listing warrants issued out of Tippecanoe County about a month ago to test the program, Sheriff Tracy Brown said.

His goal is to encourage the community to assist law enforcement if someone has information about a felon. Listings include details such as date of birth, tattoos and the original charge.

"Technology is constantly growing, and this is another attempt for us to use it to our advantage," Brown said. "We're not asking that the public get involved in making the arrest but to pass information along if they have it."

So far, the sheriff's department has received 18 tips that have helped develop leads. Brown said his agency is considering whether to only list felony warrants.

Posted by Marcia Oddi on Tuesday, May 20, 2008
Posted to Indiana Courts

Ind. Courts - "Setback requirement deals setback to Randolph County courthouse project"

Joy Leiker of the Muncie Star-Press reports today:

WINCHESTER -- The Randolph County Board of Commissioners was denied a zoning variance for its much debated courthouse project Monday night, putting its fall groundbreaking in jeopardy.
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It's the latest of many delays and doubts cast over the renovation and expansion of the 131-year-old courthouse.

The board of zoning appeals voted 5-1 against a request from commissioners to allow a courthouse annex be built less than 25 feet away from the street right of way.

Drawings show the two-story annex to be built on the south side of the courthouse is 10 feet, 4 inches away from the sidewalk. At two points, near the southeast and southwest corners of the proposed building, the distance is even shorter -- just 6 feet, 4 inches.

"I don't know why this community would want the great wall of Winchester to go up," said downtown business owner Ken Madler.

"(It) will destroy the town's square," Winchester businessman Mike Wickersham wrote in a letter that was presented to the board Monday night.

And that's a familiar argument. In January 2005 Wickersham was an organizer of Stop Courthouse Annex Now (SCAN). After four years of twists and turns, the current courthouse plan looks a lot like the old plan.

The resistance returned Monday night. Opponents outnumbered supporters among the 50 who attended the meeting. The crowd included a who's who of Winchester business leaders, as well as all three county commissioners, the county auditor, attorney and courthouse architect and project manager.

Ultimately, the zoning board sided with the majority of those who spoke. Of the five votes against the ordinance, all five cited a rule that a variance can only be approved if it will not "be injurious to the public health, safety, morals and general welfare of the community." Only Charles Addington voted in favor of granting the variance.

When asked by Addington what the county would do if denied the variance, County Attorney John Tanner said commissioners could file a lawsuit to get a court opinion, or file a request with the Area Planning Commission to be rezoned a government property, as opposed to a commercial property.

Posted by Marcia Oddi on Tuesday, May 20, 2008
Posted to Indiana Courts

Ind. Courts - "ACLU suit targets state welfare fixes"

The AP's Ken Kusmer reports today in a widely-published story:

Problems with Indiana’s landmark automation of welfare eligibility have cost some disabled residents food stamps and other benefits they need to survive, the American Civil Liberties Union alleges in a lawsuit that seeks class-action status. * * *

The case was amended Friday in Marion Superior Court in Indianapolis to include members of six households, all residents of the 12-county region where FSSA inaugurated the privatized welfare system by which clients can use the Internet, call centers and fax machines to apply for and renew benefits.

[Gavin Rose, an ACLU of Indiana attorney] said that automation creates obstacles for people with mental disorders and other disabilities, or those with limited schooling, further complicating an eligibility process with dozens of hurdles for each of Indiana’s 1.1 million welfare recipients. * * *

The lawsuit claims FSSA denied or terminated benefits to each of the plaintiffs when the agency was missing some document such as a birth certificate or a medical record – documents that the plaintiffs had delivered previously. In each case, benefits were cut off with a letter citing “failure to cooperate,” with no further explanation.

“You cannot deny someone for ‘failing to cooperate.’ They get this letter, and they have absolutely no idea what they did wrong,” Rose said.

Federal rules bar state agencies from denying food stamps for failing to cooperate, and Medicaid rules require the state to tell clients how they have fallen short, the lawsuit says. The complaint also alleges FSSA violated the Americans with Disabilities Act by not providing needed assistance to disabled clients. The lawsuit seeks an injunction barring the practice.

FSSA Secretary Roob said the problems cited in the lawsuit predate Indiana’s welfare changes. He also said the state would seek to dismiss the case because it restored benefits to the original plaintiffs in the case after they provided the necessary paperwork.

“If they don’t comply with the law, we don’t have a lot of choices,” Roob said.

The problems are rooted in welfare practices that varied from county to county and caused benefits to be lost when a family relocated, Roob said. The automation and other changes that FSSA is making under the IBM-ACS contract are intended to fix that old system.

“We have a fundamentally broken system,” he said. “Anytime you install a new system, you are going to have bumps in the road.”

Posted by Marcia Oddi on Tuesday, May 20, 2008
Posted to Indiana Courts

Ind. Gov't. - "Governor, outgoing AG at odds over successor"

From Tracy Warner's column in the Fort Wayne Journal Gazette:

Though Gov. Mitch Daniels has told fellow Republicans he wants Valparaiso Mayor Jon Costas to be the party’s nominee for attorney general, outgoing AG Steve Carter last week endorsed his chief deputy, Greg Zoeller.

Carter’s announcement was a clear display of independence from the governor, whose endorsement would typically signal an automatic victory. But considering the incumbent’s support for Zoeller – and the support of other prominent Republicans, including, at least according to Zoeller, Congressman Mark Souder – Costas’ nomination may not be in the bag after all.

Some Republicans may well see Daniels’ selection of Costas as an effort for the governor to have his own person in the AG’s office, which could be enough for some independent-minded delegates to vote for anyone else.

Posted by Marcia Oddi on Tuesday, May 20, 2008
Posted to Indiana Government

Monday, May 19, 2008

Courts - SCOTUS upholds municipal bond exemption [Updated]

Pete Yost of the AP is reporting:

The Supreme Court on Monday upheld long-standing state tax exemptions for municipal bonds.

In a 7-2 ruling in a case from Kentucky, the justices permitted states to exempt interest on their own bonds from taxation while taxing residents for interest on bonds issued by other states.

In the $2.5 trillion municipal bond market, 42 states exempt some or all interest on their bonds from income taxes, while taxing interest on bonds from other states.

The states have said that throwing out the system of exemptions that began 90 years ago would have a devastating impact on state finances.

The opinion, by Justice Souter, is Department of Revenue of Kentucky v. Davis.

[Updated 5/20/08] See this Legal Times story by Tony Mauro.

Posted by Marcia Oddi on Monday, May 19, 2008
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In Hawkeye Charter Service, Inc., and Terry Garoutte v. Damax, Inc., and National Flight Service, Inc. (NFP), a 33-page opinion, Judge Crone writes:

Hawkeye Charter Service, Inc. (“Hawkeye”), and Terry Garoutte, collectively, “Appellants,” appeal the trial court’s order granting summary judgment in favor of Damax, Inc. (“Damax”), and National Flight Service, Inc. (“National”). We affirm.

Issues. Appellants raise numerous issues, which we reorganize and restate as follows: I. Whether the trial court erroneously relied upon evidence not properly before it; II. Whether the court abused its discretion by allowing Appellants’ attorney to withdraw his appearance; III. Whether the court abused its discretion by not granting an extension of time to Appellants’ new counsel to respond to summary judgment motions filed by Damax and National; IV. Whether the court erred in finding Garoutte personally liable to Damax and National; V. Whether the court erred by concluding that Hawkeye and Garoutte are liable under a theory of conversion, rather than contract breach; and VI. Whether a hearing held twenty-four days after Damax filed its motion for entry of final judgment precluded Appellants from having thirty days in which to respond.

Victor and Patsy Zelinsky, and North Side Carry Out v. First Farmers Bank & Trust (NFP) - "Based upon the foregoing analysis and discussion, we conclude that the trial court properly entered summary judgment in favor of Bank. Further, we conclude that Appellants failed to establish any prejudice in support of their claim that the trial court’s judgment was improperly premature, and that there was insufficient evidence presented as to attorney fees. Accordingly, we remand this case to the trial court on the issue of attorney fees only, with instructions to request the parties to present additional evidence for an accurate determination of the award. Affirmed in part, reversed in part, and remanded."

NFP criminal opinions today (2):

Corey Deshawn Priest v. State of Indiana (NFP)

Sharon Yates v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, May 19, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Lawsuits dismissed as fast as inmates can file them"

Joe Carlson reports today in the NWI Times in a story that begins:

Though nearly all of them fail, new civil rights lawsuits against the Lake and Porter county jails continue to flow into the courts.

Federal judges are being asked to investigate the gritty minutia of jail life, everything from whether poor prisoners should be given tooth brushes to whether it's unconstitutional to make inmates sleep in their own bodily filth.

Just this week, a group of four inmates with Chicago lawyers filed a class-action lawsuit against the Lake County Jail, claiming they're exposed to each other's vomit, blood and excrement because of drug withdrawals, fights and inadequate toilet facilities in overcrowded holding cells.

It remains to be seen whether this latest lawsuit will fare differently than the dozens that came before it.

Since August, inmates at the Lake and Porter county jails have filed a total of 39 lawsuits against jailors in U.S. District Court in Hammond.

A Times review of all of the lawsuits found that most have failed. Twenty-six have been tossed out of court for various reasons, from failing to pay the filing fees to inability to show inmates suffered any actual harm.

Of the 13 suits still pending, 11 are waiting for the counties to file answers to the claims or for judges to rule on the counties' answers.

Just two of the 39 have received a judge's approval to move into actual litigation.

Unlike most typical civil lawsuits, cases from inmates are reviewed by judges before advancing to even initial stages, weeding out those deemed to be frivolous or not in compliance with basic standards.

Both of the cases that survived the judges' initial reviews are against the Lake County Jail.

Posted by Marcia Oddi on Monday, May 19, 2008
Posted to Ind Fed D.Ct. Decisions | Indiana Courts

Ind. Decisions - Supreme court to hear David Camm case and Steuben County official's sex case this week

"David Camm case goes before Indiana high court" was the headline to this story by Ben Zion Hershberg in Sunday's Louisville Courier Journal. Some quotes:

Nearly eight years after David Camm's family was murdered at their Georgetown, Ind., home, the state Supreme Court will hear arguments this week on whether the jury that convicted Camm of the killings should have been told more about a co-defendant.
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The playing field at Camm's 2006 Warrick County murder trial, his second in the case, was overwhelmingly slanted against him in part because the defense couldn't delve into the criminal background of co-defendant Charles Boney despite the unchallenged evidence that he was at the murder scene, said appeal lawyer Stacy Uliana.

Uliana, who will present the case for Camm on Thursday in Indianapolis, also said the appeal will challenge why Floyd County Prosecutor Keith Henderson was allowed to argue to the jury, based on little or no evidence, that Camm murdered his family to cover up molestation of his 5-year-old daughter. * * *

But Steve Creason, the deputy attorney general who will argue for the prosecution, said there was evidence to support Henderson's molestation point and that Boney's past was properly withheld from the jury.

"Official's sex case going before Indiana Supreme Court" was the headline to an AP story published Sunday in the Chicago Tribune. Some quotes:
ANGOLA, Ind. - The Indiana Supreme Court will hear arguments Thursday in a case that could determine whether a township trustee should be liable for an employee's sex crimes committed in conjunction with his job.

A Steuben Circuit Court judge had ruled that Camille Clark, who served as trustee for Pleasant Township in northeast Indiana, could not be held responsible for crimes committed by her husband, who served as deputy trustee. Judge Allen Wheate said the crimes and the job were not closely enough related.

A lawsuit the victim filed in March 2005 was decided by summary judgment for Clark but was overturned late last year by the Indiana Court of Appeals. It was returned to the Steuben County courts to be scheduled for a jury trial, and the case was transferred to the state's top court.

If the justices side with the victim, a jury trial must be scheduled in the Steuben Circuit Court. * * *

Some state organizations representing businesses and public officials have sided with Camille Clark, including the Indiana Chamber of Commerce, the Indiana School Boards Association, the Indiana Association of Public School Superintendents, the Indiana Association of Cities and Towns and the Insurance Institute of Indiana.

"These are organizations that are very interested in the state of the law as it affects them," Camille Clark's attorney, Robert Keen Jr. of Carson Boxberger in Fort Wayne, said in a story published in the Herald-Republican.

Keen said if the case is tried, the outcome could affect other sectors dealing with public employees. Opponents of the case going to trial said in court documents that insurance rates could "skyrocket."

Wheeler said the case should be given its day in court. He has been joined by the Indiana Trial Lawyers Association, which contends a jury should be given the opportunity to hear a case when there is a question whether the person's employment and the criminal acts were associated.

Posted by Marcia Oddi on Monday, May 19, 2008
Posted to Upcoming Oral Arguments

Ind. Decisions - Upcoming oral arguments this week [Updated]

This week's oral arguments before the Supreme Court:

This Thursday, May 22nd:

9:00 AM - David Camm v. State - Following retrial, by jury, in the Warrick Superior Court, Camm was convicted of three counts of murder in the killing of his wife and their two children. The jury recommended a sentence of life imprisonment without parole, and the trial court sentenced Camm accordingly. In this direct appeal of the conviction and sentence, Camm raises several issues concerning the evidence and the manner in which the trial court conducted the trial. Attorneys for Camm: Stacy Uliana, Indianapolis, IN; Katharine Liell, Bloomington, IN. Attorneys for State: Stephen Creason, Kelley Miklos, Indianapolis, IN. Attorney for Amicus: F. Thomas Schornhorst, Oxford, MS. [Here is a list of ILB entries on the David Camm case.]

9:45 AM - Debra Barnett v. Camille Clark - Debra Barnett filed a complaint against the Trustee of Pleasant Township alleging the Trustee was liable for the sexual misconduct of her employee under the doctrine of respondeat superior. The trial court entered summary judgment for the Trustee. The Court of Appeals reversed, concluding whether the employee was acting within the scope of his employment was an issue of fact. Barnett v. Clark, 877 N.E.2d 839 (Ind. Ct. App. Dec. 11, 2007), vacated. [See ILB summary here.] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over this appeal. Attorney for Barnett: Christopher Wheeler, Angola, IN. Attorneys for Clark: Robert Keen, Jr., Kelly Pautler, Fort Wayne, IN. Attorney for Amici Curiae Indiana Chamber of Commerce, et al.: Thomas Wheeler, Indianapolis, IN.

[Note - The Supreme Court's calendar and webcast sites have been out of order this weekend and continue to be so this morning.]

[Update at 10:41 AM - the Court's calendar is still unavailble, but the webcast site is now back online.]


Webcasts will be available here.


This week's oral arguments before the Court of Appeals:

This Wednesday, May 21st:

2:00 PM - Chanelle L. Alexander vs. Marion County Sheriff and the Commissioner of the Indiana Department of Administration - Appellants-Plaintiffs filed a complaint claiming that the Appellees-Defendants did not have the constitutional or statutory authority to enter into contracts for the provision of collect telephone call services to the Marion County jail and Indiana Department of Correction facilities. The trial court granted summary judgment in favor of the Appellees-Defendants, concluding that the Appellees-Defendants could enter into the contracts under the statutory authority granted them to operate and maintain their respective facilities. The trial court also concluded that the rates charged were reasonable. The Scheduled Panel Members are: Judges Friedlander, Robb and Mathias. [Where: Indiana Court of Appeals Courtroom]

This Thurssday, May 22nd:

11:30 AM - Susana Henri v. Stephen Curto - Appellant-Plaintiff, Susan Henri (Henri), appeals the trial court's judgment in favor of Appellee-Defendant, Stephen Curto (Curto), finding that Curto did not rape her, and awarding him $45,000 on his counterclaim for tortious interference with contract. Henri asserts that certain improprieties occurred with jury and that certain juror questions during deliberation were not properly handled. Henri also asserts that Curto did not prove the elements of causation or the absence of justification to support his counterclaim that Henri had intentionally interfered with his contract with Butler University, resulting in his four-year suspension from that school. Curto asks for an award of fees on appeal alleging that Henri has repeatedly defamed him in her Appellant's Brief. The Scheduled Panel Members are: Chief Judge Baker, Judges Riley and Robb. [Where: Indiana Supreme Court Courtroom - To Be Webcast]

1:30 PM - Michael Lukis, et al vs. Dean Ray, et al - The Appellant purchased an end lot on a cove on Lake James causing severe lake access problems to Appellees. The Scheduled Panel Members are: Chief Judge Baker, Judges Riley and Robb. [Where: Indiana Court of Appeals Courtroom]

Posted by Marcia Oddi on Monday, May 19, 2008
Posted to Upcoming Oral Arguments

Sunday, May 18, 2008

Courts - More on "California Supreme Court says same-sex couples have right to marry"

The California Supreme Court decision Thursday finding that gays and lesbians have a constitutional right to marry in California (see ILB entry here) has led to two stories giving an Indiana take on the decision.

Mike Smith of the AP wrote May 16th:

INDIANAPOLIS - A California Supreme Court ruling allowing same-sex couples to marry in that state has renewed debate on whether Indiana should amend its constitution to ban gay marriage. * * *

Rep. Scott Pelath, D-Michigan City, who helped kill a prolonged, legislative effort aimed at amending the state constitution with a ban on same-sex marriage, noted that state law already bans gay marriage and that law was upheld by the Indiana Court of Appeals. * * *

Massachusetts in 2004 became the first and so far only state to legalize gay marriage. Twenty-six states have approved constitutional amendments banning same-sex marriage.

Doing the same in Indiana has been a contentious issue since 2004, when the Republican-controlled Indiana Senate passed a resolution to begin the process of amending the constitution to ban gay marriage. Democratic Rep. Patrick Bauer of South Bend, who was speaker at the time, denied attempts by Republicans to advance or even debate the resolution in the House.

Bauer said state law already banned gay marriage and said House Republicans were simply trying to create a false crisis and a divisive campaign issue. He has repeatedly made similar statements since.

Amending the state constitution requires a resolution to pass two consecutive, separately elected General Assemblies and then win approval in a statewide vote.

When Republicans controlled both chambers in 2005, they approved a constitutional resolution to ban gay marriage. But it still needed to gain passage in both chambers again in 2007 or 2008 and then be voted on by the people in the 2008 general election.

Democrats regained control of the House in late 2006 and Bauer became speaker again. In the 2007 session, Pelath gave the resolution a committee hearing after it had passed the Senate. The panel voted 5-5 on the resolution, so it failed to pass.

Some who voted against it said they were concerned about unintended consequences on domestic partner benefits or domestic violence statutes. Several Indiana companies have also spoken out against the proposal, saying it would send a message to prospective employees that Indiana is not welcoming or inclusive. [ILB - See note below.]

The Senate passed the resolution again this past session, but Pelath refused to give it a hearing. That meant the process of amending the constitution with a gay marriage ban would have to start all over again.

If a constitutional ban is passed in the 2009 or 2010 sessions, it would also have to pass again in either 2011 or 2012 to be eligible for a statewide vote in November 2012.

House Minority Leader Brian Bosma, R-Indianapolis, said the California ruling underscored a concern many lawmakers have about a handful of judges being able to decide one of the most fundamental elements of our social fabric instead of elected lawmakers and the people. He said his caucus still stands firmly for a constitutional ban on gay marriage.

Mary Beth Schneider of the Indianapolis Star reported May 17th:
As chairman of the Rules Committee, Rep. Scott Pelath, D-Michigan City, decided this year not to give the amendment a hearing, let alone a vote.

He said the California decision hasn't changed anything. He said he still thinks the amendment is not needed and that the issue of same-sex marriage is always going to be used as an election-year club.

"Folks want to bring up this issue because then they don't have to talk about the economy and gas prices," Pelath said.

But, he added, "never at any time in the history of the state have we set our compass by California."

Legal scholars said they still don't expect Indiana courts to do that.

Republican Gary Welsh, an Indianapolis attorney who runs a blog called Advance Indiana, said Indiana's courts use a very different and much tougher standard to determine the constitutionality of a law than California's courts do. Here, he said, the court is very deferential to the legislature. [See the blog entry here.]

Besides, he said, the 2005 Court of Appeals decision found no fundamental right to marriage in Indiana's Constitution -- a completely different finding than in California.

Daniel Conkle, a law professor at Indiana University-Bloomington, said Indiana's courts traditionally have been more cautious than those in California and some other states.

While Indiana's high court "theoretically" could rule in some future case that same-sex marriage is legal in Indiana, Conkle said, "I'd say it's unlikely."

See a list of ILB entries on the Court of Appeals decision in the case of Morrison v. Sadler here, and particularly this entry from Feb. 18, 2005, headed "Gay marriage ruling wll not be appealed to Supreme Court."

As recently as May 7th, in this ILB entry headed "Michigan Marriage Amendment Nixes Domestic Partners Benefits", problems have come to the forefront in other states with the language of constitutional amendments attempting to go beyond simply banning gay marriage.

Posted by Marcia Oddi on Sunday, May 18, 2008
Posted to Courts in general

Ind. Decisions - Still more on: Federal court grants preliminary injunction re judicial speech rights

Updating this ILB entry from May 10th, quoting a Fort Wayne Journal Gazette editorial urging free speech for judges, Rebecca S. Green of the Journal Gazette has a lengthy story today giving a kind of overview of the issue. Some quotes:

The rules governing what potential judges can say and what opinions they can express during a political campaign again came under fire during this primary season.

And though a federal judge issued a temporary ruling prohibiting the state from disciplining judicial candidates for what they said during the campaign, the issue – which could affect candidates in future runs for the state’s benches – is far from resolved.

The U.S. Constitution gives you the permission to say just about anything you want, barring, of course, yelling “fire” in a movie theater, but what if you are running for office?

If you want to be a judge, can you say that you won’t keep a drunken driver from serving time in jail? That you are opposed to the death penalty, even though your state allows it? What about your belief on whether abortion should be illegal?

In Indiana, under what are called the “pledges and promises” and “commits” clauses in the canons that govern the conduct of judges in Indiana, it appears you cannot. A judicial candidate can be disciplined by the state for making promises about future conduct in office if elected.

To Terre Haute-based attorney James Bopp, well-known for handling free-speech cases and campaign cases in other states and representing the plaintiff in the most recent case, those rules violate a candidate’s right to free speech.

But Washington, D.C.-based attorney George Patton Jr., representing Indiana’s judicial qualifications commission, says those rules prevent the state’s judiciary from turning into just another political branch of government. * * *

“The (Indiana) judicial establishment is essentially defying the (U.S.) Supreme Court,” Bopp said. “They do not want judicial candidates announcing their views, stating what their general judicial philosophy is; … they are using other canons other than the announce clause to prohibit the same thing, and that is announcing their views.”

This issue goes to the heart of the kind of judiciary the state will have, Bopp said.

By allowing judicial candidates to voice their opinions, the electorate will be able to pick the types of judges it wants based on the views they hold, and then keep them accountable.

Patton, however, believes the state’s rules are different from the ones struck down by the Supreme Court.

Judicial candidates can say they are pro-life or pro-choice, that they are tough on crime, Patton said. But they cannot talk specifically about those opinions or what they would do about specific cases, he said.

“Judges should bring an open mind to the bench,” Patton said. “They should hold the balance without tipping it to one side or another. That’s a different function than an executive or a legislator might do.”

Judges should decide cases based on the facts and the law, rather than their personal opinion, he said.

And when candidates voice their opinions about specific issues, they are in a way committing a kind of electoral fraud, Patton said.

“You’re encouraging judicial candidates to make statements, and they will probably never be able to deliver on them from the bench because they will have to follow the law,” he said. * * *

Just hours before the May 6 Indiana primary, U.S. District Judge Theresa Springmann in Fort Wayne granted a preliminary injunction in favor of Indiana Right to Life, prohibiting the Commission on Judicial Qualifications and the Indiana Disciplinary Commission from initiating disciplinary proceedings against judicial candidates who responded to the election questionnaire ***.

As noted in the May 10th ILB entry, in understanding the Indiana Supreme Court position on its judicial rules, it is useful to review the detailed Indiana Right to Life Questionnaire.

Posted by Marcia Oddi on Sunday, May 18, 2008
Posted to Ind Fed D.Ct. Decisions

Ind. Law - Plain old-fashioned billboards and digital billboards

Plain old-fashioned billboards. This ILB entry from January 19. 2008, headed "Billboards will be history" - agreement filed Friday in Superior Court", began:

See this ILB entry from May 3, 2006 on the denial of the petition for rehearing in Metropolitan Development Commission of Marion Co. v. Pinnacle Media, LLC for background. Here is a long list of all ILB entries referencing Pinnacle Media.
Friday, May 16th the Indianapolis Star ran this story by Kevin O'Neal and John Strauss headed "Billboards cut down to size: 2 years after court ruling, 1st of 10 interstate signs labeled 'litter on a stick' coming down," that began:
More than two years after the state's highest court said a county ordinance was correct in banning advertising billboards along interstate highways, the first of the 10 signs in Indianapolis is close to being removed.

First to go, according to the mayor's office, will be a sign in the 1300 block of Lewis Street, next to the ramp from the "spaghetti bowl" to eastbound I-70. Work to remove it began Thursday.

The other billboards will be removed within the next few days, according to Jessica Higdon, deputy press secretary for Mayor Greg Ballard.

The signs went blank in late November after a court ordered their removal.

The billboards were first ordered removed in December 2005, when the Indiana Supreme Court ruled that a county ordinance was passed in time, during the administration of then-Mayor Bart Peterson, to prevent Pinnacle Media from erecting the signs. The ordinance was passed in 2003, as the advertising company was planning to install the billboards.

Pinnacle has gone out of business, and an attorney for the company said that happened because the company lost the revenue the signs would have generated."

Digital billboards. Digital billboards are something else entirely. Here is an Aug. 2, 2007 ILB entry about Kentucky and Indiana. Here is another entry, from Dec. 26, 2007.

Jeff Swiatek of the Indianapolis Star wrote May 8th:

Billboard giant Lamar Advertising Co. proposes to install the first two electronic digital billboards in Indianapolis, but its request for a needed zoning variance faces stiff opposition.

An anti-billboard group promises to fight the zoning filing, and the city planning staff recommends denial, in part because of concerns the billboard's ever-changing ads would distract drivers.
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Lamar, which is based in Baton Rouge, La., and maintains 620 advertising signs in the Indianapolis area, wants to convert two of its most prominently located billboards into digital displays. They are on 82nd Street in front of the Fashion Mall, Keystone at the Crossing, and along I-465 near the East 46th Street overpass.

The digital signs would be the same size as regular roadside billboards -- 14 by 48 feet -- but they cost more than $400,000 to build and use LED lighting to create static advertising displays or messages that can change every 10 seconds.

Indianapolis' sign ordinance currently prohibits digital billboards. To try to win support from local zoning boards, Lamar is playing up the billboards' public service value.

Because they're remotely controlled by computer and can hold dozens of displays, the digital boards can easily be used to post public service ads and make emergency announcements, such as Amber Alerts for missing children or weather warnings, said Chris E. Iverson, Lamar's general manager in Indianapolis.

Carrying public-service ads and flashing warnings to the public on the digital signs "is part of our business model," Iverson said. "That's one of the things we're discussing" with the city, he said.

The digital billboards' ability to double as public bulletin boards doesn't make them more endearing to Tom Williams, president of Citizens Against Billboard Blight in Indianapolis. "It's a come-on. There is no guarantee they are going to do it," he said. "That's just a ploy to say, 'We're doing something good for you.' "

Lamar's request comes after the Indiana General Assembly last year approved digital billboards along state roads and interstates.

Since then, five digital signs have been built in counties surrounding Indianapolis, said Iverson. Two are along I-65 in Johnson County, and the others are on Ind. 67 in Mooresville, along I-70 in Hendricks County and on I-69 in Hamilton County.

Lamar operates the new digital billboard in Hamilton County and one of the two in Johnson County. During the Indiana primary election Tuesday, Lamar flashed updates on election returns on its digital billboards across the state, Iverson said.

Clear Channel Outdoor of Phoenix, which owns the new digital billboard in Hendricks County, has an agreement with the FBI to carry its "most wanted" listings on its digital boards around the country. Since last fall when the FBI lists began running on Clear Channel boards, they have generated tips leading to arrests of six suspects, said Clear Channel spokesman Tony Allwin.

Williams said his group will fight Lamar's requests on the grounds digital billboards are more distracting to drivers and are environmentally unfriendly because they consume more electricity than regular boards and emit a loud hum from fans.

"If you're on a boat or kayak on White River, you'll be able to hear it," he said of the proposed digital board at 82nd Street and White River.

The digital board would replace a Lamar "tri-vision" billboard that uses mechanically operated prisms to display three messages in succession.

City zoning staff recommends the zoning board deny Lamar's request for a digital board on 82nd Street in part because it's a heavily trafficked road where "any distraction, like trying to read a difficult-to-read message (or) . . . waiting for the next message would increase the likelihood of rear-end collisions."

Billboard companies cite several academic and state transportation department studies that conclude digital billboards don't cause increased traffic accidents. Iverson said the billboards also emit only "negligible" noise from their fans.

On May 9th, the Star reported that: "The Indianapolis zoning board has postponed until June 12 a vote on a variance request by Lamar Advertising to build an electronic digital billboard at East 82nd Street and White River.."

See stories from Milwaukee and Pittsburgh.

Posted by Marcia Oddi on Sunday, May 18, 2008
Posted to Indiana Law

Ind. Law - Valpo Law's "nontraditional" law graduates

A story today by Amy Lavalley of the Gary Post-Tribune begins:

VALPARAISO -- Jeffery Earl and JoBeth Cruz joined about 140 classmates Saturday at the commencement ceremony for the Valparaiso University School of Law.

Earl, 37, and Cruz, 46, fit into a niche group of their class. Over a five-year period, from 2002 to 2007, an average of 27 percent of the law class was comprised of non-traditional students, or those 26 and over.

The ILB suspects the percentage at IU Law-Indianapolis at least matches Valpo's 27%.

Posted by Marcia Oddi on Sunday, May 18, 2008
Posted to Indiana Law

Ind. Decisions - "Ind. Supreme Court tosses conviction in Gary shooting"

The Supreme Court reversal May 13th in the case of Andrew Lee Watts v. State of Indiana (see ILB summary here - 2nd case) was the subject of a story Thursday by Patrick Guinane of the NWI Times. Some quotes:

A former FBI informant implicated by multiple witnesses in the slaying of a man in a Gary tavern five years ago could soon walk out of prison.

A divided Indiana Supreme Court threw out the voluntary manslaughter conviction against Andrew L. Watts Tuesday, citing trial error by Lake County Superior Court Judge Salvador Vasquez. The 3-2 ruling erases a 47-year prison sentence, and Watts appears close to completing a six-year stint for an accompanying criminal recklessness conviction.

"At present, Watts, who three witnesses say killed one person and wounded another, stands convicted only of criminal recklessness, with a six-year sentence that has already been served if good time credit has been earned -- and in any event will expire in one year," Justice Theodore Boehm complained in a dissenting opinion. "It is at least significantly likely that this will be the end of the matter."

At issue is Vasquez's decision to allow prosecutors, who originally sought a murder conviction, to provide jury instructions on the charge of voluntary manslaughter over the objection of Watts' attorneys.

When a defendant is charged with murder, voluntarily manslaughter is not an option unless there is mitigating evidence that suggests the crime was committed in the heat of the moment, which did not happen at Watts' trial.

"The trial court erred when it instructed the jury on voluntary manslaughter in the absence of evidence of sudden heat in the record," Justice Frank Sullivan Jr. wrote in the majority opinion. "Therefore, Watts’s conviction for voluntary manslaughter is reversed."

Justice Boehm wrote that a voluntary manslaughter conviction in Indiana is equivalent to an acquittal of murder, which he said leaves prosecutors powerless to bring a new murder charge. Watts can be retried for voluntary manslaughter, but Boehm said the absence of "sudden heat" evidence at the first trial makes a conviction unlikely.

Posted by Marcia Oddi on Sunday, May 18, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court hears arguments on retroactive broadening of sex offender-registry requirements

As noted at that end of this ILB entry from May 15th:

The Indiana Supreme Court heard oral arguments at 9:45 am today [Thursday] in two challenges to the registration requirement of the sex offender law. See the writeup from Monday's ILB entry. Watch the oral argument webcast in Todd Jensen v. State & Richard Wallace v. State here.
Friday, May 16th, Niki Kelly of the Fort Wayne Journal Gazette reported on the arguments. Here are some quotes:
Attorneys for two convicted child molesters argued before the Indiana Supreme Court on Thursday that legislators violated the Indiana Constitution when they retroactively broadened a law regarding sex offender-registry requirements.

Todd Jensen pleaded guilty in 2000 in Allen Superior Court to one count of vicarious sexual gratification and one count of child molesting.

He served his three-year prison term and completed another three years of probation. He was also required under a separate state law at the time to register as a sex offender for 10 years.

But in 2006, he was notified by the Allen County Sheriff’s Department that he was now considered a sexually violent predator and would have to register for life. This includes checking in with the department every 90 days and submitting to house visits by authorities several times a year.

Jensen has not been convicted of any new crime, but the legislature decided in 2006 to change the definition of sexually violent predator. A judge is no longer required to have expert evaluations to make that determination. Instead, anyone convicted of a specified list of sexual offenses was automatically shifted to the status of sexually violent predator and the lifetime registry.

“The state says the registry is civil in nature,” attorney Randy Fisher of Fort Wayne said. But he noted that each year the legislature adds or changes requirements of the registry. “There has to be a threshold. It is clearly punitive.”

Fisher represents Jensen, who in 2006 asked for a determination from a local judge on his registration status and was found under the new law to be a sexually violent predator. But the Indiana Court of Appeals ruled in December that the law violated ex post facto prohibitions in the state and federal constitutions.

Specifically, the court found that the new law retroactively changed the elements or facts required to find Jensen a sexually violent predator.

The Indiana Supreme Court vacated that decision and took the case up Thursday along with a similar one out of Marion County.

More from the story:
The case is the latest battle over whether lawmakers have been too aggressive in their desire to monitor convicted sex offenders.

On Tuesday, the Indiana Court of Appeals ruled that the state cannot force convicted sex offenders who live near schools or other places frequented by children to move if they owned their homes before passage of a state law restricting their residency.

The court said Tuesday that the 2006 law – that prohibits convicted sex offenders from living within 1,000 feet of a school, public park or youth program center – was an unconstitutional ex post facto law in that it punishes sex offenders for behavior that wasn’t illegal when it was committed.

The crux of Thursday’s argument was whether the state’s sex offender registry is punitive in nature or increases punishment for old crimes.

“The intent isn’t to attach additional punishment,” said J.T. Whitehead, who appeared on behalf of the Attorney General’s Office. “It is to put the rest of us on notice and make it easier for police to track these offenders.”

But Fisher said the registry requires those convicted to take affirmative steps – sign up, provide information, pay fees and carry ID at all times – and if they don’t they can be charged with a criminal violation.

“They are like additional conditions of probation and sentence, and it never ends,” said Kathleen Sweeney, an attorney representing the defendant in the Marion County case.

At one point, Justice Theodore Boehm asked Whitehead whether it is unfairly burdensome to require someone who has had no contact with the criminal justice system for years to suddenly fall under new requirements as a result of a decades-old conviction.

“What about basic fairness,” Boehm asked. “Isn’t there something wrong with that picture?”

Whitehead responded, “How the process feels isn’t important” under previous U.S. Supreme Court rulings.

Posted by Marcia Oddi on Sunday, May 18, 2008
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions

Saturday, May 17, 2008

Ind. Gov't. - AG Carter endorses Zoeller, Gov. endorses Costas for Attorney general

See the story by Andy Grimm of the Gary Post-Tribune here.

Posted by Marcia Oddi on Saturday, May 17, 2008
Posted to Indiana Government

Ind. Courts - "Former Dubois judge sworn in" to seat on the Court of Appeals

Bryan Corbin of the Evansville Courier & Press reports on the ceremony yesterday in a story that begins:

In a ceremony that simultaneously was solemn and light-hearted, Judge Elaine B. Brown of Dubois County was sworn in Friday as the newest judge of the Indiana Court of Appeals.

After 15 years as judge of Dubois Superior Court and 11 more in private practice, Brown now joins the appeals court, the state's second-highest court.

Gov. Mitch Daniels praised Brown's experience, both on the bench and as a litigator, during her swearing-in in the ornate courtroom of the Indiana Supreme Court.

Attorneys, judges and Brown's family and friends looked on as Brown's daughter and son, Marissa Brown Zimmer and Gordon Brown, draped the black judicial robe over her shoulders.

Brown, 54, of Jasper, Ind., served as trial court judge from 1987 to 1998 and again from 2005 to earlier this year. She founded Dubois County's drug court, an 18-month intensive treatment program for defendants with alcohol and drug addictions.

In between her years on the bench, Brown was an attorney — first in private practice in Jasper, then as a senior attorney with Fine & Hatfield in Evansville.

Here is the Court's press release. It includes a link to watch a video of the 5/16/08 robing ceremony.

Posted by Marcia Oddi on Saturday, May 17, 2008
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending May 16, 2008

Here is the Indiana Supreme Court's transfer list for the week ending May 16, 2008.

There were three transfers granted this week: Villas West II of Willowridge Homeowners Assn. Inc. was granted with opinion - see ILB entry here from May 15th.

Margaret R. Smith and Darrell G. Smith v. JP Morgan Chase Bank and Litton Loan Servicing, a Jan . 22, 2008 COA where the Court upheld an $8 million judgment that Conseco Inc. won against former director James D. Massey.

State of Indiana v. Adam L. Manuwal - see ILB summary of the 2-1 COA opinion here, from Nov. 28, 2007, which began: "Today we have the occasion to decide whether the trial court correctly determined that a driver of an all terrain vehicle (ATV) should not be prosecuted for driving under the influence of alcohol on his own property pursuant to Indiana Code sections 9-30-5-1 and –2, the statutes governing the offense of operating a vehicle while intoxicated."

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 Saturday, May 17, 2008
Posted to Indiana Transfer Lists

Friday, May 16, 2008

Ind. Decisions - Court of Appeals issues 7 today (and 12 NFP)

For publication opinions today (7):

In Frederick W. Dennerline, III and Fillenwarth, Dennerline, Groth & Towe v. Jim Atterholt, Insurance Commissioner of the State of Indiana as Liquidator of Indiana Construction Industry Trust (ICIT), a 37-page opinion, first note footnote 1, which provides:

Because attorney Dennerline’s liability is coextensive with that of his law firm, we refer to them interchangeably as “Dennerline” in this opinion. See Ind. Code § 23-4-1-13 (“Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.”).
Judge Crone writes:
Frederick W. Dennerline, III, and his law firm, Fillenwarth, Dennerline, Groth & Towe (“Dennerline”), appeal from a general jury verdict and judgment in favor of Jim Atterholt, Insurance Commissioner of the State of Indiana (“the Commissioner”), on the Commissioner’s complaint against Dennerline for legal malpractice that resulted in the liquidation of the Indiana Construction Industry Trust (“ICIT”) and $17,991,043 in unpaid healthcare bills for ICIT’s beneficiaries. We affirm. * * *

MAY, J., concurs.
DARDEN, J., concurs and dissents with separate opinion. [which begins] I fully concur with the majority in all respects except for Issue VI; I respectfully dissent from their conclusion on that matter. Essentially, I am unable to support the approval of what I believe to be a windfall to a State agency.

For background on this case, start with this ILB entry from Sept. 3, 2006, headed "More on: $18 million Marion County jury verdict against local law firm."

Daisy Farm Limited Partnership v. Michael Morrolf and Jill Morrolf - "In summary, we conclude that the trial court did not err in concluding that riparian rights could be determined by extending the property lines of the lots into Lake Tippecanoe. We further conclude that the trial court erred in determining as matter of law that Daisy Farm and its predecessors were prohibited from acquiring a portion of Lot 13 on the basis that they, along with other Cripplegate owners and the general public, had the right to use northern portions of the lot as a thoroughfare and/or beach area. The trial court was required to determine whether Daisy Farm and/or its predecessors in title exerted sufficient control, intent, notice, and duration in addition to the permitted use under the easement. Finally, we conclude that the trial court erred in not considering whether Daisy Farm and its predecessors substantially complied with Ind. Code § 32-21-7-1.5 We reverse and remand for further proceedings consistent with this opinion, with instructions that the trial court make determinations based upon the evidence already presented. Reversed and remanded with instructions."

Eugene A. Terrell v. State of Indiana - "It is clear from the transcript and written order, then, that the trial court’s reason for revoking Terrell’s probation was based exclusively on Terrell’s admitted violations of his probation conditions. Accordingly, the court did not err in revoking Terrell’s probation."

Wesley H. Fueger v. Case Corporation, et al. - "The trial court erred by excluding the affidavit of Fueger’s expert. The opinions offered were not subject to a Daubert analysis, but were based upon specialized knowledge. Consequently, the trial court also erred by granting summary judgment in favor of Case because of the existence of a genuine issue of material fact. Reversed and remanded."

James H. Helton, Jr. v. State of Indiana - "Given Helton’s trial counsel’s misunderstanding of the law which applies to this available and dispositive defense, he could not have given Helton competent advice on whether to plead guilty, and his performance fell below an objective standard of reasonableness. And had trial counsel filed a motion to suppress, the trial court would have been compelled to grant that motion, and the State would have likely been obliged to dismiss the charges against Helton. The burden to prove “a reasonable probability of acquittal” in making an ineffective assistance of counsel claim after pleading guilty is an onerous one. See Segura, 749 N.E.2d at 503. It is rare that we reverse the denial of a petition for post-conviction relief on these grounds, but Helton has satisfied that burden here. Helton has satisfied both prongs set out in Strickland. The law is with Helton, and, thus, we reverse the post-conviction court’s order. Reversed."

Michael A. Hoose and Darlene S. Hoose v. William H. Doody & Judith A. Doody - "However, evidence specific to the shoreline is required to establish that the Hooses have the right to exclude other residents of the subdivision from building piers along the shoreline of the Disputed Area. The Doodys claimed that the Disputed Area was a dedicated park available to all residents, including access for placements of piers. Thus, while Mr. Hoose testified that his family first built a pier in 1952 and has maintained it to the present, such evidence is not relevant as to whether other residents were on notice that Hooses intended to exercise exclusive control of the shoreline. Accordingly, we conclude that the Hooses have not preserved their prescriptive easement claim by presenting an adverse possession argument to the trial court. Based on the foregoing, we affirm the trial court’s judgment. [There is a lengthy dissent.]

Matthew Forgey v. State of Indiana - "In sum, the trial court did not abuse its discretion by denying Forgey’s request to wear his Marine Corps uniform at trial, excluding statements relating to the primary victim’s former employment and alleged former drug use, or excluding the taped statement of the secondary victim recorded shortly after the conclusion of the ordeal. Furthermore, the trial court adequately considered the proposed sentencing factors and Forgey’s sentence was appropriate. The judgment of the trial court is affirmed."

NFP civil opinions today (1):

The Indiana State Board of Nursing v. Jerome August Cerny (NFP) - "The Indiana State Board of Nursing (“the Nursing Board”) appeals a trial court judgment declaring unlawful the Nursing Board’s summary suspension of Jerome August Cerny’s nursing license and awarding Cerny damages and attorney’s fees. We reverse.

"Issue. The dispositive issue is whether the trial court erred in concluding that the Nursing Board’s summary suspension of Cerny’s nursing license constituted an unlawful deprivation of his due process rights."

NFP criminal opinions today (11):

Joshua D. Burdine v. State of Indiana (NFP)

Stephen W. Schmidt v. State of Indiana (NFP)

Ayron Saylors v. State of Indiana (NFP)

Stacy Hart v. State of Indiana (NFP)

Demitrius Taylor v. State of Indiana (NFP)

Ryan Neal Simmons v. State of Indiana (NFP)

Kawanno Hughes v. State of Indiana (NFP)

Charles David Hunter v. State of Indiana (NFP)

Paul A. Lucas, III v. State of Indiana (NFP)

Robert Whitehead v. State of Indiana (NFP)

Steven Barlow v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 16, 2008
Posted to Ind. App.Ct. Decisions

Ind. Law - Even more on golf carts in Greene County

This ILB entry from Nov. 9, 2007 quoted a story in the Green County Daily World that began: "Golf carts on the streets of Bloomfield once again dominated much of the discussion during the Bloomfield Town Council's meeting on Wednesday night."

Six months later, the May 14th, 2008 Bloomfield Free Press reports:

Golf carts on town streets, as well as football played within the town limits were both topics of discussion at the Bloomfield Town Council meeting Tuesday evening. * * *

During the discussion of golf carts - a rather contentious subject at the time - Councilman Aaron Hamm told the council that he had researched the matter and had found that golf carts are specifically not mentioned in state law.

"There is nothing that says you can't have them," he said. "And, there is nothing that says you can drive them on town streets."

Hamm also said that he questioned why youngsters were allowed to ride 'mini-crotch rockets' on town streets, but golf carts are illegal.

The town currently has an ordinance outlawing golf carts on town streets which dates back six or seven years. It was enacted after a former town councilman and a late resident got into a verbal altercation about the use of golf carts in town.

Within a month, the carts were outlawed - with the resident, Rick Vandeventer, fighting for their reinstatement until his death last year.

Hamm said that Portland, Ind., for example, allows golf carts on its city streets with very strict ordinances governing their use.

Although the public in the past overwhelmingly endorsed the use of golf carts on town streets, the council noted that it had a number of concerns - including safety issues.

"If this ordinance is enacted and it is found later to be a safety issue, is it something that can be repealed?" Lt. Shane Smith of the Bloomfield Police Department asked.

Town Council President Jo Ann Hanauer Carmichael said, "absolutely, especially if there are safety issues."

Councilman Roger Doane said he is completely against golf carts on town streets - an opinion he has expressed in the past. "If this comes up for a vote, I will vote no," he said.

Former Town Marshal Bob Richardson told the board that the use of golf carts could also put a crimp in the traffic flow patterns in town - because they move slower than the normal traffic.

The matter was tabled for further study and review.

Posted by Marcia Oddi on Friday, May 16, 2008
Posted to Indiana Law

Thursday, May 15, 2008

Ind. Decisions - Supreme Court issues three more opinions today

In Villas West II of Willowridge Homeowners Association, Inc. v. Edna McGlothin, a 15-page, 3-2 opinion, Chief Justice Shepard writes:

A homeowner whose deed contained various covenants applicable to her subdivision rented out her residence, notwithstanding a covenant not to do so. Her homeowners association sued to enforce the prohibition, and she countersued, claiming that the agreement she had made through the covenant violated the Fair Housing Act. Her counter-complaint appeared to include elements of two very different claims—disparate impact and intentional discrimination.

The trial court granted her relief, appearing largely to rely on disparate impact. We conclude that relief on these grounds was erroneous. We remand for reconsideration of the intentional discrimination claims. * * *

We reverse the judgment of the trial court on the claim of disparate impact and remand for reconsideration of the claim of intentional discrimination.

Dickson and Boehm, JJ., concur.
Rucker, J., dissents with separate opinion in which Sullivan, J., concurs: The majority works overtime and spends much ink to argue that Arlington Heights II is flawed and should not be followed. * * * Indeed, applying the Arlington Heights II factors, both the trial court and the Court of Appeals concluded that Villas West’s restrictive covenant violated the Federal Fair Housing Act because of its disparate impact on members of the African American community residing in the City of Kokomo. I agree and would affirm the judgment of the trial court. Therefore I dissent.

In Alan C. Jones v. State of Indiana, a 6-page, 5-0 opinion, Justice Dickson writes:
The defendant, Alan C. Jones, appeals from the trial court's order revoking his probation and suspended sentence, ordering him to serve the full sentence imposed, finding him to be a Sexually Violent Predator (SVP), and ordering him to register as an SVP for his lifetime. The Court of Appeals affirmed. Jones v. State, 873 N.E.2d 725 (Ind. Ct. App. 2007). We granted transfer and now hold that the language of the SVP statute does not authorize a trial court to initiate an SVP determination for the first time during a probation revocation proceeding. * * *

Because the SVP evaluation and determination was incorrectly first commenced during the defendant's probation revocation proceedings, we must vacate that portion of the trial court order of March 1, 2007, finding the defendant to be a Serious Violent Predator. The defendant remains subject, however, to the trial court's order that he must register as a Sex Offender for ten years following his release from incarceration. We also affirm that portion of the order revoking the defendant's ten-year suspension and reinstating the original sentence.

In Dawn Elizabeth McDowell v. State of Indiana, a 6-page, 5-0 opinion, Justice Dickson writes:
Dawn Elizabeth McDowell appeals her conviction and sentence for Voluntary Manslaughter, a class A felony for the death of Christopher Crume. The Court of Appeals affirmed. McDowell v. State, 872 N.E.2d 689 (Ind. Ct. App. 2007). We granted transfer and find that State's tendered instruction should not have been given because it authorized the jury to infer an intent to kill simply because a death resulted from a deadly weapon in the hands of the defendant. * * *

The reversal of the defendant's conviction for Voluntary Manslaughter as class A felony does not preclude the State from retrying the defendant upon this charge. At the conclusion of the defendant's first trial, the jury found the defendant guilty of Aggravated Battery, a class B felony, Involuntary Manslaughter, a class C felony, and Voluntary Manslaughter, a class A felony. The trial court entered judgments of conviction on all counts, but then, noting double jeopardy concerns, ordered the convictions for Aggravated Battery and Involuntary Manslaughter vacated, leaving only a single conviction upon the Voluntary Manslaughter charge, on which the defendant was sentenced. Because the elements of the counts charging Aggravated Battery and Involuntary Manslaughter do not include the intent to kill, the error in giving the challenged instruction does not impair the reliability and validity of these other convictions. In reversing the conviction for Voluntary Manslaughter, justice and fairness require that we also set aside the trial court's order vacating the convictions on the other counts.

In the event the State chooses to dismiss this count, or if retrial does not result in a conviction on this count, the trial court shall enter judgment and sentence the defendant based upon the jury's verdicts finding the defendant guilty of each the remaining offenses, subject to any further double jeopardy considerations, which are not presented or addressed in this opinion.

The judgment of the trial court is reversed and this cause remanded for new trial or such other proceedings as are consistent with this opinion.

Posted by Marcia Oddi on Thursday, May 15, 2008
Posted to Ind. Sup.Ct. Decisions

Courts - "California Supreme Court says same-sex couples have right to marry" [Updated]

Here is a report by Bob Egelko of the San Francisco Chronicle on this morning's ruling. The story begins:

10:31 PDT SAN FRANCISCO -- Gays and lesbians have a constitutional right to marry in California, the state Supreme Court said today in a historic ruling that could be repudiated by the voters in November.

In a 4-3 decision, the justices said the state's ban on same-sex marriage violates the "fundamental constitutional right to form a family relationship." The ruling is likely to flood county courthouses with applications from couples newly eligible to marry when the decision takes effect in 30 days.

More:
The celebration could turn out to be short-lived, however. The court's decision could be overturned in November, when Californians are likely to vote on a state constitutional amendment banning same-sex marriages. Conservative religious organizations have submitted more than 1.1 million signatures on initiative petitions, and officials are working to determine if at least 694,354 of them are valid.

If the measure qualifies for the ballot and voters approve it, it will supersede today's ruling. The initiative does not say whether it would apply retroactively to annul marriages performed before November, an omission that would wind up before the courts.

The 172-page decision, In re Marriage Cases, is available here.

[Updated] More stories here.

Posted by Marcia Oddi on Thursday, May 15, 2008
Posted to Courts in general

Ind. Decisions - More on "Court limits sex offender residency law"

Updating this ILB entry from yesterday, May 14th, on the Court of Appeals decision in the case of State of Indiana v. Anthony Pollard, Sophia Vorovong of the Lafayette Journal & Courier, who has reported extensively on this issue, writes today:

An Indiana Court of Appeals decision that part of a state law limiting where child molesters can live is unconstitutional could affect some offenders in Tippecanoe County who were forced to move.

In the ruling issued late Tuesday, the three-member panel of judges found that the state cannot require convicted sex offenders to relocate if they owned their homes prior to passage of the law.

The 2006 statute prohibits offenders against children from living within 1,000 feet of a school, public park or youth program center. Violators could be charged with a Class D felony.

"The Court of Appeals found that it was a violation of ex post facto under Indiana's Constitution and the U.S. Constitution because it imposed punishment after the fact," said Lafayette attorney Earl McCoy, whose firm is representing two sex offenders ordered to move last summer.

"That has been our position all the way through. In my opinion, it is punishment whether that person owned a home or rented."

In Tippecanoe County, 25 people had to find new homes last summer when the sheriff's department and prosecutor's office began enforcing the law.

Sheriff's Detective Greg Haltom, who maintains the county's Sex and Violent Offender Registry, said Wednesday that seven people owned their residences before the law took effect. His department could not confirm ownership for three others.

The Court of Appeals ruling dealt with a Blackford County man who had owned his home for about 10 years when he was convicted of a sex offense against a child in 1997.

Anthony W. Pollard was charged in January 2007 with violating the state's sex offender residency law. Blackford Superior Court Judge John Forcum dismissed the charge as unconstitutional, and the state appealed.

State attorneys argued that the man's rights were not violated because he was not charged with owning the home but with continuing to live there after the residency law took effect on July 1, 2006.

The appeals court disagreed.

"That punishment restricts an ownership interest in property that Pollard acquired before the statute came into effect; it is not just a potential penalty for continuing to reside within the exclusionary zone after the effective date of the statute," Judge Paul D. Mathias wrote in the 10-page unanimous ruling. * * *

Though the facts of all three cases are different -- McCoy's client lived in a home owned by his wife prior to their marriage; Montgomery's client lived in a home owned by his wife's family -- the issue prohibiting ex post facto law is the same.

The appeals court decision upheld a Blackford County judge's opinion, holding that the state law was an ex post facto law that punished sex offenders for behavior that was not criminal when it was committed -- in this case, home ownership.

McCoy and Montgomery point to similar cases ruled unconstitutional in other states that the appeals court mentioned in its ruling. One involved an Ohio man who lived rent-free in a home owned by his family; in a Georgia case, a court found that forcing an offender to move was an unconstitutional taking of his property.

In a second story today, Voravong writes:
One convicted sex offender from Tippecanoe County forced to move under a 2006 Indiana law has less than three years until he can be removed from the state's registry.

In the meantime, his attorney is hopeful that this week's Indiana Court of Appeals ruling, which found part of the statute unconstitutional, will help the man's chances of returning home.

"Certainly, the court's rationale should be helpful in our case," said Lafayette attorney Earl McCoy, who is representing the man known only as John B. Doe in court documents.

"One concern on my part is that the court took an 'as applied to' basis. Looking at it on a case-by-case basis, that means several more appeals will have to take place before this law can be clearly understood."

The Court of Appeals decision issued late Tuesday deals with a statute prohibiting convicted sex offenders against children from living within 1,000 feet of a school, public park or youth program center.

The panel of three judges found that the state cannot force offenders to move if they owned their homes prior to the statute's passage.

The unanimous 10-page decision upheld a Blackford County judge's opinion that the law was ex post facto, meaning it punished sex offenders for behavior that was not criminal when it was committed.

That was a key issue in four civil lawsuits -- three in Tippecanoe County, one in White County -- filed by Lafayette-area men in the past year challenging the statute. The offenders' petitions were all shot down partially or entirely by judges in recent months.

This entry yesterday from Jurist points to similar rulings from Georgia and California. See this Nov. 29, 2007 ILB entry on the Georgia ruling, headed "More on 'Georgia's top court overturned a state law Wednesday that banned registered sex offenders from living within 1,000 feet of schools, churches and other areas where children congregate'".

For a contrary view, see this editorial today from the Richmond Palladium Item, that concludes:

If this ruling were to stand, it could shake the fundamental public safety underpinnings and moral certitude of the sex offender registry: A statute carefully crafted to reflect alarming rates of recidivism among sex offenders, a tradition of underreporting of these kinds of offenses and the special vulnerability of children as victims of those offenses. Estimates are that convicted sex offenders are four times more likely to be repeat offenders than criminal felons convicted of robbery, murder, assault or other serious crimes.

The lower courts' judgment needs to proceed on appeal to the Indiana Supreme Court or the federal courts for added review and some legal clarity. This is an area where the courts second-guess legislative intent at society's substantial peril.

[More] The Indiana Supreme Court heard oral arguments at 9:45 am today in two challenges to the registration requirement of the sex offender law. See the writeup from Monday's ILB entry. Watch the oral argument webcast in Todd Jensen v. State & Richard Wallace v. State here.

Posted by Marcia Oddi on Thursday, May 15, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides two today

In Speedway SuperAmerica, LLC v. Gerald and Madeline Holmes, a 13-page, 5-0 opinion, Justice Boehm writes:

In this case the prevailing party at trial discovered potentially highly relevant and favor-able evidence ten days before trial but did not communicate the discovery to the opposing party until the first day of trial. The evidence was admitted, but posttrial testing revealed that the evidence was not what it was represented to be. Under these circumstances, we hold that a motion to test the evidence filed within the time for a motion to correct error satisfies the diligence required of the opposing party to seek a new trial based on newly discovered evidence. We remand for a new trial. * * *

We do not suggest that a new trial is required whenever evidence appears at the eleventh or, as in this case, the thirteenth hour. Critical exhibits rarely surface within the weeks before trial, but when they do, parties considering offering them, and parties who have ongoing discovery obligations, are obligated to inform opposing counsel immediately. Even if the jeans were authentic, failure to communicate their existence shifted the practical burden of this late discovery to the innocent opposing party. If, as seems to be the case, the jeans were not what they appeared to be, the problem is compounded. The unusual circumstances surrounding this case lead us to conclude that equity requires a new trial. * * *

The order of the trial court denying Speedway’s Motion to Correct Error and for Relief from Judgment under Indiana Trial Rules 59 and 60 is reversed, and the trial court’s grant of Speedway’s motion to test the jeans is affirmed. The case is remanded with instructions to vacate the judgment and schedule a new trial.

In Hobert Alan Pittman v. State of Indiana, a 15-page, 5-0 opinion, Justice Boehm writes:
The defendant, known as “Albert” Pittman, was found guilty by a jury of two counts of felony murder, and one count each of attempted murder, theft, auto theft, and conspiracy to commit burglary. The jury found that Pittman intentionally killed each of the murder victims and recommended a sentence of life without parole on each of the murder counts. The trial court sentenced Pittman to two consecutive life sentences for the murders plus consecutive sentences on the other counts aggregating seventy-three years. We find that the evidence does not support one of the life without parole sentences and remand with instructions to enter a consecutive sentence of sixty-five years on that count. We otherwise affirm Pittman’s convictions and sentences. * * *

Pittman’s convictions are affirmed, as are his sentences for the murder of Myrtle Satterfield, attempted murder of Linda Pittman, conspiracy to commit burglary, theft, and auto theft. This case is remanded to the trial court with instructions to enter a sentence of 65 years for the murder of Hobert Pittman, to be served consecutively to his other sentences.

Posted by Marcia Oddi on Thursday, May 15, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 31 NFP)

For publication opinions today (3):

Kerry L. Meredith v. State of Indiana - "The State has filed a petition for rehearing asking that we reconsider our holding that the trial court abused its discretion when it admitted into evidence cocaine found in the car of Kerry Meredith. See Meredith v. State, 878 N.E.2d 453 (Ind. Ct. App. 2007) (“Meredith I”). In particular, the State asserts that the cocaine was admissible because it was obtained pursuant to a legitimate traffic stop for an improperly displayed temporary vehicle tag. We grant the State’s petition for the sole purpose of clarifying that, while the initial traffic stop was legitimate, the investigating officer’s probable cause or reasonable suspicion to detain Meredith had expired well before the discovery of cocaine in Meredith’s vehicle. * * * The State’s petition for rehearing is granted, and our opinion in Meredith I is clarified as stated above. In all other respects, we affirm our prior opinion."

In Michael Childs v. State of Indiana , a 6-page opinion, Judge Sharpnack writes:

Michael Childs appeals his conviction for sexual battery as a class D felony.1 Childs raises two issues, which we revise and restate as whether the trial court erred by entering judgment of conviction for sexual battery. We reverse. * * *

On appeal, the State concedes that sexual battery as a class D felony is not a lesser included offense of child molesting. The State concedes that Childs’s conviction for sexual battery must be vacated. The State argues, however, that we should remand with instructions to enter judgment of conviction for child molesting as a class C felony. In support of this argument, the State relies upon Anderson v. State, 674 N.E.2d 184 (Ind. Ct. App. 1996). * * *

We conclude that the trial court erred by entering judgment of conviction for sexual battery as a class D felony, and we vacate that conviction. Moreover, due to double jeopardy, Childs cannot be retried on the child molesting as a class B felony or child molesting as a class C felony charges. See, e.g., Anderson, 674 N.E.2d at 188.

For the foregoing reasons, we reverse Childs’s conviction for sexual battery as a class D felony. Reversed.

James D. Massey and Margaret E. Massey v. Conseco Services, LLC - "James D. Massey has petitioned for rehearing of our opinion in Massey v. Conseco Services, L.L.C., 879 N.E.2d 605 (Ind. Ct. App. 2008). We grant his petition solely to address whether we erred by dismissing his counterclaim arising under federal securities law. We reaffirm our original decision."

NFP civil opinions today (11):

In the Matter of O.S., J. Elizabeth S. v. Clinton Co. Dept. of Child Services (NFP) - "For all of these reasons, we conclude that the evidence is sufficient to support the court’s CHINS determination."

Jack Gray Transport v. Porter County Assessor (NFP) - "Appellant-petitioner Jack Gray Transport, Inc. (Jack Gray) appeals the trial court’s dismissal of its action for mandate filed against appellee-respondent Porter County Assessor (Assessor) for lack of subject matter jurisdiction. Specifically, Jack Gray contends that the trial court erred in determining that the Tax Court has exclusive jurisdiction over this case because it involves property tax exemptions. Concluding that the trial court properly granted the motion to dismiss, we affirm."

Michelle & Edward Rau, et al v. Homeowners of Mallards Landing Inc. (NFP) - "An issue raised for the first time on appeal, even in the summary judgment context, is waived. * * * [T]he Raus have waived their challenge to the summary judgment decision by arguing grounds not raised to the trial court. No amount of clarification by the trial court would change that result. * * * Based on the foregoing, we conclude that, by raising an argument that was not presented to the trial court, the Raus have waived any challenge they may have had to the trial court’s grant of HOML’s motion for summary judgment."

Bobby Frame v. Diana L. Tharp, Gregory Early (NFP) - "Given the discretion afforded trial courts to alter the time limitations for defendants to advance a nonparty defense provided by Indiana Code section 34-51-2-16, we cannot say that the trial court erred when it permitted Tharp and Early to argue that Michael Kaye Industries was liable for all or some of Frame’s injuries to the jury.

"For the foregoing reasons, we conclude that the trial court did not err when it permitted the jury to consider Michael Kaye Industries’ liability as a nonparty for comparative fault purposes. Affirmed."

Term. of Parent-Child Rel. of C.G. & L.C.; and D.P. v. State of Indiana (NFP) - "Thus, the trial court need not wait until a child is irreversibly harmed such that the child’s physical, mental, and social development is permanently impaired before terminating the parent-child relationship. Based upon the foregoing, we do not conclude that the trial court’s judgment was clearly erroneous. Affirmed."

William Tarkington v. Molly Tarkington (NFP) - "Appellant-respondent William S. Tarkington appeals the protective order entered in favor of appellee-petitioner Molly S. Tarkington, William’s ex-wife. William argues that the trial court did not have jurisdiction to enter the order and that there is insufficient evidence supporting the trial court’s decision. Finding no error, we affirm."

Term. of Parent-Child Rel. of O.V., Tonya Roach Veenstra and Jamie Veenstra v. Noble co. Dept. of Child Services (NFP) - "Appellant-respondent Tonya Roach-Veenstra appeals the termination of her parental relationship to her daughter, O.V. Veenstra argues that she was denied due process of law because she allegedly received the ineffective assistance of counsel during the termination proceedings. Finding no error, we affirm."

Donald L . Franks v. Andre Trust (NFP) - "Appellant-defendant Donald L. Franks appeals the trial court’s judgment of forfeiture in favor of appellee-plaintiff Andre Trust (the Trust). Donald claims that the judgment regarding certain real property that he and his former spouse, Mary, had purchased from the Trust, was erroneous. More specifically, Donald contends that the trial court neglected to make several necessary findings and challenges a number of other findings regarding the payment of consideration, utility bills, and taxes on the property. Donald further maintains that the Trust’s action should have been barred under the doctrine of laches, but claims that even if the remedy of forfeiture was appropriate, the trial court erred in also ordering him to pay an additional amount for damages. Concluding that the remedy of forfeiture was appropriate, and finding no other error, we affirm the judgment of the trial court."

Gary B. Plunkitt v. U.S. Bank National Association (NFP) - "Gary Plunkitt appeals the trial court’s order granting a notice of dismissal filed by US Bank National Association (“US Bank”). Plunkitt raises three issues, which we revise and restate as whether the trial court abused its discretion by granting US Bank’s notice of dismissal without prejudice. We reverse and remand."

Donald Marshall v. Walter Martin (NFP) - "Marshall was present at his parole revocation hearing, received notices of the dates of the hearings, admitted to the offense/violation, and received notice of the Parole Board’s decision. Therefore, Marshall’s petition for writ of habeas corpus was properly denied.

"Marshall waived his argument about receipt of the written statements by failing to request the documents at subsequent Parole Board hearings. Marshall has failed to utilize the appropriate post-conviction process to seek appellate review of the revocation of his parole. For all of those reasons, the trial court’s decision is affirmed."

Koehring & Sons, Inc. v. Starks Mechanical, Inc. (NFP) - "Trial Rule 75(A)(4) establishes preferred venue in “the county where . . . the principal office of a defendant organization is located . . . .” In this case, defendant Koehring’s principal office is located in Marion County. According to T.R. 75(A)(4), preferred venue is therefore in Marion County, and Koehring has established prima facie error in the trial court’s denial of its motion to transfer the case to Marion County as the preferred venue. Reversed."

NFP criminal opinions today (20):

Wendell Pegues v. State of Indiana (NFP)

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

Charles Payton v. State of Indiana (NFP)

Marvin Clark v. State of Indiana (NFP)

Bradley Baldwin v. State of Indiana (NFP)

Lord Drezden v. State of Indiana (NFP)

Johnny P. Ford v. State of Indiana (NFP)

Chad Hester v. State of Indiana (NFP)

Derek Core v. State of Indiana (NFP)

David Burks-Bey v. State of Indiana (NFP)

Charles R. Barnett, Jr. v. State of Indiana (NFP)

Rodney L. Merritt v. State of Indiana (NFP)

Leroy Fair v. State of Indiana (NFP)

Silas Mitchell v. State of Indiana (NFP)

Phillip Brandon v. State of Indiana (NFP)

Brian Gooldy v. State of Indiana (NFP)

Jeffrey L. Finley v. State of Indiana (NFP)

Donsha L. Moore v. State of Indiana (NFP)

Stanford Johnson v. State of Indiana (NFP)

Daniel Snell v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 15, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides Illinois case on the "fighting words" doctrine

In Purtell v. Mason (ND Ill.), a 24-page opinion, Judge Sykes writes:

This free-speech lawsuit requires us to determine the present scope of the “fighting-words” doctrine. The setting is a neighborhood feud. The case features an unsightly, 38-foot recreational vehicle stored on a residential driveway in suburban Chicago, a neighborhood petition drive to force its removal, and a derogatory Halloween yard display erected in retaliation against the neighbors who led the petition drive. An unlucky police officer dispatched to mediate the dispute was sued for his efforts, accused of violating the First and Fourth Amendments.

The plaintiffs claimed their Halloween display—wooden tombstones with epitaphs describing, in unflattering terms, the demise of their neighbors—was constitutionally protected speech. They alleged their rights under the First and Fourth Amendments were violated when the officer ordered them to remove the display on pain of arrest. The district court granted summary judgment for the officer on the Fourth Amendment claim but permitted the free-speech claim to proceed to trial. A sensible but probably misinstructed jury returned a verdict for the police officer.

We affirm. Summary judgment on the Fourth Amendment claim was properly granted. At the moment of arrest, the neighbor-combatants were engaged in a noisy argument over the tombstones, culminating in a “chest-butt.” This provided probable cause to arrest for disorderly conduct. The First Amendment claim need not have been tried. The tombstone inscriptions, although insulting, cannot be considered fighting words as that doctrine is presently understood. The display was, accordingly, protected speech. But the officer’s mistake about the scope of the plaintiffs’ constitutional right to ridicule their neighbors was one a reasonable officer might make in this situation. He was therefore entitled to qualified immunity. * * *

In closing, a few words in defense of a saner use of judicial resources. It is unfortunate that this petty neighborhood dispute found its way into federal court, invoking the machinery of a justice system that is admired around the world. The suit was not so wholly without basis in fact or law as to be frivolous, but neither was it worth the inordinate effort it has taken to adjudicate it—on the part of judges, jurors, court staff, and attorneys (all, of course, at public expense). We take this opportunity to remind the bar that sound and responsible legal representation includes counseling as well as advocacy. The wiser course would have been to counsel the plaintiffs against filing such a trivial lawsuit. Freedom of speech encompasses “ ’the freedom to speak foolishly and without moderation,’” Cohen, 403 U.S. at 26 (quoting Baumgartner v. United States, 322 U.S. 665, 674 (1944)), but it does not follow that every nominal violation of that right is—or should be—compensable. See Brandt v. Bd. of Educ. of City of Chi., 480 F.3d 460, 465 (7th Cir. 2007) (“[D]e minimis non curat lex (the law doesn’t concern itself with trifles) is a doctrine applicable to constitutional as to other cases,” and an award of nominal damages “presupposes a violation of sufficient gravity to merit a judgment, even if significant damages cannot be proved.”). Not every constitutional grievance deserves an airing in court. Lawsuits like this one cast the legal profession in a bad light and contribute to the impression that Americans are an overlawyered and excessively litigious people.

For more, see this WSJ Blog entry by Dan Slater, headed "In Wacky RV Case, 7th Circuit Rules ‘Them’s Not Fightin’ Words’".

Posted by Marcia Oddi on Thursday, May 15, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court suspends Bloomington lawyer

Charles Wilson of the AP reports today on Tuesday's Supreme Court decision in In the Matter of David J. Colman - see Tuesday's ILB entry here. Some quotes:

An attorney was suspended from practicing law for three years for, among other things, participating in the preparation of a client's will that named the lawyer as primary beneficiary.

The Indiana Supreme Court voted 3-2 Wednesday to suspend David J. Colman for three years for professional misconduct. Two of the justices issued dissenting opinions saying the penalty did not go far enough and that the lawyer should be disbarred.
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"Rather than seeing the (attorney-client) relationship as one of undivided loyalty to the client, Respondent (Colman) appears to view that relationship as a chance for personal financial gain wholly apart from compensation for legal services rendered whenever the opportunity arises," the Supreme Court wrote. "Moreover, Respondent displays a cavalier attitude toward the ethics rules intended to protect clients in transactions with their lawyers."

Posted by Marcia Oddi on Thursday, May 15, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "Law aids breast-feeding moms at work"

Shari Rudavsky reports today in the Indianapolis Star:

New moms returning to work may find it easier to keep breast-feeding after July 1, when a new state law takes effect.

The law requires employers to provide a private place for women who are breast-feeding to pump milk and have a cold place to store it.
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Indiana's law provides no punishment for employers that don't comply, but breast-feeding advocates say it's still a good deal for women and businesses, too. * * *

Indiana's new law says businesses must comply "to the extent reasonably possible," but it provides no penalties and no requirements for the space designated, other than that it provide privacy.

Some states have more stringent regulations. In Oregon, for instance, a company that fails to meet its requirement could face a $1,000 fine.

Indiana's original proposal contained stronger wording. But after it failed to get enough support, in part because of complaints from business representatives, such as the Indiana Manufacturers Association, advocates softened the bill.

"What we didn't need was for a business to have to dedicate a certain number of square feet of their property, particularly since it didn't make an exception for the fact that there might not be any lactating females employed there," said Ed Roberts, the manufacturing association's vice president for human resources, labor, legal and political affairs.

George Raymond, vice president for human resources and labor relations at the Indiana Chamber of Commerce, said efforts need to now focus on informing businesses about the law.

"I just think it's going to come as a surprise to a lot of businesses, particularly small businesses," he said.

Here is the law, SEA 219.

Posted by Marcia Oddi on Thursday, May 15, 2008
Posted to Indiana Law

Wednesday, May 14, 2008

Ind. Law - More on: How much can you rely on what is in the Indiana Code?

Updating this ILB entry from Monday, May 12th, about my article for the May 2008 issue of Res Gestae, titled, "How much can you rely on what is in the Indiana Code? Part I - Noncode sections", here is one of the examples in the article:

IC 24-4-15, a chapter headed "Automated External Defibrillators in Health Clubs," was added to the Indiana Code by Senate Enrolled Act (SEA) 134 of the 2007 General Assembly, and, by its terms, took effect July 1, 2007.

Reading IC 24-4-15 in the online Indiana Code provided by the General Assembly, one sees the requirement in Sec. 5 that an owner or operator of a health club shall ensure that a defibrillator is located on the health club premises and is easily accessible. Sec. 8 provides that a violator commits a Class C infraction.

The logical assumption would be that the defibrillator requirement is in effect. But that would be wrong.

Although each section of the new law went into effect July 1, 2007, the General Assembly added a noncode SECTION 4 to SEA. 134, which reads:

(a) Notwithstanding IC 24-4-15, as added by this act, a health club is not required to comply with IC 24-4-15, as added by this act, before July 1, 2008.

(b) This SECTION expires December 31, 2009. [emphasis added]

This "nothwithstanding" language does not appear in the Indiana Code. But as you can see, it significantly impacts compliance with IC 24-4-15-5.

Posted by Marcia Oddi on Wednesday, May 14, 2008
Posted to Indiana Law

Ind. Decisions - Supreme Court justices differ on sanctions in attorney disciplinary case

In the Matter of David J. Colman is an 11-page, 3-2 (as to sanctions) Per Curiam opinion. The court writes:

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action," and on the post-hearing briefing by the parties. We find that Respondent, David J. Colman, engaged in attorney misconduct by participating in preparation of a will for a non-relative that would give Respondent or his son a substantial gift, by representing a client when there was a conflict of interest due to Respondent's personal interests, by failing to hold property of a client separate from Respondent's property and failing to keep a client’s funds in a clearly identified trust account, by entering into an improper business transaction with a client, and by charging an unreasonable fee.

The Respondent's 1970 admission to this state's bar subjects him to this Court's disciplinary jurisdiction. See IND. CONST. art. 7, § 4. For his misconduct, we find that Respondent should be suspended from the practice of law in this state for at least three years. * * *

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than three years, beginning July 1, 2008. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of that period, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4).

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged. * * *

Sullivan, Boehm, and Rucker, JJ., concur. Shepard, C.J., and Dickson, J., dissent as to sanction with separate opinions.

Shepard, Chief Justice, dissenting as to sanction. This is respondent David J. Colman’s fourth disciplinary proceeding; three of these have occurred since I became a member of this tribunal. The most recent of these involved very substantial federal tax evasion, a federal felony conviction, and an eighteen-month suspension of Respondent’s license. * * *

It is difficult to imagine that any future expressions of remorse about these actions could be persuasive, such that readmission might occur. And, it is hard to fashion an argument for the public that Respondent’s behavior has been such that we might at some future date want, again, to tell clients they can entrust their own dearest matters to him. I thus vote to disbar.

Dickson, Justice, dissenting as to sanction. When the respondent was convicted of a federal felony in 1996, this Court unanimously voted not to disbar but only to suspend his privilege to practice law for a substantial time. Matter of Colman, 691 N.E.2d 1219 (Ind. 1998). And we later unanimously agreed to reinstate him. Matter of Colman, 714 N.E.2d 125 (Ind. 1999).

On reflection, I should have, but did not, dissent to these per curiam decisions. I choose, however, not to make the same mistake a third time, and agree with Chief Justice Shepard that the respondent should be disbarred for his misconduct.

Posted by Marcia Oddi on Wednesday, May 14, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Tippecanoe County superior court judge Michael Morrissey is one of the few Indiana judges who uses ignition interlocks"

Bob Segal of Indianapolis Eyewitness News 13 reports:

Indiana is not doing what many other states have done to reduce their alcohol-related fatalities and crashes. Dozens of states now require convicted drunk drivers to install ignition interlock devices in their vehicles, and in some of those states, the results have been dramatic.

Ignition interlock devices are wired into a vehicle's ignition, and they require drivers to blow into the device to prove sobriety before their vehicles will start. If the ignition interlock detects any alcohol on a driver's breath, the vehicle is disabled.

Tippecanoe County superior court judge Michael Morrissey is one of the few Indiana judges who uses ignition interlocks. He's ordered them for hundreds of drunk drivers since 2005, and he says in more than 99% of those cases, the offenders did not drive drunk again.

"I like our numbers," Morrissey said. "If you're decreasing re-offense rates, you're protecting the public." * * *

Indiana law allows judges to order the installation an ignition interlock, but they are not mandated to do so. Judges in other states do not have a choice. Six states have legislation that requires ignition interlock devices for every case of drunk driving. Twenty other states mandate ignition interlock for some alcohol-related driving offenses.

The very long report includes a number of links for more information.

Posted by Marcia Oddi on Wednesday, May 14, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 9 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Sonnie Ebikwo v. Linda Robbins and Jeffrey Huff (NFP) - "Pro-se Appellant-Defendant Sonnie Ebikwo (“Ebikwo”) appeals a small claims court judgment awarding Appellees-Plaintiffs Linda Robbins (“Robbins”) and Jeffrey Huff (“Huff”) (collectively, “the Appellees”) the amount of $5776.20. We affirm. * * * Ebikwo has not established that the trial court’s judgment in favor of the Appellees is clearly erroneous. Affirmed."

First Financial, N.A. v. Patricia Traverse, et al (NFP) - "First Financial, N.A. (“Financial”) appeals from the trial court’s judgment in favor of Patricia Traverse (“Traverse”). Financial raises three issues on appeal, that we consolidate and restate as: whether that the trial court’s decision to award Traverse $500.00 for the loss of the use and enjoyment of her land and to order the removal of Financial’s structure that encroached on Traverse’s property was clearly erroneous. * * * Financial has failed to show that the evidence leads unerringly to the conclusion that Traverse acquiesced in the construction of the addition or otherwise expressly or impliedly agreed to a new boundary line. Therefore, under our standard of review, we affirm the trial court’s judgment. Affirmed."

NFP criminal opinions today (7):

Timothy A. Bennington v. State of Indiana (NFP)

Leslie B. Barnett v. State of Indiana (NFP)

Rosendo Hernandez, Jr. v. State of Indiana (NFP)

Ronald G. Fox, II v. State of Indiana (NFP)

Brady K. King v. State of Indiana (NFP)

Kevin Chandler v. State of Indiana (NFP)

William Beeler v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 14, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Justices overturn girl's MySpace conviction"

Charles Wilson of the AP reports today on the Supreme Court decision yesterday in the case of A.B. v.State of Indiana (see May 13th ILB entry here - 4th case). Some quotes:

The Indiana Supreme Court overruled a judge who placed a middle school student on probation for posting an expletive-laden entry on MySpace criticizing her principal over school policy on body piercings.

The state Court of Appeals last year had ordered the Putnam Circuit Court to set aside its penalty against the girl, referred to in court documents as A.B., because it said the court had violated the girl's free-speech rights.

The Supreme Court, however, disagreed with that rationale and instead overruled the [trial] court Tuesday because it found it had failed to prove that the girl's post constituted harassment under Indiana law. * * *

The court noted that a key post appeared in a private section of a MySpace site that was not intended to be viewed by the public, but only by friends who had been invited by the user. The principal was able to view it only after gaining access from another student who had created the site.

A.B. therefore had no reason to expect that Gobert would see her post, the high court said in its eight-page ruling.

Another post that led to the penalty appeared in a more public area of the site, but the Supreme Court said the content indicated that it was intended as legitimate communication, which meant it could not be construed as harassment under state law.

Posted by Marcia Oddi on Wednesday, May 14, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Court limits sex offender residency law"

The Court of Appeals decision yesterday in the case of State of Indiana v. Anthony Pollard is the subject of several stories today. (See ILB entry here - 3rd case.)

Jeff Parrott reports in the South Bend Tribune:

The Indiana Court of Appeals on Tuesday declared unconstitutional a 2006 state law barring registered sex offenders from living near schools, parks and youth centers in cases where the offender had already owned his home when the law took effect.

The three-judge panel's unanimous decision, upholding a Blackford County trial court judge's ruling from June, determined the law was "ex post facto," meaning it effectively criminalized conduct that had not been criminal before the law took effect July 1, 2006.

Defendant Anthony W. Pollard, charged with a Class D felony sex offender registry offense, has lived in and owned his home for 20 years. In appealing the trial court ruling, the state had argued that since Pollard had violated the residency law after July 1, 2006, he was being punished merely for that violation.

"However," the appeals court wrote, "that punishment restricts an ownership interest in property that Pollard acquired before the statute came into effect; it is not just a potential penalty for continuing to reside within the exclusionary zone after the effective date of the statute."

"Court restricts part of sex offender residency law" is the headline of an AP story today in the Chicago Tribune that begins:
INDIANAPOLIS - The state cannot force convicted sex offenders who live near schools or other places frequented by children to move if they owned their homes before passage of a state law restricting their residency, the Indiana Court of Appeals has ruled.

The court said Tuesday that the 2006 law that prohibits convicted sex offenders from living within 1,000 feet of a school, public park or youth program center was unconstitutional in such cases.

The unanimous 10-page ruling upheld a Blackford County judge's opinion, holding that the state law was an ex post facto law that punished sex offenders for behavior that was not criminal when it was committed -- in this case, home ownership.

Posted by Marcia Oddi on Wednesday, May 14, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Update on "Lawrence County Judge Found Dead In Home"

Following up on the ILB's most recent entry on this story, from Nov. 6, 2007, Laura Lane of the Bloomington Herald Times reports today in a lengthy story ($$$):

When Lawrence Circuit Judge and Army National Guard Col. Richard McIntyre killed himself last October, talk of his possible involvement in a military furniture-buying scandal tainted memories of his revered life of public service.

Citizens were left wondering if the investigation contributed to his suicide.

Last week, a federal grand jury indicted two managers of a furniture store in Columbus for aiding and abetting the submission of false claims to the federal government involving furniture rental contracts at Camp Atterbury, where McIntyre had served.

No one will substantiate that McIntyre was involved and will say only that the investigation continues. * * *

Timothy Morrison, U.S. Attorney for the Southern District of Indiana, also would not comment then, or now, as to whether McIntyre was under suspicion.

“I would neither confirm or deny, and the reasons are obvious,” he said. “We’re attempting to protect the reputation and the good name of people unless it’s proven beyond reasonable doubt they have done something wrong.”

He remains mum on the subject of McIntyre and said his office does not discuss the status of people not charged in criminal investigations.

According to Army National Guard spokesman Maj. Michael Brady, investigators from the Department of Defense, the Army and other federal and state agencies conducted an 18-month investigation and learned that service members were presenting claims for rental furniture that they then kept.

“There are a number of military personnel under investigation,” Brady said.

He said that now, all military personnel assigned to Camp Atterbury live in furnished government quarters, “so it is not possible for this situation to happen again.”

Brady said he would not address whether the furniture-buying investigation contributed to McIntyre’s actions last Oct. 30, when his wife found him dead inside his 2007 GMC Yukon parked in the garage at their Brook Knoll home.

“It would not be proper for the Army or the National Guard to speculate regarding the reasons why somebody would take their own life,” he said.

Posted by Marcia Oddi on Wednesday, May 14, 2008
Posted to Indiana Courts

Tuesday, May 13, 2008

Ind. Decisions - Supreme Court issues four opinions late this afternoon, including the "MySpace case"

In Querrey & Harrow, LTD, et al v. Transcontinental Insurance Co., a 5-page, 4-1 opinion, Justice Dickson writes:

Addressing an issue of first impression in Indiana, the Court of Appeals holds that an excess insurer may not bring an action for legal malpractice against the insured's attorneys. Querry & Harrow v. Transcontinental Ins. Co., 861 N.E.2d 719 (Ind. Ct. App. 2007). We agree and now adopt this opinion as to all issues addressed. Ind. Appellate Rule 58(A)(1). * * *

We adopt the opinion of the Court of Appeals. This cause is remanded for the entry of summary judgment in favor of the appellants-defendants.

Shepard, C.J., and Rucker, J., concur.
Boehm, J., concurs in result.
Sullivan, J., dissents with separate opinion. [that concludes] For the reasons discussed in these cases, I would allow an insurer to bring an action under equitable subrogation. (In a similar vein, I note that Judge Tinder predicted that our Court would allow an excess insurer to bring an action against a primary insurer under equitable subrogation for negligent defense of a claim against the insured. Phico Ins. Co. v. Aetna Cas. and Sur. Co. of Am., 93 F. Supp. 2d 982, 990 (S.D. Ind. 2000).) Any claim that an insurance company would bring against its insured’s attorney would have to be prosecuted without access to any confidential client information of any kind whatso-ever. But I would not close the courthouse door to an insurance company that is willing and able to do so.

In Andrew Lee Watts v. State of Indiana, a 9-page, 3-2 decision, Justice Sullivan writes:
Having charged Andrew Watts with murder in a tavern shooting, the State sought at trial to have the jury also instructed on the lesser-included offense of voluntary manslaughter. It was reversible error for the trial court to give the instruction over defense counsel’s objection because there was no evidence of sudden heat. * * *

The trial court erred when it instructed the jury on voluntary manslaughter in the absence of evidence of sudden heat in the record. Therefore, Watts’s conviction for voluntary manslaughter is reversed.

Dickson and Rucker, JJ., concur.
Shepard, C.J., dissents without opinion.
Boehm, J., dissents with opinion.

In State of Indiana v. Karl D. Jackson, a 6-page 3-2 opinion, Justice Dickson writes:
We hold that a conviction for Operating a Vehicle After Being Adjudged a Habitual Traffic Violator, a class D felony, in violation of Ind. Code § 9-30-10-16(a)(1), does not require proof that the person operated a vehicle with knowledge that the person's driving privileges were suspended because of a habitual traffic violator determination; rather, such a conviction requires only proof that the person operated a vehicle with knowledge that the person's driving privileges were suspended, regardless of the reason. Because of the limited remedy available to the State upon its appeal following an acquittal, however, the trial court's judgment of acquittal remains unaffected. unaffected. I.C. § 35-38-4-2(4); Casada, 825 N.E.2d at 940; O'Grady, 876 N.E.2d at 765.

Shepard, C.J., and Boehm, J., concur.
Rucker, J., dissents with separate opinion in which Sullivan, J., concurs.

In A.B. v.State of Indiana, an 8-page, 5-0 opinion (the "MySpace case"), Justice Dickson writes:
A.B., a juvenile, appeals her adjudication as a delinquent child for her postings on the Internet site MySpace.com that, if committed by an adult, would constitute the criminal offense of Harassment. The Court of Appeals reversed, concluding that A.B.'s allegedly harassing messages were protected political speech. A.B. v. State, 863 N.E.2d 1212 (Ind. Ct. App. 2007), reh'g denied. Disagreeing with this rationale, we granted transfer, and now also reverse the trial court, but for different a reason: the State failed to prove all of the statutory elements for the offense of Harassment. * * *

Because the evidence failed to prove that A.B. made postings and comments on MySpace with the intent "to harass, annoy, or alarm" her former principal "but with no intent of legitimate communication," I.C. § 35-45-2-2(a), the requisite intent common to the six Counts on which A.B. was adjudicated a delinquent child, we reverse the judgment of the trial court.

Justice Dickson writes near the beginning of the opinion:
As a preliminary matter, we note that the evidence presented at the fact-finding hearing was extremely sparse, uncertain, and equivocal regarding the operation and use of MySpace.com ("MySpace"), which is central to this case. Only two witnesses testified at the fact-finding hear-ing, the school principal and A.B.'s mother. No expert witnesses were called. Neither of the witnesses provided knowledgeable and reliable details about MySpace. The primary source of information about MySpace came from the testimony of the principal, whose "understanding [came] from talking to students and trying to go figure how to go about researching this." The principal testified: "I don't get on MySpace." The Commentary to Canon 3B of the Indiana Code of Judicial Conduct advises: "A judge must not independently investigate facts in a case and must consider only the evidence presented." Notwithstanding this directive, in order to facilitate understanding of the facts and application of relevant legal principles, this opinion includes information regarding the operation and use of MySpace from identified sources outside the trial record of this case.
The Court of Appeals decision in A.B. v. State was issued April 9, 2007 - see initial ILB entry here. Since that time much has been written on this case, and related issues. See the list of ILB entries mentioning "MySpace" here.

In another social network case involving Indiana students, Jon Murray of the Indianapolis Star had a story May 10th headed "Roncalli dean sues over fake Facebook profile.". The longish report begins:

Defamation and identity fraud lawsuits have become the latest weapons of choice for educators targeted by online tormentors.

A fake online profile prompted a Roncalli High School dean to file just such a suit this week.

Cloaked in near-anonymity, the creator of the profile on Facebook used it to contact Roncalli students with inappropriate messages in Tim Puntarelli's name, an attorney for the Archdiocese of Indianapolis said.

School officials came one step closer to unmasking the person's identity Friday when a Marion County judge ordered the online social-networking site to turn over information identifying the user.

Posted by Marcia Oddi on Tuesday, May 13, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)

For publication opinions today (3):

In Gary Tapely II v. State of Indiana , a 5-page opinion, Judge May writes:

Gary Tapely II was convicted of Class D felony possession of two or more precursors with the intent to manufacture methamphetamine. The house where Tapely was found contained substantial evidence of “multiple prior episodes of manufacturing” methamphetamine. Tapely asserts he could not be guilty of possession with intent to manufacture because the house did not contain precursors “sufficient to begin or otherwise advance the process of manufacturing.” We affirm. * * *

Tapely knew what Hand and his brother were doing in Hand’s house that evening; they were preparing all the ingredients for manufacturing methamphetamine. Tapely helped light incense to cover the smell of ether. As he was the only person in Hand’s house when the police arrived, Tapely presumably flickered the lights off and on in response to the honks from the passing car. Tapely took thirty seconds to open the door after the police knocked, and then he claimed he did not notice a smell of ether. The combination of all this conduct permits a reasonable person to infer Tapely intended to be part of the manufacturing process, even if the process had been moved elsewhere.

In Lisa Dawn Owens v. State of Indiana , a 9-page, 2-1 opinion, Judge Riley writes:
Appellant-Defendant, Lisa Dawn Owens (Owens), appeals the trial court’s denial of her Motion for Sentence Modification. We reverse and remand.

ISSUE Whether the trial court erred in concluding that it lacked authority to modify Owens’ sentence pursuant to Ind. Code § 35-38-1-17. * * *

We hold that the trial court erred in concluding that it lacked authority to modify Owens’ sentence pursuant to Indiana statutory law and the terms of the plea agreement Owens reached with the State of Indiana. IC 35-38-1-17(b) states in pertinent part: “If more than three hundred sixty-five (365) days have elapsed since the convicted person began serving the sentence and after a hearing at which the convicted person is present, the court may reduce or suspend the sentence, subject to the approval of the prosecuting attorney.” Under typical circumstances, a trial court has no discretion to reduce or suspend a defendant’s sentence pursuant to that statute unless the prosecuting attorney gives approval. State v. Fulkrod, 753 N.E.2d 630, 633 (Ind. 2001). In this case, however, we find that the State waived its right to give approval. The “consents and approves” provision does more than illustrate applicable law. Appellant’s App. at 13. Indeed, its inclusion is sensible only if it differs from the applicable law in some fashion. If the State did not forfeit something in stating that it “consents and approves” Owens filing petitions to modify her sentence after one year, then it would not have been necessary for the State to establish its right to object to such modification. The only sensible interpretation of the “consents and approves” language is an interpretation meaning that the State waived its right to approve Owens’ petition for sentence modification and has not forfeited its right to object to such a modification. Otherwise, there is no reason for the provision to have been included in the plea agreement.

CONCLUSION Based on the foregoing, we conclude that the trial court erred in determining that it lacked authority to modify Owens’ sentence pursuant to Indiana statutory law and the terms of the plea agreement Owens reached with the State of Indiana. We remand this case to the trial court to exercise its discretion in deciding whether to grant Owens’ Petition for Modification of Sentence. Reversed and remanded.

KIRSCH, J., concurs.
MAY, J., dissents with separate opinion. [that concludes] Because I believe the trial court correctly found it had no authority to modify Owens’ sentence from the forty years provided by the plea agreement unless the prosecutor decided not to object to Owens’ motion, I would affirm.


In State of Indiana v. Anthony Pollard , a 10-page opinion, Judge Mathias writes:
The State of Indiana appeals Blackford Superior Court’s dismissal of the charge of Class D felony sex offender residency offense against Anthony Pollard (“Pollard”). The State argues that the trial court erred when it found that Indiana Code section 35-42-4-11, as applied to Pollard, violated Article 1, Section 24 of the Indiana Constitution. We affirm. * * *

The State challenges the trial court’s conclusion of law that Indiana Code section 35-42-4-11 is an unconstitutional ex post facto law as applied to Pollard. * * *

Conclusion. For all of these reasons, we hold that Indiana Code section 35-42-4-11, otherwise known as the residency statute, is an ex post facto law as applied to a person in Pollard’s circumstances. The residency statute is a criminal statute that criminalizes residency because of the resident’s status as a sex offender. In addition, the statute’s effect is punitive because it is applied retroactively to sex offenders who established ownership and property rights in a residence prior to the effective date of the statute, and because it forces them to relinquish some or all of their ownership rights or face a felony charge. Perhaps most importantly, Indiana’s residency statute does not exempt ownership established prior to the statute, provide a constitutional taking procedure, or exempt ownership impacted by later construction of a protected facility or area.

For all these reasons, we conclude that the trial court did not err when it found that Indiana Code section 35-42-4-11 violated Article 1, section 24 of the Indiana Constitution, as applied to Pollard. Therefore, we affirm the trial court’s dismissal of the Class D felony charge filed against Pollard pursuant to that statute.

See this April 16th ILB entry for more on the Pollard case.

NFP civil opinions today (0):

NFP criminal opinions today (12):

Brian Taylor v. State of Indiana (NFP)

Sherry Russell v. State of Indiana (NFP)

Eric Alter v. State of Indiana (NFP)

Raymond T. Bennett v. State of Indiana (NFP)

Raymond Elmer Bennett v. State of Indiana (NFP)

T.B. v. State of Indiana (NFP)

Aniya Crayton v. State of Indiana (NFP)

Jason W. Hoeppner v. State of Indiana (NFP)

Loren Naylor v. State of Indiana (NFP)

Jamarcus Cain v. State of Indiana (NFP)

Juan C. Chamorro v. State of Indiana (NFP)

Jimmy Monroe v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 13, 2008
Posted to Ind. App.Ct. Decisions

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

In Knutson v. USG Corp. and SDRC (SD Ind., Judge Barker), an 8-page opinion, Judge Posner writes:

The plaintiff brought this diversity suit (governed by Indiana law) to recover almost $700,000 in sales commissions that he claims are due from the two defendants, a firm and its successor both of which we refer to as the plaintiff’s “employer.” The district court granted summary judgment for the employer.

The plaintiff seeks commissions on three sales or sets of sales; we shall, again for the sake of brevity, pretend that there were just three sales. The first two the judge held barred by the statute of limitations; the plaintiff contends that the judge applied the wrong one. Indiana has a two-year statute of limitations (the one the judge applied) for “an action relating to the terms, conditions, and privileges of employment except actions based upon a written contract (including, but not limited to, hiring or the failure to hire, suspension, discharge, discipline, promotion, demotion, retirement, wages, or salary).” Ind. Code § 34-11-2-1 (emphasis added). Although the plaintiff did not have a written employment contract, his entitlement to commissions was based on a written compensation plan, and it is a breach (or rather breaches) of that plan, which he characterizes as a written contract, that he charges; and so he argues that the applicable statute of limitations is Indiana’s 10-year statute of limitations for “an action upon contracts in writing.” Ind. Code § 34-11-2-11. If he is right, the claim based on the first two sales are not time-barred (the claims arose in 2001, and the suit was filed in 2005); if the judge is right, they are.

In a literal sense, the plaintiff’s suit is “based upon a written contract,” but the Indiana Court of Appeals has held that “written contract” in the two-year statute of limitations means written employment contract. * * *

The claim based on the third sale is not time-barred. It is based on a provision in the compensation contract entitling the plaintiff to specified commissions on “NX Nastran Software and related PLM CAE Software sales.” The plaintiff argues that the two types of software are “related” and therefore he is entitled to commissions on all sales of PLM CAE software that he assisted in making. The employer argues that the plaintiff is entitled only to commissions on PLM CAE software that was sold simultaneously with NX Nastran. The district judge sided with the employer after ruling that “related” was ambiguous but that the ambiguity was “patent” and that extrinsic evidence may not be admitted to dissolve such an ambiguity.

The judge erred. As explained by Francis Bacon more than 400 years ago, an ambiguity is “patent” when it is recognized as an ambiguity just by reading the document; it is latent when it is not recognized as an ambiguity until you know something outside the contract. * * *

So [for other reasons] the claim has no merit, and the other claims, as we said, are time-barred. The judgment is therefore AFFIRMED.

Posted by Marcia Oddi on Tuesday, May 13, 2008
Posted to Ind. (7th Cir.) Decisions

Environment - Appeals filed with OEA over BP air construction permit grant

Gitte Laasby of the Gary Post-Tribune reports:

A group of Northwest Indiana residents has filed the first appeal of BP Whiting's air permit. Other environmental organizations are preparing separate appeals.

The residents, in an appeal filed Saturday, said the permit fails to protect overburdened low-income and minority communities in Whiting, East Chicago and Hammond from increased air pollution. They also said the Indiana Department of Environmental Management limited public participation by not giving the required 30 days' notice of the public comment period until environmental groups pressed for more time.

The Calumet Project and Global Community Monitor groups said they raised their concerns in comments to IDEM, but that IDEM responded they do not have a direct impact on how the agency reviews and makes decisions on air permit applications.

The groups said a 1994 executive order requires the U.S. Environmental Protection and IDEM to address environmental justice.

"We wanted to go with the environmental justice issue since we thought that was completely overlooked in this permit. This permit has been broken down in different sections. This is a major expansion. You spend $3.8 billion and IDEM refers to it as a minor. If you spend that kind of money, it's a major," said Bessie Dent, a Hammond resident and member of the Calumet Project.

If the permit was considered as one rather than three different permits -- for an asphalt plant, a diesel plant and the expansion, it would have been considered a major modification, she said.

Christine Kraly of the NWI Times reports today:
Two groups claiming a breach of environmental justice have called for a stop to BP Whiting Refinery's $3.8 billion expansion, according to the first appeal of BP's controversial air permit.

The Hammond-based Calumet Project and the Global Community Monitor faxed a petition for administrative review Saturday to the Indiana Office of Environmental Adjudication. The petition asks that expansion of the Whiting plant be halted to ensure the permit meets state and federal rules.

The groups argue the permit does not adequately protect low-income and minority residents from pollution.

A BP spokeswoman responded Monday that the company's permit has followed the letter of the law.

"Our air construction permit is valid," BP spokeswoman Valerie Corr said. "The permit underwent a thorough and rigorous review, and we believe it will stand up to scrutiny."

The Indiana Office of Environmental Adjudication has deemed the petition against BP's permit incomplete because the actual permit was not attached as required.

The office -- whose environmental law judges review Indiana Department of Environmental Management decisions -- is awaiting the arrival of the hard copy to take any action.

The faxed petition requests a temporary stay, meaning BP may have to shutter construction of the expansion project should a judge grant the delay, environmental law Judge Mary Davidsen has said.

Posted by Marcia Oddi on Tuesday, May 13, 2008
Posted to Environment

Ind. Courts - Larry Bird files a federal lawsuit alleging trademark infringement

Kate Braser of the Evansville Courier & Press reports today:

Basketball legend Larry Bird's former home in West Baden, Ind., is now the subject of a federal lawsuit alleging trademark infringement.

The civil suit filed on behalf of the NBA Hall of Famer in U.S. District Court in Evansville on Monday alleges the new owners are using Bird's name and fame without his permission, and he seeks to stop them from doing so.

The 12-acre property, at 7328 W. County Road 100 N., now is named Legend of French Lick Resort. The resort's Web site touts it as "the former home of Larry Bird" and entices visitors to play basketball on the court where Bird "spent hours practicing and perfecting his shot when at home in French Lick."

Geogianna Lincoln and Christopher Cooke bought the property last year from the Larry Joe Bird Revocable Living Trust.

According to the 11-page federal complaint, during the negotiations Lincoln and Cooke's representatives reportedly attempted to buy items of memorabilia from Bird and asked to use Bird's name to identify the house, but those requests were denied.

The complaint states Bird and his representatives did not know Lincoln and Cooke planned to market the property as a bed and breakfast using Bird's name and "commercially promoting the house as 'Legend of French Lick, The Former Home of Larry Bird Resort.'"

"The commercialization of Larry Bird's name in association with this former property is wholly and completely unauthorized and is blatantly being done for the sole purpose of profiting illegally from Larry Bird's name," the complaint states. "Defendant has even tried to create news stories about the property and about this dispute in a transparent effort to create publicity from the use of Larry Bird's name."

Reached by phone late Monday, Cooke said he was disappointed to learn the lawsuit had been filed.

"We've had contact with his legal representatives for a while, and we are very disappointed to hear they have done this," he said.

Cooke said he was told it was OK to refer to the property's past.

"We were told we could say things about (Bird's) past ownership as long as it was truthful," Cooke said. "The truth is it was his house, and it is his former home. We're very disappointed to hear that this has happened.

"If they had told us at the beginning that we were not allowed to say he was the one we bought it from, we would never have," Cooke said.

The complaint disputes Cooke's claim he was told he could use Bird's name.

"After the fact, Cooke or Lincoln or both have falsely stated that they were given oral permission to use the name of Larry Bird in association with the property, but this is also untrue," the complaint states.

"Larry Bird, not the Larry Joe Bird Revocable Trust, is the owner of the marks and rights to publicity in the Larry Bird name, so Larry Bird Revocable Trust could not have given permission to use the Larry Bird name."

The lawsuit was filed by attorneys with Ice Miller LLP in Indianapolis. Attorney Michael Wukmer said he did not wish to comment beyond what was stated in the complaint.

Posted by Marcia Oddi on Tuesday, May 13, 2008
Posted to Indiana Courts

Ind. Decisions - Still more on: State loses auto-dialer case in trial court

Updating this ILB entry from May 9th, Tracy Warner of the Fort Wayne Journal Gazette has this item today:

State Democratic and Republican leaders have found an issue on which they agree – state law should not prohibit computerized calls from political campaigns.

Attorney General Steve Carter has been the leading champion of the Do Not Call law, designed to heavily restrict unsolicited telephone calls to homes from businesses. Under Carter, the state sued American Family Voices Inc. under a separate 1988 law that bans using the automatic dialing technology, dubbed “robocalls.” The law had been widely ignored until Carter decided to step up enforcement.

The state accused American Family Voices of violating the law in the 2006 election following complaints about calls critical of then-Hoosier Congressman Mike Sodrel, a Republican.

The court dismissed the state’s lawsuit, ruling that the state law can limit only commercial calls. The state has appealed to the Indiana Supreme Court.

Now, the state Democratic and Republican parties have asked the court to file a joint friend-of-the-court brief, allowing the parties to weigh in on the legality of the calls. Both parties believe political robocalls are legal.

One more matter the two parties agreed upon – both hired James Bopp Jr., a Terre Haute attorney who is an authority on campaign-related free-speech issues. Bopp is also the attorney for Indiana Right to Life’s challenge against rules restricting what Indiana judicial candidates can say regarding their political campaigns, and, for a time, represented Matt Kelty in his battles with campaign finance law.

“The First Amendment and the Indiana Constitution protect all political speech, including computer-generated political calls. The Indiana Supreme Court should interpret the statute to only apply to commercial calls,” Bopp said, “leaving intact the robust political arena that the First Amendment was designed to protect.”

Posted by Marcia Oddi on Tuesday, May 13, 2008
Posted to Ind. Trial Ct. Decisions

Monday, May 12, 2008

Ind. Law - "Converse council may govern golf carts"

The ILB has had a rather long list of entries on the subject of use of golf carts on streets and roads, a subject seemingly growing more pressing as the baby boomers age. Perhaps marking the onset of spring, Nancy Binder of the Peru Tribune had a story May 10th:

The Converse Town Council will be looking into creating an ordinance for the use of golf carts as transportation within town limits. Town Marshall Roger Bowland told the council Thursday during its monthly meeting that currently people riding golf carts in town have been respectful of others, and as long as they stayed off the main streets, no laws were being broken.

Posted by Marcia Oddi on Monday, May 12, 2008
Posted to Indiana Government | Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Term. of Parent-Child Rel. of S.F. and D.L., and Sherry F., David F., and David L. v. Porter Co. Dept. of Child Services (NFP), a 22-page opinion, Judge Crone writes:

Appellant Sherry F. (“Mother”) appeals the involuntary termination of her parental rights, in Porter Circuit Court, to her sons S.F. and D.L. We affirm.

Mother raises the following issues on appeal: I. Whether the trial court’s judgment is supported by clear and convincing evidence; and, II. Whether Mother was denied due process of law when the trial court failed to set a review hearing during the CHINS proceedings. * * *

In sum, we find clear and convincing evidence supports the trial court’s judgment terminating Mother’s parental rights to S.F. and D.L. Additionally, we conclude that the alleged procedural irregularity in the underlying CHINS proceedings did not serve to deprive Mother of due process during the termination proceedings. Accordingly, we find no error. Affirmed.

NFP criminal opinions today (1):

Nichole Higgins v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, May 12, 2008
Posted to Ind. App.Ct. Decisions

Environment - "A century's worth of mud dredged from five miles of the Grand Calumet River lies buried" in a nearby CAMU

Gitte Laasby of the Gary Post-Tribune has an instructive story today about corrective action cleanups. Some quotes:

GARY -- Like a steep hill, the sloping, grass-covered walls rise 20 feet into the air on a strip of land east of Bridge Street and north of Interstate 90. Covered with water, the mound looks like a lake from the air. But the peaceful appearance of the structure does not appease Leonard White.

A solid waste specialist, White has worked on some of the country's most contaminated sites. He lives and grew up within a mile of the structure, officially known as a corrective action management unit -- a CAMU.

Nearly a century's worth of mud dredged from five miles of the Grand Calumet River lies buried inside the 37-acre structure.

The mud is contaminated with hazardous cancer-causing substances such as PCBs (polychlorinated biphenyls) and oil distillation byproducts like benzene and naphthalene. To White, that means one thing.

"They can call it a CAMU," White said. "I call it a Superfund site."

The unit is lined at the bottom and on the sides with layers of material designed to keep the mud from leaking out. Water covers the top until it's drawn off, cleaned and sent back to the river. Some vegetation has also started growing at the CAMU. * * *

Dorreen Carey, director of environmental affairs with the City of Gary, said even environmentalists, who had wanted the cleanup of the Grand Calumet River for decades, were conflicted about dredging to protect Lake Michigan and the fish in the river because the contaminated sediment would be placed so close to a residential neighborhood.

"There was a lot of comments up front on where that was to be located," Carey said. "It was identified and decided by U.S. Steel and EPA. The city had some, but limited, authority to oppose the project. At the time, because the river, without being dredged, was a negative for the community and the environment, and because when you dredge and contain it within the CAMU you're protecting people from that negative health impact, that was considered a good thing. The actual location of the facility was, without entering into a large protracted lawsuit, really not something the city had control over."

Posted by Marcia Oddi on Monday, May 12, 2008
Posted to Environment

Ind. Law - How much can you rely on what is in the Indiana Code?

In 2006 I wrote in an article for Res Gestae that the online version of the Indiana Code, which is the only version immediately accessible to most users, has numerous failings. Among these are the failure to include any editorial materials, the presence of numerous obvious errors, the fact that for part of each year the online Code is not current, and the fact that prior versions of the Code are not retained online and are very difficult to access elsewhere. (Access the 2006 article here.)

In a 2007 Res Gestae article I wrote that the online Indiana Code currently meets none of the requirements for trustworthy state-level primary legal resources on the Web: (Are they official? Are they authentic? Are they permanently accessible? Are they secure?) Yet most users of the Indiana Code are unaware of this, and consider the online Indiana Code to be trustworthy. (Access the 2007 article here.)

The May 2008 issue of Res Gestae will publish my newest article, "How much can you rely on what is in the Indiana Code? Part I - Noncode sections"

The problems outlined in the 2006 and 2007 articles are peculiar to the online version of the Indiana Code. This new article looks at problems that transcend the medium used for publication – these new, insofar as these discussions are concerned, problems exist with both the online and the printed versions of the Indiana Code. This article will suggest to the Indiana attorney that:

(1) Simply finding a provision in the Indiana Code is not enough. Due diligence may require you to, at a minimum, study the provision's history in an annotated version of the Indiana Code, or look back to the original enrolled acts. This is the subject of Part I.

(2) In certain areas of the law, the Indiana Code no longer may be relied upon for all the substantive law of the State on a particular topic. You will need to look elsewhere, and it may not be easy. This will be the subject of Part II.

Res Gestae has given me permission to post this draft version of Part I on the web, prior to official publication. If you have thoughts, concerns, examples, questions, objections, after reading Part I, please let me know. Where appropriate, I hope to address them in Part II.

Posted by Marcia Oddi on Monday, May 12, 2008
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Thursday, May 15th:

9:00 AM - Anthony A. Hopkins v. State of Indiana - Hopkins was previously convicted of several offenses and found to be an habitual offender. See Hopkins v. State, 759 N.E.2d 633 (Ind. 2001); Hopkins v. State, No. 49A02-0209-CR-780, slip op. (Ind. Ct. App. Sept. 30, 2003), trans. denied (Ind. Jan. 8, 2004). Hopkins admitted the elements in the habitual offender charge; the trial court did not advise Hopkins of certain rights discussed in Boykin v. Alabama, 395 U.S. 238, 243 (1969). In post-conviction proceedings, the Marion Superior Court determined that Hopkins' admission was not tantamount to a guilty plea, and denied post-conviction relief. The Court of Appeals reversed in Hopkins v. State, No. 49A05-0705-PC-279 (Ind. Ct. App. Dec. 31, 2007), vacated. The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal. Attorney for Hopkins: Cassandra J. Wright, Indianapolis, IN. Attorney for State: Ellen H. Meilaender, Indianapolis, IN.

9:45 AM - Todd Jensen v. State & Richard Wallace v. State - Richard Wallace v. State: In 1989, Wallace pleaded guilty to an offense against a child. After having served his sentence, he was informed that he was required to register for life as a sex offender, and following a jury trial, the Marion Superior Court entered a judgment of conviction for the class D felony of failing to register. The Court of Appeals rejected Wallace’s arguments that the duty to register violated the prohibition against ex post facto laws, and affirmed the conviction in Wallace v. State, 878 N.E.2d 1269 (Ind. Ct. App. Jan. 9, 2008), vacated. [See ILB summary here - 2nd case.] The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal. Attorney for Wallace: Kathleel Sweeney, Indianapolis, IN. Attorney for State: Zachary Stock, Indianapolis, IN.

Todd Jensen v. State: In 2000, Jensen pleaded guilty in the Allen Superior Court to various offenses against children, and was required to register as a sex offender for a period of 10 years pursuant to the statute then in effect. In 2006, after Jensen had been released from probation, the trial court determined that Jensen must register for life pursuant to changes in the registration statutes. The Court of Appeals reversed on grounds that imposition of a lifetime registration requirement in Jensen’s case violated the prohibition against ex post facto laws. Jenson v. State, 878 N.E.2d 400 (Ind. Ct. App. 2008), vacated. [The ILB entries on the Dec. 26, 2007 COA decision are here, here and here.] The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal. Attorneys for Jensen: Randall Hammond, Randy Fisher, Fort Wayne, IN. Attorney for State: J.T. Whitehead, Indianapolis, IN.

Webcasts will be available here.


This week's oral arguments before the Court of Appeals

None scheduled

Posted by Marcia Oddi on Monday, May 12, 2008
Posted to Upcoming Oral Arguments

Sunday, May 11, 2008

Law - "U.S. Legal Work Booms in India: New Outsourcing Industry Is Growing 60 Percent Annually" triggered by E-discovery rules

Rama Lakshmi of the Washington Post Foreign Service reports today:

GURGAON, India -- When Aashish Sharma graduated from law school two years ago, his father had visions of seeing him argue in an Indian court and eventually become an honorable judge.

Instead, Sharma, 25, now sits all day in front of a computer in a plush, air-conditioned suburban office doing litigation research and drafting legal contracts for U.S. companies and law firms. He is part of a booming new outsourcing industry in India that employs thousands of English-speaking lawyers such as him to do legal work at a small fraction of the cost of hiring American lawyers. * * *

Legal process outsourcing is being called the next big thing in Indian business. It marks India's climb up the chain of outsourcing jobs -- from low-end, back-office service functions in call centers to high-value, skilled legal work.

In the past three years, the legal outsourcing industry here has grown about 60 percent annually. According to a report by research firm ValueNotes, the industry will employ about 24,000 people and earn revenue of $640 million by 2010.

Indian workers who once helped with legal transcription now offer services that include research, litigation support, document discovery and review, drafting of contracts and patent writing. The industry offers an attractive career path for many of the 300,000 Indians who enroll in law schools every year. India and the United States share a common-law legal system rooted in Britain's, and both conduct proceedings in English.

The explosion of opportunity here was triggered by what are known as "e-discovery laws," a set of U.S. regulations established in 2006 to govern the storage and management of electronic data for federal court actions. Overnight, the volume of information to be stored, archived, filtered and reviewed for litigation swelled. But there were not enough affordable lawyers or paralegals to do the work in the United States.

"The new e-discovery rules sent American companies scurrying all over the place. Neither the corporates nor the law firms in America are geared to do this kind of work at short notice. And that is where the Indian players come in. We can bring together a large number of skilled lawyers in no time at all and at one-fifth the cost," said Srinivas Pingali, executive vice president at Quatrro, which also offers technical support, credit card fraud management, consumer research and architectural services for American clients, among other work. * * *

"Ninety percent of a lawyer's work is legal research and drafting, and all this can now be offshored to India," said Russell Smith, who worked in a Manhattan law firm called SmithDehn before moving to India to set up an outsourcing company in 2006. "A large portion of our fees in the U.S. is because of office rent. It is often a big decision to hire one attorney in the U.S. In India, we can hire 10 at a time and train them all at once." * * *

"My people in India can do everything from here, except sign the opinion letter and appear in an American court," he said.

Smith's Indian office recently researched and drafted the motion papers for the dismissal of a libel case against the producers of HBO's "Da Ali G Show." Smith said that if it had not been for the cheaper option of outsourcing, the producers would have settled.

Posted by Marcia Oddi on Sunday, May 11, 2008
Posted to General Law Related

Ind. Courts - Update on Supreme Court's case management system plans

"Current Activities and Next Steps" is the heading to this JTAC report posted recently on the Court website. It outlines the counties where the JTAC case management system is planned to be deployed during the next two years: "JTAC will work to make Odyssey available to all courts in the following counties: DeKalb, Allen, Huntington, Hamilton, Madison, Clark, Harrison, Floyd."

Statistics. The report notes:

Thousands Taking Advantage of Free Public Access. Public information on cases logged into Odyssey is available at no charge via the Supreme Court’s website (www.courts.in.gov).

During March 2008, more than 5,500 unique visitors used the website, viewing more than 216,000 pages. The convenience of the web-based access is evident by the number of users viewing documents 24 hours a day. While there were an average of 24,000 page hits between 3-4 p.m., there were also 860 hits between 3-4 a.m.

Perhaps. It is hard to know how to interpret these stats because each counter system is different. Because of that, most blogs (including the ILB) use Sitemeter so that stats are more readily compared.

During March, when the Court reported 5,500 unique visitors, for instance, the ILB had 33,841. On the other hand, during March, when the Court reports 216,000 "page views", the ILB had 54,679. (Here is a link to the ILB's counter [corrected]. There does not appear to be a link to the Court's counter.)

Page view figures are difficult to interpret. What is a "page"? Some counters count "hits" as pages. On the other hand, according to one tracking site:

a page view is each time a visitor views a webpage on your site, irrespective of how many hits are generated. Pages are comprised of files. Every image in a page is a separate file. When a visitor looks at a page (i.e. a page view), they may see numerous images, graphics, pictures etc. and generate multiple hits.
The ILB's meter counts pages, not hits. It appears possible that the court meter is counting "hits," so that when one does a search and gets a list of filings, rather than counting this as one page, each item on the list is counted individually.

Counties to be Covered. Currently the Court CMS project is covering Monroe County and Washington Twp. in Marion County. DeKalb, Allen, Huntington, Hamilton, Madison, Clark, Harrison, Floyd are listed as to be added in the next two years.

As discussed in this ILB entry from March 30th, JTAC has been unwilling to allow private companies to tap into the new Monroe County CMS. One of these companies, Doxpop, which has a network of 136 courts in 45 Indiana counties, had previously included Monroe County in its network. Since the JTAC CMS system was installed, however, Doxpop has been denied access, as detailed in the March 30th entry. The situation continues to remain unresolved.*

Will this continue to be a problem with the new list of counties? Are there overlaps? I've compared the JTAC list against the list of counties Doxpop currently serves. The counties in boldface in the JTAC list are currently part of Doxpop's network: DeKalb, Allen, Huntington, Hamilton, Madison, Clark, Harrison, Floyd. Interestingly, Allen County (civil cases only) was just announced by Doxpop last week.
____________
*Instead it is becoming much more onerous for counties to receive approval per Trial Rule 77(k) for public posting of Court Records on-line. The ILB has been told that the paperwork burden the counties and the provider have to submit to the Division of State Court Administration annually has increased substantially. I'm also told that the county courts are being told that "if the courts in your county elect to use the (JTAC) Odyssey case management system, you will not need to go through the renewal process set forth below ...".

Posted by Marcia Oddi on Sunday, May 11, 2008
Posted to Indiana Courts

Ind. Courts - Unsolved Tippecanoe County Courthouse bombing nearly ten years old

"Time is ticking on courthouse cold case" is the headline to this Sophia Voravong report today in the Lafayette Journal & Courier. Some quotes:

Just after 10:09 p.m. on Aug. 2, 1998, sheriff's Deputy Tom Lehman was dispatched to investigate reports of a fire at the Fourth Street entrance of the Tippecanoe County Courthouse.
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He didn't know what to make of learning that a pickup truck had driven into the building. More confusion set in when firefighters found an explosive device in the truck's bed.

"We were trying to figure out why someone would do that," Lehman recalled recently. "What in the world could they have been thinking?"

For the past year, Lehman, now a sheriff's detective, has been working with the FBI and the Bureau of Alcohol, Tobacco, Firearms and Explosives to find the person or people responsible for the attempted bombing.

Investigators have just three months before a 10-year federal statute of limitations for arson and related crimes runs out, said David Capp, interim U.S. Attorney for the Northern District of Indiana.

"Our time is clicking," he said.

No suspects were ever publicly named. No one has been charged.

But Lehman said investigators looked at "a lot of people" considered persons of interest.

Authorities since last spring have been going over all documents related to the initial investigation, making sure that each lead has been followed up.

"There was so much confusion around that time, to be honest," Lehman said. "We're trying to make sure that nothing has been overlooked."

Capp, who was with the U.S. Attorney's Office when the attempted bombing occurred, said the idea was that fresh sets of eyes would perhaps find details that had been missed.

He said investigators have been working regularly on the case. More information could be released soon.

"What we really need is for any member of the public who thinks they might know something to contact us -- even if in their minds, that information is insignificant," Capp said. "We want to talk to them and can keep things confidential, so they don't have to be concerned about that."

Lehman said authorities are working to put together a hot line to report tips anonymously. They also are trying to figure out the exact amount of reward money available for anyone who may have information that could lead to a conviction.

From a side-bar:
The next year, metal detectors were installed in the courthouse, placed at the front of County Court 2 -- now Superior Court 5 -- and Superior Courts 1 and 3.

Additional security updates were made after a series of bomb threats following the Sept. 11, 2001, terrorist attacks. In 2003, all but two entrances were closed, with the public entering on Fourth Street.

The public entrance was switched to Columbia Street in August 2006.

People entering the courthouse are required to empty their pockets, go through a metal detector and send their personal belongings through an X-ray machine to be examined for potential weapons.

Posted by Marcia Oddi on Sunday, May 11, 2008
Posted to Indiana Courts

Ind. Gov't. - "Same-sex benefits decision tabled" at Univ. Southern Indiana

Kate Braser's report today in the Evansville Courier & Press includes these quotes:

The University of Southern Indiana board of trustees opted not to vote on a resolution Saturday that would have extended employment benefits to same-sex domestic partners.

University President H. Ray Hoops earlier had submitted the resolution to the board agenda. He said USI is the only four-year public university in the state that does not provide the benefit.

The vote originally was slated for the end of Saturday's meeting, but trustee Ted C. Ziemer Jr. addressed the board at the beginning, asking that the item be removed from consideration.

"I would object to voting on this resolution at this time so that all relevant information can be gathered," Ziemer said. "I have some concern this resolution would be unconstitutional and illegal under state law, and I think we need time for our administrators to get legal opinions." * * *

Opposition had surfaced quickly after word spread of the proposal.

Keller Schroeder & Associates, a local technology consulting company, sent a letter to the university asking it to reject the resolution.

Also, Glen Kissel, assistant professor of engineering, said as of midday Friday, more than 2,500 e-mails opposing same-sex domestic partner benefits had been sent to Hoops and the board of trustees, as well as to Gov. Mitch Daniels. He said the e-mails came from supporters of the American Family Association of Indiana.

Kissel was among several at the meeting who said they were pleased the trustees opted not to address the resolution.

"I think it was wise to delay the decision until more consideration can be given," said Mike Lockard, a USI alumnus.

Lockard said he agreed officials needed to study Indiana law further. He also said extending benefits to same-sex domestic partners "creates a separate class."

"What about heterosexual partnerships?" he asked.

Lockard said while other state schools may offer the benefit, many private colleges in the state do not, and he disagreed with the assertion it would attract better candidates to faculty positions.

"What is wrong with the faculty here now?" he asked. "I went to school here, and my daughter does now, and this is a fine school. It's not been a detraction up until now."

Kissel previously said he wanted the university to consider a more inclusive plan that would extend domestic partner benefits beyond same-sex relationships. After Saturday's removal of the item from the agenda, Kissel said he was pleased.

"I am very happy the discriminatory homosexual-only domestic partner benefit has been set aside," he said.

Chad Tew, associate professor of online journalism, said he has been active in trying to get the resolution in front of the trustees.

"I am very disappointed they tabled it," he said. "It doesn't mean it was defeated, so in that sense I am hopeful. I can tell you the majority of faculty are behind this, and we will work with the administration in any way to give the board the information they need.

"I don't buy that objection with relation to it being a legal issue. The states that have had problems have been those states with a constitutional amendment defining marriage as between man and woman, and that was defeated soundly in Indiana."

Posted by Marcia Oddi on Sunday, May 11, 2008
Posted to Indiana Government | Indiana Law

Ind. Decisions - Yet more on: Lethal injection case heard before SCOTUS

Following on earlier ILB entries on lethal injection, from Yahoo News today:

CHATTANOOGA, Tenn. - Supreme Court Justice John Paul Stevens says the euthanized Kentucky Derby horse Eight Belles probably died more humanely than death row prisoners do.

Stevens's comments Friday night came a month after he voted with a majority of the Supreme Court to approve the most widely used method of lethal injection, while saying for the first time that he now believes the death penalty is unconstitutional.

According to the Chattanooga Times Free Press, Stevens told an audience of judges and lawyers that he checked into the procedure used to kill Eight Belles and was surprised to learn it is against the law in Kentucky to kill animals using one of the drugs in a three-drug lethal injection cocktail that many states, including Kentucky, use to execute prisoners. * * *

In its 7-2 ruling last month, the Supreme Court turned back a challenge to the execution procedures in place in Kentucky, which employ three drugs to sedate, paralyze and kill inmates. Similar methods are used by roughly three dozen states.

The argument against the three-drug protocol is that if the initial anesthetic does not take hold, the other two drugs can cause excruciating pain. One of those drugs, a paralytic, would render the prisoner unable to express his discomfort.

In his opinion, Stevens suggested that states could spare themselves legal costs and delays in executions by eliminating the use of the paralytic.

Posted by Marcia Oddi on Sunday, May 11, 2008
Posted to Indiana Decisions

Saturday, May 10, 2008

Ind. Decisions - "Appeals court rules laser hair removal is not health care"

The May 8th Court of Appeals opinion in the case of OB-GYN Associates of Northern Indiana, P.C. v. Tammy Ransbottom (see ILB summary here - 5th case) is the subject of a story today by Jeff Parrott of the South Bend Tribune that begins:

The Indiana Court of Appeals has ruled that cosmetic laser hair removal, a growing trend nationally, is not "health care," clearing the way for two women's negligence lawsuits to proceed.

Tammy Ransbottom of North Liberty and Mary Maxie of Mishawaka last year sued OB-GYN Associates of Northern Indiana, of South Bend, over burns and permanent disfigurement they say they suffered during cosmetic laser hair removal. Specifically, they claim a nurse who performed the procedures, without a doctor present, had set the laser device too high.

OB-GYN Associates, a medical practice, asked St. Joseph County Circuit Court Judge Michael Gotsch to dismiss Ransbottom's suit, arguing the procedures were medical in nature and therefore were subject to Indiana's Medical Malpractice Act.

Such a finding would have required the plaintiffs to initially file their complaints with a three-physician "medical review" panel, under the auspices of the Indiana Department of Insurance. If the panel had found their claims were not frivolous, Ransbottom and Maxie could have filed suit in court, the process all claims of medical malpractice follow in Indiana. * * *

Attorney Vincent Campiti, representing Maxie and Ransbottom, said they are glad not to have to undergo the medical review panel process, which can take a year or two itself before a court case even begins. "This will mean a lot less expense; it's less time-consuming and it gives us immediate access to the courts," Campiti said.

Being allowed to pursue the cases as simple negligence lawsuits also exempts them from the $1.2 million damages cap to which medical malpractice cases are subject, Campiti said, while noting he has no idea whether his clients' damages will be that high.

Posted by Marcia Oddi on Saturday, May 10, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Lake Superior Court judge's signature allegedly forged on order

Marisa Kwiatkowski of the NWI Times reports:

CROWN POINT | A former probation department secretary forged a Lake Superior Court judge's signature to stop the garnishment of her wages, according to a Lake County police report.

The garnishment was ordered out of the woman's county paycheck last September to pay off a more than $21,000 debt she owed to Fairlane Credit LLC, court records show.

No charges had been filed against the woman as of Friday. Lake County Prosecutor Bernard Carter said there is insufficient evidence to prove it was the woman who forged the order.

The doctored order was discovered late last year when an attorney for Fairlane Credit LLC, the plaintiff in the credit case against the woman, complained it was not receiving its money.

Lake Superior Court Judge Elizabeth Tavitas had granted an order Sept. 6 to garnish the woman's wages to pay off the debt, court records show.

Thirteen days later, an order reversing the garnishment was filed in the clerk's office with what appeared to be Tavitas' signature, according to a document file stamped Sept. 19.

Tavitas and her magistrate were out of town at an Indiana judicial conference Sept. 19, according to Tavitas' secretary.

The woman used her position with the Lake County Criminal Court Probation Department to sign Tavitas' name and file stamp the order, a Lake County police report alleges.

Posted by Marcia Oddi on Saturday, May 10, 2008
Posted to Indiana Courts

Ind. Courts - "Chris Teagle to succeed Lennington on bench"

Rick Yencer reports today in the Muncie Star-Press:

MUNCIE -- Republican attorney Chris M. Teagle next week will succeed Democrat Wayne Lennington as judge of Delaware Circuit Court 5.

Gov. Mitch Daniels announced the appointment Friday afternoon, hours before a local roast of Lennington, who has resigned effective May 15 in the wake of a probe by a state commission that oversees judicial conduct, and a criminal investigation by local and state authorities.

Teagle, 48, was the only person who applied for the job, according to Brad Rateike, spokesman for the governor.

"(Teagle) was chosen because he possesses the qualities Gov. Daniels looks for in a good judge," Rateike said. "He is extremely intelligent, experienced, fair, and above all else, a man of integrity." * * *

Teagle also is the Republican nominee for the Circuit Court 5 bench and will face veteran lawyer Tom Cannon Jr., who won the Democratic nomination on Tuesday, in the Nov. 4 general election. * * *

Circuit Court 1 Judge Marianne Vorhees, the county's presiding judge, was glad the appointment came quickly. Other judges have handled a portion of Lennington's caseload since he agreed to give up jurisdiction of criminal cases after reports of investigations into his business dealings and judicial conduct.

"Hopefully, we can get back to some normalcy," Vorhees said.

Teagle's appointment is effective May 16, the day after Lennington's resignation takes effect.

Posted by Marcia Oddi on Saturday, May 10, 2008
Posted to Indiana Courts

Ind. Courts - "Colleagues put retiring judge Wayne Lennington on hot seat"

For background, see this ILB entry from May 3rd, headed "Lennington scandal could play role in race for Delaware Circuit Court 5."

Today Rick Yencer of the Muncie Star-Press reports:

Three generations of Lenningtons have practiced law or served as Delaware County judges over the past century.

On Friday, members of the Muncie Bar Association and county court system paid their respects to Delaware Circuit Judge 5 Wayne J. Lennington, who is retiring next week, with a good-hearted roast at Springwater Park.

More than 100 people, including friends and family of Lennington, heard plenty of courtroom tales about Lennington's life as a lawyer and judge.

Lennington, 77 -- who resigned this spring amid a judicial conduct review and criminal investigation into his business dealings -- said he was looking for a job, but is likely to continue practicing law. * * *

Attorney Charles "Chic" Clark, Lennington's legal counsel in dealings with the state disciplinary commission, recalled telling his client to let his attorney do the talking when news of the disciplinary settlement came.

"Less than 24 hours after that conversation, I was reading my newspaper and that dumb ---- made a quotation in the newspaper," Clark said.

Clark's next conversation was with Meg Babcock, counsel for the Indiana Judicial Qualifications Commission, who was upset with Clark over Lennington's remarks.

"Don't raise hell with me," Clark recalled telling Babcock. "He did it." * * *

One of the biggest laughs came just before Lennington's longtime friend, attorney Don Dunnuck, spoke.

Ralph and Vicki Craig, a member of Lennington's court staff, led in a donkey wearing a judicial robe and Lennington's trademark bow tie.

Posted by Marcia Oddi on Saturday, May 10, 2008
Posted to Indiana Courts

Ind. Gov't. - "GOP's Zoeller declares for attorney general race"

The Louisville Courier Journal reports:

New Albany native Greg Zoeller said yesterday that he has filed his formal "declaration of candidacy" for state attorney general with the Indiana Republican State Committee.
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Zoeller is chief deputy to Indiana Attorney General Steve Carter, who has announced that he will not seek re-election. * * *

Each party selects a nominee for attorney general at its state convention. The Republican convention is June 2.

In addition to Zoeller, Valparaiso Mayor Jon Costas has said he intends to seek the Republican nomination for the office.

Posted by Marcia Oddi on Saturday, May 10, 2008
Posted to Indiana Government

Ind. Decisions - More on: Federal court grants preliminary injunction re judicial speech rights

Updating this ILB entry from May 6th, the Fort Wayne Journal Gazette has an editorial today headed "Free speech for judges":

The Indiana Supreme Court should accept the message in a ruling by a Fort Wayne federal judge in a case involving a candidate for Kosciusko Superior Court and restore the First Amendment rights of judicial candidates.

U.S. District Court Judge Theresa Springmann ruled this week that the state’s highest court temporarily cannot enforce its rules that effectively prohibit judicial candidates from responding to questionnaires about their positions on issues. State judicial canons of ethics prohibit attorneys seeking judgeships from making “pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.”

The ruling came about 18 months after another federal judge struck down the Indiana rule. A federal appeals court overturned that decision, however, ruling that the group that brought the case, Indiana Right to Life, was not directly affected and lacked proper standing.

Springmann’s decision came, appropriately, on Tuesday, the same day that one of the candidates involved in the case, Torrey Bauer, was narrowly defeated in the Kosciusko County Republican primary for a Superior Court nomination. Bauer, unaware that the earlier ruling had been reversed, had filled out a questionnaire from Indiana Right to Life and feared he would face disciplinary action. Because he and a sitting judge filed the case along with Indiana Right to Life, the issue of proper standing should not block this case from succeeding.

The current rules exist for good reason. A judge must weigh each case on its own facts and applicable law, and improper statements made during a campaign can portray a judge as deciding how he or she will handle a case before hearing it.

But voters have a right to hear candidates’ opinions on issues, and in 2002, the U.S. Supreme Court threw out similar rules in Minnesota.

Attorney James Bopp Jr. successfully argued this week’s case. Bopp said Indiana’s rule goes too far, infringing on the First Amendment rights of judicial candidates. Indiana can still have a rule barring candidates from saying how they would rule on specific cases, he said, without prohibiting them from commenting on broader issues.

And if a candidate says too much about specifics, voters will react accordingly. “Voters want impartial judges,” Bopp said. “If a judicial candidate goes too far, he’s going to actually lose votes.”

Indeed, how much discretion a candidate uses in campaigning could well give voters insight into how the candidate would serve on the bench.

By issuing a preliminary injunction, Springmann ruled that the plaintiffs are likely to prevail in a trial, though the court has yet to rule on the merits of the lawsuit. Still, this week’s injunction combined with the 2006 ruling and the U.S. Supreme Court ruling in the Minnesota case should cause the state Supreme Court to revise its rules and restore proper First Amendment rights to judicial candidates.

In understanding the Indiana Supreme Court's position, it may be useful to review the detailed Indiana Right to Life Questionnaire.

Posted by Marcia Oddi on Saturday, May 10, 2008
Posted to Ind Fed D.Ct. Decisions

Friday, May 09, 2008

Ind. Decisions - Transfer list for week ending May 9, 2008

Here is the Indiana Supreme Court's transfer list for the week ending May 9, 2008.

There were two transfers granted this week. They are summarized in this ILB entry from May 8th.

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, May 09, 2008
Posted to Indiana Transfer Lists

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

Updating this ILB entry from Feb. 15, 2008, the ILB has received a press release from attiorney James Bopp, Jr. that begins:

Today, the Indiana Democratic Party and the Indiana Republican Party asked the Indiana Supreme Court to allow them to file a joint friend-of-the-court brief in a case involving computer-generated political calls. The case, State of Indiana v. American Family Voices, Inc., was initiated by the State of Indiana against American Family Voices and others for using automatic dialing machines to make political calls during the 2006 election cycle. The case was dismissed by the trial court, based on the Defendant’s argument that the statute only prohibited commercial calls. The Attorney General appealed and the case was taken up directly by the Indiana Supreme Court, bypassing the Court of Appeals. Appellees are represented by DeLaney & DeLaney, LLC.

Both political parties have a direct interest in the case as they, along with their candidates, would use robocall technology to make political calls, if it were legal. Both political parties believe that the First Amendment protects their right to make computer-generated political calls. The political parties will argue in their friend-of-the-court brief that the Indiana robocall law should be construed to only reach commercial calls, in order to avoid a finding that the statute is unconstitutional because it also prohibits political calls.
Oral argument in the case is scheduled for June 16, 2008.

Posted by Marcia Oddi on Friday, May 09, 2008
Posted to Ind. Trial Ct. Decisions

Law - "Empty Homes Spur Cities' Suits: Banks, lenders sued to recover costs"

Julie Kay of The National Law Journal has an interesting article today that begins:

Homeowners aren't the only ones claiming they were victimized by the subprime foreclosure debacle sweeping the nation.

Cities now dealing with scores of abandoned, foreclosed homes have started suing banks and mortgage companies to recoup their costs, while other cities are hauling lenders before code enforcement boards and county courts to force them to maintain abandoned properties.

The innovative legal tactics are designed to recoup the city's lost property taxes as well as the cost of fire departments, police, code enforcement or even demolition -- any city services needed to clean up or deal with the foreclosed properties.

Cleveland; Baltimore; Buffalo, N.Y.; and Minneapolis, Minn., have all filed lawsuits against lenders or developers based on the devastating effects foreclosures have wreaked on their communities. The lawsuits were filed in recent months under different theories, in state and federal court.

Cleveland and Buffalo filed suits under public nuisance laws. Minneapolis' suit was brought on consumer fraud grounds, while Baltimore took the unusual approach of filing suit in federal court under alleged Fair Housing Act violations.

In addition to filing a lawsuit in February, Buffalo city prosecutors routinely haul banking officials before the local housing court to force them to fix up foreclosed and abandoned properties.

Posted by Marcia Oddi on Friday, May 09, 2008
Posted to Indiana Law

Environment - More on: Dangers in commencing construction before permit is final

Updating this ILB entry from May 8th, Gitte Laasby of the Gary Post-Tribune has more today on the BP sir permit.

Christine Kraly of the NWI Times also has a story, titled "Appeal to BP permit in the works?," and including this quote:

The Office of Environmental Adjudication's two environmental law judges review IDEM decisions.

Judge Mary Davidsen said her office has not yet received any appeals to BP's construction permit and that appeals are considered filed on the date they are mailed.

Although no one has stepped forward yet, some groups may be preparing to do so.

"We are carefully considering an appeal," said Howard Learner, president and executive director of the Environmental Law and Policy Center. "We, and our colleagues, are deciding whether and in what form to submit."

On the day the permit was approved, Ann Alexander, senior attorney for the Natural Resources Defense Council, said her group was "considering our options" in appealing.

The refinery may have to stop construction if a filed petition requests it be halted, Davidsen said. A hearing would likely be scheduled quickly to determine shuttering construction if such a request were made, she said.

If a permit appeal is successful, BP could be ordered to rip down what it has built, depending on its various environmental impacts, Davidsen added.

But Davidsen said breakdowns are rare, and facilities instead are ordered not to operate the equipment.

Posted by Marcia Oddi on Friday, May 09, 2008
Posted to Environment

Ind. Decisions - Court of Appeals issues 5 today (and 19 NFP)

Yesterday the Court of Appeals posted 29 opinions, today there are 24 more. Get out your reading glasses!

For publication opinions today (5):

In Belden, Inc., and Belden Wire & Cable v. American Electronic Components, Inc., a 22-page opinion, Judge Barnes writes:

Belden, Inc., and Belden Wire & Cable Company (collectively “Belden”) appeal the trial court’s granting of partial summary judgment in favor of American Electronic Components, Inc. (“AEC”). We affirm.

Belden raises four issues, which we consolidate and restate as: I. whether the limitation on damages on the back of Belden’s order acknowledgment applies to the parties’ contract; and II. whether Belden created an express warranty based on its prior assertions to AEC. * * *

[Re "I. Battle of the Forms"] In sum, we agree with the trial court’s conclusion that Section 2-207(3) applies to this case and that Section 2-207(3), not Section 2-207(2), controls the terms of the parties’ agreement. We also conclude that Section 1-205 does not establish a course of dealing in which AEC agreed to the limitation on damages. The trial court properly granted summary judgment in favor of AEC as to the issue of the applicability of Belden’s limitation on damages. * * *

[Re "II. Express Warranty"] Irrespective of whether the course of dealing established that AEC assented to Belden’s proposed limitation on damages, the parties’ course of dealing established that Belden made an express warranty regarding its compliance with the quality control standards. The limitation on damages and the express warranty are unrelated issues—there is no correlation between the two. * * *

[Conclusion] Belden’s limitation on damages is not a term of the parties’ contract and, by complying with AEC’s quality control program, Belden expressly warranted its compliance with AEC’s quality control program, which included the use of Quantum insulation. The trial court properly granted AEC’s partial motion for summary judgment and denied Belden’s partial motion for summary judgment. We affirm.

Paul Quiroz v. State of Indiana - Interesting arguments, including "Quiroz argues that because, at the time he pled guilty, the issue of whether enhanced consecutive sentences could be imposed was uncertain, the rule of lenity should be applied to his sentence," and "In his brief, Quiroz states that he “simply argues that given the instability in the law concerning sentencing, both on the federal and state level, that begun with Apprendi in 2000 and continues today, he should have the benefit of the Court of Appeals holding in Robertson.” However, sentencing affirmed.

In State of Indiana v. Larry Ray , a 9-page opinion, Judge Darden writes:

Issue. Whether the trial court erred in finding that pursuant to Indiana’s Implied Consent Law, in order to effect the suspension of driving privileges for a refusal to consent to a chemical test for intoxication, the person must have been warned of that consequence after he has refused to submit to such a test. * * *

As indicated above, Deputy Campbell advised Ray three separate times that his “refusal to submit to a chemical test will result in a suspension of your driving privileges for one year.” In fact, Ray testified that Campbell had read the warning to him “multiple times.” There was no evidence that Ray did not understand the advisement and the consequence of his refusing a chemical test. We find that it would be a statutory interpretation producing an “absurd result[]” to require that despite the multiple warnings that expressly advised Ray that if he refused to consent to the chemical test, his license would be suspended, the statute nevertheless requires that he be so advised again after he refused the chemical test.

Deputy Campbell’s advisements to Ray complied with the statute, and the evidence established that Ray refused to consent to the chemical test offered. Therefore, the trial court erred as a matter of law when it held that these facts failed to satisfy the statutory requirements for suspension of Ray’s license. Reversed.

In Steven Kendall v. State of Indiana , a 23-page, 2-1 opinion (a 13-page opinion and a 10-page dissent), Judge Kirsch writes:
Steven Kendall appeals the post-conviction court’s denial of his Petition for Post-Conviction Relief. Kendall raises one issue on appeal, which we restate as follows: whether Kendall received ineffective assistance of appellate counsel. We affirm. * * *

When the Supreme Court decided Blakely on June 24, 2004, Kendall’s case was fully briefed in this court. Our opinion was handed down on August 3, 2004. Typical procedure for this court would have been to circulate the draft opinion for votes and comments on July 13, 2004—at least three weeks prior to the hand down date. Thus, appellate counsel would have had a maximum of twelve working days to read and analyze Blakely and seek to file an amended brief or twenty-seven working days to seek rehearing. * * *

Given the legal environment of the time, an environment marked by unpredictability and uncertainty on this court and elsewhere regarding the application of Blakely, we do not find that counsel was ineffective for failing to seek leave to file an amended brief or to raise the issue on rehearing or petition to transfer. We commend the post-conviction court for its clear and thoughtful entry. Affirmed.

MAY, J., concurs.
RILEY, J., dissents with separate opinion. [which begins] I respectfully dissent. First, our supreme court has established a liberal approach permitting defendants with Blakely claims, whose counsels otherwise would have waived those claims under prior Indiana legal precedent, opportunity to litigate their claims; and secondly, when Kendall’s counsel’s performance is compared to the diligent work of other attorneys representing clients similarly situated with arguable Blakely claims, it is apparent that Kendall’s counsel’s performance fell below prevailing professional norms. I would conclude that fairness requires we find Kendall’s appellate counsel ineffective in this situation.

[Note: the opinion includes a number of interesting footnotes.]

Datwone B. Fry v. State of Indiana - Affirmed. Interesting comprehensive discussion of admission of cell phone records, including whether they are self-authenticating.

NFP civil opinions today (5):

Janet Parfenoff v. Dawn Parfenoff (NFP) - "Parfenoff has failed to demonstrate prima facie error in the issuance of a protective order against her under the Indiana Civil Protection Order Act. Judgment affirmed."

In the Matter of the Paternity of G.K. (NFP) - "Shannon Gibson (“Mother”) appeals the trial court’s grant of a petition for visitation filed by Kevin Slicker. Mother raises two issues, which we revise and restate as: I. Whether the trial court erred by denying Mother’s motion to consolidate the paternity action with the adoption proceeding; and II. Whether the trial court abused its discretion by awarding stepparent visitation. We reverse and remand."

Jessica (Reishus) Anderson v. Devin A. Reishus (NFP) - "Jessica (Reishus) Anderson (Mother) appeals from the final dissolution decree that awarded sole custody of her minor child, D.R., to Devin Reishus (Father). On appeal, Mother presents the following issues for review: 1. Did the trial court err in failing to provide that Mother should have the right of first refusal to care for D.R. when Father was unavailable but D.R.’s paternal grandmother was available? 2. Did the trial court abuse its discretion in awarding Father sole custody of D.R.? We affirm."

Term. of Parental Rights of A.S., S.W., T.R., and Z.S., Angela Christian Shouse v. St. Joseph County Dept. of Child Services (NFP) - "Based on the record before us, sufficient evidence existed to support the trial court’s finding that there was a reasonable probability that the conditions that resulted in the Children’s removal would not be remedied. We reverse a termination of parental rights “only upon a showing of ‘clear error’ — that which leaves us with a definite and firm conviction that a mistake has been made.” Egly v. Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We find no such error here and, therefore, affirm the trial court. Affirmed.

Rodney Scott Monce v. Midwest Warehouse Corp. (NFP) - "Midwest did not discriminate against Monce because he was a person with a disability. Instead, Monce was terminated from the job of outside sale representative because he could not perform the essential duties of that position.

Like the trial court, we find no genuine issue of material fact to preclude entry of summary judgment in favor of Midwest on Monce’s claims that he was fired in violation of the ADA or in retaliation for filing a worker’s compensation claim. Affirmed."

NFP criminal opinions today (14):

State of Indiana v. Clint A. Jervis (NFP) - "Clint A. Jervis was charged with four counts, which, listed in order, were possession
of chemical reagents or precursors with intent to manufacture methamphetamine as a Class C felony, dealing in methamphetamine as a Class B felony, dealing in a sawed-off shotgun as a Class D felony, and dealing in methamphetamine as a Class A felony. He was convicted of Counts I and III after the trial court granted his motion for directed verdict on Counts II and IV. The State appeals, raising the following issue: whether the trial court erroneously granted Jervis’s motion for directed verdict on Counts II and IV. * * *

"Although we reverse the erroneous judgment on the evidence in favor of Jervis, he cannot be retried because an erroneous entry of acquittal by the trial court acts as an acquittal for double jeopardy purposes."

State of Indiana v. Renda Hall (NFP) - "The State petitions for rehearing following our decision in State v. Hall, No. 90A04-0709-CR-545 (Ind. Ct. App. Feb. 26, 2008), in which we affirmed the trial court’s granting of Hall’s motion to suppress. Although we grant the State’s petition for rehearing, we affirm our decision in all regards. We issue this opinion on rehearing simply to clarify our earlier decision. * * *

"Any evidence recovered from the car, including the paraphernalia and drugs, was found as a result of Hall’s illegal detention. Regardless of whether the evidence was discovered pursuant to a dog sniff or a search conducted by a police officer, it is fruit of the poisonous tree."

Harold E. Mummey v. State of Indiana (NFP)

Shannon Carlson v. State of Indiana (NFP)

David Ohm v.State of Indiana (NFP)

Todd E. Barlow v. State of Indiana (NFP)

Roger Davis v. State of Indiana (NFP)

Tyrone Rayford v. State of Indiana (NFP)

David R. Eggert v. State of Indiana (NFP)

Johnny White v. State of Indiana (NFP)

Aaron Giroud v. State of Indiana (NFP)

Dennis Eugene Scott v. State of Indiana (NFP)

Susie Fisher v. State of Indiana (NFP)

Barry Fitzgerald v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 09, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Results of the Feb. 2008 Indiana bar exam available online

Access them here.

Posted by Marcia Oddi on Friday, May 09, 2008
Posted to Indiana Courts

Thursday, May 08, 2008

Ind. Courts - Still more on: "Howard County Judge accuses deputy prosecutor of drug use"

Updating this ILB entry from May 3rd, the Kokomo Perspective has an editorial today that begins:

Judge Stephen Jessup has made a career out of inconsistency on and off the bench, and his latest act -- admitting in open court to accusing deputy prosecutor David Steele of drug use -- goes well beyond the realm of eccentricity or indifference to what is expected from a person in his position.

Posted by Marcia Oddi on Thursday, May 08, 2008
Posted to Indiana Courts

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

Not only booksellers, but the Indianapolis Museum of Art, according to this longish story by Tim Evans of the Indianapolis Star, updating his earlier story from yesterday. Today's story begins:

The Indianapolis Museum of Art, which sells art books containing images of nudes painted by the Old Masters, joined a civil rights group Wednesday in suing over a law that would require a business selling pornography to register with the state.

Maxwell L. Anderson, Melvin & Bren Simon director and chief executive of the IMA, said he is concerned about the law's effect on the museum and the broader message it sends.
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"Our role in this community is to foster tolerance for creativity, and this law is completely in opposition to that mission," Anderson said.

He added that the law "is not a signal of a progressive place."

Posted by Marcia Oddi on Thursday, May 08, 2008
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 5 today (and 24 NFP)

More details to follow

For publication opinions today (5):

In Town of Georgetown v. Edwards Community, Inc. et al , an 11-page opinion, Judge Mathias writes:

The Town of Georgetown (“the Town”) appeals the order of the Floyd Circuit Court imposing a moratorium on future attempts by the Town to annex certain territories and awarding attorney fees to Edwardsville Community, Inc. (“Edwardsville”). We reverse. * * *

The trial court erred in imposing a forty-two month moratorium on future annexation attempts by the Town because Edwardsville’s remonstrance was facially insufficient under Section 11 [IC 36-4-3-11]. Because of this, the trial court could not properly set a hearing pursuant to Section 11(c), and without a hearing set under Section 11(c), there was no trigger for the moratorium once the Town repealed the annexation ordinances. The trial court also erred in ordering the Town to pay Edwardsville costs because there was no judgment on the merits of the remonstrance.

Gary Gerlach v. Larry Gene Woodke - "Although we agree with Gerlach that the record is not clear about what Woodke was doing at the time of the injury and thus may not have been injured while performing maintenance and repair work, this oversight on our part does not change our conclusion that Woodke was not a farm or agricultural employee at the time of his injury. Accordingly, we grant Gerlach’s petition for purposes of correcting our oversight and addressing the other issues raised in the petition, but otherwise affirm our original opinion in its entirety."

Dennis Peterson v. Charles Lambert, John Doe, et al - "Peterson’s claims rest on the allegation that in confiscating his baby powder and addressing or failing to address his grievances thereafter, the defendants were acting willfully and wantonly and clearly outside the scope of their employment. Baby powder is on the list of personal property that is prohibited at MCF. Prison administrators are accorded “wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547 (1979). Peterson has alleged no facts that would support his contention that the defendants were acting willfully, wantonly, or outside the scope of their employment in confiscating a prohibited item, and he has not made a claim challenging MCF’s policies prohibiting certain items.1 Peterson’s complaint lacks an arguable basis in law or fact and the trial court properly dismissed both of his claims."

In Allstate Insurance Co. v. Ted and Rosella Fields, an 11-page opinion, Judge Mathias writes:

A default judgment was entered against Allstate Insurance Company (“Allstate”) in Lake Superior Court on a claim of bad faith filed by policyholders Ted and Rosella Fields (“the Fieldses”). Thereafter, a jury trial was held to determine the amount of damages. The jury awarded compensatory damages in the amount of two million dollars and punitive damages in the amount of eighteen million dollars. The trial court reduced the punitive damage award to six million dollars pursuant to Indiana Code section 34-41-3-4. Allstate appeals and raises the following dispositive issue: whether the trial court erred when it denied Allstate’s motion for partial summary judgment on the bad faith claim. We reverse and remand for proceedings consistent with this opinion. * * *

As in Fields I, we conclude that the trial court erred when it denied Allstate’s motion for partial summary judgment. For this reason, Allstate should not have had a default judgment entered against it on the bad faith claim. Accordingly, we reverse and remand to the trial court with instructions to vacate the jury’s verdict and to enter summary judgment in favor of Allstate on the Fieldses’ bad faith claim.

In OB-GYN Associates of Northern Indiana, P.C. v. Tammy Ransbottom, a 12-page opinion, Judge Friedlander writes:
Upon interlocutory appeal, Ob-Gyn Associates of Northern Indiana, P.C. (Ob-Gyn) appeals the denial of its motion to dismiss a negligence action against it filed by Tammy Ransbottom. The propriety of that ruling hinges upon the answer to the following question: Is cosmetic laser hair removal “health care” within the meaning of Indiana‟s Medical Malpractice Act? We affirm. * * *

In summary, we conclude that the laser hair removal treatment administered by Roschek did not constitute health care with the meaning of the Medical Malpractice Act, and the trial court did not err in denying Ob-Gyn‟s motion to dismiss.

NFP civil opinions today (10):

Mary Ann Smith-Dobben v. Richard Lee Dobben (NFP) - "The findings amply support the trial court’s conclusion that there had been substantial changes in circumstances, and that it was in the best interest of E. and D. for Father to be granted physical and legal custody of them, and in the best interest of J. that Mother be granted physical and legal custody of him. Affirmed."

Michael and Mamie Williams v. Gregory Hilycord (NFP) is a 2-1 opinion, with the majority writing: "A default judgment was entered in Bartholomew Superior Court against Michael and Mamie Williams (“the Williamses”) voiding a land sales contract they had entered into with Gregory Hilycord (“Hilycord”) for the purchase of a large tract of land in Bartholomew County. The Williamses filed a motion to set aside default judgment, which was denied. They appeal and argue that the trial court erred when it granted default judgment in favor of Hilycord because the remedy of forfeiture was not warranted by the allegations in the complaint. We reverse and remand for proceedings consistent with this opinion."

C.L. v. R. F. (NFP) - "Having concluded that the trial court erred by failing to conduct a hearing on Father’s motion to dismiss, we need not consider Mother’s remaining claims. The judgment of the juvenile court is reversed and remanded for further proceedings."

Amsted Industries Inc. d/b/a American Steel Foundries v. Jess A. Kaufman and Crane America Services (NFP) - "In that the language of the indemnification provision before us essentially mirrors that in Moore, the result is the same. When the dependent clauses are read together, the provision as a whole, in clear and unequivocal terms, expressly addresses the subject of Crane America’s indemnification of Amsted for Amsted’s own negligence. Thus, Crane America knowingly and willingly accepted its obligation to indemnify Amsted unless the injury was solely caused by the negligence of Amsted. We therefore conclude that the trial court erred in granting Crane America’s motion for summary judgment and accordingly reverse. Furthermore, as we conclude that the indemnification provision is valid and enforceable, we also conclude the trial court erred in denying Amsted’s motion for partial summary judgment. Reversed and remanded for further proceedings."

Commissioner, Indiana Department of Environmental Management v. Bulk Petroleum Corp. (NFP) - "We do not believe these circumstances are those of clear, uncontested unlawful conduct necessitating the application of the per se rule, but rather the breach of an agreement as expressed in the Further Investigation Report and Corrective Action Plan. The per se rule has no application in this case. Therefore, IDEM was required to demonstrate irreparable harm in order to obtain the requested preliminary injunction. The trial court did not err in denying the petition."

Andy's Truck & Equipment Co., Inc. v. State of Indiana and Commissioner of Lake County, Indiana (NFP)

Francis "Swede" Colen v. Ohio County, Indiana, et al (NFP)

In the Matter of R.W. and M.W. (NFP)

Keith Allen Matthew v. Patricia Jean Matthew, Robert L. Arthur (NFP)

Marriage of Gail (Marquart) Zermano v. David M. Marquart (NFP)

NFP criminal opinions today (14):

James E. Metz v. State of Indiana (NFP)

Victor Crews v. State of Indiana (NFP)

Dwayne Ellington, Jr. v. State of Indiana (NFP)

Marlon J. Davis v. State of Indiana (NFP)

James G. Wilson v. State of Indiana (NFP)

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

Nicholas Gaetz v. State of Indiana (NFP)

Henry Luke Kellems, Jr. v. State of Indiana (NFP)

Ralph E. Luster v. State of Indiana (NFP)

Jernard A. Freeman v. State of Indiana (NFP)

Kwasi Barnes v. State of Indiana (NFP)

Allison Hyatt v. State of Indiana (NFP)

Danyelle Montgomery v. State of Indiana (NFP)

Jason C. Amonett v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 08, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Carmel City Judge defeats longtime Hamilton County prosecutor

Chris Sikich reports in the Indianapolis Star:
A Carmel city judge in his second year in office defeated the longtime county prosecutor in the Republican primary for Hamilton County Circuit Court judge. In a race closely watched by county Republicans, Paul Felix, 38, won the GOP nomination for the general election against Sonia Leerkamp, 60, with about 56 percent of the vote. * * * Leerkamp, who will not seek re-election after her prosecutor term ends in 2010, said she's disappointed Republican party leaders backed Felix.

Posted by Marcia Oddi on Thursday, May 08, 2008
Posted to Indiana Courts

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

In U.S.A. v. Teresa and Michael Osburn (ND Ind., Judge Lozano), a 7-page opinion, Chief Judge Easterbrook writes:

In 1998 Michael Orsburn was elected Trustee of Keener Township in Jasper County, Indiana. The Trustee administers funds for emergency services and relief of the poor. Michael appointed his wife, Teresa Orsburn, to keep records and write checks. The Orsburns were poor custodians of the public’s funds. Between 2000 and 2004 they embezzled about $310,000, roughly 15% of the money that passed through their hands. Teresa wrote checks to Michael using erasable ink; after they had been deposited in Michael’s personal checking account and the cancelled checks mailed back to the Trustee’s office, Teresa replaced Michael’s name with that of a more plausible recipient. * * *

The best way to treat similar situations alike—and thus to avoid unwarranted disparities in sentencing, see 18 U.S.C. §3553(a)(6); United States v. Boscarino, 437 F.3d 634 (7th Cir. 2006)—is to start with the right Guideline and then make adjustments at the margin. Starting with the right Guideline is essential, see Gall v. United States, 128 S. Ct. 586, 596–97 (2007), independent of any concern about disparities. Giving the Orsburns sentences apt for bribe-payers or bribe-takers would produce an unwarranted disparity. They should be classed with other embezzlers, with a potential for a higher sentence on account of their public positions if the district judge deems the adjustment under §3B1.3 inadequate.

The convictions are affirmed, but the sentences are vacated, and the cases are remanded for resentencing consistent with this opinion.

Posted by Marcia Oddi on Thursday, May 08, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Two recent transfer grants

The ILB has received notice that on May 7th the Supreme Court granted transfer in the case of Dreaded Inc. v. St. Paul Guardian Ins. Co., where the issue involved whether St. Paul was liable for environmental cleanup defense costs incurred prior to receiving notice of potential liability. See the ILB summary of the Dec. 28, 2007 COA opinion here - 4th case.

On May 2nd, the Court granted transfer in the case of Roderick Lee v. State of Indiana. Here is the Feb. 26, 2008 ILB summary of the Court of Appeals decision - 3rd case - that concluded "Lee did not receive ineffective assistance of counsel based on counsel’s failure to raise the double jeopardy issue of direct appeal."

Posted by Marcia Oddi on Thursday, May 08, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - Still more on: Court of Appeals reverses murder convictions under Indiana’s Criminal Rule 4(C)

Updating this ILB entry from April 13th on the COA decision in the case of Robert Jeffrey Pelley v. State of Indiana, the South Bend Tribune reports today:

The office of Attorney General Steve Carter has asked the Indiana Supreme Court review Jeffrey Pelley’s quadruple murder case.

An Indiana Court of Appeals recently overturned Pelley’s four murder convictions on the grounds that prosecutors took too long to bring Pelley to trial.

A delay in the case was the result of a legal battle between prosecutors and the Family and Children’s Center over access to records of the Pelley family before four members of that family were shot to death in their Lakeville home.

A petition filed Wednesday by the attorney general argues that prosecutors had no control over the delay, and that it should therefore not be interpreted as a violation of Criminal Rule 4 (C), which guarantees every defendant a speedy trial.

Posted by Marcia Oddi on Thursday, May 08, 2008
Posted to Ind. App.Ct. Decisions

Environment - Dangers in commencing construction before permit is final

Gitte Laasby of the Gary Post Tribune reports today:

BP could be forced to stop, alter or tear down construction on its modernized Whiting refinery if its newly issued air permit construction approval is appealed.

BP started construction when it received approval from the Indiana Department of Environmental Management on May 1. But appeals can be submitted until May 19.

Ann Alexander, senior attorney with the Natural Resources Defense Council, said environmentalists continue to weigh their options.

"BP is clearly taking a risk in commencing construction that their permit could be overturned," Alexander said.

If a judge grants a "stay" to halt construction, construction may have to be stopped. If the permit is modified as a result of an appeal, construction may have to be modified, too. If the permit is revoked, new construction may have to be torn down, Indiana's chief environmental law judge said.

"If the enterprise gets a permit and ultimately it is not approved, they run the risk of mitigation," said Mary Davidsen, chief environmental law judge with the Office of Environmental Adjudication, which could hear a state appeal case. "Someone goes ahead and builds, that's the risk they take. Maybe they build a certain way and the permit finds it should have been built in a different way."

BP is confident the permit will stand.

"Our air construction permit is valid; the permit underwent a thorough and rigorous review, and we believe it will stand up to scrutiny," BP spokeswoman Valerie Corr said in an e-mail.

According to Indiana law, a judge can issue a stay if the appellant will "suffer irreparable harm," if the appellant is likely to win a court case, if injury to the appellant outweighs potential harm to BP, or if it serves the public interest.

Interested local residents received notice Monday from IDEM that it issued the permit, but found it frustrating to have less than two weeks to appeal.

"I received the letter May 5 which is dated May 1, so they are actually giving me (and everyone else) 13 days to respond," Highland resident Susan Eleuterio said in an e-mail. "I find it amazing that the department which is supposed to represent the citizens of Indiana gives them less than two weeks to respond to a decision that affects the very air they breathe."

Davidsen said the 18-day deadline for appeals is according to law and that she has little authority to change it.

"We don't have a right to alter that," Davidsen said, but, "There's always a chance to ask those who make those rules to change them."

Posted by Marcia Oddi on Thursday, May 08, 2008
Posted to Environment

Courts - "Having access to case status throughout the pipeline is enabling lawyers to better advocates"

My friend Diana Skaggs, of the excellent Kentucky Divorce Law Journal, has an entry today that is applicable to all practitioners, regardless of jurisdiction:

Having access to case status throughout the pipeline is enabling lawyers to better advocates. How? Well, if you represent a physician, do you think you want to try that case before Gaskill v. Robbins is decided? And, if you must mediate or try your case before then, perhaps the oral arguments may help you get a feel for where the law is headed.

On June 8, 2008 at 10am the Kentucky Supreme Court will hear oral arguments in Gaskill v. Robbins. We have posted about this case involving business valuations many times. The issue is whether the capitalization of excess earnings method of professional practice valuation measures personal goodwill rather than enterprise goodwill. You can watch the oral arguments live at the link here. We'll post the briefs as soon as we learn they are available.

Of course, we have some issues here in Indiana. The appellate docket has gaping holes; appellate briefs are not available online, a serious deficiency; and few Court of Appeals oral arguments are viewable online, although nearly all Supreme Court oral arguments are, and they are archived.

Posted by Marcia Oddi on Thursday, May 08, 2008
Posted to Courts in general | General Law Related

Ind. Decisions - "State court upholds Portage police response at residence"

Monday's NFP COA decision in the case of John Zane v. City of Portage and Clifford Brich, et al (see ILB summary here - 3rd case) is the subject of a story today by James D. Wolf Jr. in the Gary Post-Tribune that begins:

Portage police did not need a warrant to force their way into a man's home to retrieve his friend who'd been drinking for days, threatened suicide and had access to a bunker full of weapons, according to the Indiana Court of Appeals.

Shooting the homeowner's 66-pound American Straffordshire Terrier, which is closely related to and resembles a pit bull terrier, was not excessive force, either, the memorandum decision stated.

The court filed its decision, upholding Porter County Judge Mary Harper's decision in a 2004 suit, on Monday.

The homeowner, John Zane sued for $30,000 for damages from shots fired, damage to the front door and from tear gas that made the house uninhabitable for a while.

The incident happened on Jan. 26, 2002, when Zane was out of town and a friend was staying in the residence, according to court records.

Posted by Marcia Oddi on Thursday, May 08, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Employers Can't Ignore Workplace Bullies"

Indiana's April 8th Supreme Court decision in the case Daniel H. Raess, M.D. v. Joseph E. Doescher (see list of ILB "workplace bullying" entries here) is the focus of a May 7th "Smart Answers" column by Karen E. Klein in Business Week. Some quotes:

Last month, the Indiana Supreme Court ruled in favor of a hospital employee who sued a surgeon for emotional distress and assault based on his treatment of the person at work. The ruling drew national attention as an acknowledgment by the courts of workplace bullying both as a phenomenon and as legal terminology, says Garry Mathiason, chair of the corporate compliance practice group at labor and employment law firm Littler Mendelson. He spoke recently to Smart Answers columnist Karen E. Klein about the implications of the Indiana case for small business owners. Edited excerpts of their conversation follow. * * *

What was the Indiana case about?

There was behavior claimed to be intentional inflicting of emotional distress by a surgeon who apparently had a terrible temper. What was particularly interesting about the case was that the jury instructions used the phrase "workplace bullying" and it was questioned whether that term was too general. But the Supreme Court said the term had viability as a commonsense phrase for a jury.

Posted by Marcia Oddi on Thursday, May 08, 2008
Posted to Ind. Sup.Ct. Decisions

Wednesday, May 07, 2008

Courts - "Michigan Marriage Amendment Nixes Domestic Partners Benefits"

From an entry this afternoon in the Volokh Conspiracy by Dale Carpenter, law prof. at U. of Minn. Law, headed "Michigan Marriage Amendment Nixes Domestic Partners Benefits":

So said the Michigan Supreme Court in a 5-2 decision today.

By state constitutional amendment in 2004, Michigan voters barred the state from recognizing same-sex marriages. But the awkwardly worded amendment went further: "To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose."

The "similar union" language, along with the "for any purpose" language, was enough for the majority to conclude that it prohibited same-sex domestic partners benefits provided by some 20 state universities and municipal entities in the state. From the dissent: "It is an odd notion to find that a union that shares only one of the hundreds of benefits that a marriage provides is a union similar to marriage."

The Michigan decision sets an interpretive precedent that may be followed in the many other states that have banned same-sex marriages and recognition of other relationships "similar" to marriage.

An AP story by David Eggert begins:
LANSING, Mich. (AP) — Local governments and state universities in Michigan can't offer health insurance to the partners of gay workers, the state Supreme Court ruled Wednesday.

The court ruled 5-2 that Michigan's 2004 ban against gay marriage also blocks domestic-partner policies affecting gay employees at the University of Michigan and other public-sector employers.

The decision affirms a February 2007 appeals court ruling.

Here is the problematic language of SJR 7, the proposed Indiana constitutional amendment, which was not brought up for a vote by the second consecutive General Assembly either in 2007 or 2008:
(b) This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups.
For background see this ILB entry from March 19, 2007, which compares the Indiana, Michigan, and Ohio language.

[More] Here is a story by Dawson Bell of the Detroit Free Press that includes this quote:

Patrick Gillen, a professor at Ave Maria Law School and a co-author of the amendment, said the court’s ruling was “a vindication of the will of people in enacting the marriage amendment.”

Advocates for same sex partner benefits want “same sex partners treated as spouses… to redefine marriage and the family in a very radical way. And the voters recognized that,” Gillen said.

Jessie Olson, an attorney involved in filing the challenge that was rejected by the court Wednesday, said the ruling leaves Michigan “at the bottom of the barrel. We are the worst of the worst of the worst when it comes to civil rights for same sex couples.”

The opinion is now posted on the Michigan Supreme Court website - access it here.

Posted by Marcia Oddi on Wednesday, May 07, 2008
Posted to Courts in general

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

Updating this ILB entry from March 26th about HEA 1042, Tim Evans of the Indianapolis Star reports this afternoon:

The American Civil Liberties Union of Indiana and attorneys for several national organizations representing booksellers filed a lawsuit in U.S. District Court today seeking an injunction barring enforcement of a new state law which requires businesses that sell sexually explicit material to register with the state.

The new law, approved earlier this year by the General Assembly, takes effect July 1.

The lawsuit names the prosecutors of Indiana's 92 counties as defendants because they are responsible for enforcing the law. The law covers new businesses and existing businesses that move to a new location after June 30.

Violations would be a Class B misdemeanor, which carries a potential penalty of up to 180 days imprisonment and a fine of up to $1,000.

Ken Falk, legal director for the ACLU of Indiana, said the law is overly broad, too vague as to who must register and violates the First Amendment.

Falk stressed the groups filing the suit do not represent adult bookstores. They include businesses that sell popular books for children and adults, as well as others that deal in arts, including the Indianapolis Museum of Art and the Indianapolis Downtown Artists and Dealers Association.

Posted by Marcia Oddi on Wednesday, May 07, 2008
Posted to Indiana Law

Courts - Justice Scalia explains his change of heart re avoiding the public eye

Tony Mauro of Legal Times writes about Justice Scalia's online Q & A with C-Span's Brian Lamb last Sunday. Some quotes:

C-SPAN has posted the transcript of Brian Lamb's recent interview with Supreme Court Justice Antonin Scalia, the latest event in Scalia's tour to publicize the book he has co-written with Bryan Garner.

Among the remarkable aspects of the interview is Scalia's explanation, finally, for why he has decided to abandon his often-stated view that common-law judges should hide in the tall grass and not seek publicity.

After Lamb asks Scalia about the popular Green Bag bobblehead of Scalia, and the various T-shirts on sale that use his name, Scalia says, with an air of resignation: "Well, frankly, Brian, that's one reason I've sort of come out of the closet and -- in recent months done more interviews and allowed my talks to be televised more than I did formerly. I've sort of come to the conclusion that the old common law tradition of judges not making public spectacles of themselves and hiding in the grass has just broken down. It's no use, I'm going to be a public spectacle whether I come out of the closet or not, beyond T-shirts and bobblehead dolls and what-not. So if, you know, if I am going to be a public figure, I guess the public may as well get their notion of me firsthand rather than filtered through people such as Brian Lamb, you know."

Via this link, you may read the transcript of the program, download a podcast, or watch the one-hour interview online.

Posted by Marcia Oddi on Wednesday, May 07, 2008
Posted to Courts in general

Ind. Courts - Judge Elaine Brown will formally join the Court of Appeals in a robing ceremony at 3:00 p.m. on Friday

From a press release today:

Judge Elaine Brown will formally join the Indiana Court of Appeals in a robing ceremony in the Supreme Court courtroom at 3:00 p.m. on Friday, May 16, 2008. Chief Judge John G. Baker will preside. Governor Mitch Daniels will join Judge Brown’s family, colleagues, and special guests to administer the oath of office at the ceremony, which will be followed by a reception. Seating is by invitation, but the media is welcome to cover the event.

Judge Brown was named to the Court of Appeals by Governor Mitch Daniels. She joins Judge Nancy H. Vaidik and Judge Margret G. Robb to complete the Court’s Fifth District, which draws a judge from each of the Court’s first three geographical districts. Judge Brown is the Fifth District judge from southern Indiana and will stand for retention statewide.

The robing ceremony will be available live via streaming video.

Posted by Marcia Oddi on Wednesday, May 07, 2008
Posted to Indiana Courts

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

For publication opinions today (3):

In Herman Filice v. State of Indiana , a 26-page opinion, Chief Judge Baker writes:

Rohypnol, a notorious date rape drug, causes temporary amnesia by inducing extreme feelings of intoxication in a user. The facts of this case require us to address, for the first time, various legal issues surrounding a defendant’s sexual contact with a woman who was in a Rohypnol-induced state of unawareness. While there is evidence in the record that the defendant knew or should have known that the woman was impaired, there is no evidence that he administered Rohypnol to her or knew that she was under the influence of that drug.

Appellant-defendant Herman Filice appeals his ten-year sentence and convictions for Criminal Deviate Conduct, a class B felony, and Attempted Rape, a class B felony. Specifically, Filice argues that (1) the trial court abused its discretion by denying his motion to dismiss the attempted rape charge on the ground that Indiana Code section 35-42-4-1(a)(2) is unconstitutionally vague; (2) the trial court abused its discretion by admitting the results of the victim’s blood test showing the presence of Rohypnol; (3) the evidence was insufficient to sustain his convictions; (4) the trial court abused its discretion by refusing to give one of Filice’s proposed jury instructions; (5) the trial court abused its discretion by finding the nature and circumstances of the crimes to be an aggravating factor; and (6) his ten-year sentence is inappropriate in light of the nature of the offenses and his character. Finding Filice’s sentence to be inappropriate in light of the nature of the offenses and his character and finding no other reversible error, we affirm in part, reverse in part, and remand with instructions to vacate the sentence and impose a term of eight years imprisonment for each conviction, with the sentences to run concurrently, for an aggregate term of eight years imprisonment.

In R.E.I. v. State of Indiana, a 7-page opinion, Cheif Judge Baker writes:
Appellant-respondent R.E.I. appeals the juvenile court’s order requiring him to register as a sex offender. Specifically, R.E.I. argues that (1) the juvenile court did not have jurisdiction over him because it did not file a motion to reinstate jurisdiction after he was released from the Department of Correction (DOC), and (2) he was twenty-one years old when the evidentiary hearing was held and the order was issued. Finding no error, we affirm the judgment of the juvenile court.
Note: There is no appellate docket for this case.

In Nature's Link, Inc. v. Thomas and Amy Przybyla , an 18-page opinion, Judge Riley writes:

Nature’s Link raises two issues on appeal, one of which we find dispositive and which we restate as: Whether the trial court properly ordered a new trial pursuant to T.R. 60(B)(3) after finding that Nature’s Link’s medical expert changed his diagnosis and opinion of Przybyla’s injuries at trial without having previously disclosed this new diagnosis to Przybyla. * * *

Based on the foregoing, we find that the trial court properly ordered a new trial pursuant to T.R. 60(B)(3) after finding that Nature’s Link’s medical expert changed his diagnosis and opinion of Przybyla’s injuries at trial without having previously disclosed this new diagnosis to Przybyla. Affirmed.

NFP civil opinions today (4):

Term. of Parental Rights of K.D., D.D., and S.D.; and Marcena (Snawder) Duley v. The State of Indiana Dept. of Child Services (NFP) - affirmed.

In Re: The Parent-Child Term. of E.H., J.H., and N.B. v. Gibson County Department of Child Services (NFP) - affirmed.

Shade Ishola-Gbenla and Huntington Nat'l. Bank v. Gateway West Townhouse (NFP) - "Shade argues that the trial court improperly awarded summary judgment to Gateway. Specifically, Shade contends that Gateway presented no evidence to the trial court supporting the amount of maintenance fees owed by Shade to Gateway besides Stern’s self-serving affidavit. Further, she contends that she is owed an offset for damages inflicted upon her car by vandals. * * * For the foregoing reasons, we conclude that the trial court properly awarded summary judgment to Gateway."

Scott Wickersham, Inc., Jack G. Kennedy, III, and Perry Scott Wickersham v. Darien C. Wilson (NFP) - "Jack G. Kennedy, III, appeals a judgment in favor of Darien C. Wilson. Kennedy raises two issues, which we restate as: I. Whether the trial court abused its discretion by denying Kennedy’s motion to correct error concerning a motion for mistrial filed by Kennedy’s co-defendants; and II. Whether the jury’s verdict is excessive. We affirm."

NFP criminal opinions today (10):

Carl Walker v. State of Indiana (NFP)

Lynn Sams v. State of Indiana (NFP)

Julie Bosley v. State of Indiana (NFP)

Willie Jarvis v. State of Indiana (NFP)

Jimmy L. Murphy v. State of Indiana (NFP)

Curtis Hoby Hammons v. State of Indiana (NFP)

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

Timothy Huffman v. State of Indiana (NFP)

James O. Hill, Jr. v. State of Indiana (NFP)

Keith L. Preer, Sr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 07, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Monday COA opinions now available; 1 (and 5 NFP)

For publication opinions Monday (1):

In Robert R. Gregory, Jr. v. State of Indiana, a 20-page opinion, Judge Bailey writes:

Appellant-Defendant Robert R. Gregory, Jr. (“Gregory”) appeals following his convictions and sentence for Dealing Methamphetamine, as a Class B felony, and Conspiracy. We affirm the conviction and sentence for Dealing Methamphetamine and remand with instructions to vacate the conspiracy conviction. * * *

In sum, the trial court did not err in admitting the evidence resulting from the search of the Callaway residence. There was sufficient evidence, both circumstantial and direct, to support Gregory’s conviction for dealing methamphetamine. The prosecutor did not commit misconduct in his reading of a poem in voir dire, questions regarding the dangers of a methamphetamine lab, or comments in closing argument. Finally, Gregory’s maximum sentence of twenty years is not inappropriate. However, we remand to the trial court with instruction to vacate Gregory’s conviction for conspiracy.

NFP civil opinions Monday (2):

In Donald A. Bradshaw v. Diana D. Bradshaw (NFP) - "With regard to the division of the marital estate, the evidence of record supports the findings of the trial court and the findings support the judgment. The child support order should be revised to reflect H.B.’s attainment of age 21 and to reflect Diana’s income from her actual investment choice. The award of attorney’s fees due to alleged contempt of court is reversed, as is the order for extra-ordinary educational expenses of J.B."

In John Zane v. City of Portage and Clifford Brich, et al (NFP), a 20-page opinion, Judge Vaidik writes:

John Zane appeals the trial court’s grant of summary judgment in favor of the City of Portage, the Chief of Police of Portage, and three Portage police officers (“Portage” and the “Portage Police,” respectively). Zane argues that the trial court incorrectly determined that there are no genuine issues of material fact in regard to his claims that Portage and the Portage Police violated his rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and are liable under Indiana tort law for damage to his property that occurred when the Portage Police entered Zane’s house to retrieve a suicidal individual. Finding that Portage and the Portage Police are immune from liability under Zane’s state law tort claims pursuant to the Indiana Tort Claims Act and that the police properly acted in response to exigent circumstances and without excessive force or deliberate indifference, we affirm. * * *

The trial court correctly determined that Portage and the Portage Police are immune from liability under Zane’s state law tort claims pursuant to the Indiana Tort Claims Act. Further, the Portage Police did not violate Zane’s Fourth and Fourteenth Amendment rights and are therefore not liable to Zane under 42 U.S.C. § 1983. Finally, Zane has not shown that Portage has an inadequate policy or training program for officers faced with similar situations, and Portage is therefore not liable to Zane pursuant to 42 U.S.C. § 1983. The trial court’s grant of summary judgment in favor of the defendants is affirmed.

Note: See also this May 6th ILB entry about the April 16th NFP Court of Appeals opinion in the case of James V. Lemmon, et al v. James A. Herman, et al .

NFP criminal opinions Monday (3):

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

Jose Vasquez v. State of Indiana (NFP)

Larry Joe Lyons v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 07, 2008
Posted to Ind. App.Ct. Decisions

Tuesday, May 06, 2008

Ind. Decisions - Federal court grants preliminary injunction re judicial speech rights

On April 18th, according to a press release issued on that day by attorney James Bopp, Jr., quoted in this ILB entry:

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.
The filings are available via this April 21st ILB entry, including a motion for a TRO. An update re the reassignment of the case to Judge Springmann is here, from April 23rd.

Today Judge Springmann has issued a 36-page opinion and order in the case of Torrey Bauer, et al. v. Randall T. Shepard, et al., granting a preliminary injunction enjoining the enforcement of certain provisions of the Indiana Code of Judicial Conduct

Judge Springmann's opinion concludes:

The Court, having considered all the evidence and argument presented by the parties, and having evaluated and balanced the preliminary injunction factors, finds that the Plaintiffs have shown that a preliminary injunction is warranted in this case. The Plaintiffs have demonstrated a reasonable likelihood of succeeding on the merits and that they will suffer irreparable harm if the injunction is not issued. The harm to the Plaintiffs in denying the request outweighs the harm to the Defendants in granting it.

It is worth emphasizing that at the preliminary injunction stage, the Plaintiffs have not been required to prove their case in full. A preliminary injunction is merely meant to maintain the relative positions of the parties until the case can be resolved on the merits. Accordingly, only the injunction is binding on the parties; the factual and legal conclusions in this opinion are not binding as the case moves forward.

Finally, as some of the other courts that have addressed these questions have observed, the injunction requested by the Plaintiffs merely precludes enforcement of the judicial canons to sanction candidates for answering the IRL questionnaire. The injunction does not require that candidates answer the questionnaire.

Posted by Marcia Oddi on Tuesday, May 06, 2008
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Carroll County judges find their voice

Beginning with this ILB entry, headed "Judicial mandate mentioned in Carroll County," the ILB thus far has had four entries on the current Carroll County budget dispute. The others were posted: April 9th, April 16th, and May 1st. All but the first are based on reports in the Carroll County Comet on Carroll County council meetings.

Last evening the ILB received this note from Judge Jeffrey R. Smith, Carroll Superior Court:

Dear Ms. Oddi,

I note that you have covered the most recent dispute between the Carroll County judges and the county council. I thought you might be interested in the ad that Judge Currie and I have placed for publication in the Carroll County Comet on Wednesday of this week. I have attached a copy in PDF format.

Also, in part inspired by your blog, we have created our own blog to better inform the Citizens of Carroll County of the issues. You can find it at here.

I certainly appreciate your Indiana Law Blog. It is an excellent resource for Indiana attorneys and judges. Thanks.

Here is the "ad" placed in the Comet by Carroll County's only two county judges -- it is more of an information piece.

The new Carroll County Courts blog is very nicely done. Answering the question - Why a Blog? - a sidebar explains:

It has been difficult for us to adequately convey our position and provide important information to the citizens of Carroll County through local media. It is our hope that through this Blog you will be better informed about the business of the Carroll County Courts.

While we are initially focusing upon budgetary issues, we intend to use this Blog to provide other information about the courts and legal system in the future.

The ILB has been following county disputes involving judicial mandates for five years now. Here is a list of the entries.

Also of interest, my review of judicial mandate in Indiana: "Separation of Powers in the County Courthouse," 49 Res Gestae 2 (Sept. 2005), pp. 17-19. Access it here.

Posted by Marcia Oddi on Tuesday, May 06, 2008
Posted to Indiana Courts

Ind. Decisions - "Anger left after false jailing, tossed suit"

The April 16th NFP Court of Appeals opinion in the case of James V. Lemmon, et al v. James A. Herman, et al (see ILB entry here - 7th case) is the subject of a story in the Fort Wayne Journal Gazette today, by Rebecca S. Green. Some quotes:

Two years after he found himself mistakenly arrested on charges of child molesting, the victim of a typographical error, James V. Lemmon’s case against local law enforcement is over.

With the Indiana Court of Appeals upholding the dismissal of his lawsuit last month, Lemmon said he will not pursue it to a higher court and he remains appalled and disgusted by what happened to him.

In April 2005, officers from the Allen County Sheriff’s Department, along with a few federal marshals pounded on Lemmon’s front door. When he undid the deadbolt, police stormed inside, guns drawn and presented him with a warrant for his arrest on three charges of child molesting.

After a terrifying six hours in jail, Lemmon was released. Allen County prosecutors realized they made a mistake – issuing the warrant for a James V. Lemmon, as opposed to James Edward Lemmon. Along with the different middle initials, the men had different addresses, different ages and different physical descriptions.

Two employees at the prosecutor’s office were suspended without pay as a result of an internal investigation. James Edward Lemmon was arrested, convicted of one count of child molesting and is currently serving a six-year prison sentence.

In January 2006, James V. Lemmon sued Allen County Prosecutor Karen Richards, then-Allen County Sheriff James Herman, officers and other “unknown employees” in the prosecutor’s office.

Last April, Wells Circuit Judge David L. Hanselman, Sr. dismissed Lemmon’s claims, finding both the prosecutor’s office and the sheriff’s department were immune from a lawsuit.

In a unanimous decision, three Indiana appellate court judges upheld Hanselman’s ruling, although they strongly admonished those involved in drawing up arrest warrants, according to court documents.

Regarding the prosecutor’s office, Indiana law immunizes prosecutors and their employees from civil liability for wrongful acts committed during the initiation of a criminal proceeding, according to court documents.

And in the case of the sheriff’s department and its employees, they are immune because they were executing a warrant that appeared to be valid, according to court documents.

For Lemmon, pursuing the case to the higher courts, such as the Indiana Supreme Court, is financially prohibitive, and the case would not likely be heard.

Posted by Marcia Oddi on Tuesday, May 06, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Court upholds firing of Hammond police sergeant"

The April 30th Court of Appeals NFP decision in the case of Timothy A Thomas v. City of Hammond was the subject of a story by Patrick Guinane yesterday in the NWI Times:

The Indiana Court of Appeals has upheld the firing of a Hammond police sergeant who took an armed civilian with him for a Dec. 31, 2005, ride-along that ended with the shooting of a suspect.

The appeals court affirmed the Hammond Board of Safety and Public Works' decision to terminate Sgt. Timothy Thomas in October 2006.

The board ruled that Thomas let Nicholas Kokot, a former East Chicago police officer at the time, accompany him on patrol without permission from supervisors and later attempted to conceal the ride-along.

The board, which was acting on a recommendation from Hammond Police Chief Brian Miller, also determined that Thomas deputized Kokot, who that night was outfitted with a bullet-proof vest, side arm and AR15 assault rifle.

Thomas and Kokot responded to a call of shots fired in the 1100 block of Moss Street, the board ruled, without contacting dispatch or requesting back up. The incident ended with Thomas shooting a Hammond man who was running toward him.

The appeals court on Wednesday upheld Thomas' dismissal, ruling the board had appropriate evidence to support it's decision.

Posted by Marcia Oddi on Tuesday, May 06, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Court won't hear adult plaza case"

As the ILB noted last Friday, May 2nd:

Notable transfer denials include Plaza Group Properties, LLC, et al. v. Spencer County Plan Commission, et al.. For background, see this ILB entry from Dec. 14, 2007.

Bryan Corbin of the Evansville Courier & Press reports today on the transfer denial, in a comprehensive story that begins:

The Indiana Supreme Court has declined to hear the appeal of the 231 Adult Plaza in Spencer County, Ind., letting stand a lower-court ruling that said the county could regulate the amount of sexually themed merchandise in the store's inventory.

Without a written opinion, the state's highest court denied transfer of the adult plaza's lawsuit from the Indiana Court of Appeals, which in December sided with Spencer County in the zoning dispute. The appeals court had found that the county did not violate the adult plaza's First Amendment free-expression rights when it regulated adult merchandise in the store through an ordinance.

By denying transfer, the state supreme court has ended the litigation — at least at the state level — in the lawsuit of Plaza Group Properties LLC vs. the Spencer County Plan Commission and Board of Commissioners. Plaza Group's attorney, Scott Nazzarine, said his client likely would not pursue an appeal in federal court.

Spencer County officials continue to monitor activities at the business and could seek to have it held in contempt of court if there are further violations, commission attorney John Wetherill said.

Plaza Group opened the adult business in October 2005 in a former truck stop at the interchange of State Road 231 and Interstate 64. Soon after, county officials amended their zoning ordinances to restrict adult businesses from operating within 1,000 feet of a home, church or school, and they sought a court injunction to stop the plaza's activities. While the adult business moved out of its main building, it continued operating in an adjacent convenience store, with a gift shop selling adult novelties and a stage for exotic dancers.

Under a preliminary injunction order last year, business owners agreed that less than 35 percent of their merchandise would be sexually oriented.

Last year, Spencer Circuit Court Judge Wayne Roell ruled the adult plaza violated the 1,000-foot restriction, and he later fined the business $30,000 for contempt of court after witnesses testified of dancers exposing themselves to patrons.

Plaza Group appealed, challenging the constitutionality of the county ordinance, but the appeals court in December sided with the county, which argued that one of the adult plaza's buildings was within 89 feet of an existing residence. Plaza Group then tried, unsuccessfully, to bring an appeal to the state supreme court.

That leaves matters where they were last December. Plaza Group legally could sell adult merchandise unrestricted if it simply moved the business to beyond the 1,000-foot radius, where the ordinance would not apply. Instead of moving, however, Plaza Group likely will continue to operate its gift shop while obeying the county's 35 percent inventory limit, Nazzarine said.

"As far as I know, the plans are to remain where they are and to abide by the law," he said.

"The county's goal has never been to shut down the business located at the adult plaza; it was just to ensure for public safety concerns that they abide by county ordinances," said Wetherill, the commission's attorney. "Our zoning ordinance does provide multiple locations for adult use in the county, just not there."

Posted by Marcia Oddi on Tuesday, May 06, 2008
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Monday, May 05, 2008

Ind. Courts - COA Judge L. Mark Bailey offers advice to North Decatur High School students

"Bailey is a North Decatur alum who visited the students to discuss law in the 21st century, with a special emphasis on exactly what he does on the bench," writes Joe Hornaday in this two-screen story in the Greensburg Daily News.

Posted by Marcia Oddi on Monday, May 05, 2008
Posted to Indiana Courts

Ind. Decisions - Not yet available [Updated]

Apparently there are Court of Appeals opinions today, but they have not yet been made available online via the Court website. Check back.

[Update at 6:30 pm] The Court Opinions Page now has this banner at the top:

Newly published appellate opinions are not currently available on our website. IN.gov is experiencing technical problems and is working to resolve them.
The ILB recalls a similar situation earlier this year, when opinions were not available for several days. See this ILB entry from Jan. 25th, headed "Court of Appeals opinions not posted again Thursday."

Posted by Marcia Oddi on Monday, May 05, 2008
Posted to Ind. App.Ct. Decisions

Courts - A rapping clerk of the courts?

This caught my eye. An entry from the blog Above the Law begins:

When you think of clerks of court, you probably think of those annoying people who bounce your filings because you used the wrong font size. They don't seem like a fun bunch of people.

But Harvey Ruvin, Clerk of Courts for Miami-Dade County, is not your ordinary court clerk. How many clerks do you know who can rap?

Here is the Harvey Ruvin website. He raps about the environment -- picture Al Gore rapping. See the Above the Law entry, including the YouTube link, here.

Posted by Marcia Oddi on Monday, May 05, 2008
Posted to Courts in general

Environment - "Air rules initiative troubles Amish"

Niki Kelly of the Fort Wayne Journal Gazette had a very long and very interesting story Sunday on IDEM's interactions with Amish woodworking operations. Some quotes:

“In speaking to IDEM, they clearly did not intend this. If they were targeting them, it was for outreach, not enforcement,” said Barbara Quandt, Indiana director for the National Federation of Independent Business. “However, when you talk about fines that are possible and you indicate in written materials that there are going to be unannounced inspections, the average business would have difficulty with that.

“Then add to that that Amish have businesses on their homesteads, and it was particularly upsetting to them.”

Quandt said several Amish members contacted her organization when they perceived they were being targeted for massive fines. But, she said, they aren't looking for an Amish exception.

“The concern they feel is that they are good stewards of the land and environment, … and they feel they might be at a disadvantage because of their lifestyle,” she said. “I think IDEM listened to them and has backed off a bit. I would definitely say (the Amish) were frightened by the initiative. They are not looking for special treatment, but they are looking for some sort of understanding on their lifestyle.”

The Amish also contacted Rep. Phyllis Pond, R-New Haven, and Sen. Dennis Kruse, R-Auburn, and both attended one of the informational meetings. Neither was impressed.

“The presentation was so complicated and mathematical that I got a little frustrated,” Kruse said. “I think there are bigger fish to fry than to go after a small business - any small business.”

Kruse said all the Amish woodworking businesses together probably wouldn't equal one major foundry or factory in air emissions and noted that IDEM has never focused on the issue before.

“The Amish are about as environmentally friendly as any person I know,” Kruse said.

Pond also calls the situation “ridiculous,” saying she thinks someone in the agency thought he could make some money from these permits.

“Someone got the idea that the Amish would not protest,” she said.

Several Amish businesses contacted for this article declined to speak, but one referred The Journal Gazette to an attorney who is representing several of them out of Auburn.

John Martin Smith sent a letter March 28 to the IDEM listing some of the concerns of the small woodworking shops.

He first suggested that there should be a threshold beneath which small shops would not be required to get permits, such as those that employ mostly family members. He also believes the level of pollution should be based on the “actual usage” of potential pollutants, not the assumption that the shop is being used 8,760 hours a year.

“This would simplify the whole process and eliminate the necessity for permits for small shops,” he said.

Smith also suggested the fining structure of up to $25,000 per day is unrealistic for small Amish shops.

Bossingham said that while legally IDEM has the authority to levy that fine, it seldom happens. In fact, he said the Amish shop with no air permit that caused the original stir received only a $5,000 fine.

Quandt said the more than 150 Amish members who attended the small-business day at the Capitol were especially pleased by Daniels' visit with them, which included answering questions for more than 30 minutes.

David Pippen, policy director for environment and natural resources in Daniels' office, said they are listening to the concerns.

“We want to help people get into compliance. We would rather not do enforcement,” he said, noting his office and IDEM are currently talking with some leaders in the community about what is the best way to proceed. “We want to figure out the best way without the misperception of being targeted.”

Posted by Marcia Oddi on Monday, May 05, 2008
Posted to Environment

Ind. Decisions - 7th Circuit decides one Indiana case

In UNITED STATES OF AMERICA v. RODRIGO SOTO-PIEDRA and MIGUEL HERNANDEZ (SD Ind., Judge McKinney), a 12-page opinion, Judge Kanne writes:

Rodrigo Soto-Piedra and Miguel Hernandez pleaded guilty to conspiracy to distribute cocaine. See 21 U.S.C. §§ 846, 841(a)(1). Neither stipulated to a precise drug quantity when pleading guilty, and each now challenges his sentence. Soto contends that the district court exaggerated the drug quantity by relying almost exclusively on an informant’s estimate that the probation officer repeated in the presentence report. Hernandez maintains that the court overstated his base offense level on the mistaken assumption that he was involved with crack rather than powder cocaine. We reject Soto’s contention but agree with Hernandez that his case must be remanded. * * *

Actions of coconspirators that a particular defendant does not assist or agree to promote are generally not within the scope of that defendant’s jointly undertaken activity. * * * Hernandez contemplated the possibility of supplying Camarena with an unknown grade of powder cocaine, to be passed along by Camarena to an unknown customer with an unknown intention, and that is all that is shown by this record. The government put forth no evidence suggesting that converting the powder cocaine to crack was within the scope of Hernandez’s contemplated undertaking. To conclude otherwise would be simply speculation. Hernandez is entitled to be resentenced.

Posted by Marcia Oddi on Monday, May 05, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Wednesday, May 7th:

9:00 AM - Marla Young v. Timothy Young - The Cass Circuit Court entered an order establishing a father's child support obligation. The Court of Appeals affirmed in part, reversed in part, and remanded, addressing several factors affecting the support calculation, including the father's periodic payments to mother, business depreciation, credit for evening visitation, and determining the mother's income. See Young v. Young, 881 N.E.2d 1 (Ind. Ct. App. Nov. 15, 2007), vacated. [See ILB summary here - 4th case.] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Young; Jim Brugh of Logansport, IN. Attorney for Young; Derick Steele of Kokomo, IN.

9:45 AM - State of Indiana v. Michael A. Cozart - Cozart pleaded guilty in 2004 before being advised that his prior felony convictions meant the trial court was without discretion to suspend any portion of the minimum sentence; Cozart was not allowed to withdraw his plea. In post-conviction proceedings, the Floyd Superior Court granted Cozart relief. A majority of the Court of Appeals affirmed on grounds the trial court failed to properly advise Cozart in State v. Cozart, 878 N.E.2d 393 (Ind. Ct. App., Dec. 26, 2007), vacated. [See ILB summary here - 3rd case.] The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal. Attorney for State: Cynthia L. Ploughe, Indianapolis, IN. Attorney for Cozart: Michael A. Gillenwater, Jeffersonville, 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 Wednesday, May 7th:

10:00 AM - Olympus Properties v. Jason Plotzker - Jason Plotzker had been robbed at knifepoint at his former apartment and had post-traumatic stress disorder, so he leased an apartment from Olympus at the Mercury Building because of its security features. Less than two weeks before he was to move in, Olympus terminated the lease, claiming Plotzker had breached a prior lease. Plotzker couldn't find an alternative apartment that met his needs and sought "emergency possession" alleging he would have to withdraw from Indiana University if he could not get the Mercury apartment. He was awarded possession and attorney fees. Olympus argues on appeal Plotzker was not entitled to emergency possession because he was not yet a "tenant" of the Mercury and did not have "immediate injury" as contemplated by statute. It also argues he offered no evidence his attorney fees were reasonable. The scheduled Panel Members are: Chief Judge Baker, Judges Riley and May. [Where: Indiana Court of Appeals Courtroom]

This Thursday, May 8th:

10:00 AM - In The Matter of the Adoption of D.C. - Appellant-Respondent H.R., who is the biological mother of D.C., appeals the trial court's denial of her Motion to Set Aside Decree of Adoption. Upon appeal, H.R. challenges the trial court's order by claiming that the adoption decree is void for insufficient service of process. In making this claim, H.R. argues that Appellee-Petitioner R.C., who is the adoptive mother of D.C., failed to comply with Indiana Trial Rules governing service of process and that this allegedly invalid service of process violated H.R.'s due process rights. The Scheduled Panel Members are: Judges Barnes, Crone and Bradford. [Where: Indiana Court of Appeals Courtroom]

12:00 PM - James A. Kohlmeyer v. Second Injury Fund - Appellant appeals from the decision of the Full Worker's Compensation Board denying him benefits from the Second Injury Fund. Appellant maintains that, pursuant to a liberal interpretation favoring the employee of I.C. 22-3-3-13(h), his receipt of Social Security benefits should be added to disability payments from his employer for purposes of exhausting the maximum worker's compensation disability benefits, thus, entitling him to benefits from the Fund. Appellant also argues that he was entitled to benefits from the Fund pursuant to the express terms of a stipulation approved by the Board at the conclusion of the initial proceedings under the Worker's Compensation Act. The Scheduled Panel Members are: Judges Friedlander, Robb and Mathias. [Where: Indiana Court of Appeals Courtroom]

Posted by Marcia Oddi on Monday, May 05, 2008
Posted to Upcoming Oral Arguments

Sunday, May 04, 2008

Ind. Courts - "Courtenay Scott case could decide Democrat nominee" in Vigo court race

Deb Kelly reports today in the Terre Haute Tribune-Star in a lengthy story which includes these quotes:

The two Democrat candidates for judge of Vigo Superior Court Division 5 agree on almost everything except how the incumbent handled a single, contentious case in 2004.

Judge Barbara Brugnaux, who has been in the office for 14 years, is running against Dr. Michael Rader, a medical doctor and practicing attorney who hopes to unseat her in the primary.

Brugnaux was elected to Division 5 in 1996 and again in 2002 (after serving as temporary judge of the court from 1994 to 1996).

Rader, who practiced medicine for 30 years before earning his law degree, most recently has been serving as a public defender in Vigo County.

He has been practicing law for a little more than 10 years. * * *

Brugnaux, the first female judge in Vigo County, has faced harsh criticism for her decision to accept a plea agreement in a case involving the death of a toddler.

The case was against ex-daycare provider Courtenay Scott, whose actions resulted in the death of 2-year-old Alexis Williams on May 22, 2002. A special prosecutor from Vanderburgh County recommended Scott spend no time in prison. Brugnaux accepted the agreement, and Scott was sentenced to two years probation for reckless homicide, a class-C felony.

Rader, in recent advertisements, has criticized what he calls Brugnaux’s “misunderstanding of the law.”

Rader pointed to one sentence in a letter Brugnaux sent in February to 7,000 Democrats in Vigo County, in which she stated, “It is a judge’s duty to review the terms of [the plea] agreement and accept that agreement if it complies with the law.”

He said that is the statement that concerns him. “That is an incorrect statement of the law,” he said. He added that the statement implies that Brugnaux thought she had no choice but to accept the plea agreement that was offered.

“That’s why I said [in an advertisement] I thought her decision was ill-considered,” Rader said. “If it’s based on this misunderstanding of the law, then it was ill-considered.” * * *

In a more recent interview, Brugnaux said she objected to Rader’s ad, specifically to the part that stated that “I implied that I had no choice. Because that’s just flat-out not true,” she said. “I never said that I did not have a choice, I clearly had a choice; I had the opportunity to see the evidence, which Dr. Rader did not, and I made my decision based on that.”

See also this ILB entry from Feb. 15, 2008.

Posted by Marcia Oddi on Sunday, May 04, 2008
Posted to Indiana Courts

Ind. Decisions = "Flying J's obstruction suit against New Haven bounced"

Rebecca Green reported Saturday in the Fort Wayne Journal Gazette:

A federal judge granted a request this week to dismiss a lawsuit filed by a convenience store chain against the city of New Haven.

In September, attorneys for Utah-based travel plaza company Flying J Inc. sued New Haven in U.S. District Court, contending city officials planned to keep a proposed travel plaza from being built.

Flying J planned to build a 17-acre travel plaza on the northeast corner of Minnich Road and Indiana 930. The company bought the 53-acre property just west of Interstate 469 and intended to build a Flying J Travel Plaza, as well as other retail, commercial and professional services.

The plaza was to include a convenience store, country market store, 24-hour restaurant, fast-food court, fuel pumps and restrooms.

There were additional plans to include fueling for tractor-trailer rigs, services for recreational vehicles including a waste tank disposal, and 24-hour parking for up to 11 recreational vehicles and 187 trucks at a time.

When the company bought the property, the land was zoned C-1 for commercial use under New Haven’s zoning ordinance.

As the process of developing the site progressed, Brian Yoh, New Haven city planning director, told Flying J officials he believed some of the proposed uses for the land were not permitted under the zoning ordinance, according to court documents.

Flying J officials allege city officials extended the appeals process as long as possible while simultaneously working to amend the text of the city’s zoning ordinance to prevent the proposed use of the property, according to court documents.

In May 2005, the Board of Zoning Appeals backed Yoh. Flying J officials then appealed to Allen Circuit Court.

Allen Circuit Judge Thomas Felts ruled in September 2005 that some of Flying J’s plans for the site were not specifically permitted in the C-1 commercial zoning, such as servicing tractor-trailer rigs and overnight parking.

The Indiana Court of Appeals overturned Felts’ ruling in October 2006, according to court documents.

In the federal lawsuit, the company accuses the city of changing the wording of the ordinance and not telling Flying J about upcoming public hearings or rulings about the property, according to court documents.

In his ruling, District Chief Judge Robert L. Miller Jr. said that while Flying J argued the ordinance was passed in retaliation for the company’s state court victory, the city had a rational reason for passing the amended ordinance. He then granted the city’s motion to have the case dismissed.

Jim Federoff, one of the attorneys representing Flying J, said the company likely will appeal the judge’s decision to the 7th Circuit of the U.S. Court of Appeals.

Miller used the wrong standards in deciding the case, Federoff said.

But an attorney for New Haven called Miller’s decision a “wholesale repudiation” of Flying J’s conspiracy theory involving the city.

David Van Gilder said he believes Miller’s decision may strengthen the city’s defense in a lawsuit filed this year in Allen Superior Court.

In that case, Flying J officials asked a judge to overturn a Dec. 19 decision by the New Haven Board of Zoning Appeals, which amended its zoning ordinance on limited development in that zoning class to two acres. The city then rejected a new proposal by the company to build the plaza because it called for a project larger than two acres.

That case is set for a hearing on written briefs this month.

Here is a list of earlier ILB entries referencing "Flying J".

Posted by Marcia Oddi on Sunday, May 04, 2008
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Longtime Marion County Judge John R. Barney dies

Here is the obituary from today's Indianapolis Star.

Posted by Marcia Oddi on Sunday, May 04, 2008
Posted to Indiana Courts

Saturday, May 03, 2008

Ind. Courts - More on: "Howard County Judge accuses deputy prosecutor of drug use"

Updating this ILB entry from May 1st, which quoted from the Kokomo Perspective, today Mike Fletcher of the Kokomo Tribune reports:

A judicial inquiry into Howard Superior Court 2 Judge Stephen Jessup’s actions after accusing Deputy Prosecutor David Steele of being “strung out on drugs” is under way, several attorneys told the Kokomo Tribune this week.

The attorneys, who wish to remain anonymous, said they have received phone calls from the Indiana Judicial Qualifications Commission concerning Jessup’s statements.

The accusation by Jessup came after Steele failed to show for an April 18 hearing concerning a client’s guilty plea.

Steele had fellow prosecutor Michael Krebes sit in for him at the hearing, which is common practice among attorneys.

But Jessup was upset because he previously warned Steele in November 2007 not to miss another hearing.

When Steele failed to show for the April 18 hearing, Jessup halted the proceedings and called Steele’s secretary, whom he told to find Steele. Jessup then went downstairs to the office of Howard County Prosecutor James Fleming. There, Jessup allegedly accused Steele of “shooting up.”

Jessup then cited Steele for contempt of court later in the day.

Steele questioned Jessup’s accusations made April 18 during a contempt of court hearing.

“Did you go to the prosecutor’s office and say I was shooting up?” Steele asked, according to court transcripts of the hearing obtained by the Tribune.

Jessup replied, “I’ve heard from several sources you’re strung out on drugs.”

Meg Babcock, of the Indiana Judicial Qualifications Commission, said rules prohibit her from saying if anyone is being investigated by the commission.

But, she said, if an investigation is launched, it could take months before it’s completed, depending on the complexity of the case.

In the meantime, Superior Court 4 Judge George Hopkins said he’s been told that Jessup has recused himself from hearing any cases filed by Steele, which could affect the case loads in other courts.

“They will have to spread out those cases; the other courts will be affected,” he said. “As long as he’s recusing himself from cases filed by Steele, the case will have to be distributed among the other courts. Short term we can handle, but long term, it would be difficult.”

When contacted, Jessup said, “We are following Babcock’s recommendations.” Jessup declined to comment further on the matter.

Steele also declined an interview about the issue.

Posted by Marcia Oddi on Saturday, May 03, 2008
Posted to Indiana Courts

Ind. Court - Judge files suit against school to avoid statute of limitations

Mike Ricketts reported yesterday in the Bedford Times-Mail in a story that begins:

BLOOMINGTON — Lawrence Circuit Court Judge Andrea McCord has filed a civil suit against the Mitchell Community Schools to avoid the two-year statute of limitations expiring, and to ensure that medical bills from the treatment of injuries she suffered when hit by a discus at a school track meet continue to be paid.

“It’s really not about anything with the school,” McCord said Thursday afternoon. “It’s just about the insurance company and the medical bills. I’m still being treated and the two-year statute of limitations was up April 26, and I had to file this so the school’s insurance would continue to pay my medical bills.”

Medical civil suits in Indiana have a two-year time frame in which they can be filed.

On April 26, 2006, McCord was in the parking lot of Mitchell High School to pick up her child after school, according to the court filing. While in the parking area talking to another person, McCord was struck in the head by a discus thrown from the nearby area used for the particular field event competition. The discus caused injuries to McCord’s head and neck.

Mitchell schools attorney Chris Burton views the lawsuit, filed in Monroe Circuit Court, in much the same way as Judge McCord, a necessary procedural matter.

“We’re not upset by this,” Burton said. “We recognize that it is the process we have to go through sometimes. We have forwarded it on to our insurance company (Indiana Insurance) and it doesn’t cause us any undue concern; we don’t view it as a slap in the face or something like that.”

McCord’s attorney, Pete Obremskey, said the suit is needed only out of the necessity to protect his client’s rights. Being a judge in Lawrence County, McCord hired the Lebanon attorney as to not limit a local lawyer from being able to practice in front of her in future cases. It was also necessary to file the suit in Monroe County as to not create a conflict of interest because McCord is a judge in the county where the incident happened.

Posted by Marcia Oddi on Saturday, May 03, 2008
Posted to Indiana Courts

Ind. Courts - "Lennington scandal could play role in race for Delaware Circuit Court 5"

The ILB has not been posting pre-election stories this week listing who is running in the primary judicial races, as they would be quickly superceded next week by stories about the general election candidates. This Delaware County Circuit Court, however, is an exception. Rick Yencer writes today in the Muncie Star-Press:

The scandal that led the resignation of Delaware Circuit Court 5 Judge Wayne Lennington this spring might have a big impact on who will succeed him.

Republican attorney Chris Teagle, 48, is all but assured appointment to the Circuit 5 bench by Republican Gov. Mitch Daniels after Lennington's resignation is effective May 15. He runs unopposed in the primary.

The Democratic primary is another story. The race for the Circuit 5 court is the biggest on the local ballot with plenty of money and politics, among the three contenders - former juvenile referee Tom Cannon Jr., deputy prosecutor Ron Henderson, and Kimberly Dowling, a former deputy prosecutor and former support court and master commissioner.
Lennington, 77, initially announced his re-election last winter, but became embroiled in investigations involving possible judicial misconduct and alleged crime involving his business interests.

The Indiana Judicial Qualifications Commission suspended its investigation after Lennington agreed to resign, while state and local authorities have declined to comment on the ongoing criminal investigation. * * *

The Circuit 5 race has attracted the most money of any local primary contest with more than $45,000 raised among the three candidates. Cannon raised the most $21,097 and put $10,000 of his own money into the campaign. Henderson was next at $14,250 with $6,400 coming from his pocket. Dowling had $10,045 mostly from family and friends.

Experience also weighs heavily in this contest with all three candidates veterans in the courtroom. Cannon is the senior with 34 years in legal practice. Dowling has 23 and Henderson 14.

Posted by Marcia Oddi on Saturday, May 03, 2008
Posted to Indiana Courts

Ind. Decisions - More on: Court of Appeals revives suit challenging state's school finance system [Updated]

Updating this entry yesterday on the Court of Appeals decision in the case of Joseph Bonner et al v. Mitch Daniels et al, Lesley Stedman Weidenbener of the LJC reports today:

The Indiana Court of Appeals yesterday reinstated a case that challenged the state's funding for schools, saying lawmakers have a duty to provide students with a broad education that prepares them to compete and participate in society.

The court did not rule on whether the state is achieving that mandate. Instead, the 2-1 decision sent the case back to Marion Superior Court to determine "whether Indiana's current public school system through its funding provides our students with an education, as envisioned by the framers of our Constitution."

The decision reversed the lower court's dismissal of the lawsuit, which was filed by the families of nine students who attend public schools in eight districts in Central and Northern Indiana.

Marion Superior Court Judge Cale Bradford originally ruled that the students improperly sued the governor and superintendent of public instruction, who are not responsible for the state formula that determines school aid. The formula is determined by the General Assembly. [ILB - Judge Bradford has since been named to the Court of Appeals.]

But in its decision yesterday, the appeals court said both the governor and superintendent were properly named as defendants because they implement the legislative funding.

Also, the decision said the courts have the authority to determine whether the executive and legislative branches are adequately fulfilling the constitution's education clause, which requires the General Assembly to provide a general and uniform system of schools "by all suitable means."

"A constitutionally mandated public education is not a static concept removed from the demands of an evolving world," the decision said. "Mere competence in the basics -- reading, writing, and mathematics -- is insufficient in the beginning days of the 21st century to insure that this state's public school students are fully integrated into the world around them. A broad exposure to the social, economic, scientific, technological, and political realities of today's society is essential for our students to compete, contribute, and flourish in Indiana's economy."

The lawsuit, coordinated by the Indiana State Teachers Association, contends that the state does not provide such an education equally to students. The association has cited disparities in test scores among classes of students as proof that there is an achievement gap.

In a dissenting opinion, Judge Ezra Friedlander said the lower court's dismissal of the case should be upheld because it is beyond the court's purview to "sit in judgment of decisions" made by the General Assembly.

[More] For more on the case, start with this ILB entry from Jan. 30, 2007, headed "Judge tosses lawsuit over school finances," which includes a link to Judge Bradford's trial court opinion.

Posted by Marcia Oddi on Saturday, May 03, 2008
Posted to Ind. App.Ct. Decisions

Friday, May 02, 2008

Ind. Decisions - Transfer list for week ending May 2, 2008

Here is the Indiana Supreme Court's transfer list for the week ending May 2, 2008.

There are a number of transfers on the list this week.

Three were summarized in this ILB entry from April 25th.

Five were summarized in this ILB entry from May 1st.

In addition, the transfer granted on 12/7/07 in Jose Arevalo v. State of Indiana (a May 22, 2007 NFP sentencing opinion, available here) was vacated on 4/29/08.

Notable transfer denials include Plaza Group Properties, LLC, et al. v. Spencer County Plan Commission, et al.. For background, see this ILB entry from Dec. 14, 2007.

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, May 02, 2008
Posted to Indiana Transfer Lists

Ind. Courts - More on: Judge John T. Sharpnack will retire from the Indiana Court of Appeals on Friday

Watch Judge Sharpnack's retirement ceremony live this afternoon. Click on the button under the photo, at 3:00 PM.

Posted by Marcia Oddi on Friday, May 02, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals revives suit challenging state's school finance system

For publication opinions today (1):

In Joseph Bonner et al v. Mitch Daniels et al, a 40-page, 2-1 opinion, Judge Riley writes:

Appellants-Plaintiffs, Philip-Anthony Bonner, a minor, by his parents and next friends, Joseph and LaTanya Bonner, et al., On Behalf of Themselves and All Others Similarly Situated (collectively, Bonner), appeal the trial court’s Order to Dismiss entered in favor of Appellees-Defendants, Mitch Daniels, Governor of the State of Indiana and Co-Chair of the Education Roundtable (Governor Daniels), Suellen K. Reed, Indiana State Superintendent of Public Education and Co-Chair of the Education Roundtable (Dr. Reed), and the Indiana State Board of Education (Board of Education) (collectively, Appellees). We reverse and remand for further proceedings.

Bonner raises four issues on appeal, two of which we find dispositive and which we restate as follows: (1) Whether the trial court erred in dismissing Bonner’s cause finding that the justiciability standard precluded judicial review; and (2) Whether the trial court erred in finding that the Education Clause, encapsulated in Article VIII, §1 of the Indiana Constitution, does not provide judicially enforceable guidelines. * * *

Bonner presents us with a case of first impression. Although most other states have already determined the issues presented for our review, never before has an Indiana court been requested to answer Bonner’s questions. The vast majority of courts in our sister states have concluded that this cause is justiciable and that state constitutions impose enforceable duties on the legislative and executive branch to provide a quality education to public school students. * * *

[II] First, Bonner disputes the trial court’s dismissal of his cause based on the separation of powers doctrine and the trial court’s conclusion that any injury is not likely to be redressed by the relief sought. The parties’ respective arguments revolve around three main topics: (1) standing, (2) redressability of any injury, and (3) whether relief was sought from the proper defendants. * * *

In sum, we conclude that Bonner properly brought his declaratory judgment action. Mindful to accept all allegations in Bonner’s Complaint as true, Bonner has presented us with a question to define his legal rights under the Constitution’s Education Clause. See Nass, 718 N.E.2d at 764-65. In line with a declaratory action’s purpose, our response will afford relief from uncertainty and will serve a useful purpose.

[III] Disputing the trial court’s determination that the cause cannot proceed because there is no reasonably clear standard for interpreting the Education Clause, Bonner reflects on the article’s rich history, language, and case law to garner guidelines in order to enforce the constitutional provision. On the other hand, the Appellees generalize that “broadly worded” provisions of the Indiana Constitution are “not subject to judicial enforcement.” * * *

Clearly, as shown, the Education Clause is subject to judicial enforcement. As such, in our quest to interpret Article VIII of our State’s constitution, we turn to the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of our Constitution, and case law interpreting the specific provisions. * * *

Commencing with Indiana’s Education Clause, and interpreting it in light of the clause’s historical mandate and our sister states’ persuasive precedents, we hold that Article VIII imposes a duty on the State to provide an education that equips students with the skill and knowledge enabling them to become productive members of society. * * *

We find that Bonner has made a cognizable claim that can be considered by the court. Assuming Bonner can submit proof of his claim, a court can grant a declaration that the General Assembly has not discharged its duty. Ultimately, what constitutes an education that is commensurate with contemporary requirements and which instills skill and knowledge into our students is a matter of fact subject to proof. Likewise, the effect of the General Assembly’s current school financing system on attaining an education as envisioned by the Education Clause is a matter of fact subject to proof.

We hasten to add that it is not our intention to intrude upon the prerogatives of other branches of government. We were not appointed to establish educational policy, nor to determine the proper way to finance its implementation. We leave such matters to the two co-equal branches of government: it is for the Legislature and the Governor to fulfill their responsibility with respect to defining the specifics of, and the appropriate means to provide a public education, which should instill in Indiana’s children the knowledge and learning essential for today’s workplace.

Today, we reverse the trial court’s Order and remand back to determine whether Indiana’s current public school system through its funding provides our students with an education, as envisioned by the framers of our Constitution.

[Conclusion] Based on the foregoing, we find that the trial court erred in dismissing Bonner’s cause as his claim is clearly justiciable and subject to judicial review and, additionally, we find that the Education Clause, encapsulated in Article VIII, §1 of the Indiana Constitution, provides Indiana’s children with the right to a public education, as envisioned by the framers of our Constitution. We reverse and remand for further proceedings pursuant to this decision.

SHARPNACK, J., concurs.
FRIEDLANDER, J., dissents with opinion. [which concludes] I believe the appellants’ lawsuit in this case asks us to sit in judgment of decisions made by the Indiana Legislature that are firmly within the discretion accorded to that body by the Education Clause. Upon the same rationale articulated by our Supreme Court in Robinson, I would hold that such action is beyond our purview.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Stephen Walker v. State of Indiana (NFP)

Christopher M. Holman v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 02, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Ex-attorney denied bond"

Updating this ILB entry from April 16th on attorney Michael Haughee's request to bond out to pursue his appeal, the Gary Post-Tribune reports today:

VALPARAISO -- Former Lake County prosecutor, Hebron councilman and attorney Michael B. Haughee will not be released on bond while he files an appeal for his March 3 conviction.

On Thursday, Judge Mary Harper denied his April 15 motion for a bond so he could have better access to papers from his trial and perhaps hire a lawyer for the appeal.

Although disbarred, Haughee, 56, represented himself for the bond request.

Harper's one-sentence ruling stated that she denied the request because the state -- on the form of the prosecutor's office -- objected to setting a bond. Deputy Prosecutor Cheryl Polarek said on April 15 that Haughee hadn't followed procedure or provided necessary information.

Haughee is serving a year in Porter County Jail for his conviction on charges of sexual battery, criminal confinement and interference with the reporting of a crime.

A jury found him guilty of forcing himself sexually on a woman in a wheelchair in her apartment in January or February 2006.

Posted by Marcia Oddi on Friday, May 02, 2008
Posted to Indiana Courts

Environment - "Union Co. planners pull together CAFO info"

Pam Tharp of the Richmond Palladium-Item has a story today on plans of the Union County Area Plan Commission to meet soon to consider new ordinances for concentrated animal feeding operations. The story has much useful detail on issues to be considered.

Posted by Marcia Oddi on Friday, May 02, 2008
Posted to Environment

Environment - IDEM issues BP air construction permit

Gitte Laasby of the Gary Post-Tribune reports today:

BP Whiting started construction on its $3.8 billion expansion Thursday after the Indiana Department of Environmental Management issued an air permit construction approval to the refinery.

"The permit enabled us to proceed with construction today. We have started some construction activity that includes piling work and laying a foundation," BP spokeswoman Valerie Corr said.

However, the permit issuance is subject to appeal:
While BP and local unions celebrated, environmentalists lamented IDEM's decision, saying the agency did not address any of their major concerns. They'll spend the next 18 days deciding whether to challenge the permit in court.

"We will do what we need to do to protect the public's interest making sure BP's permit complies with law. Our comments identified numerous ways in which IDEM's draft permit ran afoul of the Clean Air Act by allowing BP to underestimate its emissions and skirt requirements for state of the art pollution controls. That problem has not been fixed," said Ann Alexander, senior attorney with the Natural Resources Defense Council, who leads the legal challenge for local environmentalists. "We have multiple legal options at this point, and we are evaluating all of them."

IDEM said it coordinated with the U.S. Environmental Protection Agency to make sure the permit meets all state and federal regulations. IDEM officials said the agency added additional monitoring, testing and record-keeping requirements in response to comments from as far away as Europe.

Dan Murray, assistant commissioner of IDEM's Office of Air Quality, said the fact that IDEM made only minor changes to the permit showed IDEM put together a good draft permit.

"We believe the final permit shows that the process works very well. We believe at the draft stage we had a very good permit," Murray said.

Environmentalists disagreed, saying IDEM did not address major concerns such as emissions from flares and greenhouse gas emissions. * * *

BP's construction permit is valid until construction is completed. After that, BP will need an operational permit, called a Title V permit, which was considered along with the construction permit, but has yet to be issued.

"EPA continues to work with IDEM to review the documents for the Title V," said Bill Omohundro, spokesman for EPA Region 5. "EPA will review the documents to provide final assurance that the Title V operating permit meets all Clean Air Act requirements."

The story notes that issues continue with the wastewater permit:
BP previously said the expansion would only happen if the refinery could find a way to stand by its August pledge to remain below its old wastewater permit levels for ammonia and silty materials known as suspended solids.

"The project still awaits some finalization of the water treatment options," BP's Corr said. "We still hold that commitment."

In addition, the NWI Times reported yesterday that the BP permit application for its asphalt plant was again tabled by the local BZA. Steve Zabroski writes:
BP is seeking permission to build a $110 million asphalt distribution center on 65 acres the company owns at 1304 129th St., just west of Indianapolis Boulevard. The center would make room for equipment to process heavy crude oil from Canada as part of a $3.8 billion expansion at the nearby Whiting Refinery. * * *

Monday's action marked the seventh delay in a ruling on the use permit sought by either the company or the city since the matter was first brought before the zoning board in July.

The proposed asphalt center would be just south of the Lost Marsh Golf Course, and would fill as many as 220 tanker trucks and 80 rail cars per day.

Posted by Marcia Oddi on Friday, May 02, 2008
Posted to Environment

Environment - Mary Gade, regional administrator of U.S. EPA Region 5, resigns

Michael Hawthorne of the Chicago Tribune reports today in a lengthy story with the headline "EPA official ousted while fighting Dow." Some quotes:

SAGINAW, Mich. - The battle over dioxin contamination in this economically stressed region had been raging for years when a top Bush administration official turned up the pressure on Dow Chemical to clean it up.

On Thursday, following months of internal bickering over Mary Gade's interactions with Dow, the administration forced her to quit as head of the U.S. Environmental Protection Agency's Midwest office, based in Chicago.

Gade told the Tribune she resigned after two aides to national EPA administrator Stephen Johnson took away her powers as regional administrator and told her to quit or be fired by June 1.

The call came as the Tribune was preparing to publish a story about the dioxin issue and Gade's crusade. * * *

Gade has been locked in a heated dispute with Dow about long-delayed plans to clean up dioxin-saturated soil and sediment that extends 50 miles beyond its Midland, Mich., plant into Saginaw Bay and Lake Huron. The company dumped the highly toxic and persistent chemical into local rivers for most of the last century.

Many local residents see Dow as a lifeline in region plagued by plant closings and layoffs. But all along the two wide streams that cut through this old industrial town, signs warn people to keep off dioxin-contaminated riverbanks and to avoid eating fish pulled from the fast-moving waters. Officials have taken the swings down in one riverside park to discourage kids from playing there. Men in rubber boots and thick gloves occasionally knock on doors, asking residents whether they can dig up a little soil in the yard.

Gade, appointed by President Bush as regional EPA administrator in September 2006, invoked emergency powers last summer to order the company to remove three hotspots of dioxin near its Midland headquarters.

She demanded more dredging in November, when it was revealed that dioxin levels along a park in Saginaw were 1.6 million parts per trillion, the highest amount ever found in the U.S.

Dow then sought to cut a deal on a more comprehensive cleanup. But Gade ended the negotiations in January, saying Dow was refusing to take action necessary to protect public health and wildlife. Dow responded by appealing to officials in Washington, according to heavily redacted letters the Tribune obtained under the Freedom of Information Act.

Posted by Marcia Oddi on Friday, May 02, 2008
Posted to Environment

Thursday, May 01, 2008

Ind. Courts - Senate hearing today on nominee to fill SD Ind. seat vacated by Judge Tinder's appointment to 7th Circuit

As reported by an announcement Feb. 15th on the SD Indiana website:

On February 14, 2008, United States Magistrate Judge William T. Lawrence was nominated by President George W. Bush to fill the vacant seat on the bench of the United States District Court for the Southern District of Indiana. The vacancy was created by the elevation of Judge John Daniel Tinder to the United States Court of Appeals for the Seventh Circuit last year. Judge Lawrence now faces a hearing in front of the Senate Judiciary Committee, followed by a confirmation vote by the full Senate. A timeline for these proceedings has not been established.

Magistrate Judge Lawrence has been serving in his current position since November 2002, when he was appointed by the District Judges. Prior to his appointment, he was elected Judge of the Marion County Circuit Court from 1996 to 2002. He was also a parttime Master Commissioner at the Marion County Circuit Court from 1983 until his 1996 election.

Today the Senate Judiciary Committee held its hearing on Judge Lawrence's nomination. Here is Senator Lugar's statement introducing Judge William Lawrence to the Senate committee.

Posted by Marcia Oddi on Thursday, May 01, 2008
Posted to Indiana Courts

Ind. Courts - "Howard County Judge accuses deputy prosecutor of drug use"

Patrick Munsey of the Kokomo Perspective reports today in a lengthy story that begins:

Last week, Howard Superior Court II judge Stephen Jessup held a contempt of court hearing against deputy prosecutor David Steele concerning his absence for criminal cases in which he represents the state. But, according to those who were there, the hearing got out of hand and resulted in the judge accusing Steele of being "strung out on drugs."

Steele has declined to comment on the events of the April 21 hearing, but the Perspective obtained copies of the proceedings; the transcript accompanies this story.

It is alleged that Jessup went to the Prosecutor's Office on April 18, searching for Steele when he did not appear in court for a criminal plea hearing. Deputy prosecutor Michael Krebes appeared on Steele's behalf. When Jessup was told that the prosecutor didn't know Steele's whereabouts, he openly accused the attorney of drug use. During Steele's contempt hearing on April 21, the judge admitted to making the accusation.

According to the story, the printed version of the paper contains at least two transcripts of proceedings. However, they do not appear to be accessibe online.

Posted by Marcia Oddi on Thursday, May 01, 2008
Posted to Indiana Courts

Ind. Courts - "Should drug-addicted pregnant women be criminalized?"

Angela Mapes Turner of the Fort Wayne Journal Gazette had a lengthy story last Sunday, April 27th, headed: "Pregnant addicts blur crime debate: Authorities waver on punishment for neglect, abuse." Some quotes from the thoughtful report:

In December 2006, police say, Brooke Honaker was using methamphetamine.

Honaker, who was 21 at the time, already was on probation when she tested positive twice for the drug.

The bigger problem?

She was pregnant.

In June 2007, LaGrange County authorities charged her with neglect of a dependent, a felony. Honaker’s ongoing case – another hearing is scheduled for Monday – reflects an issue that periodically surfaces throughout the U.S.

Should drug-addicted pregnant women be criminalized?

Opponents say prosecution of such crimes can deter a pregnant drug addict from seeking prenatal care or help for her addiction, while supporters say drug use by pregnant women causes harm and should result in punishment.

The story references a 1993 Fort Wayne case, where formal charges also were filed against a pregnant crack cocaine user who premature one-pound infant died:
If Judge Kenneth Scheibenberger set precedent by continuing with the charges, it could dissuade other pregnant addicts from seeking prenatal care, Paltrow said.

Scheibenberger ruled that to be accused of reckless homicide in Indiana, a person must engage in reckless behavior that results in the death of a human being. A fetus, according to state law, was not a human being, he said in his ruling. The reckless homicide charge was dropped.

The issue, as Scheibenberger acknowledged in his ruling, often devolves into an argument over when human life begins – part of the core debate regarding abortion.

That debate doesn’t necessarily apply in Honaker’s case, LaGrange County Prosecutor Jeff Wible said. The judge tasked to Honaker’s case won’t be asked to judge harm to a fetus but rather issues that Honaker’s child might develop later in life.

If called to testify, a doctor who has examined Honaker’s child will say that Honaker’s meth use hasn’t caused detectable damage at this time, but that the meth use will be detrimental to the child’s health and well-being, Wible said.

“The judge will have to decide if future harm is enough to justify a conviction,” he said.

More from the story:
National Advocates for Pregnant Women, which describes itself as focused on human and civil rights, especially those of low-income, drug-using or minority women, said drug-addicted women who continue to use while pregnant are struggling with the disease of addiction. Criminalizing them is counterproductive to both maternal and fetal health, the group contends.

That organization has also spoken out against a series of recent prosecutions in Alabama. In March, the New York Times reported that in the past 18 months at least eight women have been prosecuted for using drugs while pregnant in a southern Alabama community.

“If a pregnant woman can be viewed as a child abuser before she ever gives birth, or as a murderer because she cannot guarantee a healthy birth outcome, she ceases to exist as a full human being and full rights-bearing citizen,” the organization said in a statement on the Alabama prosecutions.

A 2006 joint study by the Indiana University School of Medicine and the Bowen Research Center, conducted for the Indiana State Department of Health, also quoted many health care providers and women as saying criminalizing pregnant women may keep them from seeking prenatal care.

Posted by Marcia Oddi on Thursday, May 01, 2008
Posted to Indiana Courts

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

For publication opinions today (1):

Jeffrey Buckley v. State of Indiana - "Jeffrey Buckley appeals his conviction of Carrying a Handgun Without a License,1 as a class C felony. The sole issue presented on appeal is whether the trial court abused its discretion in admitting evidence of the handgun, which Buckley claims was discovered as a result of an unconstitutional seizure. We reverse and remand."

NFP civil opinions today (1):

John R. Solek v. Karee L. Solek (NFP) - "John Solek (Father) appeals from an order of the trial court requiring him to contribute to his son’s college expenses and continue to pay his income-percentage share of his son’s uninsured medical expenses."

NFP criminal opinions today (5):

State of Indiana v. Robert E. Savage (NFP) - "Therefore, we conclude that the good faith exception does not apply here and that the trial court properly granted Savage’s motion to suppress."

Jocko Dean Davis v. State of Indiana (NFP) - From the final paragraph of the opinion: "With regard to the nature of the offense, 5’10”, 380-pound Davis engaged in sexual contact with a 14-year-old intoxicated girl who had apparently passed out."

A reader, pointing this out, comments: "It seems to me it's wrong to have sex with a 14 year old, whether a person is 110 pounds, 200 pounds, or 500 pounds. I've never seen a court use a person's weight against them quite like this." Interesting.

Mindy Troxal v. State of Indiana (NFP)

Frankie A. Johnson v. State of Indiana (1) (NFP)

Frankie A. Johnson v. State of Indiana (2) (NFP)

Posted by Marcia Oddi on Thursday, May 01, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Judge John T. Sharpnack will retire from the Indiana Court of Appeals on Friday

From a press release today:

Judge John T. Sharpnack will retire from the Indiana Court of Appeals in a ceremony in the Supreme Court courtroom at 3:00 p.m. on Friday, May 2, 2008. Chief Judge John G. Baker will preside. Judge Sharpnack’s family, colleagues, former law clerks, and special guests will attend the ceremony, followed by a reception. (Seating is by invitation, but the media is welcome to cover the event.)

Judge Sharpnack, appointed by Governor Evan Bayh in January 1991, served more than 17 years. He reaches the constitutionally-mandated retirement age of 75 on May 7th, and his last day on the court will be May 3, 2008. He will continue to serve the citizens of Indiana as a senior judge beginning May 5th.

Judge Sharpnack, who was retained on the Court of Appeals by election in 1994and 2004, served as Chief Judge of the Court of Appeals from September 9, 1992 to December 31, 2001. During his tenure as Chief Judge, the court created a motions panel to rule on motions made prior to a case being fully briefed; initiated a rotating panel system for deciding cases; and started a senior judge program for the Court of Appeals. Case closure rates markedly improved following these innovations.

Before joining the court, Judge Sharpnack maintained a private practice of law as a partner at Sharpnack, Bigley, David and Rumple, the Columbus (Indiana) firm founded by his grandfather. Earlier, following graduation from law school in 1960, Judge Sharpnack joined the Honor Graduate Program at the Antitrust Division of the U.S. Department of Justice in Washington, DC as an attorney, where he served until 1963.

A native of Columbus, Indiana, Judge Sharpnack grew up in West Virginia, Washington, DC, Pennsylvania and Cincinnati. He served for three years in the United States Army, from 1955 to 1957. He received his bachelor’s degree from the University of Cincinnati’s College of Arts and Science and his law degree from UC’s College of Law, where he was also Editor-in-Chief of the Law Review.

Posted by Marcia Oddi on Thursday, May 01, 2008
Posted to Indiana Courts

Ind. Decisions - Two Indiana decisions today from the 7th Circuit.

In Mas Capital v. Biodelivery Sciences (SD Ind., Judge Hamilton), a 5-page opinion, Judge Easterbrook concludes:

The district judge was not amused, and neither are we. Tsai and his corporations take the law, and their promises, entirely too lightly. Tsai himself performed the services; any claim that MAS Financial (and thus MAS Capital) may have is derivative of his endeavors, and he has released any claim. We need not go beyond the clause in the release pledging that Tsai will not receive any further benefit from Biodelivery “directly or indirectly”. Any recovery by MAS Capital would provide an indirect benefit to Tsai, the corporation’s beneficial owner. The district judge therefore acted rightly in granting summary judgment to Biodelivery.

We will send copies of this opinion to NASDAQ and the SEC so that they may judge for themselves, in their ongoing administrative proceedings, whether Tsai’s promises are credible. We also direct MAS Capital to show cause within 14 days why we should not impose sanctions under Fed. R. App. P. 38 for this frivolous appeal.

U.S. v. Shaaban (SD Ind., Judge Tinder) is a 3-page opinion re counsel's request to withdraw as appointed counsel for Mr. Shaaban and to permit Mr. Shaaban to proceed pro se. Granted.

Posted by Marcia Oddi on Thursday, May 01, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court grants transfer in four cases

The formal transfer list will follow later this week, but the ILB has received notice that four* cases have been granted transfer:

James Butler v. Indiana Dep't of Ins. - Transfer granted after oral argument yesterday April 30th. See summary here.

In the Matter of the Paternity of K.I., by Grandmother and Next Friend, Juanita Ivers v. Jeremy Hensley (NFP), a Jan. 29th COA opinion (5th case): "On remand, should Father be awarded custody of K.I. and the parties do not agree upon Grandmother’s visitation, we instruct the trial court to determine if Grandmother should be granted grandparent or de facto custodian visitation regardless of Mother’s parenting time with K.I., if any."

Estate of Jerome Mintz v. Connecticut General Life Insurance Company and Wayne E. Gruber (NFP) - a Nov. 28, 2007 COA 2-1 opinion - see ILB summary here (4th case). "Gruber’s actions were not the proximate cause of the Estate’s injuries and Gruber and Connecticut General were properly granted summary judgment on the Estate’s claims of negligence and vicarious liability. Connecticut General was also entitled to summary judgment for the remaining claim of bad faith because the Estate’s claim was essentially based on Connecticut General’s unwillingness to depart from its stated procedure and make an exception."

Bruce Wayne St. Clair, Jr. v. State of Indiana, a Feb. 20th 2-1 COA opinion. See ILB summary here, 6th case. "Bruce Wayne St. Clair, Jr. appeals the denial of his petition for leave to file a belated appeal. The State opposed St. Clair’s petition on the ground St. Clair had waived his right to a direct appeal by entering a plea agreement with a fixed plea. The trial court summarily denied St. Clair’s petition. Finding St. Clair had an open plea and has met the requirements of Post-Conviction Rule 2, we reverse and remand."
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*In addition, Sergio Campos v. State of Indiana was granted transfer yesterday, with opinion (see ILB entry here).

Posted by Marcia Oddi on Thursday, May 01, 2008
Posted to Indiana Transfer Lists

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

Updating yesterday's ILB entry, Marisa Kwiatkowski of the NWI Times has a long story today headed "Prominent attorney's death shocks community." It begins:

CROWN POINT | Lake County court officials mourned Wednesday the death of defense attorney Garry Weiss.

Weiss, 53, was one of four people who died Tuesday night in a three-vehicle crash at the Merrillville-Winfield border of 101st Avenue and Randolph Street.

The Crown Point resident's unexpected death shook the region's legal community.

Weiss was a practicing attorney for more than 25 years. He also was the chief public defender for Lake Superior Court Judge Jesse Villalpando since 2002.

"He was a first-class attorney in every respect," Villalpando said. "Over the years he became a very close and personal friend. His tragic death is a huge loss to not only our court but to me personally."

Villalpando said he will remember Weiss' "easy smile" and "unpretentious, down-to-earth" nature.

Posted by Marcia Oddi on Thursday, May 01, 2008
Posted to Indiana Law

Ind. Decisions - Sentence of Pendleton woman for shooting her husband to death while he slept upheld

Yesterday's COA opinion in the NFP criminal case, Kathy Jo Ward v. State of Indiana, is the subject of a story in the Anderson Herald Bulletin by Shawn McGrath. Some quotes:

The Indiana Court of Appeals on Wednesday upheld the 30-year sentence given to a Pendleton woman for shooting her husband to death while he slept.

Kathy Jo Ward was sentenced to 30 years in prison after she was convicted in June of voluntary manslaughter, a Class A felony that has a sentencing range of 20 to 50 years behind bars. The standard sentence for an A felony is 30 years. * * *

Ward, 38, appealed the sentence, however, arguing the prison term handed down by Madison Circuit Court Judge Fredrick Spencer was inappropriate because of her good character and lack of any criminal history. She argued for the minimum sentence.

In the unanimous opinion handed down by the three-judge Appeals Court panel, Ward’s argument was denied.

“In considering the nature of the offender, we note that Ward, who was 36 years old at the time of the offense, had no criminal history,” Senior Judge Betty Barteau wrote in the opinion. “She had been a productive member of society and had been employed by Sallie Mae for eight years. She had achieved an associate’s degree from Indiana Business College and was working on a bachelor’s degree at the time of the shooting. She supported her teenage son without assistance from his biological father. She expressed sincere remorse for the shooting, and she cooperated with the police during the investigation.

“If the appropriateness of a sentence (under Indiana law) was based merely on the character of the offender, we would find that the imposition of the (standard) sentence was inappropriate,” Barteau continues. “However, our evaluation also includes the nature of the offense. The shooting of a sleeping, defenseless victim warrants the sentence imposed by the trial court.”

Posted by Marcia Oddi on Thursday, May 01, 2008
Posted to Ind. App.Ct. Decisions

Courts - "U.S. Appeals Court Rejects NY City’s Suit to Curb Guns"

Alan Feuer of the NY Times reports today:

A federal appeals court threw out New York City’s longstanding lawsuit against the gun industry on Wednesday, ruling that a relatively new federal law protects gun makers against such suits.

The appellate ruling killed perhaps the boldest avenue by which the city has sought to stem the flow of illegal guns into New York: a claim that gun makers and distributors have knowingly flooded illicit, underground markets with their weapons.

The city’s suit, filed in 2000, was upheld in December 2005 by Judge Jack B. Weinstein of Federal District Court in Brooklyn. Judge Weinstein allowed it to move forward, despite protests by gun makers like Beretta U.S.A., Browning Arms, Colt Manufacturing, Glock and Smith & Wesson, all of which cited a federal law that had been passed two months earlier.

That law, the Protection of Lawful Commerce in Arms Act, banned all suits against the gun industry except those in which a plaintiff could prove that gun makers had violated state or federal statutes in their sales and marketing practices.

The city contended that the gun makers did exactly that, by failing to monitor retail dealers closely enough and, therefore, by allowing guns to end up in the hands of criminals. As a result, the city said, the manufacturers had created a “condition that negatively affects the public health or safety” and, thus, had violated New York State’s public-nuisance law. It requested an injunction.

But the Second Circuit Court of Appeals rejected that argument, ruling that the nuisance law did not constitute a permissible exception under the Protection of Lawful Commerce in Arms Act. It reversed Judge Weinstein’s decision and ordered the suit dismissed. * * *

Gun makers have been sued dozens of times by city and state officials across the country, but no suit has ever been successful. New York City’s suit against the industry, in fact, went further toward a trial than most, said Andrew Arulanandam, a spokesman for the National Rifle Association.

The city of Gary, Ind., has so far been able to pursue its own case against the gun industry in the Indiana state court system. When he was New York State’s attorney general, Eliot Spitzer tried to sue gun makers in the New York courts, but the suit was dismissed in 2003 when a state appellate court ruled that there was no reasonable legal claim in his complaint.

The New York Law Journal also has a story today, headed "2nd Circuit Dismisses NYC's Suit Against Gun Manufacturers: Gun makers found insulated under U.S. law."

More about the Gary case: This ILB entry from Oct. 29, 2007, is headed "COA issues ruling today in Smith and Wesson case." See also this list of "Smith and Wesson" entries. For background on the case, start with this ILB entry (2nd half) from Sept. 8th, including links to the Indiana Supreme Court's 2003 ruling and then Lake Superior Court Civil Division 5 Judge Robert Pete's Oct. 6, 2006 ruling that "a year-old federal law shielding gun makers from lawsuits" was unconstitutional.

Where is the Gary case now?
A check of the Clerk's docket (45 A 05 - 0612 - CV - 00754 SMITH AND WESSON ET AL. -V- CITY OF GARY Interlocutory) shows that Appellants' motion for rehearing was denied 1/9/08, that Appellants' motion for transfer was filed 2/7/08, that briefs have been filed, and that Appellants' motion for oral argument was filed 3/17/08.

Posted by Marcia Oddi on Thursday, May 01, 2008
Posted to Courts in general

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

Updating this ILB entry from April 16th (and this list of earlier entries), Debbie Lowe reports today in the Carroll County Comet:

Things were looking up for Carroll County Council through most of its Tuesday morning meeting. It seemed the latest communication with the Indiana Department of Local Government Finance (DLGF) would solidify the 2008 budget after making drastic reductions for the past several months in the first draft. However, council members learned at the very end of the meeting that Carroll Superior Judge Jeffrey Smith and Carroll Circuit Court Judge Donald Currie would issue a mandate to reinstate the latest budget reductions for their courts and the joint courts.

Council reduced the three courts' budgets by $90,000 earlier in the year. Salaries for the chief probation officer and the probation secretary were transferred from the general fund to the probation account. Using figures from budget worksheets prepared during the reductions session, the cost of the mandate to county general could be at least $143,130.86.

"Judge Currie and I will be proceeding as indicated," Smith told council members from the back of the commissioners meeting room at the end of the meeting. "We will all incur attorney fees." * * *

Smith said in a follow-up interview Tuesday afternoon he and Currie intended to "make sure the courts will have what they needed to function." Smith would not state when the judges intended to file the petition and refused to comment further about the matter.

"I'm terribly disappointed with the judges," Abbott said Tuesday afternoon. (He was not present in the meeting when Smith announced the intention to file a mandate.) "For them to exercise the right to mandate just because they can doesn't make it right. I know it's not a perfect system, but at this time they should work with us."

"They get to hide behind their pow- ers to mandate and that's wrong," he continued. "Mike Durr (EMS director) and Tony Burns both worked with us. I wish the judges had the same attitude. We looked at every office for cuts and sacrifices. What does this say to the other offices and department heads that don't have the same power? It's been a hard time for the county employees."

Posted by Marcia Oddi on Thursday, May 01, 2008
Posted to Indiana Courts