Monday, June 30, 2008
Law - "N.C. legislators debate golf carts as transportation as gas prices remain near $4 a gallon"
The Wilmington NC StarNews had this story Sunday, reported by Joe Johnson, that begins
Raleigh | Golf cart owners who want hit the highways instead of the fairways in an attempt to beat $4 gas prices should wait until regulations are in place.
Existing state law already allows street-legal golf carts to operate on any street or road where the speed limit is 35 mph or less.
State Rep. Danny McComas, R-New Hanover, has pending legislation that will allow Wilmington and New Hanover County to establish rules for using golf carts as transportation. Last year Wrightsville Beach, Carolina Beach and Kure Beach got the power to regulate the use of golf carts in their towns.
"It is only permissive and it's best to do it before it becomes a problem," McComas said. "Sometimes people have golf carts for other uses. It's going to be up to the cities set up their own regulations."
Wrightsville Beach Police Chief John Carey said he could not recall anybody using a golf cart improperly in his town in the past year. Even though Wrightsville Beach received the power to regulate golf carts last year, Carey said there presently are no town ordinances concerning golf carts. That doesn't mean it is legal to hit the roads in Wrightsville Beach in a golf cart, though.
"A golf cart would have to be street legal," Carey said. "Otherwise, a person could be charged with driving an unregistered vehicle and a myriad of other charges."
Caswell Beach in Brunswick County was one of the first communities to seek the ability to regulate golf carts in 2006. Caswell Beach has a whole section of regulations regarding the use of golf carts in town. Unaccompanied drivers have to be at least 15 and possess a state-issued permit, and the have to follow the town's traffic code. The golf carts have to be street legal. Golf carts are not allowed to be operated on the town's main thoroughfare, Caswell Beach Road, however.
"Safety is the main consideration," said Caswell Beach town administrator Jim Carter.
Ind. Decisions - The Supreme Court has now posted two (now three) more this afternoon
Willie Eaton v. State of Indiana is an 11-page, 4-1 opinion, with a 4-page dissent. Justice Dickson writes:
In this direct appeal, the defendant challenges his convictions for Dealing in Cocaine, a class A felony, and Possession of Marijuana, a class A misdemeanor. The Court of Appeals reversed both convictions, finding that evidence was improperly admitted due to the insufficiency of a police affidavit on which an initial search warrant was issued. We granted transfer and affirm the convictions. * * *In 600 Land Inc. v. Metropolitan Board of Zoning Appeals of Marion Co., Indiana, et al., a 3-2 opinion, Justice Sullivan writes:
We reject the defendant's claim that the warrant authorizing the search of his home was not supported by sufficient probable cause. * * *
Without explanatory argument or citation to supporting authority, the defendant simply declares that the col-lection and seizure of the items not enumerated in the search warrants "comprises a clear violation" of his constitutional rights against illegal search and seizure. * * *
These claims are not meritorious. A police officer may seize evidence not identified in a warrant "when he inadvertently discovers items of readily apparent criminality while rightfully occupying a particular location." * * *
Conclusion We affirm the judgment of the trial court.
Shepard, C.J., and Sullivan, and Boehm, JJ., concur.
Rucker, J., dissents with separate opinion. [which concludes] Today’s ruling invites the Government’s search of a suspect’s business, home, garage, tool shed, workshop, or any other property a suspect may use simply because a law enforcement officer believes, without more, that evidence of crime can be found there. In my view this is an anathema to the mandate of the Fourth Amendment of the United States Constitution as well as Article I, Section 11 of the Indiana Constitution. There were no bases in this case, substantial or otherwise, for the magistrate to conclude that probable cause existed for the issuance of a search warrant. Eaton’s motion to suppress should have been granted. Therefore I agree with the result reached by the Court of Appeals and would reverse the judgment of the trial court.
600 Land, Inc. is the owner of land in Marion County on which it wants to build a “solid waste transfer station.” The County contends that a special exception from the zoning ordinance is required. The land is zoned to permit a “motor truck terminal” to be operated without a special use permit. 600 Land’s proposed use qualifies as a “motor truck terminal” because “[a] terminal may include facilities for the temporary storage of loads prior to transshipment.” * * *In Brenwick Associates LLC and Town of Whitestown, Indiana v. Boone County Redevelopment Commission and the Board of Commissioners of Boone County, Indiana, a 9-page, 5-0 opinion, Justice Sullivan writes:
Conclusion. The judgment of the trial court that 600 Land is required to obtain a special use permit for its transfer station is reversed.
Shepard, C.J., and Dickson and Rucker, JJ., concur.
Boehm, J., dissents with separate opinion in which Dickson J., concurs. [The dissent begins:] I respectfully dissent. The majority concludes that a waste transfer facility is a “motor truck terminal” requiring no special exception under the applicable zoning ordinance. To reach this conclusion the majority parses various provisions of the governing ordinance and cites a number of rules of statutory construction, but in my view fails to deal with those that are central to this case.
It seems to me that if we asked a group of average citizens whether a waste transfer station was a motor truck terminal, we would get at best a tie for the position the majority reaches. I acknowledge that the proposed “waste transfer station” meets the technical definition of “motor truck terminal” because it involves the parking, storing, and servicing of trucks. But the activities of a waste transfer station go beyond that definition. Most people would regard garbage as different for purposes of land use regulation from consumer or industrial products on their way to customers. So as a matter of ordinary English, I find the majority’s reading of the ordinance quite strained. But there are also several legal points that the majority does not address.
The Town of Whitestown initiated annexation of unincorporated land in Boone County to spur economic development. Ten days later, the County itself initiated proceedings to establish a special taxing district (called an economic development area) that included the same unincorporated land. Our State’s economic development statutes permitted Boone County to establish the economic development area at issue in this case even though it included the same land that Whitestown was attempting to annex. * * * The judgment of the trial court is affirmed.
Ind. Courts - Indiana Court Times, May/June 2008, is available online
The Indiana Courts website announces today that the 20-page May/June issue of Indiana Court Times is available online.
Ind. Decisions - Supreme Court posts one this afternoon
In Phillip Miles v. State of Indiana, a 3-page Per Curiam opinion, the Court concludes:
We grant transfer because Miles is not precluded from seeking appellate sentence review under the circumstances. In Childress v. State, 848 N.E.2d 1073 (Ind. 2006), we rejected the argument that defendants, by entering plea agreements that specify a sentence range, have acquiesced to a sentence in the specified range and thus forfeit the opportunity for appellate sentence review. We held that such defendants may raise the appropriateness of a sentence imposed under the terms of such plea agreements. Similarly here, defense counsel’s arguments at the sentencing hearing about a sixty-five year sentence does not equate to “invited error” or acquiescence in a sixty-five year sentence such that Miles is precluded from asking an appellate court to review his sentence. Rather, the trial court exercised discretion in determining Miles’s sentence and Miles is entitled to contest the reasonableness of a trial court’s sentencing discretion on appeal. See Id. at 1078-79; see also Tumulty v. State, 666 N.E.2d 394, 396 (Ind. 1996) (providing appellate sentence review to defendant on open plea).
Having reviewed the merits of Miles’s argument that the sentence should be revised, however, we conclude the sentence was not inappropriate in light of the nature of the offenses and the character of the offender.
Accordingly, we grant transfer, thus vacating the Memorandum Decision of the Court of Appeals, and affirm the sentence.
Ind. Decisions - Court of Appeals issues 7 today (and 26 NFP)
Today is the end of the term.
For publication opinions today (7):
In Indiana Department of Natrual Resources and State of Indiana v. Lake George Cottagers Association , a 7-page opinion, Judge May writes:
The Lake George Cottagers Association (hereinafter “the Association”) sought a declaratory judgment the State owns the real estate underneath a dam built in the 1930s and is therefore responsible for repairing it. The Association and the State both moved for summary judgment, and the trial court granted the Association’s motion. We find the legislature could not have intended the Lake Preservation Act to confer on the State “a right, a title, or an interest in or to the property” where a dam is located. Ind. Code § 14-27-7.5-4. We accordingly reverse and direct the entry of summary judgment for the State. * * *In In the Matter of A.T.; Lake County Dept. of Child Services v. A.T. and Lake County CASA , a 7-page opinion, Judge Crone writes:
In 1928, a ten acre plot including the Mill Pond was conveyed to the Association. Sometime in the 1930s, the Dam was built on the Association’s property at the south end of the Mill Pond to control the Lake’s water level and prevent flooding of a nearby road.
The Association still has title to the real estate conveyed in 1928. In 1947 the legislature enacted the Lake Preservation Act, which gave the State “full power and control of all of the public freshwater lakes in Indiana” and provided the State “holds and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes.” I.C. § 14-26-2-5(d).
The Association sought a declaratory judgment the State owned the Dam and the real estate underneath it. Both the State and the Association moved for summary judgment, and the trial court granted summary judgment for the Association. * * *
[Hled] The State did not become an “owner” of the land under the Mill Pond Dam by conveyance, by virtue of the Lake Preservation Act, or otherwise. Summary judgment for the Association was therefore error, and we direct the entry of summary judgment for the State. Reversed.
May a juvenile court discharge an eighteen-year-old CHINS and reinstate jurisdiction over that child before she reaches age twenty-one? According to Indiana Code Section 31-30-2-1(a), it may not: * * *In Clyde Pryor v. State of Indiana , a 9-page opinion, Judge Crone writes:
Here, the juvenile court relinquished its jurisdiction over eighteen-year-old A.T. when it discharged her in August 2006. The methods by which a juvenile court may properly reinstate its jurisdiction are found in Indiana Code Sections 31-30-2-3 (sua sponte reinstatement within thirty days upon notification from the Department of Correction regarding the child’s release) and 31-30-2-4 (on petition of the Department of Correction). Neither section is applicable in this case.
Therefore, in August 2007, the juvenile court lacked jurisdiction to reinstate nineteen-year-old A.T. as a ward of DCS. Accordingly, we reverse.
Clyde Pryor appeals his conviction for class D felony auto theft, arguing the evidence is insufficient to support his conviction. * * *In State of Indiana v. William R. Whitney , a 9-page opinion, Judge May writes:
While it may have been a relatively simple matter for the State to have introduced the evidence necessary to establish Ambrosia Martin’s ownership of the stolen vehicle, the fact of the matter is that it did not, and that deficiency is fatal to the prosecution. Reversed.
The State of Indiana appeals the grant of William R. Whitney’s motion to suppress evidence of Whitney’s intoxication. We reverse and remand. * * *James Ridner v. State of Indiana - "James Ridner appeals the trial court’s order that he register as a sex offender. We affirm. * * *
Deputy Blacker had reasonable suspicion. He stopped Whitney at 12:30 in the morning because Whitney was traveling fifteen miles per hour over the speed limit. When Whitney spoke, Deputy Blacker “thought [he] could smell an odor of an alcoholic beverage coming from him.” Although Deputy Blacker was not positive the smell was alcohol, rather than leather or the motorcycle engine, his belief the smell might have been alcohol was sufficient to justify a brief detention to determine whether Whitney had consumed alcohol. Although Deputy Blacker testified he typically offered field sobriety tests prior to a PBT [portable breath test], we see nothing unreasonable or illegal about his reversing the order of those tests under these facts.
Because Deputy Blacker had the reasonable suspicion to support a PBT, we reverse the grant of Whitney’s motion to suppress and remand for further proceedings. Reversed and remanded.
"The Morgan County Probation Department directed Ridner to register pursuant to the terms of the amended statute. On July 12, 2007, Ridner asked the trial court to classify his conviction as a “Non-Registration Required Offense.” The trial court ruled Ridner is required to register, but stayed its ruling pending appeal. * * *
"The registry requirement is not an ex post facto law as applied to Ridner."
In Randall R. Davis v. M. Brian Davis & Trust of Maybelle V. Reichert, Judge Kirsch writes:
Randall R. Davis (“Randall”), a beneficiary of a trust established by his mother, Maybelle V. Reichert (“Reichert”), filed a petition to have his brother, M. Brian Davis (“Brian” or the “Trustee”), removed as the trustee of the trust. The trial court denied Randall’s petition. Randall appeals raising the following restated issues for our review: I. Whether the trial court abused its discretion in finding that Brian’s actions did not warrant his removal as the trustee of the Trust. II. Whether the trial court erred in setting the interest rate at 4.5% for the Trustee’s repayment of loans despite expert testimony that the applicable rate during that time period was 8%. III. Whether the trial court erred in reducing Randall’s attorney fee award from his requested $29,628.69 to $4,000.00. We reverse and remand.In Steven McCullough v. State of Indiana, a 22-page opinion including a separate opinion concurring in result, Judge Crone writes:
Steven McCullough appeals his convictions for class C felony criminal confinement, class D felony criminal confinement, and class A misdemeanor battery, as well as a habitual offender finding, on sufficiency and double jeopardy grounds. In a matter of first impression, the State brings a cross-appeal asserting that the trial court abused its discretion in balancing aggravating and mitigating factors in imposing McCullough’s sentence and that the sentences for the class C felony and habitual offender counts are inappropriately lenient in light of the nature of the offense and McCullough’s character. We hold that McCullough’s convictions are supported by sufficient evidence but vacate the class D felony confinement conviction on double jeopardy grounds. We further hold that the State may challenge a defendant’s sentence on cross-appeal for an abuse of discretion or inappropriateness, but only if the defendant appeals his sentence in his appellant’s brief. Because McCullough did not appeal his sentence, we do not reach the merits of the State’s cross-appeal.NFP civil opinions today (8):
NFP criminal opinions today (18):
Ind. Courts - "Accused officers' drugs cases at risk"
Reported this morning by Vic Ryckaert of the Indianapolis Star, a story that begins:
After an Indianapolis police officer appeared in court this morning on charges he knowingly sold a firearm to a convicted burglar, the Marion County prosecutor admitted he’s worried about the fate of the investigator’s pending drug cases.
Jason Barber, 32, appeared in Marion Superior Court on charges of selling a handgun to a felon and official misconduct. Barber, a narcotics detective, was arrested at his home Friday. He is the fourth police officer to be arrested in the last two weeks.
“These officers were in this court several weeks ago testifying against defendants,” Prosecutor Carl Brizzi said after the hearing. “Now they are defendants.”
Courts - Linda Greenhouse recaps the Court's term
Linda Greenhouse, who took an early buyout from the NY Times and is moving on to Yale, recaps the Supreme Court's term in this article in the Sunday Times. Accompanying the story are two valuable, not to be missed charts, "Close Cases" (here), and "Major Rulings" (here).
Equally valuable are these summaries of the 2007-2008 term’s most important decisions.
Ind. Law - More on: Impact of the decision in Heller on Indiana (and Chicago)
Updating this ILB entry from June 27th, David G. Savage of the LA Tmes had an excellent analysis piece June 28th headed "Supreme Court gun ruling leaves questions: How far does the constitutional right to gun ownership extend? Is the right fundamental -- generally not subject to government rules? Or can it be strictly regulated?" A few quotes:
WASHINGTON -- The Supreme Court’s historic ruling this week that clarified Americans' right to own a gun for self-defense left a crucial question unanswered, one that will be resolved only after many years and a torrent of litigation, legal experts said Friday.An editorial today in the Fort Wayne Journal Gazette, however, states without qualification:
Is gun ownership a "fundamental right" under the Constitution, or something less? Put simply, is a gun akin to an automobile, a legal but dangerous product that can be strictly regulated by the government? Or is a gun more like a book, both legal and largely off-limits to government regulation?
"There's a lot that needs to be sorted out. The big question is: Is this like the 1st Amendment and the freedom of speech?" said John Eastman, dean of the Chapman University School of Law in Orange. He once was a clerk on the high court. * * *
The justices also barely touched on a threshold issue for future lawsuits.
The decision in District of Columbia vs. Heller did not say the 2nd Amendment applies to states and localities. Washington, D.C., is not a state.
Until the early 20th century, the Bill of Rights was assumed to limit only the federal government, not the states; now the presumption is that the Constitution protects Americans against the government at all levels -- federal, state and local. But the Supreme Court has not said the 2nd Amendment applies to the states.
"That's the next case to come up, but I think it's a foregone conclusion" that the 2nd Amendment will extend to state and local laws, said Washington lawyer Alan Morrison, who wrote the District of Columbia's opening brief defending its law when he was a city attorney.
In the wake of Thursday's ruling, Morrison said: "The bottom line is, it looks like a full-employment decision for lots of gun lawyers and state, federal and municipal lawyers."
The ruling, however, will have little local effect in Indiana, where the state constitution establishes a right to own guns for self-defense in more precise language than the U.S. Constitution.Leaving state/federal issues aside, what exactly does the Indiana Constitution provide? Art. 1, Sec. 32:
The people shall have a right to bear arms, for the defense of themselves and the State.
Ind. Law - "Law requiring schools and governments to receive referendum approval for large, publicly financed projects takes effect July 1"
Niki Kelly reports in the Fort Wayne Journal Gazette today under the headline "New law bolsters voter say on taxes." Her story begins:
A new era of citizen control over property taxes starts Tuesday when a law requiring schools and governments to receive referendum approval for large, publicly financed projects takes effect.Bruce C. Smith has a story in the Indianapolis Star headed "Is Plainfield's the last of the big-ticket schools? Law requiring referendums could quash similar projects." His story begins:
That means voters will more directly decide the fate of their own property tax bill – giving a thumbs up or down to many schools, fire stations, libraries and more.
“There are some things I think are pretty central, and I think a referendum process – trusting the people and letting them make decisions before they are taxed for big borrowing – is pretty important,” Gov. Mitch Daniels said earlier this year in a meeting with reporters.
He also has said repeatedly that he doesn’t think a referendum process will mean the end of infrastructure improvement in Indiana.
Schools will likely be the most affected: On average 54 cents of every property tax dollar collected in Indiana goes to schools, and nearly 11 cents of that pays for school construction debt.
At the public opening of the new Plainfield High School on Sunday, high praise flew faster than adjectives and adverbs in a freshman English composition.
Beautiful. Outstanding. Exciting. Unbelievable. Wow.
"Makes me want to go back to high school," said Avon dentist Lou Menegotto, the father of an incoming senior at the new $103 million school.
Thousands attended a dedication ceremony Sunday and took student-led tours of the spacious 476,000-square-foot home of the Plainfield Quakers. The building at 1 Red Pride Drive is the centerpiece of a 110-acre campus with a 4,000-seat football stadium and a bell in the Tower of Honor.
But in an age of taxpayer revolt and a state law effective Tuesday requiring referendums on expensive government buildings, the future of similar big-ticket schools in Indiana isn't as clear.
Ind. Law - "Tragic cases often spur fetal homicide laws"
Deanna Martin, writing today for the AP, has a long article on fetal homicide. The article starts by referencing Marion County Prosecutor Carl Brizzi's call for a strengthened law after the recent death of two unborn twins in a bank robbery:
"We've got two innocent babies whose lives were abruptly terminated, five months old, and all we can do is charge this individual with a C felony feticide for each life that was taken because of the way the law's written," Marion County Prosecutor Carl Brizzi said after the June 20 arrest of Brian Kendrick. Kendrick also faces other charges in the April 22 shooting that carry longer sentences.Here are three earlier ILB entries on fetal homicide. The entry from April 30th cites this Indianapolis Star story by Jon Murray, which details the history behind Indiana's current law:
Some legislators agree with Brizzi that the possible prison sentence for killing a fetus is too short and are looking to change the law. It could make Indiana the newest battleground for the debate that has been waged in other states.
Conservative groups say such legislation is needed to protect human life and to recognize that a crime against a pregnant woman has more than one victim. But abortion rights activists say fetal homicide laws are often a backdoor way to determine that life legally begins at conception and can pit a mother's rights against those of her unborn child.
In Indiana, the law allows prosecutors to file murder charges in cases where a fetus dies, but only if the mother is at least seven months pregnant. * * *
"This is not a reproductive rights issue," said Brizzi, the Marion County prosecutor. "This is protecting unborn children at conception."
The bill was drawn up after the shooting of an Indianapolis couple, Melanie and Kevin Elmore, that killed Melanie's baby after more than eight months of pregnancy. Planned Parenthood called it an abortion bill, but it passed both chambers overwhelmingly.The National Conference of State Legislatures has an informative resource on fetal homicide, last updated in April.
Then-Gov. Frank O'Bannon, a Democrat, vetoed the bill over concerns it put abortion doctors at risk. Both chambers overrode the veto in 1998.
That law marked the line at viability. Its sponsor, Rep. Jim Buck, R-Kokomo, now a state senator, said it is time to expand it, in part because advances in medicine have made the legal standard for viability outdated.
Environment - "Congress now focus of Great Lakes compact"
John Flesher, AP Environmental Writer, reports today:
TRAVERSE CITY, Mich. | A year ago, it seemed a proposed compact designed to prevent raids on the Great Lakes might be sunk by squabbles in the states with jurisdiction over nearly one-fifth of the world's fresh surface water.
Now the deal is close to ratification on the state level, and supporters are beginning to plot strategy for the final step: winning approval from Congress and the White House.
On the surface, the task would appear easy. Congress has endorsed more than 200 interstate compacts over the years, including 41 dealing specifically with water management. They regulate use of some of the nation's primary water sources, such as the Colorado and Delaware rivers. * * *
But backers remain wary. After all, it was fear of water grabs from other sections of the country -- or even from overseas -- that inspired the eight states to negotiate their deal. * * *
[Before the Compact goes to Congress] approval is needed from the region's eight state legislatures. Minnesota quickly said yes, followed by Illinois, Indiana and New York. Gov. Ted Strickland, of Ohio, signed the bill Friday and Jennifer Granholm, of Michigan, has pledged to sign her state's bill. When she does, the focus will turn to Pennsylvania, where the compact cleared the House in January and is pending in the Senate.
Ind. Decisions - More on "Physical discipline of child not abuse"
Updating this June 12th ILB entry on the Supreme Court's 4-1 decision June 10th in the case of Sophia Willis v. State of Indiana (see ILB entry here, 2nd case), the South Bend Tribune today carries an editorial by the Associated Press on the opinion. The brief editorial concludes:
The court based its reversal on what seems to be a very broad conclusion: Because the injuries were not permanent or serious, battery had not occurred.
While we are certain that the court did not intend to put its stamp of approval on beating children, we share Sullivan's concerns. It seems that the issue of corporal punishment has been muddied rather than clarified.
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This week's oral arguments before the Court of Appeals:
Sunday, June 29, 2008
Ind. Law - "Activist lawyer works to keep city honest"
John Ketzenberger's column today in the Indianapolis Star begins:
What's gotten into local attorney Paul Ogden?For background on the Dome lawsuit, start with this ILB entry from March 22nd.
A Republican and former political candidate, he has the public-private partnerships long championed by power brokers of both parties squarely in his sights.
The 47-year-old associate with Roberts & Bishop isn't well known in the business community, but the effect of his work is being felt through his clients' lawsuits. Among them:
» In March he sued the Capital Improvement Board over plans to turn over proceeds from the auction of RCA Dome memorabilia to the Indiana Sports Corp. and the Indianapolis Colts Foundation. Ogden argued the money should be used to pay down the $75 million debt related to the dome.
The CIB last month settled the lawsuit and paid nearly $7,900 to cover attorney's fees. The case ended without settling key questions such as who owns the dome's turf.
Ind. Law - Some of the new laws taking effect July 1
Niki Kelly of the Fort Wayne Journal Gazette reports today on some of the new laws taking effect July 1st. The main story focuses on "a new law legalizing some low-stakes games of chance" in bars and taverns. A side-bar looks at some other new laws that take effect July 1, including a law which "requires passengers involved in accidents who are older than 18 or who are at least 15 and have a learner’s permit or driver’s license to alert authorities."
Tomorrow Kelly will report on "new legislation taking effect July 1 that relates to the referendum requirement for construction projects financed by property taxes."
Mike Smith of the AP has a story today headed "More than 140 laws to kick in." A quote from early in the story reads:
But the provisions of another new law that would have allowed police investigators to search the computers of sex offenders at any time -- long after their sentences had been served -- will not take effect as scheduled.Not exactly. See this ILB entry from yesterday.
A federal judge struck it down last week, saying it violated constitutional privacy rights.
Saturday, June 28, 2008
Ind. Courts - "Judge takes on new role as deacon" [Updated]
Here are some quotes from a story today by Laura Lane of the Bloomington Herald Times ($$):
Monroe Circuit Judge Marc Kellams may want to consider purchasing a reversible robe.[Updated 6/29/08] "Heeding an ancient call to serve god: Archdiocese revives long-dormant role, ordains 25 as deacons," is the headline to a story today by Robert King in the Indianapolis Star.
Black on one side for when he is in his role as judge; white on the other, for his new volunteer job as a deacon in the Catholic church.
Today, 59-year-old Kellams is among 25 men being ordained as the first class of permanent deacons in the Archdiocese of Indianapolis, which covers central and southern Indiana.
More than 1,000 people are expected at the 10 a.m. ordination ceremony at SS. Peter and Paul Cathedral in Indianapolis. The event will recognize the men of faith and formalize their responsibilities as ministers of charity within their parishes. They have spent one weekend each month together during their four-year education process, learning and praying.
The deacons won’t be hearing confessions or consecrating the bread and wine for communion, but they will be able to baptize babies, perform marriages, pray with the sick and dying and serve communion.
The deacons, who have been in training for four years, will serve their parishes for 10 hours a week without compensation. The deacons, dressed in white robes called albs with stoles across their chests, will assist with Mass and occasionally will preach to the congregation. * * *
Kellams will serve St. Charles Borromeo Parish, his home church in Bloomington, where he already coordinates visits to the sick and elderly. “That’s my primary role — assisting the old and the sick,” he said.
Ind. Law - "Legislative patchwork befuddles state panel"
So reads the headline to a story by Patrick Guinane in yesterday's NWI Times:
INDIANAPOLIS | The legislative labyrinth surrounding Indiana's property tax system proved too difficult Thursday for a state oversight panel to navigate.
The Local Government Property Tax Control Board punted on about $5 million in appeals sought by the city of Gary, it's sanitary and stormwater districts and Gary/Chicago International Airport.
Members of the state panel said they had little clue what the General Assembly's intentions were this spring when it extended the deadline for local government to appeal tax shortfalls sustained last year. The board unanimously decided to let Cheryl Musgrave, commissioner of the Indiana Department of Local Government Finance, sort out the situation.
Lake County tax bills went out so late last year -- in December -- that Gary and its sister agencies didn't know how short they would be until the county distributed tax collections in March. City officials now say that assessment errors and taxpayer appeals shorted Gary at least $4.4 million while sapping $521,000 from its sanitary district, $100,000 from the airport and $73,000 from the stormwater district.
State law typically requires local government to take out a newspaper ad announcing any anticipated appeal of its property tax levy, which Gary and the sister agencies didn't do when advertising annual budgets last fall.
But city officials question how they were supposed to forecast shortfalls they didn't know about until the county distributed property tax collections six months later.
Ind. Courts - "East Chicago racketeering case cleared for trial"
Patrick Guinane reports today in the NWI Times in a story that begins:
INDIANAPOLIS | U.S. District Court Judge James Moody cleared the way Friday for the state's protracted civil racketeering lawsuit against former East Chicago Mayor Robert Pastrick to go to trial.
Moody dismissed arguments by Pastrick and other defendants, who said the case against them was so weak it shouldn't go to court. But Moody also threw out most of the motions made by Indiana Attorney General Steve Carter, who argued the Pastrick administration displayed an undisputed pattern of corruption that undeniably harmed city taxpayers.
The ruling, which means the four-year-old lawsuit now will move before a jury, elicited applause from both sides of the case and triggered a political challenge in the race for Indiana attorney general.
Ind. Courts - Still more on: Supreme Court issues emergency order re handling of forfeiture cases in Muncie
MUNCIE -- Judge Richard Dailey wants records reflecting all deposits and withdrawals -- and copies of cashed checks -- from a First Merchants Bank account that contained funds confiscated from accused drug dealers by the Muncie-Delaware County Drug Task Force and the county prosecutor's office.
The Delaware Circuit Court 2 judge on Friday issued court orders for those banking records, along with those of two city government accounts and tax forms reflecting payments to Delaware County Prosecutor Mark McKinney, Deputy Prosecutor Eric Hoffman and former Deputy Prosecutor Louis Denney, who filed the civil lawsuits that led to the forfeitures.
Dailey -- who in recent weeks has conducted a series of hearings on what the judge referred to in Friday's orders as "allegations of fraud upon the court in civil drug forfeiture cases" -- also issued an order for "all information" on federal grants that city government, the DTF and the county sheriff's department "used for drug interdiction or enforcement, in Muncie, Ind., from 1996 to present..."
In one of Friday's orders, Dailey wrote that McKinney had "repeatedly asserted to this court that he may enter into confidential agreements and dispose of drug forfeiture funds without court adjudication..."
The judge wrote that through his own investigation he had determined that grants from the U.S. Department of Justice required that all forfeitures "must first be adjudicated in state courts."
Ind. Decisions - More on: Judge Hamilton holds SB 258 unconstitutional
In John Doe v. Prosecutor, Marion County, an opinion issued by federal Judge David Hamilton June 24th, Senate Enrolled Act 248, which takes effect Monday, July 1st, was held unconstitutional, at least in part. The 51-page opinion concluded:
The court will enter a final declaratory judgment stating that the newly enacted Indiana Code § 11-8-8-8(b) may not be applied to members of the plaintiff class.The new lanuage of IC 11-8-8-8(b) is at the top of p. 5. It reads:
(b) If the sex or violent offender registers any information under subsection (a)(7), the offender shall sign a consent form authorizing the:Elvia Malagon of the Gary Post-Tribune reports today on a news conference by Attorney General Steve Carter on enforcement of the the new law. The story, headed "New state law bars sex offenders from social networking Web sites," does not mention the court case.(1) search of the sex or violent offender's personal computer or device with Internet capability, at any time; and
(2) installation on the sex or violent offender's personal computer or device with Internet capability, at the sex or violent offender's expense, of hardware or software to monitor the sex or violent offender's Internet usage.
Benjamin Lanka of the Fort Wayne Journal Gazette, also reports on the Attorney General's press conferences yesterday. Some quotes:
Starting next week convicted child predators will be forced to register their virtual addresses along with their physical addresses in Indiana.
Attorney General Steve Carter traveled the state Friday to highlight some state laws taking effect July 1 that protect Hoosier children and consumers. He focused on Senate Enrolled Act 258, which prohibits a registered sex offender convicted of certain crimes involving children from using social networking Web sites, instant messaging programs or chat room programs that the offender knows include children.
Specifically, it requires those offenders to register their e-mail addresses and online user names along with their other information.
“By July 1, cyberspace is going to be a safer place for Hoosier children,” Carter said.
The law requires offenders to update their registry within 72 hours of changing e-mail addresses or user names. Failure to provide such an update will be a Class D felony. Carter said it is likely some offenders will ignore this new provision, but he hopes the threat of further prosecution acts as a deterrent to keep them honest.
A federal judge in U.S. District Court this week ruled the part of the law that requires offenders to allow their computers to be searched is unconstitutional. Offenders would have had to sign a consent form allowing searches of their computers or other Internet-enabled devices at any time. They would also have to install software that monitors their Internet activity at their expense.
On Friday, Carter said the ruling does not curtail the other portions of the law, including the registry of virtual addresses. He said the information on e-mail accounts and user names would be available to the public in the same way home addresses are.
Friday, June 27, 2008
Ind. Decisions - Another Supreme Court opinion posted today
Debra A. Barnett v. Camille Clark, Trustee of Pleasant Township, a 6-page, 5-0 opinion by Justice Dickson in a case argued May 22, 2008 - "The deputy trustee's injurious acts did not fall within the scope of his employment for the defendant Trustee, and thus the Trustee is not vicariously liable under the doctrine of respondeat superior."
The Fort Wayne Journal Gazette's Niki Kelly wrote about this case May 23rd after the oral arguments. Her story started:
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.See ILB entry from May 23rd here.
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.
Ind. Decisions - Transfer list for week ending June 27, 2008
Here is the Indiana Supreme Court's transfer list for the week ending June 27, 2008. Note that there are four pages.
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.
Environment - Yet more on: Gary Post-Tribune examines IDEM calls to BP
Ind. Decisions - Supreme Court issues three opinions today re trash searches
In George Membres, III v. State of Indiana, a 23-page, 3-2 opinion in a case argued 4/17/07, Justice Boehm writes:
We hold that Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), does not apply retroactively because it established a new rule of state criminal procedure that does not affect the reliability of the fact-finding process. We also hold that the warrant in this case was supported by probable cause and was not overbroad. * * *Darius V. Bowles v. State of Indiana, decided 3-2 - "Accordingly, a Litchfield claim is unavailable to Bowles in this appeal."
In March of 2005, Deputy Scott Wildauer of the Marion County Sheriff’s Department was involved in an ongoing investigation into possible drug trafficking at the residence of George Membres III. A confidential informant told Wildauer that he saw another drug dealer at Membres’s house and that he was “pretty sure” Membres was dealing “large quantities” of marijuana from his residence. * * *
Based on this information, on March 9, 2005, Wildauer seized the trash from the public area in front of Membres’s residence on a routine trash collection day. A search of the trash revealed twenty-five burnt ends of marijuana cigarettes, marijuana, four plastic baggies with corners missing, two empty packages of rolling papers, and mail addressed to Membres. Based on the evidence recovered from Membres’s trash, the State obtained a warrant to search Membres’s home for “[m]arijuana, controlled substances, U.S. Currency, papers, records, documents, com-puters, or any other documentation which indicates or tends to indicate a violation or a conspir-acy to violate the [Indiana Controlled] Substances Act, paraphernalia, scales, packing materials, and weapons.” A search produced $57,060 in cash, marijuana, rolling papers, paraphernalia, firearms, four Rolex watches and other jewelry, cell phones, and a number of documents. * * *
Membres contends that the search of his trash was unlawful under Litchfield, decided two weeks after the search. * * *
Litchfield “reshaped” the understanding of what constitutes a reasonable warrantless trash search.
Membres argues that because his case was not yet final at the time Litchfield was decided, Litchfield's new rule of criminal procedure applies retroactively to Wildauer’s search of his trash. The Court of Appeals did not discuss the retroactivity of Litchfield. Apparently assuming that retroactive application was proper, the court evaluated Membres’s trash search claim under the Litchfield standard and found that Wildauer did not have reasonable suspicion for the warrantless trash search. * * *
Neither the Supreme Court of the United States nor this Court has ever considered whether these general principles of retroactivity apply to the rule requiring exclusion of evidence that is the product of an unconstitutional search or seizure. * * *
Indiana search and seizure jurisprudence, like federal Fourth Amendment doctrine, identifies deterrence as the primary objective of the exclusionary rule. ... The rule announced in Litchfield is designed to deter random intrusions into the privacy of all citizens. Retroactive application of that rule would not advance its purpose for the obvious reason that deterrence can operate only prospectively. Exclusion of the fruit of a random search, although important in protecting Indiana citizens from unreasonable searches and seizures, does not in any way serve to avoid an unjust conviction. To the contrary, exclusion of relevant and otherwise admissible evidence can prevent conviction where reliable evidence supports it. Because there is this cost to enforcing the exclusionary rule, it should be done only where appropriate to advance its purpose. * * *
[B]ecause the evidence in search and seizure cases is usually inherently probative and reliable, we see no reason to exclude it categorically if the issue has not been raised before the new ruling, and the officers seizing the evidence operated under the rules this Court had announced at the time. * * *
Conclusion. The trial court’s denial of Membres’s motion to suppress and its grant of the State’s mo-tion for turnover order are affirmed.
Shepard, C.J., and Dickson, J., concur.
Sullivan, J., dissents with separate opinion.
Rucker, J., concurs in part and dissents in part with separate opinion.
[From Justice Sullivan's dissent] Our long-standing retroactivity rule dictates that new rules of criminal procedure apply to future trials and also to cases pending on direct appeal (or otherwise not yet final) where the issue was properly preserved in the trial court. * * *
Today the Court announces an exception to that retroactivity rule for cases involving warrantless searches of trash that implicate the new rule of Indiana Constitutional law announced in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005). In such cases, the new rule applies only if the issue was raised in the trial court before the new rule was announced. * * *
We should not create an exception for Litchfield to our long-standing rule on retroactivity based on the incorrect propositions that Enlow is precedent or that deterrence is the only purpose of the exclusionary rule. I respectfully dissent.
[Justice Rucker's 6-page dissent begins:] I agree that the trial court correctly denied Membres’ motion to suppress. On this point I concur with the majority opinion. But the majority charts new territory to this Court’s longstanding jurisprudence on the question of retroactivity. I would adhere to established precedent and as a result apply Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), retroactively. On this issue I respectfully dissent.
Ralph Belvedere v. State of Indiana, decided 3-2 - "For the reasons explained in Membres v. State, No. 49S02-0701-CR-33, ___ N.E.2d ___, slip op. at 11 (Ind. June 27, 2008), also decided today, “challenges to pre-Litchfield searches that did not raise Litchfield-like claims in the trial court before Litchfield was decided are governed by pre-Litchfield doctrine.” Because Belvedere’s challenge to this pre-Litchfield search was first raised after Litchfield was decided, Litchfield is not available to him in this appeal."
Ind. Decisions - Court of Appeals issues 4 today (and 15 NFP)
For publication opinions today (4):
Bobby Robinson a/k/a Steven Smith v. State of Indiana - "We conclude that the trial court did not abuse its discretion in admitting evidence collected following Robinson’s arrest, as it was supported by probable cause. Moreover, we reject Robinson’s constitutional challenges to Indiana Code section 35-48-4-6(b)(2)(B) for the reasons cited by this court in Manigault, 881 N.E.2d at 687-90."
Term. of Parent-Child Rel. of L.B. and L.C.; Lanny B. v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. - "Based on the record before us, we cannot say that the juvenile court’s termination of Father’s parental rights to L.C. and L.B. was clearly erroneous. We therefore affirm the juvenile court’s judgment."
Travon E. Boyd v. State of Indiana - "Travon Boyd appeals his conviction for domestic battery as a class D felony.1 Boyd raises two issues, which we revise and restate as: I. Whether the domestic battery statute is unconstitutionally vague as applied in this case; and II. Whether the evidence is sufficient to sustain his conviction for domestic battery as a class D felony. We affirm."
In Surjit Singh, M.D. v. Diane Lyday, Betsy Calderhead, and Cara Nichols, a 32-page opinion, Judge Robb concludes:
We conclude the trial court improperly denied Singh’s motion for judgment on the evidence on the Patients’ claims for medical malpractice and gross negligence. We therefore remand with instructions that the trial court enter judgment on the evidence in favor of Singh on these claims. We also conclude the trial court abused its discretion in granting a new trial based on its decisions to exclude evidence at trial. We therefore remand with instructions that the trial court reinstate the jury’s verdict in favor of Singh on the Patients’ claim for battery. The issue of newly discovered evidence raised in the Patients’ motion to correct errors, which the trial court may address on remand, does not affect the insufficiency of the evidence presented at trial to support the Patients’ claims of medical malpractice and gross negligence. See, supra, Part II; see also, supra, note 13. Therefore, if the trial court chooses to grant the Patients’ motion to correct error based on their claim of newly discovered evidence, it should order a new trial on only their battery claim.NFP civil opinions today (7):
William G. Hunert v. Sherry M. Hunert (NFP) - "quently, the district court again denied Groves’ Motion
to Suppress. We affirm. * * * Concluding that neither the trial court’s determination of William’s income nor its apportionment of his daughter’s college expenses is clearly erroneous, we affirm."
Bedford Ear, Nose & Throat Clinic, Inc. v. Review Board of the Indiana Dept. of Workforce Development, and Brandie A. Gilson (NFP) - "Appellant Bedford Ear, Nose & Throat Clinic, Inc. (“Clinic”) appeals a ruling of the Review Board of the Indiana Department of Workforce Development (“Review Board”) affirming the Administrative Law Judge’s (“ALJ”) determination that Brandie Gilson voluntarily left her employment with the Clinic with good cause. We affirm. * * *
"In light of the circumstances surrounding Gilson’s continued employment at the Clinic, we conclude that the sexual comments and sexual advances made by Dr. Samaddar, as found by the Review Board, are such that would impel a reasonably prudent person to terminate their employment under similar circumstances and that Gilson’s reasons for terminating her employment were objectively related to her employment as a receptionist for Dr. Samaddar’s clinic. Furthermore, to the extent that the Clinic claims that Gilson lacked good cause to voluntarily terminate her employment because she failed to notify her employer of her dissatisfaction with her working conditions, we conclude that Indiana law has no such requirement for establishing good cause. The judgment of the Review Board is affirmed."
Debra L. Guyer (n/k/a Debra L. Stover) v. Stephen Guyer (NFP) - "Debra Guyer appeals the trial court’s judgment awarding her $24,880 relating to Steven Guyer’s failure to pay a portion of his son’s college expenses pursuant to the terms of a dissolution decree. The trial court’s judgment, though technically favorable to Debra, effectively granted Steven relief from judgment under Trial Rule 60(B)(8). We conclude that the trial court’s grant was an abuse of discretion because, based on the evidence presented, the trial court could not have concluded that Steven filed his motion for relief within a reasonable time."
Luiz Alves v. Old National Bank, f/k/a St. Joseph Capital Bank (NFP) - "Alves therefore could not rest upon his mere allegations, but was required to designate evidence that he gave the required written notice to Old National, that Old National owed him a duty and that it caused the termination of his employment and/or his removal from MEG. To the contrary, Alves asserted without clear evidentiary support that he gave constructive notice of his claim to Old National. His designated evidence established only that Old National loaned him money and that he agreed to repay it. No duty arose and therefore no duty was breached. For these reasons, we conclude that the entry of summary judgment was proper."
In Lawrence Gunkel and Judy Lynn Gunkel v. Renovations, Inc. by Wagler and Menno D. Wagler, et al (NFP), a 30-page opinion, Judge Kirsch's dissent begins:
Multiple motions. Multiple hearings. Multiple judges. Parties admitting they entered into a contract, then denying that they entered into a contract. Bifurcated trials. Inconsistent positions. Inconsistent rulings. Summary judgments granted. Summary judgments denied. Summary judgments granted but not followed. Three appeals. Eight years and still unresolved. Attorney fees in excess of the amount in controversy.In re the Marriage of Jeffrey Lee and Monica Lee (NFP) - "With regard to the valuation and division of the marital estate, the evidence of record supports the findings of the trial court and the findings support the judgment. As such, the property distribution order is not clearly erroneous. Likewise, the child support order is not clearly erroneous. Affirmed."
It will soon be ten years since the Gunkels entered into a contract for construction of their new home. During this decade, they have not been served well by either their contractors or our legal system. Were Dante Alighieri alive today, this case would provide him with the material to add a tenth circle to his Inferno and call it “Litigation Hell.”
This is not a difficult case. It involves one set of homeowners, two contractors and one new house that leaked. New houses should not leak. The leaks were the fault of one or both of the contractors. The contractor or contractors that were at fault should fix the leaks or pay to have them fixed and pay for the damage that the leaks caused to the other property of the homeowners. To the extent that a contractor failed to perform the work set forth in contract, the contractor is liable for breach of contract. To the extent a contractor damaged other property of the homeowners during the performance of its work, the contractor is liable for negligence. Determine the relationship of the parties. Determine whether the contractors failed to perform the work as agreed. If so, determine the amount of the damages. Enter judgment. Next case.
Term. of Parent-Child Rel. of L.B., L.T., JC.C., and JS.C.; and S.C. (NFP) - "We therefore affirm the juvenile court’s judgment terminating Mother’s parental rights to L.C., L.B., Ja.C., Jas.C. and T.C."
NFP criminal opinions today (8):
State of Indiana v. Kelvin Calmes (NFP) - "The State of Indiana appeals the trial court’s grant of a motion to suppress filed by Kelvin Calmes. The State raises one issue, which we revise and restate as whether the trial court erred when it granted the motion to suppress. We affirm."
Ind. Decisions - One Indiana case today from 7th Circuit
In U.S. v. Daniel Groves, Sr. (ND Ind., Judge Sharp), a 12-page opinion, Judge Rovner writes:
In this successive appeal, Daniel Groves challenges the district court’s denial of his Motion to Suppress Evidence, claiming that the ammunition which provided the basis for his conviction under 18 U.S.C. § 922(g)(1) was recovered from his apartment during an illegal search, in violation of the Fourth Amendment. In the first appeal, we remanded to the district court for various factual determinations and renewed consideration in light of the then-recent Supreme Court decision in Georgia v. Randolph, 547 U.S. 103 (2006). Subsequently, the district court again denied Groves’ Motion to Suppress. We affirm.
Ind. Gov't. - "Public access counselor says Muncie violated law"
Seth Slabaugh of the Muncie Star-Press reports:
MUNCIE -- The city of Muncie gave The Star Press "a number of problematic reasons" for denial of access to a proposed street-paving list for 2008, Indiana Public Access Counselor Heather Willis Neal has concluded.The PAC's Advisory Opinion has not yet been posted, but will show up in a few days at the end of this list.
Responding to the newspaper's formal complaint alleging the city violated the Access to Public Records Act (APRA), Neal wrote in an advisory opinion that Mayor Sharon McShurley and City Attorney Frank Gilkison clearly violated APRA and that City Controller Mary Ann Kratochvil likely violated both APRA and a law protecting public records from destruction.
"That's her opinion, not mine," said Gilkison, to whom the mayor referred questions on Tuesday. "I don't agree with that at all."
Kratochvil also disagreed with the opinion, saying she felt "extremely comfortable" regarding her actions. * * *
"Several of the claims made by the city are problematic," Neal wrote.
First, the city contended that the paving list was tentative, premature and not ready for publication.
"To the contrary, my predecessors and I have repeatedly advised and opined that draft documents are public records just as completed or finalized documents are public records," Neal wrote. "The city is free to mark the list with a 'draft' designation..."
Second, the city has alleged it does not yet know the budget for street paving.
"Again, this is not a listed exception to disclosure of records..." Neal wrote. "Third, this is also true for the mayor's contention that she has not yet had time to determine the criteria for street paving. Again, this is not a statutory exception to disclosure."
Finally, both the mayor and city attorney indicated the list was not ready for publication because it would generate controversy and create headaches for the city in the form of citizens calling the office.
"(That) not only is an invalid reason for denying access to public records, but it is contrary to the public policy of APRA, which states, 'Providing persons with information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information,'" Neal wrote.
Kratochvil's destruction of the proposed paving list "is likely not only a violation of APRA, which requires agencies to protect records from loss, mutilation or destruction, but also of state records retention laws," Neal wrote. "The list at issue here was created by a city employee and retained or maintained by a city department, namely the city controller. As such, it is a public record. Regardless of whether it must be disclosed, it remains a public record."
Gilkison told Neal the list was not a public record because it consisted of "intra-agency deliberative material," including materials that are "expressions of opinion or are of a speculative nature, and that are communicated for the purpose of decision making." * * *
In light of the paper's complaint, city attorneys will prepare a memorandum on how city department heads should handle future requests for public records, Gilkison said.
"Most documents are public," he said.
Ind. Courts - "United States Senate Confirms William T. Lawrence as District Judge"
On Thursday, June 26, the United States Senate voted unanimously to confirm the appointment of the Hon. William T. Lawrence to the United States District Court for the Southern District of Indiana. Judge Lawrence had served as a United States Magistrate Judge in the Southern District of Indiana since November 2002 and is the first magistrate judge in the Southern District of Indiana to become a district judge. Judge Lawrence was nominated to the judgeship by President Bush following Judge John Daniel Tinder’s elevation to the Seventh Circuit Court of Appeals in late 2007.
Ind. Gov't. - "Crown Point hires Indy law firm to recover loan money"
Kathleen Quilligan reports today in the NWI Times in a story that begins:
CROWN POINT | The Crown Point Development Corp. will use Indianapolis-based law firm Ice Miller to attempt to recover $380,000 the city loaned to New York-based Plasmatronics.
City Attorney David Nicholls said paperwork for litigation against the company has not been filed yet but he expects it will be filed soon.
In a June 6 letter to Nicholls, Ice Miller attorney Fred Biesecker outlines the scope of the legal work for which Ice Miller has been hired and how much it will cost the city. The letter explains the firm may pursue litigation against Plasmatronics Inc., Plasmatronics LLC, and company owners Linda A. Decker and Lonnie P. Lenarduzzi, who signed personal guarantees to obtain the loan.
The firm will charge the city hourly with attorney Phil Whistler's fee at $410 an hour and Biesecker's fee at $395 an hour. The hourly rates of the firm's associates who could work on the case range from $205 to $265 an hour.
In April, the Crown Point Redevelopment Commission and the Development Corp. both unanimously voted to pursue all available avenues to recover the $380,000 after the company terminated its relationship with the city.
Ind. Law - Impact of the decision in Heller on Indiana (and Chicago)
According to two stories today, the impact of the SCOTUS's decision yesterday in District of Columbia v. Heller on Indiana will be minimal.
John Murray has this report in the Indianapolis Star. Some quotes:
Legal experts and advocates on both sides of the gun-control debate agreed Thursday that Hoosiers were likely to see little fallout from the Supreme Court's landmark ruling.Lesley Stedman Weidenbener of the Louisville Courier Journal writes:
Indiana law doesn't allow cities and counties to pass restrictions as severe as the District of Columbia's ban on handgun possession, thrown out Thursday in a split decision. While upholding an individual's right to own a firearm, the court left room for limits on more powerful guns and controls including licenses and permits.
Hoosier legislators said yesterday that the U.S. Supreme Court's ruling should have little or no bearing on the state's current laws.[More] See this story from the Chicago Sun-Times.
Indiana doesn't require permits or licenses to purchase handguns and puts few restrictions on who can obtain them -- although state law does require a license to carry a handgun.
The General Assembly has also squelched local governments' ability to limit guns, authorizing them to impose only the barest of restrictions, such as bans on guns in public buildings and local permits for gun dealers.
"I think this decision just shores up what we've been doing all along," said state Sen. Johnny Nugent, R-Lawrenceburg, who is a member of the National Rifle Association board of directors. "We've taken the approach in Indiana that we need to defend the Second Amendment of the U.S. Constitution, which is what I believe the Supreme Court has reaffirmed now."
Thursday, June 26, 2008
Ind. Decisions - Supreme Court issues a mini-slew of new opinions late today
In addition to the opinion in Jeter (here), issued earlier, the Supreme Court has now posted five additional opinions.
In Nicole L. Huss v. David M. Huss, a 14-page, 5-0 opinion in a case argued 1/31/08, Justice Dickson writes:
In seeking dissolution of their marriage, the husband and wife each declared that there were four children born of their marriage, and each requested both temporary and permanent custody of all four children from the dissolution court. But while the dissolution case was pending in Adams Circuit Court, the wife initiated a separate paternity action in Wells Circuit Court and obtained a final order establishing that another man was the biological father of one of these children and granting her custody of that child. The wife then sought to use the paternity judgment as a basis to dismiss in the dissolution case all custody proceedings regarding said child. Following a contested final hearing, the Adams Circuit Court ordered the marriage dissolved, divided the marital property, awarded the husband custody of all four children, and ordered child support. The Court of Appeals, in a memorandum decision, vacated the portions of the dissolution decree pertaining to the said child but affirmed the award of custody of the three other children to the husband. Huss v. Huss, 01C01-0504-DR-37 (July 25, 2007). We granted transfer and now affirm the dissolution court's custody determination. * * *In Keith Neff v. State of Indiana, a 6-page, 5-0 opinion, Justice Sullivan writes:
Conclusion. Having previously granted transfer, we summarily affirm the Court of Appeals determination of the wife's appellate allegations of improper denial of her Trial Rule 53.1 request and of fundamental unfairness and violation of due process. Finding that the dissolution court was authorized to determine the custody of all four children of the parties' marriage, including the child whose paternity was separately found to be in a man other than the husband, and that the wife has failed to establish that evidence failed to support the findings and judgment of the dissolution court, we affirm the dissolution and custody judgment of the Adams Circuit Court.
Our opinion in Robinson v. State discussed the procedures available to a prisoner for correcting a sentence erroneous on the face of the judgment of conviction. 805 N.E.2d 783 (Ind. 2004). This opinion sets forth the proper handling of three collateral issues that have arisen in the context of Keith Neff’s effort to correct what he alleged was an incorrect calculation of “credit time” to which he was entitled: (1) the absence of a judgment of conviction; (2) the proper calculation of “earliest release date”; and (3) the necessity of invoking the offender grievance process before seeking judicial review. * * *Charles Young v. State of Indiana (363) - "It is, of course, possible that a prisoner could accidentally be deprived of earned credit time toward his sentence. The presumption in Robinson has the effect of treating such an accident as merely an administrative error that can be addressed by the Department of Correction (DOC) easily and efficiently through its offender grievance process. It is for this reason that we hold today in Neff v. State, No. 49S02-0806-CR-362, slip op. (Ind. June 26, 2008), that a pris-oner must show that administrative remedies have been exhausted before pursuing a remedy in the state court system."
Conclusion. For purposes of filing a motion to correct erroneous sentence, an abstract of judgment may function in place of a judgment of conviction in a county, such as Marion County, in which trial courts do not regularly issue formal judgments of conviction. Neff concedes that he initially incorrectly calculated the time remaining in his sentence and is therefore not entitled to relief. We hold that where DOC mistakenly fails to give an offender earned credit time, the offender must exhaust administrative remedies before seeking relief from a court.
Charles Young v. State of Indiana (364) - "We offer Young the same admonishment in this case that he receives today with regard to another appeal. See Young v. State, No. 27S02-0608-PC-363, slip op. (Ind. June 26, 2008). If Young hopes to prevail on his claim after he has properly presented it to the Court via post-conviction procedures, he must present evidence supporting each portion of it with his proposed successive petition for post-conviction relief filed along with his Successive Post-Conviction Re-lief Rule 1 Petition Form pursuant to P-C.R. 1(12) (if this were Young’s first post-conviction pe-tition, he would present it directly to the post-conviction court). Here, for example, Young must show in the first place what the relevant DOC administrative grievance procedures are, and then that he has exhausted them at all levels. Young must also present evidence of his diploma and the credentials of the school that awarded it. He must show that he meets each requirement of any necessary statute (for example, I.C. § 35-50-6-3.3). Just as in his other appeal decided today, even if Young’s claim were properly before a court, the court would not be able to decide it without more information."
In Michael D. Smith v. State of Indiana, a 7-page, 4-1 opinion, Justice Sullivan writes:
A jury convicted defendant Michael D. Smith on four counts of child molesting. The trial court ordered four consecutive sentences of 30 years each, a total executed sentence of 120 years. Based on the character of the offender and the nature of the offenses, we revise the sentence to a total of 60 years. * * *Note: These cases were granted transfer with opinion: Smith, Neff, Young, and Young.
Shepard, C.J., and Rucker, J., concur.
Boehm, J., concurs in the result.
Dickson, J., dissents with separate opinion. [which concludes] I am not convinced that this case is sufficiently rare or exceptional to warrant appellate intrusion into the trial court's sentencing determination.
Ind. Law - More on golf carts in Lebanon
Tim Evans comprehensive front-page Indianapolis Star story Sunday, June 22nd (see ILB summary), headlined: "Debate rolls on: Hoosier towns mixed on regulation of golf carts, which advocates see as fuel-saving alternative," began:
LEBANON, Ind. -- Nadine Urban gets more upset every time she looks at her parked golf cart outside her Boone County home.A story on The INDY Channel, 6 News this evening reports:
Gas prices have topped $4 a gallon, and Urban, a retiree, would like to use it to run errands around Lebanon. She was able to do that after the town adopted a 2006 ordinance allowing golf carts on local streets.
But a ticket from a State Police trooper and a subsequent local court ruling forced Urban to park her electric cart -- and town officials to shelve their ordinance.
LEBANON, Ind. -- A Boone County woman thought she was within the law when she drove her golf cart to the post office, but it cost her a heavy fine.For more on golf carts, check this long list of entries from the ILB.
The legality of an ordinance that once allowed golf carts on Lebanon roads is now in question, 6News' Renee Jameson reported.
Nadine Urban rides her electric golf cart on the grass of her Lebanon home because she can't drive it anywhere else, but that wasn't always true. * * *
Last year, Urban got a permit from the city that allowed her to drive the golf cart in town, with certain restrictions.
When she returned home from a trip on the cart recently, an Indiana State Police trooper issued her a ticket, contending what she was doing is dangerous and that she was violating state law.
A local judge later agreed, but Urban's husband said he doesn't think what happened is right. * * *
City officials declined an on-camera interview Wednesday, but the Lebanon's clerk-treasurer told Jameson that the ordinance in question is essentially on hold and that no new permits are being issued.
Ind. Courts - Nominee to SD Indiana seat being voted on this afternoon
The nomination of U.S. Magistrate Judge William T. Lawrence to serve as U.S. District Court Judge for Indiana's southern district is being voted on by the full Senate at this moment. You may watch on C-Span 2.
[5:00 PM EDT] Passed, 97-0.
Ind. Decisions - Supreme Court decides one today
In Darryl Jeter v. State, a 12-page, 5-0 opinion in a case argued 12/13/07, Justice Rucker writes:
A jury found Darryl Jeter guilty of murder in the shooting death of Indiana State Trooper Scott Patrick. He was also found guilty of auto theft, a Class D felony. Upon the jury’s recommendation of life without parole the trial court sentenced Jeter accordingly. The trial court also sentenced him to three years for the auto theft conviction to be served consecutively. In this direct appeal Jeter raises three issues, which we recast as four and rephrase as follows: (1) did the trial court err in concluding that Jeter’s attempt to peremptorily challenge a prospective juror violated Batson v. Kentucky, 476 U.S. 79 (1986); (2) did the trial court abuse its discretion by replacing a seated juror with an alternate; (3) was an eyewitness’s in-court identification of Jeter unduly suggestive; and (4) did the trial court err in the admission of certain testimony. We affirm.
Courts - More on the Heller 2nd Amendment decision today
Here, thanks again to SCOTUSBlog, is the 157-page opinion.
Tony Mauro of Legal Times has a post that begins:
Supreme Court: Scalia and Stevens Duke It OutTom Goldstein of SCOTUSBlog has a useful entry headed "My Sense of the Bottom-Line from Heller."
It was an extraordinary 23-minute-long scene at the Supreme Court this morning as Justice Antonin Scalia read from his majority opinion in D.C. v. Heller and then Justice John Paul Stevens read from his unusually pointed dissent. Both cast aspersions on each other's interpretation of the Second Amendment and relevant precedents, and spectators were left with a lot of reading to do to determine what the justices actually decided. The Court had clearly declared an individual right to keep and bear arms under the Second Amendment; Scalia said it could be limited, even rattling off the kinds of regulations that might be acceptable. But Stevens, in dissent, seemed to say that the majority's ruling was broader than Scalia was making it out to be.
"Do not accept the summary you have just heard," Stevens said at one point. Earlier, Scalia told spectators they had to slog through 154 pages of opinions to really understand the Court's position.
Check back for additional items.
Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)
For publication opinions today (3):
In Knightstown Banner v. Town of Knightstown, Governmental Insurance Managers Inc., et al, an opinion on rehearing on the issue of attorney fees, Judge Friedlander writes:
It is enough to say that GIE and GIM were aligned with the Town of Knightstown (the Town) as appellees in an appeal from an order proclaiming them jointly and severally liable for an award of attorney fees to the Knightstown Banner (the Newspaper). Those attorney fees stemmed from the Newspaper’s successful lawsuit concerning its request under the Indiana Access to Public Records Act (APRA) to view the settlement agreement between the Town and a former employee (the employee) in a civil rights lawsuit filed by the employee. We write here toaddress the question whether GIE and GIM, which must be viewed as a single entity for our purposes here, should share joint and several liability with the Town for attorney fees and costs. * * *In Janet L. Dillard v. Donald S. Dillard , a 12-page opinion, Judge Darden writes:
GIE and GIM’s role in the events leading to litigation, and in conducting the litigation itself, was far from passive. Clearly, GIE and GIM were necessary parties. * * *
GIE and GIM contend they should not be held liable for attorney fees because they are not a public agency within the meaning of APRA, thus its provisions do not apply to them. This court has indicated such is not the case. * * *
Finally, GIE and GIM claim they are not liable for attorney fees because, with respect to GIE and GIM, the Newspaper was not a substantially prevailing party in Knightstown I. * * * Again, the significant factor here is the close relationship between the Town and GIE and GIM with respect to this litigation. Along with the Town, GIE and GIM actively sought to prevent disclosure of the settlement agreement, which in turn triggered the Newspaper’s lawsuit.
For the foregoing reasons, the trial court did not err in imposing joint and several liability upon GIE and GIM with respect to the award of attorney fees and costs.
Janet Dillard (“Wife”) appeals the trial court’s order granting Donald Dillard’s (“Husband”) motion for relief from judgment, thereby modifying the parties’ property settlement. We reverse.Donald Singleton v. State of Indiana - "On appeal of the denial of his petition for post-conviction relief, Singleton contends that his trial counsel was ineffective for failing to object to the State’s late filing of the habitual offender count and that his appellate counsel was ineffective for failing to raise this issue on direct appeal. Concluding that trial counsel’s performance was not deficient in failing to challenge the late amendment and that appellate counsel also did not perform deficiently in failing to raise this issue, we affirm."
Issue. Whether the trial court abused its discretion when it modified the parties’ property settlement agreement, which was incorporated in the decree of dissolution. * * *
We find that Husband has made no showing of exceptional circumstances that come within the purview of Trial Rule 60(B). Husband also has failed to show that the circumstances were not a result of his fault or negligence where Husband knew—as early as May of 2006—that there would be tax penalties for his early withdrawal. See Goldsmith, 761 N.E.2d at 474. Accordingly, we find that the trial court abused its discretion in granting Husband relief from the decree of dissolution.
NFP civil opinions today (3):
Jesse Sutton v. Robert and Julia Gardner / United Services Automobile Ass'n (NFP) - "Based upon the foregoing facts, we find that Robert presented reasonable sufficient evidence that could support a jury determination that he suffered damages considerably in excess of his $13,000.00 of medical specials. Robert and his witnesses testified at length that his employment and personal relationships were negatively affected by the accident. We find ample proper bases upon which the jury’s award can be explained. Thus, we find that the jury’s award was not excessive and, further, that the trial court did not abuse its discretion."
Dustin Southard v. Michelle Southard (NFP) - "Dustin Southard (Father) appeals the trial court’s order dissolving his marriage to Michelle Southard (Mother). As the sole issue on appeal, Father contends that the trial court abused its discretion in awarding physical custody of the parties’ minor child, C.S., to Mother. We affirm."
Scotty A. Godbey v. Andrea D.Godbey (NFP) - "We conclude that the trial court did not abuse its discretion when it ordered Husband to continue to pay for one-half of Wife’s daughter’s car loan payment. We also conclude that the trial court did not abuse its discretion when it reallocated Wife’s retirement plan. However, we must agree with Wife’s argument that the trial court made a mathematical error in determining the equalization payment due to Husband. Therefore, we remand with instructions to recalculate the property distribution in accordance with this opinion."
NFP criminal opinions today (5):
Environment - More on: Plan Commission rejects request to move Wednesday's meeting to a larger location
LIBERTY, Ind. -- The Union County Area Plan Commission on Wednesday recommended an ordinance governing the locations of large livestock farms, but their decision didn't please the angry crowd gathered in the 4-H Building.
Most of the 80 people attending don't want the 2,000-cow megadairy proposed for Harrison Township and they wanted the plan commission to adopt stricter setbacks and other rules governing the operation of concentrated animal feeding operations, known as CAFOs.
A pickup truck outside the building bore the sign "Megadairy -- Megamess." * * *
The plan commission voted 6-1 to recommend the ordinance to the commissioners, after increasing the setback for churches to a half-mile from large livestock operations, so it matched the half-mile setback for public-use areas such as parks. * * *
The plan commission's recommendation means the ordinance now goes before the Union County Board of Commissioners, which has the final say. The commissioners may approve it, reject it and return it to the plan commission or amend it.
How soon the commissioners will consider the ordinance is uncertain, Commission President Allen Paddock said. Paddock was the only county commissioner in attendance Wednesday.
"It depends on how soon (area plan) gets it to us and whether it has to be advertised," Paddock said. "I expect we'll at least talk about it on Monday."
Resident Krista Carr asked for a larger setback for public-use areas such as Whitewater Memorial State Park and Brookville Lake. Another state reservoir was contaminated by a spill from a CAFO, which caused a "massive" problem, Carr said.
"A good percentage of the people who come here come for the parks. If we don't protect our lakes, our economy will be shot. A half-mile is just not enough," Carr said.
Ind. Law - "Key to safe-haven law is spreading the word"
Lesley Stedman Weidenbener of the Louisville Courier Journal reports today on Indiana's Safe Haven Law. Some quotes:
Since Indiana enacted the law, the National Safe Haven Alliance has recorded six lives saved in the state and 20 illegal abandonments, of which at least seven were fatal.The law is found at IC 31-34-2.5.
All states now have safe-haven laws, which the alliance said have saved the lives of at least 1,000 infants nationwide.
Indiana's law allows a parent to give up an infant who is less than 45 days old confidentially at a hospital emergency room, police station or firehouse. The law protects the parents from arrest or prosecution for abandonment.
It also makes medical treatment and social services available to the birth mother and puts the child in the custody of the Indiana Division of Family & Social Services Administration, which places the infant in a foster or pre-adoptive home.
"Safe haven is for the young mother, the 20-something mother, the 30-something mother who loves the child, chooses life, but may not want to go through all the ramifications of selecting the adoptive parents," Hammond said. "They just want to have that child placed with a loving couple."
Courts - Still more on: Final opinion days from the SCOTUS
Check the ever excellent SCOTUSBlog for the details. Only three cases left this term.
Davis v. Federal Election Commission - Millionaire's amendment. "The ruling below, which upheld the law, is reversed and remanded."
Morgan Stanley Capital Group Inc. v. Public Utility District No. 1 of Snohomish County - "The ruling below, which remanded the case to FERC for further review, is affirmed and remanded."
District of Columbia v. Heller - "The ruling below, which struck down the [gun possession] provisions in question, is affirmed." This is a very bigie. Tom Goldstein of SCOTUSBlog notes: "It is striking that the decision is not clouded by ambiguity created by separate opinions. One opinion on each side." Then: "Apologies - there is a second dissenting opinion, but only one majority." Here, thanks again to SCOTUSBlog, is the 157-page opinion
That should do it for this term..
Ind. Law - "New laws take effect on July 1"
Ed Ronco of the South Bend Tribune has this story on new laws today. The subhead is "Great Lakes protection, breast-feeding support, crash scene aid among measures." Take alook.
Ind. Decisions - More on: Judge Hamilton holds SB 258 unconstitutional
Updating this ILB entry from Tuesday on U.S. District Court Judge David Hamilton's ruling in the case of John Doe v. Prosecutor, Marion County (available here via the Evansville Courier & Press), a law professors' blog, The Volokh Conspiracy, had an interesting discussion of the opinion yesterday.
Ind. Law - "Ind. law bars guns at work"; potential impact of Heller
Bryan Corbin of the Evansville Courier & Press reports today in the aftermath of the shootings this week at a plastics plant across the river in Henderson, Kentucky:
INDIANAPOLIS — Unlike their Kentucky counterparts, employers in Indiana generally have the right to forbid workers from bringing firearms onto company property, a legal expert said.Heller. At 10 AM today the SCOTUS is expected to hand down it opinion in the 2nd Amendment case of District of Columbia v. Heller, which may impact current and future gun laws. It is anticipated that Justice Scalia will author the opinion.
Hoosiers who are not felons and who meet other criteria have the legal right to obtain handgun permits; but the right to carry firearms is not absolute on private property.
"My understanding is an employer can forbid his employees from possessing a firearm on company property even though they are otherwise lawfully licensed to carry," said law professor Henry Karlson of the Indiana University School of Law in Indianapolis.
Similar provisions apply in most states. According to published reports, six states — including Kentucky — have carved out exceptions to such laws.
In essence, the exceptions bar employers from prohibiting employees from keeping guns locked in their vehicles in the company parking lot, as long as the weapons are not brought into the workplace itself.
Indiana law does not have such an exception however, so if an employer wants to enact a gun-free-workplace policy and penalize any workers who violate it, then the firm is free to do so.
Karlson said there has been a "serious nationwide debate" since the April 2007 Virginia Tech mass shooting at Virginia Tech whether gun-free-zone policies at workplaces or campuses are effective or counterproductive in deterring potential gun violence and shootings.
"Unless you search every automobile going into and out of a plant, there is no way to prevent a crime (such as the one Wednesday in Henderson)," Karlson said. "Clearly, if a person intends to shoot a group of people, getting fired for having a gun will not be one of his concerns."
Wednesday, June 25, 2008
Ind. Gov't. - Competition fierce for Fort Wayne's Lincoln Museum
The local group fighting to keep Fort Wayne’s Lincoln Museum collection in Indiana faces powerhouse opposition from four major Washington institutions to relocate the material.[Updated] This story by Jacqueline Trescott appeared in June 25th Washington Post.
The Library of Congress, the National Museum of American History, Ford’s Theatre and President Lincoln’s Cottage have formed a partnership to obtain the collection from the museum, which closes Monday after 77 years. * * *
Early this month, the Allen County Public Library and the Indiana State Museum announced a coalition to keep the collection in Indiana. Those organizations are supported by the Indiana Historical Society, Indiana State Library and Friends of the Lincoln Museum.
Ian Rolland, former chairman of the Lincoln Financial Group and leader of the local drive, said he wasn’t surprised to hear the Washington players were in the game.
“We knew the competition was going to be tough,” he said. “I don’t think we need to be afraid of that kind of competition.”
Those hoping to bring the collection to Washington tout the area’s ability to draw large crowds of tourists.
“There really isn’t any group that can match the visitorship and financial stability of the Washington group,” said John Sellers, a Lincoln specialist at the Library of Congress.
Sellers calls Washington the “natural place” for the collection.
“It is where Lincoln became famous and made his mark,” Sellers said. “It is a natural place because the assassination happened here. It is a natural place because of the wealth of material related to Lincoln and the assassination.”
Those same arguments, though, can be turned around in Indiana’s favor, said Geoff Paddock of Fort Wayne, a board member of the Friends of the Lincoln Museum.
Lincoln spent his formative years in the Midwest and the collection was put together in Indiana, Paddock said.
The foundation board plans to narrow the proposals in the fall, invite the finalists to meet with the curators in Fort Wayne and then make site visits to the competing groups. A representative of the foundation said applicants ranged from small, not-for-profit institutions interested in one or two items to the nationally known institutions.
Paddock believes a visit would go a long way to convincing the Lincoln Financial Foundation that Indiana should be the collection’s home.
“A site visit would give us an opportunity to really showcase our proposal,” he said.
The museum’s collection, estimated at $20 million, includes a signed copy of the Emancipation Proclamation and a signed copy of the Thirteenth Amendment that abolished slavery, one of 350 documents in the collection signed by Lincoln.
Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)
For publication opinions today (2):
In Burns-Kish Funeral Homes, Inc. v. Kish Funeral Homes, LLC, a 20-page opinion re an interlocutory appeal, Judge Vaidik writes:
Burns-Kish Funeral Homes, Inc. is a family-run funeral home in northwest Indiana that has been in existence for a century.In State of Indiana v. John M. Dunn , a 23-page opinion (including a concurrence in result), Judge Vaidik writes:
When part of the Kish family broke off and opened up a competing funeral home down the road from the Burns-Kish Munster, Indiana, location, litigation by part of the Burns family ensued. Burns-Kish Funeral Homes, Inc., Thomas J. Burns, and Jean Burns (collectively “Plaintiffs”) now appeal the trial court’s denial of their Verified Application for Preliminary Injunction against Kish Funeral Homes, LLC, Kevin Kish, and Patricia Kish (collectively “Defendants”) and the appointment of a custodian over Burns-Kish pending a hearing on Patricia Kish’s Counter-Claim for Judicial Dissolution of Burns-Kish.
Specifically, Plaintiffs argue that because Kevin Kish was an officer of Burns-Kish, he owed a fiduciary duty to the corporation and that he breached that duty when he made plans to open his own funeral home, Kish Funeral and Cremation Services; that the trial court erred in not considering evidence that Kish Funeral and Cremation Services would cause confusion and irreparable harm to Burns-Kish; and that the trial court erred in appointing a custodian over Burns-Kish because it cited the wrong statute.
Because the trial court found that Kevin Kish was not an officer of Burns-Kish and the evidence supports this finding, we conclude that Kevin does not owe a fiduciary duty to Burns-Kish and is free to compete with his former employer. In addition, we conclude that the trial court properly excluded evidence from Plaintiffs’ expert on the topic of confusion between the two funeral homes because he was not properly qualified and also properly excluded evidence from Thomas Burns on the topic of confusion. Although the trial court cited the receivership statute in its conclusions, it also cited and properly applied the custodian statute. We therefore affirm the trial court.
The State’s construction of a median strip that makes the route of travel to a business property more circuitous is not a compensable taking. We therefore reverse the trial court’s partial summary judgment in favor of business owner John M. Dunn against the State and the subsequent damages awarded to Dunn by a jury. * * *
Dunn filed an inverse condemnation action against the State, alleging that the erection of the median “has completely eliminated all access to the Hotel and Subject Property from the southbound lane of Green River Road,” as it “prevents all left-hand turns from the southbound lanes of Green River Road into the Hotel’s vehicular entrance.” Therefore, according to Dunn, the median “substantially and materially limited and impaired vehicular access to the Subject Property and vehicular egress from the Subject Property,” and this constitutes “a taking of [his] property without just compensation.” He sought monetary compensation for the taking. The State answered and acknowledged that the median “prohibit[ed] left hand turns to and from Green River Road and the public service road.” However, the State contended that Dunn is not entitled to compensation as a matter of law because the erection of medians resulting in circuitous travel to a business is conducted according to the State’s police powers and does not effect a compensable taking. * * * The jury returned a verdict in favor of Dunn in the amount of $3,650,000, and the trial court entered judgment accordingly. * * *
We find one issue dispositive: whether the trial court erred as a matter of law in granting partial summary judgment in favor of Dunn and against the State when the State built a median that forces traffic moving in certain directions to travel a more circuitous route to and from Dunn’s business property. * * *
We recognize that another panel of this Court recently authored State v. Kimco of Evansville, Inc., 881 N.E.2d 987 (Ind. Ct. App. 2007), reh’g denied, trans. granted, an appeal involving another Evansville business owner’s inverse condemnation action in response to the median on Green River Road. * * * In any event, our Supreme Court recently granted transfer in Kimco, thereby vacating the opinion.
In conclusion, landowners have no property right to the free flow of traffic past their properties. Thus, the construction of a median in a roadway that causes traffic traveling to and from an abutting property to travel a circuitous route does not constitute a compensable taking under Indiana eminent domain law. Therefore, Dunn was not entitled to judgment as a matter of law on the issue of whether he suffered a compensable taking, and the trial court erred in granting Dunn’s motion for partial summary judgment. Reversed.
NFP civil opinions today (3):
The Term. of Parent-Child Rel. of A.B.(child) and Cheryl B. (mother) and Jon R. (father) v. Dept. of Child Svcs. (NFP) - "Appellant Jon R. (“Father”) appeals the involuntary termination of his parental rights to his son A.B. We affirm."
Mark Gallagher v. Kathleen Gallagher (NFP) - "Mark Gallagher (“Husband”) appeals the trial court’s order as to the division of assets and debts in the dissolution of his marriage to Kathleen Gallagher (“Wife”). Husband raises two issues, which we consolidate and restate as whether the trial court abused its discretion in dividing the marital assets and debts. We affirm in part, reverse in part, and remand."
Estate of Elsie F. Powell, Sandra K. Bennett, Judith J. Short, et al v. Neva M. Caplinger (NFP) - "In conclusion, Neva’s position as Elsie’s guardian and attorney-in-fact, combined with Neva’s actions of withdrawing money from the joint accounts prior to Elsie’s death, gave rise to a presumption of undue influence with regard to the transactions in question. However, Neva presented sufficient evidence from which the trial court could have concluded that Neva successfully rebutted that presumption. Affirmed."
NFP criminal opinions today (2):
Courts - More on: Final opinion days from the SCOTUS [Updated]
Check the ever excellent SCOTUSBlog for the details. Here is what has been handed down so far:
Excon v. Baker - "on the validity of the $2.5 billion punitive damages award to victims of the Exxon Valdez oil spill. The ruling below, which upheld the award, is vacated and remanded.;"
Kennedy v. Louisiana, "on whether the Eighth Amendment prohibits states from imposing the death penalty for child rape, and, if not, whether Louisiana’s statute fails to narrow the class of offenders eligible for the death penalty. The ruling below, which upheld the state law, is reversed and remanded;"
Giles v. California - vacated and remanded;
Plains Commerce v. Long Family Land and Cattle - reversed.
The remaining opinions to be issued tomorrow.
[Updated at 2:30 PM] Mark Sherman of the AP has this story headed "High Court Slashes Judgment in Exxon Valdez Disaster," and this story headed "Supreme Court Rejects Death Penalty for Raping Children."
Ind. Courts - Files from Kalab Lay tragedy released by state child welfare chief
Here are earlier ILB entries on the Kahlib Lay death, from reports in the Evansville Courier & Press.
Today Libby Keeling reports in the Courier & Press in a lengthy story headed "File details tragedy: Thousands of pages of documents released Tuesday paint a stark picture of a 3-year-old allegedly beaten to death at the hands of his parents." A second story by Keeling, headed "File lays out states' deal on Kalab, says Indiana child welfare chief," begins:
Nearly three months after Kalab Lay's death — allegedly from a savage beating delivered by his parents, the Indiana Department of Child Services has released a roughly 3,000-page file on its investigation.A sidebar available online with both stories, answers the question: "Why are Kalab Lay's files public record?"
"I've tried to look at this every way I can to see what can we do, what should we have done, and I come to the conclusion that the sending state has the primary responsibility here," said Jim Payne, director of the Indiana department at a news conference Tuesday at the local DCS office.
* In 2004, state Rep. Dennis Avery, D-Evansville, pushed for passage of House Bill 1194, which brought change to the way the Indiana child protection system operates after the death of a child.
* While much that takes place regarding child protection and custody is kept out of the public arena, this bill required public disclosure of information relevant to establishing the facts and circumstances concerning the death or near fatality of a child that is determined to be the result of abuse, abandonment or neglect.
* It required that such cases become public record, but that the records would be redacted to protect the identify of any surviving children involved.
* To obtain Kalab Lay's file, the Courier & Press submitted formal requests to the local juvenile court judge and to Indiana Department of Child Services officials.
* Once Kalab's death was determined to be a fatality because of neglect or abuse, child welfare officials began the process of gathering and redacting thousands of pages of paperwork documenting Kalab's life in the system.
Environment - Still more on: Gary Post-Tribune examines IDEM calls to BP
In this ILB entry from June 18, Gitte Laasby of the Gary Post-Tribune reported:
The Indiana Department of Environmental Management has released more itemized phone records for its managers. But the agency still refuses to reveal whom its top air quality boss called for five days around a public hearing on BP Whiting's air permit in Hammond on March 14.Today Laasby reports that:
The Post-Tribune requested itemized phone records for IDEM's Assistant Commissioner of the Office of Air Quality, Dan Murray, from Feb. 1 through March 20. IDEM previously claimed not to possess itemized cell phone records for Murray for the month around the hearing although IDEM did have records up to Feb. 21. * * *
The newly released records cover Feb. 21 through March 12 and March 19 through 20 -- nearly the full month for which IDEM previously said it did not have records. But the agency has still not released records for March 13 through March 18 -- the day before the hearing through two work days after. Some of the released records appear to have been redacted. * * *
Environmentalists have speculated that the extensive correspondence between IDEM and BP shows the two collaborated to stack the hearing with supporters of the permit.
After a three-month tug-of-war, the Indiana Department of Environmental Management finally released itemized phone records Monday for its top air quality manager for a period covering a hearing on an air permit for BP Whiting.Tuesday's PAC opinion is not yet available on the Public Access Counselor's website. At some point it should appear there at the end of this list.
The agency said it did not release the information earlier due to a copying error. * * *
IDEM Assistant Commissioner of the Office of Legal Counsel and Enforcement, Robert Keene, provided the missing page Monday in a letter to the Post-Tribune and Indiana Public Access Counselor Heather Neal. He apologized, saying IDEM did not withhold it on purpose.
"With respect to Mr. Murray's cell phone records, IDEM staff made a copying error when preparing the newly discovered records for transmittal," Keene said. "However, with the exception of that clerical error which has now been corrected, IDEM has not denied access to records that it possessed or that it knew to exist." * * *
Neal issued her opinion on the complaint Tuesday. She said IDEM had a duty to produce the phone records once it knew they existed because they are public information. But she concluded IDEM did not violate the Indiana Access to Public Records Act.
"It is my opinion that if the omission was inadvertent, IDEM did not violate the APRA so long as the mistake was corrected once the omission was discovered," Neal wrote. "I understand IDEM has now sent you the missing page."
Meanwhile, the ILB has sent an e-mail to the PAC asking to post a copy of Tuesday's opinion -- access it here.
Ind. Law - More on: "Lawyer says driver is devastated by shooting: Woman had no choice, he said"
Updating this ILB entry from June 21st, Michelle Day of the Louisville Courier Journal reports today under the headline: "Grand jury to assess shooting: Road-rage case is 'too close to call'". Some quotes:
A panel of six grand jurors and one alternate will be convened July 9 by Circuit Judge Abe Navarro, the court clerk's office said.
[County Prosecutor Steve] Stewart said the actions of everyone involved in the incident -- including those of Parrish's 15-year-old son, who was a passenger in her vehicle -- will be reviewed by the grand jury. At least one witness told police that the teenager kicked Mosier after he was shot.
Under Indiana law, the use of deadly force against another person requires a reasonable belief that the action was necessary to prevent serious bodily injury or death, with no duty to retreat.
Stewart said he rarely asks for a grand jury to determine whether charges should be brought but decided it was appropriate to get community input in this case because it's "too close to call."
But Darryl Mosier, Wesley Mosier's brother, said yesterday that the tactic was a way to sidestep making a decision.
Courts - Final opinion days from the SCOTUS
Expect some biggies today, starting at 10:00 AM. Likely there also will be opinions issued Thursday. The ILB is watching for the 2nd Amendment case, District of Columbia v. Heller, as mentioned in this entry from June 11th. Two other biggies pending, according to SCOTUSBlog, are Kennedy v. Louisiana (death penalty for child rape) and Exxon v. Baker (punitive damages over Exxon Valdez oil spill).
Tuesday, June 24, 2008
Ind. Decisions - Judge Hamilton holds SB 258 unconstitutional [Updated]
This April 3 ILB entry reports that the ACLU had filed a suit challenging Senate Bill 258. As reported that day by Jon Murray of the Indianapolis Star, the law, which was scheduled to go into effect July 1st, would address:
several issues related to sex offenders. One is that when a sex offender begins probation, parole or enrolls in the state's sex offender registry, they must sign a consent form agreeing to searches of computers or Internet-enabled devices at any time. Also, they must agree to install software that monitors Internet usage at their own expense.This afternoon, as reported in a story posted late today by the Evansville Courier & Press:
U.S. District Court Judge David Hamilton in Indianapolis ruled Tuesday in favor of the plaintiffs in the class-action lawsuit that was brought April 3 by the American Civil Liberties Union of Indiana. * * *The Courier & Press has made a copy of the 52-page ruling available here.
In a 52-page ruling issued late today, federal judge Hamilton ruled that the new statute, as written, is unconstitutional.
"The new law forces an unconstitutional choice upon these plaintiffs. They must choose now between committing a new crime by refusing to consent and giving up their Fourth Amendment rights to privacy and security in their homes, their 'papers,' and their effects," Hamilton wrote. "The unprecedented new law, however well-intentioned it may be, violates the Fourth Amendment rights of the plaintiff class, who have completed their sentences and are no longer on probation, parole, or any other kind of court supervision."
Hamilton issued a declaratory judgment stating the consent to search requirements may not be applied to convicted sex offenders.
[Updated 6/25/08] More coverage of the story this morning, with this story from the Indianapolis Star's Kevin O'Neal, headed "Sex offender law goes too far, court rules: Revision would have subjected computers to searches at any time," and this story from Mike Smith of the AP, headed "Judge favors ex-cons' privacy: Tosses law to search sex offenders' e-files."
Ind. Decisions - Supreme Court issues a third opinion late this afternoon
In Anthony N. Stewart v. Signe L. (Stewart) Vulliet, a 12-page, 5-0 opinion (J. Sullivan concurring in result), in a case argued 11/8/07, Cheif Justice Shepard writes:
An expectant mother filed divorce and custody proceedings in Indiana and thereafter moved to Washington state, where she gave birth. After litigating her case in Indiana for more than two years, she filed a motion asserting inconvenient forum. We hold that the trial court acted within its discretion in dismissing the child custody proceeding, in favor of Washington as a more convenient forum.
Ind. Law - "Indiana towns, counties debate golf cart road worthiness"
That is the headline of a story by Tim Murray today on WTHD 105.5, serving NE Indiana and S Michigan. The story includes links to three audio reports. (Note - I think these links are only good for a day.)
For more on golf carts, check this long list of entries from the ILB.
Ind. Decisions - Supreme Court issues two today
In Kirk Reuille v. E.E. Brandenberger Construction, Inc., a 5-page, 5-0 opinion, in a case argued 4/24/08, Chief Justice Shepard writes, in affirming the judgment of the trial court:
The parties in this case entered into a construction contract providing that in the event of a legal dispute, the prevailing party would be entitled to reasonable costs and expenses, including attorney fees. The term “prevailing party” was not defined. We hold that in the absence of further definition, such a contract produces fees only when one party or the other wins a judgment.In Ronald Mayes v. Second Injury Fund, a 9-page, 5-0 opinion, in a case argued 2/27/08, Chief Justice Shepard writes:
This case presents a question of first impression in Worker’s Compensation: whether third party settlement terminates Second Injury Fund liability. We conclude that the statutory scheme makes Second Injury Fund liability a derivative of employer liability, and, accordingly, where settlement terminates an employer’s liability, Second Injury Fund liability will also be terminated. * * *
Few states have addressed the question of whether third party settlement terminates Second Injury Fund liability, and the jurisdictions that have done so are split. * * *
Whereas the Board is correct in concluding that a risk of double recovery exists, the Board should have evaluated this risk before approving the agreement between Mayes and Main Tech and insisted that the settlement amount received from Fed Ex be disclosed prior to giving its approval for a continuation of benefits. The Board has the right to withhold approval of agreements involving confidential settlements. If disclosure violates the terms of a settlement between an employee and a third party, then the employee will have to choose whether to accept a confidential settlement with a third party or to pursue worker’s compensation benefits.
Accordingly, because the Board approved the agreement between Mayes and Main Tech, the Second Injury Fund has waived the right to now claim that the risk of double recovery should prohibit Second Injury Fund liability. In the future, if the Board is concerned about double recovery, it should refuse approval of agreements involving confidential settlements or insist that the agreement contain a provision releasing the Second Injury Fund from liability.
Conclusion. For the above reasons, we reverse the Board’s decision.
Ind. Decisions - 7th Circuit decides one Indiana case today
In Ind. Funeral Directors Ins. Trust v. Benefit Actuaries, Inc. (SD Ind., Godich, Magistrate Judge), a 14-page opinion, Judge Evans writes:
Things were hunky-dory for awhile, but eventually there came a time when the Trust experienced an unexpected spike in claims and ran out of funds to pay them all. In 1997, the Trust sued Benefit Actuaries, claiming that it violated its fiduciary duty under the Employee Retirement Income Security Act of 1972 (ERISA) and that it breached its common-law duties to the Trust by providing it with bad advice and failing to recommend measures that would have staved off insolvency. Magistrate Judge John P. Godich, hearing the case with the consent of the parties, granted summary judgment in favor of Benefit Actuaries on some of the Trust’s claims and, after a bench trial, found in favor of Benefit Actuaries on the rest. * * *
Finally, the Trust argues that the judge improperly limited the types of damages it could attempt to prove at trial. But we need not address this issue because we conclude the judge did not err in finding that Benefit Actuaries breached no duty to the Trust. Without a breach, the Trust is not entitled to damages. Therefore, the judgment is AFFIRMED.
Ind. Decisions - Court of Appeals issues 1 today (and 13 NFP)
For publication opinions today (1):
In Thomas J. Herr v. Carter Lumber Inc., The Carter Jones Lumber Co., and Brian L. Oaks, a 9-page opinion, Judge Brown writes:
Thomas J. Herr appeals the trial court’s judgment in his action against Carter Lumber, Inc., the Carter Jones Lumber Company (collectively, “Carter Lumber”), and Brian Oaks for unpaid attorney fees. Herr raises one issue, which we restate as whether the trial court’s order that Herr receive his compensation under a contingency fee agreement only after Carter Lumber makes a recovery is clearly erroneous. We affirm.NFP civil opinions today (5):
Before addressing the argument raised by Herr, we note that he did not submit a transcript of the bench trial upon which the trial court’s findings of fact and conclusions thereon are based. * * *
It appears that Herr is not challenging the trial court’s findings of fact and is challenging only the trial court’s conclusions of law. Based upon Pabey and Walker, we will address the issue raised by Herr. * * *
Without a final result of the cases, a court is unable to determine an appropriate compensation for Herr. We conclude that, under Galanis and Four Winds, Herr may not receive compensation for his attorney fees until Carter Lumber receives payment. The trial court’s order denying Herr’s request for immediate payment of his attorney fees was not clearly erroneous.
For the foregoing reasons, we affirm the trial court’s judgment that Herr is entitled to recover his quantum meruit fee on any collection achieved by successor attorneys.
Aurelia Watts v. Health and Hospital Corp. of Marion Co. d/b/a Wishard Memorial Hospital (NFP) - "The trial court properly granted Wishard’s motion for partial summary judgment and acted within its discretion when it denied Watts’s motion to amend her complaint. The trial court did not abuse its discretion when it admitted Attorney Shula’s testimony concerning attorney fees and when it issued its $40,000 attorney fees award. Finally, Watts did not establish that she was prejudiced by the trial court’s denial of her motion to strike Wishard’s proposed findings of fact and conclusions of law."
Paul W. Gaudy v. Lake County, Indiana by the Lake County Plan Commission Planning and Building Department (NFP) - "Gaudy has not established that the trial court lacked subject matter jurisdiction to resolve the Plan Commission’s claim. Accordingly, the trial court properly denied his motion for relief from judgment. We affirm."
City of Hammond, Hammond Civic Center, et al. v. Martha Plys (NFP) - The issue is whether the Hammond Fittness Center release signed by Matha Plys is specific enough to exempt the Hammond defendants from liability for negligence. The opinion concludes:
In short, the release signed by Plys demonstrates that she assumed the risk, that she held the Hammond defendants harmless “from any and all loss, claim, injury, damage, or liability,” she agreed to indemnify them, and she held them harmless for any injury sustained while using the facilities caused by a negligent act or omission. This release was specific enough to waive Plys’s negligence claims. The trial court relied on an improper interpretation of this contract in denying the Hammond defendants’ motion for summary judgment. We conclude that the Hammond defendants were entitled to summary judgment as a matter of law.In the Matter of Involuntary Term. of Parent-child Rel. of A.M., A.L. and mother, K.M. v. Marion Co. Dept. of Child Svcs. and Child Adv. (NFP) - "Since the time of A.M.’s removal, approximately 3 years have passed and Mother still has not completed services. Mother therefore remains unavailable to care for her children. It is unfair to ask A.M. and A.L. to continue to wait until Mother is willing and able to get, and benefit from, the help that she needs. See also In re Campbell, 534 N.E.2d 273, 275 (Ind. Ct. App. 1989) (stating that the court was unwilling to put the children “on a shelf” until their mother was capable of caring for them). Accordingly, the judgment of the juvenile court terminating Mother’s parental rights to A.M. and A.L. is hereby affirmed."
Conclusion. The release signed by Plys was sufficiently specific to release the Hammond defendants from any actions by Plys alleging their negligence. We reverse the trial court’s denial of the Hammond defendants’ motion for summary judgment and remand for further proceedings consistent with this opinion.
Lisa D. Tate v. Review Board of the Indiana Department. of Workforce Development and Southern Enterprises, Inc. (NFP) - "Lisa Tate appeals the decision of the Review Board of the Indiana Department of Workforce Development (the “Board”) denying her claim for unemployment benefits. We affirm."
NFP criminal opinions today (8):
Ind. Law - Golf carts in Sullivan County
WTHI TV News had this story yesterday, complete with video, titled "Golf carts hit the roads in Sullivan County."
Courts - More on: "Supreme Court Justices Turn to Ex-Clerks for Unusual Role"
This ILB entry from April 14th quotes from an interesting story by Tony Mauro about the Supreme Court turning to its former clerks "to argue before the Court ... when, as in Greenlaw, the respondent abandons the lower court decision that the petitioner is challenging."
Here is more on the decision itself.
Ind. Courts - Johnson County Prosecutor talks about his office's temporary housing
Ind. Courts - More on: Supreme Court issues emergency order re handling of forfeiture cases in Muncie
Updating this ILB entry from June 21st, Rick Yencer of the Muncie Star-Press reports today on the Muncie controversy, in a story headed "Prosecutor: Judge exceeded authority in forfeiture probe." It begins:
Delaware Circuit Court 2 Judge Richard Dailey declined to name a special judge Monday to review forfeiture cases despite arguments by County Prosecutor Mark McKinney that the judge had displayed bias and exceeded his authority.
"You have put yourself in the position of being a law enforcement investigator, prosecutor and judge," McKinney said about Dailey conducting hearings to determine whether fraud or theft was committed when the prosecutor's office and Muncie-Delaware County Drug Task Force seized drug forfeiture money and assets.
And McKinney defended himself during the Monday hearing, the third conducted by Dailey in the past 10 days.
"How can it possibly be alleged that I committed fraud on the court when your honor approved the process?" McKinney asked the judge.
Dailey heard more than an hour of testimony from McKinney, city attorney Charles "Chic" Clark, and attorney Michael J. "Mick" Alexander, who represents defendants in drug forfeiture cases. The judge ultimately decided he had authority to continue the hearings, subject to an Indiana Supreme Court decision on whether he can maintain jurisdiction over the cases.
Ind. Courts - Even more on: "New judge's hires stir up controversy"
"Pay raises for court workers rescinded" is the headline to Ben Zion Hershberg's story today in the Louisville Courier Journal. From the report:
The Clark County Council voted yesterday to rescind controversial raises for two new Circuit Court employees after Judge Abe Navarro admitted that he acted in haste in asking for them.
Navarro, the county's newest judge who was appointed last month to complete the term of retired Judge Daniel Donahue, asked for the raises that were approved June 9 to be rescinded, saying in a statement that he had "found the wisdom to seek guidance. This guidance was found and well received in Judge Steven Fleece, the other judges, and members of this council."
Navarro, a Republican, had dismissed two longtime court employees to make room for David Buskill, the county Republican chairman, as court administrator, and Jeremy Snelling, son of Councilman Monty Snelling, as bailiff.
But the changes brought strong objections from the county's three Democratic judges, and Buskill subsequently turned down the job. Navarro, in his statement, said he also had withdrawn the offer to Buskill.
Jeremy Snelling accepted the job as bailiff. But after yesterday's vote he will be paid the $24,000 that bailiffs get in each of the county's courts rather than the $30,000 the council had approved earlier. * * *
[Judge] Fleece, in a statement yesterday, said he believes the controversy has ended with the two former employees who were dismissed by Navarro finding new jobs.
Cindy Comstock took a new position in the county clerk's office, Fleece's statement said, and Patty Ballard was hired by a law firm.
Monday, June 23, 2008
Ind. Courts - Still more on: Johnson County court cancelled
In a long and interesting story headlined "Prosecutor back in action shortly after flood," Ryan Trares of the Johnson County Daily Journal reports today:
Johnson County Prosecutor Lance Hamner has repeatedly been confronted by the same questions.
How can you do your job if your files were destroyed in the floods? How many criminals are walking the streets because you can't prosecute?
Will convicted murderers like Michael Dean Overstreet, who is appealing his conviction in federal court, go free because the documents from their trials are waterlogged or no longer exist?
Hamner is quick to respond to these concerns: No crimes will go unprosecuted and not one appeal will be lost because of the high water.
"Nobody is walking out of the jail because our office got flooded out," Hamner said.
While the office's files and records were soaked by the water that flooded into the county headquarters at the Oren Wright Building, all of those documents can be recreated using files stored in the county courthouse.
The office's computer hard drives were salvaged, meaning staff members can work from that information.
Duplicating those papers creates extra work for the prosecutor's staff, as they sometimes need to consult police records to fill in some of the details.
But after twice the effort, all of the cases can be regenerated, he said.
For the prosecutor's office, there are no other options.
Courts - More on: The Supreme Court of Kansas has ruled that juvenile defendants have a right to trial by jury
Re whether this argument could be successfully made in Indiana, a reader knowledgeable in juvenile law has referred me to Bible v. State, 253 Ind. 373, at 380 and 389 2 54 N.E. 2d 319 (Ind. 1970), where the Court states that it:
takes the position that the presence of a jury would interfere with the proper administration of the juvenile system without adding any appreciable protection to the rights of the juvenile. We believe that, among others, his rights to counsel, cross-examination of witnesses, confrontation of his accusers, and the privilege against self-incrimination, afford the juvenile the constitutional protection he requires without diminishing the beneficial elements intended for him by our Juvenile Act."Extensive quotes from Bible may be accessed here.
(In addition, the reader points out that " the United States Supreme Court has determined a similar result under Federal Constitutional law: See McKeiver v. Pa., 403 U.S. 528 (1971).")
ILB: Note that the Indiana case (Bible) differs from the Kansas decision in that the Indiana Court states "our juvenile proceedings are considered civil in nature and not criminal, the statutory denial of the right to trial by jury has never been thought to violate the Indiana Constitution" and references Art. 1, Sec. 20 of the Indiana Constitution, which provides that "In all civil cases, the right of trial by jury shall remain inviolate," while the Kansas decision considers juvenile prosecutions to be criminal in nature and references the Kansas equivalent to Indiana's Art. 1, Sec. 13.
Ind. Law - Recently passed golf cart ordinances made available to ILB
Both the Town of Summitville and the City of Elwood have recently passed ordinances allowing golf carts, with some restrictions.
Ind. Decisions - 7th Circuit decides one Indiana case today
In Sheridan v. Marathon Petroleum (SD Ind., Judge Barker), an 11-page opinion, Judge Posner writes:
The plaintiffs, a Marathon dealer in Indiana and a company owned by him to whom he assigned his dealership contract, filed suit against Marathon under section 1 of the Sherman Act, 15 U.S.C. § 1, charging it with tying the processing of credit card sales to the Marathon franchise and also with conspiring with banks to fix the price of the processing service. The tying arrangement is challenged under section 1 of the Sherman Act rather than section 3 of the Clayton Act because the things alleged to be tied—the franchise and the processing service—are services rather than commodities. * * *
[Both claims] must be dismissed under the rule of Bell Atlantic for failure to allege a plausible theory of antitrust illegality. And therefore the entire suit was rightly dismissed. AFFIRMED.
Ind. Decisions - Court of Appeals issues 0 today (and 9 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
In Alfred Dartis v. Delco Remy America, Inc. (NFP), a 9-page opinion, Judge Bradford writes:
Appellant-Respondent Alfred Dartis appeals the trial court’s judgment granting a petition for judicial review brought by Appellee-Petitioner Delco Remy America, Inc. (“DRA”) and reversing the finding of the Anderson Human Relations Commission (“AHRC”) that DRA’s termination of Dartis’s employment was due to unlawful discriminatory practices. Upon appeal, Dartis claims that the trial court erred in concluding that the AHRC’s finding was not supported by substantial evidence and was contrary to law. We reverse and remand. * * *Greta McKenzie-Carver v. Edward Carver (NFP) - "Greta McKenzie-Carver (“Wife”) appeals the trial court’s disposition of property in her dissolution proceedings with Edward Carver (“Husband”). Specifically, Wife argues that the trial court abused its discretion by including the Bank One child support account in the marital pot, in undervaluing the marital residence, and in its division of the marital property. Finding that the trial court acted within its discretion, we affirm.
Upon appeal, Dartis does not dispute that the AHRC’s order is invalid for lack of a quorum. He argues, however, that the trial court erred in entering judgment in favor of DRA on the basis that there was insufficient evidence to support the AHRC’s finding that his termination was the result of racial discrimination. Dartis requests that this court remand to the AHRC for a new hearing. * * *
The parties agree that the record of the AHRC hearing both on judicial review and in the instant appeal is incomplete and missing an unknown amount of witness testimony, including, apparently, Griffin’s. Without a complete record, we are unable to evaluate the AHRC’s order or determine whether Dartis’s discrimination claim was viable as a matter of law, and we conclude the trial court was unable to do so as well. The trial court’s judgment is based upon an incomplete record missing an unknown amount of witness testimony which may or may not have supported Dartis’s claim. Its reversal of the AHRC’s determination of discrimination was therefore in error.
Because both parties agree, and the trial court found, that the AHRC hearing was invalid for lack of a quorum, we reverse the trial court’s judgment in favor of DRA and remand to the trial court with instructions to remand this cause to the AHRC for a new hearing with a sufficient quorum. The parties are further reminded that a complete record must be filed with the trial court when seeking judicial review.
"[Re the division] '[W]here assets were acquired prior to marriage, the trial court may achieve a just and reasonable property division by determining the appreciation over the course of the marriage of such assets and dividing the appreciation between the spouses, while setting over to the appropriate spouse the pre-marriage value of the assets at issue.' Doyle v. Doyle, 756 N.E.2d 576, 579 (Ind. Ct. App. 2001). This is exactly the course of action that the trial court took in dividing the marital estate. Thus, we find that the trial court did not err in following such a method. Affirmed."
NFP criminal opinions today (7):
Ind. Decisions - "Legal Win for Indiana Faculty Who Aren’t Renewed"
The Indiana Supreme Court's June 17th decision in the case of Indiana State University v. William C. LaFief and IDWD (Review Bd.) - see ILB entry here - is the subject of a comprehensive story dated June 23 in Inside Higher Education. Some quotes:
If a university declined to renew a non-tenure-track professor’s fixed-term teaching contract, is the professor then voluntarily unemployed? According to the Indiana Supreme Court last week, the answer is no, a decision that would make the former employee eligible for unemployment benefits — just as if he had been terminated through no fault of his own. * * *
The original legal dispute pitted marketing professor William LaFief against his former employer, Indiana State University, which first hired him in 2004 for a one-year, renewable basis. Although his employment contract was continued for the 2005-2006 academic year following an annual review, the university declined to keep LaFief on for a third year.
After LaFief filed for unemployment, an administrative law judge rejected his request on the grounds that he was not “discharged” but that, instead, his contract had come to an end. The Review Board of the Indiana Department of Workforce Development reversed the decision, arguing that not renewing the contract was effectively equivalent to a discharge, but an appeals court subsequently found otherwise — that not being reappointed was the foreseeable outcome of a voluntary contract that ended on terms LaFief initially agreed to — leaving the final word to the state’s high court, which upheld the review board’s initial finding.
Ind. Courts - Indy public defender wants clients to pay their fees
Jon Murray of the Indianapolis Star reports today that few defendants in Marion County actually pay the standard public defendant fee of $50 for misdemeanor cases and $100 for felony cases:
Public defenders took on more than 29,000 cases last year. The county typically collects less than $200,000 in fees each year.
Presiding Judge Gerald Zore said the court's executive committee has given its support to Hill.
[Chief Public Defender Robert Hill] is asking judges to order payment of the fee more uniformly and to set a quick deadline for payment at the clerk's office. That could require judges to check on payment at a case's next hearing, which could be among 40 or 50 during a court session. * * *
In a letter to the court's executive committee in April, [David] Cook said better consistency and enforcement could boost fee collection to nearly $1 million. The figure is based on the assumption that 60 percent of those with some financial means would pay the fees.
One impetus for the push is a request from Mayor Greg Ballard's administration that city and county agencies slash their budgets by 5 percent this year.
For Hill's agency, that means $954,000. That would be impossible, Hill said, without curbing service and jeopardizing millions of dollars in reimbursements given by the state.
Hill's chief counsel, Ann Sutton, has given judges sample orders and forms to help determine a defendant's ability to pay and to order prompt payment of fees.
In some cases, judges could ask public defenders to total their hours and expenses, and then order partial reimbursement of costs based on a defendant's ability to pay. Both types of fees are allowed by Indiana law.
Welch and a few other judges said they were willing to consider changes but were waiting to hear more about Hill's suggestions.
Cracking down on fees draws support from many private attorneys, who say lax screening hurts their business by allowing too many defendants to get public defenders. * * *
Some counties with public defender agencies have more success collecting fees, said Larry Landis, executive director of the Indiana Public Defender Council.
Vanderburgh County, home to Evansville, collected nearly as much as Marion County in 2006, despite having one-fifth the population. But some others were less successful.
One key difference, according to Landis: Vanderburgh and several other counties use only cash bonds, which allow defendants to be freed while awaiting trial by paying 10 percent of their bail. The county holds the money and can use it to pay outstanding fees before returning the remainder.
Marion County uses surety bonds for many cases, and bail bondsmen keep the 10 percent paid by the defendant.
Ind. Law - Golf cart issues featured in story today
Tim Evans of the Indianapolis Star has a lengthy front-page feature story today headlined: "Debate rolls on: Hoosier towns mixed on regulation of golf carts, which advocates see as fuel-saving alternative." He writes about "a debate being waged in towns across Indiana and elsewhere as more people turn to golf carts as a convenient, cheap and eco-friendly alternative to gas-guzzling cars or trucks." More quotes:
The problem: As more people drive carts off fairways and onto streets, local officials are left to sort out safety issues that aren't clearly addressed in state traffic laws. * * *There is much more to the comprehensive story. In addition, there is a side-bar on p. 7 of the printed version that does not appear in the online version, that gives a list of where golf carts are allowed, under discussion, etc. in Indiana, as well as a look at some cart laws in other states. The ILB may post this later.
More than 15 Indiana communities in the last year have debated whether to ban or allow the carts on local streets.
Interpretations of state law vary by local jurisdictions, further muddying the waters.
In Wabash County, for instance, Prosecutor William Hartley Jr. has advised law enforcement agencies that state law prohibits the carts anywhere but on golf courses. But in Putnam County, Prosecutor Tim Bookwalter believes the law allows carts on public roads as long as they are equipped with lights, mirrors and a slow-moving-vehicle sign. The driver also must be at least 16.
Many communities have begun to address the issue formally while others are taking a Mayberry-style approach in which enforcement becomes an issue only if there is a problem.
"We have an 'understanding,' " said Hal Harp, president of the Worthington Town Council in Greene County. "We don't turn a blind eye to it, and we make sure people who do use them are responsible and not letting kids drive. * * *
Dennis Rosebrough, spokesman for the state Bureau of Motor Vehicles, concedes the law is unclear. He said the BMV's stance is that golf carts cannot be registered with the agency, "so, in theory, they should not be on the roads."
Rosebrough said the agency's policy committee is reviewing golf cart regulations.
Until the law is clarified, local officials are expected to continue to struggle with the issue on a town-by-town basis, said Marcia Oddi, editor of the Indiana Law Blog.
Oddi has been tracking the debate around the state.
"In some places, councils talk about this at almost every meeting, month after month. It's a big deal to a lot of people, and with gas prices going up, it's going to continue to be a hot topic," she said. * * *
While others debate the pros and cons, Gas City in Grant County has firmly embraced carts as an alternative mode of transportation.
Gas City Council President Larry Terwillegar said the decision to allow carts on residential streets came as a reaction to the increasing number of folks, mostly baby boomers and retirees, wanting to use them for errands.
The rules don't allow just anyone to hop into a cart and zip away.
Carts must be equipped with head-, tail- and brake lights, a windshield and a triangular slow-moving-vehicle emblem. Drivers must be at least 16 and provide proof of insurance when they register their carts each year with the police department. The carts may not be used on state highways and may cross them only at designated intersections with traffic lights.
Terwillegar said about 80 of Gas City's roughly 6,000 residents have licensed their carts -- including himself and the mayor.
For more on golf carts, check this long list of entries from the ILB.
[More] Here is the sidebar to the Star story:
The cart debate in Indiana
In the past year, officials in several Indiana communities discussed golf cart access on local streets and roads.
Where they're allowed
Argos, Bainbridge, Cicero*, Culver, Gas City, Geneva, Jonesboro, Portland
Approved, but on hold
Where they're banned
Bloomfield, Wabash County
Converse, Greencastle, Van Buren, Vincennes, Worthington
*Cicero's ordinance goes into effect next month.
**Lebanon's ordinance was shelved after a local court upheld a ticket issued to a golf cart owner by the State Police.
Cart laws in other states
North Carolina bans golf carts from its roads, but since 2001, its General Assembly has given special permission to at least 30 communities to make their own rules. The mostly small towns stretch from summer hot spot Wrightsville Beach to skiing destination Beech Mountain.
Alabama does not allow golf carts on public streets because they are considered non-motorized vehicles. However, it's common for upscale subdivisions or developments targeting seniors to have specified cart paths.
Colorado prohibits golf carts on public roads, unless the local jurisdiction permits their use.
Washington state bans them on all public roads.
Source: Star research
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This Thursday, June 26th:
9:00 AM - John C. Roberts, M.D. v. Community Hospitals of IN, Inc. - After Community Hospitals terminated Roberts' medical residency, Roberts filed a complaint alleging breach of contract and also sought injunctive relief. Following a hearing on Roberts' request for a preliminary injunction, the trial court, without prior notice to the parties, consolidated the injunction hearing with trial on the merits, denied the request for injunction, and granted final judgment to Community. The Court of Appeals reversed, holding that Roberts was prejudiced by the consolidation without notice. Roberts v. Community Hospitals of Indiana, Inc., 878 N.E.2d 234 (Ind. Ct. App. Dec. 12, 2007), vacated. [See this 4/25/08 ILB entry.] [The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorneys for Appellant John Roberts: Denise K. LaRue and Meghan U. Lehner, Indianapolis, IN. Attorneys for Appellee Community Hospitals: Matthew S. Effland and Brandon M. Shelton, Indianapolis, IN. [Where: Indiana Supreme Court Courtroom]
9:45 AM - Estate of Mintz v. Connecticut Gen. Life Ins. Co. - The Marion Superior Court entered a summary judgment in favor of Connecticut General and, Gruber, an insurance agent, ruling that they could not be held liable on the insured's claims of negligence and bad faith. The Court of Appeals affirmed in an unpublished memorandum decision. Estate of Mintz v. Conn. Gen. Life Ins. Co. v. Gruber, No. 49A05-0609-CV-532 (Ind. Ct. App. Nov. 29, 2007), vacated. [See ILB entry here.] 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. Attorneys for Mintz; Peter French and Sara Bradbury both of Indianapolis, IN. Attorneys for Connecticut Gen. Life Ins. Co.; Renée Mortimer and Scott Cockrum both of Schererville, IN. [Where: Indiana Supreme Court Courtroom]
10:30 AM - In the Matter of the Termination of Parent-Child Relationship of B.S. - The Marion Superior Court terminated parental rights, and the Court of Appeals affirmed in an unpublished memorandum decision, In re B.S., No. 49A02-0708-JV-719 (Ind. Ct. App. Mar. 6, 2008). [See ILB entry here - last case.] The parents have petitioned the Supreme Court to accept jurisdiction over the appeal. Attorney for Appellants: Anna E. Onaitis, Indianapolis, IN. Attorney for Appellee: Tammi Forster, Indianapolis, IN. [Where: Indiana Supreme Court Courtroom]
Webcasts will be available here.
This week's oral arguments before the Court of Appeals that will be webcast:
This week's oral arguments before the Court of Appeals that will NOT be webcast:
Sunday, June 22, 2008
Environment - Jim Rogers, A Green Coal Baron?
Today's NYT Magazine has a long feature by Clive Thompson that begins:
When I met with Jim Rogers one day this spring, he tossed back two double espressos in a single hour. A charming and natty 60-year-old, Rogers is the chief executive of the electric company Duke Energy. But he has none of the macho, cowboy stolidity you might expect in an energy C.E.O. Instead, he lives to brainstorm. He spends more than half his time on the road, a perennial fixture at wonky gatherings like the Davos World Economic Forum and the Clinton Global Initiative, corralling “clean energy” thinkers and listening eagerly to their ideas. The day we met, he was brimming with enthusiasm for a new approach to solar power. Solar is currently too expensive to make economic sense, according to Rogers, because the cost to put panels on a roof is greater than what a household would save on electricity. But what if Duke bought panels en masse, driving the price down, and installed them itself — free?
Courts - The Supreme Court of Kansas has ruled that juvenile defendants have a right to trial by jury
From the June 21 Kansas City Star, reported by David Klepper and Diane Carroll:
TOPEKA | In a decision affecting every juvenile criminal case in Kansas, the state Supreme Court has guaranteed juvenile defendants the right to a trial before a jury.Ten states: Alaska, Massachusetts, Michigan, Montana, New Mexico, Oklahoma, South Dakota, Texas, West Virginia, and Wyoming -- provide jury trials for allegedly delinquent juveniles as a matter of state law, according to page 7 of a brief filed in the Kansas case by the Juvenile Law Center.
The court ruled Friday that young defendants should be afforded the protections of a jury because the distinctions between juvenile and adult justice have eroded over the past 20 years as lawmakers cracked down on juvenile crime.
The decision sent a shock wave through the juvenile justice community. Prosecutors and judges said the likely result is more juries, longer trials and higher expenses.
“This is huge,” said state Sen. Phil Journey, a Haysville Republican.
But Journey, a criminal defense attorney, said the ruling is justified.
“You cannot impose adult penalties on little children without giving them adult due process,” he said.
Previously in Kansas, it was up to judges to decide whether to grant a juvenile defendant’s request for a jury trial. Most states, including Missouri, do not offer the option in juvenile cases.
The rare use of jury trials is a hallmark of the juvenile justice system, which was set up a century ago to treat younger offenders more gently and encourage confidentiality and rehabilitation.
Teens charged with the most serious crimes often are tried as adults. Friday’s decision affects those who remain in the juvenile system. It applies to current cases, even those under appeal, and future ones. * * *
Kansas now joins a small list of states that make jury trials a right for any defendant. It’s a list other states should join, according to Jessica Feierman, an attorney at the Juvenile Law Center, a Philadelphia-based group that supported the Finney County boy’s appeal.
Here is the Kansas Supreme Court's opinion in the case, In the Matter of L.M. The decision appears to turn on the wording of Sec. 10 of the Kansas Bill of Rights:
§ 10. "In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel; to demand the nature and cause of the accusation against him; to meet the witness face to face, and to have compulsory process to compel the attendance of the witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. No person shall be a witness against himself, or be twice put in jeopardy for the same offense." (Emphasis by Court.)What about Indiana? Indiana's Bill of Rights, at Section 13(a), provides:
The plain language of §10 extends the right to a jury trial to "all prosecutions." This court has previously interpreted the phrase "all prosecutions" to "mean all criminal prosecutions for violations of the laws of the state." State, ex rel. Mayer v. Pinkerton, 185 Kan. 68, 69, 340 P.2d 393 (1959) (denying a jury trial in a bastardy proceeding). In 1883, this court addressed the question of whether §10 applied to a charge of maintaining a nuisance, i.e., a hog pen. In re Rolfs, Petitioner, 30 Kan. 758, 1 Pac. 523 (1883). In concluding that the defendant was entitled to a trial by jury, this court stated:"So long, therefore, as the fundamental law contains the guaranty which it does, I think no party can be subjected to a prosecution for an act of a criminal nature, whether that prosecution be brought by the state directly or any corporation created by the state, without in some way and before some tribunal being secured an opportunity of having the truth of that charge inquired into by an impartial jury of the district.
"A distinction should be noticed here. A prosecution which involves nothing of a criminal nature, as for instance, where one is charged with acting as an auctioneer, without a license, in violation of a city ordinance, (such an ordinance being a mere municipal regulation,) is not a criminal offense in the true legal sense of the term. As to such proceedings, the constitutional guaranty may not be applicable; but where the charge is of an act like the one at bar, criminal at common law, criminal in its nature, and an offense against the public, the constitutional guaranty is applicable and cannot be ignored or disregarded." 30 Kan. at 763.
In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.
Ind. Courts - "$13.65M courthouse renovation project nearing completion"
Howard Greninger of the Terre Haute Trib-Star has a long story today, complete with a number of photos, on the renovation of the Vigo County Courthouse. Some quotes:
An interior renovation project that started at just more than $8 million will end at slightly over $13.65 million, but will give Vigo County a nearly new courthouse, while preserving a 120-year-old piece of history at the “Crossroads of America.”The story is followed by a long section containing a multitude of valuable details about savings, costs, and challenges of the project.
County officials will stage a special ceremony Aug. 2 to formally mark the completion of an interior renovation that challenged contractors as well as the county’s pocketbook, but a project county commissioners say will benefit residents for years to come. * * *
At its completion, the 19th-century courthouse will have all new plumbing, electrical and heating and cooling equipment as well as new ductwork, telecommunications and data wiring.
Other improvements include 22 new restrooms, up from 13 before the renovation. Each court now has a staff restroom and each jury room has a restroom. The public now has access to seven main restrooms.
The courthouse has an additional 10,000 square feet of space, built upon steel-supported mezzanines.
“A lot of counties have found that county business outgrows their courthouse, so in a lot of counties, a courthouse is not even a functioning courthouse,” said Commissioner Judith A. Anderson.
“We are very fortunate that our courthouse is a functioning courthouse, even though we had to expand it. Plus, the county expanded elsewhere for our everyday uses outside the courts,” Anderson said, referring to the County Annex at First and Oak streets, which houses most county government offices.
The courthouse will be home to the county clerk’s office, prosecution and probation offices, six county courts and voter registration. * * *
A glass-block floor section on the second floor, originally planned to stay, was removed to allow visitors on the ground level to see up inside the courthouse to a newly painted interior glass dome. When complete, a marble flooring on the ground level will contain an etched “V/C” emblem.
“You will be able to see that from floors from above it. Of all the things I saw happen in that courthouse, the day that we got railing up and removed that glass, I think there were more people impressed with that change than anything else because it made the first floor part of the rest of the courthouse,” Hanley said. * * *
In addition, the courthouse will have more than 100 new historic doors individually made by Carter-Lee Lumber of Indianapolis.
“They are manufacturing all of the historic doors. They are not just look-alike, they are new doors. They have equipment that makes pieces the same as original doors. It is the same white oak, the same cuts, the same joinery. They took a door back and made knives and made models. Those doors are constructed exactly like they were constructed back in the 1880s,” Hanley said.
Saturday, June 21, 2008
Ind. Law - Another golf cart accident, this one a fatality on a state highway
An unattributed report in the Lafayette Journal Courier this afternoon:
A Newton County man is dead following a two-vehicle crash in the southern part of the county Friday afternoon.
According to a press release from the Newton County Sheriff's Department, Stella N. Williams, 89, of Brook, was driving a 1994 Mercury Sable west on Indiana 16 around 4:30 p.m. Friday near Iroquois River Road when the car she was driving collided with a golf cart being driven by Robert Corbett, 87, of Brook.
Corbett was taken to Jasper County Hospital in Rensselaer where he was pronounced dead, the release said.
Environment - "U.S. May Free Up More Land for Corn Crops"
Today's NY Times has this story by David Streitfeld. Some quotes:
CHICAGO — Signs are growing that the government may allow farmers to plant crops on millions of acres of conservation land, while a chorus of voices is also pleading with Washington to cut requirements for ethanol production.
Ind. Law - "Lawyer says driver is devastated by shooting: Woman had no choice, he said"
From an Evansville Courier& Press story quoted in this March 22, 2006 ILB entry:
Indiana Gov. Mitch Daniels signed two bills pushed by gun-rights advocates in a brief Statehouse ceremony Tuesday. * * *A story June 19th by Harold Adams in the Louisville Courier Journal reported:
The second bill adds a provision on using force for self defense, stating that a person does not have a duty to retreat before using reasonable force to protect himself or another person who is in danger.
The amended law also now states that a person does not have a duty to first try to flee before using deadly force to defend against someone breaking into his home or car.
Yalanda Parrish called police Tuesday after shooting Wesley Mosier when he got off his motorcycle and came up to her car on 10th Street at Allison Lane. She said she shot in self-defense.Today the Louisville Courier Journal has this story by Michelle Day. Some quotes:
Police, after interviewing witnesses, said there had been some interaction between Mosier and Parrish as they drove along 10th Street before the shooting and described the situation as road rage.
A woman who told Jeffersonville police that she shot a motorcyclist in self-defense "felt she had no choice" because she thought he was going to hit her, her lawyer said yesterday.For more on the Indiana statute, see this August 7, 2006 ILB entry, along with its links.
No charges have been filed against Yalanda Parrish, 39, of Jeffersonville, in Tuesday's shooting of Wesley Mosier, 52, of Corydon, who remains hospitalized.
Louisville attorney Brian Butler, who is representing Parrish, said at a news conference yesterday that he hopes that the matter won't end up in court. * * *
Experts said that, according to Indiana law, Parrish must have reasonably believed that she faced serious harm or death to justify firing her gun, for which she has a permit. The law also says Parrish didn't have to "retreat" before defending herself, they said.
Kentucky's self-defense law is similar, and both states have a "castle law" that says people can use defensive or deadly force against anyone unlawfully and forcibly trying to get into their house or car, said Jeanne Anderson, assistant commonwealth's attorney in Jefferson County.
Bart Betteau, a defense attorney in New Albany, said aggressive driving isn't a reason to use force against another person.
But Betteau said Parrish's belief that she was in immediate danger doesn't have to be correct, only reasonable, to justify defending herself.
Fran Watson, a professor at the Indiana University law school in Indianapolis, said the adrenaline in a road-rage situation can cause people to act outside of what the law protects. The amount of force used in a person's defense has to be appropriate to the circumstance, she said.
"It all comes down to what we call a classic question of law and fact," she said. "The question is whether or not it was acting reasonably."
Ind. Courts - "Conseco legal war drags on"
J.K. Wall reports today in the Indianapolis Business Journal in a long story that begins:
Conseco Inc. won another round in court against former Merchants National Bank CEO James D. Massey this month, ringing up a $29 million judgment against him in a court in Illinois. But Massey shows no signs of throwing in the towel in the years-long litigation over millions he borrowed to buy Conseco stock. Massey was a director of Conseco from 1994 to 2000. On June 16, Massey’s attorneys appealed his case to the Indiana Supreme Court. Massey is hoping to overturn rulings by three courts in Indiana and Illinois—none of which have allowed him a trial—that have pinned him with judgments totaling $38 million.
Massey has frustrated Conseco’s attempts to wrap up its series of lawsuits against 11 former directors and officers of the company, who all took out large stock loans in the late 1990s. The company has resolved nine of those cases, all of which began in 2003.
Conseco hasn’t secured any settlements since December 2006, when company co-founder Stephen Hilbert agreed to undisclosed terms in his nearly $300 million case. Also, Conseco has so far failed to sell Hilbert’s Carmel mansion, for which it has been asking $15 million.
Conseco attorney Reed Oslan still predicts the company will collect more than $100 million from the 11 borrowers.
Besides Massey, the other unbowed borrower is Ohio attorney Dennis E. Murray Sr. Both men are represented by the Indianapolis law firm Price Waicukauski & Riley LLC. Their attorney, Henry J. Price, says they were fraudulently deceived by Conseco managers who inflated the company’s reported profits in 1999.
Ind. Courts / Ind. Gov't. - More on: Corruption in Lake County
INDIANAPOLIS | Bob Pastrick left the East Chicago mayor's office following defeat in a 2004 special election prompted by rampant absentee ballot fraud in the regular contest a year earlier.
His last successful re-election, in 1999, later was tainted by the unearthing of a massive sidewalks-for-votes scandal that snared a trio of top aides and three city councilmen. But Pastrick, the so-called King of Steeltown, never has been charged with a crime.
And that's enough for the Indiana Democratic Party.
Despite his considerable political baggage, the 33-year mayor continues to serve as one of three Hoosiers on the Democratic National Committee. The prime post, which Pastrick has held for more than three decades, makes him a member of the exclusive club of 13 Indiana superdelegates. * * *
State Democrats have no plans to push Pastrick, 80, toward political retirement, even though the longtime mayor is at the center of a civil racketeering lawsuit seeking to recover more than $24 million in public money diverted to a paving spree that preceded his last re-election victory.
"He'll always be welcomed in our party, and the attorney general hasn't proved anything in this case," said Indiana Democratic Party Chairman Dan Parker. "The only thing he's proved is he can spend a lot of money with an out-of-state (legal) firm."
Indiana Attorney General Steve Carter, a Republican, launched the racketeering suit in August 2004, while Pastrick still was mayor and about a week after Indiana Democrats re-appointed him to the DNC. The state so far has recovered $1.3 million from former city officials and contractors, while paying $317,000 in legal fees to a former federal prosecutor who helped convict Illinois Gov. George Ryan.
The East Chicago civil case has become a flashpoint in the current race for attorney general between Republican Greg Zoeller and Democrat Linda Pence.
Zoeller, Carter's chief deputy, has vowed to carry out the lawsuit. Pence, who represented a paving firm that paid $625,000 to settle claims it colluded with city officials, has said she doesn't know enough about the case to make such a commitment.
Pastrick, meanwhile, said his continued presence in the state party should not cast a pall over Pence, or any other Democratic candidate.
Environment - More on: "Congress asks about trailers made in state"
WASHINGTON -- A congressional committee has subpoenaed documents from Pilgrim International Inc. after the Indiana-based trailer manufacturer declined to produce them.
The House Oversight and Government Reform Committee is investigating the role of manufacturers in the high levels of formaldehyde found in trailers that the government bought as temporary homes for victims of 2005 hurricanes.
Pilgrim, Gulf Stream, Keystone RV Inc., and Forest River Inc. were notified earlier this month that the committee wants them to testify at a July 9 hearing and to provide the committee with specific information in advance.
The committee subpoenaed Pilgrim for the information after it failed to meet the deadline, according to a committee spokeswoman. Pilgrim also had not responded to a February request for documents.
The other manufacturers "have been in contact with the committee and are working to fulfill the committee's request," according to committee spokeswoman Karen Lightfoot.
Environment - Plan Commission rejects request to move Wednesday's meeting to a larger location
Pam Tharp of the Richmond Palladium-Item reports today:
LIBERTY, Ind. -- The Union County Area Plan Commission has rejected a request to move its meeting scheduled for Wednesday on livestock zoning rules to a larger location.
The plan commission will consider an amendment to its one-sentence livestock zoning ordinance to govern large feeding operations when it meets at 7:30 p.m. at the Union County Health Center, 6 W. South St.
Randy Hartman, a member of Concerned Citizens for Union County, asked area plan executive director Peggy Vannoy to move the meeting to a larger place.
The last meeting was held in the Union County High School auditorium and was attended by about 100 people. The April meeting with 100 people at the health center was standing room only, with several dozen residents standing throughout the meeting because there were no more chairs.
Hartman said he thinks more people may attend this meeting than the last one.
Vannoy rejected Hartman's request to move the meeting, saying the meeting's purpose is for the plan commission to vote on the proposed amendment posted last week on the plan department's Web site.
Ind. Courts - Supreme Court issues emergency order re handling of forfeiture cases in Muncie
The ILB has two entries in late May under the heading "McShurley vs. McKinney feud lands in Indiana Supreme Court," quoting from stories in the Muncie StarPress. A quote from the May 28th StarPress story:
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.Today Rick Yencer of the StarPress has two stories that all in all the ILB found somewhat confusing.
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.
In the first, Yencer reports under the headline "Audits show city never received any money from drug seizures." Some quotes:
MUNCIE -- For the last decade, not a dime of money or property seized by the Delaware County-Muncie Drug Task Force was ever deposited in the city's general fund, according to State Board of Accounts audits.More from the story:
Instead, that money went for expenses to the Delaware County prosecutor's office that handled forfeiture cases, city police gym, supplies and vehicles for DTF and other law enforcement and favorite charities like Yorktown Football Youth Drug Awareness program and Muncie Pirates Baseball League.
An SBA finding for last year, read by Delaware Circuit Court 2 Judge Richard Dailey during a forfeiture hearing on Friday, also indicated the DTF deposited some of the confiscated money into a checking account and that its balance had not reconciled to the bank balance, leaving a $3,567 deficit.
State examiners, as they had in previous audits, again cited state law requiring property and money seized in such arrests must be subject to a court judgment and deposited in the general fund of government employing the law enforcement officer with any process going to common school funds.
And the court has to determine the amount of law enforcement costs that are supposed to be paid from those proceeds.
Dailey, who came under fire from Prosecutor Mark McKinney for reassuming jurisdiction of forfeiture cases, used the audit finding and comments from state examiner Stephanie Heath to explain his activism to review forfeiture cases.
"We are attempting to decide whether fraud has been committed on the court," said Dailey. "The public has a right to know."
McKinney, in a petition filed with the Indiana Supreme Court on Friday, indicated the process of handling forfeiture funds through the DTF had been approved by an Indiana Attorney General's opinion and a written response from the Indiana Judicial Qualifications Commission.In a second StarPress story today Rick Yencer reports:
However, [Judge] Dailey pointed out the SBA never approved the practice, repeatedly informing city government that the money had to deposited by court order in local government general funds.
Attorney Michael Alexander, who represents several defendants in forfeiture cases, insists police were guilty of converting seized property and money for DTF and other law enforcement use.
The Indiana Supreme Court took emergency action Friday over Delaware Circuit Court 2 Judge Richard Dailey's handling of forfeiture cases to decide whether Prosecutor Mark McKinney and drug task force officers committed fraud.BTW, Mayor McShurley's last name comes up near the end of the seond story, but the context is missing.
McKinney filed a petition on Thursday, alleging Dailey exceeded his authority in 54 forfeiture cases by reassuming jurisdiction after Circuit Court 4 Judge John Feick recused himself from the cases. The prosecutor sought to have a special judge named in the hearings.
Dailey planned to continue a hearing Friday from last week to review the forfeiture cases and review scores of confidential agreements used to seize property and money from suspected drug dealers before McKinney sought the supreme court's intervention.
Chief Justice Randall Shepard, after conferring with other justices Friday morning, issued an emergency order allowing Dailey to proceed with forfeiture hearings, but told the judge to refrain from any orders in those cases until the court decides the jurisdictional issue.
The petition cited trial rules that the judge violated and alleged bias by Dailey's court staff and attorney Michael Alexander, who represented several defendants in the forfeiture cases where DTF officers seized hundreds of thousands of dollars and property during the last decade and never deposited in local government general funds or school common funds, a violation of state law.
McKinney claimed Dailey's court bailiff Cathy Bennington publicly supported Alexander and criticized members of the prosecutor's staff that cooperated in the FBI investigation into Alexander's pending conspiracy to commit bribery trial.
The petition also alleged Dailey violated judicial conduct codes by receiving evidence and conducting hearings outside of trial rules.
"I don't want to stop the hearing," said McKinney. "I just want a judge with property jurisdiction to conduct them, and conduct them in a fair and impartial manner."
The Indiana Supreme Court gave all parties until July 1 to file briefs and information on the jurisdictional issue raised by McKinney, so the court could decide on whether to grant or deny the request for special judge.
McKinney also filed a motion in Dailey's court to change venue on the forfeiture cases, while city attorney Charles (Chic) Clark, filed action to seek a special prosecutor in the cases.
Friday, June 20, 2008
Ind. Decisions - Transfer list for two weeks ending June 20, 2008
Here is the Indiana Supreme Court's transfer list for the two weeks ending June 20, 2008. Note that there are five pages.
The Court granted transfer in one case Thursday, and withdrew its transfer grant in another, after hearing oral arguments. See ILB entry from earlier today.
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.
Ind. Courts - State Insurance Commissioner sues Insurer in Dennerline matter
Following on the Court of Appeals May 16th opinion in the case of 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) [see ILB summary here], yesterday the Indiana Insurance Commissioner, as assignee of the firm, filed a bad faith claim in federal court arising out of the multi-million dollar jury verdict. The case is Atterholt v. ProNational Ins. Co.
Access the 8-page complaint of the Indiana Insurance Commissioner here.
For background, start with this Sept. 3, 2006 ILB entry, including this quote from a column by Indianapolis Star reporter John Ketzenberger:
Fillenwarth Dennerline was on the hook because everyone else involved in the collapse of the Indiana Construction Insurance Trust already had settled with the Indiana Department of Insurance.
When the state liquidated the trust, it collected $7 million to pay back the medical claims of 8,200 Hoosiers.
Frederick Dennerline III wanted the law firm's insurance company to settle for $1 million, too, according to a separate lawsuit. He was the attorney for the trust, which was a medical insurance collective of union contractors.
The insurance company refused to settle, the case went to trial and, last week, the law firm and ProNational Insurance Co. were hit with an $18 million judgment.
"Guys like me lose our jobs when we don't settle for $1 million, and then it turns into $18 million," said Jeffrey Goode. He's an attorney and vice president with XL Select Professional in Dallas, which writes malpractice insurance for attorneys.
ProNational rolled the dice when it decided not to settle for the policy's $1 million limit. The gamble left Fillenwarth Dennerline's fate in the hands of a six-person jury, which showed no mercy. It could have spread liability over 50 other people or entities. But the jury put the blame squarely on Dennerline. Snake eyes.
Ind. Courts - "State's voter ID law faces challenge" again
The Indianapolis Star has posted a brief, unsigned story reporting that:
A former City-County Council member and former Democratic party attorney will announce this afternoon the filing of a fresh challenge of the law requiring voters to show a photo ID at the polls.The ILB has obtained a copy of the League's press release, and the complaint, which was filed in Marion County Superior Court.
What's different this time, said Karen Celestino-Horseman, an attorney and Democrat who lost her council seat in 2003, is that the complaint is based on the violation of the Indiana Constitution instead of federal voting law. She and Bill Groth, former party attorney, will file the complaint on behalf of the League of Women Voters in Indiana.
From the release:
The League’s challenge is based upon Art. 2, Sec. 2 of the Indiana Constitution which sets forth the only qualifications for voting eligibility that can legally be imposed upon voters without further amendment of the Indiana Constitution. For example, the Indiana Constitution was amended in 1882 to grant the legislature power to enact a voter registration program.
As the Indiana Photo ID Law imposes an additional voting qualification on the citizens of Indiana that is not provided for in the Indiana Constitution, the League has filed its complaint challenging the law.
President of the LWVIN, Joanne Evers, said, “In crafting this law, the legislature failed to acknowledge that not all Indiana citizens have a printed birth certificate or the transportation to travel to various government agencies to gather documents or, the funds to purchase the documents required to get the necessary documentation.” Evers said, “The populations most affected by this law include the aged, disabled, homeless, lower income, minorities, rural residents and women who have hyphenated names or whose names have changed as the result of marriage, divorce or remarriage.” Evers concluded that the Indiana Photo ID Law is a disenfranchisement of Indiana voters.
The League of Women Voters of Indiana contends that the Indiana Photo ID Law imposes a qualification upon voters not provided for in the Indiana Constituion. “The law hinders and discourages Indiana voters from participating in our representative government of checks and balances,” said Evers. “Casting a vote on Election Day and having it count is the process by which ‘… of the people, for the people and by the people …’” is realized,” concluded Evers.
Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)
For publication opinions today (1):
In Paula Ann Yates v. Johnson Co. Board of Commissioners, et al. , a 16-page opinion, Judge Barnes writes:
Paula Yates appeals the trial court’s grant of summary judgment in favor of the Edinburgh Community School Corporation (“the School Corporation”) in her personal injury negligence action against the School Corporation and others. * * *NFP civil opinions today (2):
Conclusion The trial court erred in concluding that the School Corporation owed no duty to Yates. Furthermore, Yates was not contributorily negligent as a matter of law. We reverse the grant of summary judgment in favor of the School Corporation. Reversed.
In the Matter of K.G., Nathan Goode v. Marion County Dept. of Child Services, and Child Advocates, Inc. (NFP) - "The trial court erred in determining that K.G. was a CHINS. See In re M.W., 869 N.E.2d 1267 (Ind. Ct. App. 2007) (finding insufficient evidence to support the CHINS determination). Reversed and remanded with instructions to vacate K.G.’s CHINS determination."
Leeper Electric Services Company, Inc. v. City of Carmel (NFP) - "Leeper Electric Services, Inc. (“Leeper”), appeals a trial court judgment awarding attorney’s fees to the City of Carmel (“the City”). * * *
"Leeper’s act of filing Hamilton II was the catalyst for the motion to consolidate. Moreover, the City’s counsel, although experienced, was traversing uncharted territory. Given the uniqueness and complexity of this case, the fact that counsel’s research of Trial Rule 42 failed to produce a legal basis to consolidate Hancock II and Hamilton II does not render the research an excludable expense. The trial court did not abuse its discretion in concluding that the 8.0 hours logged in conjunction with the motion to consolidate were properly includable as an expense associated with defending Hamilton II. Affirmed."
NFP criminal opinions today (5):
Ind. Courts - Nominations sought for Judges Association annual awards for “Excellence in Public Information and Education”
A release announces:
The Indiana Judges Association is accepting nominations for its annual awards for “Excellence in Public Information and Education,” Marion Superior Court Judge Robert Altice announced today.
Judge Altice, who chairs the Community Relations Committee of the Judicial Conference of Indiana, said the Committee selects the recipients on behalf of the Indiana Judges Association.
The IJA gives two “Excellence in Public Information and Education” awards each year. One award is presented to a member of the Indiana judiciary for special efforts in community relations. In addition, an award is presented to a member of the news media for efforts in responsible reporting on the Indiana judiciary.
Nominations for either award should include a letter outlining the reasons for making the nomination and any supporting information that will assist the committee in its decision-making. The selection will be based on the breadth and depth of the effort, quality of the effort, ingenuity and public response
Nominations must be received at the Indiana Judicial Center by 4:30 p.m. on Friday, August 8, 2008. The awards will be presented at the Indiana Judges Association luncheon on September 10, 2008 in Indianapolis.
Ind. Decisions - Court grants transfer in one case, reverses grant in another
The formal transfer list should follow later today, but the ILB has received advance notice about two cases:
On June 19th, the Supreme Court denied transfer in the case of Michael Hill v. State, on the basis that transfer had been improvidently granted. Oral arguments were held June 19th - see this ILB entry.
The Supreme Court granted transfer June 19th in the case of Jim Atterholt v. Geneva Herbst. See the Feb. 4th ILB summary of the COA decision here.
Ind. Decisions - Still more on: SCOTUS decides Indiana v. Edwards
Howard Bashman of How Appealing has collected together links to most of the coverage here.
Ind. Courts - "Rumors swirl about possible new federal judge"
Bill Dolan writes today in the NWI Times:
HAMMOND | Neither the White House nor U.S. Sen. Dick Lugar, R-Ind., will comment on possible efforts to find a new federal judge for the Northern Indiana district.
The Web site for the U.S. court system indicates one of the five judgeships in the U.S. District Court of Northern Indiana has been vacant since November when Judge Allen Sharp, who sits in South Bend, assumed the title of senior judge, which is tantamount to semi-retirement. Sharp has been a federal judge since the early 1970s.
The Web site indicates no one has been nominated to fill that vacancy.
Andy Fisher, spokesman for Lugar, said this week that comment on a possible replacement would have to come from the White House.
Courts - "Ohio historian indicted for moving huge rock"
Stephenie Steitzer of the Louisville Courier Journal reports today in a long story that begins:
An Ohio historian may be caught between a rock and some hard time.
Nine months after Steven Shaffer of Ironton, Ohio, led an effort to remove an 8-ton boulder from the Ohio River, a Greenup County, Ky., grand jury has indicted him on a felony charge for removing the historic rock. Now Shaffer faces a criminal charge of removing an object of antiquity, a Class D felony that could earn him one to five years in prison.
The rock, which Kentucky contends was on its side of the river, is listed on the state's official antiquities register. Kentucky law requires that a permit be obtained from the Office of State Archaeology before an object on the register is removed.
Ind. Law - More on: "West Lafayette will test red light cameras"; Hammond Update
West Lafayette Police Department Capt. Chris Leroux informed the city's traffic commission Wednesday that the city will be testing the cameras next week and studying the data. The commission will likely discuss the issue at their next meeting in about a month.[Hammond Update] Susan Brown reports today in the NWI Times that:
Hammond has already passed an ordinance allowing the use of red light cameras, which the Indiana Board of Accounts is reviewing.
"This is something new that came up in Hammond, we just want to do our homework on it," said Mike Bozymski, the deputy state examiner. "We want to make sure the ordinance isn't in violation of any type of state statute."
Lafayette is also considering adding red light cameras at some of the city's intersections.
The city set up a test camera at the intersection of Kossuth and Main streets on May 8 and 9 to get a sense of the problem. * * *
Lafayette's city attorney Ed Chosnek said his office is researching how the Lafayette City Council could pass an ordinance authorizing the use of red light cameras.
"The city definitely wants to at least try some red light cameras at a couple of intersections to see if it does in fact improve safety, but we want to make sure we do it right," Chosnek said.
West Lafayette city attorney Eric Burns said he has not done any research into drafting a red light camera ordinance because the city hasn't decided if it wants to move forward with using the cameras.
Though swiftly signed into local law, the city's new red light camera enforcement program isn't ready to launch, according to Hammond police Lt. Pat Vicari, who supervises the traffic division.
"(City Attorney) Kris Kantar sent a letter to the State Board of Accounts to make sure we do this correctly and that it can, in fact, be done," he said. "We're not going to run out and throw up cameras. We're trying to do this right."
Ind. Decisions - 7th Circuit issues one Indiana opinion today
In U.S. v. Morris Carter (ND Ind., Judge Lozano), a 25-page opinion, Judge Flaum writes:
Defendant Morris Carter, who served as the elected Recorder for Lake County, Indiana, was convicted for three counts of extortion in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and sentenced to 51 months’ incarceration. Carter now raises three issues before this Court on appeal. First, Carter challenges the sufficiency of the evidence for his convictions, claiming that the government failed to prove that his actions affected interstate commerce or that he acted under color of right. Carter’s second claim is that the Government engaged in an improper line of questioning during his cross-examination. For the reasons discussed below, we affirm the district court’s judgments on these two issues, but remand for resentencing based on Carter’s final claim that the district court misapplied the proper post-Booker standards for sentencing.
Law - Northwestern University School of Law plans to offer 2-year program [Updated]
Jodi S. Cohen of the Chicago Tribune reports today in a story that begins:
In a move that could shake up legal education, Northwestern University School of Law plans to announce Friday that it will begin offering students a chance to get a law degree in two years instead of the traditional three.From later in the lengthy story:
Becoming the first top-tier law school—and the third in the country—to offer an accelerated program is the latest change at a school that is departing from the traditional focus on legal reasoning and case-law analysis to also teach skills such as accounting, teamwork and project management.
University of Chicago professor and former dean Geoffrey Stone called the two-year program "irresponsible" and said it risked producing inferior lawyers who haven't had time to develop intellectual and analytical skills.[Updated] The WSJ Law Blog has now picked up this story and has details about the program - tuition, curriculum, etc.
"My sense is that compressing the educational process is likely to seriously derogate from the quality," he said. "What is lost is likely to be much more than anything that is gained by hustling the students through more quickly."
University of Illinois associate dean Lawrence Solum said students in a two-year program would have less time to explore career opportunities during the summer.
"Law school is already an extraordinarily intense experience and my gut instinct is that cramming it into fewer weeks and months is not likely to improve the quality of the education," he said. "If anything, law students already are doing too much in too few hours."
Van Zandt said he expected some criticism. "Any time you innovate, you are always going to have people who pooh-pooh it or look down their nose," he said. "Law and legal education is tremendously conservative."
Thursday, June 19, 2008
Ind. Decisions - Supreme Court issues environmental ruling late this afternoon
In Pflanz v. Foster, a 7-page, 5-0 opinion, in a case argued Dec. 6, 2007, Chief Justice Shepard writes:
The question here is whether a property owner’s claim for contribution toward environmental cleanup costs is barred by the statute of limitation if the owner should have known about the contamination more than ten years before the complaint was filed. We hold that the statute of limitation does not begin to run until the owner is ordered to cleanup the property, regardless of whether an owner earlier knew or should have known about the need for cleanup. * * *
I. Statute of Limitation for Contribution and Declaratory Relief * * *
Foster contends that the statute of limitation began running when the Pflanzes knew or should have known about the contamination. The Pflanzes’ contribution claim, however, is not a claim for damage to the property itself. Rather, they seek to recover for the cleanup costs IDEM required, which resulted from Foster’s use of the land. * * *
Because the damage at issue in the Pflanzes’ contribution claim is the cleanup obligation assessed by IDEM that resulted from Foster’s use of the land, the statute of limitation did not begin to accrue until after the Pflanzes were ordered to clean up the property.
Accordingly, because IDEM ordered the Pflanzes to pay for the environmental cleanup costs in 2001, the Pflanzes filed their contribution claim well within the ten-year statute of limitation.
II. Statute of Limitation for Stigma Damages
Indiana law permits recovery of “stigma damages” for losses in the fair market value of property after remediation of environmental contamination. * * *
The statute of limitation for stigma damage claims cannot begin to toll until after the claimant has incurred real damage. As with contribution claims, the “damage” in stigma damage claims is not the environmental contamination itself. Rather, the damage is a diminution in property value despite acceptable remediation of the environmental contamination. * * *
Stigma damages cannot be determined prior to substantial completion of the remediation. Before substantial completion of the remediation, the property’s value will necessarily be lower because of the known presence of environmental contamination. Thus, whether or not the claimant’s property value will continue to be diminished post-cleanup cannot be ascertained until remediation has been substantially completed. * * *
III. Statute of Limitation for Waste and Negligence Claims
Claims for waste and negligence related to real property are governed by a six-year statute of limitation. * * *
Neither party asserts that the Pflanzes had actual knowledge that the underground storage tanks could result in environmental contamination prior to the IDEM inspection in 2001. Thus, for ascertaining when the statute of limitation began to run on the negligence and waste claims, the question is when the Pflanzes, in the exercise of ordinary diligence, should have known of the injury.
The resolution of this question rests on factual determinations not yet in the record. We cannot accept the trial court’s holding that, as a matter of law, the passage of the USTA automatically put landowners on notice that they should inspect and monitor any underground storage tanks on their property even if, taking the Pflanzes’ allegations as true, the former property owners had assured them the tanks were closed and not in use. Perhaps the exercise of ordinary diligence required periodic soil testing or inspection of the tanks in light of Indiana’s enactment of the USTA, but that determination cannot be made on the basis of the facts now deployed.
Accordingly, we reverse the trial court’s dismissal of this claim and remand for such further examination of it as the parties may place before the court.
Conclusion. For the above reasons, we reverse the trial court’s order of dismissal and remand the case for further proceedings on the merits.
Ind. Law - Golf cart falls can be serious
The ILB has had numerous entries about cities and towns trying to decide whether golf carts may be driven on local streets, under what conditions, what safety requirements should be imposed, etc. The Leader, from Starke County had a story dated Friday, June 13th, reported by its editor, John Reed, headed "Woman airlifted after falling off golf cart." Some quotes:
BASS LAKE — A Boa Shores woman was airlifted to South Bend Memorial Hospital after she fell off a golf cart on County Road 210 on Sunday, June 8. * * *
Her companion and the golf cart driver, James Prusak, 48, of Tinley Park, Ill., was arrested and charged with operating a vehicle while intoxicated, causing serious bodily injury.
Prusak told police the couple was “driving home, weaving slowly and singing” before the accident occurred. He said they had cruising around the lake and drinking. Police found beer bottles in cup holders on the golf cart, and an empty beer bottle and partially empty vodka bottle in a cooler.
According to police reports, Sheriff’s Deputy James Sponaugle was on routine patrol on 210 when he saw a person, later identified as Smith, lying on the road. A man, Prusak, was standing over Smith with blood all over his hands. The golf cart was in a ditch. * * *
Prusak told police they had left the Sandbar after sitting in its parking lot for about an hour. They were headed home, he said, moving about 5 mph, when he noticed Smith was no longer in the passenger seat. He looked back and saw her lying in the road and backed up, sending the cart into a ditch.
Ind. Decisions - 7th Circuit decides one Indiana case today
In U.S. v. Joseph Berndt (ND Ind., CJ Miller), a 7-page opinion, Judge Cudahy writes:
Joseph Berndt lived in the basement of his parents’ South Bend, Indiana home for over 30 years. In 2006, his parents decided to sell their home and, in June of that year, Berndt left South Bend and went to live in South Dakota. When the family began to clean up the house in early August to get it ready for sale, they made an unsettling discovery. It seems that Berndt was something of a pack rat. But in addition to the usual accumulations of old clothes, tools and junk, Berndt’s nest included a substantial arsenal of deadly weapons: nine pipe bombs wrapped with roofing nails, 62 firearms and thousands of rounds of ammunition, to be specific. The area around the weapons had been rigged with alarms and motion detectors. Understandably alarmed at their discovery, family members called the police, and local and federal law enforcement agents removed the pipe bombs from the house. After Berndt returned to South Bend at the end of August, federal agents arrested him.
He asserted that he came to possess the bombs 30 years prior to their discovery by police, and that his crime of possession of unregistered firearms was completed when he took possession of the pipe bombs and failed to register them. On this reasoning, the statute of limitations lapsed 25 years prior to his indictment. The district court denied his motion and a jury convicted Berndt after a two-day trial. On August 7, 2007, Berndt was sentenced to 51 months imprisonment and three years supervised release.
Berndt raises three issues in this appeal. First, Berndt argues that the district court erred in denying his motion to dismiss on statute of limitations grounds.1 The district court concluded that possession of pipe bombs is a continuing offense and thus, it was irrelevant whether Berndt came to possess the bombs in 1976, 1986 or 2006. The statute of limitations did not begin to run until Berndt stopped possessing the bombs in the summer of 2006 and because he was indicted in September 2006, the statute of limitations did not bar his prosecution.
On appeal, Berndt contends that possession of unregistered pipe bombs is not a continuing offense. This argument is without merit. A crime is a “continuing offense” for statute of limitations purposes when “the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.” * * *
In his second challenge to his conviction, Berndt argues that the district court committed reversible error when it refused to tender his proposed instruction on the statute of limitations defense. * * *
Berndt was not entitled to argue that his crime was completed in 1976 when he made or acquired the bombs because that is an inaccurate statement of the law. Thus, the district court properly refused to tender Berndt’s proposed instruction.
Finally, Berndt argues that he was unfairly prejudiced when the government played a DVD to the jury that showed his living quarters in the basement of his parents’ home where the pipe bombs were discovered. Berndt’s objection arises from the fact that the DVD footage includes images of Nazi memorabilia that was in the basement. He asserts that the jury may have inferred that he is a member of a hate group, and that this impression may have biased them against him in their deliberations. Berndt objected to the DVD’s introduction at trial and so our review is for abuse of discretion. * * *
The district court’s decision to admit the DVD into evidence was well within its discretion. The video footage was probative because it was taken hours after Berndt’s family discovered the pipe bombs and showed where the devices were found. The DVD also showed the various alarms and motion detectors that had been rigged around the basement. The risk of unfair prejudice was slight. The jury knew that Berndt had a collection of World War II memorabilia; the government stated as much in its opening statement and defense counsel elicited testimony from a witness that American and German World War II paraphernalia were found in the basement. * * * The objectionable images appeared for a very brief period of time and posed a negligible risk of unfairly prejudicing Berndt.
For the above reasons, we AFFIRM the judgment of the district court.
Ind. Decisions - More on SCOTUS decides Indiana v. Edwards
More on the opinion this morning by the U.S. Supreme Court reversing the Supreme Court of Indiana:
Joan Biskupic of USA TODAY, writing under the headline "Mentally ill defendants can be forced to use lawyers," reports in a story that begins:
WASHINGTON — The Supreme Court ruled 7-2 today that states may require a mentally ill defendant who wants to conduct his own defense to accept the assistance of a lawyer.Lyle Denniston of SCOTUSBlog has a very interesting analysis piece headed "Faretta survives, with limits." It begins
The ruling reverses an Indiana Supreme Court decision that said a criminal defendant who is found sufficiently competent to stand trial must be allowed to invoke his Sixth Amendment right to self-representation.
Lawyers for the state of Indiana, evidently believing they would get Justice Stephen G. Breyer’s vote, mounted a strong bid for the Supreme Court to overrule its 1975 decision in Faretta v. California — the decision that gave individuals on trial for a crime the right to act as their own defense lawyers, so long as they knew what they were getting themselves into. On Thursday, Indiana got its answer: the Court, in what probably represents a unanimous view, refused to overrule Faretta — and the main opinion in Indiana v. Edwards (07-208) was written by Justice Breyer.
Ind. Decisions - Court of Appeals issues 4 today (and 15 NFP)
For publication opinions today (4):
In Steven I. Paul v. State of Indiana, a 17-page opinion, Judge Barnes writes:
Steven I. Paul brings his consolidated appeal of the sentence imposed by the trial court after his conviction by jury of aggravated battery, as a class B felony, and the trial court’s order finding that Paul was not entitled to credit time for earning a second associate’s degree during his incarceration. * * *In Thomas N. Schiro v. State of Indiana , a 23-page opinion, Judge Kirsch writes:
Finally, Paul argues that the trial court erred in denying him educational credit time for his second associate’s degree because the statute and resulting DOC directive violate constitutional prohibitions against ex post facto laws as applied to him. We agree. * * *
When Paul committed the offense, the law provided that he could earn one year of educational credit for an associate’s degree – with no limitation as to the number of such degrees except for the statutory maximum for educational credit time. After the law and DOC policy changed to limit his earning of credit to a single associate’s degree, it reduced the educational credit time available to him for pursuing more than one associate’s degree – by limiting him to credit for a single associate’s degree. “[T]his reduction in [educational credit time] accumulation lengthen[ed] the period that [Paul] must spend in prison,” constricted his “opportunity to earn early release,” and “made more onerous the punishment” for the aggravated battery he committed “before enactment” of the new law and policy. Weaver, 450 U.S. at 33, 35-36. Inasmuch as at the time Paul committed the offense, the statute allowed him to earn more than one associate’s degree and earn one year’s credit for each degree, the application of the new statutory provision and DOC’s policy to deny him credit for both degrees is a violation of his constitutional protections against ex post facto laws. Therefore, we reverse the trial court’s order in that regard and remand to the trial court for issuance of an order to the Indiana Department of Correction consistent with this opinion.
Thomas N. Schiro appeals his conviction for Class A felony rape, raising several issues, which we consolidate and restate as: I. Whether the trial court erred when it denied Schiro’s motion to dismiss charges brought against him in 2005 for crimes that were alleged to have occurred in 1980. II. Whether the trial court erred when it admitted Schiro’s written statements and a photograph of the victim with her daughter. * * *In Christopher Tubbs v. State of Indiana , a 6-page opinion, Senior Judge Garrard writes:
Back in 1981, as a result of the publicity surrounding Luebbehusen’s death, two other women, G.G. and L.S., upon seeing Schiro’s picture in the news, separately contacted law enforcement. Each woman asserted that Schiro had raped her in late 1980 in separate and unrelated incidents. These rapes are the crimes underlying the current appeal. Police investigated both rapes, but because Schiro admitted to the murder of Luebbehusen and was sentenced to death, the State did not charge Schiro with the G.G. and L.S. crimes. However, following the 1996 reversal of Schiro’s death sentence, the State reopened the investigation of the G.G. and L.S. cases in 1996 or 1997, but could not locate L.S. Because the State believed that proceeding simultaneously with both alleged victims would increase its chances for success at trial, the matter stalled for a period of time. * * * Affirmed.
Christopher Tubbs appeals the sentence imposed after his guilty plea was accepted. His primary argument is that the sentence violated his plea agreement by imposing punitive requirements not authorized by the agreement. We reverse and remand. * * *In Leon Z. Kyles v. State of Indiana , a 9-page opinion, Judge Robb writes:
We conclude that Tubbs’ plea agreement did not afford the trial court broad discretion in fixing the terms of probation. Therefore, the imposition of the three years in community corrections after the nine year executed sentence constitutes an additional substantial obligation of a punitive nature not authorized by the plea agreement.
We therefore reverse the sentence and remand to the trial court for imposition of a sentence in accord with the terms of the plea agreement.
Following a jury trial, Leon Kyles appeals his conviction of unlawful possession of a firearm by a serious violent felon, a Class B felony, and the jury’s habitual offender finding. On appeal, Kyles raises two issues, which we restate as 1) whether the trial court properly admitted a shotgun into evidence that was discovered following an inventory search of Kyles’s vehicle and 2) whether the trial court properly denied Kyles’s motion for a mistrial during the habitual offender phase of the trial. Concluding that the trial court properly admitted the shotgun into evidence and properly denied Kyles’s motion for a mistrial, we affirm. * * *NFP civil opinions today (8):
Kyles’s theory that the shotgun should have been suppressed does not directly challenge the reasonableness of the inventory search of his vehicle. Instead, Kyles argues the shotgun should have been suppressed because Officer Deshaies’s observation of the crack pipe did not constitute probable cause for a warrantless arrest. The theory is a valid one, * * * and the propriety of the trial court’s decision to admit the shotgun therefore turns on whether Officer Deshaies had probable cause to arrest Kyles. * * *
Because Kyles’s warrantless arrest was based on probable cause, the resulting search of Kyles’s vehicle did not violate the Fourth Amendment, and the trial court properly admitted into evidence the shotgun that was found during that search. Moreover, the trial court properly denied Kyles’s motion for a mistrial during the habitual offender stage of trial.
Tamyra and Renato D'Ippolito v. Gene R. Barley d/b/a Freedom Contracting, Inc. (NFP) - "The trial court did not err in finding and concluding that the parties entered into oral contracts for work at the café. The trial court did not abuse its discretion in making its findings as to Gene’s damages. Finally, there was evidence to support the entry of judgment against Renato. Affirmed."
Michael and Vicky Mason v. Landes Cup Investments, Inc. (NFP) - "While the Masons are correct that the statute makes the bond mandatory, the law does not redress trifles. See D&M Healthcare, Inc. v. Kernan, 800 N.E.2d 898, 900 (Ind. 2003); and Brockmann Enter., LLC v. City of New Albany, 868 N.E.2d 1130, 1133-34 (Ind. Ct. App. 2007), trans. denied. Indeed, remand for the entry of a nominal bond would do little to further the proceedings. Any error therefore was harmless. Affirmed."
In Sara L. Cox v. Deal$ Nothing Over a Dollar, LLC (NFP), a 13-page, 2-1 opinion, Judge Kirsch writes:
Sara L. Cox appeals the trial court’s grant of Deal$ Nothing Over a Dollar, LLC’s (“Deal$”) motion for summary judgment terminating her premises liability claim against Deal$. Cox raises three issues on appeal, which all deal with whether there were genuine issues of material fact rendering summary judgment inappropriate. We restate these issues as: I. Whether the bumper rails at the base of the table-high display refrigerator-freezer constituted a “tripping hazard.” II. Whether Deal$ owed Cox a duty of reasonable care to protect against the bumper rail. III. Whether the bumper rail caused Cox to fall. We reverse. * * *J.B., A Minor Child v. The Board of Trustees of Vincennes University (NFP)
Although Deal$ claims that Cox’s deposition testimony was fraught with inconsistencies and uncertainty as to what caused her to fall, she distinctly identified the bumper rail as the cause of her fall. The remainder of her testimony goes to the weight of the evidence and the credibility of her as a witness, issues this court may not decide and that are inappropriate for summary judgment. Cox designated sufficient evidence to create a genuine issue of material fact as to whether her fall was caused by the bumper rail. Reversed.
BAILEY, J., concurs.
FRIEDLANDER, J., dissents with separate opinion. [which concludes] In summary, the undisputed designated evidence established that the bumper rail has been widely used the world over without incident for well in excess of ten years. For its part, Deal$ had never had a bumper-rail-related incident in all the time it had been used in Deal$’s store. It is beyond me how a jury could conclude from the foregoing evidence that there is an unreasonable risk inherent in the bumper rail, much less how Deal$ should have foreseen it.
This brings me back to the aforementioned philosophical difference. My colleagues dismiss this line of reasoning by holding that the issue of notice of a danger is a question for the trier of fact. Applied in such a rote fashion on facts such as these, this principle seems to render summary judgment practically unattainable in this context. I can find no case that enunciates such a rule. Thus, upon my view that summary judgment is appropriate where the evidence of notice of risk and foreseeability is as threadbare as that in the instant case, I would affirm summary judgment in favor of Deal$.
NFP criminal opinions today (7):
Ind. Decisions - SCOTUS decides Indiana v. Edwards
Indiana v. Edwards (07-208) - Argued 3/26/2008. Whether States may adopt a higher standard for measuring competency to represent oneself at trial than for measuring competency to stand trial. [See ILB entry from March 26th here.]
According to SCOTUSBlog: "The Supreme Court ruled by a 7-2 vote on Thursday that a state may require a criminal defendant who suffers from a mental illness to have a lawyer, rather than allowing the individual to act as his own defense counsel, even when the individual is competent enough to be tried."
Here (thanks to SCOTUSBlog for the link) is today's opinion, including the Syllabus. From the conclusion of the majority opinion:
We consequently conclude that the Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.[More] Here is Gannett News Service's Maureen Groppe's early coverage, posted at noon. It begins:
Indiana has also asked us to adopt, as a measure of a defendant’s ability to conduct a trial, a more specific standard that would “deny a criminal defendant the right to represent himself at trial where the defendant cannot communicate coherently with the court or a jury.” We are sufficiently uncertain, however, as to how that particular standard would work in practice to refrain from endorsing it as a federal constitutional standard here. We need not now, and we do not, adopt it.
Indiana has also asked us to overrule Faretta. We decline to do so. * * *
For these reasons, the judgment of the Supreme Court of Indiana is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
WASHINGTON -- The U.S. Supreme Court on Thursday overturned a decision by the Indiana Supreme Court that a man with a history of mental illness should have been allowed to represent himself at trial.
In 7-2 decision, the high court said states may prevent defendants from serving as their own attorney even if they are found competent to stand trial.
Law - "California cellphone law may be more costly than the $20 fine"
Another California story, but something to keep in mind. Indiana has no state-wide law, but Gary has an ordinance - see this Oct. 8, 2007 ILB entry.
Ralph Vartabedian of the Los Angeles Times reports today in a long story that begins:
The threat of a $20 fine may not sway every California driver from using a hand-held cellphone when a state ban takes effect July 1, but a motorist who ignores the law and causes an accident could face huge civil judgments or even jail if fatalities result.
"If you cause a fatal accident and you are running a stop sign, speeding or crossing a double line, any additional violation would add to the possibility a manslaughter charge could be filed," said W. Scott Thorpe, chief executive of the California District Attorneys Assn. "It all goes to state of mind and your recklessness."
The cellphone law is moving the state into uncharted territory. Though other states have enacted such laws, prosecutors, trial lawyers and insurance companies say it is still too soon to measure the effects.
Courts - Calif. Justices Weigh Whether Doctors, Citing Religion, Can Refuse to Treat Some Patients
Ashley Surdin of the Washington Post reports today in a lengthy story that begins:
LOS ANGELES -- On the heels of its ruling on same-sex marriage, California's highest court will decide another potentially landmark civil rights case: whether doctors can refuse to treat certain patients for religious reasons.From later in the story:
The case reaches back nearly 10 years, to when Guadalupe "Lupita" Benítez of Oceanside was trying to conceive. Benítez, who is gay, says doctors violated her civil rights because they refused her a fertility treatment, saying it was against their religion to perform insemination on a lesbian.
The two doctors and their employer, North Coast Women's Care Medical Group, say they denied Benítez treatment because it is against their Christian beliefs to perform insemination on unwed women, whether heterosexual or lesbian. Their refusal, they argue, is protected by their constitutional right to freedom of religion.
Unlike instances in which doctors refuse to perform abortions, this case is unusual in that doctors are seemingly denying services to a select group of patients, said Joan Hollinger, a professor of family law at the University of California at Berkeley. And it is unclear whether the Constitution's religious freedom clause protects such selectiveness.
Jennifer C. Pizer, a lawyer with the gay rights group Lambda Legal who is representing Benítez, said that while the law protects doctors who refuse certain treatments on religious grounds, it does not allow them to do so on a discriminatory or selective basis. In other words, when doctors refuse a treatment, their refusal must apply to all patients -- not to a group, such as unmarried women or lesbians.
"All you have to do is imagine, for a moment, a doctor agreeing to an abortion for women of color but saying, 'I will not' for white women. Or a Jewish doctor saying, 'I will do an abortion for Muslim women, but not Jewish women.' Or vice versa," Pizer said. "Just imagining those possibilities shows how deeply problematic such a notion would be."
Wednesday, June 18, 2008
Ind. Decisions - Court of Appeals issues 4 today (and 17 NFP)
For publication opinions today (4):
In Matthew Zachary v. State of Indiana , a 9-page opinion, Judge Bailey writes:
Zachary presents a single issue for review: whether he was denied the effective assistance of trial and appellate counsel because counsel did not challenge an admonishment and instruction that restricted the jury’s consideration of certain self-defense evidence. * * *In Roy Austin Smith v. Indiana Dept. of Corrections, an 8-page opinion, Judge Robb writes:
The jury ultimately found that the State had rebutted Zachary’s claim of self-defense. However, this is not attributable to trial counsel’s failure to object to instruction by the trial court, as a timely objection would not have been sustained.
Conclusion Zachary failed to demonstrate that he was prejudiced by an erroneous instruction to the jury. As such, he did not establish the ineffectiveness of either trial counsel or appellate counsel for failure to challenge the same. The post-conviction court properly denied Zachary post-conviction relief. Affirmed.
Roy Smith, pro se, appeals from the trial court’s order dismissing his complaint against the Indiana Department of Correction (“DOC”), the Indiana State Prison (“ISP”), the State of Indiana, and several employees of ISP, after conducting the inquiry required by Indiana Code chapter 34-58-1. Smith raises three issues, which we consolidate and restate as whether the trial court properly dismissed his complaint. Concluding that the trial court erred in dismissing Smith’s complaint in its entirety, we reverse and remand. * * *Frank W. O'Connell v. Jennifer L. O'Connell - "Frank O’Connell (“Husband”) appeals the trial court’s order dissolving his marriage to Jennifer O’Connell (“Wife”). We affirm in part, reverse in part, and remand with instructions.
Conclusion. Although some of Smith’s claims against some of the named defendants may fail to state a claim upon which relief may be granted, we can discern no basis on which to dismiss the complaint in its entirety. We therefore reverse the trial court’s order dismissing Smith’s complaint and remand with instructions for the trial court to comply with Indiana Code section 34-58-1-3 and issue a new order stating which claims may and which claims may not proceed. Reversed and remanded.
Issues. 1. Whether the trial court abused its discretion in its division of the marital estate. 2. Whether the trial court abused its discretion in valuing the marital residence and ordering that the marital residence be sold.
In Procare Rehab Services of Community Hospital v. Janice S. Vitatoe , a 14-page opinion, Judge Crone writes:
Community Hospitals of Indiana, Inc. (“Community”), appeals from the denial of its motion to dismiss Janice S. Vitatoe’s complaint against ProCare Rehab Services of Community Hospital (“ProCare”) for lack of subject matter jurisdiction. We reverse and remand. * * *NFP criminal opinions today (6):
The parties do not dispute that Vitatoe’s original hamstring injury was accidental and arose out of and in the course of her employment with Community. Also, they do not dispute that the injuries that form the basis of Vitatoe’s medical malpractice claim were accidental. Citing McDaniel v. Sage, 174 Ind. App. 71, 366 N.E.2d 202 (1977), Community argues that those injuries arose out of and in the course of her employment and that therefore her medical malpractice claim against Community is barred pursuant to Indiana Code Section 22-3-2-6. * * *
Although neither McDaniel, Seaton, nor Crider is factually or procedurally on all fours with this case, taken together they stand for the proposition that, if an employee’s injury that arose out of and in the course of her employment is aggravated by treatment for that injury, regardless of where, when, by whom, and for how long the treatment was provided, the injury caused by the treatment shall be deemed as a matter of law to have arisen out of and in the course of her employment for purposes of the Act; as such, the employee’s exclusive remedy against her employer for the injury caused by the treatment is under the Act. * * *
Vitatoe claims that her situation is unique because “she was foremost a patient at the time of the injury, facing the same risks of medical negligence faced by any patient receiving rehabilitative treatment from Procare Rehab.” Appellee’s Br. at 11. Based on the aforementioned precedent regarding the dual-capacity doctrine and the aggravation of an employee’s work-related injuries, as well as the plain language of Indiana Code Section 22-3-2-6, we find this to be a distinction without a meaningful difference. Consequently, we reverse the denial of Community’s motion to dismiss Vitatoe’s proposed medical malpractice complaint for lack of subject matter jurisdiction and remand for further proceedings consistent with this opinion. We express no opinion as to the viability of Vitatoe’s claims against the remaining defendants. Reversed and remanded.
BRADFORD, J., concurs.
BARNES, J., concurs with separate opinion. [that begins] I concur with the majority’s analysis and agree that the outcome here is dictated by precedent. That does not mean that I believe such an outcome is logical or fair.
The proposition that merely because an injured employee is treated at a facility that has links to the employment site where the original injury was sustained, he or she is prohibited from bringing a separate action for neglectful or reckless care makes no sense to me.
Jodi Lynn Page v. Best Buy Company, Inc. (NFP) - "We fail to see how each tenant’s financial duty of contribution translates into a duty to control common area maintenance. Using such logic, Page would be able to recover against any tenant of the shopping center. As Page’s fall did not occur inside the Best Buy store or on the immediately adjoining sidewalk, it occurred in an area over which Trustco, not Best Buy, retained control. As such, the trial court properly entered summary judgment in favor of Best Buy."
Kelly Trucking Inc. v. Bradley S. Wilson, Indiana Dept. of Workforce Development, et al (NFP) - "Given the findings of fact, we conclude the Board’s determination that Wilson was not terminated for just cause is reasonable."
Nicholas L. Georgakopoulos v. Elizabeth A. Coit (NFP) - "Georgakopoulos waived the issue of child support modification by not properly raising it before the trial court. Coit has not established that her attorney fees for the custody modification were associated with an intentional violation of the settlement agreement modification; therefore, she has not shown that the trial court erred by denying her attorney fee request. We affirm."
In Old Paths Baptist Church v. Washington County Health Department et al. (NFP), a 9-page opinion, Judge Bailey writes:
Old Paths Baptist Church (“Old Paths”) appeals the dismissal of its challenge to the constitutionality of Indiana Code Section 16-20-1-25. We affirm.ILB Note: The ILB counts at least three recent cases from Washington County re the legality of inspections by the health department based on complaints of sewage released to the ground. They all seem to come down to: "IC 16-20-1-23 should be interpreted to require that the WCHD must obtain judicial permission prior to conducting a health inspection, unless there is permission or exigent circumstances."
Issue. Old Paths presents a single issue for review: whether the trial court erroneously dismissed Old Paths’ claim that Indiana Code Section 16-20-1-25 is unconstitutional because an individual or entity targeted for a suspected health code violation must submit to an administrative search based upon hearsay or be subject to criminal penalties.
Facts. The instant appeal involves the latest in a series of legal proceedings prompted by the efforts of the Washington County Health Department (“the Health Department”) to inspect property of Old Paths and its pastor, John Lewis (“Lewis”), for alleged sewage disposal violations, and the stance of Old Paths and Lewis that entry onto private land must be preceded by permission, a warrant, or exigent circumstances. Consistent with this position, Lewis first challenged the constitutionality of Indiana Code Section 16-20-1-23 and Old Paths now challenges the constitutionality of Indiana Code Section 16-20-1-25. * * *
As best we can discern its argument, Old Paths asserts (notwithstanding prior stipulations to the contrary) that Indiana’s statutory scheme governing local health departments is void and cannot be applied in a constitutional manner. According to Old Paths, this is so because a health code inspector privy only to a hearsay allegation may conduct a search of private land and the party to be searched has no recourse. * * *
At the trial in the instant matter, Old Paths and the Health Department submitted a joint stipulation that Indiana Code Section 16-20-1-23 could be constitutionally applied (specifying judicial permission, permission from the property owner or exigent circumstances). After raising the constitutionality of Indiana Code Section 16-20-1-25 (when read together with Indiana Code Section 16-20-1-23) as a defense to the counterclaim against it, Old Paths made the following representation in open court on the first day of trial: “if he does it [the search] constitutionally and has proper probable cause, we’re going to be law abiding citizens and we’ll not object.” (Tr. 9.) Thus, Old Paths conceded that Indiana Code Section 16-20-1-25 could be applied in a constitutional manner.
Sheryl Crowder Taylor v. David Taylor (NFP) - "Sheryl Crowder Taylor (“Wife”) challenges the trial court’s denial of her motion for attorney’s fees pursuant to the dissolution of her marriage to David Taylor (“Husband”). We affirm.
"Issues. 1. Whether the trial court erred when it denied Wife’s motion based upon the terms of the parties’ mediation agreement. 2. Whether Wife’s challenge to the trial court’s bifurcation of the dissolution action is subject to appellate review."
Troutwine Estates Development Co., LLC, Daniel Jordan, et al. v. Comsub Design and Engineering, Inc. (NFP) - "Following our remand of this case to the trial court with instructions to enter more specific findings, Troutwine Estates Development Company, LLC (“Troutwine”), Daniel Jordan (“Jordan”), Michael D. Jordan, and Mastermark, Inc. (“Mastermark” and, collectively, “the Developers”), challenge the sufficiency of the finding supporting the imposition of individual liability on the Developers in favor of ComSub Design and Engineering, Inc. (“ComSub”). We remand once again with instructions to enter more specific findings. * * *
"We agree with Troutwine and the Developers that the trial court’s finding is actually a conclusion unsupported by any factual findings from the evidence upon which it might have relied in determining that Troutwine was the Developers’ alter ego. In other words, the trial court’s finding is inadequate to support its judgment. The absence of specific factual findings is particularly vexing given Judge Robb’s observations in the previous appeal regarding the “highly fact-sensitive inquiry” required to determine whether to “circumvent the protections of a limited liability corporation[.]” Troutwine, 854 N.E.2d at 900. In sum, we must remand once again with instructions to enter specific factual findings regarding the basis for imposing individual liability on Daniel Jordan, Michael D. Jordan, and Mastermark.. Remanded."
NFP criminal opinions today (11) [Link to Cases]:
Law - E-mail has changed the legal landscape
NPR's Morning Edition had an interesting story this morning titled "E-Mail, the Workplace and the Electronic Paper Trail" by Ari Shapiro. It began:
E-mail and other electronic communications have dramatically changed the contemporary legal landscape. By some estimates, more than 90 percent of the cost of a lawsuit today can come from sorting through e-mails and other electronic documents to determine which ones are relevant to the case.Listen to it (or read it) here. Another quote:
The need to sort through those piles of documents has had a significant impact on the lives of recent law school graduates.This is part of a series by NPR on The E-Mail Age.
"Today a young person graduating from law school and joining a large firm in one of our major cities can look forward to perhaps three or four years of doing nothing but sitting in front of a computer screen reviewing e-mail and other electronic documents for litigation," Withers says.
Environment - More on: Gary Post-Tribune examines IDEM calls to BP
The Indiana Department of Environmental Management has released more itemized phone records for its managers. But the agency still refuses to reveal whom its top air quality boss called for five days around a public hearing on BP Whiting's air permit in Hammond on March 14.The story concludes:
The Post-Tribune requested itemized phone records for IDEM's Assistant Commissioner of the Office of Air Quality, Dan Murray, from Feb. 1 through March 20. IDEM previously claimed not to possess itemized cell phone records for Murray for the month around the hearing although IDEM did have records up to Feb. 21. The agency said it only gets itemized bills when Murray goes over his minutes.
The Post-Tribune filed an official complaint with the Indiana Public Access Counselor on May 27, stating IDEM refused to disclose public information. IDEM then found the additional records with help from the Office of Technology, which IDEM says keeps the records.
"Such records are not received, maintained or kept by IDEM in the ordinary course of its business," Robert Keene, IDEM's assistant commissioner of the Office of Legal Counsel and Enforcement, said June 12 in a response to the Post-Tribune's complaint.
"The Agency has not denied access to any records that it possessed or knew to exist and has now obtained and delivered all requested records (in) respect to Dan Murray."
The newly released records cover Feb. 21 through March 12 and March 19 through 20 -- nearly the full month for which IDEM previously said it did not have records. But the agency has still not released records for March 13 through March 18 -- the day before the hearing through two work days after. Some of the released records appear to have been redacted.
Environmentalists have speculated that the extensive correspondence between IDEM and BP shows the two collaborated to stack the hearing with supporters of the permit.
Public Access Counselor Heather Neal is due to issue her official opinion on the public records complaint by June 26.
Ind. Gov't. - More on: Calumet Township Trustee v. Twp. Board disputes continue
A Lake County judge upheld a nine-year-old decision by her predecessor last week that allows the Calumet Township Board to hire its own legal adviser.
Judge Elizabeth Tavitas wrote that a motion for relief, filed by Trustee Mary Elgin in October 2006, was not filed within a reasonable amount of time.
"All persons and entities have the right to hire legal counsel as needed," Tavitas wrote.
The ruling could bring an end to a long and bitter feud between Elgin and her board, but Elgin has said she would appeal any unfavorable ruling.
Ind. Courts - "Mayor owes $16,000 in legal costs from recount proceedings"
Some who read the ILB's June 14th entry headed "COA will hear oral arguments July 8 in dispute over Terre Haute mayor's office" may have wondered about the status of the controversy over the Muncie mayor's office. See this entry from Feb. 8th for background.
Today Nick Werner of the Muncie Star Press reports:
An election-related lawsuit has cost Mayor Sharon McShurley $16,000 in attorney fees, which she hopes to repay through some sort of fundraiser.
"I've been so busy doing things in the mayor's office that I haven't had time to address any of this," McShurley said Tuesday.
Following the December recount, Democratic mayoral candidate James Mansfield filed a lawsuit against McShurley seeking a special election in an effort to remove her from office.
A judge dismissed the lawsuit, though Mansfield earlier this spring appealed the decision to a higher court, and the appeal remains pending.
Ind. Law - "West Lafayette will test red light cameras"
Recall the recent ILB entries headed "Red light cameras legal?" - the most recent is from June 17th - about Hammond's new red light cameras ordinance?
Today the Lafayette Journal-Courier's Michael Malik reports:
West Lafayette is studying whether to add red light cameras at several intersections in the city.
West Lafayette Police Department Chief Jason Dombkowski said a company called Safe Speed LLC-Intelligent Traffic Systems will install test cameras at two intersections next week.
"We need to study the data and to see what type of problems we have," Dombkowski said.
The West Lafayette Traffic Commission will likely discuss the issue at its meeting today. * * *
"We are not looking to install red light cameras to increase revenue for the city," Dombkowski said.
"If we end up going down the road of looking at red light cameras for installation at these intersections, it will be to address safety and traffic concerns at some of our heavy intersections that have pedestrian traffic as well."
The West Lafayette City Council would have to pass a local ordinance to do it, since Indiana is not one of the 25 states that has authorized video enforcement.
In 2007, 129 citations and 381 warnings were issued in West Lafayette for running a red light, Dombkowski said. Currently, the fine for running a red light is $150; that will increase by $5 starting July 1.
Lafayette is also considering adding red light cameras to certain city intersections.
Ind. Courts - Yet more on "New judge's hires stir up controversy"
The Clark County Council has scheduled a special meeting next week to reconsider its approval of controversial personnel moves by newly appointed Circuit Judge Abe Navarro.
And county Republican Chairman David Buskill, whom Navarro offered to hire as court administrator, said yesterday that he won't accept the job.
Council President David Abbott said members will meet at 5 p.m. Monday to rescind their June 9 vote allowing Navarro to pay Buskill and another new male staff member at least $6,000 more than women holding similar positions in the county's other three courts.
"We made a mistake, and we're going to correct it," Abbott said yesterday. "We voted without really taking the time out to think about the effect on the rest of the courthouse."
Navarro did not return calls yesterday seeking comment on the council's meeting.
But Buskill said criticism of the judge's moves was politically motivated.
"I think with all the political games being played, just to take myself out of that situation was the best thing for the judge and the best thing for the party and myself," he said.
Law - Kentucky state government changes policy on blogs
From the Lexington Herald-Leader, a brief report today:
A political blogger whose Web site was blocked on state government computers by former Gov. Ernie Fletcher's administration has settled his First Amendment lawsuit against the state. Mark Nickolas, who operated the blog BluegrassReport. org, has agreed to drop his federal lawsuit against the state. State government is agreeing in the settlement, among other things, to block access to blogs based only on a "viewpoint neutral standard" that's equally applied. The Fletcher administration blocked state employees from having access to political blogs after Nickolas criticized the former governor.[More] It turns out the Joseph Gerth of the Louisville Courier Journal has a more extensive story this morning, including the following:
The state has paid $10,000 to settle a lawsuit filed after the administration of former Gov. Ernie Fletcher blocked access to blogs on state computers.
The state also agreed to treat blogs as it does other news sources, including newspapers and Internet sites operated by television stations.
That restates a policy put in place in March by Gov. Steve Beshear.
"In the future, blogs can't be blocked just because they are blogs," said Greg Beck, staff attorney for the non-profit group Public Citizen, which filed the suit on behalf of blogger Mark Nickolas.
The Fletcher administration began blocking blogs -- along with Internet sites operated by hate groups, pornographers and casinos -- two years ago this month. The administration said that it didn't want state workers reading the blogs on state time. * * *
Jeff Mosley, general counsel for the Finance and Administration Cabinet, said the language agreed to in settling the suit is consistent with the policy under Beshear.
Mosley said that the state didn't acknowledge violating any laws when it blocked the Web sites and that the $10,000 it agreed to pay Public Citizen was "a nuisance value. … We were spending a lot of time dealing with it, and for a lot of reasons it just made sense to settle it."
Ind. Law - "Debriefing on the ISBA Solo & Small Firm Conference"
William D. Henderson, Associate Professor of Law, Indiana Univ. School of Law, Bloomington, and one of the editors of the Legal Profession Blog, had an entry last week on the recent ISBA Solo & Small Firm Conference. You may want to Prof. Henderson's entire entry, which concludes:
[I]t is likely that we law professors undervalue the importance of commonsense and practical judgment in building a successful career. (How many of us could meet a payroll twice a month? What a daunting prospect!) Law schools supposedly teach students how to think like a lawyer, but this often takes the form of an appellate lawyer who manipulates the law under a fixed set of facts--with the most proficient having a shot at becoming a law professor. But in my observation, this is a extremely truncated view of how lawyers add value to clients and ultimately earn a living.
In sum, I want to go on record with my admiration of many solo & small firm lawyers who juggle a wide array of difficult client problems with such good humor and grace. They also provide concrete evidence that professionalism and integrity are the cornerstones of successful and happy careers. That is a message I hope to convey to my students. I am immensely grateful to the ISBA Solo & Small Firm Conference for once again giving me the opportunity to learn more about the lives of lawyers.
Tuesday, June 17, 2008
Ind. Decisions - Supreme Court posts employment decision late this afternoon
In Indiana State University v. William C. LaFief and IDWD (Review Bd.), a 6-page, 3-2 opinion, argued Feb. 22, 2008, Chief Justice Shepard writes:
The issue is whether a university professor who agreed to a fixed-term employment contract was entitled to unemployment benefits upon the non-renewal of his contract. We hold that the professor was not voluntarily unemployed and is entitled to benefits. * * *
In this case, the parties’ dispute centers on whether LaFief was disqualified under Ind. Code ch. 22-4-15. Indiana State contends that because LaFief agreed to a fixed-term employment contract, he became voluntarily unemployed at the expiration of that contract term. We hold otherwise. * * *
LaFief was employed by Indiana State during the 2005-06 academic year. He was not permitted to continue this employment during the next academic year. The fact that LaFief had warning that his employment could terminate upon the contract’s expiration does not change the fact that at the end of the year he became unemployed. The termination of his employment was no more voluntary than the termination of employment of an employee at will, who is presumably on notice that his employment could terminate at any time. * * *
This holding does not alter the general rule that employees who contractually agree to mandatory vacation periods or temporary shut downs are not eligible for unemployment benefits so long as they have reasonable assurance that they will continue to be employed after the mandatory vacation period or temporary shut down ends. * * *
For the above reasons, we affirm the Review Board’s decision.
Sullivan and Boehm, JJ., concur.
Dickson, J., dissents with separate opinion, in which Rucker, J., concurs. [which begins] Unemployment benefits are contingent upon a person being terminated from or leaving employment. In expressly entering into a fixed-term employment contract, Professor LaFief voluntarily agreed that his employment would terminate at the conclusion of the 2005-2006 academic year. His employment with Indiana State University thus ended when the contract expired. After the end of the 2005-06 academic year, there was no employment to leave. Before the contract ended, that is, during the time he was employed, LaFief was not discharged, nor did he leave his employment, and thus he did not become eligible for unemployment benefits.
Ind. Decisions - Court of Appeals issues 1 today (and 11 NFP)
For publication opinions today (1):
In Damen Holly v. State of Indiana , a 10-page opinion, Judge Vaidik writes:
Damen Holly drove a car that was registered to someone whose driver’s license was suspended. A police officer conducted a license plate check and learned that the car’s owner had a suspended license and pulled Holly over. During the course of the stop, marijuana was found in the car, and Holly was subsequently convicted of possession of marijuana as a Class A misdemeanor. We determine that the officer lacked reasonable suspicion to stop Holly and that the trial court abused its discretion in admitting the marijuana into evidence. Because the evidence is otherwise insufficient to support Holly’s conviction, we reverse. * * *NFP civil opinions today (1):
The question before us is whether Officer Ross’s knowledge that the registered owner of the vehicle driven by Holly had a suspended license created a reasonable suspicion that criminal activity was afoot when he saw the vehicle being driven. We conclude that it did not. * * *
A police officer’s knowledge that an owner of a vehicle may not lawfully drive creates reasonable suspicion of criminal activity only where the officer has reason to believe that the owner is actually driving the vehicle. In a case such as this where the officer has observed absolutely nothing that would indicate that the driver of the vehicle is the owner and the officer has no reason to believe that the vehicle is stolen or that a law is otherwise being broken, the officer lacks objective justification for conducting an investigatory stop. * * * Thus, we conclude that Officer Ross did not have reasonable suspicion that criminal activity was afoot when he conducted an investigatory stop of the vehicle driven by Holly. The evidence collected as a result of this stop, including the marijuana seized during the search and Holly’s subsequent admission that he owned the marijuana, was therefore inadmissible under the Fourth Amendment, and the trial court abused its discretion in admitting it. The remaining evidence is insufficient to support Holly’s conviction for possession of marijuana, and his conviction must be reversed.
Lonnie Garner, Jr. v. Tracy Tomkiewicz (NFP) - "Garner is incarcerated at Wabash Valley Correctional Facility, where Aramark provides food services. Garner and other inmates work in the kitchen facilities operated by Aramark, but none is employed by Aramark. Instead, the Indiana Department of Correction (“DOC”) selects, assigns, and compensates the inmates for their services. Garner sued Aramark and its regional vice president, Tomkiewicz, for $4176 in wages and damages. The trial court granted the Defendant’s Motion for Summary Judgment. Garner now appeals. * * *
Garner designated no evidence to suggest that Aramark or Tomkiewicz owed him anything. The trial court did not err in granting the Defendant’s Motion for Summary Judgment."
NFP criminal opinions today (10):
Ind. Courts - "County juvenile court shows off pioneering mental health diversion program"
Vicki Urbanik of the Chesterton Tribune reported yesterday in a long story that begins:
Juvenile court officials from throughout Indiana gathered Friday to learn more about a Porter County program aimed at addressing the mental health needs of juvenile offenders instead of requiring that the kids go through the normal court process.
Porter County began the program – known as the Mental Health Diversion Project – in late 2005, after Porter County Circuit Court Judge Mary Harper and other juvenile officials learned about a similar program in Santa Clara County, California.
Porter County Chief Juvenile Probation Officer Amy Beier said officials were interested in starting a diversion program here after seeing a significant number of juveniles who seemed to be dealing with mental health issues. Months into probation, she said, officials could see things unravel with the kids, later forcing them to play “catch up” in terms of the best way to handle the cases.
At a seminar on Friday in Valparaiso, juvenile court officials heard the details of how the program works in Porter County. The audience members included representatives from five other Indiana counties selected in a pilot program for juvenile assessment and treatment: Lake, Johnson, Bartholomew, Clark and Marion.
Under Porter County’s project, all juveniles referred to the Porter County Probation Department or placed in detention undergo a mental health screening. If officials suspect a mental health issue, either because of that initial screening or due to interviews, the juvenile could be referred to the diversion project.
A team of officials -- including the prosecutor -- reviews each case before deciding if a juvenile should be accepted. The prosecutor has complete veto power: If he wants to proceed with charges, then the juvenile is not placed in diversion.
Kids who are ultimately accepted receive treatment through one of the two providers, the Family & Youth Services Bureau or Porter-Starke Services. In addition, they and their families meet regularly, at least on a weekly basis, with Porter County Juvenile Probation Officer Kate Sorenson.
Because the kids are in a diversion program, their case is not like a typical juvenile offender’s. There is no court case opened, and the kids who complete the program don’t have a juvenile record.
Ind. Courts - Still more on: Special prosecutor named in attorney's fatal DUI case
Updating this entry from Oct. 27, 2007, the Indianapolis Star has a brief report today:
A recent ruling by a Marion Superior Court judge likely will result in the dismissal of one of two major charges against a former state attorney accused of driving drunk before a fatal wreck.
Terry Record, 28, is set to go on trial July 28 on multiple counts of operating a vehicle while intoxicated and reckless homicide. He is accused of drinking heavily at a strip club in May 2007 before a crash that killed the other driver, Jimmy R. Cash, 46.
Special Prosecutor Barry Brown later filed a new charge of operating a motor vehicle with marijuana detected in the blood, causing death, a Class B felony.
But Friday, Judge Grant Hawkins granted a defense motion to suppress a chemical test that detected signs of marijuana in Record's blood. He ruled a new search warrant was required to perform the test. Brown said he has not decided whether to dismiss that charge or appeal the ruling.
Environment - More on: ELJ to set schedule for BP
INDIANAPOLIS -- Three appeals of BP Whiting's air permit won't get hearings until at least June next year. Meanwhile, construction at the refinery will continue without challenges.Patrick Guinane of the NWI Times has this story. He notes:
At a prehearing conference in Indianapolis on Monday, BP, a coalition of environmental groups and the Indiana Department of Environmental Management agreed to conduct hearings in June 2009.
Environmental law judge Mary Davidsen, from the Office of Environmental Judication, will hear the cases. No date has been set. * * *
In exchange for an expedited time line for the hearings, a coalition of environmental groups agreed to drop their attempt to halt construction at the refinery. The full process can take three to four years. Instead, the parties will now go straight to exchanging information in preparation for the hearing next summer.
"Normally, these things can go on for years and years. That's actually fairly common," said Ann Alexander, senior attorney with the Natural Resources Defense Council, which represents Save the Dunes. "We were rushed through the permit process at lightning speed. We're going to have to take the time now to do what IDEM rushed us through."
The outcome of the appeal will determine whether BP will be required to install additional pollution control equipment.
Valparaiso attorney Kim Ferraro, who is representing Save the Dunes and the Hoosier Environmental Council, said the environmental groups challenging the air permit still are discussing whether to consolidate their appeals.
In the meantime, the appellants agreed to cancel three hearings scheduled for next month.
Mary Davidsen, the environmental law judge handling the case, said she will set aside two weeks for trial in June 2009 and another two weeks a couple of months later as a hedge against potential delays. The parties said they already have more than 9,000 pages of documents to parse.
Ind. Courts - "Court hears political robo-call case"
Oral arguments were heard yesterday by the Supreme Court in the "robo-call" case, State of Indiana v. American Family Voices, Inc. et al. (Here is a long list of earlier ILB entries.) Meagan Ingerson of the Indianapolis Star has this story this morning. Some quotes:
The legal debate Monday over a ban on prerecorded phone calls focused on the law's intricate details, as both sides told the Indiana Supreme Court this was a straightforward case of how to interpret a statute.The New York Sun has an editorial today about yesterday's oral arguments. The New York paper definitely takes a position:
But justices and attorneys also referred to a deeper constitutional issue: privacy rights versus freedom of speech.
"We don't think that the privacy rights of Indiana's citizens in their homes should be overridden by the free speech of telemarketers," Attorney General Steve Carter said after arguments in Terre Haute on Monday. "There are many other ways that political speech can be delivered. This is just one small degree of regulation and of a particular type of technology." * * *
The case centers on the 1988 Indiana Autodialer Act, which limits the use of automated phone calls. The statute mandates that a live operator first disclose the source and purpose of the call, as well as any goods or services being promoted. * * *
Much of the debate revolved around whether the law applied to political groups. Justice Frank Sullivan questioned whether politicians would have created a more specific law to regulate themselves.
"If they wanted to regulate campaign practices, it seems to me they would do it more explicitly than in silence in a robo-call statute, right?" Sullivan asked Solicitor General Thomas Fisher.
Fisher told justices the law aims to protect privacy. Because the legislature did not to create an exception for political calls, the statute applies to all callers delivering all messages, he said.
But Edward Delaney, representing defendant Jim Gonzalez, said the statute clearly was intended to regulate only commercial speech, given that it defines the purpose of the call as trying to solicit the purchase of goods or services.
Gonzalez, based in California, helped prepare the scripts and placed the calls.
"There is no contention that a political candidate is promoting goods or services," Delaney said.
Both the Republican and Democratic parties filed briefs opposing the lawsuit; a circuit judge ruled in favor of Family Voices, and Mr. Carter appealed to the state Supreme Court, where arguments were heard yesterday.
In a question posed to Edward Delaney, a lawyer representing Family Values before the court, Justice Dixon demonstrated a fundamental misapprehension of the issue. "This statute," the Indiana Supreme Court justice said, "seems to be not about political speech or commercial speech, but about the sanctity of one's home ... the right to have peace and quiet and tranquility in their home." One might as well ban political leaflets delivered to doorsteps and mailboxes or door-to-door campaigning by politicians. Or television commercials transmitted to home-based televisions. Funny, we checked the Bill of Rights, and found a protection for free speech, but none, other than the one against unreasonable search and seizure, guaranteeing quiet and tranquility in the home. If there were such a protection, no child would be safe, never mind robo-calls.
The chairman of the Democratic Party of Indiana, Dan Parker, provided a more accurate characterization of the issue before the court, which was quoted by the Associated Press. "It's the right of a candidate to try to get their message out before an election," he said.
There are plenty of natural consequences for politicians who abuse this tactic. An irritated person might vote for the other guy out of spite. An effort by Senator Feinstein to eliminate such calls between 8 p.m. and 9 a.m. ignores this logic; we searched the First Amendment and couldn't find the language that says the constitutional guarantee of free speech only applies between 9 a.m. and 8 p.m. The right move for the Indiana justices is to enforce the First Amendment. If Attorney General Carter can't stand the phone calls let him turn down the volume of his ringer, or take the phone off the hook, or vote only for political candidates who forswear robo-calls. But let him not try to silence the sound of democracy in action.
Ind. Law - Even more on "Red light cameras legal?"
HAMMOND | The State Board of Accounts and the Indiana Supreme Court will be putting the new red light camera ordinance under the legal microscope.
State Board of Accounts supervisor Charles Pride said his office received a copy of the ordinance June 9 while he was en route to Evansville to attend the annual conference of Indiana's clerks and treasurers.
Cameras take digital photos of vehicles running red lights and their license plate numbers. Tickets are issued through the mail by the private company operating the system after a review by police. By ordinance, fines of $100 will be assessed and initially treated like parking tickets unless contested, when they become moving violations.
"We are just back from the conference," Pride said Monday. "The information will be given to our attorney to be researched, and it also will probably go before our three-member board before issuing our audit position on it. It's a first for us, and we want to make sure we do our homework on it. * * *
"One of the things we are questioning is that those cases will never go to court," Pride said. The city wants the violations to be treated as infractions like a parking ticket payable through the city clerk's office.
"It seems to us to be a moving violation," he said. "If you're going through a red light, you're operating a vehicle. That's one of the main things we're going to be looking at."
[Hammond City Clerk Robert Golec] on Monday said Pride questioned the ordinance's legality as did Mary DePrez, director and counsel of trial court technology for the Indiana Supreme Court. "She immediately wanted a copy to review with the Supreme Court," he said. "She did not think it was possible either. And it did not sit well with the BMV." * * *
Golec also is troubled by an omission in the body of the ordinance.
"I still have not been able to find anywhere in the ordinance where (running a red light) is made a non-moving violation," he said.
Ind. Courts - Still more on "New judge's hires stir up controversy"
Updating this entry from yesterday, Grace Schneider of the Louisville Courier Journal reports today under the headline "Clark council may block court hirings: Colleagues assail Clark judge's action." Some quotes:
The Clark County Council signaled yesterday that it may reverse its decision earlier this month to allow new Clark Circuit Judge Abe Navarro to hire two Republican Party members to replace two fired employees. * * *
Council Chairman David Abbott said that council members agreed that they should hold a special meeting to vote to rescind their approval of the positions. "All of the council wants to get this behind them," Abbott said. The situation "just gives us a black eye." * * *
The council approved Navarro's plans to pay Snelling and Buskill salaries beyond the county's standard pay scale, $30,000 and $35,727, respectively. Some $6,175 of the court administrator's salary is expected to come from the circuit court's probation-user fees.
When asked about the higher salaries last week, Navarro told The Courier-Journal that the men would have a heavier workload, and that justified the additional pay. He said a redistribution of some felony drug cases into his court and other courts has increased the staff's burden.
The other judges, all Democrats, have vigorously protested the actions. Judge Vicki L. Carmichael of Clark Superior Court No. 1, Judge Ceil Blau of Superior Court No. 2 and Judge Steven M. Fleece of Superior Court No. 3 all signed a three-page letter warning that the council's decisions could expose the county to costly litigation over Navarro's handling of the jobs and the probation fees.
The judges questioned Navarro's reasons for needing more money for the jobs, writing that circuit court under Donahue had combined the additional drug cases into his office's workload for the last 18 months, with no unusual burden.
The judges' letter yesterday said Navarro's hiring of Buskill and Snelling violates the judicial code of conduct prohibiting party activities and employing a political party's central committee member.
"The fact that Republican County Chairman Buskill is the person who recommended Judge Navarro for the appointment over fellow Republican candidate Jeremy Mull gives rise to the appearance of an improper political payback," the judges wrote.
They also said the county is at risk of "opening a Pandora's box" by spending probation fees on a staff salary after the Indiana Supreme Court ruled last fall that Clark County must restrict its use of such fees to probation-related services.
They described Navarro's shake-up as a "poorly disguised political purge" that may violate federal and civil rights laws and the state's judicial code of conduct.
They also indicated they were ready to notify state Supreme Court judicial disciplinary officials if Navarro tried to give Buskill the court administrator's position.
Monday, June 16, 2008
Ind. Decisions - Two today from the 7th Circuit
In McCarthy v. Astrue, Comm. of SS (SD Ind., Judge Young), a 7-page opinion, Judge Bauer writes:
McCarty filed a complaint in the United States District Court for the Southern District of Indiana, which issued a final order dated March 9, 2007, affirming the ALJ’s ruling, finding that there was substantial evidence in the record to support the ALJ’s findings. Pursuant to Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure, McCarty had sixty days to file a notice of appeal.Note from ILB: Here is a link to 7th Circuit briefs in the above case.
Sixty-three days later, on May 11, 2007, McCarty filed a notice of appeal. On May 16, 2007, this Court asked McCarty to file a memorandum explaining why this case should not be dismissed for lack of jurisdiction and to explain the status of any motion for an extension filed with the district court.
On June 5, 2007, McCarty filed a motion with the district court requesting a three-day extension to file her notice of appeal and supportive memorandum (along with a suggested order). That memorandum explained that McCarty’s attorney misunderstood paragraph eleven of the Administrative Policies and Procedures Manual for the Southern District of Indiana, which addressed service of electronically filed documents, to mean that he had an additional three days to file a notice of appeal, as provided by Fed. R. Civ. P. 6(e). On June 8, 2007, the district court granted the extension by signing the suggested order submitted by McCarty.
On June 20, 2007, the Commissioner filed a Motion for Reconsideration and supporting memorandum with the district court. McCarty filed a memorandum in opposition to the Commissioner’s motion, and on August 10, 2007, the district court denied the motion for reconsideration. This appeal ensued. * * *
We begin (and end) with our appellate jurisdiction. A timely notice of appeal is a prerequisite to appellate review. * * *
We find that the district court abused its discretion in granting McCarty’s motion for an extension of time to file a notice of appeal. While the district court was correct in considering the prejudicial effect of the delay, it was incorrect in determining that the absence of any harm meant that the attorney’s mistake was excusable. This Court has repeatedly noted that there is unlikely ever to be harm in the Rule 4(a)(5) setting, because the neglectful appellant has a limited time period to request relief—in this case, sixty days—hence there will never be a terribly long delay. * * *
The attorney’s understanding that Federal Rule of Civil Procedure 6(e) provided him with three extra days to file a notice of appeal is inexcusable. An unaccountable lapse in basic legal knowledge is not excusable neglect. * * *
Like the attorney in Guy, McCarty’s attorney is an experienced federal litigator, having thirty-nine years of experience and having argued before this Court at least a dozen times. McCarty’s attorney’s interpretation that the Administrative Policies and Procedures Manual for the Southern District of Indiana would dictate filings in this Court is also implausible. * * * This mistake amounts to inexcusable neglect, and the district court abused its discretion in granting McCarty’s motion for an extension of time to file a notice of appeal. We find the notice of appeal to be untimely; therefore we lack jurisdiction over McCarty’s appeal.
We hasten to add that even if we had jurisdiction over McCarty’s appeal, the district court properly found that the ALJ’s decision was supported by substantial evidence. McCarty’s appeal is dismissed.
In Elder v. Astrue, Comm. of SS (ND Ind., Judge Sharp), a 15-page opinion, Judge Kanne writes:
Dianna Elder applied for Disability Insurance Benefits and Supplemental Security Income (SSI), claiming that her fibromyalgia rendered her disabled as that term is defined by the Social Security Act (“the Act”), 42 U.S.C. § 301 et seq. The administrative law judge (ALJ) denied Elder’s claims in November 2004. After the Social Security Appeals Council (“Appeals Council”) declined Elder’s request for review, the district court affirmed the ALJ’s decision. Elder now argues that the ALJ’s decision was wrong; in Elder’s view, the ALJ erroneously concluded that her descriptions of the severity her ailments were not credible, and improperly evaluated the medical opinions of two of her treating physicians. We affirm.
Ind. Decisions - Court of Appeals issues 0 today (and 8 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
In Donald Baker v. Catherine Ipock (NFP), a 5-page opinion, Judge Bradford affirms the lower court's denial of Baker's petition to modify his child support obligation:
Baker claims that the trial court’s denial of his petition to modify his child support obligation was in error because his income, while incarcerated, is merely five dollars a month and therefore his fifty-dollar-per-week child support obligation is unreasonable. In support of his claim, Baker relies on Lambert v. Lambert, 861 N.E.2d 1176, 1177 (Ind. 2007), in which the Indiana Supreme Court held that a trial court “should not impute potential income to an imprisoned parent based on pre-incarceration wages or other employment-related income.” Baker’s reliance on Lambert, however, is misplaced.In Neil Smith v. Rachelle Liddil (NFP), a 4-page opinion, Judge Bradford writes:
Neil Smith appeals from the trial court’s order following a bench trial. Specifically, Smith contends that the trial court erred in granting Rachelle Liddil’s complaint seeking specific performance of a real estate purchase agreement and denying his counterclaim for foreclosure. We affirm. * * *NFP criminal opinions today (6):
In a civil case in which the finder of fact returns its verdict for the plaintiff, reversal is proper only where there is no evidence or reasonable inference from the evidence on an essential element of the plaintiff’s case. Here, the evidence supporting the trial court’s determination is Liddil’s testimony that Smith “was paid in full.” Additionally, the Final Report and Accounting provided by Liddil established that all of her creditors, including Smith, had been paid. In light of the evidence supporting Liddil’s claim that Smith had been paid in full, we conclude that the judgment of the trial court was not erroneous.
Courts - "Judges are banning terms such as 'rape' and 'victim' as prejudicial to defendants"
Tresa Baldas of The National Law Journal has a lengthy story today that reports:
Call it the age of the Loaded Word. A steadily increasing number of courts across the United States are prohibiting witnesses and victims from uttering certain words in front of a jury, banning everything from the words "rape" to "victim" to "crime scene."
Prosecutors and victims' rights advocates nationwide claim the courts are going too far in trying to cleanse witness testimony, all to protect a defendant's right to a fair trial. Concerns and fears over language restrictions have been percolating ever since judges in Nebraska and Missouri last year banned the word "rape" during rape trials.
But that was just the tip of the iceberg, claim critics, who say courts telling witnesses what words they can and can't say is a much larger trend than they had realized. In addition to "rape," courts also have banned the terms "homicide," "drunk," "victim," "murderer," "killer" and "crime scene."
"I've gotten a flood of e-mails saying, 'Wow, you should see the number of times that this is happening in our jurisdiction,' " said Joshua Marquis, vice president of the National District Attorneys Association, who strongly objects to censoring witnesses, especially victims. "It's absurd. It's dangerous. And it's growing."
Ind. Courts - More on: Judicial Nominating Commission to consider St. Joseph vacancy
Any St. Joseph County lawyer who wishes to be considered by the Governor as a candidate for an upcoming judicial vacancy on the St. Joseph Superior Court must act promptly to apply and provide background information to the St. Joseph Superior Court Nominating Commission.Check the release for more information.
That vacancy will be created when the Honorable William T. Means retires on September 30, 2008.
The Indiana Code provides that the vacancy must be filled by appointment by the Governor of one of up to five nominees submitted by the St. Joseph Superior Court Nominating Commission, which is chaired by Indiana Supreme Court Justice Frank Sullivan, Jr.
Ind. Courts / Ind. Gov't. - Corruption in Lake County
Both Northwest Indiana newspapers have stories today focusing on corruption in Lake County.
Joe Carlson of the NWI Times writes under the headline "Robert Cantrell was 45th conviction in political machine." The story begins:
If the public corruption conviction against Robert Cantrell holds up, Lake County Democrats will have lost the last of the three Bobs who once held sway over large swaths of their political life.The headline to Andy Grimm's story today in the Gary Post-Tribune is "Will new state attorney general change public corruption focus?." The story begins:
Former county Democratic Chairman Stephen "Bob" Stiglich died three years ago, and former East Chicago Democratic Mayor Robert "Bob" Pastrick was ousted from office by voters in 2004 after the state Supreme Court ruled his 2003 re-election too fraudulent to stand.
This month, East Chicago political operative Robert "Bob" Cantrell became the 45th Democrat convicted since 2001 in the Hammond U.S. attorney's office's Operation Restore Public Integrity. Cantrell is trying to get the case overturned on a technicality in a dispute that appears likely to drag on for months.
The federal cases come in addition to 45 convictions for voting crimes in cases filed in Lake County Criminal Court by the Joint Vote Fraud Task Force, which focused mainly on East Chicago Democratic voting irregularities in 2003 and included several incidents of vote fraud perpetrated by police and firefighters.
"Is this really, really the death knell for old-time politics?" asked political commentator and academic administrator Dan Lowery. "Only time will tell."
It's been a rough decade for public figures who've abused the public trust in Northwest Indiana.
Since 2001, more than 40 Northwest Indiana public figures have been convicted on corruption charges filed by the U.S. Attorney's Office, another 50-plus named in a racketeering lawsuit filed by the state attorney general.
But is change in the air?
After eight years, Republican state Attorney General Steve Carter, a Lowell native who made his racketeering case against former East Chicago mayor Robert A. Pastrick's Democratic machine a top priority, will leave office. The office will go either to Carter's top deputy, Greg Zoeller, or Democratic nominee Linda Pence, an Indianapolis attorney.
Environment - ELJ to set schedule for BP
Gette Laasby of the Gary Post-Tribune reports today:
A judge will likely determine today how and when three appeals of BP Whiting's air permit will proceed.
At a prehearing conference in Indianapolis today, environmental groups, the Indiana Department of Environmental Management and BP will suggest hearing schedules for the appeals. A judge from the Office of Environmental Adjudication, which reviews IDEM's permit decisions, will hear arguments and make a decision on how to proceed.
The Natural Resources Defense Council has argued that BP and IDEM failed to count flare and other emissions. Flares relieve pressure in the refining process. BP and IDEM have said the permit complies with state and federal regulations and will stand up to challenges. NRDC brought the case on behalf of several Northwest Indiana environmental groups and two Highland residents.
In two separate appeals, St. John resident and political activist Joseph Hero argued BP's emissions will adversely impact residents' health, and the Calumet Project of Hammond argued increased emissions will unfairly burden low income and minority communities.
At the prehearing conference, the parties will explore settlement possibilities, talk about facts of the case and disagreements, and set dates for future hearings. In the end, a judge will issue a decision about whether the permit complies with the law or any aspects have to be changed.
Environmentalists hope a recent decision by a U.S. Environmental Protection Agency appeal board will set a precedent that could aid their case. The board stripped ConocoPhillips of its air permit for the expansion of the company's refinery in Roxana, Ill., agreeing with environmentalists that air pollution from the refinery's flares was not being sufficiently controlled. ConocoPhillips and Illinois EPA are now back to the drawing board.
The parties are scheduled to talk about whether construction should be halted at three separate hearings -- July 1, 7 and 15.
Ind. Courts - More on "New judge's hires stir up controversy"
A staff shakeup by new Clark Circuit Court Judge Abraham Navarro, a Republican, has prompted an outcry from the county's other three judges, all Democrats, over allegations ranging from political conflicts of interest to age and sex discrimination.
The other judges say that female workers in the court's offices were fired, and that Navarro is replacing them with younger men -- including the chairman of the Clark County Republican Party -- who will be paid higher base salaries.
Navarro says the men will face a heavier workload that justifies the higher pay, a fact disputed by the other judges. The county's GOP chairman, David Buskill, calls the complaints nothing more than political sour grapes.
Navarro was appointed last month by Gov. Mitch Daniels to fill the seven months left in the term of Daniel Donahue, who retired.
On June 6, Navarro's fourth day in office, he fired two female court reporters with 24 and eight years of service, respectively.
He replaced one woman with Jeremy Snelling, the son of Republican Clark County Councilman Monty Snelling, and offered the redefined job of the other woman to Buskill.
Navarro also requested, and won approval from the County Council last Monday, to start the new workers at higher base salaries than similar female workers earn in the county's other three courts and offices.
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This Monday, June 16th:
1:00 PM - State of Indiana v. American Family Voices, Inc. et al - This case involves the attempted enforcement of the Indiana Autodialer Law, see Indiana Code ch. 24-5-14, by the State of Indiana against the Appellees. The Attorney General commenced an action against the Appellees in September 2006 in the Harrison Circuit Court. In February 2008, the court granted the Appellees' Motion To Dismiss the State's complaint. The State appealed the circuit court's order and sought immediate transfer of the appeal to the Supreme Court pursuant to Indiana Appellate Rule 56(A), which the Court granted. Attorneys for Appellant: Thomas M. Fisher, Julie A. Brubaker and Heather L. Hagan, Indianapolis, IN. Attorneys for Appellee, Jim Gonzalez: Edward O. DeLaney and Craig M. Blanchet, Indianapolis, IN. [Where: Indiana State University in Terre Haute, Indiana.]
Note: Check here for live oral argument link for this case only.
Note 2: The ILB has had a number of entries on this, the robo-call, case, plus the ILB has made the briefs available here.
This Thursday, June 19th:
11:00 AM - Michael Hill v. State - A jury found Hill not guilty of a Class A felony, attempted child molesting (that is, involving a child under fourteen years of age), see Ind. Code § 35-42-4-3, but found him guilty of a Class B felony of attempted sexual misconduct with a minor (that is, with a child at least fourteen years of age but less than sixteen years of age), see Ind. Code § 35-42-4-9. The Marion Superior Court entered a judgment of conviction for the Class B felony. The Court of Appeals reversed in an unpublished memorandum decision, Hill v. State, No. 49A02-0701-CR-110 (Ind. Ct. App. Oct. 23, 2007), vacated. [See ILB entry 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. Attorney for Hill; Todd Woodmansee of Indianapolis, IN. Attorney for State; Joby Jerrells of Indianapolis, IN. [Where: Indiana Supreme Court Courtroom]
Webcasts will be available here.
This week's oral arguments before the Court of Appeals that will be webcast:
This week's oral arguments before the Court of Appeals that will NOT be webcast:
Sunday, June 15, 2008
Ind. Courts - More on Supreme Court's case management system plans
Updating this ILB entry from May 11th on the status of the Supreme Court's case management system, the Court's working committee, JTAC, has posted this slideshow given at the May 1, 2008 Probate Officers Annual Meeting.
Particularly interesting to the ILB were two charts, on p. 5 and p. 12. The ILB has posted the two charts individually:
The ILB has obtained some supplemental information to help explain Chart #1, which is a color-coded map showing the CMS in use, by provider:
Blue = JTS from Computer Systems, Inc (CSI)Chart #2 shows the counties where the JTAC/Odyssey CMS is planned to be deployed during the next two years: DeKalb, Allen, Huntington, Hamilton, Marion, Clark, Harrison, Floyd.
Gray = antiquated or manual
Green = CourtView from Maximus
White = Gavel from Maximus
Red = custom system
Purple = MHI. May be a defunct company
Gold = JTAC/Odyssey system
Interestingly, the Phase 2 counties are not the same as the counties coded Gray in Chart #1 - the anitquated or manual counties. Nor do they include a number of counties I've been told may be in danger of losing their ability to effectively retain and manage case information - St. Joseph, Knox, and likely the eight purple counties.
A CMS is not the same as a network. The JTAC plan is to install its JTAC/Odyssey CMS in the Indiana counties over a long-term timetable, plus network them as they come on board. The JTAC network so far consists of Monroe County and two small claims courts in Marion County (the rest of Marion County is not on the schedule). The public access part of the JTAC network is here.
As I've posted before, Doxpop, a private Indiana company, already networks 136 courts in 45 Indiana counties. Looking again at Chart #1, Doxpop's network includes many CSI, Gavel, and a few custom CMS systems (Madison County, Allen County, and Anderson municipal). Vanderburgh County is to be added soon.
However, as detailed in earlier posts, including this one from March 30th featuring an editorial from the Evansville Courier & Press, the Supreme Court thus far has failed to authorize private vendors to share access to the data stream from the new Monroe County CMS, even though Monroe County until installation of the JTAC CMS had been a part of the Doxpop network. This has effectively "de-networked" the Monroe County courts from the 45-county Doxpop system, and moved it to the JTAC network which is currently comprised of Monroe Courts and two small claims courts in Marion County.
Ind. Law - "Misinformation about flood insurance leaves some with nothing"
That is the headline to a lengthy story today in the Terre Haute Tribune Star that begins:
TERRE HAUTE — When Denise Hutcheson tried to buy flood insurance for her home at 1433 S. Fruitridge Ave. last year, she was told she couldn’t because she didn’t live in a flood plain.Read in conjunction with this June 11th WTHR Indianapolis report by Rich Van Wyk headed "Misconceptions about flood insurance." Some quotes:
That incorrect information has cost her dearly. Because of last weekend’s severe rain and flooding, Hutcheson lost many possessions, and her home is now uninhabitable.
“My agent denied me flood insurance because I was not in a flood plain,” she said.
The tragic misconceptions over flood insurance extend to government, including the mayor of Columbus.Well, that story ends on a confusing note. It is perhaps cleared up in the Tribune Star story:
"They weren't in flood plain; they have no flood insurance," said Mayor Fred Armstrong.
"I talked to several families who talked or applied for flood insurance to be told they didn't need it or it wasn't available," said Gov. Mitch Daniels. * * *
The state is trying to get the word out, end the misconceptions and encourage more people to purchase flood insurance. It's requiring insurance agents to receive additional training on flood insurance.
Residents in 33 communities can't buy national flood insurance, because they haven't met federal requirements.
The fact is, anyone can buy federal flood insurance as long as they live in a community that participates in the National Flood Insurance Program, according to the Federal Emergency Management Agency Web site.Here is the FEMA list of Indiana communities participating in the National Flood Program. Here is the main FEMA flood information page.
Jeremy Weir, executive director of the Vigo County Area Planning Department, agreed there appears to be a lot of misinformation in the community with regard to flood insurance. To participate, a community must follow FEMA flood plain management guidelines, he said.
“We have a flood plain ordinance and we also do public outreach,” he said. Among other ordinance requirements, new construction in a flood plain must be elevated.
When communities participate, FEMA does require reasonable mitigation of flood risks including construction and maintenance of levees to FEMA specifications, restrictions on building in flood hazard areas and maintenance of drainage ways, said Scott Rusk, a real estate appraiser who has dealt with flood insurance for the past 16 years as part of the appraisal process.
He’s concerned about the misinformation that exists as well.
“I shudder to think of how many people asked about flood insurance and were told by their agents that they could not get flood insurance, but actually could have been insured and now have lost everything because their agent was either misinformed, or just too lazy to do the paperwork for the small commission,” Rusk said.
Ind. Gov't. - "Department of Local Government Finance at the center of property tax upheaval"
That is the headline to this long and fascinating opinion piece today in the Fort Wayne Journal Gazette, written by Karen Francisco. Just a sample:
One of the agency’s highest-profile missteps was on display last week, when the commissioner backed off on a proposed assessment rule change that local officials said would have shifted the property tax burden from businesses to homeowners. Earlier, in proposing the change and in determining there would be no financial impact, the agency had not relied on data, studies or analyses.Here is the Kelly story referenced, from June 8th, headed "Change in assessment abandoned."
So assessing officials were in an uproar when Allen County Assessor Stacey O’Day produced data to the contrary: The DLGF proposal would decrease the county’s assessed valuation by $219 million.
Musgrave, commissioner since last July, told The Journal Gazette’s Niki Kelly that the change was “the right move, but this might not be the right time.”
Courts - "A lesson for every Internet user: Nothing is private"
An editorial today in the Seattle Times begins:
THE roiling water in which Judge Alex Kozinski finds himself should be a lesson for every Internet user: Nothing is private.
Kozinski, the chief judge of the 9th U.S. Circuit Court of Appeals, last week suspended a trial on a Los Angeles obscenity case when the sexually explicit contents of his own Web site were reported by the Los Angeles Times. That this learned man, one of the highest-ranking federal judges, sometimes mentioned as a worthy candidate for the U.S. Supreme Court, would be stung by an all-too-common pitfall of the online world should make everyone rethink their online habits.
A 2006 Career Builder survey found that a little more than half of hiring managers who used Internet searches to screen job applicants eliminated candidates based on what they found. The rate was 63 percent for those using searches of social-networking sites.
School districts and law-enforcement officials, including Washington Attorney General Rob McKenna, repeatedly try to drive home the point about the vulnerability, especially of children, when too much is revealed on the Internet.
Ind. Courts - More on "Media barred from Lay custody trial"
The Evansville Courier & Press has a lengthy editorial today on the Court of Appeals grant of a motion for a temporary stay, filed by Amanda Brooks Lay's attorney, barring the media from attending court proceedings related to the custody cases of two children of a couple accused of murder in the death of their son, Kalab Lay. The COA ruling reversed the decision of the trial court judge to open the hearing.
Ind. Courts - Star on "Indiana high court takes up 'robo' calls" next Monday
The Sunday Indy Star column, Behind Closed Doors, has this item today on tomorrows oral arguments in the case of State of Indiana v. American Family Voices, Inc. et al.. Some quotes:
A dispute over whether a state law can ban prerecorded phone calls in political races is about to be in the hands of the Indiana Supreme Court.See this list of earlier ILB entries on robo calls.
The justices were scheduled to hear arguments Monday over a lawsuit by the state attorney general's office against a Washington, D.C., group that made the so-called "robo" calls during a 2006 Indiana congressional campaign.
A 1988 state law bans all such calls, which are placed by automated dialers, and the arguments in the lawsuit center on whether it covers political calls. Commercial and sales-related calls are covered.
"The court is the only thing that stands in the way of an avalanche of unwanted, unnecessary phone calls this fall in Indiana," state Attorney General Steve Carter said. "It's literally something that will impact millions of consumers."
The attorney general's office sued Washington-based American Family Voices in 2006 after it made calls criticizing Republican Mike Sodrel during his race against Democrat Baron Hill for Southern Indiana's 9th Congressional District seat.
The state Republican and Democratic parties, while not named in the lawsuit, have filed a joint brief with the Supreme Court, saying that such calls, when used for political messages, are protected free speech.
"It's not up to the government to decide what modes of communication are most efficient and effective for political speech," said James Bopp, a Terre Haute attorney who is representing the political parties. He also is a member of the Republican National Committee.
Campaigns and special-interest groups use robo calls for purposes such as reminding voters to go to the polls, delivering endorsements or criticizing opponents. They are far cheaper than calls made by volunteers or paid personnel.
More than a dozen states have placed limits or bans on political robo calls, according to Stateline .org, a project of the Pew Center that tracks state legislation.
The Indiana General Assembly passed the robo-call ban in 1988, but it wasn't enforced in political campaigns until 2006, when Carter told the Republican and Democratic parties that it also applied to political calls. The parties were frustrated but abided by the ban. * * *
"I'm going to be arguing that the statute the attorney general is trying to use to regulate political speech wasn't designed for that purpose, that it was designed to regulate commercial speech only," said Anthony Overholt, an Indianapolis attorney representing the group. "The constitutional issues will only come into play, I think, if the Supreme Court were to decide that the statute does in fact reach political speech."
But Indiana Democratic Chairman Dan Parker said that argument could lead to bans on political television and radio commercials, Internet ads or the distribution of fliers.
"Where would it end?" Parker said. "There are some points before an election where I'm tired of all the TV ads, but that's free speech. It's the right of a candidate to try to get their message out before an election."
Not exactly law - "C-SPAN founder's life is an open book"
Well, I've just ordered my copy.
Maureen Groppe of the Indianapolis Star Washington Bureau today reviews a biography of C-SPAN founder, and Lafayette native, Brian Lamb. The story begins:
WASHINGTON -- C-SPAN founder Brian Lamb, who conducted 800 author interviews while hosting the network's "Booknotes" program, can't imagine that anyone would want to read a book about him.
"I really don't think I am very interesting," the Lafayette native told his biographer. "I'm just too normal, and normality seldom sells."
Nonetheless, the spotlight-averse Lamb agreed to cooperate with biographer Stephen E. Frantzich because "I don't want it done, but I assume it will be, and I would rather have you do it."
Not only is Frantzich a former C-SPAN consultant, but the political science professor also co-authored "The C-SPAN Revolution," a history of the network.
Frantzich's biography, "Founding Father: How C-SPAN's Brian Lamb Changed Politics in America" (Rowman & Littlefield Publishers, 208 pages, $22.95) includes some of that history but also delivers details about Lamb, including:
Saturday, June 14, 2008
Ind. Law - Still more on: How much can you rely on what is in the Indiana Code?
The printed edition of the May Res Gestae arrived in the mail this week. My article, now titled "Can you rely on the Indiana Code? Part I -- Noncode sections," appears at pp. 20-28.
If you have looked at the published article, you may have had difficulty with Example 2 on p. 24. And rightly so, as the stricken type was somehow dropped in the printed version. Here is a complete copy of the May article, from Res Gestae, but with the type problem corrected.
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.
Ind. Decisions - COA will hear oral arguments July 8 in dispute over Terre Haute mayor's office
Arthur Foulkes of the Terre Haute Tribune Star writes today about a "a face-to-face showdown in front of the Indiana Court of Appeals next month." Some brief quotes from a lengthy article:
The appeals court has agreed to hear oral arguments in the case pitting Mayor Duke Bennett against former Mayor Kevin Burke. The arguments are scheduled for July 8 in Indianapolis. * * *
Bennett won the Terre Haute mayor’s race last November by 110 votes out of about 12,000 cast. Burke later challenged Bennett’s eligibility to take office based on the Hatch Act, a law that limits the political activity of federal employees and employees of some not-for-profit organizations that receive federal money.
Vigo County Circuit Court Judge David Bolk ruled against Burke in December, allowing Bennett to take office. However, Bolk also ruled that Bennett had been subject to the Hatch Act when he ran for office.
Burke later appealed Bolk’s decision to allow Bennett to take office. Bennett then appealed Bolk’s ruling that Bennett had been subject to the Hatch Act when he ran for mayor. This means the appeals court is hearing two appeals from one ruling.
Ind. Decisions - "Two counties must pay $75M owed to state"
Yesterday's Court of Appeals decision in the case of Marion County and St. Joseph County v. State of Indiana; Tim Berry; Richard Mourdock, et al (see ILB summary here), is the subject of a brief story today in the Indianapolis Star:
The Indiana Court of Appeals on Friday upheld a trial judge's ruling that Marion and St. Joseph counties must pay $75 million owed to the state for housing juvenile offenders.
Marion County sued over its share, more than $67 million, in 2005, but it agreed to pay the overdue money while the case worked its way through the courts. Only $18 million remains on the county's tab, said Chris Ruhl, director of the State Budget Agency.
Chris Cotterill, the top attorney for the city and county, said no decision had been made on whether to continue with the appeal in hopes of a ruling that would give the money back to Marion County.
The Indiana General Assembly has since relieved counties of their responsibility for future payments, shifting the entire burden to the state.
Ind. Decisions - More on: Supreme Court issues 3 year suspension
The Supreme Court's ruling In the Matter of Douglas W. Patterson (see ILB summary from Friday) is the subject of a story today in the Evansville Courier & Press, reported by Kate Braser. The story begins:
An Evansville attorney has been suspended from practicing law for at least three years, stemming from an incident nearly eight years ago when he was accused of writing himself checks from a client's trust account.
That order came from the Indiana Supreme Court on Friday as a result of an earlier decision by the court's Disciplinary Commission.
"We find that respondent, Douglas W. Patterson, engaged in attorney misconduct by his conversion of client funds, deceit in concealing his misconduct, and dishonesty with the Disciplinary Commission," state Supreme Court justices wrote.
Patterson was admitted to the Indiana State Bar in 1989, and is known for his work on bankruptcy cases.
Ind. Courts - "New judge's hires stir up controversy"
Melissa Moody of the New Albany News&Tribune reports today in a story that begins:
New Clark County Circuit Court Judge Abe Navarro this week requested appropriations from the County Council to shift job responsibilities within his office — and the outcome has stirred up questions regarding political and personal favors.
Two court reporters were let go from the circuit court, and in their place, Navarro created a court administrator position and hired a new bailiff. The previous bailiff will now serve as a court reporter.
In asking for the appropriations, Navarro raised the new bailiff’s salary from $24,000, which is the average starting pay, to $30,000. The court administrator will be paid just more than $35,000, Navarro said.
Navarro, who was recently appointed by Gov. Mitch Daniels, tapped Clark County Republican Chairman David Buskill to serve as the court administrator. Navarro hired Jeremy Snelling to serve as the new bailiff. Buskill has not officially accepted the job. Snelling is already training for his position.
Some see the appointment of the two republicans as politically motivated, though Navarro denies that is the case.
Law - Interesting procedural details of NCAA infraction hearing
Mark Alesia of the Indianapolis Star had a lengthy, detailed story Friday on the NCAA Committee on Infractions meeting Friday to "deliberate charges of four potentially major rules violations against the IU men's basketball program." Some quotes:
How does the hearing work? The NCAA enforcement staff is the prosecutor. IU, Sampson, Senderoff and Meyer will present separate defense cases. The school and coaches all have attorneys.
Opening statements of up to 15 minutes for each side will be followed by separate consideration of the four allegations.
Committee members can ask questions at any time during the discussion. Any other involved person with a question must direct it to the committee, which will decide whether it's relevant and will be asked.
The session will end with closing statements. It's expected to end this afternoon but could spill into Saturday.
Is it like a court of law? It has "the same flavor" as a trial in a courthouse, according to a Seton Hall Law Review article from last year, but there are many differences.
A key one: The NCAA doesn't have the power to place witnesses under oath or hold anyone in contempt.
Also, the U.S. Supreme Court has said the NCAA doesn't have to follow due process because it's not a "state actor," meaning it doesn't exercise state power.
So it's OK for the hearing to be closed to the public and media, which is standard procedure. Still, the NCAA says its enforcement system includes many of the same protections of legal due process.
Sports law expert Gary Roberts, dean of the IU School of Law-Indianapolis, has testified before Congress that the system isn't perfect, but "there is no evidence to suggest that the NCAA's enforcement system is fundamentally flawed or makes major mistakes."
Ind. Decisions - Transfer list for week ending June 13, 2008? [Updated]
The ILB has not yet received Friday's transfer list, assuming there was one.
[Updated 6/16/08] I've just learned from the Clerk's Office that there was no transfer list for the week ending June 13th.
Friday, June 13, 2008
Ind. Decisions - Court of Appeals issues 7 today (and 15 NFP)
More details to follow
For publication opinions today (7):
In Marion County and St. Joseph County v. State of Indiana; Tim Berry; Richard Mourdock, et al, a 19-page opinion, Judge May writes:
For many years, Indiana counties have been required to pay a portion of the cost of operating juvenile detention facilities. When the State attempted to collect a combined arrearage of approximately $75 million from Marion and St. Joseph Counties, the Counties filed a lawsuit seeking relief from their debts. The trial court entered summary judgment for the State, and we affirm. * * *Wendell Iddings v. Darran T. Cole - "Wendell Iddings, pro se, appeals the denial of his motion to compel his former counsel, Darran T. Cole, to deliver over money. We affirm. * * * Given the evidence presented, we cannot say that the trial court erred in finding that Iddings was not entitled to any portion of the money paid to Cole."
The Counties raise several issues on appeal: (1) whether the Counties have standing to bring this suit; (2) whether the Counties’ claims are barred by the statute of limitations; (3) whether the Counties’ claims are barred by the doctrine of laches; (4) whether Art. 9, § 2 of the Indiana Constitution requires the State to pay all costs of operating juvenile facilities; (5) whether the State’s failure to comply with signature and attestation requirements renders the accounts invalid; and (6) whether the trial court erred by holding the State could recoup expenses for facilities other than Plainfield and Indianapolis. * * *
It appears the General Assembly has always intended counties to bear part of the costs of housing juvenile offenders in the entire state system. When Ind. Code § 4-24-7-2 was enacted, Plainfield and Indianapolis were the only juvenile facilities in Indiana. When the General Assembly reorganized the DOC in 1979, it enacted Ind. Code § 11-10-2-3 to permit the DOC to recoup costs of keeping a juvenile “in the facility or program to which he is assigned.” Because the DOC now had the authority to determine which facilities to operate and to assign juveniles to specific facilities, it no longer made sense for the General Assembly to identify specific facilities in the statutes. Therefore, Ind. Code § 11-10-2-3 refers generally to the facility or program to which the juvenile is assigned. Because the Counties were in arrears by 2005, we believe the 2005 amendment to Ind. Code § 42-4-7-2 was intended to clarify, and not to change, the law. * * * Therefore, we conclude the DOC had authority to charge the Counties for expenses incurred at all facilities.
Conclusion. The Counties have standing to assert their claims, and their claims are not barred by the statute of limitations or the doctrine of laches. However, we conclude the trial court correctly decided the merits of the Counties’ claims, and we affirm. Affirmed.
In Olympus Properties, LLC v. Jason Plotzker , an 8-page opinion, Judge May writes:
After Jason Plotzker breached one lease, Olympus Properties, LLC, repudiated a subsequent lease. Plotzker commenced an emergency possessory action in small claims court, and the court awarded Plotzker possession of the apartment and attorney fees. Because Plotzker was not a tenant as defined by statute, we reverse and remand. * * *In Michael Lukis v. Ray Blackburn, et al, a 15-page opinion, Chief Judge Baker writes:
Plotzker argues he was a tenant because he had the right to occupy the apartment during the lease period. Plotzker, however, never had possession of or control over the apartment. Olympus repudiated the lease before Plotzker’s right to occupy the apartment commenced. Accordingly, Plotzker is not entitled to the statutory remedies of a tenant. Because Plotzker was not a tenant, he could not proceed in small claims court under Ind. Code §§ 33-29-2-4(b)(2) or (3).2 However, Plotzker is entitled to a remedy under contract law for Olympus’ breach of the lease, and the small claims court had jurisdiction pursuant to Ind. Code § 33-29-2-4(b)(1), which confers jurisdiction over civil actions for damages of $6,000 or less. * * *
The small claims court had jurisdiction to hear Plotzker’s case. However, because Plotzker was not a tenant, the court could not award injunctive relief or attorney fees pursuant to the landlord-tenant statutes. Therefore, we remand for the court to determine the amount of Plotzker’s damages, if any, and whether he is entitled to attorney fees.
Appellant-respondent Michael Lukis appeals the trial court’s order determining that the way in which the Indiana Natural Resources Commission (NRC) evaluated the parties’ respective riparian rights was contrary to law and remanding the matter for reconsideration. Lukis argues that in arriving at that result, the trial court overstepped its authority on judicial review of an administrative action. Finding that the trial court erroneously concluded that the NRC’s determination was contrary to law, we reverse. * * *Eberaia D. Fields v. State of Indiana
Lukis argues that the trial court erroneously concluded that the way in which the NRC calculated the parties’ respective riparian zones was contrary to law. The appellees disagree, and the parties direct our attention to a number of cases in support of their respective positions. * * *
Having reviewed the above caselaw, it is apparent to us that the standards contained therein are fluid and best applied on a case-by-case basis. Specifically, the Bath court concluded that there is no set rule for establishing the extension of boundaries into a lake between contiguous shoreline properties and the Zappfe court applied a non-rigid reasonableness test. The Nosek apportionment method would be a perfectly appropriate way to solve the parties’ dispute, but this method has never been adopted as a fixed rule in Indiana. Indeed, as we have just concluded, there is no fixed rule governing such disputes. The trial court, therefore, erroneously concluded that the NRC’s failure to follow the Nosek rule was contrary to law. * * *
Having carefully reviewed the facts and circumstances of the case, the NRC concluded that extending the property lines lakeward was equitable and resulted in a fair apportionment. That there may have been other results that would, likewise, have been equitable does not mean that the NRC arrived at a result that was erroneous or contrary to law. Nothing in the NRC’s decision warrants second-guessing from the judicial system. * * *
It is apparent that these arguments amount to requests to reweigh the evidence, which our standard of review does not permit. The NRC concluded that based on the scant evidence available to it regarding the length and width of piers in the relevant vicinity, Lukis’s pier was not unusually long or wide and did not infringe on the appellees’ access to the lake. We will not second-guess that determination. The judgment of the trial court is reversed.
NFP civil opinions today (6):
NFP criminal opinions today (13):
Ind. Decisions - Supreme Court issues 3 year suspension
In the Matter of Douglas W. Patterson is a 6-page, 5-0 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, Douglas W. Patterson, engaged in attorney misconduct by his conversion of client funds, deceit in concealing his misconduct, and dishonesty with the Disciplinary Commission. * * *
Respondent violated Rule 1.15(a), Rule 8.4(b), and Rule 8.4(c) of the Rules of Professional Conduct. For this 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 31, 2008. Respondent shall not undertake any new legal matters between service of this opinion 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 he pays the costs of this proceeding, fulfills his duties as 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.
Ind. Courts - Yet more on "Indiana high court takes up 'robo' calls" next Monday
Re the list of briefs in Monday's oral argument in State of Indiana v. American Family Voices, Inc. et al - I've just received a 5th brief, that of Appellee American Family Voices, and posted it along with the others, here. If there is a separate brief for Appellee "John Does 2-10", the ILB has not yet received a copy; other than that, the list should now be complete. Thanks to all who helped out.
Although the oral arguments will be in Terre Haute rather than the Supreme Court Courtroom, you will still be able to watch them live, online, on Monday, June 16 at 1:00 PM, via this link (note red box).
Ind. Decisions - "Local traffic stop in justices' laps"
The Supreme Court heard oral arguments yesterday in the case of State v. Raymond Washington (see ILB preview here), and the hearing is reported today in the Fort Wayne Journal Gazette by Niki Kelly. Some quotes:
Raymond Washington Jr. and a friend were riding mopeds on Central Drive on a July day when officer Chris Hoffman spotted them. He stopped them for swerving over the centerline – although the street did not have centerline markings. He also thought Washington might have been younger than 18 and required to wear goggles and a helmet.
During the stop, Hoffman asked the question about drugs and guns.
Washington – then 27 – admitted he had marijuana in his front pocket and was arrested and charged with misdemeanor drug possession.
The trial judge threw out the evidence, saying the question violated the state’s constitutional protections against unreasonable search and seizure.
Prosecutors appealed, and the Indiana Court of Appeals ruled in October that police are allowed to ask about guns out of concern for officer safety. But the opinion also said Washington’s nervousness was not enough to justify asking about drugs, a question unrelated to the purpose of the traffic stop.
The state appealed again, and the Indiana Supreme Court heard oral arguments in the case Thursday.
“There is no constitutional violation in this case because merely asking a question is neither a search nor a seizure,” said Cynthia Ploughe, arguing for the state attorney general’s office.
She also told the justices that Washington could have refused to answer or lied.
But Justice Frank Sullivan Jr. questioned whether we wanted to encourage our citizens to lie or be disrespectful to police.
Ploughe also argued that Washington had been already detained for the traffic stop and one question did not significantly extend the duration of the stop.
Justice Theodore Boehm asked what the limit is on how many questions a police officer could ask before courts draw a line. Have you robbed a bank? Do you have any drugs at home?
“Is there any limit?”
David Joley, attorney for Washington, focused on the fact that the officer had no probable cause or reasonable suspicion to ask about drugs.
“Without any basis in fact (Washington) is asked to incriminate himself,” he said. “And if he says no, does that give the officer reasonable suspicion to ask more questions?
“That’s the slippery slope.”
But Ploughe reminded the justices that the evidence was tossed for a Fourth Amendment unreasonable search-and-seizure violation, not a violation of self-incrimination rights.
“An officer doesn’t need reasonable suspicion to ask a simple five-second question,” she said.
Sullivan quibbled with her phrase, though, noting it was a question of enormous consequence.
Ind. Decisions - "Permit for trash station near Mount Baldy upheld"
The Court of Appeals decision yesterday (Thursday) in the case of Board of Commissioners of LaPorte County, Board of Commissioners of Porter County, Town of Beverly Shores, et al v. Great Lakes Transfer, LLC, and IDEM (see ILB entry here) is the subject of a story today in the NWI Times by Patrick Guinane. Some quotes:
A stalled attempt to build a garbage transfer station near the Indiana Dunes National Lakeshore got a boost Thursday from the Indiana Court of Appeals, but the legal battle isn't over.
The appeals court ruled against the commissioners of LaPorte and Porter counties, as well as Beverly Shores and Town of Pines officials, who are fighting the state environmental permit Great Lakes Transfer LLC received in 2005. The company, which wants to build a 5-acre waste transfer site off County Line Road, applauded the ruling. * * *
The proposed facility, which would temporarily store trash awaiting transport to landfills or treatment facilities, would be located on the edge of LaPorte County, about a half mile south of Mount Baldy, the mammoth sand dune that towers 126 feet above Lake Michigan.
"We don't think that a waste transfer station is appropriate just a couple thousand yards from the entrance to the national park," said Shaw Friedman, an attorney for LaPorte County.
Great Lakes Transfer won permit approval from the Indiana Department of Environmental Management, or IDEM, despite the objections of Porter County officials, who have refused to grant the company a driveway permit. Porter County controls the right of way on County Line Road, which runs north-south between Porter and LaPorte counties.
Local officials in both counties contend the lack of a driveway permit should have blocked IDEM from issuing a permit. The Indiana Office of Environmental Adjudication rejected that argument, leading to unsuccessful appeals in Marion County Superior Court and now the state appeals court.
"The judge's decision confirms what IDEM strives for, which is to ensure permit applicants comply with all regulations," IDEM spokeswoman Amy Hartsock said Thursday. "The IDEM permit doesn’t supersede requirements that might be necessary at the local level."
Friedman said LaPorte County officials have refused to issue Great Lakes Transfer a building permit until Porter County grants driveway access. He said that issue remains pending in LaPorte County Superior Court.
"We lost this battle, but the war is not over," said Clay Patton, an attorney for Burns Harbor and Town of Pines.
Patton and Friedman said they will meet with their clients to discuss appealing the case to the Indiana Supreme Court or requesting a rehearing from the appeals court.
Ind. Decisions - More on "Physical discipline of child not abuse"
Updating this ILB entry from Thursday on the Supreme Court's 4-1 decision Tuesday in the case of Sophia Willis v. State of Indiana (see ILB entry from Tuesday here, 2nd case), is the subject of a story today in the Gary Post-Tribune, reported by Sharlonda L. Waterhouse, and headed "Reversal stuns abuse caseworkers." Some quotes:
A recent Indiana Supreme Court decision to overturn a battery conviction for a parent who hit her 11-year-old with an extension cord, undermines but won't stop regional work to stem child abuse, local experts say.
The 4-1 decision, written by State Supreme Court Justice Robert Rucker of Gary, backs a Marion County parent who left marks on her son's buttocks and arms in 2006 because those five lashes were "reasonable" and left no "permanent" mark.
The bruises were cited by school nurses and social workers in Marion County who reported the case.
Counterparts here are shocked by the reversal, but said peers must remain vigilant of even temporary marks.
"Wow. I'm disappointed. I hope that won't be the end of the case -- to say the mom is off the hook and isn't responsible," said Becky Kirkpatrick, Valparaiso Schools social worker and member of Prevent Child Abuse for Porter County.
"There's a danger anytime a parent picks up something to use on a child, whether it's an electrical cord or a wooden spoon -- that they can cross the line into abuse."
Kirkpatrick said she doesn't believe the excusing of nonpermanent bruises translate into less reporting.
"It's not our job to determine whether it's substantial. If we see a bruise that doesn't make sense we have to report it. I hope that continues," she said. * * *
Even if a case goes unpunished, Joy Sunday, Northwest Indiana representative for the Indiana Association of School Nurses, said children need school staff "not hesitate" in watching out for them.
"Every child that walks in the door -- in the back of my mind I'm checking. It's unfortunate but that's what we need to be doing," Sunday said.
That such a reversal would occur in Indiana doesn't surprise Nadine Block, organizer of the annual National Spank Out Day which drew 1,000 backers in April, including many Hoosier families.
"What do you think the child thinks after he's seen the parent go through this and the court says it's fine?," Block said
"We wouldn't allow hitting that left temporary marks on a wife or a neighbors' dog. It's a barbaric kind of thing ... but there are some states where it's just more acceptable."
Block said Indiana is one them: "Indiana is one of 21 states that still allows corporal punishment in schools." About 577 incidents occurred in 2007.
Ind. Gov't. - Indianapolis Public Schools asks court to rule on vote
Andy Gammill reports today in the Indianapolis Star:
Indianapolis Public Schools on Thursday asked a Marion County judge to sort out who can be seated as a new board member after two state agencies said they couldn't resolve the issue.
Voters in the district chose Michael R. Cohen and Elizabeth M. Gore to fill the two open at-large seats on the board.
State law, however, says only two people from each IPS board district may serve on the board at the same time. Cohen and Gore live in IPS' District 3, which Kelly E. Bentley represents in the seat set aside for that district.
"I think it's a question of how they want to balance voters' rights with a state law," Cohen said. "It's not a simple, clear-cut decision."
The Indiana State Board of Education issued a formal ruling that it did not have jurisdiction, and the Indiana Election Commission said it did not believe it had any way to intervene either.
The law fails to provide a way to resolve the conflict, and the district does not know whether to seat one or both of the board members July 1, when they were scheduled to take office.
Cohen and Gore said they understand that the issue must be resolved legally but are eager to take office. Both said they do not plan to move or resign. State law says the current board members stay in place until their replacements are properly qualified. * * *
The two at-large members on IPS' board serve staggered terms and are usually not up for election during the same year. That allows the district to disqualify in advance any candidates who would break the state residency laws.
But on May 6, voters technically voted in two elections: the general election for a board seat that was at the end of a four-year term, and a special election to fill the two remaining years on a vacant seat.
That seat was left empty when Olgen Williams resigned to become deputy mayor. The board appointed Leroy Robinson to temporarily fill that seat.
IPS has said that if the court does not resolve the issue by July 1, the current board members will keep their seats until it rules.
"We did not take a position about who should be seated," Pfeiffer said. "We presented the issue and the facts to the court and are asking them to decide."
Ind. Gov't. - More on "Dem AG candidate questions hired gun in E.C. RICO case"
Updating this ILB entry from June 6th, quoting from a story by Patrick Guinane of the NWI Times, Guinane has a follow-up story today headed "Pence worked other side of E.C. corruption case." From the story:
INDIANAPOLIS | When Democrat Linda Pence announced her candidacy for state attorney general last week, she said she would need to undertake an extensive review before committing to continuing the civil racketeering case against former East Chicago Mayor Robert Pastrick.
Pence, an Indianapolis attorney, didn't mention that she already is familiar with the other side of the corruption case. Federal court records show Pence represented Rieth-Riley, a paving company that paid $625,000 to settle claims it helped city officials conspire to divert more than $24 million in public money to a 1999 sidewalks-for-votes scheme. * * *
Pence said she would be willing to entrust the East Chicago case to subordinates or outside counsel if her review identified a potential conflict of interest.
Although Rieth-Riley admitted no wrongdoing in its 2006 settlement, the state had accused the company of playing a central role in a scheme to help East Chicago officials legitimize the paving bonanza that preceded Pastrick's 1999 re-election. The original civil lawsuit said the company signed off on a phony contract after other contractors already had helped pour free driveways, patios and sidewalks for city voters.
In 2005, Pence filed a countersuit in the case, contending that Rieth-Riley's contract with the city contained a clause protecting the company from liability if any part of the pact was deemed "contrary to the law." A year later the company forged a settlement that included a pledge to cooperate with investigators.
"Of the $1.3 million recovered in the RICO case, Rieth-Riley paid a significant settlement of $625,000, which is the largest to date and represents twice the amount paid to outside counsel," Carter spokeswoman Staci Schneider said Thursday.
More than a dozen of the 27 former city officials and contractors originally named as defendants in civil suit have reached similar settlements.
Thursday, June 12, 2008
Ind. Law - Greencastle "faced with golf cart issue"
Adam Coates. of the Greencastle Banner Graphic, reported Wednesday:
Greencastle residents feeling the pinch from rising gasoline prices are starting to consider more economical methods of transportation. But we're not talking about bicycles here.Type "golf cart" in the search box in the right-hand column to find the dozens of other ILB golf cart entries.
City council members learned Tuesday night that some residents have actually contacted city hall to ask about driving golf carts in and around town.
This has forced city officials to take a serious look at whether allowing the use of these vehicles on city streets is first and foremost legal, but more importantly, safe.
Mayor Sue Murray said other cities around the country are dealing with the same issue as citizens get more desperate to save money on fuel.
For Murray, the issue that stands out in her mind is safety.
"You have large trucks traveling on our highways and golf carts aren't the fast-moving vehicles," she said after Tuesday night's city council meeting.
City attorney Laurie Hardwick said she may have a proposal for an ordinance to bring to next month's council meeting.
So far, city officials have not said whether they would actually consider allowing people to use their golf carts to drive around town, but they agree there needs to be some type of language regarding the use of these types of vehicles on the books.
The mayor says the city is just beginning to investigate the issue at this time.
Ind. Courts - Even more on "Indiana high court takes up 'robo' calls" next Monday [Updated]
Earlier this afternoon the ILB wrote about Monday's oral argument in State of Indiana v. American Family Voices, Inc. et al. that: "This is one of those oral arguments where it would be nice to be able to post the briefs." Well, here they are:
Ind. Courts - "Illinois keeps list of lawyers private"
That is the headline to this story by Bruce Rushton in the Springfield Illinois State Journal-Register. Here in Indiana our Courts site maintains the "Roll of Attorneys" where anyone can find whether an attorney is licensed to practice n Indiana, plus whether or not there is a disciplinary charge pending. Not so, it seems, in Illinois.
Or at least that is what I thought when I first glanced at this story. But on closer read, a different issue is involved. First, from the end of the story:
[N]ames already can be accessed on the ARDC’s [Illinois] Web site, which also states addresses, disciplinary records and whether lawyers have malpractice insurance.So Illinois is much like Indiana. Now from the beginning of the story:
However, there is no way to get a complete list of lawyers from the ARDC’s Web site, which requires users to punch in names to get information. So, if you already know Abraham Lincoln is a lawyer, you can check him out (and yes, Lincoln is listed on the ARDC’s Web site, which states he is deceased and not authorized to practice). But without knowing Lincoln’s name, he would be a very tiny needle in a very large haystack that includes more than 85,000 practicing lawyers.
Who’s licensed to practice law in Illinois? None of your business.Here is the Avvo site. Like Illinois, Indiana is NOT one of the state covered.
That’s what the state Attorney Registration and Disciplinary Commission has told a Seattle company that wants to post the names of lawyers on the Internet and assign grades based on performance, awards, experience and disciplinary records.
Avvo has posted information online about lawyers in more than a dozen states. The company, which started its Web site a year ago, says it has received lists of lawyers from 30 states. Illinois, however, has balked
The company has been trying for the Illinois list for months, says Josh King, Avvo general counsel. Now, the company is, politely, going after the state Supreme Court, which is in charge of the state’s master list of attorneys. A petition — don’t call it a lawsuit, the company says — requesting the list was filed Wednesday after the ARDC, an arm of the Supreme Court, refused to hand it over.
“It makes eminently good sense that a list of persons licensed to practice law in Illinois would be considered public information,” writes Avvo attorney Steven Pflaum in the petition. “Consumers should be able to determine whether persons holding themselves out to be lawyers are, in fact, licensed attorneys.”
James Grogan, ARDC spokesman, said court rules prohibit giving out lists of attorneys for political or commercial purposes. The only entities authorized to receive the list are the bar association, courts and continuing legal-education providers, he said, and unless there is specific authorization in court rules, the list can’t be released.
“It’s the Supreme Court’s call to make,” Grogan said. “We’re more than happy to do whatever the court wants us to do.”
The court has ended its May term and won’t begin its next term until September, Grogan said, so a decision could be months away.
Anticipating that the court might not be eager to release information that would put lawyers on junk mailing lists, Avvo says in its petition that it would be satisfied with names only, without addresses.
And if the Supreme Court says no?
Pflaum acknowledges there would be no avenue of appeal. “They’re the Supreme Court; they control information,” Pflaum said. “It’s their call.” * * *
Avvo has been controversial in legal circles. Less than a month after the Web site launched, a Seattle lawyer sued, saying the low grade he received wasn’t fair. The case was dismissed. New York Times reporter Adam Liptak, who is also a lawyer, has poked fun at the site, noting that he was graded higher than two U.S. Supreme Court justices.
The clerk of the New Jersey Supreme Court refused to turn over names of lawyers to Avvo, but reversed himself after Avvo filed a motion much like the one now pending in Illinois. And the Florida Bar Association initially barred lawyers from using their Avvo ratings in advertisements, but relented after an Avvo executive explained how the grading system works.
Ind. Courts - Still more on "Indiana high court takes up 'robo' calls" next Monday
This is one of those oral arguments where it would be nice to be able to post the briefs.
Ind. Courts - More on "Indiana high court takes up 'robo' calls" next Monday
The Indiana Supreme Court is set to hear a critical case on Monday that is likely to frame the debate-currently taking place in close to a dozen individual states and on Capitol Hill-over the regulation of political robocalls.Note that it was announced today that the oral argument will be in the Tilson Auditorium in the Hulman Center at Indiana State University in Terre Haute. The time remains at 1:00 PM. No word as to what impact this will have, if any, on the live and delayed webcasts.
While a slew of states have restricted political robocalls, Indiana's law is perhaps the toughest, banning the calls outright, and state Attorney General Steve Carter has aggressively pursued evidence of violations. It has led to a legal showdown that pits First Amendment advocates, political professionals and both the Indiana Republican and Democratic state parties against the state's attorney general.
"The state parties weren't too happy when I informed them that I would be enforcing this law," says Carter, referring to a 20-year-old statute that bans automated calls. After the 2006 mid-term elections, Carter brought suit against American Family Voices, a Democratic group that launched robocalls against then-Rep. Mike Sodrel (R).
After a lower court judge essentially ruled in favor of American Family Voices, deciding that the Indiana law cannot prohibit political calls, Carter appealed the case directly to the state Supreme Court, hoping he could get a ruling before this November's election.
"We aren't trying to regulate the content of political speech in any way," Carter says. "This law only deals with the form in which the message is delivered."
Carter says there is no exemption in the state's statute for political calls and he argues his reading of the law is accurate. "The legislature could have made an exemption for politicians, but they decided not to do that," he says. "In fact, the legislature could go ahead and repeal the law if they wanted to, but they haven't done that either." * * *
The statute in question harkens back 20 years, and it took some research on the part of the state attorney general's office to realize it was even on the books. After Indiana passed one of the toughest commercial do-not-call laws in the nation back in 2001, Carter says his office was flooded with requests to do away with political calls. That was when Carter found the 1988 law banning auto calls, and he put the state parties on notice before the 2006 election cycle that he intended to enforce it. And, for the most part, the threat of enforcement has worked.
Ind. Decisions - Court of Appeals issues 2 today (and 12 NFP)
For publication opinions today (2):
In Board of Commissioners of LaPorte County, Board of Commissioners of Porter County, Town of Beverly Shores, et al v. Great Lakes Transfer, LLC, and IDEM, a 31-page opinion, the Court affirms the decisions of lower courts upholding IDEM's grant of a solid waste transfer facility permit to Great Lakes Transfer. Judge Brown writes:
The Board of Commissioners of LaPorte County (“LaPorte County”), the Board of Commissioners of Porter County (“Porter County”), the Town of Beverly Shores (“Beverly Shores”), and the Town of Pines (“Pines”) (collectively, “Appellants”) appeal the trial court’s affirmation of an order by the Office of Environmental Adjudication (“OEA”) in favor of Great Lakes Transfer, LLC (“Great Lakes Transfer”), and the Indiana Department of Environmental Management (“IDEM”). Appellants raise four issues, which we revise and restate as: I. Whether the trial court abused its discretion by transferring venue to Marion County; II. Whether the trial court erred in determining that the OEA’s decision that IDEM properly granted a permit to Great Lakes Transfer even though Great Lakes Transfer did not have a permit for road access was not arbitrary and capricious; III. Whether the trial court erred in determining that the OEA’s decision that IDEM properly granted a permit when Great Lakes Transfer did not own the property at issue was not arbitrary and capricious; IV. Whether the trial court erred in determining that the OEA’s decision that IDEM properly granted a permit when Great Lakes Transfer’s building permit was later rescinded was not arbitrary and capricious; V. Whether the trial court erred in determining that the OEA’s decision that IDEM properly granted a permit despite wetlands concerns was not arbitrary and capricious; and VI. Whether the trial court erred in determining that the OEA’s decision that IDEM properly granted a permit despite concerns of environmental justice and public participation was not arbitrary and capricious. We affirm.The ILB has posted a large number of entries on this controversy, which involves construction of a waste transfer station near the Indiana Dunes' Mount Baldy. In addition to these entries, here is the trial court ruling and here is the ruling of the Office of Environmental Adjudication.
In MBNA America Bank v. Aaron Kay , a 7-page opinion, Senior Judge Barteau concludes:
As discussed above, the evidence before the trial court established the arbitration award was not properly obtained. The FAA provided that upon Kay’s objection to the arbitration, MBNA was required to petition a federal court for a determination regarding the validity of the arbitration agreement. This was not done. Instead, the NAF attempted to rule on the validity of the arbitration agreement at issue. As a result, the award MBNA sought to confirm was void, or incapable of confirmation or ratification. The trial court’s order was not erroneous to the extent that it, in essence, vacated the arbitration award.NFP civil opinions today (2):
MBNA contends that there was no evidence below to establish that Kay’s credit record was affected by MBNA. Our review of the trial court’s order reveals that MBNA was required to restore Kay’s credit as it related to the present matter. Therefore, if Kay’s credit record was not affected by MBNA’s legal pursuits against him, then nothing more need be done. The trial judge did not exceed his authority by requiring MBNA to correct any inaccuracy in Kay’s credit record regarding the present dispute.
Conclusion. The trial court did not err by dismissing MBNA’s application to confirm the arbitration award. Once Kay objected to the arbitration, MBNA was required by the FAA to obtain a federal court ruling regarding the validity of the arbitration agreement. Affirmed.
J'Neane C. Bantz v. Americare Communities (NFP) - "Appellant-plaintiff J’Neane C. Bantz, personal representative of the Estate of Verlin Lee Bantz (the Estate), appeals the trial court’s order granting summary judgment in favor of appellee-defendant Americare Communities & Assisted Living of Portland and Hartford City, LLC (Americare), on the Estate’s complaint. Specifically, the Estate argues that the trial court erroneously concluded that Americare did not own, operate, supervise, or in any way participate in Verlin’s care and treatment. Finding no error, we affirm."
Thomas Aldrich v. Advanced Imaging (NFP) - "Appellant-defendant Thomas Aldrich appeals the trial court’s grant of a preliminary injunction in favor of appellee-plaintiff Advanced Imaging Solutions, Inc. (Advanced), regarding the parties’ covenant not to compete. Specifically, Aldrich argues that the trial court abused its discretion in granting the preliminary injunction because Advanced failed to show that its customer lists and product leasing information qualified as confidential information and trade secrets. Aldrich further contends that the non-compete clause was overly broad and that Advanced failed to show that it had no adequate remedy at law. Finally, Aldrich claims that the trial court erred when it made no ruling on Advanced’s claims that Aldrich misappropriated or otherwise had access to trade secrets.
"Because Advanced failed to show that it had a legitimate protectable interest in its customer lists and leasing agreements, we conclude that the trial court erred in finding that Advanced had a reasonable likelihood of success at trial on the merits of its claim. Thus, we reverse the trial court’s grant of the preliminary injunction."
NFP criminal opinions today (10):
Courts - "N.Y. Governor, Legislature Ordered to Raise Pay of State's Judges"
The subheading to this story by Daniel Wise of the New York Law Journal is: "Attorney calls ruling 'precedent setting' because it is 'the first time the linking of judicial pay to that of legislators has been found unconstitutional'".
Manhattan Supreme Court Justice Edward H. Lehner on Wednesday gave the state Legislature and Gov. David A. Paterson 90 days to adjust the pay of the state's 1,300 judges to reflect the rise in the cost of living since their last raise nearly 10 years ago.On June 7, 2007 the ILB posted this entry, headed "Linking of judges' pay to that of legislators decried at both federal and state levels," commenting on the fact that during the 2007 session, the Indiana General Assembly "passed a bill linking legislative salaries to those of Indiana judges."
Lehner found that the Legislature and the governor had "unconstitutionally abused their power" by neglecting to raise judicial pay. He concluded in Larabee v. Governor, 112301/07, that the executive and legislative branches had violated the separation of powers doctrine by linking judicial pay to extraneous legislative issues such as raises for the legislators themselves and campaign finance reform.
While the lawsuit was brought by individual judges and is not a class action, Lehner noted that "it has at all times been recognized by the parties that the issue with respect to constitutionality affects all members of the judiciary who are part of the Unified Court System."
Lehner also ordered the defendants to include "an appropriate provision for retroactivity." The Legislature and governor are to proceed in "good faith," he wrote, inviting the four judges who brought the lawsuit to seek additional relief if an adequate remedy is not in place within 90 days.
June Duffy, the head of the attorney general's New York City litigation bureau, said the governor and the Legislature have not made any decision concerning an appeal. Duffy declined to say whether the defendants would be entitled, by statute, to a stay of the ruling in the event of an appeal.
Thomas E. Bezanson, of Chadbourne & Parke, the lead attorney for the four judges who sued to compel a raise, said that if an automatic stay is applicable, "we are hopeful that the First Department will rescind it because the defendants had 10 years to do the right thing."
Bezanson called the ruling "precedent setting" because it represents "the first time the linking of judicial pay to that of legislators has been found unconstitutional." * * *
Chief Judge Judith S. Kaye has filed a separate lawsuit seeking to compel a pay raise to make the salaries of state judges comparable to those paid to federal district court judges, retroactive to April 1, 2005, at a total cost of $148 million. Under that formulation, the salaries of Supreme Court justices would be raised to $169,300 a year and the salaries of judges sitting in other courts would be adjusted proportionately.
Kaye's suit, Kaye v. Silver, 40076/08, also has been assigned to Justice Lehner. On Tuesday, the Legislature and governor filed a motion to dismiss that case using many of the same arguments as the attorney general's office used against the claims in Larabee.
Bernard Nussbaum, of Wachtell, Lipton, Rosen & Katz, who represents the chief judge in her lawsuit, said, "we are pleased with Justice Lehner's thoughtful decision and now trust that the governor and the Legislature will do the right thing." The Unified Court System is also a plaintiff in the chief judge's action. * * *
New York's judges have gone longer without a pay raise than the judges in any other state in the nation. Since 1999, the level of their salaries, when cost-of-living is taken into account, has slipped to 49th in the nation.
[More] Here is today's story as reported by the NY Times.
Ind. Courts - "'Mick's' bribery charge disputed"
A story today in the Muncie Star-Press, reported by Rick Yencer, begins:
MUNCIE -- Attorney Michael J. "Mick" Alexander was not present at an October 2005 meeting at which he is accused of conspiring to bribe witnesses, according to an affidavit filed by co-defendant Jeff Hinds, a private investigator who until recently worked out of Alexander's law office.
The statement -- and other evidence offered in a motion to dismiss the conspiracy-to-commit-bribery charge against Alexander -- might be considered next week during a pre-trial hearing before Special Judge Brian Hutchison of Jay County.
Alexander, 61, a former Delaware County prosecutor, was accused last February of conspiring with Hinds and a client, Christopher Bryant, to bribe three witnesses in a pending criminal case targeting Bryant.
Ind. Courts - "Indiana high court takes up 'robo' calls" next Monday [Updated]
Lesley Stedman Weidenbener of the Louisville Courier Journal reports today on a case to be heard Monday, June 16th, at 1:00 PM before the Indiana Supreme Court, State of Indiana v. American Family Voices, Inc. et al. Some quotes from the lengthy story:
The future of prerecorded political calls in Indiana -- considered by some voters as pesky but by many campaigns as productive -- is in the hands of the Indiana Supreme Court.(BTY - The ILB is intrigued by the argument about the placement of the law in the Indiana Code determining its interpretation and may write more on this at some point.)
At issue is whether a 1988 state law bans all so-called "robo" calls, which are placed by automated dialers, or is meant only for those that are commercial or sales-related.
The court will hear arguments Monday in a case that stems from calls made in 2006 by American Family Voices, a group based in Washington, D.C., during the contentious 9th Congressional District race won by Democrat Baron Hill over Republican Mike Sodrel.
The impact of the decision, though, will be felt statewide -- and could have national implications if the court finds that regulating political calls violates constitutional protections of free speech.
"The court is the only thing that stands in the way of an avalanche of unwanted, unnecessary phone calls this fall in Indiana," said state Attorney General Steve Carter, whose office sued American Family Voices for making automated calls criticizing Sodrel's record in Congress.
"It's literally something that will impact millions of consumers," Carter said. "Either there will be millions more phone calls or there will be millions of moments of privacy preserved, all depending on the outcome of this case."
But the state Republican and Democratic parties say that the calls, when used for political messages, are protected free speech. They have filed a brief in the case even though they were not parties to the original lawsuit.
"It's not up to the government to decide what modes of communication are most efficient and effective for political speech," said James Bopp, a Terre Haute attorney representing the political parties. * * *
The General Assembly passed the law in 1988, but it wasn't enforced against campaigns until 2006, when Carter wrote to the Republican and Democratic parties to warn them that it applied to political calls. The parties were frustrated but abided by the ban.
Some out-of-state special interest groups -- including American Family Voices -- did not. After six complaints from 9th District voters, Carter filed suit against American Family in Harrison Circuit Court seeking penalties of up to $5,000 for each alleged violation.
But Orange Circuit Judge Larry Blanton, who was serving as special judge in the case, ruled that the state law applied only to commercial calls. Carter appealed, and the Supreme Court agreed to take up the case directly, bypassing the Court of Appeals.
Attorneys for American Family Voices argue that the law is ambiguous because it doesn't define "message" to specify whether it applies to commercial or political calls or both.
The organization's brief, however, said that other aspects of the law -- including its placement in the part of the Indiana code that regulates trade and language that allows the calls if a live operator first discloses the kinds of goods or services the call is promoting -- make it obvious it was meant only for sales calls.
"I'm going to be arguing that the statute the attorney general is trying to use to regulate political speech wasn't designed for that purpose, that it was designed to regulate commercial speech only," said Indianapolis attorney Anthony Overholt. "The constitutional issues will only come into play, I think, if the Supreme Court were to decide that the statute does in fact reach political speech."
Carter downplayed the constitutional issue, saying that the law doesn't regulate the content of the message -- the speech itself -- just how it's delivered.
[Updated at 10:30 AM] It has just been announced by the Supreme Court that the oral argument will be in the Tilson Auditorium in the Hulman Center at Indiana State University in Terre Haute. No word as to what impact this will have, if any, on the live and delayed webcasts.
Ind. Courts - Still more on: Robert Cantrell found guilty on all charges
HAMMOND -- Robert Cantrell's last-ditch effort to block his fraud conviction likely won't go far, experts say.
On the final day of his fraud trial last week -- and after federal prosecutors had closed their case -- Cantrell's lawyer pointed out that prosecutors never asked any of their witnesses to point out Cantrell in the courtroom.
The oversight, defense attorney Kevin Milner argued, was grounds for Judge Rudy Lozano to enter a verdict of not guilty to the 11 counts of mail fraud without sending the case to the jury.
Lozano let jurors reach their verdict -- ultimately, guilty on all counts-- but the judge will not formally enter the judgment until after he has reviewed filings on Milner's motion by the U.S. Attorney and by Cantrell later this month. Milner did not return calls from the Post-Tribune. U.S. Attorney David Capp declined comment.
Despite the apparent oversight, Valparaiso University Law School professor David Vandercoy says the verdict likely will stand.
"I don't think I've ever heard of anybody ever getting off because of failure to properly identify a defendant," the criminal law professor said. * * *
Leonard Cavise, a law professor at DePaul University in Chicago, called it "Trial Practice 101" that attorneys "always have the defendant identified in the courtroom."
While prosecutors Orest Szewciw and Wayne Ault are "kicking themselves" about the oversight, Cavise said, the error likely won't turn the case -- either in Lozano's eyes or on appeal.
"If it was a mistaken identity case, where the defense is asking, 'Is this the man that robbed you?, then (the lack of identification) is fatal for the government," Cavise said. "I don't see that as an issue here."
"It happens all the time that people get off on failures to do things (that are procedural), and it's definitely a mistake," Cavise added. "Is it a material mistake? I don't think so. It looks like somebody had a little slip of the mind, a little brain freeze."
Though they may not have physically pointed a finger at Cantrell in the court, numerous witnesses -- including Cantrell's son, John, and his business partner, Nancy Fromm -- spoke of their long relationships with Cantrell and his reputation as one of Lake County's most well-known political players.
Still, the thought of the 66-year-old Cantrell escaping prison time on a technicality makes some supporters wistful.
"You think he's a legend now," said Hammond Mayor Tom McDermott Jr. in an interview earlier this week. "Imagine if he manages to get off on that."
Ind. Courts - "Indiana 6th in nation in juveniles locked up"
Angela Mapes Turner of the Fort Wayne Journal Gazette reports today:
Indiana ranks sixth among states with the most juveniles locked up, a grade that should prompt the state to re-examine its youth justice system, a report released today said.Ken Kusmer of the AP has this story today. Some quotes:
The latest Kids Count Data Book shows an estimated 2,616 youths were in custody in Indiana on any given day in 2006, the latest year U.S. census data were available.
The state-by-state report, released by the Annie E. Casey Foundation, said Indiana’s rate of detained and committed youths was 183 per 100,000 youths, above the national rate of 125 per 100,000 youths.
Of those, 74 percent were in custody for non-violent offenses, compared with 66 percent nationally, according to the study.
The Indiana Youth Institute, a non-profit organization that released the report in Indiana, said it hoped the state would study the research to determine why Indiana’s rates of juvenile defenders are higher than other states.
The report noted that children who remain in contact with the juvenile justice system don’t go as far with their education, work and earn less, experience chronic health problems, fail to form enduring families and are more likely to be imprisoned again later in life.
The rate at which youths are released from juvenile detention is also alarming, said Doug Church, president of the Indiana State Bar Association, which is sponsoring a pilot program in six counties that screens youths entering detention centers for mental illness.
Church said 50 percent to 80 percent of youths released from juvenile detention centers are rearrested within three years.
The report, based on U.S. Census data, showed Indiana detained and committed 10- to 15-year-olds for juvenile offenses in 2006 at a rate of 183 per 100,000, compared with a national rate of 125 per 100,000. The only higher rates were found in South Dakota (373 per 100,000), Wyoming (334), the District of Columbia (294), Alabama (201) and South Carolina (185).Here is the Kids Count website.
Data shows children in the juvenile justice system don't go as far in school, work and earn less, have less stable families, more health problems and are more likely to be imprisoned again, said the report compiled by the Annie E. Casey Foundation, a private charity working to improve the lives of children.
Also, 50 percent to 80 percent of youths released from juvenile detention centers are rearrested within three years, a trend noted by Doug Church, president of the Indiana State Bar Association.
"It comes as no shock once many of these children are in the juvenile justice system these children are on a path to be lifelong residents of our prison system," Church said.
Ind. Decisions - "Physical discipline of child not abuse"
The Supreme Court's 4-1 decision Tuesday in the case of Sophia Willis v. State of Indiana (see ILB entry from Tuesday here, 2nd case), is the subject of this story today by Jeff Parrott of the South Bend Tribune. Some quotes:
A parent has the legal right to physically discipline a child, even if doing so leaves bruises, the Indiana Supreme Court has ruled.Parrott' report today continues:
The court's 4-1 opinion, handed down Tuesday, overturns the Marion County Trial Court conviction of parent Sophia Willis for battery. Willis had whipped her 11-year-old son five to seven times with a belt or electrical cord after she caught him repeatedly lying about having stolen some of her clothing.
Contending that she had legal authority to discipline her son, Willis appealed her conviction. An Indiana Court of Appeals panel had affirmed the lower court's ruling, while asking the state's high court for guidance on when a parent crosses the line from permitted discipline to criminal battery.
The Supreme Court reversed the ruling, finding that Willis did not cross that line. Her son's punishment was neither degrading nor disproportionate to the offense, and his bruises were neither "serious harm" nor permanent, the court ruled.
In charting this new territory, the Supreme Court said it was adopting a view contained in the "Restatement of the Law, Torts," a sort of legal textbook from which state courts can seek guidance.
Justice Frank Sullivan, a South Bend native, dissented from the majority opinion. Sullivan wrote that the ruling "increases the quantum of effort that the state will be required to expend in its efforts to protect children from abuse. Particularly given the commitment of time and resources that the legislative and executive branches have devoted to this subject for the last two decades and more, I believe that such a policy change should be made by the legislative and executive branches, not the judiciary."
St. Joseph County Probate Judge Peter Nemeth, who presides over child welfare cases, said Sullivan made a good point, but he thinks the ruling will help clarify the issue for judges. He said he likely would circulate a copy of the ruling to attorneys who represent Child Protective Services.
Nemeth said he believes that corporal punishment still is needed in society, despite it having largely fallen out of favor in recent years. He said he did not foresee the ruling changing much how he rules on child welfare cases involving abuse allegations.
Generally, Child Protective Services only substantiates child abuse if a mark or bruise is visible, and brings those cases before the judge, but that doesn't mean the judge will necessarily agree that the parental discipline went too far.
"I suspect that CPS will continue to err on the side of safety of the child, and still bring me the case to decide," Nemeth said. "I think (the opinion) articulates some factors judges already are considering but it's nice to see it in black and white by the Supreme Court ... and if a case like this goes down the line, they will affirm you rather than reverse you."
Wednesday, June 11, 2008
Ind. Courts - ACLU sues city in federal court over homeless [Updated]
Jon Murray has this just-posted story in the Indianapols Star. Some quotes:
The American Civil Liberties Union of Indiana filed a lawsuit today against the city over what its attorneys see as a too-aggressive crackdown on the homeless in Downtown Indianapolis.[Updated 6/12/08] Here is the updated version of Murray's story.
The suit, filed on behalf of four men, says Indianapolis Metropolitan Police Department officers have hassled them even though they weren't breaking state panhandling laws. Two men who were holding cups but not speaking were told by officers they couldn't solicit contributions, the suit says.
Two others who were not soliciting -- but appeared homeless -- have been forced multiple times to produce identification and wait while officers conducted records checks, the lawsuit says.
Such treatment violates the U.S. Constitution's protections of free speech and against unreasonable searches, argues the suit, filed this morning in U.S. District Court. It seeks class-action status and has four homeless men named as plaintiffs: Richard Dellantonio, Douglas Ayres, Ryan McClellan and Richard Byrd.
ACLU Legal Director Ken Falk says the suit seeks an injunction barring police from overstepping their legal bounds.
Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
Renuka Devi Mahadeva v. Rudrappa Gangadhar, Meera Gangadhar and Tri-Fab, LLC, et al (NFP) - "Renuka Devi Mahadeva (“Renuka”), individually and as personal representative of the estate of Mahadeva Rudrappa, appeals the trial court’s denial of her fraud claim, which included claims for emotional distress damages, punitive damages, and damages for attorney fees related to underlying litigation. We affirm in part and remand in part. Rudrappa Gunashekar (“Gunashekar”) filed a cross-appeal, claiming that the trial court erred in entering judgment against him on Renuka’s conversion claim. Renuka filed a motion to dismiss Gunahekar’s cross-appeal, which we grant by separate order."
Termination of Parent-Child Relationship of C.W., B. Williamson and D. Johnson v. State of Indiana (NFP) - "Johnson and Williamson have failed to comply with and benefit from a number of dispositional goals put into place during the CHINS proceedings. While Johnson and Williamson may have a sincere desire to be reunited with their daughter, they have been either unable or unwilling to provide C.W. with a stable home environment. The trial court’s judgment terminating Johnson’s and Williamson’s parental rights to C.W. is supported by clear and convincing evidence. The judgment is therefore affirmed."
NFP criminal opinions today (3):
Courts - What is still pending before SCOTUS?
The great SCOTUSBlog has posted its newest edition of StatPack, including a list of the 22 cases yet to be decided (some opinions may be issued tomorrow). Look at pp. 10-12 for the outstanding cases as of 6/9/08. Two on the list are of particular interest to the ILB:
District of Columbia v. Heller (07-290) - Argued 3/18/2008. Whether D.C. code violates the Second Amendment right of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes. [See ILB entries from Sept. 8, 2007 and Nov. 20, 2007.]
Indiana v. Edwards (07-208) - Argued 3/26/2008. Whether States may adopt a higher standard for measuring competency to represent oneself at trial than for measuring competency to stand trial. [See ILB entry from March 26th here.]
Ind. Courts - "LaGrange Courts to upgrade recording system"
From the Goshen News:
LaGrange County Council members approved the purchase of a new digital audio recording system for the county circuit and superior courts during Monday’s meeting. The new system will cost $44,790.
Director of Information Technology Bob Murphy said that due to the system’s video conferencing capabilities, the courts would be able to hold arraignments without having to transport inmates from the jail to the courthouse.
This would cut down on gas expenses and man hours, as well as the potential for accidents and security risks, LaGrange County Sheriff Terry Martin said.
Audio quality would be greatly improved as well, Murphy said, which was a concern with the current, 10-year-old system.
“The quality on the (current) recordings is just atrocious,” Murphy said, so bad that some of the recordings would need to be thrown out in appellate courts.
The council voted to pay for the system with money from the riverboat gambling fund.
Ind. Courts - Steuben County public defender office has problems
WLKI News, Angola, is reporting:
The attorney who oversees Steuben County's public defender program told the County Council yesterday that another public defender will be needed next year due to the large number of indigent cases. Hugh Taylor said the program in Steuben County was in danger of being halted by the state because of noncompliance. Taylor made a similair request to the County Council at this time last year. He said compared to other counties, Steuben County's staffing was inadaquate. Council member Paul Sparks told Taylor that the state of Indiana has to fulfill their obligation of providing compensation to Steuben County. After further discussion, Taylor was told to go ahead and try and get another public defender when talks with state officials in September.
Ind. Law - "DNA databases help police solve cold cases"
Unlike other ILB entires (eg this one from June 2nd) quoting stories that complain of the "CSI effect", this story today by Marisa Kwiatkowski of the NWI Times is headlined "DNA databases help police solve cold cases."
Ind. Courts - Even more on "Landowner calls move by pipeline company as intimidation"
Hoosier landowners yet to reach an agreement with the company building a multistate natural gas pipeline could end up in a federal courtroom.In a story June 4th, Thomas reported:
Rockies Express filed a condemnation lawsuit in U.S. District Court on Friday against the owners of 84 parcels in the path of Rockies Express-East, a 639-mile pipeline stretching from Missouri to Ohio. Its route includes nine Indiana counties.
The pipeline company is seeking a permanent 50-foot right-of-way easement along each parcel and a temporary easement during construction totaling 75 feet, under the authority of the Natural Gas Act.
In the filing, lawyers for the Houston-based pipeline argued Rockies Express "has made reasonable written offers . . . before instituting this action, but the named defendants have not come to an agreement with REX, or failed to respond."
The lawsuit includes landowners from Hendricks, Johnson, Morgan and Shelby counties in the Indianapolis metro area.
If landowners cannot reach an agreement with the pipeline company, then a federal judge will determine the fair market value of the land in dispute.
A multistate pipeline that will stretch through nine Indiana counties has cleared another hurdle toward final federal approval.
The Federal Energy Regulatory Commission on Friday authorized the construction of Rockies Express-East, a 639-mile project that would carry natural gas from Missouri to Ohio.
The project is the final leg of a more than 1,600-mile pipeline that begins in Colorado and ends in Monroe County, Ohio. * * *
But there still is work remaining.
Rockies Express must submit an implementation plan on 147 mitigation measures -- mostly environmental concerns -- attached to the project, which Fore said likely would be done this week.
Commission staff must then approve the plan, which will be the final step before construction.
Ind. Gov't. - Still more on: Indiana, Land of Lincoln
Great news for Indiana Lincoln fans: State and Allen County leaders have put together a "compelling proposal" to keep the Lincoln Museum's $20 million collection right here in Indiana, the 16th president's boyhood home. Credit a coalition of concerned Hoosiers headed by retired Lincoln Financial CEO Ian M. Rolland. * * *
If Indiana's proposal is accepted by Lincoln Financial Foundation, memorabilia could be available for viewing as early as next year, the bicentennial of Lincoln's birthday. A final decision won't be made until December.
In March, the foundation announced it would close the Lincoln Museum on June 30 and offer its $20 million collection to another institution in hopes of wider exposure. The private museum had been in Fort Wayne since 1931 when it was created by Lincoln National Life Insurance Co.; its closure was foreshadowed in 1998 when the corporate headquarters moved to Philadelphia.
Indiana's bid, while strong, is not a done deal, according to those involved. Among others in the running: the Smithsonian Institution and the Lincoln Museum and Library in Springfield, Ill.
Thursday, Rolland will announce a campaign to raise roughly $8.5 million for an endowed fund that would maintain the collection, which includes books, photographs, signed documents and artifacts. Under Indiana's proposal, the materials would be shared by the Indiana State Museum, which would dedicate a Lincoln Gallery for its display, and the Allen County Public Library.
Rolland, a lifelong Hoosier who had much to do with the accumulation of the collection during his 21 years as CEO, said the proposal is the result of an "enormously positive collaborative effort" between the Allen County Public Library, Friends of the Lincoln Museum in Fort Wayne, the governor's office, State Museum, State Library, Indiana Historical Society and Indiana Lincoln Bicentennial Commission.
Gary Abell, spokesman for Gov. Mitch Daniels, agreed. "We've had a lot of people working on this and we've put together what we believe to be a compelling proposal."
Tuesday, June 10, 2008
Ind. Decisions - Supreme Court posts two late Tuesday
In Emma McPeek et al v. Charles McCardle, an 8-page, 5-0 opinion in an appeal argued Nov. 1, 2007, Justice Rucker writes:
The question raised in this opinion is whether a marriage solemnized in another state in violation of that state’s law may be recognized as valid in this state if the marriage complies with this state’s law. The answer is yes. * * *In Sophia Willis v. State of Indiana, a 10-page, 4-1 opinion in an appeal argued Sept. 6, 2007, Justice Rucker writes:
We conclude that where, as here, a couple has complied with Indiana’s statutory requirements regarding marriage licenses, certificates, and solemnization, such that the marriage would have been valid if solemnized in this state, we will recognize the marriage as valid even if the marriage ceremony took place in another state and did not comply with that state’s law or public policy. It is worth emphasizing however that a couple intending to use or, as occurred here, has already used an Indiana marriage license for an out-of-state marriage should take the additional step of re-solemnizing their marriage in Indiana in order to avoid future questions about its validity.
Conclusion The trial court granted McCardle’s motion to dismiss based on the lack of standing. We affirm the judgment of the trial court albeit on a different theory.
This case requires us to examine the balance that must be struck in determining when a parent’s use of physical force as a form of discipline crosses the line into criminal conduct. We conclude the line was not crossed in this instance. * * *
In response to a charge of battery, Willis raised the defense of parental discipline privilege. Considering the totality of the circumstances, we are not persuaded that the State disproved the defense beyond a reasonable doubt. We therefore set aside Willis’ conviction.
Conclusion. We reverse the judgment of the trial court.
Shepard, C.J. and Dickson and Boehm, JJ., concur.
Sullivan, J., dissents with separate opinion: I respectfully dissent. We see on appeal many cases of child abuse in which the parents claim that they were only disciplining their children, that they reasonably believed that the force they used was necessary to control their children or prevent misconduct. By authorizing parents to impose as much force they believe is necessary unless the State proves beyond a reasonable doubt that either (1) the force used was unreasonable; or (2) the parents’ belief was unreasonable, the Court increases the quantum of effort that the State will be re-quired to expend in its efforts to protect children from abuse. As such, the Court’s opinion constitutes a change in our State’s policy toward child abuse. Particularly given the commitment of time and resources that the legislative and executive branches have devoted to this subject for the last two decades and more, I believe that such a policy change should be made by the legislative and executive branches, not the judiciary.
Courts - End of SCOTUS term is in sight
This term of the Supreme Court is nearing its end and a number of good articles have been printed recently, looking at the Court. Linda Greenhouse, the great NY Times Supreme Court reporter who is soon moving on, had a story May 23rd headed "At Supreme Court, 5-to-4 Rulings Fade, but Why?" It reminds us that Justice Kennedy was supposed to be the new Sandra Day O'Connor, the swing vote in all the 5-4 opinions. Instead, Greenhouse writes, that only lasted one year:
Where have all the 5-to-4 decisions gone?And what of Sandra Day O'connor herself?Joan Biskupic of USA Today has a long article today headed "O'Connor's legacy fading on reshaped court." It begins:
And whatever happened to the “Kennedy Court”?
A year ago at this time, the Supreme Court had decided 13 cases by votes of 5 to 4, out of 41 total decisions. That proved to be an accurate snapshot of a highly polarized term. By the time the court wrapped up its work five weeks later, a third of the cases — the highest proportion in years — had been decided by margins of a single vote.
But so far this term, with 35 cases decided with full opinions, there has been only a single 5-to-4 decision. It came in a low-visibility statutory case, not in a hot-button constitutional one. And the justices did not break along the ideological divisions that shaped the last term. Justice Anthony M. Kennedy, who was in the majority in all 24 of last term’s 5-to-4 decisions, voted in dissent.
Justice Kennedy’s dominance last term was so complete that, of 68 decisions, he cast only two dissenting votes. He has already dissented five times this term. So have Justices Samuel A. Alito Jr., Stephen G. Breyer and John Paul Stevens. In other words, no longer the essential justice, Anthony Kennedy now looks like just one of the pack.
Something is happening, clearly. The question is what.
When retired justice Sandra Day O'Connor visited Capitol Hill recently to speak publicly about her husband's Alzheimer's, she was greeted as a national hero. Senators lauded her historic place as the first woman on the Supreme Court and the justice whose opinions often set the nation's law.
Even as O'Connor broadens her public profile, though, much of her legal signature already is fading from the court. Since she stepped down in January 2006 after a nearly quarter-century tenure, the court has undercut several of her most important rulings on issues such as abortion rights, campaign finance law and government policies intended to help racial minorities.
Notably absent among the current justices is an emphasis on how the high court's decisions affect the states, whose officials often complain about congressional mandates and federal judges meddling in their business. State autonomy was a priority for O'Connor, a former Arizona state senator who was the only former elected official on the court during her tenure. She was adamant that states are separate political entities that should be able to operate without federal intervention.
The court's new direction on high-profile social-policy questions — which has included enhancing the government's authority to restrict abortion — stems from its more conservative approach under Chief Justice John Roberts and O'Connor's successor, Samuel Alito, who is to the right of O'Connor.
Ind. Decisions - Court of Appeals posts another opinion
As the ILB has noted before, when a case is posted to the Court of Appeals website after the regular posting, with no indication that it is in addition, and in fact is added to the middle of the current list, it is likely to be missed by those who read the Court's opinions every day. The ILB noticed late this afternoon that what had been a list of 22 new opinions today was suddenly 23, and by a process of comparing lists, discovered the new, for publication, decision in Jesse Peters v. State, a case where the issue was "Did the trial court abuse its discretion in admitting evidence seized as a result of a warrantless search of Peters’s car?." Judge Friedlander concludes:
For the same reasons set forth above, we conclude that the warrantless search of Peters’s car did not violate article 1, section 11. Captain Blount detected a strong odor of ether on Peters’s person and in his car, found a crank pipe on Peters, and observed other indicia of methamphetamine manufacturing in the wrecked vehicle, all of which alerted him to the possible presence of a roving methamphetamine lab in the vehicle. Knowing the dangers posed by ether and potential hazards presented by methamphetamine manufacture, combined with the fact that the vehicle had just been involved in an accident, Captain Blount’s concern for his safety and the safety of others was reasonable. These same circumstances also dictate the need for Captain Blount to search the vehicle in order to locate the source of the ether odor. Given that the vehicle had sustained serious front-end damage during the accident and that Peters had already been transported from the scene by an ambulance, there was no intrusion upon Peters’s ordinary activities. In sum, the warrantless search of Peters’s vehicle was reasonable under the circumstances. Finding no violation of the Fourth Amendment or article 1, section 11, we therefore conclude that the trial court did not abuse its discretion in admitting evidence seized as a result warrantless search.
Ind. Courts - Judicial Nominating Commission to consider St. Joseph vacancy
From a release today:
Indiana Supreme Court Justice Frank Sullivan, Jr., who chairs the St. Joseph Superior Court Judicial Nominating Commission, announced today that the Commission will meet to begin the process of selecting a new superior court judge. Judge William T. Means has announced that he will retire on September 30, 2008, leaving a vacancy on the St. Joseph Superior Court.
“State law requires that the Judicial Nominating Commission nominate five candidates for appointment to the St. Joseph Superior Court when a vacancy arises,” Justice Sullivan said. “The final appointment is made by the Governor. Under the statute, only attorneys who live in St. Joseph County are eligible to be considered by the Commission for nomination.”
Justice Sullivan said that the Nominating Commission will meet on Wednesday, June 11, at 9:30 a.m. in the St. Joseph County Courthouse, to establish a schedule and procedure for taking applications from attorneys interested in being considered for nomination. No further information on application deadlines or procedures will be available until that time.
The Indiana General Assembly established the seven-member Nominating Commission in 1973. Three of the members must be lawyers elected by St. Joseph County lawyers. Three must be non-lawyers appointed by a committee that includes the St. Joseph Circuit Judge, the mayors of South Bend and Mishawaka, and the president of the board of the St. Joseph County commissioners. The seventh member, who serves as the chair, must be a justice of the Indiana Supreme Court or a Court of Appeals judge appointed by the Chief Justice of the Indiana Supreme Court.
Ind. Decisions - Court of Appeals issues 6 today (and 16 NFP)
For publication opinions today (6):
Gilbert Ramon v. State of Indiana , a 29-page, 2-1 opinion, discusses several significant issues at length, including the State’s ability to amend the charging information under IC 35-34-1-5 and whether application of the amended version of the statute to the defendant violates ex post facto laws, as the dissent writes. This issue is first raised by the Court, sua spone, at p. 10.
Barry Wanner v. Jill Hutchcroft - "We find no abuse of discretion in the trial court’s decision to divide the marital estate equally, in accordance with the statutory presumption that an equal division is just and reasonable. Nor do we find an abuse of discretion in the trial court’s allocation of tax consequences."
In Swan Lake Holdings LLC v. Dean Hiles and Denielle Hiles, a 15-page opinion, Judge Crone writes:
Swan Lake Holdings, LLC (“Swan Lake”), appeals the denial of its motion for judgment on the evidence and the jury’s verdict finding it thirty-five percent at fault on the premises liability complaint filed by Dean and Denielle Hiles. We affirm. * * *In Estate of Martha O'Neal, Therese Newkirk v. Bethlehem Woods Nursing and Rehabilitation Center, a 4-page opinion, Judge Robb concludes: "We grant Petitioners’ petition for rehearing for the limited purpose of clarifying the issues discussed above and affirm our original opinion in its entirety."
[I] In the case at bar, the fact that Swan Lake had no control over the manner in which Hiles performed his services is not dispositive because there is evidence of probative value to support a finding that the rotten purlins were a cause of Hiles’s fall. We conclude that the trial court properly denied Swan Lake’s motion for judgment on the evidence. * * *
[II] “Any error regarding an instruction is waived where grounds asserted on appeal differ from those stated in objections at trial.” Babson Bros. Co. v. Tipstar Corp., 446 N.E.2d 11, 15 (Ind. Ct. App. 1983); Dominguez v. Gallmeyer, 402 N.E.2d 1295, 1300 (Ind. Ct. App. 1980). We conclude that Swan Lake has waived this argument. * * *
[III] Although there are differences between this case and Beta Steel, the evidence here supports an inference that Swan Lake permitted a dangerous condition to develop on its property that it did not address, that is, the rotten purlins. In that sense, Swan Lake could be said to have “created” a dangerous condition. Our review of the record supports the Hileses’ assertion that Swan Lake’s lack of control was a significant issue in the case. Therefore, we cannot say that the trial court abused its discretion by giving instruction number six. Affirmed.
In James Kohlmeyer v. Second Injury Fund , an 11-page opinion, Judge Friedlander writes:
James Kohlmeyer appeals the Indiana Worker’s Compensation Board’s (the Board’s) denial of Kohlmeyer’s petition for payment of benefits from Indiana’s Second Injury Fund. The following issue is dispositive of the appeal: Do Social Security disability benefits count toward the threshold amount of benefits that must be received in order to become eligible for benefits from the Second Injury Fund? We affirm. * * *In Todd Allen Clark v. Michelle D. Clark, a 10-page, 2-1 opinion, Judge Riley writes:
In summary, we conclude that the threshold requirement regarding benefits received, as set out in I.C. § 22-3-3-13(h)(2), must be met by considering only Worker’s Compensation benefits. The arguments to the contrary made on behalf of Kohlmeyer are not without merit. They are, however, arguments more properly addressed to the General Assembly, inasmuch as they constitute appeals to modify the statute to include benefits from other sources in reaching the threshold. As it currently exists, the statute permits no such interpretation. We also conclude that the Stipulation signed by Kohlmeyer and H.B. Zachry Company and approved by the Board did not include a guarantee that Kohlmeyer would be eligible for Second Injury Fund benefits. Accordingly, the decision of the Board is affirmed.
Appellant-Respondent, Todd Allen Clark (Clark), appeals the trial court’s Order denying his Verified Petition for Abatement and/or Modification of Child Support Order. We reverse and remand.NFP civil opinions today (6):
Clark raises one issue on appeal, which we restate as: Whether the trial court abused its discretion in denying his petition in light of our supreme court’s decision in Lambert v. Lambert, 861 N.E.2d 1176 (Ind. 2007). * * *
[I] Established case law holds that incarceration due to voluntary criminal conduct is not a valid rationale for abatement of an existing child support order. [cites omitted] However, in light of our supreme court’s rationale in Lambert v. Lambert, 861 N.E.2d 1176 (Ind. 2007), we no longer believe these cases properly reflect the current status of the law. * * *
[In Lambert] the supreme court concluded that “in determining support orders, courts should not impute potential income to an imprisoned parent based on pre-incarceration wages or other employment-related income, but should rather calculate support based on the actual income and assets available to the parent.” In its analysis, our supreme court was very firm in distinguishing its holding from the situation at hand, i.e., how to treat incarceration in setting an initial child support order from a petition to modify an existing support order.
Although our supreme court limited Lambert specifically to the initial determination of a child support order, we now conclude that its rationale applies equally to a request for modification of a child support order based on changed circumstances due to incarceration. * * *
Granted, while Clark’s child support payment is set at a mere fifty-three dollars per week, this order is high compared to the twenty-one dollars he makes per month from his prison job assignment. Leaving his support order at the current level through Clark’s incarceration would build a high arrearage burdening Clark’s re-entry into the community upon his release. In light of our supreme court’s analysis in Lambert, we conclude that his incarceration serves as a changed circumstance so substantial and continuing as to make the terms of his support order unreasonable pursuant to I.C. § 31-16-8-1. * * *
[II] In its Order, the trial court appears to imply that public policy demands that an incarcerated parent’s child support obligation cannot be set at less than minimum wage. We are unaware of the existence of such a public policy. * * * Thus, minimum wage should not be interpreted as a cut-off amount for child support payments.
[Conclusion] Based on the foregoing, we conclude that the trial court improperly denied Clark’s Petition for Abatement and/or Modification of Child Support Order. Reversed and remanded for further proceedings in accordance with this opinion.
BAKER, C.J., concurs.
ROBB, J., dissents with separate opinion. [which concludes] Given Lambert’s deliberate and careful distinction between existing and new support orders, I believe it is our supreme court’s exclusive province to expand the parameters of Lambert in such a way as to include the situation presented in this case. Until it does, I believe that the existing case law holding that an abatement of an existing child support order is not warranted due to incarceration of one of the parties, see Ross v. Ross, 581 N.E.2d 982, 983 (Ind. Ct. App. 1991), continues to control. I would affirm the trial court.
David W. Woolf v. Elzie D. Hale (NFP) - "Here, although we affirm the trial court’s grant of summary judgment in favor of the Hales, we decline their request for attorney fees because the record does not support a finding that Woolf’s claims were permeated with bad faith, frivolity, or vexatiousness. The award of attorney fees in favor of the Hales is therefore unwarranted. See id. Affirmed and request for attorney fees is denied."
American Consulting v. Synette Schuck (NFP) - "On appeal, American Consulting presents one issue: Did the trial court err in concluding that Section 12 of an employment contract between American Consulting and Schuck constituted an unenforceable penalty rather than a valid provision for liquidated damages? We affirm."
In In re the Adoption of: C.I., J.A.S., and M.I. (NFP), a 6-page opinion, Judge Bailey writes:
Christopher and Trease S. (“the Foster Parents”) petitioned to adopt their four foster children, a sibling group consisting of C.I., J.A.S., J.E.S., and M.I. (“the Children”). Lena J., the paternal grandmother of twins J.A.S. and J.E.S. (“Grandmother”), petitioned to adopt them. The trial court granted the Foster Parents’ petition to adopt C.I. and M.I. but granted Grandmother’s petition to adopt J.A.S. and J.E.S. The Foster Parents now appeal. We reverse and remand with instructions.Matthew Wrinkles v. Dept. of Correction (NFP) - "Wrinkles has failed to demonstrate that IDOC policy required him to exhaust the grievance process prior to filing his notice of tort claim. To the contrary, IDOC policy permits the filing of a notice of tort claim prior to completion of the grievance process. Wrinkles acknowledges that he could have filed his notice of tort claim within the 180-day time limit, but that he did not. Despite his many arguments, Wrinkles has failed to establish that his efforts to exhaust the grievance process tolled the limitation period for filing a notice of tort claim. Wrinkles filing of his notice of tort claim was untimely. We therefore conclude that the court properly granted summary judgment in favor of the IDOC."
The Foster Parents present a single issue: whether the trial court clearly erred by finding it to be in the best interests of J.A.S. and J.E.S. that Grandmother, and not the Foster Parents, adopt them. * * *
The evidence of record supports the trial court’s determination with regard to the best interests of C.I. and M.I. The same evidence points solely to a conclusion that it is in the best interests of J.A.S. and J.E.S. to likewise be adopted by the Foster Parents. The trial court reached the opposite conclusion by erroneously giving legal preference to a biological relationship. We therefore reverse the order denying the Foster Parents’ petition to adopt J.A.S. and J.E.S. and granting Grandmother’s counter-petition for adoption. We remand with instructions to the trial court to grant the Foster Parents’ petition to adopt J.A.S. and J.E.S.
North Indiana Annual Conf. of the United Methodist Church, Inc. v. Rex Schrader (NFP) - "Issue. Whether the trial court erred in taking judicial notice of the conclusions, including the scope of the Conference’s easement, from a 1994 judgment." Affirmed.
NFP criminal opinions today (10):
Ind. Decisions - 7th Circuit decides one Indiana case today
Several times in the past, the ILB has reviewed 7th Circuit opinions that cited approving to language written by Theresa L. Springmann, Judge for the Northern District of Indiana, Fort Wayne Division. Today's opinion, by Judge Bauer, goes one step further, physically incorporating into the 7th Circuit opinion Judge Springmann's entire 27-page, Nov. 5, 2007 district court ruling.
In Nat'l Athletic Sportswear v. Westfield Ins., Judge Bauer writes:
In October of 2006, National Athletic Sportswear Company (“NAS”) filed a complaint against Westfield Insurance Company in Indiana state court, alleging that Westfield breached an insurance contract by refusing to pay NAS’s losses resulting from a burglary of its premises. Additionally, NAS complained that Westfield’s efforts to settle the claim were in bad faith. Westfield removed the case to federal court, and filed an answer, as well as a counterclaim seeking a declaratory judgment that NAS failed to comply with the terms of the Examination Under Oath (“EUO”) provision in the policy, because NAS refused to submit to Westfield’s request for a second EUO. Subsequently, Westfield moved for summary judgment. The district court granted the motion, concluding that it was not unreasonable for Westfield to require a second EUO, therefore NAS breached the contract by failing to comply with the terms and conditions of the policy, and that Westfield did not breach its good faith duty.
NAS objects to the district court’s findings and further argues that material issues of fact existed as to both claims. Because the district court issued a thorough and well-reasoned opinion and order that does not contain any error, we adopt the district court’s opinion and order dated November 5, 2007, as our own and AFFIRM the judgment of the lower court on all counts. A copy of the district court’s November 5, 2007 opinion and order is attached and incorporated herein.
Courts - Even more on "Ohio Court Debates Rights to Body Parts"
Updating this ILB entry from June 8th, Mitch Harper of Fort Wayne Observed sends along a story from the June 7th Cincinnati Enquirer headed "Eyes taken, parents sue: West Chester couple says teen didn't want organs donated." The suit alleges the daughter's eyes were harvested without permission. Apparently nothing in writing is required. From the story:
They hired John Metz. He is the same attorney who helped families win a $5 million settlement in 2000 of a civil suit filed against the Coroner's Office and Hamilton County, saying their relatives had their corneas harvested without family knowledge or permission.The story includes a link to the 10-page complaint.
It is illegal to sell body parts or tissue, but Metz noted many companies get around that by charging from $300 to $900 in "handling fees" to mail or ship corneas, eyes and organs.
Ind. Courts - More on: Familiar names suspended from practice
It turns out a correction is in order. Yesterday the ILB posted this entry and soon thereafter posted a comment from a reader: "A reader writes: "Just for what it's worth, I noticed that the Jasper County Circuit Judge was on the fee list as well."
Sure enough, if you look a page 5 of the court-supplied list, under Jasper County, you see a name beginning "Hon. ____". However, it turns out that the name listed under Jasper County is that of the Newton County Circuit Judge.
(Researched via the Indiana Trial Courts page.)
Ind. Courts - "Media barred from Lay custody trial"
Kate Braser reports today in the Evansville Courier & Press:
The news media is being barred from attending court proceedings related to the custody cases of two children of a couple accused of murder in the death of their son, Kalab Lay.For background, see this ILB entry from April 20th titled "If the public is to not only understand the procedures in place for protecting children from abuse and neglect, but also to influence change in those procedures when necessary, it must have information"
The announcement was made Monday after Vanderburgh Juvenile Court Judge Brett Niemeier learned a motion for a temporary stay, filed by Amanda Brooks Lay's attorney, was granted by the Indiana Court of Appeals.
Niemeier previously had denied the motion.
A hearing has not been scheduled by the appeals court, and the order will remain in effect until then. * * *
In an order issued April 14, Niemeier opened the proceedings to the media.
In the order, he wrote the court was granting access to the media so the public could gain insight into the workings of the court and Department of Child Services.
Niemeier cited specific Indiana Code stating a juvenile judge may grant "any person having a legitimate interest in the work of the court or in a particular case access to the court's legal records."
Erin Berger, an attorney representing Brooks Lay in the juvenile court proceedings, filed a motion to correct error on April 16. In the order, she asked the judge to reconsider his decision and not allow reporters to attend.
Berger wrote that Brooks Lay "objects to the release of information relating to the Child in Need of Services cases, to the background and current living and financial situation of the maternal grandmother and to the placement of the children."
She said "the privacy interests of the children and the parents outweigh any interest the general public may have regarding information that was not already published before April 14, 2008."
Referring to the intense public interest in the case, Berger wrote, "A mob mentality calling for vigilante justice, created by for profit, front page news reporting does not establish a compelling interest in the release of confidential information."
Berger went on to say that if the media had requested access to several cases to conduct a study of the workings of the juvenile court, "then the media may have been acting in the public interest."
"However, here, the media went after a specific individual in a specific case to continue to keep the case in the headlines. It would be in error to hold that sensational and commercial profit outweigh the children's right to privacy with regard to events in their own lives."
Niemeier denied her request on May 27, stating, "The court believes it is in the best interest of the community to allow access to these cases. The court's grant of limited access to Kalab's siblings' cases pales in comparison to the access that this court has to grant under Indiana law to the death concerning Kalab."
Niemeier added the media access did not violate the parents' criminal rights, and "it should not go unnoticed that in these cases the children have been proven to be children in need of services due to the actions of the parents. Any deterrent effect that the publicity in this case might generate only helps other children in this community."
Ind. Courts - "On graduation day, a diploma and a cleared criminal record"
Daniel Human of the Gary Post-Tribune reports today in a story that begins:
As Rachel Love walked up to a woman clad in black robes to collect her diploma Monday, the Valparaiso resident received something else beyond the standard graduation fare -- a cleared criminal charge and a second chance.
Judge Julia Jent embraced Love with a hug as she presented her with a diploma at the Porter County Drug Court graduation.
Jent said she couldn't find the original mug shot of now 21-year-old Love from before she entered the program 15 months ago, but the judge doted on the graduate, saying how her eyes were once sunken from drug abuse.
"(I enrolled in Drug Court) so pretty much my life wouldn't be destroyed by a felony," Love said.
Before her family put her in the program, she said, she faced a theft charge. After graduating and having her felony charge cleared, she plans to continue her education at Indiana University Northwest and receive a degree in criminal justice.
The ceremony celebrated 14 others who moved up to the next phase in the three-tiered program.
Drug Court is a rehabilitation program, funded mostly by the Indiana Department of Correction, that puts its applicants through three phases.
Ind. Law - Still more on "Red light cameras legal?"
HAMMOND | Concerned about the city's adoption of red-light cameras, City Clerk Robert Golec said he will raise the issue at this week's annual conference of the Indiana League of Municipal Clerks and Treasurers.
Golec said he questions whether the resulting citations can be written as parking tickets as the city intends. Golec said he believes running a red light is a moving violation "if it walks like a duck and talks like a duck."
Under the city's plan, the private company operating the camera system would collect on parking fines, but Golec said state law appears to require his office to collect on moving violations. He fears a significant increase in the burden on his office, which could be costly, he said.
Should even 100 additional tickets be written a day, Golec said he faces processing some 2,000 more tickets a month, meaning he may need to hire part-time help.
Meanwhile, police officers already have written 2,000 more tickets than they had last year at this time, many of which are uncollected, he said. Golec said if people aren't paying tickets written by police officers, he questioned the odds of people paying tickets that would come in the mail from a private company.
"What about the unpaid tickets?" he said.
There is talk of hiring a collection agency, which Golec called "another whole legal quagmire."
Ind. Courts - More on: Robert Cantrell found guilty on all charges
Updating this ILB entry from last weekend, stories today on what's next.
Joe Carlson's story in the NWI Times is headed "Will political operative 'flip'?" Not like, says the story. In addition, it points up the identity issue Andy Grimm of the Gary Post Tribune reported over the weekend. Carlson reports today :
Cantrell was convicted of all 11 public corruption crimes he was charged with, but he still has one last chance for acquittal before he has to decide whether to file an appeal.Grimm's story today in the P-T, headed "Cantrell's legend, if not power, lingers," reports, in a lengthy story:
During the gap between the prosecution and defense phases of the trial, defense attorney Kevin Milner said prosecutors failed to have any of the dozens of witnesses in the six-day trial positively identify Cantrell in the courtroom.
U.S. District Judge Rudy Lozano refused to reopen the trial's prosecution phase so that a government witness could identify Cantrell, and Milner did not put a witness on the stand during the defense who could be cross-examined.
Joe Hero, a St. John Republican who sparred with Cantrell before Cantrell officially became a Democrat in 2003, said Cantrell told him during a chance encounter at a restaurant Sunday that he was putting his hopes in the identity issue.
And despite last week's conviction, Cantrell's power -- and the legend of it -- lingers.
Some longtime allies and rivals didn't return phone calls from the Post-Tribune and others suggested -- off-the-record -- that local politicians may still be waiting to see how things shake out. Cantrell's conviction has yet to be formally entered pending a ruling from federal Judge Rudy Lozano on a last-ditch motion to have the case thrown out on a technicality.
Others may be hesitant to speak because it is widely believed that Cantrell may have information of interest to federal investigators, involving dozens of political figures.
McDermott said he doesn't know if Cantrell knows about other illegal activity, but he doubts Cantrell would divulge it if he did.
"I really don't think he's the type of person that's going to roll," he said. "He's old school."
Ind. Law - More on: Clark County attorney works for State Department as a contract lawyer
After two years of working in Sudan and Afghanistan -- helping to develop the legal systems there for the U.S. State Department -- Jeremy Mull is home and is returning to the Clark County prosecutor's office as the chief deputy prosecutor.
Mull, 34, will begin in July, replacing Bill Grimes, who retired at the end of May.
Since then, former Clark Circuit Judge Daniel Donahue, who also is a former prosecutor, has been filling in as chief deputy but is expected to leave early next month.
"I believe being a prosecutor is one of the most fulfilling jobs out there," Mull said yesterday, adding that he leaped at the opportunity when he learned that Grimes was retiring.
He said his time abroad provided him with a chance to see other cultures and how their legal systems work to uphold the law.
"I think that there are challenges wherever you are to maintain law and order," Mull said. "The methods may be different, but the goal is the same."
The time came where he decided he needed to be back in Clark County, closer to his family. He said he had kept in touch with Clark County Prosecutor Steve Stewart and Grimes, and he learned of the opening that way.
Stewart said that when it came to considering Mull for the position, he knew him very well -- they had worked together for eight years.
"I know he's committed to doing what is right and seeking justice," Stewart said.
Mull worked as Stewart's deputy prosecutor, handling hundreds of drug cases a year from 1999 to 2006, when he took a leave to work in Sudan. He was employed by a contractor for the State Department, which assigned him to work for the United Nations Police Commissioner.
Ind. Courts - More on: Johnson County court cancelled
A number of Johnson County employees were put on standby as officials searched for a temporary home after the Courthouse Annex and the Oren Wright administrative buildings in downtown Franklin sustained damage, said Jeff Eggers, lawyer for the Johnson County Commissioners.
The flooded buildings house several county offices, including the health department and commissioners' offices, as well as the planning and zoning department and the prosecutor's office.
Prosecutor Lance Hamner inspected the damage to his office Monday afternoon. The waters created a huge gash in the building. Hamner was in the building Saturday when the water starting rising. He said he attempted to unplug and move all the computers, and he received a couple of mild electric shocks in the process.
"All this happened within half an hour," he said, adding that at one point, he looked out his window and realized how high the water was. "It looked like it was an aquarium."
The Johnson County Courthouse was unaffected, allowing business there to carry on Monday. [Emphasis by ILB] But as much as 5 feet of water had accumulated inside the Wright building on Jackson Street, which Commissioner Mitch Ripley said was "uninhabitable." Furniture, documents and other office items were airing out along the sidewalk Monday.
Monday, June 09, 2008
Ind. Law - "Barnes & Thornburg LLP Establishes Practice Group Focused on Nanotechnology Opportunities"
A press release today begins:
INDIANAPOLIS, June 9 /PRNewswire/ -- The anticipated impact of nanotechnology upon society is frequently referred to as the "second industrial revolution." Recognizing the potential that nanotechnology has to affect business and industry in the near future, Barnes & Thornburg LLP has established a Nanotechnology Practice Group to continue its current work in the area and assist businesses involved in seeking new applications of nanotechnology.
Nanotechnology refers to a field of applied science and technology that relates to the control of matter on the atomic or molecular scale, generally 100 nanometers or smaller, and the fabrication of devices or materials that lie within that size range. The firm's attorneys already are advising clients on nanotechnology's applications in a variety of fields, including in biotechnology, medical devices, pharmaceuticals, electrical engineering and environmental.
The practice group, co-chaired by Philip J. Faccenda, Jr., a partner in the firm's South Bend office, and Todd Vare, a partner in the firm's Indianapolis office, includes attorneys from a variety of disciplines, including intellectual property, business, environmental, biotech, governmental services, entrepreneurial services and litigation.
Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)
For publication opinions today (1):
In Martha S. Pressley v. Newburgh Town Council, a 12-page opinion, Chief Judge Baker writes:
Martha S. Pressley appeals the trial court’s grant of summary judgment in favor of Newburgh Town Council (Town Council) and Town of Newburgh Historical Preservation Council (Preservation Council) (collectively, the Town). Specifically, Pressley argues that the trial court erred in denying her motion to strike an affidavit that the Town presented in support of its motion for summary judgment regarding the inclusion of her property in a historic preservation district (HPD). Moreover, Pressley claims that the designated evidence established as a matter of law that the Town failed to comply with several statutory requirements before determining that her property could be included in an HPD. Finding no error, we affirm the judgment of the trial court. * * *NFP civil opinions today (2):
In sum, it is apparent that when the HPC was created, the Town anticipated that any number of HPDs might be created in light of its future needs. Thus, when the HPC determined that there was a need to consider Pressley’s property as a potential HPD, the HPC followed the requisite statutory procedures in considering the property for inclusion in an HPD, and recommended to the Town Council that Pressley’s property be designated as such. The evidence contained in the record, including the Report, Hijuelos’s survey and on-site inspections, the maps adopted by the HPC, and the minutes of the meetings, supported the Town’s determination that Pressley’s property is of outstanding historic and architectural merit. As a result, Pressley has failed to show that the Town erred in designating her property as an HPD, and we conclude that the trial court properly granted the Town’s motion for summary judgment.
In Marcy Jasmund Cherry v. John Cherry III (NFP), a 7-page, 2-1 opinion, Judge Kirsch writes:
Marcy Jasmund Cherry (“Wife”) appeals the trial court’s division of marital property in her dissolution with John Cherry III (“Husband”). Wife raises several issues that we consolidate and restate as: whether the trial court abused its discretion in dividing the marital property. We affirm in part, reverse in part, and remand with instructions. * * *
Here, the trial court abused its discretion by entering a property division that exceeds the net value of the marital estate. * * *
MAY, J., concurs in result without separate opinion.
RILEY, J., dissents with separate opinion: I respectfully dissent. I find that the trial court made an unequal division of the marital property that is “just and reasonable.” I disagree with the majority opinion that finds the net distribution to Husband was 125% of the marital estate. The trial court has carefully considered the assets and debt and has divided the marital estate pursuant to the provisions of I.C. § 31-15-7-5. I find there is no abuse of discretion and would affirm the trial court.
Belva Johnson v. Roberta Coleman (NFP) - "Here, there is no evidence that would enable a fact finder to make a decision without input from an expert. Accordingly, the narrow exception to the general rule requiring expert testimony does not apply, and the plaintiffs have failed to meet their burden."
NFP criminal opinions today (4):
Ind. Courts - Familiar names suspended from practice
Ed Feigenbaum's Indiana Legislative Insight ($$$) for June 9, 2008, contains these interesting items re attorneys suspended for failure to pay the annual fees and/or keep up with CLE requirements:
Fees. Among those suspended from the practice of law by the Indiana Supreme Court in mid-May (but only revealed last week) for nonpayment of attorney license fees: at least two former legislative candidates; a recent former state agency head; a long-time member of a highly visible state commission; a former top official in the Department of Correction; and even a former chief judge of the Indiana Court of Appeals.Access the 13-page list, " In the Matter of the NonPayment of Attorney Registration Fees", here.
CLEs. A former county prosecutor (with some interesting family ties), a former chair of a key state board, and a just-arrested attorney were also suspended by the Supremes for failure to comply with Continuing Legal Education requirements.
Access the 11-page list, "In the Matter of Failure to Comply with Continuing Legal Education Requirements", here.
[More]A reader writes: "Just for what it's worth, I noticed that the Jasper County Circuit Judge was on the fee list as well."
[Correction 6/10/08 - See correction re Jasper County here.]
Courts - "Cook County Circuit Court has been turned into a frenetic debt collections machine"
This long story today in the Chicago Tribune, reported by Ameet Sachdev, begins:
Cook County Circuit Court has been turned into a frenetic debt collections machine, a reflection of easy credit gone sour and a collections industry determined to get paid.
More than 119,000 civil lawsuits against alleged debtors are clogging courtrooms, and at least half will result in judgments that debt collectors will use to dock wages, seize bank accounts and file liens against homes, compounding the woes of troubled borrowers.
But because debt collectors operate on volume—pushing through lawsuits based on little more than lists of names, addresses and alleged amounts due—there are also plenty of instances of mistaken identities, cases where debts are alleged when the bills have been paid and even situations where people have fallen behind and tried to work out repayments only to be hauled in to court.
Ind. Law - Clark County attorney works for State Department as a contract lawyer
Ben Zion Hershberg of the Louisville Courier Journal writes today in a story that begins:
Jeremy Mull knew he wasn't in Indiana anymore when he drove to the entrance of a remote United Nations base in Sudan and encountered a pile of dead black mambas, the largest venomous snakes in Africa.
They'd been killed only recently, Mull said, and he was warned to be careful when walking in the camp at night because the deadly snakes -- often 8 feet long -- were aggressive and were common in the area.
That was one of the more disconcerting experiences for Mull, 34, during two overseas stints as a contract lawyer for the U.S. Department of State helping to develop effective legal systems in Sudan and Afghanistan. He returned from Afghanistan May 31.
Mull said he decided to go overseas partly because he was worn out from the huge caseload he had managed for seven years as Clark County's deputy prosecutor handling drug cases. Often, he said, he'd find himself "talking on his cell phone, his landline ringing, four people waiting to talk to him, and running to court."
At the same time, he was increasingly concerned about America's world standing as it attempts to create order in regions beset by violence and often lacking effective legal systems and other stable government institutions.
Ind. Decisions - "Indiana high court refuses to hear Boney appeal"
Janelle MacDonald of Louisville's WAVE 3 reports:
It looks like the end of appeals for convicted Camm family killer Charles Boney.Here is the link to the Friday, June 6th transfer list, listing the denial of transfer.
Boney is serving 225 years for the September 28th, 2000 murders of Kim, Brad and Jill Camm at their home in Georgetown, Indiana.
Earlier this year, a Court of Appeals upheld his conviction, but Boney wanted the Indiana Supreme Court to hear the case. Sunday, WAVE 3 checked on the case on the Indiana Clerk of Court's website. It says the Supreme Court justices declined to hear Boney's appeal.
Those same justices are right now considering the appeal of Boney's co-defendant, David Camm. A ruling on that appeal could take more than a year.
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This Thursday, June 12th:
9:00 AM - State v. Raymond Washington - Washington was stopped by police for a traffic infraction and asked whether he had guns, drugs or anything that might harm the officer. Washington responded that he had marijuana in his front pocket. When Washington was charged with a Class A misdemeanor for possession of marijuana, the Allen Superior Court granted Washington's motion to suppress the marijuana, and the Court of Appeals affirmed in State v. Washington, 875 N.E.2d 278 (Ind. Ct. App. Oct. 22, 2007), vacated. (ILB summary 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. Attorney for State; Cynthia Ploughe of Indianapolis, IN. Attorney for Washington; David Joley of Fort Wayne, IN.
9:45 AM - Randall Wagler v. West Boggs Sewer District - The sewer district sued to obtain an easement. Over certain landowners' objection, the Daviess Circuit Court entered an interlocutory order of appropriation and appointment of appraisers. Landowners appealed. After the Court of Appeals granted the landowners' request that they be relieved of the obligation to post the appeal bond required by the trial court, the sewer district filed a motion for emergency transfer to the Supreme Court pursuant Appellate Rule 56(A). The Supreme Court has granted transfer, assuming jurisdiction over the appeal. Attorneys for Appellants: Mark Small, Indianapolis, Indiana. Marilyn A. Hartman, Bloomfield, Indiana . Attorneys for Appellee: Alan S. Townsend, Bryan H. Babb, Stephen C. Unger, Indianapolis, Indiana.
Webcasts will be available here.
This week's oral arguments before the Court of Appeals that will be webcast:
This week's oral arguments before the Court of Appeals that will NOT be webcast:
This Monday, June 9th:
1:00 PM - American National Property and Casualty Insurance Company vs. Traci Wilmoth, et al - Three people died when a house insured by the American National Property & Casualty Co. ("ANPAC") burned. Wilmoth, a lessee and the mother of two victims, and Sharpe, administrator of the third victim's estate, sued ANPAC, alleging it permitted spoliation of evidence they might have needed in an action against the owner of the house. ANPAC's motion for summary judgment was denied and a jury awarded damages to Wilmoth and Sharpe.. ANPAC argues on appeal it was entitled to summary judgment because Wilmoth and Sharpe could not show they were injured by the destruction of the evidence - their experts were able to give opinions even though it was not available. Nor, ANPAC says, did it have a duty to Wilmoth and Sharpe as they were not its insureds and it did not have exclusive possession of the evidence. ANPAC also raises a number of errors in the admission or exclusion of other evidence at trial, and in the jury instructions The Scheduled Panel Members are: Judges Riley, Kirsch and May. [Where: Indiana Court of Appeals Courtroom]
Ind. Courts - Johnson County court cancelled
Cleanup will take months in Franklin. Officials in Johnson County scheduled a meeting Monday to come up with a recovery plan.
Numerous city and county offices, along with hundreds of families are affected. The Franklin Police Department was flooded and about a dozen police cars were destroyed.
Court is canceled for at least a week because the building that houses the prosecutor's office and law library is destroyed.
The water was 6 feet high inside the building and mixed with sewage. Offices are trashed, and court files are drenches.
Sunday, June 08, 2008
Ind. Law - More on "Red light cameras legal?"
HAMMOND | City leaders last week entered the murky world Indiana lawmakers have faced for years on the question of the legality of red light cameras.
The Hammond City Council on Monday voted 7-2 in favor of installing the cameras at six city intersections. The ordinance next requires the signature of Mayor Thomas McDermott Jr.
If signed, Hammond will become the first community in the state to authorize using red light cameras though the General Assembly has a history of wrestling with the issue.
"There's a lot of controversy," said state Sen. Frank Mrvan Jr., D-Hammond, citing privacy issues as a particular rub. "It's a real tricky situation. There's more than one way this will be challenged. They should prepare themselves for litigation."
Mrvan said after years of the House shooting down any attempt to legislate the issue, resolutions from both the House and the Senate have assigned the question to this summer's study committee.
Six years ago, Fort Wayne, the state's second largest city, came close to being the first community in the state to authorize the cameras, which capture license plate numbers of cars caught running red lights.
As did Hammond, Fort Wayne limited the cameras to local streets, avoiding state and federal highways where they may not be installed under state law, and aimed to treat the citations as parking tickets.
But after considerable time and effort, city leaders, believing they needed a change in state law, decided to take a wait-and-see stance after testifying in 2002 at a Senate subcommittee. The bill later died, city spokeswoman Rachel Blakeman said last week. * * *
In addition, the city was confronted with its attorneys saying the law required the citations to go through court as moving violations. City Council members reportedly don't want to subject motorists to penalties associated with moving violations, which include court costs and points against the driver's license.
Under the ordinance passed in Hammond last week, violations will be treated as parking tickets unless contested, at which point they enter the court system as moving violations, increasing the $100 fine to $211 and incurring driving points. * * *
Legislation regarding the use of red light cameras as a remedy varies nationwide, resulting in class action lawsuits and constitutional challenges. Two states, New Jersey and Wisconsin, have prohibited their use under any circumstances, according to the National Conference of State Legislatures.
Courts - Still more on "Ohio Court Debates Rights to Body Parts"
Updating this ILB entry from Jan. 28th, which includes a quote from the Washington Post that begins:
The Albrechts' discovery that they had buried their son without his brain has led to a federal class-action suit that could cost local governments millions of dollars, force changes in the way medical examiners perform their jobs and establish new rights for the next of kin.The Supreme Court of Ohio decided Thursday that "families do not have a right to recover organs, tissue or other body parts from a coroner after an autopsy is performed on a relative." Howard Bashman of How Appealing has collected together the links here.
The suit argues that the next of kin, not the state, should make decisions on how to dispose of organs no longer needed for testing, and that denial of such a right violates the Constitution's promise of due process. The federal lawsuit names 87 of Ohio's 88 counties; the other, Hamilton County, which encompasses Cincinnati, has already settled with families for $6 million.
Environment - "Had IDEM listened, no need for appeal"
So reads the headline to an editorial this Sunday in the Gary Post-Tribune. Some quotes:
The challenge to BP's air permit is a serious challenge, based on science and predicated on the idea that pollution will happen but should be diminished as much as possible.See also this ILB entry from June 7th.
The challenge should not be dismissed as tree-hugging lunacy.
At issue are three new flares -- devices that serve as pressure valves for start-ups, shut-downs and emergencies.
In BP's initial permit, flares count for emissions of volatile organic compounds of just 4.5 tons a year. BP's reasoning behind the estimate is that it cannot account for unknown circumstances.
But the environmental coalition behind the lawsuit makes an extremely logical response: Compare the BP flares to similar flares at similar refineries.
At similar California refineries, flares emit up to 1,800 tons a year.
Ind. Courts - New Family Resource Center opening Monday in the Indy City-County Building
Jon Murray reports today in the Indianapolis Star in a story that begins:
The scenario happens too often: A divorce or paternity case languishes in a Marion County court for months. Animosity builds by the day. A judge feels ill-suited to sort out the child's best interest.
The Family Court Project is designed to break such logjams. The project has connected hundreds of low-income families with mediators, who often can defuse such hostility in hours. It also has organized information sharing between courts so that judges can see the entire picture of a family that might have cases in far-flung courts, involving guardianship, domestic violence or other issues.
On Monday, the 6-year-old project will reach a new milestone with the opening of its new Family Resource Center.
The center -- across from the Marion County clerk's office inside the City-County Building in Downtown Indianapolis -- will give the project a public face. It also will offer computers and other resources to families mired in court cases, particularly those representing themselves in court.
Its opening coincides with a change that moves the filing of new divorce and paternity cases to the center from the clerk's office. Officials hope a new form will flag families that already have active cases.
"We have been inefficient in identifying families that are high-risk," said Marion Superior Court Judge Robyn Moberly, who oversees the project with Circuit Court Judge Ted Sosin.
A judge in a divorce case might not learn for months about a drunken-driving arrest or that the state has taken custody of children, Moberly said. Or, a judge in one case might issue an order that conflicts with one from another judge.
Unlike some large court systems, Marion County lacks a standalone family court.
Divorces get farmed out randomly to about a dozen courts. Others handle domestic violence and protective orders. Paternity cases are split between the juvenile and circuit courts, while the juvenile court takes guardianship cases initiated by Child Protective Services.
The project is intended to smooth the gaps that can trip up families already stressed beyond the breaking point.
Ind. Courts - Still more on "Landowner calls move by pipeline company as intimidation"
INDIANAPOLIS -- An 830-mile natural gas pipeline that will span all of Indiana will comply with several provisions to protect owners of agricultural land.
The Indiana Farm Bureau worked with the Federal Energy Regulatory Commission and the Rockies Express Pipeline to ensure agricultural interests were considered during the planning, construction and management stages of the project, IFB staff attorney Justin Schneider said.
The pipeline crosses nine Indiana counties, including Franklin County.
The pipeline must be buried a minimum of 5 feet deep where it crosses agricultural fields unless otherwise negotiated with landowners. REX also must repair any drainage tiles damaged during construction for the life of the project.
The plan approved by FERC also restricts REX's right of eminent domain, Schneider said. The pipeline company can't increase the size of the pipeline to accommodate future needs, acquire right-of-way for a pipeline for other commodities or use eminent domain to acquire an additional 35-foot-wide temporary workspace for the storage of topsoil. * * *
"A major concern for many farmers is how this project would affect the crop productivity of the land disturbed by construction," Schneider said.
The company must develop and implement a five-year post-construction monitoring program to evaluate crop productivity in all areas impacted by the construction and file reports on any crop-related problems.
A third party agricultural monitor will be employed during construction to ensure protection of agricultural lands.
All landowners, prior to construction, must be provided with contact information for the local Rockies Express representative and a copy of the environmental complaint resolution procedure.
Complaint protocol must remain in place for at least three years following the project's conclusion, Schneider said.
Ind. Decisions - Still more on suspended Bloomington attorney
Attorney Elizabeth Cure, a candidate for judge in the fall election, distanced herself from her former law partner, David Colman, in a news conference Friday.
Colman will start a three-year suspension from the practice of law on July 1.
“I trust that the public, once they have all of the facts, will judge me not on a guilt-by-association basis, but rather on the basis of what I have done and what I offer as judge,” Cure said, mostly reading from a prepared statement.
The purpose of the news conference, Cure said, was to clarify her connection with Colman and a case in which he arranged for himself to be the beneficiary of an elderly man’s estate.
Cure was named the executor of the contested will of George Archer, which was included in a June 1 Herald-Times article on Archer, who eventually left $650,000 to Hilltop Gardens and Nature Center. She was made executor without her knowledge or permission, Cure said. When she discovered what had happened, she took steps to leave her partnership with Colman and start her own practice. While she couldn’t afford to quit right away — noting she is a single mother of two — Cure said she talked with attorneys and judges about the case immediately upon finding out about the will.
As for Colman, his suspension stems from an investigation into reports of attorney misconduct in cases including Archer’s. The decision came last month from the Indiana Supreme Court.
“The disciplinary decision did not include me in any way because I had nothing whatsoever to do with the situation,” Cure said. She started her practice more than a year ago.
Cure, a Democrat, will be up against current Monroe Circuit Court Judge Christine Talley Haseman in the fall.
Saturday, June 07, 2008
Ind. Decisions - more on suspended Bloomington attorney
A story today in the Indianapolis Star by Will Higgins, headed "Frugal yardman’s gift to IU garden: $650K," contains a section that rang a bell with the ILB:
The worst was yet to come. After his fall, unable to return to his trailer, [George Everett Archer] went to a nursing home. He’d given power of attorney to Bloomington lawyer David Colman.Sound familar? The ILB has had four previous entries mentioning Mr. Colman, including this one from from May 14th, headed "Supreme Court justices differ on sanctions in attorney disciplinary case."
A lifelong loner, Archer hated the nursing home’s close quarters and the human interaction.
Archer called his trusted, longtime customer, [Ed] Cohen, and sought help to get out of the nursing home.
Meanwhile Colman, 62, had become Archer’s heir in a will that an attorney friend of Colman’s prepared. A new will was Archer’s idea, Colman insists: “I didn’t ask to be George Archer’s heir,” he said.
Cohen, a retired educational television executive, was suspicious of Colman’s intentions and reported him to the Indiana State Supreme Court.
According to court documents, although Colman hired a lawyer to put Archer’s will to paper, Colman violated the Professional Conduct Rule by actively helping to prepare the will. The rule prohibits a lawyer from preparing a document for a nonrelative that gives that lawyer a substantial gift.
Last month, the court suspended Colman for three years in connection with his dealings with Archer and two unrelated matters.
Cohen said Archer didn’t want Colman to get his money after his death. He also didn’t want his family to have the money.
What, then, was to become of the fortune?
Ind. Courts - Robert Cantrell found guilty on all charges [Updated]
Joe Carlson reports today in the NWI Times:
HAMMOND | East Chicago political operative Robert Cantrell was convicted on all 11 of the federal fraud counts in the public corruption indictment against him.Andy Grimmof the Gary Post-Tribune reported yesterday in a story that began:
After about five and a half hours of deliberation Friday night, the jury of seven men and five women found Cantrell guilty of illegally taking kickbacks from a public contract, hiding the profits from the Internal Revenue Service, and illegally getting health insurance for his two adult children -- John and Jennifer. * * *
Cantrell was charged with four counts of depriving the public of honest services, three counts of insurance fraud using the U.S. mail and four counts of filing false income tax returns between 2000 and 2003.
The indictment accused him of taking secret cash kickbacks from a contract between his then-employer, the North Township trustee's office, and his political ally, Nancy Fromm. He failed to disclose financial interest in the contract as required by state law.
Cantrell, 66, did not take the stand in his own defense.
Government and defense lawyers delivered impassioned closing arguments Friday morning, each accusing the other of building legal arguments out of conjecture and lies to reach conclusions that defied common sense. * * *
Essentially, prosecutors say Fromm paid Cantrell about $152,000 that he didn't pay taxes on, including commissions for the North Township contract, in addition to getting Fromm to add Cantrell's adult children to her group insurance plan illegally.
The trial comes as a result of at least four years of investigation of Cantrell by the Lake County Public Corruption Task Force. Fromm, the government's star witness, said whole swaths of county leaders were under Cantrell's political influence.
Jurors have begun their deliberations in the fraud trial of Lake County power broker Robert J. Cantrell.For background, start with this ILB entry from June 6th.
Defense attorney Kevin Milner rested his case without calling a single witness, reading only a brief statement regarding a stipulation that prosecutors did not contest statements about Cantrell’s 22 years of service in the U.S. Army and his accomplishments as a high school and college basketball star.
In closing statements to the jury, both Milner and Assistant U.S. Attorney Orest Szewciw painted Cantrell as one of Lake County’s most shrewd and well-connected politcal players. Szewciw charged that Cantrell used those connections to defraud taxpayers by negotiating contracts with the North Township Trustee’s office and Addiction and Family Care, a counseling firm that paid Cantrell as much of half the money it received.
Milner maintained that someone as cagey as Cantrell would never have risked criminal prosecution and the thousands of dollars he was making from commissions that did not violate state ethics laws with the elaborate scam outlined during the seven-day trial.
[Updated] Here is Andy Grimm's latest story now available on the P-T website. Some quotes:
Jurors on Friday found Robert J. Cantrell guilty of all 11 counts of fraud in a trial of one of Lake County's most infamous political figures.
Jurors deliberated until 8:45 p.m. on six days of witness testimony that built the case that Cantrell literally peddled his legendary political connections, taking in hundreds of thousands from a drug counseling firm he helped win dozens of Lake County government contracts.
Much of that money was disguised as paychecks for his son and in off-the-books cash. * * *
In a move worthy of Cantrell's reputation for craftiness, defense attorney Kevin Milner entered a motion Friday morning that called for Judge Rudy Lozano to enter a not-guilty verdict for Cantrell, citing a procedural lapse by prosecutors.
Milner noted that no witness ever properly identified Cantrell in the courtroom, a routine part of testimony familiar to most watchers of courtroom dramas. While Szewciw and Assistant U.S. Attorney Wayne Ault consistently asked witnesses if they recognized the defendant, they never asked them to identify Cantrell by pointing him out or describing him in the courtroom.
Lozano, who said he noticed witness Nancy Fromm gesture and look at Cantrell repeatedly during her two days on the witness stand, chastised prosecutors Wayne Ault and Szewciw, but said he would reserve the right to rule on that later.
Lozano set a sentencing hearing for Oct. 28. Cantrell, 66, faces up to 152 years in prison. * * *
Much to Milner's chagrin, the case against Cantrell was also an indictment of the shadowy role of clout in winning lucrative government contracts. At its height, AFC held contracts with courts in Schererville, East Chicago, Lake Station and several Lake County courtrooms, including the one belonging to Cantrell's daughter, Judge Julie Cantrell.
Environment - More on "Flares at heart of BP air permit appeal"
A recent EPA ruling in Illinois might set a precedent that could help environmentalists in their appeal against BP's air permit, but the company stands by the permit it's been granted in Indiana.
A U.S. Environmental Protection Agency appeal board stripped ConocoPhillips of its air permit for the expansion of the company's refinery in Roxana, Ill., last week.
In the appeal, the Natural Resources Defense Council presented a case pertaining to the refinery's flares, which release pressure by burning off extra and harmful gases but in turn release other pollutants into the air.
Ann Alexander, senior attorney for the council, said the ConocoPhillips appeal was similar to the BP case in Whiting, and the outcome of the ConocoPhillips appeal could help the environmentalists' BP appeal.
"It's absolutely a persuasive precedence," she said.
Law - More on: DOJ moves to improve immigration judges, after months of criticism
This Aug. 10, 2006 ILB entry is essential background for today's entry.
Today's entry is a speech given by Judge Richard A. Posner, U.S. Court of Appeals, Seventh Circuit, on April 21st before the Chicago Bar Association, Administrative Law Judges Committee. It is titled "Judicial Review of Immigration Judges." You may watch it now, online, or this evening at 7 PM on C-Span's America and the Courts.
Friday, June 06, 2008
Ind. Decisions - More on "ACLU to appeal loss in BMV case"
This April 25th ILB entry quoted from an Indianapolis Star story reporting that "ACLU of Indiana will appeal a court ruling that allows the state to revoke driver's licenses if information on them doesn't match Social Security records."
This afternoon the AP's Ken Kusmer reports:
INDIANAPOLIS - Thousands of Indiana residents who lost their driving privileges appeared to win a reprieve Friday when judges temporarily blocked the state from revoking licenses that don't match Social Security records.The story goes on to detail how "the plaintiff class came to include 15,332 people who had their licenses or ID cards invalidated, or were threatened with that action, because of the mismatched records."
The Indiana Court of Appeals granted a preliminary injunction staying the Indiana Bureau of Motor Vehicles' invalidation of driver's licenses or identification cards on the sole basis of mismatched records while a lawsuit challenging the policy works itself through appeals.
An Indianapolis judge in April had found the new state policy constitutional.
"This stops a process which I think is illegal and would cause a great deal of harm," said Legal Director Ken Falk of the American Civil Liberties Union, which is representing plaintiffs in the class-action lawsuit.
BMV Commissioner Ron Stiver, however, issued a statement saying the invalidation process was complete and suggesting those licenses and ID cards that had been revoked would remain invalid. * * *
Judge Kenneth Johnson of Marion Superior Court in Indianapolis denied the ACLU challenge to the state policy in April, saying the BMV had a strong interest in maintaining accurate records to reduce fraud and identity theft.
Johnson at that time denied the plaintiffs' request for a preliminary injunction pending appeals, but a Court of Appeals panel ruled 2-1 Friday to grant the stay.
Briefs in the appeal, pending before a separate Court of Appeals panel, might not be completed until October, Falk said.
That would make a ruling unlikely until after the Nov. 4 elections to decide the next president, governor and other officeholders.
Ind. Law - Still more on: "Bloomfield to 'test' golf carts on the streets this weekend"
POSTPONED! Timberly Ferree reports today in the Greene County Daily World:
The Bloomfield Town Council retracted the suspension of the golf cart ordinance at a special meeting Thursday afternoon. Council President Jo Ann Carmichael said the retraction matter was the main business during the short session. * * *
During Tuesday's regular session, the council suspended the golf cart ordinance for Saturday and Sunday. The suspension was originally made for a 48-hour period which in part landed during Chamber of Commerce's town-wide yard sale.
In a meeting, earlier on Thursday, the Chamber rescheduled the [yard sale] event due to public safety concerns due to the storm devastation.
Ind. Courts - Morgan County attorneys accept accolades
Aaron Blevins reports today in this story in the Martinsville Reporter-Times. A few quotes:
Several local attorneys were awarded for their pro bono work at noon Thursday in a judicial recognition reception in Morgan County Superior Court III. The ceremony was co-sponsored by the Heartland Pro Bono Council and the Morgan County Bar Association.
Local attorneys who received the award, an umbrella with the council’s logo etched in it, were Steven Litz, John Boren, Cecilia Hemphill, Mike Ksenak, Sam Korn, Steve Oliver, Brian Williams, William Vanderpol, Mark Peden, Dale Coffey, Pamela Siddons, Lyman Taylor, Michael Ice, Joe Barker and Phil Smith.
Litz received the council’s 2008 Pro Bono Award, a crystal award with his name etched in, for his commitment and diligence to providing equal access to justice for the residents of Morgan County.
The Morgan County Judiciary hosted Indiana Court of Appeals Judge Melissa May, who spoke at the reception. Indiana Supreme Court Chief Justice Randall T. Shepard was scheduled to be on hand, but couldn’t attend because of his father’s death. * * *
May, a Morgan County resident, said that pro bono work is a necessary facet of the judicial system in the country. She cited the sayings inscribed on several prominent legal buildings that elude [ILB - allude] to the need for justice for all.
“When you talk about pro bono, you’re actually talking about the ethical obligations of attorneys,” she said.
She cited another saying she picked up while living in Evansville, “It’s not enough to just shoot the duck, you’ve got to make sure it hits the water.” May said the expression related to pro bono work in that to fully participate one must follow through.
“What we need are attorneys to take these cases,” she said, referring to the number of cases the council has on hand awaiting representation.
Ind. Decisions - Transfer list for week ending June 6, 2008
Here is the Indiana Supreme Court's transfer list for the week ending June 6, 2008. Note that there are four pages.
The two transfers granted May 29th, Kimco and Grey Loon, are on today's list. They are summarized in this ILB entry from May 30th.
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.
Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)
For publication opinions today (2):
In Old Republic Insurance Company v. RLI Insurance Company, et al , a 17-page opinion, Judge Najam writes:
Old Republic Insurance Company (“Old Republic”) appeals the trial court’s order denying Old Republic’s motion for summary judgment and granting summary judgment to RLI Insurance Company (“RLI”), The Insurance Company of the State of Pennsylvania (“ISOP”), First Specialty Insurance Corporation (“First Specialty”), and Debra Boboruzian. Old Republic raises two issues for our review, which we restate as the following issue: whether Indiana Code Section 27-8-9-92 (“Indiana’s Lease Statute” or the “Lease Statute”) may be applied to determine the priority of insurance coverage between a primary insurance policy and true excess policies. We affirm. * * *
In sum, we hold that Indiana Code Section 27-8-9-9 applies only to determine the priority of coverage between or among policies affording the same level of coverage. Here, the Old Republic Policy provides primary coverage, while the RLI Excess Policy, the ISOP Umbrella Policy, and the First Specialty Excess Policy each offer true excess coverage. See Monroe Guar., 816 N.E.2d at 492 (quoting Liberty Mut. Ins. Co., 603 A.2d at 302). Thus, the Lease Statute cannot be applied to prioritize the Excess Insurers’ policies ahead of the Old Republic Policy. The trial court did not err in holding that Indiana Code Section 27-8-9-9 is inapplicable to Old Republic’s declaratory judgment action and in granting summary judgment to the Excess Insurers.
In Henry C. Woodward v. Heritage Construction Co., Inc. , a 14-page opinion, Judge Najam writes:
Henry C. Woodward appeals the trial court’s orders in favor of Heritage Construction Company’s (“Heritage’s”) action to foreclose on a mechanic’s lien and request for attorney’s fees and costs. Woodward also appeals the court’s denial of his motion to amend the pleadings to conform with the evidence. Woodward raises three issues for our review, which we restate as follows: 1. Whether the trial court abused its discretion when it denied Woodward’s request to amend the pleadings to conform to the evidence, which would have permitted Woodward to argue an otherwise unraised affirmative defense. 2. Whether the court’s finding that Heritage’s mechanic’s lien had been timely filed was clearly erroneous. 3. Whether the court abused its discretion in the admission of evidence pertaining to Heritage’s attorney’s fees. On cross-appeal, Heritage raises the following issue: whether the trial court erroneously denied Heritage’s request for prejudgment interest. We affirm. * * *NFP civil opinions today (1):
In sum, the trial court did not err in denying Woodward’s Motion to Amend, in finding Heritage’s notice of its intention to hold a mechanic’s lien timely filed, or in permitting Heritage to proceed with evidence of its attorney’s fees even though Heritage had rested its case. Further, the court did not abuse its discretion in denying Heritage prejudgment interest. Accordingly, we affirm the trial court in all respects.
David G. Tennis v. AAA (NFP) - "Plaintiff-Appellant David G. Tennis appeals the trial court’s rulings in favor of Defendant-Appellee AAA Bail Bonds, Inc. We affirm. * * *
"The agency agreement unambiguously provides that Tennis is responsible to cover any losses his actions caused AAA and/or the Surety. Our review of the transcript discloses that there is written evidence and/or testimony to support AAA’s claims. We will not reweigh the evidence or assess the credibility of the witnesses."
NFP criminal opinions today (9):
Ind. Law - More on: "Bloomfield to 'test' golf carts on the streets this weekend"
To protest what he thinks is an absurdity in the state and local laws banning golf carts, Bloomfield Town Councilman Aaron Hamm drove a motorized beer cooler to the council meeting Tuesday. Since the ‘coolermobile’ has an engine that is smaller than those regulated by law, it is perfectly legal to drive anywhere in the state. (R.M. Johnson photo)And here is the story, headed "Golf Cart Ban Suspended," from this week's Bloomfield Free Press:
While calling it a test, Bloomfield Town Council members approved lifting a ban on golf carts in the town limits for the town-wide yard sales this weekend. * * *
The golf cart measure passed in a split vote - with Councilman Aaron Hamm and Council President Jo Ann Carmichael voting for the temporary suspension and Councilman Roger Doane voting against.
However, before the council voted on allowing golf carts on town streets for Saturday and Sunday from 7:30 a.m. - 7:30 p.m., Town Attorney John Rowe had a warning for all folks who are planning on driving their golf carts on the town streets.
Rowe also added a bit of levity to the controversial topic when it was suggested that golf carts be allowed from "sunrise to sunset."
"Who determines what is sunrise and sunset?" Hamm asked.
Rowe's quick-thinking response was, "God, I think." On a more serious note, Rowe issued his warning. "Even though this ordinance is suspended as to the town, it is not affecting any state laws," he said. "So, if it is a violation of state law, then people are still going at their own risk."
He later explained that while the suspension of the town's golf cart ban would mean that local police officers could not write tickets in relation to that particular ordinance, the Indiana State Police and/or the Greene County Sheriff's Department could write tickets and impound golf carts under state law.
He also stressed that only the ban of golf carts is affected by the suspension - four-wheelers and other prohibited vehicles are still just that - prohibited.
"We want to again emphasize that it is only this one particular ordinance in town," he said. All golf cart drivers will be subject to all other town ordinances and state laws, just like other motorist.
"If there is a golf cart out there that runs a stop sign, I would encourage our police officers to write them a ticket, tow it, confiscate it, whatever they have to do," Carmichael said.
In order to be able to operate golf carts on the town streets, the council also set some stringent rules:1. All golf carts must be registered with Town Hall. If Town Hall is closed, Carmichael and Hamm said drivers could call their cell phones at 381-3585 or 381-5270, respectively.While the discussion was lengthy and somewhat controversial, one woman in attendance asked why the council was considering the temporary suspension of the rules. "If this is such a controversial subject, why do it?" Amber Branstetter asked.
2. All golf carts must have proper lighting in the front and rear.
3. All golf carts must be driven by licensed drivers, only.
4. Golf carts can only be operated between 7:30 a.m. and 7:30 p.m. on Saturday and Sunday.
5. All golf carts must have insurance and proof of insurance with the cart at all times.
6. No golf carts will be allowed on Main or Washington streets - as they are state highways.
"Because a lot of people want it," was Hamm's response.
Lt. Shane Smith and Deputy Marshal Jordan Hasler both expressed some trepidation in dealing with the fall-out of allowing golf carts - even if for only a couple of days. "If we let golf carts on the streets, we're going to have four-wheelers and it's going to be an argument with the guy on the four-wheeler," Smith said.
Carmichael instructed Smith to give the hypothetical four-wheeler driver her cell phone number and she would "handle that situation."
In voting against the suspension of the ordinance, Doane said he was concerned with a number of safety issues - something he has said since before he was elected to the council last year.
Adding to Doane's safety fears with suspending the ordinance is the fact that during the town-wide yard sales - a time when traffic increases more than five-fold in town - there will be no Bloomfield police officers on duty, since one is in the police academy and one is in Indianapolis at training.
Ind. Gov't. - "Dem AG candidate questions hired gun in E.C. RICO case"
Patrick Guinane of the NWI Times has this story today that begins:
INDIANAPOLIS | Democrat Linda Pence kicked off her campaign for state attorney general Thursday by criticizing the current GOP administration for reaching across state lines for help in the civil racketeering case against former East Chicago Mayor Robert Pastrick.
Outgoing Attorney General Steve Carter last year went to the Chicago office of Perkins Coie to enlist Patrick Collins, a former federal prosecutor who helped convict corrupt Illinois Gov. George Ryan. Indiana thus far has paid Collins $317,000 to assist in the attempt to hold East Chicago leaders responsible for $25 million in public money diverted to a 1999 sidewalks-for-votes scheme.
"When I'm attorney general, I would review that file extensively," Pence said. "I'd review that case to see how much money the state has paid for lawyers to represent them. And I would also question why they needed lawyers out of state when we should have very capable lawyers in the attorney general's office itself."
Carter, who launched the racketeering suit four years ago, has said he hopes to see it go to trial before he leaves office in January. His office defended its hiring of Collins, who signed on at a discounted rate of $395 an hour.
"Patrick Collins came highly recommended by the foremost authority on the country's RICO laws, Notre Dame professor G. Robert Blakey," Staci Schneider, a Carter spokeswoman, said Thursday. "It is not unusual for outside counsel to be utilized for complex cases such as the White River fish kill, which has become of interest in these past few weeks."
Ind. Courts - "Riga: Cash payments hid Cantrell money trail"
Joe Carlson of the NWI Times reports again today on the Cantrell trial in Lake County federal court in a story that begins:
HAMMOND | Disgraced former Judge Deborah Riga said Thursday that Robert Cantrell was not shy about using cash payments to hide transactions.Andy Grimm's story today in the Gary Post-Tribune may be found here.
But defense attorney Kevin Milner said because Cantrell was paid in cash, all the glossy pie charts and reconstructed financial ledgers presented by prosecutors Thursday amounted to little more than "assumptions" about Cantrell's actions.
All told, Cantrell should have received slightly more than $152,000 between 2000 and 2003 in under-the-table cash kickbacks from former associate Nancy Fromm in exchange for getting government contracts for Fromm's business.
But the only person who saw him take the cash was Nancy Fromm, a felon who has admitted to lying under oath and gambling several times a month.
The prosecution rested its case Thursday afternoon after five full days of testimony. Cantrell, a longtime Lake County political operative, is charged with 11 counts of tax evasion, honest services fraud and health insurance fraud using the U.S. mail.
Milner said he will present only brief witnesses before the jury gets the case about noon today. Cantrell, 67, who attended his mother's funeral Wednesday, appeared confident as ever after prosecutors announced they had presented their case.
Riga took the stand Thursday morning after waiting more than two years to publicly talk about her association with Cantrell.
She served one term as elected judge of Schererville Town Court but pleaded guilty to several unrelated felonies after admitting to corrupting her office to enrich herself.
Riga said Cantrell talked openly about hiring her father, Tony, as a consultant who would be paid in cash -- not by check -- in exchange for work at Fromm's firm.
Tony Riga changed his mind, and demanded checks after he got his first two payments in cash, Deborah Riga said. In a 2003 phone conversation, Cantrell later blamed Deborah Riga for giving prosecutors evidence because her father insisted on taking checks.
"I felt bad because the gist of it was, had I done it in cash the way it was proposed, there wouldn't be a trail," Riga testified Thursday morning. "This wouldn't be happening."
Defense attorney Kevin Milner hit Riga with scathing questions about whether she had "sold your robe, your judgeship, for money."
"You spent very few honest days as a judge, correct?" Milner asked.
For background, start with this ILB entry from June 5th.
Ind. Courts - "Haughee requests prison transfer"
A former Lake County prosecutor, Hebron councilman and attorney who was sentenced to a year in Porter County Jail asked that he be transferred to state prison so he could better work on his appeals.
Michael B. Haughee, 56, has been representing himself on a series of appeals since his March 6 sentencing for sexual battery, criminal confinement and interference with the reporting of a crime.
He asked for the move after two motions he filed April 6 were continued.
He would have access to a legal library in the prison and more of his files from his case, he said.
Porter County Jail allows a duffel of about two square feet for storage of papers.
Judge Mary Harper denied the move and reminded him that she offered to assign him a public defender, but he declined. He'll appear in court again July 1.
Environment - "CAFO industry threatens lawsuit"
"CAFO industry threatens lawsuit" is the headline to a story this morning by Seth Slabaugh of the Muncie Star-Press. Some quotes:
The Muncie-Delaware County Planning Commission tabled a proposed zoning-ordinance amendment to regulate concentrated animal feeding operations (CAFOs) on Thursday night after being threatened with a lawsuit by an industry representative.
Commission member Roy Budd said he was not intimidated by the threat and told the industry spokesman: "If that's the case, so be it. Let it come."
But Budd then made a motion, approved 8-0, to table the amendment and ask county commissioners to provide "legal and scientific support to scrub the document."
"I was asked to make that statement on behalf of the industry," livestock engineer Mike Veenhuizen, from Greenwood, told Budd.
Veenhuizen asserted a section of the amendment attempting to protect local water resources from manure contamination was "vulnerable" to a legal challenge because it was more restrictive than a state law enforced by the Indiana Department of Environmental Management. * * *
As written, the ordinance might "be the end of" animal agriculture in Delaware County because of its strict setback requirements, Veenhuizen claimed. It encourages small livestock farms of less than 2,000 hogs and 700 dairy cows and discourages CAFOs, he said.
A major part of the ordinance was taken verbatim from the CAFO ordinance in St. Joseph County, he said.
Veenuizen also said Delaware County should be in no hurry to adopt a CAFO amendment because there have been no new CAFOs here in six to eight years.
Budd noted a previous CAFO amendment "was filibustered," and County Commissioner Larry Bledsoe said he didn't want this amendment to end in "another stalemate."
Commission chairman Dave Howell, a grain and vegetable farmer, said the amendment promoted "Ma and Pa Kettle" farming.
Thursday, June 05, 2008
Ind. Decisions - Court of Appeals issues 2 today (and 14 NFP) [Updated, now 15 NFP]
For publication opinions today (2):
In Cherokee Air v. Burlington Insurance Co. , a 10-page opinion, Chief Judge Baker writes:
Appellant-defendant Cherokee Air Products, Inc., f/k/a Tippmann Pneumatics, Inc., L.P. (Cherokee), appeals the trial court’s order setting aside its previous entry of default against appellee-plaintiff Burlington Insurance Company (Burlington). Cherokee argues that the trial court erred by setting aside the entry of default against Burlington. Finding no error, we affirm. * * *In Homer Barger v. Tammy Barger, a 7-page opinion, Judge Barnes writes:
[I]t has already been fully and finally decided that PMI is not liable on the precise facts and claims that Cherokee is asserting against Burlington. Thus, to hold Burlington liable under these circumstances would be absurd, inequitable, and unjust. Although we do not celebrate Burlington’s inexplicable failure to respond to Cherokee’s counterclaim, given these facts and our general predilection to decide cases on their merits, we find that the trial court did not abuse its discretion by setting aside the entry of default against Burlington and entering final judgment in its favor. The judgment of the trial court is affirmed.
Homer M. Barger, Jr., (“Husband”) appeals from the trial court’s issuance of a protective order against him and for the protection of Tammy Sue Barger (“Wife”). We reverse.NFP civil opinions today (was 4, now 5):
Issue. Whether the trial court’s grant of the protective order was proper. * * *
Husband correctly asserts that Wife’s testimony contained multiple or double hearsay. “Double hearsay” is “a hearsay statement that contains further hearsay statements within it, none of which is admissible unless exceptions to the rule against hearsay can be applied to each level.” Black’s Law Dictionary 739 (8th ed. 1999). Indiana Evidence Rule 805 states that hearsay within hearsay “is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule . . . .”
Wife’s double hearsay-laden testimony at the hearing did not bear sufficient indicia of reliability to warrant its admission into evidence. Thus, there is considerable reason to question the reliability of her statements. * * *
The absence of corroborating witnesses is further compounded by Wife’s refusal to testify to any alleged acts of violence toward her by Husband. * * *
Based upon the foregoing, Husband has proven prima facie error. The trial court erred when it granted Wife’s petition for an order of protection after finding that Wife’s double hearsay-laden statements were admissible hearsay. Given the dearth of corroborating witness testimony and Wife’s evasiveness, we find that the record simply does not support a finding that Husband threatened to kill Wife. Thus, we must reverse the trial court’s order granting the order of protection, and find that it committed an abuse of discretion in so doing. Reversed.
[Note: This opinion was posted after the regular posting; as the ILB has stressed before, there is always the danger that additional opinions added later in the day with no designation as such will not be spotted.] In Amanda Thompson v. Samuel Strange (NFP), a 9-page opinion, CJ Baker writes:
Appellant-respondent Amanda Thompson appeals the trial court’s judgment awarding custody of the parties’ minor daughter, P.H.S., to appellee-petitioner Samuel Strange. Specifically, Thompson argues that because Indiana Code section 16-37-2-2.1(g) provides that she is the sole legal and physical custodian of P.H.S. because she and Strange were never married to each other, the evidence failed to demonstrate that the award of custody to Strange was appropriate. Finding that the trial court properly awarded custody of P.H.S. to Strange, we affirm.Double J Ranch v. Mark Wiley Trust (NFP) - "Double J Ranch, L.L.C. (“Double J”) appeals from the trial court’s order setting aside a 2004 tax sale and denying Double J’s verified petition for tax deed. * * *
"The bottom line is that the Auditor’s office placed the surplus from the tax sales into the tax sale surplus fund contrary to the Indiana Code. That noncompliance with the applicable statutes invalidates the tax sale. See MJ Acquisitions, Inc. v. Tec Investments, 863 N.E.2d 379, 382-83 (Ind. Ct. App. 2007) (holding tax sale process requires material compliance with each step of the governing statutes). The trial court did not err when it set aside the tax sale and denied Double J’s petition for tax deed. Affirmed."
Term. of the Parent-Child Rel. of D.D.S., and D.T. (Mother) v. Greene Co. Dept. of Child Services (NFP) - "Given the ample evidence that the conditions resulting in D.D.S.’s removal will not be remedied, we find no error in terminating Mother’s parental rights. Affirmed."
Greg Green v. Jenny J. Green (NFP) - "In sum, the trial court expressly found evidence of $25,000 in debt owed to Lawyers Excavating, Inc., and it also expressly found that Greg owed Jenny seventy percent of her attorney’s fees. Further, neither of the parties disputed the existence or value of Jenny’s 401(k) account. However, the debt to Lawyer’s Excavating, Jenny’s 401(k) account, and Greg’s payment of Jenny’s attorney’s fees are not incorporated into the trial court’s Exhibit A, in which the court valuated and distributed the marital assets. Accordingly, we reverse the trial court’s judgment pertaining only to those three issues and remand to the trial court for clarification. In all other respects, we affirm the judgment of the trial court."
In Marriage of Kimberlee (Harstad) Baldwin v. Larry Harstad, Jr. (NFP) - "We conclude that the trial court did not abuse its discretion when it denied Mother’s motion to modify custody. We also conclude that the trial court did not abuse its discretion when it permitted unsupervised parenting time pursuant to Indiana Parenting Time Guidelines. Affirmed."
NFP criminal opinions today (10):
Ind. Decisions - 7th Circuit decides one Indiana case today
In Pavey v. Conley (ND Ind., CJ Miller), a 6-page opinion, Judge Posner writes:
The question presented by this interlocutory appeal under 28 U.S.C. § 1292(b) is whether a prisoner plaintiff in a suit for damages governed by the Prison Litigation Reform Act is entitled by the Seventh Amendment to a jury trial on any debatable factual issues relating to the defense of failure to exhaust administrative remedies. The district court answered yes. * * *
The generalization that emerges from these examples and others that might be given is that juries do not decide what forum a dispute is to be resolved in. Juries decide cases, not issues of judicial traffic control. Until the issue of exhaustion is resolved, the court cannot know whether it is to decide the case or the prison authorities are to. * * *
The sequence to be followed in a case in which exhaustion is contested is therefore as follows: (1) The district judge conducts a hearing on exhaustion and permits whatever discovery relating to exhaustion (and only to exhaustion) he deems appropriate. (2) If the judge determines that the prisoner did not exhaust his administrative remedies, he will then determine whether (a) the plaintiff has unexhausted remedies, and so he must go back and exhaust; (b) or, although he has no unexhausted remedies, the failure to exhaust was innocent (as where prison officials prevent a prisoner from exhausting his remedies), in which event he will be allowed to go back and exhaust; or (c) the failure to exhaust was the prisoner’s fault, in which event the case is over. (3) If and when the judge determines that the prisoner has properly exhausted his administrative remedies, the case will proceed to pretrial discovery, and if necessary a trial, on the merits; and if there is a jury trial, the jury will make all necessary findings of fact without being bound by (or even informed of) any of the findings made by the district judge in determining that the prisoner had exhausted his administrative remedies.
We emphasize that discovery with respect to the merits must not be begun until the issue of exhaustion is resolved. If merits discovery is allowed to begin before that resolution, the statutory goal of sparing federal courts the burden of prisoner litigation until and unless the prisoner has exhausted his administrative remedies will be thwarted.
The judgment of the district court is reversed and the case is remanded for further proceedings consistent with this opinion. must not be begun until the issue of exhaustion is resolved.
Law - Lawsuits Test Associational Discrimination Under the ADA
"Lawsuits Test Disabilities Act: Two Cases Cite Little-Known Protections For People Who Aren't Disabled But Care For Those Who Are," was the headline of this article yesterday by Jane Zhang of the Wall Street Journal.. Some quotes:
Two lawsuits now pending could open the door to many more claims under a little-known provision of the Americans With Disabilities Act that protects the jobs of relatives and other caregivers of disabled people.The Dewitt opinion was issued by the 7th Circuit on Feb. 27th, 2008: access it here.
In the most prominent case, Phillis Dewitt says she was fired in 2005 by Proctor Hospital in Peoria, Ill., as a result of her disabled husband's extensive medical bills. In the other case, a couple from Wyoming employed by the same company, PacifiCorp, alleges that the utility company fired them to avoid the costs of treating their son's brain tumor. Both lawsuits argue that the plaintiffs faced "association discrimination" based on a worker's association with a disabled person. * * *
Association discrimination aims to prevent employers from discriminating against workers based on "unfounded stereotypes and assumptions about" people who care for or work with the disabled, the EEOC says. For example, it forbids businesses from firing a worker who volunteers at AIDS clinics, for fear of contracting the disease; or refusing to hire an applicant with a disabled child, assuming that the person will be unreliable at work, the EEOC says.
Legal victory in such cases, including Ms. Dewitt's, is far from guaranteed. Judge Richard Posner, a member of the Seventh U.S. Circuit Court of Appeals panel that unanimously cleared the Dewitt lawsuit for trial, laid out a strategy for the hospital in his concurring opinion: Show that she was fired strictly to cut costs -- something the law allows.
But that may not be a viable strategy for Proctor Hospital, which, in a motion to dismiss the lawsuit in the lower court, argued the opposite: that Ms. Dewitt wasn't fired for costs and that the hospital kept other workers with higher medical expenses.
Lawrence Rosenthal, a law professor at Northern Kentucky University's Salmon P. Chase College of Law and author of a paper on association discrimination, says that "very few" plaintiffs win their claims because they must establish that the relative's or associate's disability is covered under the ADA and show a direct link between that and their employer's actions.
Ind. Courts - Yet more on "Intricate political web unravels at Cantrell trial"
HAMMOND | When Nancy Fromm and colleague George Safana started an addiction counseling service in 1997, Lake Superior Judge Julie Cantrell was one of the first to send a few court-ordered rehabilitation clients to the firm.
And when Fromm's firm was hurting for business two years later, Fromm recruited the help of Judge Cantrell's father, Robert Cantrell, in squeezing even more clients out of her court, Fromm testified.
But it could not have been known then that Robert Cantrell, an East Chicago political operative, would eventually be criminally charged in Hammond federal court for allegedly profiting from the very kinds of deals he helped set up in his daughter's court.
A federal fraud trial for Robert Cantrell resumes today following a two-day break in testimony.
"Robert Cantrell never took one dime from any case that went through that court," defense attorney Kevin Milner said last week during Robert Cantrell's fraud trial. "Even though that was most of the money, he never took one dime of it."
Between 2000 and 2003, Julie Cantrell's court sent more than $588,000 worth of business to Fromm's firm, Addiction and Family Care Inc.
It was almost half of the $1.3 million in profits that Cantrell is alleged to have helped Fromm's business earn between June 1999 and late 2005. All told, 75 percent of Fromm's business in those years came from contracts secured by Robert Cantrell.
Robert Cantrell has admitted using his political influence to generate the contracts and then taking as much as 50 percent of the profits as a consulting fee, arguing it was a legal arrangement.
"The evidence will show there was complete transparency in all these transactions," Milner said in the trial's opening statements last week.
Assistant U.S. Attorney Orest Szewciw agreed with Milner that Robert Cantrell did not get paid for any of the work referred from Julie Cantrell's court.
But that doesn't mean he didn't use it to his advantage, Szewciw said. Rather, the business from Cantrell's court comprised part of the leverage that Robert Cantrell held over Fromm, Szewciw said.
"This was business that was brought in by him, and it could be stopped by him," Szewciw told jurors in opening statements.
Julie Cantrell could not be reached for comment Wednesday. Milner said last week the judge is likely to be called as a witness in the case.
Julie Cantrell's magistrate, Michael Pagano, declined to comment on the trial Wednesday because it is a pending case.
Ind. Gov't. - "Pence to announce Dem bid for AG"
Patrick Guinane of the NWI Times reports today:
INDIANAPOLIS | Democrat Linda Pence, an Indianapolis attorney who helped the state settle a high-profile pollution case seven years ago, said she plans to announce her candidacy for state attorney general today.
Pence, the only Democrat to publicly express interest in the post, has scheduled a fly-around with stops in South Bend, Fort Wayne, Indianapolis, Terre Haute, Sellersburg and Evansville.
"I am running for attorney general because Hoosiers need an independent voice to stand up for them," Pence said Wednesday in a statement. "Whether it's fighting mortgage and consumer fraud or battling the scourge of methamphetamine in our communities, Hoosiers deserve an attorney general who is tireless and relentless. I am ready for the challenge."
Republicans chose their nominee for attorney general earlier this week, selecting Greg Zoeller, chief deputy to outgoing Attorney General Steve Carter, over Valparaiso Mayor Jon Costas. * * *
Pence is best known for securing a more than $10 million civil settlement against Guide Corp., an Anderson, Ind., auto part company responsible for White River pollution releases that killed 117 tons of fish in December 1999. The late Gov. Frank O'Bannon, a Democrat, hired Pence to lead the case, which also resulted in $4.1 million in criminal penalties secured by federal prosecutors.
Environment - "Congress asks about trailers made in state"
Maureen Groppe of Gannett reports today in a story that begins:
WASHINGTON -- Congress wants the presidents of four Indiana trailer manufacturers to testify under oath about high formaldehyde levels found in trailers they sold the federal government as temporary homes for hurricane victims.See related ILB entries here.
The House Oversight and Government Reform Committee sent letters yesterday to the four Elkhart County-based companies -- Gulf Stream Coach Inc., Pilgrim International Inc., Keystone RV Inc. and Forest River Inc.
The letters ask the company's presidents to testify at a July 10 hearing.
Trailers made by the companies were among those found by the Centers for Disease Control and Prevention to have significantly higher formaldehyde levels than other travel trailers purchased for victims of Hurricanes Katrina and Rita, according to the committee's chairman, Rep. Henry Waxman, D-Calif.
Ind. Law - "Bloomfield to 'test' golf carts on the streets this weekend"
Timberly Ferree of the Greene County Daly World reported June 3rd:
Look for golf carts on the streets of Bloomfield this Saturday and Sunday.The comments section after the story is also interesting. One comment links to this story about the Town of Portland's successful golf cart ordinance, in effect since late 2006. The details of the ordinance were covered in this Dec. 11, 2006 ILB entry.
During a two-hour meeting on Tuesday, the Bloomfield Town Council voted 2-1 to suspendthe town's no golf cart ordinance with several requirements for the 48 hour period--which includes the annual town-wide yard sale event Saturday.
Board President Jo Ann Carmichael along with Board member Aaron Hamm voted to suspend the ordinance while Council Member Roger Doane cast the dissenting vote.
Requirements on the ordinance suspension in part include: the operators must hold a valid driver's license and proof of insurance, along with vehicle requirements that include head and tail lights and a slow moving vehicle emblem. The carts must also be registered at town hall prior to Saturday. The suspension will only include the hours of 7:30 a.m. to 7:30 p.m. on both Saturday amd Sunday.
Town attorney John Rowe was requested by the council to explain the weekend suspension. "It doesn't mean the operation (of a golf cart) would be authorized," he explained, noting that the council is only suspending the ordinance. "The town doesn't sanction it. It's just not a town ordinance during that time," he added.
But, that doesn't affect state laws, he advised. State statutes pertaining to golf carts are interpreted differently. "The town police also enforce state and federal laws," Rowe said.
During discussion on the matter, Carmichael explained, "If something goes wrong and somebody does something stupid it will probably never get suspended again."
Doane warned that the state police could still ticket drivers of golf carts.
Bloomfield Police Department Chief Deputy Shane Smith added that the police would not be looking to ticket golf carts during the yard sale event, but that lifting the ordinance could cause other problems.
"It will be our (BPD) biggest problems that day trying to keep the peace between golf carts and four-wheelers," he said."I'm not saying don't do it. I'm just saying it will cause a problem."
One resident spoke up by asking, "This is such a controversy why do it?" "It's like opening up a can of worms with four-wheeler owners, she added.
Carmichael then said, "Aaron (Hamm) and I talked about golf carts before the (fall 2007) election and we were definitely for golf carts on the streets of Bloomfield...it's definitely to test the waters." Hamm agreed that the suspension would be a trial period only.
Carmichael also encouraged the BPD to write tickets if the rules of the road are not obeyed. "If a golf cart runs a atop sign I would encourage them (BPD) to give a ticket...," she said. * * *
After the meeting, Doane explained his 'no' vote by simply pointing to a list of golf cart state statutes and saying, "I think it's a tragedy waiting to happen. The State Police have blatantly said they will issue tickets."
Another golf cart story, from WLKI News, dated June4th:
(ANGOLA) - The use of golf carts will continue to be banned this year in the Steuben County Park campgrounds. Steuben County Commissioners acted upon a recommendation from Park Superintendent Eric Ditmars yesterday after he met recently with a handful of campers. He listed several reasons why he felt golf carts should be banned. Topping the list was children driving the vehicles. The use of motorized wheel chairs will be allowed.
Ind. Decisions - "Jeff case goes to high court: Sewer-bill collection method in dispute"
The case of Pinnacle Properties Development Group, LLC v. City of Jeffersonville, Indiana, which was on the May 30th Supreme Court transfer list (see ILB entry here), is the subject of a story today by Ben Zion Hershberg in the Louisville Courier Journal. Some quotes:
The Indiana Supreme Court has agreed to consider a Jeffersonville case that could affect the finances of municipal sewer departments statewide.
At issue is a dispute between Jeffersonville and Pinnacle Properties Development Group LLC, a large owner and operator of apartment buildings and other real estate in the city.
In a lawsuit, Pinnacle challenged the method -- used by many cities -- to make landlords responsible for unpaid sewer bills of apartment tenants, said Perry McCall, Pinnacle's lawyer.
Jeffersonville has simply transferred delinquent bills to landlords' accounts after a certain amount of time, he said.
Pinnacle contends that state law requires the city to notify the property owner about a tenant's unpaid bill and then take the more formal step of filing a lien against the property to make the owner legally responsible.
Former Clark County Circuit Judge Daniel Donahue upheld the city's procedure. But the Indiana Court of Appeals overturned that ruling in October, saying the city's sewer ordinance "does not provide a mechanism for collection."
Under state law, the city can collect delinquencies from deposits if apartment tenants have been required to pay a deposit for sewer service, the court of appeals said. But in the absence of such deposits, the court said, the city must file a lien against the property owner.
Scott Lewis, the lawyer for Jeffersonville, said yesterday that he was pleased that the Supreme Court had agreed to take the case. The decision reflects the potential statewide impact, he said, and indicates the court believes there's enough substance to his arguments to review them. * * *
The Supreme Court said it did not anticipate holding oral arguments in the case.
Wednesday, June 04, 2008
Ind. Decisions - Yet another decision today from the Supreme Court
In Adkins v. State, a 6-page, 5-0 opinion, Justice Sullivan writes:
Henry Adkins was convicted of pointing a firearm as a Class D felony. He contends that the jury was incorrectly instructed that he, rather than the State, had the burden of proving that the gun was unloaded. Had there been any evidence that his gun was unloaded, he would be correct. Because there was not, the instruction constituted harmless error.Note that this is the second case today where the Court singles out for approval an Appeals Court opinion by Judge Crone: (1) writing in dissent in today's trampoline case (Kopczynski), and (2) with a concurring opinion in Adkins.
Courts - Still more on "California Supreme Court says same-sex couples have right to marry" [Updated]
Wednesday's denial clears the way for gays and lesbians in the nation's most populous state to get married starting June 17, when state officials have said counties must start issuing new gender-neutral marriage licenses.[Updated] The ABA Journal Blog has an entry this afternoon with links to several news stories on the denial. Some quotes:
Setting the stage for a potential confrontation among states about the marital rights of same-sex couples to start sooner rather than later, the California Supreme Court today refused to delay the implementation of an earlier landmark ruling finding that same-sex couples have a right to marry under the state constitution. * * *Ordinarily. But this does not take into account states, including Indiana, that have passed the Defense of Marriage Act, or states that have adopted constitutional amendments prohibiting gay marriage.
While the gay marriages, which are expected to begin June 17, will clearly be legal in California, at least for now, efforts have already begun elsewhere in the U.S. to prevent other states from recognizing them. (Under the principle of comity, states ordinarily recognize as legal marriages that are legal in other states.)
Ind. Decisions - Supreme Court issues a decision today on a direct appeal
In Wayne Jewell v. State of Indiana, a 4-page, 5-0 opinion, Justice Dickson writes:
In this direct appeal, the defendant has challenged his three convictions by asserting six appellate claims as fundamental error. The Court of Appeals sua sponte recharacterized three of these as issues of ineffective assistance of counsel and denied relief, but reversed two of the three convictions on other grounds. Jewell v. State, 877 N.E.2d 864, 872-73 (Ind. Ct. App. 2007). Urging that he did not present any direct appeal issues as claims of ineffective assistance and that he could present this issue in possible future post-conviction proceedings, the defendant sought transfer. We grant transfer and now reject the defendant's procedurally defaulted claims solely on grounds that they do not constitute fundamental error.
Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)
For publication opinions today (1):
In Michael J. Gomez v. Alissa M.Gomez, an 11-page opinion, Judge Riley writes:
Father raises two issues for our review, which we restate as: (1) Whether the trial court abused its discretion when it admitted the Parenting Time Coordinator’s recommendation as evidence; and (2) Whether the trial court abused its discretion when it denied Father’s petition to modify parenting time. * * *NFP civil opinions today (4):
[I] From our review of the record, we would agree with Father that the Parenting Time Coordinator served a role akin to that of an expert witness who reviews information relevant to the case and develops an opinion to be accepted or rejected by the trial court. Ind. Evidence Rule 703, which permits “[e]xperts to testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field,” allows experts to rely upon hearsay when formulating opinions. See Commitment of M.M. v. Clarian Health Partners, 826 N.E.2d 90, 95 (Ind. Ct. App. 2005), reh’g denied, trans. denied. We conclude that this rule should apply, by analogy, to the Parenting Time Coordinator’s recommendation here. Therefore, we conclude that the trial court did not abuse its discretion when it admitted the Parenting Time Coordinator’s recommendation, although it was based on hearsay. * * *
[II] The Marital Settlement Agreement provided Father “additional visitation one weekday per week,” and thus, entitled Father to two midweek visits—more than the model provided by the Indiana Parenting Time Guidelines. Moreover, the trial court noted that the parents had stipulated to the authority of a parenting time coordinator, who developed a recommendation that overnight weekday visits with Father on evenings when the children would have to go to school the next morning were not in the best interest of the children. The Parenting Time Coordinator explained that he had interviewed the parents and children, and spoken with the children’s schoolteachers to develop this recommendation. For these reasons, we conclude that the trial court did not abuse its discretion when it denied Father’s petition to modify parenting time.
Conclusion. For the foregoing reasons, we conclude that the trial court did not abuse its discretion when it admitted the Parenting Time Coordinator’s recommendation as evidence, or when it denied Father’s petition to modify parenting time. Affirmed.
Jelon E. Swope v. Debby S. Swope (NFP) - "Jelon E. Swope appeals the trial court’s order as to division of assets in the dissolution of his marriage to Debby S. Swope. Jelon raises two issues, which we consolidate and restate as whether the trial court abused its discretion in the valuation and division of marital property. We affirm in part and remand in part." [ILB - This may be Judge Brown's first COA opinion, or one of the first.]
Michael and Eileen Glant v. Thomas Bovis and Elizabeth Vogel-Bovis (NFP) - "Appellants Michael Glant and Eileen Glant (collectively, “the Glants”) appeal an order of the Marion Superior Court providing that they are liable for attorney’s fees attributable to deception in a real estate transaction with Thomas Bovis and Elizabeth Vogel-Bovis (collectively, “the Bovises”). We affirm the judgment of the trial court with respect to rescission and consequential damages, but reverse the award of attorney’s fees. * * *
"[Issue] Whether there is sufficient evidence to establish that the Glants, acting with intent to defraud, misrepresented property as suitable for a building site, so as to establish a Deception claim under Indiana Code Section 35-43-5-3 and support the award of statutory attorney’s fees for a crime victim.1On cross-appeal, the Bovises raise two issues, which we consolidate and restate as the following issue: whether they are entitled to additional attorney’s fees and costs."
Chad Saylors v. Gayle Saylors (NFP) - "Chad Saylors’s (“Husband”) and Gayle Saylors’s (“Wife”) marriage was dissolved in Miami Superior Court. Husband was ordered to pay permanent maintenance to Wife in the amount of $100 per week and fifty percent of all non-covered medical expenses. Husband appeals and argues that the trial court abused its discretion when it ordered him to pay permanent maintenance to Wife. We affirm, but remand for clarification of the dissolution decree."
Invol. Term. of Parent-Child Rel. of D.C., and Jannie C. v. Marion Co. Dept. of Child Services and Child Advocates, Inc. (NFP) - "For all of these reasons, we conclude that the evidence supports the trial court’s findings that the conditions that led to the removal of D.C. will not be remedied and that termination of Mother’s parental rights is in D.C.’s best interests. Mother’s request that we determine otherwise is an invitation to reweigh the evidence, which we will not do."
NFP criminal opinions today (4):
Ind. Decisions - Supreme Court rules in trampoline case
In Beth Kopczynski v. David Barger, an 8-page, 5-0 opinion, in a case argued Dec. 6, 2007, Justice Boehm writes:
This case presents two issues of first impression. We hold that under some circumstances a minor’s invitation to enter the premises may bind the landowner for purposes of premises liability, and that a trampoline may constitute an attractive nuisance. In this case both issues turn on facts not appropriately resolved on summary judgment. * * *For the COA opinion, see ILB entry here, 2nd case.
[W]e agree with Judge Crone that “the reasonableness of twelve-year-old Alisha’s belief that she had permission to jump on the Barger’s trampoline by virtue of six-year-old Bryan’s invitation . . . presents a genuine issue of material fact that precludes a determination of her status as a matter of law.” Kopczynski, 870 N.E.2d at 11 (Crone, J., dissenting). Summary judgment as to Count I must be reversed. * * *
The Court of Appeals held that the attractive nuisance doctrine does not apply because in general the dangers of jumping on a trampoline should be as obvious to children as “the dangers of falling from heights.” The Court of Appeals also found that the plaintiffs failed to designate evidence establishing the latent danger of jumping on a trampoline. * * *
In this case the designated evidence conflicts regarding whether Alisha could have appreciated the dangers of jumping on a trampoline, particularly with multiple jumpers. * * * Accordingly, the Bargers have not established a lack of disputed material facts with regard to the open and obvious nature to Alisha of the dangers of trampolines. * * *
The trial court’s grant of summary judgment is reversed. This case is remanded to the trial court for further proceedings consistent with this opinion.
Law - "A Deluge of Law Schools"
Leigh Jones of The National Law Journal writes today:
As many as 10 new law schools are in the works, with the majority of them proposed in the eastern part of the country.For past talk of a new law school of Indiana, see this Dec. 28, 2005 ILB entry headed "Idea that landed with biggest thud of the year", this one from Jan. 4, 2007, headed "University of Saint Francis has begun exploring the possibility of opening a law school," and this one from Jan. 5, 2007, adding additional material.
While their proponents insist that the schools will serve the needs of their communities and beyond, the plans are drawing sharp criticism from those who argue that creating more law schools is irresponsible.
With three new law schools proposed in New York alone and others also in the early stages in Connecticut, Maine, Pennsylvania and elsewhere, developing facilities to pump out juris doctor degrees is the goal du jour for institutions looking to build a bigger name for themselves. * * *
All of those schools are in addition to University of California, Irvine Donald Bren School of Law, expected to open in autumn 2009, and at least seven other law schools that have popped up across the country in the last five years seeking accreditation by the ABA.
"This is beyond absurd," said William Henderson, a professor at Indiana University School of Law -- Bloomington. His scholarship focuses on the legal job market.
Henderson's research, which is based on data obtained from the ABA and ALM Research, a subsidiary of the parent company of The National Law Journal, shows dismal job prospects for many law graduates from lower-tier schools already in existence. New law schools, historically, have fallen into the lower tiers of the rankings by U.S. News & World Report, at least in their first years of operation.
Part of Henderson's research focuses on so-called "bad outcomes" experienced by law students, which include graduates who were unemployed nine months after graduation, graduates whose job status was unknown or students who flunked out. He determined the 50 law schools with the highest percentages of bad outcomes and revealed a range between 49.1 percent and 27.9 percent of bad outcomes among the 20 law schools with the highest percentages of such outcomes. All of those schools were ranked either in the third or fourth tier by U.S. News & World Report.
"The popular perception is that there's a big monolith of wealth," he said. "The reality is that some people are making lots of money, and a lot of people are not able to make a living." * * *
"You have to ask yourself if there is a demand for lawyers," said Thomas Guernsey, dean of Albany Law School of Union University in Albany, N.Y. He said plans for the new law schools in his area are "silly."
The perception that law schools are "cash cows" that bring in big money for universities because they have much lower overhead than other professional schools is a myth, he said.
Law schools need at least $50 million to get started, he said, and have much higher operating costs -- including career services staffers and admissions teams -- than in the past. Moreover, public law schools, which can charge lower tuition, require states to kick in the shortfall, he noted.
Because of restraint of trade issues, the ABA cannot limit the number of law schools that seek or obtain accreditation. In addition, the accreditation process does not specifically require law schools to demonstrate that their students can find employment after graduation.
"That's not the issue for us," said Hulett H. "Bucky" Askew, consultant on legal education for the ABA's Section of Legal Education and Admissions to the Bar.
The job market should be part of a feasibility study, Askew said, but the ABA's concerns are whether a law school seeking accreditation has conducted a thorough feasibility study and whether it is equipped to serve its stated mission.
The new law schools come at a time when applications nationwide are declining. The number of people applying to the 198 ABA-accredited law schools and the nine provisionally accredited schools across the country dropped for the fourth year in a row, according to the Law School Admission Council.
Preliminary figures for fall 2008 showed a 1.0 percent decline in the number of applicants, while the number of applications increased by 2.7 percent. The figures indicate that while fewer people are applying to law school, they are submitting more applications.
At the same time, salaries for the majority of law graduates are not living up to the hype of six-figure first-year pay.
According to Henderson's research, the median salary for the class of 2006 was $62,000, with half the graduates making less than $62,000. The salaries indicated a "bimodal distribution," in which 27.5 percent of the graduates made between $40,000 and $55,000, and 27.8 percent made more than $100,000.
Ind. Courts - "Search for the front of the Randolph County Courthouse continues"
WINCHESTER, Ind. -- The search for the front of the Randolph County Courthouse continues.
And it looks like the only way officials are going to find the front door (actually, they're debating the front yard) is through a battle of legal interpretations of the Unified Zoning Ordinance of Randolph County.
Two weeks ago the Board of Zoning Appeals denied a variance that would have allowed a courthouse annex to be built less than 25 feet from the Franklin Street right-of-way. The denial has left county commissioners at a standstill, and the much-debated courthouse renovation and expansion vulnerable to even more public outcry.
Technically, the issue is whether the courthouse must meet the 25-foot setback from all four sides. The courthouse is built on a traditional downtown square. Four streets border the square and the city's downtown businesses all face the courthouse.
The entire area is zoned commercial, and because of that County Attorney John Tanner contends the zoning rules for commercial property don't require minimum setbacks for the sides or back of a property. Tanner said the only setback is for the front door on Main Street, the east side. Since that distance won't be affected by the pending construction project, Tanner thinks the commissioners never needed to go before the BZA in the first place.
But Cathy Flatter, executive director of the Area Planning Commission, said because the courthouse is surrounded by four streets, there are four setback requirements, one on each side of the building.
"When you have four streets there are no side or rear yards. You have to go back to the street," Flatter said Monday. She didn't attend the morning meeting of commissioners.
Ind. Law - "Red light cameras legal?"
"Red light cameras legal?" is the headlne to this story today in the NWI Times, written by Susan Brown. The report begins:
HAMMOND | When the City Council gave its approval Monday to installing red light cameras at six city intersections, it paved the way for the city to become the first community in the state to adopt the controversial automated enforcement system.Earlier ILB entries on this topic include "Gary cameras may nab drivers who run red lights" from Nov. 27, 2007, "State may jump on red-light camera bandwagon" from Feb. 2, 2005, and "Driving to Illinois? Also, red light camera law in Indiana" from March 30, 2005.
No Indiana community is among the 345 communities listed by the Insurance Institute for Highway Safety as having red light cameras.
State legislation seeking to establish red light cameras in Indiana has failed three times since 2001.
It was unclear Tuesday whether such legislation was needed for Hammond to take action to approve the system.
In an unofficial opinion rendered in 2001, the office of Indiana Attorney General Steve Carter deemed the use of the cameras on state and federal highways unlawful but did not address their use on local streets.
State Rep. David Wolkins, R-Winona Lake, said he believed the measure did require a change in law when he sponsored legislation in 2005.
"I really don't think (Hammond) has a right to do it," he said. "I don't think it falls under home rule."
Wolkins said he suspects since Hammond has approved the cameras, the question of legality may not be decided until the first ticket goes to court.
Ind. Decisions - "Attempted murder conviction upheld"
Sophia Vorovong of the Lafayette Journal Courier reports today on the Court of Appeals decision yesterday in the case of State of Indiana v. Shannon Hollars (see ILB entry here - 6th case). Some quotes:
Shannon L. Hollars, 46, has been serving time in the Clinton County Jail for dealing marijuana while the Indiana Court of Appeals considered whether he should receive a new trial for attempted murder.
In a unanimous ruling issued Tuesday, the panel of three judges found that Clinton Superior Court Judge Kathy Smith erred when she granted Hollars a new trial on grounds that his first one was not fair.
"During the sentencing hearing in this case, the trial court questioned whether an individual can form the specific intent to kill within three to five seconds after being awakened in the middle of the night," Judge Patricia Riley wrote in the 14-page opinion.
"The short answer is yes. That Hollars was able to form the necessary intent to kill may be inferred from his intentional use of a deadly weapon likely to cause death." * * *
After the trial, Hollars' attorney, Brad Mohler, filed a motion to correct errors -- claiming that he was not provided a medical record prior to the trial that might have suggested that Hollars' back was to police when he was shot in the arm.
It was part of the reason why Smith vacated Hollars' attempted murder conviction and granted him a new trial. Smith also noted when the warrant was issued -- "past midnight, after the household was asleep" -- in her decision.
The appeals court, however, found that Hollars had ready access to his own medical records and that police loudly identified themselves both before entering and once inside Hollars' home.
"The verdict returned by the jury was relative to the weight of the evidence presented. The Court of Appeals opinion shows that," Clinton County Prosecutor Tony Sommer said.
Ind. Courts - "Township assessor sues over loss of duty"
Rebecca S. Green of the Fort Wayne Journal Gazette reports today in a lengthy story:
The Huntington Township assessor sued a number of Huntington County officials - and some state agencies - Monday, contesting recent legislation that will phase out township assessors as unconstitutional.Attorney General Steve Carter's official opinion, HEA 1001 and Transfer of Assessor Duties, is available here.
And amid her recitation of portions of the Indiana Constitution and the recently enacted House Bill 1001, Joan Stoffel's lawsuit outlines the jarring transfer of her office to the Huntington County assessor's last month.
Signed by Gov. Mitch Daniels in March, House Bill 1001 cut property taxes statewide by an average of 30 percent this year. One of the provisions of the law the transfer of the duties of the 966 township assessors in townships with less than 15,000 parcels to the county assessors. In the remaining 43 townships of more than 15,000 parcels, voters will decide in November whether to transfer the township assessor's duties to the county.
In early May, Attorney General Steve Carter issued a legal opinion, saying elected township assessors will continue to get their full salaries this year even though the property assessment jobs will shift to the counties' assessors in July.
Stoffel's lawsuit, filed Monday in Huntington Circuit Court, names the state, the Indiana Department of Local Government Finance, Huntington County, the Huntington County commissioners and County Council members and Huntington County Assessor Terri Boone. * * *
Stoffel's attorney, Indianapolis-based John Price, said he and Stoffel believe the township assessors should be allowed to finish out their terms, until Dec. 31, 2010, at full salary.
And he worries other township assessors will be kept from employment at the county assessors' offices, particularly if the two are from different political parties.
In her lawsuit, Stoffel is asking a judge to rule state legislators violated the state's Constitution when they passed House Bill 1001, and, among other requests, find the county-level officials interfered with Stoffel's contract between her and her constituency as an elected official, according to court documents.
Stoffel also wants a judge to grant class-action status to the case because she said she is acting on behalf of the state's township assessors, some of whom have already been told they have no job, or that they will not be paid any salary or other compensation for the rest of 2008, according to court documents.
A class certification would be welcome, said Becky Williams, Franklin Township assessor in Marion County and president of the Indiana Assessors Association.
She said she hears a lot of horror stories from township assessors around the state about what is going on during the transition before the July 1 date, such as township assessors being offered only $1 in salary a year for the remainder of their terms.
“There doesn't seem to be a lot of rhyme or reason to what is going on,” Williams said.
Tuesday, June 03, 2008
Ind. Decisions - Court of Appeals issues 6 today (and 10 NFP)
For publication opinions today (6):
In Term. of Parent-Child Rel. of A.B., and Angela B. and Brian J. v. Lake Co. Dept. of Child Services - a 15-page opinion, the Court reverses an involuntary termination of parental rights, on the basis that "the trial court’s judgment terminating Mother’s and Father’s parental rights to A.B. is clearly erroneous." Judge Vaidik concludes:
Although GAL Schlessinger and caseworker Kelley both recommended termination of Mother’s and Father’s parental rights because they felt it was in A.B.’s best interests to be adopted by Cyprian, this alone may not serve as a basis for termination of parental rights. A parent’s right to his or her children may not be terminated solely because a better place to live exists elsewhere. * * * Indiana Code § 31-35-2-4(b)(2) requires the LCDCS to prove, among other things, either (1) that there is a reasonable probability that the conditions resulting in removal of the child will not be remedied or (2) that continuation of the parent-child relationship poses a threat to the child’s well-being. Neither circumstance has been proven in this case. * * *In Phillip R. Goodson v. Barbara Carlson and David Carlson, a 9-page opinion, the question is whether service of process was adequate. Judge Darden concludes:
Without clear and convincing evidence to support each of the factors set forth in Indiana Code § 31-35-2-4(b)(2), we cannot affirm the termination of a parent-child relationship. Accordingly, the juvenile court’s decision to terminate Mother’s and Father’s parental rights must be set aside.
Given the evidence, we cannot say that the Carlsons exercised due diligence in attempting to locate Goodson where the Carlsons utilized only one method to determine Goodson’s address; failed to file an alias summons after being granted leave to do so; and did not attempt further notice until nearly two years after commencement of their case. Accordingly, the trial court never obtained personal jurisdiction over Goodson, and the default judgment therefore is void.9 We reverse and remand with instruction for the trial court to grant Goodson’s motion to set aside the default judgment.In Robert Reich v. Lincoln Hills Christian Church, Inc. , an 8-page opinion, Judge Vaidik's opinion turns on the Statute of Frauds:
Robert Reich, who had a remainder interest in a property, and Lincoln Hills Christian Church, Inc. entered into a written agreement for the exchange of two properties. Reich’s mother, who had a life estate in the property, did not sign the agreement. When the church did not follow through with the agreement, Reich sued for specific performance, and Lincoln Hills filed a motion to dismiss. Reich now appeals the trial court’s Indiana Trial Rule 12(B)(6) dismissal of his complaint. Because the written agreement neither describes with reasonable certainty each party and the land nor states with reasonable certainty the terms and conditions of the promises and by whom the promises were made in violation of Indiana’s Statute of Frauds, we affirm the dismissal of Reich’s complaint.In Brandon Stanley v. Danny Walker , a 15-page opinion, Judge Darden states the issue as:
Whether the trial court improperly relied on Indiana’s collateral source statute as the basis for excluding Stanley’s proffered evidence of write-offs to Walker’s medical bills, offered to rebut Walker’s medical records, which omitted written-off charges and indicated that Walker had incurred greater medical expenses than he actually had.After analysis of the common law collateral source rule and the 1986 statute, the opinion concludes:
As we are of the impression that a key policy rationale underlying the common law collateral source rule – namely, safeguarding those benefits for which the injured party “was himself responsible” – remains in effect, we must conclude that write-offs constitute insurance benefits for which the plaintiff has paid directly, and therefore, defendants cannot be allowed introduce evidence of write-offs to reduce damage awards. Restatement (Second) of Torts § 920A.In Michael A. Linton, M.D. v. Lawanda Davis, a 29-page opinion, Judge Riley writes:
Such benefits should inure to the benefit of the plaintiffs, who had the foresight to secure insurance and to maintain their coverage through payment of their insurance premiums. That the plaintiff’s insurance company developed a relationship with the plaintiff’s medical providers such that favorable discounts and reductions in rates could be negotiated, to the plaintiff’s benefit, should not serve to diminish the tortfeasor’s liability for harm caused. Moreover, the very real potential for diminution of tortfeasor liability depending upon the insured or uninsured status of the victim further demonstrates the inherent inequity of a scheme that permits tortfeasors to present evidence of write-offs for consideration in calculating the extent of the injured party’s medical expenses.
Based upon the foregoing, we conclude that fundamental notions of tort law, surviving policy justifications of the common law collateral source rule, and concerns of equity warrant the finding that write-offs secured by insurance companies for the benefit of their insureds, constitute insurance benefits for which the plaintiff or the plaintiff’s family has paid directly, and therefore, must be excluded from consideration when calculating the extent of the injured party’s pecuniary loss. Affirmed.
Appellant-Defendant, Michael A. Linton, M.D. (Dr. Linton), appeals the trial court’s Order entered on a jury verdict awarding Appellee-Plaintiff, Lawanda Davis (Davis), damages in the amount of $1,250,000 resulting from medical mismanagement of Davis’ labor and delivery. We affirm.State of Indiana v. Shannon Hollars - "The trial court granted Hollars’ motion to correct error after finding that he was deprived of due process by the cumulative effect of three perceived errors: (1) jury instructions; (2) discovery violation; and (3) timing of the execution of the search warrant. We address each factor in turn. * * *
Dr. Linton raises four issues on appeal which we consolidate and restate as the following three issues: (1) Whether the trial court abused its discretion by admitting into evidence testimony regarding the proceedings and rulings of the Indiana Medical Licensing Board; (2) Whether the trial court abused its discretion by excluding from evidence the Indiana Medical Review Panel’s statutory determination not to forward Dr. Linton’s name to the Medical Licensing Board; and (3) Whether the trial court abused its discretion by disallowing Ivanka Prcevski (Nurse Prcevski), called as a skilled lay witness pursuant to Ind. Evidence Rule 701, to testify about her perceptions of the baby’s well-being during Davis’ labor and delivery. * * *
Based on the foregoing, we conclude that whereas the licensure status of a physician who gives an expert opinion is admissible to impeach the physician’s opinion, the Board’s specific findings are not admissible in judicial proceedings. However, here the trial court properly admitted the specific findings because Dr. Linton opened the door to the evidence. Furthermore, we find that the trial court properly excluded the Panel’s determination not to forward Dr. Linton’s name to the Board. Lastly, we conclude that the trial court committed harmless error by refusing to admit Nurse Prcevski’s testimony.
"Based on the foregoing, we conclude that the trial court abused its discretion by granting Hollars’ motion to correct error because the three perceived errors do not warrant a new trial on the attempted murder charge, either individually or collectively. Therefore, we reverse the judgment of the trial court and direct the trial court to reinstate the jury’s verdict and Hollars’ sentence. Reversed."
NFP civil opinions today (3):
Lloyd G. Perry v. Paper Trust (NFP) - "Accordingly, we find that Perry failed to satisfy his burden of proof, and we find no abuse of discretion in denying Perry’s motion for relief from judgment."
Stephen Lagenour v. Diana Lagenour (NFP) - "Husband argues that the trial court abused its discretion by failing to grant him spousal maintenance and in equally dividing the marital property. Finding that the trial court acted within its discretion, we affirm the judgment of the trial court."
Kay Walser v. Donna Wilkins (NFP) - "Appellant-defendant Kay Walser appeals the trial court’s order affirming the decision of the Delaware County Health Department (Health Department) that directed Walser to vacate, demolish, and properly dispose of his mobile home. Walser argues that this matter should have been filed as a new complaint rather than folded into previously-filed litigation concerning other health and safety complaints regarding his property. He also contends that the evidence is insufficient to support the judgment. Finding no error, we affirm."
NFP criminal opinions today (7):
Ind. Decisions - Still more on: Indiana Supreme Court bars Geoffrey N. Fieger from temporary admission
Supplementing this May 24th ILB entry, the ABA Journal Blog has a report that not only did a Detroit federal jury acquit Mr. Fieger yesterday on charges of illegal campaign contributions, but his attorney, the legendary Gerry Spence, 80, maintained his record of having never lost a criminal trial, and insured it by announcing his retirement.
Environment - "Corn Prices Rise, Pitting Chickens Against Ethanol"
Cindy Skrzycki writes the Tuesday column, The Regulators, for the Washington Post.. Her column today begins:
Taking corn from the mouths of chickens to put into the gas tanks of U.S. cars and trucks is causing feathers to fly in Washington.
The $40 billion chicken industry, along with livestock producers, oil interests, grocers and some environmental and anti-hunger groups are hoping to put up a regulatory blockade to stop the diversion of corn stocks into the brewing of billions of gallons of ethanol for vehicles this year.
"It has never gone up this far, this fast," Richard L. Lobb, a spokesman for the National Chicken Council in Washington, said of the jump in corn prices to $6 a bushel and more, triple what they were two years ago. "We are competing directly with the people who make ethanol, and they are outbidding us for corn."
During the past few weeks, groups hurt by the food-vs.-fuel war over the price of corn have sought waivers -- including the first official petition from the governor of Texas -- from the ethanol mandates that Congress passed as part of last year's energy bill. The exercise illustrates how a victory for one interest group, the corn farmers and ethanol producers, can trigger counter-lobbying by others.
Ind. Courts - Still more on "Intricate political web unravels at Cantrell trial"
HAMMOND -- Witnesses called by federal prosecutors expanded the list of services available in the alleged influence-peddling case against Robert Cantrell.
A former North Township worker explained how Cantrell contacted Trustee Greg Cvitkovich to get her a job.
An East Chicago engineering contractor told of how he reached out to Cantrell to help collect a bill the city had ignored for two years, and received payment in full only days after offering to pay Cantrell $2,000 to help him collect.
Lake County Judge Jesse Villalpando took the stand and eagerly discussed how Cantrell threatened to enter candidates to run against him in the 2006 election if Villalpando didn't steer more court business to a drug counseling company Cantrell allegedly controlled.
Ind. Law - "Baker & Daniels Opens Chicago Office"
Baker & Daniels LLP issued a press release yesterday "announcing plans to establish a significant presence in Chicago with the opening of a new law office at 311 South Wacker Drive." Access the release here.
ILB Note - The ILB had to read this news in the paper, as it is not on B&D's press release list. What about your firm?
Ind. Decisions - More on: U.S. Supreme Court rules on Lake County definition of "money laundering" case
Updating this ILB entry from yesterday, Warren Richey of The Christian Science Monitor has a long article today headed "Harder task to nail money launderers: Two high court rulings on Monday will complicate US efforts to prove certain crimes." It begins:
Washington - The Supreme Court has made it more difficult for the government to prove certain money-laundering crimes.Howard Bashman of How Appealing has collected together this morning the links to reports on the decision in the major papers.
Ruling against federal prosecutors in two cases on Monday, the high court reversed the conviction of a man caught with cash hidden in his car in Texas near the Mexican border, and the court refused to reinstate a money-laundering conviction in a case involving an illegal gambling operation in Indiana.
Both decisions hold potentially important implications for crime fighting. In both cases the justices rejected the Justice Department's expansive reading of the federal money-laundering statutes.
Here in Indiana Andy Grimm of the Gary Post-Tribune has a story headed "High court back East Chicago numbers king." The interesting report begins:
East Chicago numbers king Efrain "Puerto Rican Frankie" Santos walked out of federal prison three years ago. Monday, he walked into law books.See also Bill Dolan's story in the NWI Times that begins: "A local gambling legend beat the odds Monday and won a victory over federal prosecutors in a ruling that is sure to shape the definition of the crime of money laundering."
In a ruling that will keep Santos from having to return to prison to finish a 15-year sentence, and one law enforcement officials say will make it harder to prosecute organized crime figures, in U.S. v. Santos, the Supreme Court on Monday issued a 5-4 decision to overturn Santos' 1998 conviction for money laundering.
"I was pretty sure about it all along," said Santos, who was released from federal prison in 2004 while his appeal was pending before the court.
Santos served nearly two years of the money laundering sentence, on top of a 4-year term on a separate charge of gambling for running the city's illegal lottery, or "bolita."
Though he faithfully recorded the profits he earned from bolita on his tax forms each year-- in the space for "miscellaneous" revenue-- federal prosecutors had charged Santos concealed some of the ill-gotten gains from his lottery by deducting wages and payouts to winners from the total. The additional charges carried an extra 10 years in prison.
The money laundering statute states that a crime is committed if the "proceeds" of criminal activity are hidden, but Justice Antonin Scalia, writing for the majority, stated the language should be interpreted to mean profits, not gross receipts.
"What I like is that Judge Scalia made the decision, and Judge Scalia is a conservative Justice. He said during the hearing what I said all along: 'If I play a number and I win, I want to get paid.'
"Paying winners, paying your runners, that's just what you've got to do."
Ind. Courts - "Federal courthouse construction starting this summer" in Terre Haute
Howard Greninger of the Terre Haute Tribune-Star reports today:
Construction is expected to start in July or August on the new federal courthouse at 921 Ohio St., said David Wilkinson, spokesman for U.S. General Services Administration.
Federal offices are scheduled to occupy the new, single-story, 14,000-square-foot building in the summer of 2009, Wilkinson said.
The building site is a 1.9-acre vacant lot east of St. Benedict’s Catholic Church. The lot formerly housed Bunch Nurseries. * * *
The building, which will face Ohio Street, will house the U.S. Southern District Court and bankruptcy court and clerk offices for both courts, as well as offices for U.S. Probation, U.S. Marshal’s Service and U.S. Attorney.
“A big difference is the fact this building will comply with and provide new security standards for federal court operations,” Wilkinson said. “Since Oklahoma City, one of the things that have been emphasized in new courthouse construction, even leased, is a separate circulation system for the public, judges and defendants in criminal cases that they don’t travel the same hallways or elevators. That is an additional expense that courthouses 50 years ago didn’t have to worry about.”
Indiana State University is slated to take over the existing federal building at Seventh and Cherry streets for the university’s College of Business. That building was deemed unsuitable by the federal government after September 2001, when new security guidelines and setback requirements were enacted.
Ind. Gov't. - More on "Costas falls to Zoeller in AG bid"
There are a number of stories today on Greg Zoeller's victory over the Governor's candidate, Jon Costas, at the Republican state convention yesterday.
Niki Kelly reports in the Fort Wayne Journal Gazette:
Republican attorney general nominee Greg Zoeller stunned many party insiders Monday with a strong win against Gov. Mitch Daniels’ favored candidate, Jon Costas, at the Indiana Republican State Convention.Some quotes from a story by Patrick Guinane in the NWI Times:
Zoeller – chief deputy to outgoing Attorney General Steve Carter for the past 7 1/2 years – took 60 percent of the vote, 1,061 to 707. * * *
But the real news of the GOP convention was Zoeller’s spirited campaign against Costas, who is mayor of Valparaiso.
Zoeller, 53, will face Indianapolis attorney Linda Pence in what is expected to be a tight contest in the fall.
“I’m still learning a little about being a politician. A politician promises,” Zoeller said in his victory speech. “I promise to do my best to represent the very best of our Republican Party and I accept your nomination.” * * *
Costas, 50, declined to speak to reporters after the vote was announced.
But Daniels said Zoeller earned the nomination and “the best side won.” He noted that he endorsed Costas only to be inclusive of northwest Indiana, which is often considered presumptive Democratic territory.
The governor's endorsement and a perceived geographic edge weren't enough Monday for Valparaiso Mayor Jon Costas, who was soundly defeated by Greg Zoeller in the Republican race for state attorney general.
Zoeller, the chief deputy to outgoing Attorney General Steve Carter, captured 1,061 delegate votes at the Republican State Convention to 707 for Costas, who still has three years remaining on the second mayoral term he won last year.
"That's an excellent consolation," Costas said. "I'm looking forward to getting refocused back on city matters."
Carter announced he would not seek a third term in late March, setting off a sprint between Costas and Zoeller, a New Albany native who joined Carter's political team after losing the 1996 nomination for attorney general.
Costas and Porter County Republican Chairman Chuck Williams said Zoeller's long-standing relationships with state GOP delegates and his hard work campaigning paid off in the truncated contest. Williams said he was exasperated to learn that 51 of 81 delegate votes from Lake County went against Costas. * * *
"I"m thankful for the governor's support, but the delegates are very thoughtful people. And they're independent thinkers, and that's the way it should be," Costas said. "As really a complete unknown statewide, I never would have had the opportunity (to run) had the governor not supported me."
Daniels said he took a side in the race as a continuation of his attempts to end Northwest Indiana's perceived isolation from the rest of the state. He said he fears if his party doesn't fare well in the region this November, "Republicans probably will write it off for good, and Democrats will take it for granted, as they always have."
Carter said Zoeller fared well among Lake County delegates because "people want public corruption pursued. He's committed to doing that."
Indiana Secretary of State Todd Rokita, a Munster native, said he endorsed Costas out of disappointment with the legal assistance his office has received from Carter's office.
"I'm hopeful that Mr. Zoeller will take that to heart and make sure that we get the attorneys and the kind of service that we need," he said.
The candidates parted on less acrimonious terms Monday. Costas exited the convention center as Zoeller's win was being announced but not before delivering some good news.
"Jon came up and told me the vote totals, so that was the first person I heard (that I won) from," Zoeller said. "He's proven himself the fine gentlemen that everyone told me he was."
Monday, June 02, 2008
Ind. Gov't. - "Costas falls to Zoeller in AG bid"
From the NWI Times:
Deputy Attorney General Greg Zoeller defeated Valparaiso Mayor Jon Costas to win the Republican nomination for Indiana attorney general Monday.From the Indy Star, in a lengthy story by Mary Beth Schneider:
Costas fell to Zoeller, 707 delegate votes to 1,061.
Indiana GOP delegates cast secret ballots at the state party's convention in Indianapolis, the results of which were made available just before 4 p.m. Costas' loss comes despite endorsements from top Hoosier Republican leaders, including Gov. Mitch Daniels.
Zoeller, a New Albany, Ind., native, has served as sitting Attorney General Steve Carter's assistant since 2001.
The race for attorney general began shortly after Carter's surprise Easter Sunday decision to forgo a bid for a third term.
Indiana Republicans picked Greg Zoeller, the current chief deputy attorney general, to be their nominee for attorney general.
Zoeller, 53, defeated Jon Costas, a 50-year-old who in November had just won his second term as mayor of Valparaiso. Zoeller won 1,061 votes from the Republicans who gathered at their state convention at the Indiana Convention Center today. Costas won 707 votes.
The delegates, in picking Zoeller, rejected the pick of Gov. Mitch Daniels, who had endorsed Costas saying his northwestern Indiana home gave geographic balance to the Republican ticket. Daniels is from Indianapolis, while Lt. Gov. Becky Skillman and the man nominated today to be superintendent of public instruction, Greater Clark County schools superintendent Tony Bennett, are both from southern Indiana.
Outgoing Attorney General Steve Carter, who recently decided against seeking a fourth term, had endorsed Zoeller.
The candidates did not get to address the convention directly before the vote was taken by the delegates. Instead, each showed a video, with Costas sitting in front of a burning fireplace with his guitar in the background and his words drowned out by supporters chanting his name.
Zoeller's video in part included his relative golfer Fuzzy Zoeller, who joked that Zoeller is a bad golfer, but a good attorney.
Law - "Gossip blogs bedevil law firms"
Leigh Jones of the National Law Journal has a long article today that begins:
Many of the nation's most renowned law firms have felt the public relations wallop delivered by law gossip blogs, those online tabloids that can turn an interoffice memo into a virtual billboard of bad news for partners or associates.And here is what one of the "gossip blogs," Above the Law, writes about the article.
Whether the topic is layoffs or love affairs, it seems that no subject is too edgy for sites such as Above the Law, Greedy Associates, AutoAdmit and a few others that dig up the legal profession's dirt.
The immediacy — and, at times, the brutality — of the media form is presenting a challenge for firms that are wary of their private matters entering the public domain.
"We're sensitive to the issue that things can very easily end up in cyberspace," said Mairi Luce, a partner at Duane Morris who also handles associate training and development.
Duane Morris "monitors" the blogs, Luce said, "to see what's out there in terms of gossip."
At bonus time last year, Duane Morris sat back and watched while some law firms sent e-mail to associates announcing their bonus amounts, which then were posted on Above The Law and elsewhere.
The postings prompted Duane Morris associates to press management for the details about their own pending bonuses, Luce said, which the firm subsequently disclosed in one-on-one meetings.
Although private meetings do not prevent anyone from revealing the content of a conversation to a gossip blog, they make it more difficult for the information to make the rounds without the glaring reality of a document.
"We're a little bit more cautious and slower to put information out there," she said.
Ind. Gov't. - Republicans nominate ? for attorney general
No word yet, but Patrick Guinane of the NWI Times has just posted a story headed "GOP argues geography versus experience in AG contest." Some quotes:
INDIANAPOLIS | It was no surprise when state Rep. Eric Turner, R-Marion, introduced Valparaiso Mayor Jon Costas to party faithful as a proven vote getter from "a place where Republicans are outnumbered."
After all, Gov. Mitch Daniels and other GOP leaders have billed Costas as the attorney general candidate who could bring geographic balance to the fall election slate.
But Marion County Prosecutor Carl Brizzi turned that argument on its head when it came time to introduce Costas' competitor, Deputy Attorney General Greg Zoeller.
"Who in this room believes experience doesn't matter," Brizzi asked the more than 1,900 state party delegates gathered at the Indiana Convention Center. "Who in this room believes that where you're born is more important than experience?"
Zoeller has served as top lieutenant to Indiana Attorney General Steve Carter since 2001. Costas, who was elected to a second term last year, is a part-time attorney specializing in elder law.
Ind. Courts - "Former South Bend lawyer released from federal prison"
An item posted on the South Bend Tribune web site:
SOUTH BEND -- A once-prominent Michiana lawyer is out of federal prison after serving a four-year sentence.
Paul Kusbach pleaded guilty in 2003 for defrauding a dozen people out of about $1.2 million. In addition to his prison sentence, he was also ordered to pay the money back.
Kusbach is now 70 years old.
Ind. Decisions - U.S. Supreme Court rules on Lake County definition of "money laundering" case
In a 5-4 ruling, Justice Antonin Scalia said that money laundering refers to profits of an illegal operation, not gross receipts. The court's interpretation is a narrow one opposed by law enforcement agencies.SCOTUS Blog has a useful commentary on the opinion, headed "The Santos Resolution (?)."
Scalia said the narrow definition will not unduly burden authorities, who must show only that a single instance of unlawful activity was profitable.
[More] Santos was one of two money laundering cases decided today by the SCOTUS, per this story on Bloomberg.com headed "Money Laundering Law Narrowed in U.S. Supreme Court Rulings."
Ind. Gov't. - More on: Race for Republican nomination for Attorney General ends today
Costas, a part-time attorney specializing in elder law, courted delegates by e-mailing a nearly 12-minute video introducing himself as a triathlon competitor, evangelical Christian and experienced politician. Zoeller stuck to traditional campaign tactics.
"Our strategy has been very simple all along, and that's for Greg to meet one-on-one with as many of the delegates as possible," Zoeller campaign manager Jim Banks said Friday. "He's close to the point where he's personally met with every single delegate."
Zoeller, a New Albany native and former aide to Vice President Dan Quayle, won Carter's endorsement and the support of several downstate Republicans. But Gov. Mitch Daniels and other Costas backers insist on adding a northern Indiana name to a fall GOP lineup that will feature southern Indiana candidates for lieutenant governor and state schools chief. * * *
Lake County Republican Chairman John Curley is one of the more than two dozen county chairmen to endorse Costas. But Curley hasn't demanded the county's 87 delegates follow suit in a contest he said still looked too close to call Friday.
"I don't want a floor fight between the Lake County delegates," Curley said. "I've told them all, 'I've endorsed Costas, you go behind the curtain and do what your conscience tells you to do.' "
The State Republican Convention begins at 12:30 p.m. today at the Indiana Convention Center in Indianapolis. Check nwi.com today for updates from the convention floor.
The main event, scheduled to begin about 2:30 p.m. is the attorney general showdown between Valparaiso Mayor Jon Costas and Greg Zoeller, the chief deputy to Attorney General Steve Carter.
Who decides? There are 2,086 delegates to the state GOP convention (about 1,950 had RSVP'd for the convention as of Friday). They will cast secret ballots for attorney general. The winner needs only a simple majority, so unless there's a tie, there will be just one vote.
Environment - Gary Post-Tribune examines IDEM calls to BP
Gitte Laasby of the Gary Post-Tribune reports today under the headline: "IDEM, BP in cahoots on public hearing? Phone calls reveal clues." The story begins:
A public relations official at the Indiana Department of Environmental Management called a BP official seven times leading up to a public hearing that was heavily attended by proponents of the refinery modernization.A sidebar to the story details the Post-Tribune's efforts to access cell phone records:
Sandra Flum, director of community relations, also made three calls to the Northwest Indiana Forum, a private business advocacy group.
The phones calls, obtained by the Post-Tribune through public records requests, suggest IDEM might have worked with BP and economic development groups to stack the public hearing in favor of BP's controversial expansion, environmentalists say.
"I don't know that it's inappropriate" to make that number of calls, said Tom Anderson, executive director of Save the Dunes Council, "but the appearance is, the agency is working with the polluter and the (Northwest Indiana) Forum to make it look like there was a lot more support than there is support for this project and the increased pollution."
Anderson said the unusually large attendance at a March 14 hearing in Hammond, when more than 1,000 people showed up mostly in support of the permit, seemed to be a deliberate attempt to orchestrate the hearing and indicate there was more support for the permit than was actually the case.
The Post-Tribune requested itemized cell phone bills for IDEM Assistant Commissioner of the Office of Air Quality Dan Murray for a month around the time of the hearing. Murray made a presentation about BP's air permit before the hearing, which critics said sounded more like a public relations speech for BP. * * *
The Post-Tribune has filed an official complaint with the Public Access Counselor to gain access to the records.
Ind. Courts - More on "Intricate political web unravels at Cantrell trial"
Monday, the trial of Lake County power broker Robert Cantrell enters its second week in U.S. District Court, with the longtime political operative facing charges of honest services fraud and insurance fraud and tax evasion.The Post-Tribune offers a primer. Who is Robert J. Cantrell and why should I care? * * *
Now a close adviser to East Chicago Mayor George Pabey and County Clerk (and soon-to-be Coroner) Tom Philpot -- Cantrell had once been close with Pabey's hated rival Robert Pastrick and Philpot's nemesis, Sheriff Roy Dominguez.
His daughter, Julie, just won re-election as a Lake County judge, and his son, John, was once law partners with Hammond Mayor Tom McDermott Jr. He also had close ties to former North Township Trustee Greg Cvitkovich, who was convicted on corruption charges. * * *
The trial is scheduled to continue another two weeks, with the prosecution expected to put a long list of Lake County politicians on the stand.
If convicted, Cantrell could face prison time and would have to pay restitution to the IRS and possibly others.
But, upon release, he would probably have no trouble finding a job in Lake County.
Julie Cantrell, who handily won re-election this spring, is well-liked even by some of the many local pols who despise her father, and would appear to face no repercussions.
Her younger brother, John, had an immunity agreement with prosecutors, but some who watched his testimony wonder if the state Bar Association would have to consider disciplinary action based on his AFC income and fraudulent insurance coverage.
Environment - "Possible regulation of CAFOs in Delaware County"
Seth Slabaugh reports today for the Muncie Star-Press in a story that begins:
MUNCIE -- For the third consecutive year, the city-county planning commission is debating whether or not to regulate concentrated animal feeding operations (CAFOs).
The stakes remain high, as do emotions.
A committee is scheduled to report its recommendations on a zoning-ordinance amendment to the commission at 6:30 p.m. Thursday in Heartland Hall at the Delaware County Fairgrounds.
"This is an important meeting that affects everyone in Delaware County who lives outside of Muncie," said CAFO critic Julie Alexander. "Right now, you can have a CAFO 200 feet from your door. Most people wouldn't want industry 200 feet from their front door."
The recommendations seek to protect both the right to farm and the rights of homeowners who oppose CAFOs in their backyards because of air and water pollution from manure lagoons, pits and land application.
Ind. Law - "Local crime scene investigators debunk some myths about their work"
A story today in the Evansville Courier & Press reminds us that police work is not like CSI. Gavin Lesnick reports that the show often heightens expectations. Take fingerprints:
[Tony Walker, a 16-year veteran of the Evansville Police Department's crime scene unit] finds himself at trials all the time, he said, explaining why there are no fingerprints from one crime or another.
People seem to expect they can be lifted from any scene, but a wide range of factors affect the process: the moisture or lack of moisture on a hand, the texture of the surface, the frequency it's been touched (doorknobs pose problems) and the movement of the hand all can render prints unuseable.
"There are just so many variables," said Bill Schafer, another member of the unit.
Cars are particularly problematic. Finding a good print on a steering wheel is a "one-in-a-million" shot, Walker said, and taking them off other interior surfaces is possible but expensive and damaging.
The exteriors actually hold prints well, but such evidence won't stand up in court.
"The defense attorney will say maybe he touched the car," Schafer said. "But that doesn't mean he stole it."
Once back from a scene, the local crime scene unit does input their fingerprint data into a computer, like on "CSI," but it's not quite the same.
Unlike in "CSI," in which the Automated Fingerprint Identification System often turns up a single, definitive match, the real system is rarely, if ever, so specific. It will match up prints with several potential suspects or other investigations and return a list of possible cases. Eight-hundred people have been matched through the system since it was purchased five years ago.
But the computer is just the first step.
From there, the crime scene investigator must compare the prints by hand — painstakingly measuring and analyzing them before determining if there really is a match.
There's no room for error. In court, the first question lawyers often ask is if they have ever made a false identification.
Ind. Gov't. - "Web sites ease access to Kentucky, Indiana services"
Lesley Stedman Weidenbener of the Louisville Courier Journal writes today on state government websites in Kentucky and Indiana. The story begins:
Taxpayers don't always have to drive to their state capitols -- or even to local license branches or government offices -- to keep up with state business anymore.One aspect not touched on is the preservation or archiving of records of public hearings, such as sessions of the Indiana General Assembly. The Indiana House and Senate are not creating public archives of the past sessions of the General Assembly for which video was compiled.
More and more state services, meetings and documents are available online, giving Kentuckians and Hoosiers access to information without filling up their tanks with $4-a-gallon gasoline.
On the same day last month in Indiana, Clark County residents could watch the state Supreme Court's arguments in the David Camm murder case and a tax control board's consideration of $4.2 million in bonds to renovate a local government building.
Both were Webcast live, which means viewers needed only a computer and a fast Internet connection.
But states aren't just using the Web to broadcast meetings. Taxpayers can file business forms online, buy hunting and fishing licenses, check campaign finance records and book nights at state park lodges.
"States have made remarkable progress putting services online," said Darrell West, director of Brown University's Traubman Center for Public Policy that tracks e-government programs. "People like the convenience of being able to order services electronically as opposed to personally visiting a government office."
In a study released last year, the Traubman Center ranked Kentucky's state government site as fourth best in the country and Indiana's as 16th best, based on services available to taxpayers and privacy protection.
"A great way to use technology is to give people power over information," West said. "Live streaming is becoming more common. Podcasts are big. Agencies are starting to put audio feeds of hearings and official proceedings online and that's a good way to bring government home to people."
Residents can use their computers to watch the legislatures in Kentucky -- through Kentucky Educational Television -- and Indiana. Kentucky Gov. Steve Beshear and Indiana Gov. Mitch Daniels make audio and video files available on their respective Web sites. And courts in both states offer live streams of some oral arguments.
David Remondini, a spokesman for the Indiana Supreme Court, said the justices are "very interested in removing a lot of the mystery from how the courts operate."
"The best way is to let people see how appellate courts work on a regular basis," he said. "And so we made the commitment to install the equipment and arrange for staff to Webcast it with the eye toward educating the public."
Last month, more than 19,200 people viewed the Indiana Supreme Court's oral arguments page. About 25 percent of those views came the day of the Camm case appeal.
"If we had to pick an average number for a so-called typical oral argument, it would be 15," Remondini said. "But now there are times when hundreds of people are watching, either through hundreds of computers or one computer that is broadcasting in an auditorium."
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This week's oral arguments before the Court of Appeals that will be webcast:
This week's oral arguments before the Court of Appeals that will NOT be webcast:
This Tuesday, June 3rd:
1:00 PM - Indiana Bureau of Motor Vehicles vs. Brent D. Orange - Brent Orange's ("Orange") commercial driver's license ("CDL") was administratively disqualified when he was convicted of operating a noncommercial vehicle while intoxicated. Indiana law provides that probationary driving privileges do not apply to a person holding a CDL. The issue before us is whether the trial court abused its discretion when it denied the Bureau of Motor Vehicle's ("BMV") motion to correct error and held that Orange was eligible for probationary driving privileges under his operator driver's license ("ODL"). The Scheduled Panel Members are: Judges Kirsch, Bailey and Crone. [Where: Indiana Court of Appeals Courtroom.]
Ind. Gov't. Race for Republican nomination for Attorney General ends today
The race between outgoing AG Steve Carter's chief deputy, Greg Zoeller, and Valparaiso Major Jon Costas will end today with one of them being selected the Republican nominee at the state Republican Convention. Carter supports Zoeller, Gov. Mitch Daniels supports Costas.
Russ Pulliam has a column in the Saturday Indianapolis Star giving a good picture of each candidate and his supporters.
John Byrnes of the Gary Post-Tribune writes today about "The struggle for the soul of Lake County Republicans." Some quotes:
Zoeller has not conceded Costas' home turf, making repeated trips to Northwest Indiana in recent weeks to meet with delegates face-to-face.John Gramlich, of the national Stateline.org ("Where policy and politics news click") wrote Friday under the headline "Indiana AG race mirrors Obama-Clinton." A quote from the long article:
"I just met with Greg Zoeller the other day," said Porter County Republican Chairman Chuck Williams, a staunch Costas supporter. "He certainly has been around."
Zoeller has the support of outgoing Attorney General Steve Carter, who hails from the area.
Carter earned the respect of many locals for his vote fraud investigation in Lake County and his civil racketeering lawsuit against former East Chicago Mayor Robert Pastrick and associates.
Zoeller, Carter's chief deputy, has touted his experience in those investigations and promised to actively pursue them.
Costas' connection to the law firm Burke Costanza & Cuppy LLP, where he is an "of counsel" attorney, has privately left some local Republicans with reservations.
The firm worked extensively for the city of East Chicago during Pastrick's administration, and Burke attorneys defended two men named along with Pastrick in the civil racketeering case.
Interviewed earlier this month, Costas said he is not familiar enough with the RICO case to say how he might proceed with it, if elected.
Costas' fuzziness on the details of the Pastrick prosecution gave Zoeller pause.
"Frankly, I wouldn't think it would become too hard to get familiar with the case if it's in your firm. I would be willing to provide him with (a copy)," Zoeller said recently.
But Williams said Costas' lifetime in Lake County has steeled him to fight corruption.
"He grew up in Gary, and moved away from there," Williams said. "He knows firsthand about bad government and good government, and he's ready to step in and do what needs to be done to combat government fraud."
Ahead of the convention, meanwhile, the candidates are trying to make an impression on every last delegate in an effort to sway them one way or the other.
Zoeller, currently a deputy to Carter, has vowed to campaign in key parts of the state “until every one of the delegates has met or talked to me,” according to news accounts. He told Stateline.org he has enlisted campaign help from his famous cousin, professional golfer Fuzzy Zoeller, who is a Democrat but nevertheless will “do a testimonial (at the convention) about what a good guy I am.”
Costas, mayor of the northern Indiana city of Valparaiso, has argued that his popularity in what is traditionally a Democratic part of the state would boost the Republican ticket — headed by Daniels’ re-election bid — in November. He has racked up the support of elected Republicans in the state, including most of the GOP leaders in the General Assembly. Daniels himself has said he is backing Costas because the candidate would contribute geographic diversity to the party’s ticket in the fall.
The Republicans’ race has been compounded not only by the state’s unusual election rules, but by an unexpected March 23 announcement by Carter that he would not seek re-election. The decision threw a curveball into the nominating process, as a seat that party leaders expected Carter to retain without much trouble suddenly opened and became the focus of intra-party jostling — much to the glee of state Democrats.
While the contest between Costas and Zoeller has not turned negative, it has taken on a sense of urgency that is unusual: the shortened campaign condensed a meet-and-greet process between candidates and convention delegates from a more than a year in most election cycles into about two months this year.
“The chaos and turmoil that the Republican party is going through isn’t going to help them. It reflects poorly on their effort to create a statewide campaign,” said Thomas Cook, a spokesman with the Indiana Democratic Party. Cook said Democrats are united behind [likely Democratic nominee Linda L. Pence], who has been able to raise funds and make connections “while the Republicans deal with their in-house troubles.”
Sunday, June 01, 2008
Environment - "Administration Moves to Avert a Rules Rush"
Charlie Savage and Robert Pear have an important, lengthy, front-page story in Saturday's NY Times, headlined "Administration Moves to Avert a Rules Rush." It begins:
The Bush administration has told federal agencies that they have until June 1 to propose any new regulations, a move intended to avoid the rush of rules issued by previous administrations on their way out the door.A graphic accompanying the story, titled "Regulations in the Pipeline," lists "a few potenital new regulations under consideration" and how they would be impacted by the June 1 deadline. Those which will be published in the Federal Register by June 1, according to the graphic, include: Allow Montaintop Mining and Allow Loaded Handguns in National Parks. Those which would miss the cut-off include: Limit Greenhouse Gas Emissions as the Supreme Court Ordered EPA to Consider in 2007.
The White House has also declared that it will generally not allow agencies to issue any final regulations after Nov. 1, nearly three months before President Bush relinquishes power.
While the White House called the deadlines “simply good government,” some legal specialists said the policy would ensure that rules the administration wanted to be part of Mr. Bush’s legacy would be less subject to being overturned by his successor. Moreover, they said, the deadlines could allow the administration to avoid thorny proposals that are likely to come up in the next few months, including environmental and safety rules that have been in the regulatory pipeline for years.
Many regulations do not take effect until 60 days after they have been issued, and a new president can try to postpone or revise them. After Mr. Bush took office in 2001, for example, he froze hundreds of pending regulations issued by the administration of Bill Clinton.
Mr. Clinton, in turn, had imposed a similar moratorium on last-minute regulations issued by the first President Bush.
Many officials in government agencies said they were caught unaware by the White House’s order, issued May 9.
Some officials described a flurry of activity as they sought to get proposals approved for publication in the Federal Register by June 1.
On Another Note. Some readers may note from the byline that Fort Wayne native Charlie Savage, formerly of the Boston Globe, is now writing for the NY Times. The New York Observer reported May 8th:
A day after the Times announced that there will be layoffs--perhaps around 15--the paper has picked up a star: Charlie Savage, a Pulitzer-winner on his coverage of Bush-Cheney White House, is moving to Dean Baquet's Washington bureau.
Courts - Arkansas Supreme Court rated highly in a U of Chicago study
Thanks to Howard Bashman of How Appealing, here is a report from Saturday's Arkansas Democrat Gazette. Some quotes:
The Arkansas Supreme Court was rated highly in a study made public this month in a University of Chicago Law School working paper series based on opinions written by members of state high courts in 1998-2000.Here is a link to the 51-page study. According to the abstract:
The study, titled “Which States Have the Best (and Worst ) High Courts ?” ranked Arkansas’ court as second to California in one combination of factors it weighed as a means of evaluating the state courts.
“California comes out at the top, as it has in other academic studies,” said the study. “More surprisingly, Arkansas comes in second.” Arkansas was cited as one of the “top contenders” for best court in the nation.
The study looked at the number of opinions the justices wrote, the number of times their opinions were cited in the rulings by judges in other states, and the independence of the judges to differ with their colleagues.
This paper ranks the high courts of the fifty states, based on their performance during the years 1998-2000, along three dimensions: opinion quality (or influence as measured by out-of-state citations), independence (or non-partisanship), and productivity (opinions written). We also discuss ways of aggregating these measures. California and Delaware had the most influential courts; Georgia and Mississippi had the most productive courts; and Rhode Island and New York had the most independent courts. If equal weight is given to each measure, then the top five states were: California, Arkansas, North Dakota, Montana, and Ohio. We compare our approach and results with those of other scholars and the U.S. Chamber of Commerce, whose influential rankings are based on surveys of lawyers at big corporations.See particularly pp. 21-23, re composite measures with identical weightings for each factor. Under this ranking, California is #1, Arkansas #2, and Indiana appears to be in the lower third. But there are plenty of other tables. See the study's conclusions on page 32.
Ind. Courts - Protection orders in Lake and Porter Counties
Marisa Kwiatkowski of the NWI Times has a story today headed "Protection orders rise in Lake, but drop in Porter County" and another headed "Victims lean on protection orders to break cycle of abuse." A quote from the latter story:
Crown Point Police Chief Pete Land said protection orders today are carried out much more "vigorously" than they were eight to 10 years ago.For more about protection orders, see this page from the Indiana Courts website, titled "Indiana Court Forms: Protection Orders, No Contact Orders, and Workplace Violence Restraining Orders,"
"The domestic issue is taken much more seriously by police departments, the prosecutor's office and the courts," he said.
He encouraged victims who have protection orders to contact their local police department every time an order is violated.
Environment - "Flares at heart of BP air permit appeal"
Gitte Laasby of the Gary Post-Tribune has another story today on the BP air permit controversy. Her report begins:
WHITING -- Flares stand at the heart of the appeal of BP's air permit.
You can't miss them. They're those tall Roman-candle like structures that dot refineries and other industrial complexes. But the purpose of flares is the opposite of fireworks. They exist to relieve pressure and gases from start-ups, shut-downs and any other blip in the refining system.
A pilot light on the flare burns off any chemicals dangerous to humans. But the process also creates CO2 and other pollutants and emissions that environmental groups say BP and the Indiana Department of Environmental Management have not properly accounted for.
BP insists it's accounted for what it can account for.
And the whole process of building the largest capital improvement project in the history of Indiana rests on the disagreement over these flares.
Environmentalists say BP and IDEM left out emissions from existing flares and only counted emissions from purge gases and pilot lights, where a small amount of gas is continuously burned to keep the flare system functional. The no-flaring assumption seems to fly in the face of data showing that flares are a large source of oil refinery emissions, environmentalists said.
At refineries in California, emissions of sulfur oxides during startups, shutdowns or emergencies were as high as 70,000 pounds in a day and 3,000 tons in a year, according to a coalition of environmentalists. BP estimated flare emissions would be 0.4 tons per year -- one hundredth of what's allowed without installing best-available pollution control equipment or offsetting emissions.
"I flatly refuse to believe they're building these three new flares with the intention of never using them," said Ann Alexander, senior attorney with the Natural Resources Defense Council, which has taken the lead in the appeal on behalf of environmental groups.
"What we want the Office of Environmental Adjudication to do is tell IDEM you need to include all these emissions in your calculations. We think once you do that, they'd conclude this is a major source, not a minor source permit. It would require the facility to install best-available control technology or achieve lowest achievable emission rates, which would require new permit terms."