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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.
Posted by Marcia Oddi on Monday, June 30, 2008
Posted to General Law Related
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.
Posted by Marcia Oddi on Monday, June 30, 2008
Posted to Ind. Sup.Ct. Decisions
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.
Posted by Marcia Oddi on Monday, June 30, 2008
Posted to Indiana Courts
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.
Posted by Marcia Oddi on Monday, June 30, 2008
Posted to Ind. Sup.Ct. Decisions
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):
Heather (Parmeter) Scott v. Shonn Parmeter (NFP)
Hoosier Motor Co. Inc. v. The LaPorte Savings Bank (NFP)
Daniel Jordan, Michael D. Jordan, and Troutwine Estates Development Co., LLC v. Steve Manich (NFP)
Adoption of A.J.; Brenda Johnson v. Velma Johnson (NFP)
NFP criminal opinions today (18):
Rodney B. Armour, Sr. v. State of Indiana (NFP)
Steven Loyd Brinkley v. State of Indiana (NFP)
Patrick Wilson v. State of Indiana (NFP)
Michael A. Peterson v. State of Indiana (NFP)
Rick G. Gwinn v. State of Indiana (NFP)
Earl Jackson v. State of Indiana (NFP)
Roxanne Keen v. State of Indiana (NFP)
Trisha Allen v. State of Indiana (NFP)
Yuri Zavodnik v. State of Indiana (NFP)
Samuel Peters v. State of Indiana (NFP)
Christopher J. Hovious v. State of Indiana (NFP)
Clinton Hernandez v. State of Indiana (NFP)
John H. Redmond v. State of Indiana (NFP)
Gerald L. Stokes v. State of Indiana (NFP)
Dewayne Easley v. State of Indiana (NFP)
Chad Lemons v. State of Indiana (NFP)
Terry Washington v. State of Indiana (NFP)
Anibal Saravia v. State of Indiana (NFP)
Posted by Marcia Oddi on Monday, June 30, 2008
Posted to Ind. App.Ct. Decisions
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.”
Posted by Marcia Oddi on Monday, June 30, 2008
Posted to Indiana Courts
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.
Posted by Marcia Oddi on Monday, June 30, 2008
Posted to Courts in general
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.
Posted by Marcia Oddi on Monday, June 30, 2008
Posted to Indiana Law
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.
Advertisement"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.
Posted by Marcia Oddi on Monday, June 30, 2008
Posted to Indiana Law
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.
Posted by Marcia Oddi on Monday, June 30, 2008
Posted to Indiana Law
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.
Posted by Marcia Oddi on Monday, June 30, 2008
Posted to Environment
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.
Posted by Marcia Oddi on Monday, June 30, 2008
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
None scheduled.
This week's oral arguments before the Court of Appeals:
None scheduled.
Posted by Marcia Oddi on Monday, June 30, 2008
Posted to Upcoming Oral Arguments
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.
Posted by Marcia Oddi on Sunday, June 29, 2008
Posted to Indiana Law
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.
Posted by Marcia Oddi on Sunday, June 29, 2008
Posted to Indiana Law
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.
Posted by Marcia Oddi on Saturday, June 28, 2008
Posted to Indiana Courts
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.
Posted by Marcia Oddi on Saturday, June 28, 2008
Posted to Indiana Government | Indiana Law
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.
Posted by Marcia Oddi on Saturday, June 28, 2008
Posted to Ind Fed D.Ct. Decisions
Ind. Courts - Still more on: Supreme Court issues emergency order re handling of forfeiture cases in Muncie
Updating previous ILB entries, the most recent being this one from June 24th, Douglas Walker of the Muncie Star-Press has a new report today that begins:
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."
Posted by Marcia Oddi on Saturday, June 28, 2008
Posted to Indiana 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.
Posted by Marcia Oddi on Saturday, June 28, 2008
Posted to Ind Fed D.Ct. Decisions | Indiana Law
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.
Posted by Marcia Oddi on Friday, June 27, 2008
Posted to Ind. Sup.Ct. Decisions
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.
The Court granted five transfers with opinion this week; all have been posted: four (Smith, Neff, Young, and Young.) yesterday and one (Belvedere) 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.
Posted by Marcia Oddi on Friday, June 27, 2008
Posted to Indiana Transfer Lists
Environment - Yet more on: Gary Post-Tribune examines IDEM calls to BP
Updating this ILB entry from June 25th, the Gary Post-Tribnune has an editorial today headed "What is it that IDEM seems bent on hiding?"
Posted by Marcia Oddi on Friday, June 27, 2008
Posted to Environment
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."
Posted by Marcia Oddi on Friday, June 27, 2008
Posted to Ind. Sup.Ct. Decisions
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."
William T. Spurlock v. State of Indiana (NFP)
Cicero Offerle v. State of Indiana (NFP)
Eric B. Bannister v. State of Indiana (NFP)
Gary Lindsey v. State of Indiana (NFP)
Randall Thomas v. State of Indiana (NFP)
Steven J. Robbins v. State of Indiana (NFP)
Anissa Tyler v. State of Indiana (NFP)
Posted by Marcia Oddi on Friday, June 27, 2008
Posted to Ind. App.Ct. Decisions
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.
Posted by Marcia Oddi on Friday, June 27, 2008
Posted to Indiana Courts
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.
AdvertisementResponding 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.
Posted by Marcia Oddi on Friday, June 27, 2008
Posted to Indiana Government
Ind. Courts - "United States Senate Confirms William T. Lawrence as District Judge"
Updating yesterday's ILB on-the-spot entry about the Senate vote, the USDC for the Southern District of Indiana has this morning posted this press release that begins:
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.
Posted by Marcia Oddi on Friday, June 27, 2008
Posted to Indiana Courts
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.
Posted by Marcia Oddi on Friday, June 27, 2008
Posted to Indiana Government
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."
Posted by Marcia Oddi on Friday, June 27, 2008
Posted to Indiana Law
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.
Posted by Marcia Oddi on Thursday, June 26, 2008
Posted to Ind. Sup.Ct. Decisions
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.
Posted by Marcia Oddi on Thursday, June 26, 2008
Posted to Indiana Law
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.
Posted by Marcia Oddi on Thursday, June 26, 2008
Posted to Indiana Courts
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.
Posted by Marcia Oddi on Thursday, June 26, 2008
Posted to Ind. Sup.Ct. Decisions
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.
Posted by Marcia Oddi on Thursday, June 26, 2008
Posted to Courts in general
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):
Donald Jess Smith, Jr. v. State of Indiana (NFP)
Paul Fox v. State of Indiana (NFP)
Andres Hernandez v. State of Indiana (NFP)
Lonnie Lee Williams v. State of Indiana (NFP)
Jack Chitwood, Jr. v. State of Indiana (NFP)
Posted by Marcia Oddi on Thursday, June 26, 2008
Posted to Ind. App.Ct. Decisions
Environment - More on: Plan Commission rejects request to move Wednesday's meeting to a larger location
Updating this ILB entry from June 21, Pam Tharp reports on the meeting under the headline "Seething crowd in Union County sees CAFO ordinance OK'd." Some quotes:
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.
Posted by Marcia Oddi on Thursday, June 26, 2008
Posted to Environment
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."
Posted by Marcia Oddi on Thursday, June 26, 2008
Posted to Indiana Law
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..
Posted by Marcia Oddi on Thursday, June 26, 2008
Posted to Courts in general
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.
Posted by Marcia Oddi on Thursday, June 26, 2008
Posted to Indiana Law
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.
Posted by Marcia Oddi on Thursday, June 26, 2008
Posted to Ind Fed D.Ct. Decisions
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."
Posted by Marcia Oddi on Thursday, June 26, 2008
Posted to Indiana Law
Wednesday, June 25, 2008
Ind. Gov't. - Competition fierce for Fort Wayne's Lincoln Museum
Updating these earlier ILB entries, Angela Mapes Turner reports today in the Fort Wayne Journal Gazette:
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.
Posted by Marcia Oddi on Wednesday, June 25, 2008
Posted to Indiana Government
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):
Paul Mayes v. State of Indiana (NFP)
Quentaun Speller v. State of Indiana (NFP)
Posted by Marcia Oddi on Wednesday, June 25, 2008
Posted to Ind. App.Ct. Decisions
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 Ex