Thursday, July 31, 2008
Ind. Decisions - 7th Circuit issues one Indiana decision today
In US V. Gladish (ND Ind., CJ Miller), an 8-page opinion, Judge Posner writes:
A jury convicted the defendant of having violated two federal statutes: 18 U.S.C. § 1470, which prohibits knowingly transferring or attempting to transfer obscene material to a person under 16, and 18 U.S.C. § 2422(b), which, so far as bears on this case, forbids knowingly attempting to persuade, induce, entice, or coerce a person under 18 to engage either in prostitution or in any sexual activity for which one could be charged with a criminal offense. * * *
The defendant challenges only his conviction for violating section 2422(b). * * *
The defendant of course did not succeed in getting “Abagail” to have sex with him, and if he had, he would not have been guilty of a completed violation of section 2422(b) because the agent who called herself “Abagail” was not a minor. The question (the only one we need answer to resolve the appeal) is whether the defendant is guilty of having attempted to get an underage girl to have sex with him. To be guilty of an attempt you must intend the completed crime and take a “substantial step” toward its completion. ... But the term “substantial step” cannot be applied to a concrete case without an understanding of the purpose for punishing unsuccessful attempts to commit crimes. * * *
You are not punished just for saying that you want or even intend to kill someone, because most such talk doesn’t lead to action. You have to do something that makes it reasonably clear that had you not been interrupted or made a mistake—for example, the person you thought you were shooting was actually a clothier’s manikin—you would have completed the crime. * * *
In the usual prosecution based on a sting operation for attempting to have sex with an underage girl, the defendant after obtaining the pretend girl’s consent goes to meet her and is arrested upon arrival ..* * *
But the fact that the defendant in the present case said to a stranger whom he thought a young girl things like “ill suck yoru titties” and “ill kiss yrou inner thighs” and “ill let ya suck me and learn about how to do that,” while not “harmless banter,” did not indicate that he would travel to northern Indiana to do these things to her in person; nor did he invite her to meet him in southern Indiana or elsewhere.. * * *
We are surprised that the government prosecuted him under section 2422(b). Treating speech (even obscene speech) as the “substantial step” would abolish any requirement of a substantial step. It would imply that if X says to Y, “I’m planning to rob a bank,” X has committed the crime of attempted bank robbery, even though X says such things often and never acts. The requirement of proving a substantial step serves to distinguish people who pose real threats from those who are all hot air; in the case of Gladish, hot air is all the record shows. So he is entitled to an acquittal on the section 2422(b) count, the effect of which will be to reduce his sentence from 13 years to 10 years.
We add, because it bears on our analysis of the attempt issue, that the district judge should not have prevented the psychologist whom the defendant had hired as an expert witness to testify with respect to the attempt. The expert’s report states that the defendant seeks sexual gratification in Internet chat rooms and in watching pornographic films because he has a “character pathology” that has produced “a pervasive interpersonal apprehensiveness with the expectation that others will reject and disparage him.” * * *
In fairness to the district judge, we note that the defendant’s lawyer did not make as clear as he should have what the intended focus of the expert’s testimony would be. He said that the expert would testify that the defendant did not have a “real intent” to have sex with “Abagail.” But it is reasonably clear that what the lawyer meant was that the expert would testify that the defendant was unlikely to have acted on his expressed intent.
The defendant’s conviction of violating 18 U.S.C. § 2422(b) is reversed with instructions to acquit. The sentence for violating section 1470 will stand.
Ind. Courts - Supreme Court will again allow documentary filmmaker Karen Grau, of Calamari Productions, access to the Lake County juvenile court
From a release today on the Courts siter:
The Indiana Supreme Court will again allow documentary filmmaker Karen Grau, of Calamari Productions, access to the Lake County juvenile court, Chief Justice Randall T. Shepard announced today. Filming will begin soon in the Hon. Mary Beth Bonaventura’s courtroom. The documentary is expected to air on MSNBC in 2009.
Grau plans to produce six, one-hour documentary programs. She said the goal of the series is to shed light on the issues facing the courts and the children served by the court. With that understanding, the Supreme Court agreed to allow cameras in the courtroom. Chief Justice Shepard said, “The court is always evaluating how it can more effectively help children and families in trouble. With that in mind, it is important to keep citizens informed about the issues facing the juvenile justice system. A national broadcast produced by a respected journalist is one avenue to promote that understanding.”
Having worked with Grau in the past, Judge Bonaventura believes the series will educate parents and teens. Bonaventura explained, “There was an overwhelmingly positive response to the previous MTV series. Viewers commented on the value of seeing consequences for teens involved in trouble.” Judge Bonaventura expects Grau’s new project to have similar value while highlighting more serious offenses. * * *
In February 2007, “Juvies”, an 8-part documentary series that featured Judge Bonaventura’s courtroom aired on MTV.
Ind. Decisions - Court of Appeals issues 6 today (and 14 NFP)
For publication opinions today (6):
In Robert L. Quakenbush v. Review Board of the Indiana Dept. of Workforce, et al. , an 8-page opinion, Sr. Judge Sharpnack writes:
The Review Board contends that the dismissal of Quakenbush’s appeal attempt is proper, even when the attempt was seemingly timely sent, if sent to the wrong fax number or address within the divisions of the Indiana Department of Workforce Development. Quakenbush submits documentation showing that he faxed a letter, to the attention of “Patricia” on November 15, 2007, to a different fax number than is listed on his determination notice. Quakenbush argues that Patricia told him which fax number to use, and that his appeal was timely filed. The Review Board argues that misinformation provided by a government employee should not be a basis for estoppel, especially in situations where the other party had access to the correct information. See Dennistarr Environmental, Inc. v. Indiana Dep’t. of Environmental Mgmt., 741 N.E.2d 1284, 1289-90 (Ind. Ct. App. 2001). * * *In Susana Henri v. Stephen Curto , a 21-page 2-1 decision with 3 opinions, Judge Riley writes:
The statute [IC 22-4-17-3] provides in relevant part that an appeal be taken by the party adversely affected by the decision of the ALJ within fifteen days after the date of notification or mailing of such decision. That decision was mailed to Quakenbush on November 7, 2007, and he faxed his notice of appeal to the Indiana Department of Workforce Development on November 15, 2007. Quakenbush did all that was required of him by statute in order to timely initiate the appeal of the ALJ’s dismissal of his appeal. Submitting the notice of appeal to a particular subdivision of the entity known as the Indiana Department of Workforce Development is not a statutory requirement. * * *
The DWD may not take advantage of its size and compartmentalization to frustrate this appeal because it was sent to the “wrong” subdivision of the larger entity.
CONCLUSION We conclude that the Review Board erred by dismissing Quakenbush’s appeal of the ALJ’s dismissal of his appeal from the adverse decision regarding his eligibility for unemployment benefits. The fax sent to the Indiana Department of Workforce Development was sufficient to timely initiate an appeal. Reversed and remanded.
Appellant-Plaintiff, Susana Henri (Henri), appeals the trial court’s judgment in favor of Appellee-Defendant, Stephen Curto (Curto), finding that Curto did not rape her and awarding him $45,000 on his counterclaim. We reverse and remand for further proceedings.In Michael Carpenter v. Shawna Carpenter , a 25-page opinion, Judge Robb writes:
Issues. Henri raises two issues for our review, one of which we find dispositive and which we restate as: Whether the trial court abused its discretion when it denied Henri’s motion to correct error. * * *
In sum, the trial court engaged in ex parte communications with the jury when it fielded the question from the jury without notifying the parties that the question had been submitted. See Rogers, 745 N.E.2d 995. Typically, we refuse to speculate as to how or why jurors come to their verdict. See, e.g., Newbill v. State, 884 N.E.2d 383, 392 (Ind. Ct. App. 2008). But, as here, where a party has submitted a sworn affidavit identifying ex parte communications and improper outside influences improperly brought to bear upon deliberating jurors, we must speculate to determine the effect of the influences on the fair determination of the evidence. The statement that was conveyed to the jury in response to its question misstated the law and likely affected the fair determination of the evidence by misinforming the jurors about their ability to abide by their conscientiously held opinions and their ability to prevent a verdict that they disagree with. Further, the outside influences likely compounded the error created by the ex parte communication. Therefore, we conclude that the presumption of error from the ex parte communication has not been rebutted, and the trial court abused its discretion by denying Henri’s motion to correct error. * * *
Reversed and remanded for further proceedings.
ROBB, J., concurs with separate opinion. [which begins] I concur fully in the majority opinion, but write separately to address certain points made by the dissent. * * *
BAKER, C.J., dissents with separate opinion. [which concludes] And while I acknowledge that if, in fact, the bailiff informed the jurors that they had to reach a unanimous verdict, the situation was not ideal, I simply do not find it sufficient to take the radical act of reversing a jury verdict and remanding for a new trial. For all of the reasons stated herein, I disagree with the majority’s resolution of this issue and would proceed to address the other arguments made by Henri on appeal.
Michael Carpenter (“Father”) appeals from the trial court’s order on his petitions for modification of child custody and child support; and for emancipation of child and for child support. Father raises four issues, which we restate as: 1) whether the trial court’s finding that Father’s son, B.C., was only partially capable of supporting himself was clearly erroneous; 2) whether the trial court improperly declined to order that Father be reimbursed for overpayment of a child support arrearage; 3) whether the trial court improperly modified the initial decree by allowing his former wife to claim two tax exemptions previously used by him; and 4) whether the trial court improperly determined the amount of weekly child support owed by Father. Concluding the evidence does not support the trial court’s finding that B.C. is only partially capable of supporting himself, we reverse and remand. We also conclude that the trial court’s findings do not support the re-assignment of the tax exemptions, and instruct the trial court to reconsider its determination after addressing the factors set out in the Child Support Guidelines. Finally, we direct the trial court to make findings of fact regarding Father’s overpayment, and to issue new findings regarding this issue. Because we are remanding for a new order, we need not address the fourth issue.In Thomas E. Caraway v. State of Indiana , a 13-page opinion, Judge Riley writes:
Caraway raises one issue on appeal, which we restate as: Whether the trial court erred in denying his motion to suppress when Caraway was not advised of his right to counsel prior to signing an Agreement to Take Polygraph and Stipulation of Admissibility (stipulation agreement). * * *In A.M. v. State of Indiana , a 7-page opinion, Judge Mathias writes:
In sum, we conclude that Caraway’s right to counsel attached immediately prior to Detective Herr’s request to sign the stipulation agreement. Caraway had to stand alone against the State, and make a decision that may damage his defense at trial. At that critical stage, the absence of Caraway’s right to an attorney derogated his right to a fair trial. Furthermore, as Caraway was never informed of his right to counsel prior to stipulating the results of a polograph examination, he could not have waived it. Accordingly, we conclude that the trial court improperly denied Caraway’s motion to suppress. * * *
Reversed and remanded.
BAKER, C.J., concurs.
ROBB, J., concurs in result with separate opinion. [which concludes] The timing of the advice of rights is an important distinction between Kochersperger and this case. On the basis that Caraway was not advised of and did not waive his right to counsel before signing the stipulation, rather than on the basis of the Sixth Amendment, I agree that the trial court should have granted Caraway’s motion to suppress, and I therefore concur in result.
A.M. was adjudicated a delinquent child in Marion Superior Court for carrying a handgun without a license, a Class A misdemeanor if committed by an adult. A.M. appeals and argues that the juvenile court abused its discretion when it admitted the handgun into evidence. Concluding that the handgun was properly admitted because the pat-down search which led to its discovery was not conducted in violation of the Fourth Amendment and Article I, Section 11 of the Indiana Constitution, we affirm.In Yankee Park Homeowners Association, Inc. v. LaGrange County Sewer District, an 11-page opinion, Judge Brown writes:
Yankee Park Homeowners’ Association, Inc. (“Yankee Park”), appeals the trial court’s declaratory judgment in favor of the LaGrange County Sewer District (“District”). Yankee Park raises four issues, which we consolidate and restate as whether the trial court erred by finding that the District’s actions in defining the terms “mobile home” and “mobile home court” and classifying Yankee Park as a mobile home court rather than a campground were not arbitrary and capricious. We affirm. * * *NFP civil opinions today (2):
As in Bass Lake, the statutes and regulations governing the Indiana Department of Health may define mobile home community and campground differently than the District’s ordinance, but those definitions are not binding upon the District. The statutes governing the District do not define mobile home community or campground, and the District’s decision to classify properties containing mobile homes as mobile home courts rather than campgrounds regardless of the seasonal usage is rational. The District’s basis for distinguishing between mobile home courts and campgrounds was not arbitrary or capricious. Moreover, the District’s classification of Yankee Park as a mobile home court rather than a campground based upon the change was not arbitrary or capricious.
Term. of Parent-Child Rel. of L.B., and David L. v. Lake County Dept. of Child Services (NFP) - "We conclude that Father was not denied his constitutional right to due process when the juvenile court did not appoint counsel to represent him during the CHINS and termination proceedings. Further, the LCDCS established by clear and convincing evidence the requisite statutory elements to support the involuntary termination of Father’s parental rights to L.B. Affirmed."
Walsh & Kelly, Inc. v. International Contractors, Inc., Signature Properties, Inc., et al (NFP) - "Whether the trial court erred in granting Partial Summary Judgment to Developer, when Subcontractor has sought a mechanic’s lien against Developer’s property although Developer has already fully paid the general contractor for the work provided by Subcontractor. * * *
"We conclude that the trial court did not err in granting Partial Summary Judgment to Developer because the mechanic’s lien is invalid and unenforceable. Affirmed."
NFP criminal opinions today (12):
Courts - "Filing for Bankruptcy Becomes More Costly"
Jacquelllline Palank of the WSJ reports today:
Individuals who have filed for bankruptcy protection since Congress overhauled U.S. bankruptcy laws in 2005 have faced a more expensive process as attorneys' fees have risen by roughly half, according to a government report.Here is a link to the 53-page June 2008 report.
In a report issued Monday, the U.S. Government Accountability Office said attorneys' fees for individuals who file for Chapter 7 bankruptcy-court protection increased by 51% since the Bankruptcy Abuse Prevention and Consumer Protection Act took effect in October 2005.
The report attributes the increase to the heavier load of legal work that is necessary to meet the law's requirements, which experts say has created a significant hurdle for financially strapped individuals.
"We've imposed enormous costs on the system which, among other things, have been a real barrier to people filing for bankruptcy because it's so expensive," said Henry Sommer, president of the National Association of Consumer Bankruptcy Attorneys.
According to the report, the average lawyer's fee for a Chapter 7 bankruptcy case -- in which an individual's assets are liquidated and debts are discharged -- climbed to $1,078 in February and March of 2007, compared with $712 for the same period in 2005.
For Chapter 13 bankruptcies, which allow individuals to develop creditor-repayment plans, the median attorney's fee rose to $3,000 in February 2008 from $2,000 just before the law was passed.
Not only do individuals face higher attorneys' fees, but the accountability office also said that the fees to file for bankruptcy rose by $90, to $299, for Chapter 7 filers and by $80, to $274, for Chapter 13 filers.
Law - "Workers' Religious Freedom vs. Patients' Rights"
Rob Stein of the Washington Post has a lengthy story today that begins:
A Bush administration proposal aimed at protecting health-care workers who object to abortion, and to birth-control methods they consider tantamount to abortion, has escalated a bitter debate over the balance between religious freedom and patients' rights.
The Department of Health and Human Services is reviewing a draft regulation that would deny federal funding to any hospital, clinic, health plan or other entity that does not accommodate employees who want to opt out of participating in care that runs counter to their personal convictions, including providing birth-control pills, IUDs and the Plan B emergency contraceptive.
Conservative groups, abortion opponents and some members of Congress are welcoming the initiative as necessary to safeguard doctors, nurses and other health workers who, they say, are increasingly facing discrimination because of their beliefs or are being coerced into delivering services they find repugnant.
But the draft proposal has sparked intense criticism by family planning advocates, women's health activists, and members of Congress who say the regulation would create overwhelming obstacles for women seeking abortions and birth control.
There is also deep concern that the rule could have far-reaching, but less obvious, implications. Because of its wide scope and because it would -- apparently for the first time -- define abortion in a federal regulation as anything that affects a fertilized egg, the regulation could raise questions about a broad spectrum of scientific research and care, critics say.
Ind. Law - Looking back through the ILB archives
From the Indiana Law Blog archives, one year ago July 25th-31st:
- Courts - New Albany, adult store still await ruling (July 29, 2007). Update: Another year has now passed and New Albany DVD (05-1286) still awaits a ruling. Oral argument was 9/26/05.
- Ind. Courts - Judge Felts Named President of Indiana Judges Association (July 26, 2007)
- Ind. Courts - Governor appoints Lake and Marion Superior Court judges (July 26, 2007). "Calvin Hawkins will serve as judge of the Lake County Superior Court replacing Judge Robert A. Pete who died on March 6. David Certo will fill the vacancy on the Marion County Superior Court created by the governor’s appointment of Judge Cale Bradford to the Indiana Court of Appeals last month."
- Law - "Law-related blogging starting to see a coming of age" -- But can a law blogger ever be considered a "journalist"? (July 31 2006)
- Ind. Courts - "Ind. Courts - Judge unseals records in French Lick casino dispute today" (July 31, 2006)
- Ind. Courts - Commission on Judicial Qualifications has filed judicial disciplinary charges against Judge Thomas Newman, Jr., Madison Superior Court #3. (July 30, 2006) Update: Judge Newman was censured Dec. 19, 2006
- "Ind. Gov.t. - Attorney general Carter appoints state's first solicitor general" (July 29, 2005)
- Indiana Courts - Federal Courts to Have Online Filing (July 25, 2004)
- Indiana Decisions - Wilkins appeals disciplinary decision to U.S. Supreme Court (July 27, 2003)
Wednesday, July 30, 2008
Ind. Decisions - Recent COA NFP custody decision receives some attention
The July 24th Court of Appeals opinion in the case of Diana E. Lowhorn v. Brian E. Lowhorn (NFP) [See ILB summary here, 7th case], was the focus of an entry this evening by law prof. Eugene Volokh. Mr. Volokh, as profs are prone to do, poses a hypothetical:
Say we have two parents vying for custody. The children don't like associating with the transgendered people, lesbians, uncool people, disfigured people, fundamentalist Christians, Wiccans, blacks, or whites whom one parent invites over for dinner. (It may well be that the legal rules should be different for the different categories -- or maybe not.) The other parent offers an environment that the children seem to like more. Assume there's no serious threat to the children from the associates, nor any evidence of outright psychological damage stemming form the children's embarrassment -- just the sort of unease that people sometimes have, rightly or wrongly, from being around certain kinds of people. Should a court consider this? Under what circumstances? What role should the child's age play?The entry caused me to reread the NFP decision to reverse and remand. Here are some quotes from the 18-page opinion, written by Judge Brown:
Mother has had a platonic friendship with Galen for several years. Father described Galen as “a super nice guy.” In August 2005, Father learned that Galen had transgendered from male to female. Father also learned that Mother had taken the children to the Jesus Metropolitan Community Church (“JMCC”), a church open to gay, lesbian, bisexual, and transgender people.
On January 6, 2006, Father filed a petition to modify custody, in which he requested sole legal and primary physical custody of the children. The trial court held a hearing on the petition on November 9, 2006, and conducted an in camera hearing with the children. On October 31, 2007, the trial court issued its findings of fact and conclusions of law. The trial court found that “[s]ince the entry of the Decree, there has been a substantial and continuing change of circumstances such that the Court’s prior Order pertaining to custody of said children and the parenting time arrangements is not in the children’s best interests.” Specifically, the trial court found that: (1) Mother had failed to provide Father with information regarding parent-teacher conferences, extracurricular activities, religious training, and medical issues; (2) Mother had forced the children to be seen publicly with her transgendered friend; (3) Mother had forced the children to attend church at JMCC with her; (4) Mother had failed to provide Father with the right of first refusal for additional parenting time; (5) both children had expressed a strong desire to live with Father; and (6) Mother was unwilling or unable to address the psychological and physical needs of the children. The trial court found that joint legal custody was “unworkable” and that Father should have sole legal and physical custody of the children with Mother having parenting time. * * *
After Father confronted Mother about Galen, Mother agreed that she would not “have the kids around. Galen.” For a few months, the children had no contact with Galen. Now, the only interaction between the children and Galen is when Galen comes to Mother’s house for dinner two or three times a month.
The trial court’s finding that “Mother continues to subject the children to being seen with the person in restaurants, in front of their friends, and at the children’s extracurricular activities” is clearly erroneous. Rather, the evidence demonstrates that, after the children’s concerns were brought to Mother’s attention, the children had interaction with Galen only a few times a month for a private dinner in their residence. There is no evidence that the children’s occasional interaction with Galen during private dinners is harmful, and the evidence is simply insufficient to demonstrate a substantial change to modify custody. See, e.g., Downey v. Muffley, 767 N.E.2d 1014, 1020 (Ind. Ct. App. 2002) (holding that no rational basis existed for custody order preventing the mother from living with her same-sex domestic partner where there was no evidence of an adverse effect upon the children based upon the mother’s sexual preference and relationship with same-sex partner); Johnson v. Nation, 615 N.E.2d 141, 146 (Ind. Ct. App. 1993) (holding that the trial court erred by modifying custody solely based upon changes in the father’s attitude toward and involvement in religious activities without evidence that the children’s physical health was being endangered or their emotional development was being significantly impaired); D.H. v. J.H., 418 N.E.2d 286, 293 (Ind. Ct. App. 1981) (holding that homosexuality of a parent, standing alone, without evidence of any adverse effect upon the welfare of the child does not render the homosexual parent unfit as a matter of law to have custody of the child).
Ind. Courts - Debra McVicker Lynch selected to replace retired Magistrate Judge V. Sue Shields
A release posted today by the Clerk of the USDC in Indianapolis announces:
The United States District Court for the Southern District of Indiana announced today the selection of Debra McVicker Lynch for the position of United States Magistrate Judge. This position became available due to the elevation of William T. Lawrence to an Article III judgeship, effective July 1, 2008. Magistrate judges preside over many pretrial proceedings in both civil and criminal cases in federal court. A critical part of the job is conducting mediation and settlement proceedings in civil cases, helping parties settle their disputes by agreement.
A Magistrate Judge Merit Selection Committee chaired by retired Magistrate Judge V. Sue Shields reviewed more than 50 applications and recommended five candidates for the position. The District Judges of the court then selected Ms. Lynch from among those five candidates.
Ind. Courts - 7th Circuit's use of Wikipedia in Home Depot case cited as "troubling"
Courts have cited Wikipedia over 300 times, and many of those cites are in my view just fine when the citation is for a tangential and uncontroversial matter. But the Seventh Circuit's use of Wikipedia in Rickher v. Home Depot, Inc., handed down Monday, strikes me as troubling.The NY Times had a very good article Jan. 29, 2007 that the ILB quoted here. A quote from the article:
The key issue as to one part of the plaintiff's lawsuit was the definition of "wear and tear." The plaintiff cited Webster's II New College Dictionary and Random House Webster's College Dictionary, which defined the term as “Depreciation, damage, or loss resulting from ordinary use or exposure” and “Damage or deterioration resulting from ordinary use; normal depreciation,” But the court disagreed [and cited Wikipedia]. * * *
If the judges wanted to argue based on their experience, based on logic, or based on contrary lexicographic authorities — including, for instance, the use of the phrase in other sources — that's fine, and they did that in some measure. But they cited Wikipedia as the lead authority supporting their conclusion, and as the source for their important and controversial definition; and this strikes me as troubling.
First, there does seem to me to be a serious risk of manipulation by the parties in this sort of situation. * * *
And, second, I don't see much reason to see why, even unmanipulated, Wikipedia should be a substantial authority here. We don't know who wrote the definition, so we can't rely on his knowledge. This doesn't seem likely to be the sort of definition that would attract a great deal of attention and review in case of error, so that we can rely on a possible "wisdom of crowds." Dictionaries and encyclopedias aren't perfect, and I know there are arguments that Wikipedia is on balance roughly as accurate as the Encyclopedia Britannica (as well as arguments in response). But it does seem to me that, at least until such rough equivalence of Wikipedia and other sources is further demonstrated, courts should rest their decisions about important and controverted matters on sources — such as dictionaries, technical dictionaries, or encyclopedia entries — that at least have some more indicia of likely expertise.
In a recent letter to The New York Law Journal, Kenneth H. Ryesky, a tax lawyer who teaches at Queens College and Yeshiva University, took exception to the practice, writing that “citation of an inherently unstable source such as Wikipedia can undermine the foundation not only of the judicial opinion in which Wikipedia is cited, but of the future briefs and judicial opinions which in turn use that judicial opinion as authority.”In the Jan. 29, 2007 entry I observed:
Citation to anything on the web is nothing more than a link to the location of a document on a server located somewhere in cyberspace. The document can be removed, the server can be taken down. That is one set of problems. They are addressed by sites such as WebCite.com, which describes itself as "an archiving system for webreferences (cited webpages and websites)." More from the site:.Interestingly, another prominent use by the 7th Circuit of Wikipedia references was in Judge Wood's dissent in the voter ID case, quoted in this April 5, 2007 ILB entry.Authors increasingly cite webpages in medical and scientific publications, which can "disappear" overnight. The problem of unstable webcitations has recently been recently referred to as an issue "calling for an immediate response" by publishers and authors.The other set of problems involves the fact that the document may be changed, with no indication, meaning that the citation now leads to something other than that which the judge or author intended, and who is to know? Or the document may indicate it has been corrected or revised, but give no clue to what it said before. These are problems, as the ILB has written before, inherent in the Indiana General Assembly's website, as it relates to the Indiana Code, the Acts of Indiana, and the Indiana Register
Ind. Decisions - Two Indiana opinions today from 7th Circuit
In Parrott v. US (SD Ind., Judge Young), a 21-page opinion, Judge Wood writes:
The remand resulted in a grant of summary judgment against Parrott on both of his claims. In addition to challenging that ultimate decision on appeal, Parrott, who represented himself pro se throughout the district court proceedings, also argues that the district court erred when it denied various discovery motions. Parrott asserts that the district court’s handling of discovery provides an independent basis for reversal, particularly on the failure-to-protect claim. We agree with him, and we therefore remand the case to the district court once again for further discovery on the question whether BOP officials negligently failed to protect Parrott from Gregory’s assault.In Hall v. Forest River, Inc. (ND Ind., CJ Miller), an 18-page opinion, Judge Manion writes:
Shellee Hall sued her former employer, Forest River, Inc., for sex discrimination, constructive discharge, and retaliation, under Title VII. The district court granted Forest River summary judgment on the constructive discharge claim and, following the close of Hall’s case-in-chief, granted Forest River judgment as a matter of law on the retaliation claim. The sex discrimination claim was submitted to a jury, which returned a verdict in favor of Forest River. Hall appeals, challenging only the district court’s decision granting Forest River judgment as a matter of law on her retaliation claim. We affirm. * * *
In order to avoid judgment as a matter of law, Hall needed to present sufficient evidence of causation to support a jury’s verdict of retaliation. Hall failed to do so, however, pointing instead to evidence irrelevant to the issue of causation or insufficient as a matter of law to support a jury verdict in light of the undisputed evidence that Forest River believed another candidate was better qualified for a promotion. For these and the foregoing reasons, we AFFIRM.
Courts - "Sizing Up the 2007-08 Supreme Court Term"
Legal Times' seventh annual Supreme Court review, with print and audio versions, available here.
Law - "Conflicting Gay Marriage Laws Cause Headaches for Companies"
Some quotes from an article by Sherry Karabin in Corporate Counsel:
California wasn't the first state to legalize same-sex marriage; Massachusetts did so four years ago. (Six countries, including Canada, also allow gay and lesbian couples to marry.) But ever since Congress passed the Defense of Marriage Act (DOMA) in 1996, only opposite-sex marriages are recognized under U.S. federal law.
As a result, companies have to follow two sets of rules, says Maureen O'Neill, an employment law partner at Paul, Hastings, Janofsky & Walker. "For example, a same-sex spouse may be entitled to health insurance coverage under the company's insurance plan if the policy is governed by California law, but the provision of such benefits will be taxable for purposes of federal income tax," says O'Neill.
Same-sex spouses also can't file a joint federal income tax return, aren't eligible to receive each other's Social Security death benefits, and can't roll over a 401(k) plan to the other spouse without income tax consequences. As PG&E's Campos notes, "Employers have no choice but to treat same-sex couples differently in terms of taxation."
Ind. Decisions - Court of Appeals issues 2 today (and 12 NFP)
For publication opinions today (2):
In Tony Billings v. Kendra Odle , an 8-page opinion, Judge Bradford writes:
Appellant-Respondent Tony Billings appeals following the trial court’s order finding him in arrears of his child support obligation. On appeal, Billings claims that he was entitled to credit for child support paid while exercising physical custody over Daughter and that the termination of his obligation to pay a portion of Daughter’s post-secondary education expenses should be applied retroactively to the last date which Daughter was enrolled at a post-secondary institution. Concluding that Billings was entitled to credit for child support paid while exercising physical control over Daughter and that Billings should only be obligated to pay Daughter’s educational expenses for the period of time in which she was actually enrolled at a post-secondary institution, we reverse and remand to the trial court for further proceedings not inconsistent with this opinion.In Terry Baxter v. State of Indiana , a 20-page opinion, Judge Barnes concludes:
The statutes making failure to properly dispose of a dead animal a Class D felony are constitutional. Allowing Animal Control to retain possession of the nine horses while this case was pending complied with Indiana Code Section 35-46-3-6. The search of Baxter’s property and the seizure of the nine horses did not violate the Indiana Constitution. Finally, there is sufficient evidence to support eight of Baxter’s convictions for Class B misdemeanor animal neglect, but insufficient evidence to support four of those convictions. We affirm the four Class D felony convictions and eight of the Class B misdemeanor convictions and reverse four of the Class B misdemeanor convictions.NFP civil opinions today (3):
In Re the Adoption of R.W.L.; Rusty L. v. James and Susan M. (NFP) - "In consideration of the facts most favorable to the judgment, the trial court did not clearly err in granting James and Susan’s Petition for Adoption of J.R.M."
American Contracting & Service, Inc. v. City of Jeffersonville, Indiana; et al. (NFP) - "Having concluded that the trial court did not err in denying American summary judgment and having interpreted the contract’s terms to provide that American was entitled to no additional compensation for costs relating to the excavation and replacement of problem soil, we affirm the trial court’s judgment in favor of American in the amount of $1045."
In Re the Matter of Y.O., D.N. & C.o.; and S.N. v. Marion Co. Dept. of Child Svcs. (NFP) - "Seneca N. (“Mother”) appeals from the juvenile court’s determination that her minor children, Y.O., D.N., and C.O., are Children in Need of Services (“CHINS”). Specifically, she contends that her children’s out-of-court statements were not supported by sufficient indications of reliability and that the trial court violated her rights under the Indiana and United States Constitutions by holding the child hearsay hearing and CHINS fact-finding hearing close in time on the same day. Concluding that the trial court did not abuse its discretion in finding that her children’s out-of-court statements were supported by sufficient indications of reliability and that she invited any error relating to the hearing procedure, we affirm."
NFP criminal opinions today (9):
Ind. Courts - Two new stories today on the Delaware County drug forfeiture investigation
The most recent ILB entry on the drug forfeiture investigation in Delaware County was July 24. Today Rick Yencer of the Muncie Star-Press has two new stories.
"Oversight over DTF seizure, forfeiture already in place" is the headline to this story, that begins:
Some new rules governing the seizure and forfeiture of money and property from criminal defendants already are in effect as local judges prepare to adopt new checks and balances.A second story, headlined "McKinney can't withdraw from DTF forfeiture cases," begins:
Seized money and assets from alleged drug dealers are no longer held in the Muncie-Delaware County Drug Task Force safe on Kilgore Avenue, according to Muncie Police Capt. Mark Vollmar, who supervises the city police investigations unit.
And Delaware County Prosecutor Mark McKinney told Delaware Circuit Court 2 Judge Richard Dailey Tuesday that deputy prosecutors were no longer handling drug forfeiture cases.
McKinney told The Star Press that Dailey's investigation had effectively killed asset forfeiture from criminal defendants. He told the judge it had been difficult to find any attorney to take over the civil cases given the court's investigation that found evidence that property and money was seized and spent by the DTF without court orders. Then-deputy prosecutor McKinney made well over $100,000 during the last decade representing the DTF in those cases.
Dailey again met with local legal, financial and law enforcement officials to finalize new rules before local judges consider them next month.
Among the biggest oversight in the new rules is one that Delaware Circuit Court 4 Judge John Feick imposed after finding the DTF was putting seized money into its own checking account without a court order.
All drug forfeitures must be adjudicated according to state law, and adjudication of the civil forfeiture should not commence until the criminal case is disposed.
Delaware County Prosecutor Mark McKinney's effort to withdraw from dozens of cases where he represented the Muncie-Delaware County Drug Task Force on civil forfeiture was denied Tuesday.
McKinney, represented by Indianapolis attorney Kevin McGoff, said it was no longer appropriate for him to represent the DTF in cases Delaware Circuit Court 2 Judge Richard Dailey planned to review in an ongoing investigation into whether the DTF took money in violation of state law.
McKinney wrote in his motion that his relationship with the DTF was nonexistent, given the city filed a disciplinary complaint against him and also sought a special prosecutor to investigate whether a crime or conflict of interest exists.
Besides that, he said, full-time prosecutors cannot maintain a private law practice.
There's been no action by the Indiana Supreme Court's disciplinary commission on the complaint or by Special Judge Michael Peyton of Henry County on the special prosecutor request.
Ind. Decisions - "Wrongful conviction case hits new snag"
This Jan. 16, 2008 ILB entry quotes from an Indianapolis Star story that mentions, at the end of a long story about another individual:
Buntin said he hasn’t decided whether to file a federal lawsuit seeking compensation for a wrongful conviction. Larry Mayes, who spent 19 years in prison for a rape in Hammond before DNA evidence exonerated him, was awarded $9 million by a jury in 2006; that verdict is on appeal.In this March 11 entry Sara Brown reported in the NWI Times that:
HAMMOND | Five months after the city of Hammond asked a federal appeals court to overturn a $9 million judgment in the wrongful conviction lawsuit won by Larry Mayes, attorneys are expected to file a motion today asking the court not to rule in the case.Today Joe Carlson reports in the Times under the headline "Wrongful conviction case hits new snag" in a story that begins:
HAMMOND | City officials want to pay $4.5 million to settle with a man they wrongfully imprisoned for 20 years, and the man wants to accept.Here is a copy of the 9-page July 29th opinion and order from the ND Ind., Hammond Div. that begins:
But federal judges are standing in the way, at least for now.
In 2006, Larry Mayes won a lawsuit he filed against the Hammond Police Department, which manipulated evidence to send Mayes to prison for a 1980 rape that modern DNA evidence now proves he did not commit.
Police officials admitted at trial that a detective on the case had used hypnotism on the victim of the attack to try to produce memories of her assailant, despite department policy against the unorthodox technique.
A federal jury awarded Mayes $9 million.
While the verdict was out on appeal, city officials and Mayes' attorneys agreed to settle the case out of court for $4.5 million -- but only if city officials floated a bond for the settlement and if federal judges agreed to invalidate the $9 million judgment.
The Hammond City Council approved the bond in April, but the 7th Circuit Court of Appeals has denied the request to throw out the jury award.
Many appeals courts across the country will automatically vacate an earlier court decision in order to promote settlements, but the Chicago-based 7th Circuit has refused, citing a concern about wasting judicial resources and other issues, U.S. Magistrate Judge Paul Cherry wrote.
"The parties do not have a settlement without the entry of an order vacating the jury verdict," Cherry wrote.
This matter is before the Court on an order from the United States Court of Appeals for the Seventh Circuit [DE 546], issued on July 15, 2008, and filed with this Court on July 17, 2008. The Court of Appeals has remanded this case for the limited purpose of allowing the Court to inform the Court of Appeals whether it is inclined to vacate the judgment and jury verdict.It ends with:
Based on the foregoing, the Court now ORDERS the parties to FILE a joint brief, on or before August 8, 2008, setting forth the law and facts, as requested in Part B of the Analysis, necessary for the Court to inform the Court of Appeals whether the Court is inclined to vacate the jury verdict and judgment in this case as a condition of settlement. Upon receipt of the brief, the Court will expeditiously issue an order in response to the Court of Appeals’ inquiry.
Tuesday, July 29, 2008
Ind. Courts - "Courthouse Girls" movie to air soon on your local PBS station
So reports Bill Richmond of the Winchester News-Gazette. Some quotes:
A documentary on the Courthouse Girls calendar saga will make its network television debut Thursday evening on PBS channel WIPB. Courthouse Girls of Farmland airs July 31 at 9 p.m. on WIPB. * * *
"The calendar is only one part of this story," said co-executive producer Angela Soper. "The bigger issue is what's happening to small towns all across America, especially those with history to be preserved in the form of their buildings, their culture and the lives of their citizens.
"It's also a story about the value offered society by those who are older."
She said the film is not only about those who worked to save the courthouse. The team of filmmakers made a point to talk to people who were against saving it and express a differing point of view.
"We really wanted to get other people's opinions as much as possible," she said.
Soper said the Muncie PBS broadcast will be the first time the program has been widely available to the public. It was previously seen only in showings to private groups and at film festivals. * * *
WIPB General Manager Alice Cheney said Courthouse Girls of Farmland is an excellent documentary on the revitalization of a small community.
"We are thrilled to have been a part of the production," Cheney said.
WIPB Marketing Manager Angela Rapp said, as the presenting station, WIPB has offered the Courthouse Girls documentary to all the Indiana Public Broadcasting Service (IPBS) stations. Those stations include: WNIT-TV South Bend/Elkhart, WFWA-TV Fort Wayne, WYIN-TV Merrillville, WFYI-TV Indianapolis, WVUT-TV Vincennes, WNIN-TV Evansville and WTIU-TV Bloomington. At this time all the stations have expressed an intent to air the program.
Ind. Law - Proposed Vincennes golf cart ordinance "driven to committee"
An ordinance that would regulate the use of golf carts on city streets went for the first time before the city council Monday night, and with little fanfare, was sent to a sub-committee for further review.
Two men took the podium to speak about the ordinance, each with very different opinions.
Dode Hall, who lives along the 1400 block of Mentor Street, is against the proposed ordinance and said he would rather see golf carts - as well as motorbikes, mopeds and motorized wheelchairs - banned from the city's streets altogether. * * *
But Bob Dunn, who lives along 13th Street, buzzes all over town in his golf cart and says it's possible, even likely, that full-size vehicles and golf carts can share the city's streets amicably.
"So far, everyone has been very courteous," he told the council. * * *
The ordinance will now go before the city council's street and sanitation committee for further review. Typically, the ordinance would go before the public safety committee, but it is currently reviewing a proposed ordinance that would institute a city ambulance service.
City Councilman Don Kirk said the golf cart ordinance was given to the street and sanitation committee to "free up" the public safety committee. No announcement was made at the meeting as to when the street and sanitation committee would next meet.
Ind. Courts - Attorneys' lounge now available in the Birch Bayh Federal Building and United States Courthouse (Indianapolis Division)
Here is the announcement.
Ind. Courts - More on: "Case in jeopardy because of typos"
A judge ruled this week that multiple clerical mistakes did not prejudice the defendant’s rights in a sexual misconduct case.
Cass Circuit Court Judge Leo Burns overruled a defense motion to dismiss the prosecution’s second amendment to a charge of sexual misconduct with a minor against 23-year-old Jesse Alan Philapy of Kokomo.
Philapy’s attorney, Randy Hainlen, argued that the prosecutor’s office missed the deadline to make changes to the charging information used to inform defendants of the charges they face.
In a hearing last week, Chief Deputy Prosecutor Lisa Swaim argued that the flaws were merely typographical errors. * * *
Since the original filing, the prosecution twice made modifications to the age-sensitive sexual misconduct charge.
In August, the prosecution changed the time frame to 2007, changed the last name of the victim and removed the date of birth. In May, the prosecution filed another amendment in an attempt to correct the time frame and change the victim’s age to 15. Hainlen objected to the second attempt to modify the language.
In his ruling, Burns considered the question, “Does the amended information prejudice the substantial rights of the defendant?”
Burns indicated that Philapy had been aware of the charges throughout the proceedings. He pointed out that the second amendment was made more than 90 days before trial and that the defendant had been notified of the alleged victim’s age at multiple hearings.
“The mistakes made by the state in the first two informations were obvious,” Burns wrote. “The fact that the state, whether through inadvertence or lack of attention to detail, unnecessarily complicated a charging information that should have been easy to present accurately in the first instance, has not prejudiced the defendant’s substantial right to be informed of the nature of the charge pending against him. Nor does it affect his ability to properly prepare a defense.”
Ind. Decisions - Court of Appeals issues 5 today (and 14 NFP)
For publication opinions today (5):
In Daniel J. Milliner v. State of Indiana , a 9-page, 2-1 opinion, Judge Bailey writes:
In this consolidated appeal, Daniel J. Milliner challenges his conviction for failure to register as a sex offender, as a Class D felony, and the order revoking his probation and reinstating his previously suspended sentence. We affirm. * * *In Liberty Mutual Insurance Co. v. Michigan Mutual Insurance Co. . a 12-page opinion, Judge Friedlander writes:
Milliner concedes that he moved from the home he shared with his wife in late July, and he admits he did not re-register as a sex offender within seven days. But he points to his testimony that he lived with various relatives during the relevant period and claims he did not “change” his home address, as required by the statute but, rather, he “lost” it. Indeed, Milliner repeatedly describes himself as “homeless” during the relevant period.
Here, the evidence shows that Milliner made his home with others, not that he was homeless. Consistent with his argument at trial, Milliner now emphasizes that he did not live in one place for seven days or more. But we do not read the statute as having triggered the duty to re-register only after an offender lived seven consecutive days in a new location. * * *
Milliner also claims that the trial court abused its discretion when it ordered him to serve his previously suspended sentence. He asks that we revise his sentence based on the nature of the probation violations and upon his character. * * *
First, we note that the court had discretion to order execution of the entire sentence suspended at the time of initial sentencing. See Ind. Code § 35-38-2-3(g)(3). Additionally, Milliner committed multiple offenses in a reasonably short period of time, and he violated multiple terms of his probation. His actions show a lack of respect for the law and for the opportunities afforded him. The trial court’s decision is not clearly against the logic and effect of the facts and circumstances. The court acted within its broad discretion when it ordered Milliner to serve the one-year previously suspended sentence. Affirmed.
FRIEDLANDER, J., concurs.
KIRSCH, J., dissents with opinion. [which begins] When does a cardboard box under a bridge qualify as a “home address?” A park bench? What about a pile of rags next to a trash bin? Or a homeless shelter where one had a bowl of soup for lunch, but cannot return that night because there is no room?
Homelessness is not a crime, but my colleagues make it so for anyone who is required to register under Ind. Code § 5-2-12-9 (repealed, see now Ind. Code § 11-8-8-17). While they resolve the evidentiary sufficiency issue in this case, they raise the specter of due process concerns in countless others.
Liberty Mutual Insurance Company (Liberty Mutual), as subrogee of Duke Realty Corporation d/b/a Duke-Weeks Realty Services (Duke), appeals the grant of summary judgment in favor of Michigan Mutual Insurance Company (Michigan Mutual) in a declaratory judgment action regarding Michigan Mutual’s duty to defend and indemnify Duke under a commercial general liability policy issued by Michigan Mutual to Trilithic, Inc. (Trilithic), a tenant of Duke. Liberty Mutual contends that summary judgment should have been granted in its favor because the liability in question arose out of Trilithic’s use of the leased premises and Duke was, therefore, covered under the policy as an additional insured. * * *In Conway Jefferson v. State of Indiana , a 16-page opinion, Judge Brown writes:
There is no allegation that the ice and snow on which Swann slipped originated on the leased premises, was caused by the leased premises, was connected to work done on the leased premises, or had any other significant connection with the leased premises. Rather, the accident in question clearly arose out of Duke’s own failure to maintain the pathway from the parking lot to the employee entrance. The only way Swann’s fall was even remotely related to the leased premises was due to the fact Swann was on her way to work. We deem this “isolated connection” insufficient to bring the accident within the coverage of the policy under the additional insured endorsement. Therefore, Michigan Mutual had no duty to defend or indemnify Duke, and the trial court properly granted summary judgment in favor of Michigan Mutual. Judgment affirmed.
Conway Jefferson appeals his conviction for dealing cocaine as a class A felony.1 Jefferson raises three issues, which we revise and restate as: I. Whether the trial court abused its discretion by admitting the evidence obtained during the search; and II. Whether the trial court failed to permit Jefferson to present a defense. We affirm.In Chanelle Linet Alexander, et al. v. The Marion Co. Sheriff and The Commissioner of the Indiana Dept. of Admin., a 19-page opinion, Judge Friedlander writes:
1. Did the trial court err in determining that the Appellees had the authority to enter into contracts to provide telephone service to the Marion County jail and IDOC facilities that called for service providers to pay commissions in accordance with the respective contracts? 2. Did the trial court properly determine that the telephone rates charged by the phone companies to recipients of collect telephone calls from the Marion County jail and IDOC inmates are reasonable? We affirm.In Gary Community School Corp. v. Neal Boyd III and Theresa Stanback, a 10-page opinion, Judge Kirsch writes:
In a nutshell, this case concerns the authority of the Sheriff and the IDOA to enter into contracts that provide for the Sheriff and the State to receive commissions from telephone service providers. * * *
Having reviewed the record, and even considering the affidavits stricken by the trial court, we conclude the Class failed to meet its burden of establishing that there is a genuine issue of fact with regard to the reasonableness of the rates charged. The Sheriff and the State, respectively, negotiated and entered into bi-lateral contracts with telephone service providers in which the service providers voluntarily agreed to pay commissions in accordance with contract terms. Based upon the undisputed, designated evidence, the challenged rates were reasonable. Judgment Affirmed.
Gary Community School Corporation (“GCSC”) appeals a jury verdict in favor of Neal Boyd III and Theresa Stanback (collectively “Parents”), as parents of Neal Boyd IV (“Neal”) on Parents’ claim of negligence against GCSC for the death of Neal, which occurred at Lew Wallace High School (“Lew Wallace”), a part of GCSC. GCSC raises several issues, of which we find the following dispositive: whether the trial court abused its discretion in admitting evidence of prior acts of violence that had occurred at or around Lew Wallace. In addition, because it will arise on remand, we address the following issue: whether the trial court erred in denying GCSC statutory immunity under the Indiana Tort Claims Act. We affirm in part, reverse in part, and remand for a new trial.NFP civil opinions today (3):
Samuel L. Paiz v. Trans-Corr, Inc., et al (NFP) - "Samuel Paiz appeals, pro se, the decision of the Worker’s Compensation Board (“the Board”) that denied his application for additional medical treatment for the injury he suffered November 14, 2003, in an accident in the course of his employment. We affirm."
Edna Taylor v. Brian Miller (NFP) - "Plaintiff-Appellant Edna Taylor, by her guardian and power of attorney Roy Taylor, appeals the denial of her motion to correct error following the trial court’s entry of judgment in favor of Defendant-Appellee Brian Miller. We affirm."
Peter and Marie Torres v. Solid Platforms, Inc., et al. (NFP) - "Peter and Maria Torres sued Solid Platforms, Inc. (SPI), L&H Company, Meade Electric Company, Inc. (Meade), and the Estate of William Bales (Bales) for personal injuries Peter received while working for his employer, BP Amoco. The Torreses appeal a grant of summary judgment in favor of the SPI, Meade, and Bales. The Torreses present five overlapping and interrelated issues for review. We condense and restate those issues as follows: 1. Did the trial court err in determining that no material issue of fact existed with respect to the placement of the tent in question? 2. Did the trial court’s determination in that regard prejudice the Torreses’ subsequent case against SPI and Bales on a separate theory?"
NFP criminal opinions today (11):
Ind. Courts - "Both sides claim free speech rights in battle over sex shop"
The ILB has had at least a dozen entries on Spencer County's court battles to restrict an adult business, 231 Adult Plaza.
Today Francesca Jarosz of the Indianapolis Star reports on efforts by 24-hour per day protesters in Jackson County, against the Lion's Den, an adult superstore in Uniontown. Some quotes from the lengthy story:
The idea: to potentially embarrass anyone who walks into the Lion's Den, an adult sex shop off I-65 in this rural Jackson County town 80 miles south of Indianapolis.
Their ultimate aim, though, is to shut the store down.
It is a conflict that has dragged on for nearly three years, pitting residents of this sparsely populated farming area against the Ohio-based corporate owners of a chain of about 30 Lion's Dens. * * *
Like other such fights, zoning laws are part of the equation. But an even bigger legal issue is present: the First Amendment rights that both sides claim as their own.
While the lawyers fight it out, the more visible battle is being waged a stone's throw from the interstate exit. Every hour of every day since the Lion's Den -- a 24-hour, seven-day-a-week business -- opened here in August 2005, Gillaspy, Howard or someone else in their group of Christian activists and others has maintained the parking lot vigil.
Their organization, called Jackson County Watchdog, has set up on an abutting plot of county-owned land where its wooden shed -- with its towering cross -- provides members shelter and where signs offer free Bibles and warn drivers that they enter the store at the risk of being exposed online at www.war-line.org. * * *
Late last month, the fed-up owners of the Lion's Den filed a lawsuit against Jackson County and some of its officials. In the suit, the owners note that the shed set up by the protesters on county land was erected without a permit, and yet the county refuses to do anything about it.
And that, they contend, is a clear indication that the county is showing favoritism to the protesters -- in violation of the Lion's Den's constitutional rights.
The store further claims the protesters' actions have cost it $300,000 in lost business over a six-month period. The next step is for the county to formally respond to the suit, which should happen within six weeks.
The suit creates a free-speech riddle that more than one First Amendment expert said would make a challenging law-school exam question:
Does the privilege lie with the store owners, who say the county should protect the Lion's Den's right to do business without subjecting its customers to the harassment posed by the protesters, or with its opponents, who say the county should protect their right to protest?
"The First Amendment seems to cut both ways here," said Neil Richards, a law professor who specializes in privacy and First Amendment issues at Washington University in St. Louis. "The business has a pretty good claim they're being discriminated against because the county doesn't like their message. On the other hand, one of the great red flags is the use of . . . laws (like the zoning ordinances) to punish people because they don't like their message."
Ind. Courts - Continuing with "Judicial candidate's registration in question"
The most recent ILB entry on this issue was July 20th, quoting Lesley Stedman Weidenbener of the Louisville Courier Journal, who wrote:
A squabble over who should be on the ballot in the race for Clark Circuit Court judge has presented a new test for a state election agency that critics say is set up to fail because of its partisan makeup.Today Ben Zion Hershberg of the LCJ reports in a story that begins:
The Indiana Election Commission has scheduled a hearing Friday in Indianapolis to review the nominations for Clark Circuit Court judge.
At issue is whether Democrat Dan Moore and Republican Abraham Navarro were properly nominated and can be certified for listing on the Nov. 4 ballot.
Moore said yesterday that he hopes the commission will conclude that both candidates qualify for the ballot.
"I think that's the fair thing to do," said Moore, who was chosen at a June 17 Democratic caucus to seek the seat of former Judge Daniel Donahue, who resigned effective June 1.
But attorney Larry Wilder, who is representing Navarro, said only his client and the Clark County GOP followed the nomination rules, while Moore and the Democrats did not.
"The fair thing is for people to follow the rules," Wilder said.
Monday, July 28, 2008
Ind. Law - Jeffersonville considering legalizing golf carts
David A. Mann reports today in the Jeffersonville News & Tribune:
[Jeffersonville city councilman Mike] Smith’s already written a draft version of the ordinance that calls for the carts to be allowed on city streets with a speed limit under 30 mph. Under the proposal, drivers would need a valid license and insurance. Carts would have to be equipped with seatbelts, turn signals, brake lights, horns and windshields.Sounds like a good idea to the ILB. It might also be good to have legislative staff prepare a memo, reviewed by the State Police, on what exactly the existing law is, prior to any effort to change it.
“In my [downtown] district you can do a lot of things (on a golf cart) — you can go to the grocery store, you can go to the hardware store, you can go to Warder Park, you can go to RiverStage.”
He said since bringing the idea up Monday night during a meeting of the Jeffersonville City Council, the response from fellow members has been positive.
“The majority of them want to do it in their districts,” he said.
Mayor Tom Galligan believes it would be a good idea, as well. The problem, he said, is that they’re not accepted street vehicles in the state of Indiana. The mayor recently attended a roundtable discussion with other city leaders and the topic was discussed.
“One (mayor) had done it and the state police came in and ticketed everybody,” he said. “Other than that little glitch, I think it will be fine.”
Even if the city were to declare golf carts legal, local and state police could ticket drivers, said Sgt. Jerry Goodin of the Indiana State Police.
A similar law was passed in the city of Lebanon and a traffic ticket was taken to court.
“Our charge was upheld,” Goodin said.
The problem is that Indiana considers golf carts to be vehicles, which have to be registered. And you can’t register a golf cart.
The proposal doesn’t have the support of local police either. Jeffersonville Police Chief Tim Deeringer said he’d worry about children driving around in them. Even with all the safety regulations, “it’s still a golf cart,” he said.
Such an initiative would not only make the city a “greener” place — as most golf carts are electric — but would also facilitate a way for residents to reduce the amount they have to pay for gas, Galligan said.
He recommends talking to state legislators about changing the Indiana law.
Ind. Decisions - Interesting Illinois decision today from 7th Circuit re the CAA
In Citizens Against Ruining the Environment, et al v. EPA and Midwest Generation (Petitions for Review of Orders of EPA), a 16-page opinion, Judge Evans writes:
In this consolidated appeal of three related administrative review proceedings, the petitioners, several environmental protection groups and the attorney general of the State of Illinois, challenge the failure of the federal Environmental Protection Agency (EPA) to object to certain operating permits proposed by the Illinois Environmental Protection Agency (IEPA) pursuant to the Clean Air Act (CAA). The petitioners contend that the Administrator was obligated to object because they clearly “demonstrated” that the permits were not in compliance with the CAA. See 42 U.S.C. § 7661d(b)(2). The EPA, on the other hand, maintains that the Administrator reasonably exercised his discretion in determining that the petitioners did not “demonstrate” a violation because their petitions called for further investigation and analysis, a task the Administrator found to be more appropriately carried out through the CAA’s enforcement process. The petitioners argue that the CAA grants the Administrator no such discretion. * * *
[Among other statements in the opinion, this at p. 11] In sum, the attorney general has failed to explain why we have jurisdiction over an internal conflict between an office and an agency under the executive branch of the same state government. Under these circumstances, it seems appropriate for the governor, rather than the federal courts, to resolve the controversy; yet, there is no evidence that the state has taken any steps internally to change the IEPA’s decision. The IEPA has the duty to make Title V permit decisions, so it appears to be the agency responsible for making Illinois policy in that arena. * * *
For the foregoing reasons, the attorney general’s petitions for review (Nos. 07-3198 and 07-3199) are DISMISSED, and the environmental groups’ petition for review (No. 07- 3197) is DENIED.
Ind. Courts - "City Judge, Crown Point at odds over health insurance"
Diane Krieger Spivak reports today in the Gary Post Tribune:
CROWN POINT -- City Judge Ken Jeffirs wants the city to provide health insurance for him.
City Council members aren't quite convinced.
Jeffirs, who works part-time handling the city's court cases, asked the council at two budget sessions last week to allow him to be covered on the city's health insurance plan.
The money, he said, is already in non-reverting funds, generated through the courts, that, according to state statute, can be used only for court-related expenses.
"The money would not come out of the general fund," Jeffirs said.
"I have a problem with it," Councilman Bob Corbin said. "We need to be careful."
Corbin said a part-time position with full-time pay "raises questions of equity across the board."
Councilman Bill Feder said if Jeffirs were to be covered, the court clerks should also receive insurance.
Jeffirs said there is not enough in the funds to cover insurance for himself and the three clerks.
He argued that his job is not comparable to other part-time city jobs, since he is on call virtually 24 hours a day and has been called in the middle of the night to sign court documents.
Jeffirs also argued that 7 of 10 municipal judges in Lake County have had insurance through their cities or towns "for decades." Those that don't have half the case loads of Crown Point, he said.
Ind. Decisions - 7th Circuit issues one Indiana decisions todayIn US v. Grogg (SD Ind., Judge McKinney), a 7-page opinion, Judge Bauer writes:
On November 16, 2007, Clarence Grogg entered a conditional plea of guilty to an indictment charging him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The only issue before us on the appeal is the district court’s denial of Grogg’s motion to suppress evidence obtained by the government when law enforcement agents searched his car at the Indianapolis International Airport. For the following reasons, we affirm Grogg’s conviction. * * *
Grogg does not deny giving his consent to the search of his car and the suitcase containing the gun therein. Since there was no illegal search, we need not discuss his assertion that his consent was the “fruit of the poisonous tree.” See United States v. Schoals, 478 F.3d 850, 853 (7th Cir. 2007).
The conviction is AFFIRMED.
Ind. Decisions - Tax Court issues one FP today
In Home Depot U.S.A., Inc. v. Indiana Dept. of State Revenue, a 10-page opinion, Judge Fisher writes:
The issue for the Court to decide is whether Home Depot is entitled to a sales tax refund pursuant to Indiana Code § 6-2.5-6-9. * * *
Home Depot would be entitled to the deduction under Indiana Code § 6-2.5-6-9 if it wrote off the uncollectible credit card accounts for federal tax purposes under section 166 of the Internal Revenue Code. See A.I.C. § 6-2.5-6-9(a); 1 Stop Auto, 810 N.E.2d at 689-90. Home Depot did not and therefore it is not entitled to the deduction.7 Consequently, summary judgment is GRANTED in favor of the Department and AGAINST Home Depot. The parties shall bear their own costs.
Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)
For publication opinions today (2):
In Mahmoud M. Basileh v. Arwa G. Alghussain , a 17-page opinion, Judge Vaidik writes:
After the Indiana trial court granted the motion of Arwa Alghusain (“Mother”) to transfer jurisdiction over her children’s child support matters to her home county of Monterey County, California, Mahmoud M. Basileh (“Father”), the children’s father, appeals. Pursuant to the jurisdiction provision of the Uniform Interstate Family Support Act (“UIFSA”), continuing, exclusive jurisdiction over child support matters may not be transferred out-of-state when neither the parents nor the children remain residents of Indiana until all parties file a written consent with the Indiana tribunal. However, under the federal Full Faith and Credit for Child Support Orders Act (“FFCCSOA”), written consent by the parties to transfer continuing, exclusive jurisdiction is not required where neither the children nor the parties reside in Indiana. The federal statute prevails over the state statute, and we conclude that Mother, Father, and the children are all not residents of Indiana. We therefore affirm. * * *In Knowledge A-Z, Inc. v. Sentry Insurance , an 8-page opinion, Judge Bailey writes:
Based upon our review of the record, we conclude that Father is no longer domiciled in Indiana and that Indiana is therefore not his place of “residence” for the purposes of the FFCCSOA.12 Thus, pursuant to the FFCCSOA, Indiana no longer has continuing, exclusive jurisdiction of the parties’ child support order, and the trial court did not err in transferring jurisdiction over the order to the State of California.
 Father expresses concern in his Reply Brief that members of the Armed Forces who are deployed or stationed in states other than Indiana for indefinite periods of time will not be considered residents of Indiana. Nothing in this opinion leads to such a result. Members of the military who leave Indiana but have a subjective intent to return upon leaving the service remain domiciliaries of this State.
 We encourage the General Assembly to revisit the language of Indiana Code § 31-18-2-5(a), given our conclusion that this subsection conflicts with federal law.
Knowledge A-Z, Inc. (“Knowledge”) appeals the trial court’s denial of its Motion to Correct Errors. We affirm, grant Sentry Insurance’s request for attorney fees pursuant to Indiana Appellate Rule 66(E), and remand with instruction for the trial court to calculate the amount of Sentry Insurance’s appellate attorney fees. * * *NFP civil opinions today (2):
Conclusion. The trial court did not abuse its discretion in denying Knowledge’s Motion to Correct Errors or in awarding Sentry its attorney fees in litigating that motion. Furthermore, we assess damages in favor of Sentry amounting to the cost of contesting this appeal and remand to the trial court with instruction to calculate that award.
Tylene R. Shepherd v. Clarence D. Shepherd (NFP) - "Tylene R. Shepherd (“Mother”) appeals the trial court’s order modifying physical custody of the parties’ sons, C.T.S. and M.A.S., to Clarence D. Shepherd (“Father”). Because the record shows that the children’s academic progress has deteriorated and both children were being retained in their current grade levels, we conclude that the trial court did not abuse its discretion in concluding that there has been a substantial change in C.T.S.’s and M.A.S.’s adjustment to their school and that it is in the best interests of the children to modify physical custody to Father."
David Fisher v. Lisa D. Fisher (NFP) - "We presume that trial courts know and follow the applicable law. The trial court here awarded Mother rehabilitative maintenance pursuant to the applicable statute, and Father has not convinced us that the award was, in actuality, an award of alimony. The majority of the trial court’s findings are not clearly erroneous, and those that are, or arguably could be, in error, do not affect the trial court’s ultimate decision to award rehabilitative maintenance. Lastly, the trial court did not abuse its broad discretion in either the duration or the amount of the rehabilitative maintenance it awarded to Mother."
NFP criminal opinions today (8):
Ind. Decisions - "Company not liable in death of Lapel mother, daughter"
Shawn McGrath of the Anderson Herald Bulletin reports today on last Thursday's Court of Appeals decision in the case of John Clark, Rep. of the Estate of Cory R. Clark v. Aris, Inc., et al (see ILB entry here):
The Indiana Court of Appeals has upheld a Madison County judge’s decision that the company that hired Fredrick Baer a month before he killed Cory Clark and her 4-year-old daughter, Jenna, isn’t liable for their deaths.
Baer, Indianapolis, was working as a traffic controller at a construction site in February 2004 when he left work, drove to Clark’s Lapel home and killed the 26-year-old woman and her daughter. Baer was convicted of their murders on May 20, 2005, and sentenced to death the next month.
John W. Clark, Cory’s husband, filed a civil lawsuit in February 2006 on the estate’s behalf against Indianapolis-based Aris Inc., the company that hired Baer, claiming it was negligent in failing to perform a criminal background check. Aris hires traffic controllers for contractors.
Madison Superior Court 2 Judge Jack Brinkman granted judgment in favor of Aris in July 2007, and Clark appealed the ruling.
Despite not checking into Bear’s criminal history — which includes convictions for burglary, theft and receiving stolen property — the appeals court said there wasn’t enough evidence to show that Aris should have suspected Baer, 36, was capable of killing two people while on the clock.
“We simply cannot conclude that Cory and Jenna Clark, who lived miles from the construction site in a residence that Baer was not authorized to enter for any purpose whatsoever, were reasonably foreseeable victims, or that the tragic harm that befell them was reasonably foreseeable,” Chief Judge John G. Baker writes in the nine-page, unanimous opinion of the three-judge panel.
“It would be a closer call if Baer had carjacked a vehicle passing by the construction site, inasmuch as it could be argued that the vehicle’s owner would be a more foreseeable victim than the Clarks,” the opinion continues.
Ind. Courts - "Concrete lawsuits ripe for settlement"
Today, Jeff Swiatek of the Indianapolis Star reports in a story that begins:
The next three months could see settlements from the three remaining corporate defendants in a concrete price-fixing lawsuit in Indianapolis.
Court-ordered talks in August, September and October could lead to high-dollar settlements that would benefit the more than 5,000 Indiana customers of concrete who are in line to collect funds that so far total $24 million from the first three defendants to settle out of court.
The largest of the remaining defendants is IMI, the biggest concrete company in Central Indiana and the prime target of plaintiffs in their lawsuit, filed in U.S. District Court in Indianapolis.
Greenfield-based IMI is seen as vulnerable in the civil lawsuit because it agreed in 2005 to pay $29.2 million in criminal fines for its role in the price-fixing conspiracy. At the time, it was the largest fine in U.S. history against a domestic antitrust violator. The criminal case also resulted in prison terms for nine concrete company executives.
In the civil case, however, which is filed as a class action by customers of the concrete companies, IMI is fighting tough. Its executives, alone among all the defendants, have refused to testify about matters involving the conspiracy, taking the Fifth Amendment in depositions, said Irwin Levin, the lead plaintiffs' attorney.
"That tells you the attitude they are taking. They absolutely refused to testify" about the conspiracy in the civil depositions, said Levin, an Indianapolis lawyer.
IMI also is trying to get federal Judge Sarah Evans Barker to prevent the plaintiffs' expert witness, a Virginia economist and antitrust expert named John Beyer, from testifying in the civil trial if it occurs.
Beyer has submitted analysis in the case supporting the plaintiffs' argument that the concrete companies overcharged customers as a result of their conspiracy.
G. Daniel Kelley Jr., an attorney for IMI, said the building materials company contends the conspiracy wasn't effective and didn't lead to customer overcharges -- which is something the plaintiffs must prove to win their civil lawsuit.
"A guilty plea (to a criminal conspiracy) has nothing to do with whether the conspiracy was effective," he said.
"We didn't admit that it (the conspiracy) caused any harm to anybody," Kelley said, adding that plaintiffs' lawyers are "riding a horse that can't travel very far."
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This week's oral arguments before the Court of Appeals that will be webcast:
This week's oral arguments before the Court of Appeals that will NOT be webcast:
Sunday, July 27, 2008
Ind. Courts - More on "Advocates Against Domestic Violence Blame Denial Of Protective Order For Woman's Death"
Today's editorial in the Indianapolis Star is headed "Before tragedy strikes, courts must be tougher." Some quotes:
Kerry Hyatt Blomquist, legal director of the Indiana Coalition Against Domestic Violence, argues that Marion County judges too frequently rely on what's called a nonviolent contact order, or nonviolent protective order.The ILB has attempted, so far with no success, to obtain more information on the details of this appeal.
Under a traditional protective order, an abusive spouse is barred from any contact with the victim. A violation can lead to immediate arrest.
But with a nonviolent order, the abuser can make contact as long as he or she doesn't harm or threaten the victim. Of course, harming or threatening another person is a crime under most circumstances, making the nonviolent contact order essentially meaningless.
Judges use the nonviolent contact order most often when children are involved. April Wills, in fact, asked for just such an order in her case.
Blomquist, however, argues, with merit, that a person who abuses a child's mother or father is not, by definition, a fit parent and should be closely supervised if contact is allowed.
A regular protection order also precludes an abusive spouse from legally possessing a gun. The nonviolent contact order doesn't carry the same restriction.
The Coalition Against Domestic Violence, with the aid of the Baker & Daniels law firm, has filed an appeal over the courts' increasing use of nonviolent contact orders. The case deserves close scrutiny on the appellate level. And Marion County judges need to carefully review the circumstances under which such orders are issued.
See also this entry from July 23rd.
Not Law - Problem of high college textbook costs continues, students and publishers at odds
The ILB has had several past entries on the high cost of college textbooks. This entry from 2004 talks about "Students Find $100 Textbooks Cost $50, Purchased Overseas." Unfortunately, $100 would now be a real bargain.
This entry from 2007 quotes a textbook author who "explains" that the recent market in used textbooks has driven up the costs for new books:
He does not suggest lower-priced text books. Rather he urges licensing textbooks, as is currently the case with software. The university would collect and pay the licensing fee to the publisher. This would be on top of the cost of the textbook. Incredible.This long July 10th article by John Hechinger of the WSJ reports:
Publishers are pushing "custom" textbooks designed to be unique for each school.Today the NY Times has a story by Randall Stross about students resorting to textbook piracy, using the tools of music piracy. The headline: "First It Was Song Downloads. Now It’s Organic Chemistry." A quote:
• The special texts make it harder for students to buy and sell in the used-book market, so they often end up spending more for course materials.
• Schools often receive a royalty payment on each book sold.
More students are choosing used books over new; sales of a new edition plunge as soon as used copies are available, in the semester following introduction; and publishers raise prices and shorten intervals between revisions to try to recoup the loss of revenue — and the demand for used books goes up all the more.See also this July 21st article from Kim Clerk of US News titled "Four Reasons Textbook Costs Will Drop."
Used book sales return nothing to publishers and authors. Digital publishing, however, offers textbook publishers a way to effectively destroy the secondary market for textbooks: they now can shift the entire business model away from selling objects toward renting access to a site with a time-defined subscription, a different thing entirely.
The transition has already begun, even while publishers continue to sell print editions. They are pitching ancillary services that instructors can require students to purchase, just like textbooks, but which are available only online on a subscription basis. Cengage Learning, the publisher of Professor McMurry’s “Organic Chemistry,” packages the new book with a two-semester “access card” to a Cengage site that provides instructors with canned quizzes and students with interactive tutorials.
Ronald G. Dunn, chief executive of Cengage Learning, says he believes the printed book is not about to disappear, because it presents a large amount of material conveniently. Mr. Dunn predicted that textbook publishers were “headed for a hybrid market: print will do what it does best, and digital will do what it does best.”
Whether students will view online subscriptions as a helpful adjunct to the printed textbook or as a self-aggrandizing ploy by publishers remains to be seen.
Law - More on "Who Killed Chandra Levy?"
The Chandra Levy series, on Page 1 for 13 days, has provoked these kinds of comments: Lurid! Appalling! A waste of time! And these: Fascinating! Totally hooked! Riveting!
No investigation in my 2 1/2 years here has provoked such sharply opposing reader comment as the series on the seven-year-old unsolved murder of the Washington intern, who was having an affair with a congressman.
Ind. Law - "Law allows ATVs on gravel roads"
Thomas B. Langhorne of the Evansville Courier & Press reported Friday:
Vanderburgh County Commissioners have made it a little bit easier place to drive an off-road vehicle here.
Heeding the wishes of rural residents who requested the change, the County Commissioners earlier this month passed an ordinance allowing off-road vehicles — predominantly four-wheelers and dirt bikes — on county-maintained gravel roads.
Operators may not drive faster than 20 mph. They still must have valid driver's licenses and register their vehicles with the state Department of Natural Resources at a cost of $30 for three years, among other conditions.
"This is not an opportunity to fishtail and do doughnuts in the gravel; you have to obey the traffic laws," said Mike Kellner, a Department of Natural Resources conservation officer who patrols Vanderburgh and Warrick counties.
Off-road vehicles still may not be driven on blacktop roads in Vanderburgh County, though drivers may take them onto the sides of roads.
The state statute authorizing off-road vehicles allows counties to pass ordinances permitting such vehicles to use county roads outside city limits. Otherwise, the law does not allow driving off-road vehicles on any public roadway, gravel or blacktop. * * *
Motorcycles and scooters, which are bigger and faster than mopeds, are subject to essentially the same rules and regulations as cars.
Kellner acknowledged some off-road vehicle drivers might say it is unfair to require them to have operator's licenses and stay off blacktop roads in Vanderburgh County while allowing younger moped drivers to drive on blacktop roads without operator's licenses.
"But that's not a legitimate gripe, because those off-road vehicles can go so much faster than mopeds, and you've got very significant stability issues with off-road vehicles," he said. "It's a lot bigger machine, lot heavier. It's intended for off-road use."
Kellner chuckled about the differing and sometimes confusing rules for motorcycles and scooters, off-road vehicles and mopeds. "It's like comparing apples, oranges and bananas," he said.
Ind. Law - "Meth chefs sharing techniques"
A quote from a lengthy story today by Abby Slutsky of the Fort Wayne Journal Gazette:
As police have improved techniques for fighting the war on illegal drug labs, their enemies, methamphetamine cooks, have also adapted.
And the new techniques for cooking the central nervous system stimulant have dragged the war on meth from the rural countryside to city streets. * * *
For years, because of the noxious odors and the need for anhydrous ammonia, a farm fertilizer, meth labs have typically been found in rural areas. But police say the latest method for cooking the drug doesn’t require the fertilizer, which was often stolen from large tanks on farms and at farm supply stores.
As a result, cooks have been able to manufacture the drug just about anywhere, including cars, homes and apartments in Fort Wayne. While the new method has less odor, the drug labs still pose dangers, including explosions and fires, because of the chemicals and process involved.
Ind. Decisions - More on: AG Carter will not appeal either of two recent district court rulings voiding 2008 legislation
Attorney General Steve Carter has shown a remarkable and admirable consistency in dealing with two contentious issues this summer.
Twice Carter has decided not to appeal federal court rulings overturning vague Indiana laws. And twice Carter has referred the issues to their proper venue — the Indiana Legislature.
Three weeks ago, we praised Carter’s decision in a case involving businesses that sell sexually explicit material. * * *
This week, Carter did it again.
Thursday, he said he would not appeal a federal court ruling overturning part of a new state law that would have allowed the computers of sex offenders to be searched long after their sentences had been served. * * *
We are convinced that, in both instances, the prudent path is through the Legislature, not a costly court proceeding.
Saturday, July 26, 2008
Courts - "Some Judges Stiffen Foreclosure Standards"
Amir Efrati of the WSJ reports in an article now freely available that begins:
A cadre of state-court judges scrutinizing foreclosure actions in a string of recent rulings have discovered flaws in documents that borrowers may be able to use to keep their homes.For more on this, see the WSJ Law Blog entry last evening, also by Mr. Efrati, headed "Subprime Legal: Judges Scrutinize Mortgage Docs, Deny Foreclosures."
The judges, including a committee from the Kings County Supreme Court in Brooklyn, N.Y., are highlighting shortcuts taken by mortgage companies in court filings, which borrowers might be able to exploit when facing foreclosure.
The rulings show the critical role that judges are beginning to play as foreclosures mount in the most severe housing crisis since the Great Depression. The recent decisions build upon widely circulated opinions issued last fall by federal judges in Ohio who found trusts that hold the mortgages regularly begin foreclosure proceedings before they obtain the legal right to do so.
Judges in states including New Jersey, Florida and Massachusetts have begun to dismiss many cases "without prejudice," meaning the plaintiffs can fix the defects and resume the process, but the ruling gives the homeowners more time. Meanwhile, some bankruptcy courts, where creditors may seek permission to foreclose if the debtor isn't keeping up with the bankruptcy plan, have issued standing orders requiring creditors to prove ownership of loans. Other state courts, including in Ohio and Pennsylvania, have begun requiring owners of loans who have filed foreclosure suits to try to negotiate settlements with borrowers to avoid foreclosure.
Also cited, this July 14th National Law Journal article by Julie Kay, headed "Judges, attorneys work to stanch foreclosures: As actions surge, so do dismissals, mediation orders."
Ind. Decisions - "Court of Appeals orders Democrat be sworn in as 4th Ward representative"
The Court of Appeals decision Thursday in the case of Tamara Sullivan v. Noell Krughoff, Shelby Co. Dem. Central Committee Chairperson (see July 24th ILB entry here) was the subject of a lengthy story Friday by Ron Hamilton of the Shelbyville News. Some quotes:
The Indiana Court of Appeals ruled unanimously Thursday that Democrat Val Phares be installed "immediately" as the 4th Ward representative on the Shelbyville Common Council.
The 3-0 decision, written by Judge Paul D. Mathias, upholds the trial court decision earlier this year by Shelby Circuit Court Judge Charles O'Connor, who tossed out 24 absentee ballots from last fall's city council election because they were not properly initialed and endorsed.
O'Connor's decision, now vindicated by the appellate court, reverses an election tie with incumbent Republican Tamara Sullivan and gives the city council election victory to Phares. * * *
Contacted by telephone at his Indianapolis office, Shelby County Democratic Party attorney J.D. Lux said he especially is pleased at the unanimity of the decision.
"I'm glad that all three appellate judges found in favor of Judge O'Connor's trial court ruling," he said. "Now, four judges have reviewed this case extensively, and all four have agreed that the absentee ballots should not have counted. I really believe it's time we put this thing behind us and moved forward."
He noted that the appellate judges "merely reinforced previous case decisions and laws outlining the proper handling of absentee ballots." He added that, according to Thursday's appellate court ruling, the Shelby Circuit Court must order the seating of Phares upon receipt of the appellate decision. * * *
In his written decision, Mathias noted that "the law requires all of the endorsements set forth ... for absentee ballots."
"When the law is carefully examined, an absentee ballot, which is what is at issue in this case, may not be counted unless it is properly endorsed," Mathias wrote. "The absentee ballots cast in the Shelbyville Common Council 4th Ward election were not properly endorsed under the statute."
Friday, July 25, 2008
Ind. Decisions - Transfer list for week ending July 25, 2008
Here is the Indiana Supreme Court's transfer list for the week ending July 25. 2008.
No transfers are granted.
Over four years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
Ind. Decisions - 7th Circuit issues two today from Indiana
In U.S. v. Lawrence, Jackson, Anderson, and Johnson (ND Ind., Judge Lozano) - a 13-page opinion, Judge Tinder writes:
This case involves the consolidated appeals of Francis Lawrence, Anthony Jackson, David Anderson, and Leon Johnson, who filed motions with the district court to reduce their sentences under the retroactive sentencing guideline reductions for crack cocaine offenses. The court granted the defendants’ motions and reduced their sentences according to the guidelines, but the court also, apparently inadvertently, included language in the orders that converted each sentence into “time served.” Within a few weeks, the court recognized the error and entered modifications to correct the language. Accordingly, the defendants are challenging the district court’s authority to substantively modify their sentences outside of the seven-day window permitted by Federal Rule of Criminal Procedure 35. * * *In Peals v. Terre Haute Police Dept. (SD Ind., Judge Young), a 16-page opinion, Judge Ripple writes:
Congress has given the government the authority to appeal a sentence if the sentence was imposed in violation of law, was imposed as a result of an incorrect application of the sentencing guidelines, is less than the guidelines minimum sentence, or was imposed for an offense for which there is no sentencing guideline and the sentence is plainly unreasonable. 18 U.S.C. § 3742(b). The government has 30 days after the entry of the order being appealed to file a notice of appeal with the district court. Fed. R. App. P. 4(b)(1)(B). Here, the government’s time to file a notice of appeal had not yet expired, when, on March 26, the district court sua sponte entered new orders. At that point, the government had no reason to appeal the original orders because the orders had been superseded by sentences that presumably no longer fit within the appealable conditions specified by § 3742(b). It appears that here, unlike in Greenlaw, the government had not yet exercised its prerogative to forgo appeals because the time periods had not expired when the court purported to correct the sentences. Now that the sentences of March 4, 6, and 13 are at issue again, it would not seem to run afoul of the cross-appeal rule or undermine the interests of fair notice and finality to permit the government to file notices of appeal within the remainders of the 30-day time periods that had not expired as of March 26. If the government chooses to appeal, the district court should consider whether the defendants should be detained pending the appeals pursuant to 18 U.S.C. § 3143(c). Any such appeals should be returned to this panel as successive appeals under Operating Procedure 6(b).
III. CONCLUSION. The district court lacked the authority to correct the sentences on March 26, 2008, and we VACATE those orders and the explanatory orders of the same date. The prior sentence orders of March 4, 6, and 13 are again in effect.
Robert Peals filed this action under 42 U.S.C. § 1983 against the Terre Haute Police Department and several individual police officers. Mr. Peals alleged that the defendants had performed an unlawful search, falsely arrested him, initiated a retaliatory prosecution against him and used excessive force against him. Before trial, the district court granted the defendants’ summary judgment motion with respect to Mr. Peals’ unlawful search, false arrest and retaliatory prosecution claims. The court also dismissed his claims against all of the defendants except Officers Trey Gilbert and Curt Brinegar. The remaining excessive-force claim proceeded to trial, and the jury found in favor of the defendants. Mr. Peals timely appealed the district court’s grant of summary judgment on two of his claims and two of the court’s rulings at trial. For the reasons discussed in this opinion, we affirm the judgment of the district court.
Ind. Decisions - Court of Appeals issues 6 today (and 21 NFP)
For publication opinions today (6):
Torin Herbert v. State of Indiana - "Torin Herbert appeals his convictions for class A felony dealing in cocaine, class D felony dealing in marijuana, and class D felony maintaining a common nuisance. We affirm.
"Issues I. Did the trial court abuse its discretion in admitting evidence seized following a traffic stop? II. Did the trial court abuse its discretion in excluding the testimony of Herbert’s witness regarding the tinting of his car windows?"
Scottie R. Adams v. State of Indiana - "Appellant-defendant, Scottie R. Adams, appeals his convictions for Voluntary Manslaughter, a class A felony, Carrying a Handgun Without a License, a class A misdemeanor, and the finding that he is a habitual offender. Specifically, Adams argues that the trial court erred in instructing the jury on the offense of voluntary manslaughter when he was charged only with murder and that the trial court abused its discretion in denying his motion for a mistrial. Finding no error, we affirm the judgment of the trial court."
In William Curtis, Gary Stewart and Walter Raines v. E. Mitchell Roob, Jr., Jeff Wells, a 7-page opinion, Judge May writes:
A class composed of persons who applied for Medicaid, were denied, and appealed the denial brought an action against the Indiana Family and Social Services Administration (“FSSA”). The class alleged FSSA violated the due process rights of Medicaid claimants with its policy that prohibits claimants from offering at the appeal hearing evidence of their disabilities that was not included in the initial application. The trial court granted FSSA’s motion to dismiss. We reverse. * * *In Titan Loan Investment Fund, L.P. v. Marion Hotel Partners, LLC, Dimple Patel, et al , a 6-page opinion, Judge Najam writes:
The Medicaid regulations explicitly refer to a de novo hearing. A number of courts have distinguished between de novo review, which would not permit consideration of new evidence, and a de novo hearing, which would. Under “de novo review,” the appellate court steps into the trial court’s position, reviews the same trial record, and redecides the issue, determining whether the trial court’s decision was right or wrong. * * *
A hearing de novo, by contrast, is generally not limited to the record below. * * *
In light of the purpose behind the Medicaid fair hearing regulations - to ensure that applicants have an opportunity to present evidence supporting their claims for benefits - and the authority to the effect the “de novo hearing” required by the regulations is one where additional evidence may be received, we cannot say the facts alleged in the complaint are “incapable of supporting relief under any set of circumstances.” Godby, 837 N.E.2d at 149. The complaint therefore should not have been dismissed and we must accordingly reverse.
Titan Loan Investment Fund, L.P. (“Titan”) appeals from the trial court’s order granting the motion of Marion Hotel Properties, L.L.C. (“Marion”)1 to dismiss Titan’s motion in proceedings supplemental with prejudice. Titan recovered a money judgment and decree of foreclosure against Marion. The real estate was sold at a sheriff’s sale at which Titan bid the full amount of its judgment, and Titan was issued a sheriff’s deed. Titan contends that its bid did not represent the fair market value of the property and that it is entitled to recover on a deficiency. We conclude that the judgment was fully paid and satisfied by Titan’s bid at the sheriff’s sale and, therefore, hold that the trial court did not err when it granted Marion’s motion to dismiss proceedings supplemental. We affirm.Andrew Richardson v. State of Indiana - "Andrew Richardson appeals the trial court’s order revoking his probation. Richardson raises one issue for our review, which we restate as follows: whether the State presented sufficient evidence to support the trial court’s finding that Richardson violated a condition of his probation. We reverse. * * *
"Having never informed Richardson that the conditions of his probation limited his freedom to travel, the State has failed to provide Richardson with fair notice that such conduct would constitute a violation of probation. Accordingly, the State did not present sufficient evidence to support its petition against Richardson, and the trial court’s order revoking Richardson’s probation must be reversed."
In Adoption of N.J.G., Erikka Gillis v. Carla & John Jackson, an 11-page opinion, CJ Baker writes:
Appellant Erikka Gillis appeals the trial court’s order denying her motion to withdraw her consent to the adoption of her child, N.J.G., by appellees-petitioners Carla Jackson and John Jackson. Erikka argues that the evidence in the record does not support the trial court’s conclusion that she consented to the adoption of N.J.G. in a way that complies with the relevant statute. Finding that Erikka’s consent was not valid because it was given before the child was born and did not follow the execution requirements of Indiana Code section 31-19-9-2, we reverse and remand for further proceedings. * * *NFP civil opinions today (8):
[T]he document was not executed in the presence of the court, a notary public, a representative of the department of family and children, or a licensed child placing agency. Consequently, it does not comply with Indiana Code section 31-19-9-2(a) and does not constitute a valid consent.
As a matter of law, therefore, we find that Erikka has never consented to N.J.G.’s adoption. Thus, to the extent that the trial court’s order concludes that Erikka consented to and may not contest N.J.G.’s adoption, we reverse. This holding does not terminate the adoption proceedings, however, inasmuch as under certain circumstances, the biological mother’s consent may not be required for the adoption to occur. See I.C. § 31-19-9-8. The judgment of the trial court is reversed and remanded for further proceedings.
 Inasmuch as we resolve the case in this way, we need not address Erikka’s argument that the initial agreement between Erikka and the Jacksons violates public policy. We note, however, that we are extraordinarily troubled by the parties’ arrangement, pursuant to which the Jacksons “loaned” Erikka approximately $2600 to cover certain debts and expenses and provided her with a vehicle but agreed to forgive the loan if the adoption was successful. At the worst, this contract veers uncomfortably close to an agreement to buy Erikka’s baby and, at the least, it exerted financial pressure on a single mother with limited means to give her baby up for adoption to avoid what would be a nearly crushing debt. Though we leave for another day whether such a contract is void pursuant to public policy, we feel compelled to note that we do not countenance this arrangement.
Donita R. McMahon v. Joseph A. Lopat (NFP) - [This case involves the question of return of an engagement ring.] "Appellant-Defendant Donita R. McMahon appeals the jury’s decision in favor of Appellee-Plaintiff Joseph A. Lopat. We affirm.
"McMahon raises three issues for our review, which we restate as: I. Whether the trial court abused its discretion in allowing Lopat to enter a receipt into evidence. II. Whether the trial court abused its discretion in sustaining Lopat’s objection to the testimony of a particular witness. III. Whether the trial court abused its discretion in not giving an instruction on inter vivos gifts."
David Sees & Robert Ables v. Koorsen Fire & Security, Inc. (NFP) - "David Sees and Robert Ables (collectively, “Appellants”) bring this interlocutory appeal of the trial court’s preliminary injunction in the action brought against them by Koorsen Fire & Security, Inc. (“Koorsen”). We affirm in part, reverse in part and remand.
"Issues. 1. Whether the trial court erred by entering an order that enjoined Ables from competing against Koorsen for a period of three years from the date of the order. 2. Whether the trial court improperly found that the Ables non-competition agreement’s restriction of competitive activities within a 100-mile radius of Fort Wayne was geographically reasonable. 3. Whether the trial court improperly found that Koorsen did not materially breach the terms of its non-competition agreement with Ables. 4. Whether the trial court erred in finding that the competitive activity restriction in Sees’ non-competition agreement was reasonable."
In Allison Black v. John Basham and Connie Basham d/b/a Basham Rentals (NFP), a 13-page, 2-1 NFP opinion, Judge Kirsch writes:
Allison Black appeals the trial court’s grant of summary judgment in favor of John and Connie Basham, d/b/a Basham Rentals (the “Bashams”), denying her premises liability claim. Black raises two issues on appeal, which deal with whether there were genuine issues of material fact rendering summary judgment inappropriate. We restate these issues as: I. Whether the Bashams owed Black a duty of reasonable care to protect her from the danger posed by the fifteen-inch drop from the apartment complex rear walkway to the alleyway below. II. Whether the drop from the apartment complex sidewalk was the proximate cause of Black’s fall. We reverse and remand. * * *Steven Baysinger v. Christina Baysinger and Robert and Connie Karn, and Lance and Cary Witte (NFP) - "Appellant/Respondent Steven Baysinger appeals the trial court’s order denying his petition alleging contempt and his request for an in-chambers interview of his minor children to investigate allegations of abuse. We affirm."
BAILEY, J., concurs.
FRIEDLANDER, J., dissents with separate opinion. [which begins] I would affirm summary judgment in favor of the Bashams, finding no breach of duty as a matter of law. Therefore, I respectfully dissent.
Dawn Davis v. Horseshoe Casino (NFP) - "Dawn Davis appeals the decision of the Worker’s Compensation Board that she is entitled to no further benefits and has sustained no permanent partial impairment in connection with her work-related injury. Because the Board’s findings were sufficiently specific and are supported by the evidence, we affirm."
In Elizabeth Thomas v. Blackford Co. Area Board of Zoning Appeals, Oolman Dairy, Inc. (NFP), a 6-page opinion, Judge May writes:
Elizabeth Thomas appeals the dismissal of her petition for writ of certiorari from the Blackford County Board of Zoning Appeals (“BZA”). We reverse and remand. * * *NFP criminal opinions today (13):
The evidence presented at the hearing demonstrated a genuine issue of material fact regarding Thomas’ standing. Pursuant to Ind. Code § 36-7-4-1003(a), Thomas has standing to file a petition for writ of certiorari if she is “aggrieved” by a decision of a board of zoning appeals * * * Viewed in Thomas’ favor, the evidence establishes an issue of fact as to whether Thomas will suffer unpleasant odors and a loss in property value. Therefore, resolution of the case under T.R. 56 was improper.
We remand to the trial court to afford the parties an opportunity to complete their presentation of evidence, if they have not done so already, and to render a decision on the merits. Reversed and remanded.
Ind. Courts - Selection of Judges in St. Joe County
The South Bend Tribune has an editorial today on its county's system for selecting judges:
There is strong evidence that St. Joseph County's system for selecting and retaining Superior Court judges is a sound one.For background on the St. Joseph judges selection issue, and challenges to the merit selection of judges in St. Joe County, start with this ILB entry from May 23rd.
Beyond a reasonable doubt, this county has produced very high-quality judges who have performed admirably in the service of justice. We would stack St. Joseph County judges up against any in the state.
Here's how the system works: Attorneys who want to be judges submit their names to the St. Joseph Superior Court Judicial Nominating Commission. The bipartisan commission examines the candidates carefully and selects five from the field. Those names are submitted to Gov. Mitch Daniels, who then makes the appointment.
Only St. Joseph and Lake counties pick their Superior Count judges by this method. In the other 90 Indiana counties, all judges are elected in partisan races.
This fall, St. Joseph Superior Judge William T. Means will retire. The chairman of the nominating commission, Indiana Supreme Court Justice Frank Sullivan Jr., is hoping that pushing the issue a bit now will stimulate a good turnout of applicants to replace the eminent Judge Means. The deadline for applications is Aug. 29.
Good for Sullivan. The more strong candidates the commissioners have to choose from, the higher the certainty that a first-rate judge will be named to fill the opening on the Superior bench.
It is worth noting that one's political affiliation is not to be considered when the field is narrowed or when the final choice is made. The Indiana Code specifically bans both the governor and the commissioners from taking politics into account.
So, lawyers, if you have a hankering to be a judge, go for it. On the one hand, you would have some tough acts to follow. But on the other hand, it would be hard to find a better way to serve your fellow Hoosiers.
Courts - "High Court Justices Go Digital to Access Founding-Era Documents"
Some quotes from a fascinating article today by Tony Mauro of Legal Times:
U.S. Supreme Court justices on both sides in the landmark D.C. v. Heller gun rights case resorted to original documents in making their case about the meaning of the Second Amendment. But they used a little-known digital resource to get there, a project whose mission is to digitize thousands of Founding-era documents that shed light on the original meaning of the Constitution.The ILB has been working on creating similar resources for Indiana constitutional and statutory history.
The Constitutional Sources Project, which launched publicly last September, has digitized and made freely available online more than 11,000 historical documents relating to the Constitution and the amendments. Among them are at least 20 documents cited by majority and dissenting opinions in Heller, says the project's co-founder and executive director Lorianne Updike.
"We were very pleased to be a resource for the highest court in the land," Updike says. * * *
The project is housed at Winston & Strawn's Washington, D.C., offices, where partner Gene Schaerr was one of the founders and creators of the project. More than 20 years ago when he clerked at the Supreme Court, Schaerr and fellow clerk Randall Guynn -- now with Davis Polk & Wardwell in New York -- had a hard time tracking down original documents relating to the First Amendment's establishment clause for research they were doing. Ever since, Schaerr has worked to find ways of getting as many Founding documents online as possible.
At first, the idea was to partner with the National Archives or Library of Congress as well as a university, but that was "way too bureaucratic," Updike says. So a smaller group was formed, and the project was begun quietly in 2005. Updike has raised $1.6 million from law firms, foundations and small donors, who can "adopt a document" online. Word has spread; last month the Web site attracted its 1 millionth visitor.
"The overriding purpose is to expand the public understanding of the Constitution and its history," says Schaerr, who heads the firm's appellate and critical motions practice.
The Road to Indiana Statehood digital collection is a great and essential start, but rather unwieldy to work with -- the various documents on the constitution need to be tied together with cross-links, etc.
In addition, I envision all the Acts of Indiana, readily accessible, as well as the Journals. And a resource on the Indiana Constitution tracking the evolution of every one of its provisions from 1816 to the present. Also, the complete documentary history of the Indiana Code of 1971 (I have nearly completed this).
I agree with the Winston & Strawn quote that many approaches end up being "way too bureaucratic" and take way too long, recalling, for instance, my five year effort to get the General Assembly to post its various digital versions of the Indiana Code and the Acts of Indiana online.
Law - Killer countertops?
"What’s Lurking in Your Countertop? " was the headline to this NY Times story by Kate Murphy yesterday. Some quotes from the lengthy story:
As the popularity of granite countertops has grown in the last decade — demand for them has increased tenfold, according to the Marble Institute of America, a trade group representing granite fabricators — so have the types of granite available. For example, one source, Graniteland (graniteland.com) offers more than 900 kinds of granite from 63 countries. And with increased sales volume and variety, there have been more reports of “hot” or potentially hazardous countertops, particularly among the more exotic and striated varieties from Brazil and Namibia.
“It’s not that all granite is dangerous,” said Stanley Liebert, the quality assurance director at CMT Laboratories in Clifton Park, N.Y., who took radiation measurements at Dr. Sugarman’s house. “But I’ve seen a few that might heat up your Cheerios a little.”
Allegations that granite countertops may emit dangerous levels of radon and radiation have been raised periodically over the past decade, mostly by makers and distributors of competing countertop materials. The Marble Institute of America has said such claims are “ludicrous” because although granite is known to contain uranium and other radioactive materials like thorium and potassium, the amounts in countertops are not enough to pose a health threat.
Indeed, health physicists and radiation experts agree that most granite countertops emit radiation and radon at extremely low levels. They say these emissions are insignificant compared with so-called background radiation that is constantly raining down from outer space or seeping up from the earth’s crust, not to mention emanating from manmade sources like X-rays, luminous watches and smoke detectors. * * *
Personal injury lawyers are already advertising on the Web for clients who think they may have been injured by countertops. “I think it will be like the mold litigation a few years back, where some cases were legitimate and a whole lot were not,” said Ernest P. Chiodo, a physician and lawyer in Detroit who specializes in toxic tort law. His kitchen counters are granite, he said, “but I don’t spend much time in the kitchen.”
Ind. Courts - Electronic e-filing in criminal cases tested in White County; Lake County to do civil e-filing
A press release Wednesday from Doxpop LLC announces:
Doxpop LLC, CSI, and Proslink Inc. in cooperation with Judge Robert Mrzlack, Clerk Bruce Lambert and Prosecutor Robert Guy of White County, Indiana have successfully tested the first phase of a criminal electronic filing (e-filing) system that eliminates hours of redundant data entry and speeds processing of cases.More from the 3-page release:
The e-filing System is being phased in with extensive testing at each level. Defendant information, including name, address and other identifying information; the initial CCS entry/order identifying the charges, probable cause finding and bond amount or court appearance date; and the Prosecutor's Appearance are all transferred automatically, while the formal “filing” of the case is still done in parallel on paper. The following features are planned for subsequent releases:Indeed, Chief Justice Randall T. Shepard, in his State of the Judiciary speech this year, noted "Lake County will soon become Indiana’s first county to begin electronic filing.
On July 18th, the White County Superior Court formally submitted a request to Pilot an e-filing System in White County. Ray Ontko, President of Doxpop said “This administrative step will allow White County to move from the testing phase to a formal pilot project with oversight from the Division of State Court Administration. Since Lake County, Indiana has already broken ground with a previous request for civil e-filing, we expected that processing of Judge Mrzlack's request will proceed swiftly.”
- e-filing will become the primary method of filing. Paper filing will be eliminated.
- Defense attorneys and other parties will be able to receive filed documents electronically.
- The Court and Attorneys on both sides of the case will file documents subsequent to the initial (such as motions and orders) electronically.
- In the final phase, e-filing will be expanded to Civil actions.
Here is the link to what looks to be the Lake County Courts' online dockets. The ILB has had difficulty finding additional information.
Ind. Decisions - Terre Haute paper loses $1.5 million defamation suit
Sue Loughlin of the Tribune-Star reports the story today. Some quotes:
TERRE HAUTE — A Sullivan County jury awarded a Clay County law-enforcement officer $1.5 million in damages Thursday after ruling he was defamed by stories published in the Tribune-Star.
The lawsuit was filed in June 2004 by Jeff Maynard, then a Clay County sheriff’s deputy who has since been promoted to detective.
The trial in Sullivan Circuit Court started Tuesday and ended Thursday, and a six-member jury deliberated for about two hours.
The jury found in Maynard’s favor and awarded him $500,000 in compensatory damages and $1 million in punitive damages.
Tribune-Star publisher Jeremiah Turner said, “We are very disappointed with the jury’s decision and the outcome of the trial. We have always felt and still do that the way we reported the story was truthful, accurate and fair. At this point, we are considering all the options available to us, including an appeal.” * * *
The Tribune-Star had unsuccessfully asked a Sullivan County judge to dismiss the lawsuit based on an Indiana law that shields the public and press from lawsuits that attempt to curb free-speech rights in matters of public interest.
Thursday, July 24, 2008
Ind. Decisions - AG Carter will not appeal either of two recent district court rulings voiding 2008 legislation
On July 2nd, Attorney General Carter issued a release re Judge Sarah Evans Barker's July 1st ruling in Big Hat Books v. Prosecutors: Adams, et al, holding HEA 1042 unconstitutional, stating that the decision would not be appealed.
Today AG Carter has issued a release re Judge David Hamilton's ruling issued June 24th in John Doe v. Prosecutor, Marion County, holding a portion of SEA 248 unconstitutional. Today's press release is headed "Attorney General Steve Carter says Appeal not Prudent on a Law Recently Declared Unconstitutional by a Federal District Court."
Ind. Decisions - 7th Circuit issues three Indiana opinions today
In Caskey v. Colgate-Palmolive (SD Ind., Judge Hamilton), a 15-page opinion, Judge Bauer writes:
After being disciplined and ultimately terminated, Tracy Caskey sued her former employer and its parent company. Caskey alleged that the defendants (1) interfered with her right to medical leave, in violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.; (2) discriminated against her because of her sex, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; and (3) retaliated against her for exercising her rights under the FMLA, Title VII, and Indiana law. The district court granted summary judgment for the defendants, finding that Caskey’s discipline was lawful and that her termination resulted from three unexcused absences from work. Caskey now appeals, and for the reasons stated below, we affirm.In US v. Dalhouse (ND Ind., Judge Sharp), a 7-page opinion, Judge Sykes writes:
When the government introduces a defendant’s confession to supplement an otherwise legally inadequate case, the Supreme Court requires corroborating evidence to show that the confession is trustworthy. See Opper v. United States, 348 U.S. 84, 89 (1954). This “corroboration rule” is at the center of this case.In US v. Mages (ND Ind., Judge Sharp), a 5-page opinion, Judge Coffey concludes:
Germaine Dalhouse was convicted of carrying a gun while being an illegal-drug user. See 18 U.S.C. § 922(g)(3). He claims the government was wrongly allowed to present his confession to the jury without first producing corroborating evidence that it was trustworthy. We disagree and affirm his conviction. The corroboration rule is satisfied if the government presents enough evidence independent of the confession to allow a jury to convict. The government did that here, so there was no need for additional corroboration.
Here, a government witness testified that the letters sent to the President of the United States and to the Chief Justice of Canada were sent on preprinted forms found in Magers’s prison and that the envelopes were stamped with the prison’s name. The powdery substance in the envelopes offered in evidence, when examined, constituted evidence of a true threat even though the actual contents were not toxic. See United States v. Stewart, 411 F.3d 825, 828 (7th Cir. 2005) (true threat is not dependent upon what defendant intended but whether recipient reasonably regarded the letter as a threat). And two handwriting experts testified that the writing in the letters matched that of Magers’s. Magers introduced no evidence in dispute of that testimony. Thus there was ample evidence upon which a rational trier of fact could find Magers guilty beyond a reasonable doubt of all the elements of the crimes in violation of 18 U.S.C. §§ 875(c), 876(c), and 871(a). Any argument to the contrary would be frivolous.
The appeal is DISMISSED and counsel’s motion to withdraw is GRANTED.
Ind. Law - Following up on: Can you rely on the Indiana Code?
I've gotten really good reaction to my May Res Gestae article, "Can you rely on the Indiana Code - Part I."
I'm working on a follow-up article and hope to incorporate / address your thoughts, concerns, examples, questions, objections, etc. Please send them along, soon.
Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)
For publication opinions today (5):
In John Clark, Rep. of the Estate of Cory R. Clark v. Aris, Inc., et al , a 9-page opinion, CJ Baker writes:
Baer left the job site during the middle of his shift without Aris’s permission to do so, drove his personal vehicle to the residence of Cory Clark and Jenna Clark, entered the home, and murdered the Clarks. Baer was subsequently found guilty of the murders of the Clarks.Jacob Jones v. State of Indiana - "Jacob Jones (“Jones”) was convicted in Marion Superior Court of Class C felony auto theft and Class A misdemeanor driving while suspended. Jones appeals and argues that the evidence is insufficient to support his auto theft conviction because the vehicle he stole had been abandoned. We affirm."
On February 27, 2006, the Estate filed a complaint against Aris, among others, for negligent hiring and retention of Baer. On January 29, 2007, Aris filed a motion for summary judgment, arguing that it was not liable for Baer’s actions as a matter of law. Following a hearing, the trial court summarily granted Aris’s motion on July 6, 2007. The Estate now appeals. * * *
Aris hired Baer to flag traffic at a construction site. This job did not put him into personal contact with citizens, it did not provide access to people’s homes or property, and it authorized him to do nothing more than stand on the street and control the flow of traffic. * * * We simply cannot conclude that Cory and Jenna Clark, who lived miles from the construction site in a residence that Baer was not authorized to enter for any purpose whatsoever, were reasonably foreseeable victims, or that the tragic harm that befell them was reasonably foreseeable. * * * But given these facts, we find as a matter of law that the Clarks were not reasonably foreseeable victims who were injured by a reasonably foreseeable harm. Thus, as a matter of law, Aris did not have a duty of care to the Clarks and the trial court properly granted summary judgment in Aris’s favor.
In Jeffrey A. Graham v. State of Indiana , a 10-page opinion, CJ Baker writes:
We find that the State presented sufficient evidence to support Graham’s conviction for resisting law enforcement and that his convictions for criminal recklessness and criminal mischief do not violate the prohibition against double jeopardy. However, as the State acknowledges, the trial court did not inquire into Graham’s ability to pay or fix a manner of payment for the restitution; thus, we reverse the restitution order and remand with instructions contained herein.In Tamara Sullivan v. Noell Krughoff, Shelby Co. Dem. Central Committee Chairperson , a 6-page opinion, Judge Mathias writes:
Respondent-Appellant Tamara Sullivan (“Sullivan”) appeals from the trial court’s judgment finding that Val Phares was the duly elected representative of the Fourth Ward to the Shelbyville Common Council as a result of the 2007 general election. We affirm and remand. * * *Tri-Etch Inc., et al v. Cincinnati Insurance Co. is a complex, 27-page opinion. CJ Baker's several page summary of the opinion begins:
The issue before us is not how a statute should be interpreted but which statute is to be applied to this situation. Sullivan argues that the trial court applied the wrong statute when it ordered that all of the absentee ballots cast in the Shelbyville Common Council, Fourth Ward, not be counted. * * *
An absentee ballot, which is what is at issue in this case, may not be counted unless it has been properly endorsed. Indiana Code § 3-12-1-13. The absentee ballots cast in the Shelbyville Common Council, Fourth Ward election were not properly endorsed under the statute. A careful reading and comparison of the statutes at issue makes clear that absentee ballots of any type must be endorsed as described in Indiana Code section 3-12-1-13 in order to be valid.
We therefore affirm and remand for the trial court to order that Val Phares be installed as Councilperson for the Shelbyville Common Council, Fourth Ward immediately, upon receipt of this opinion.
The case we address today stems from a tragedy that has resulted in nine years of litigation. These parties have been before our court three times and have argued their case before our Supreme Court twice. While the issues we address include complex insurance matters concerning notice, prejudice, policy coverage, and defense costs, no amount of litigation will ever erase the unfortunate circumstances that bring us here today.NFP civil opinions today (2):
In Re: K.L., T.R., and B.M., Children In Need of Svcs., T.W. v. Marion Co. Dept. of Child Svcs. (NFP) - "Here, the juvenile court’s findings in its order declaring the Children to be CHINS are very similar and in places identical to the language used by the juvenile court in J.Q. We also note that the evidence presented to the juvenile court was not undisputed. Based on J.Q., we reverse and remand with instructions that the trial court more specifically follow the requirements of Ind. Code § 31-34-19-10."
In Diana E. Lowhorn v. Brian E. Lowhorn (NFP), an 18-page opinion, Judge Brown writes:
Diana E. Lowhorn (“Mother”) appeals the trial court’s modification of custody of her children to her former husband, Brian E. Lowhorn (“Father”). Mother raises one issue, which we restate as whether the trial court abused its discretion by modifying custody. We reverse and remand. * * *NFP criminal opinions today (7):
In summary, we conclude that many of the trial court’s findings are clearly erroneous, and the remaining findings, taken together, fail to demonstrate a substantial change necessary to modify custody. We therefore reverse the trial court’s grant of Father’s petition to modify custody and remand for proceedings consistent with this opinion.
Ind. Courts - "Judge orders drug task force to return $25,000"
Continuing his reporting on the drug forfeiture investigation in Delaware County, Rick Yencer of the Muncie Star-Press writes today:
The Muncie-Delaware County Drug Task Force was ordered Wednesday to return $25,212 seized without a court order and spent in violation of state law from high profile fugitive Adrian Kirtz.For background on the Delaware County DTF issues, start with this ILB entry from July 18th.
Delaware Circuit Court 4 Judge John Feick found that the transfer of Kirtz's money and property by a confidential settlement signed by the DTF's attorney, county Prosecutor Mark McKinney, and Kirtz's defense attorney, Jacob Dunnuck, clearly violated Feick's order in December 2006 to freeze those assets.
The DTF deposited the money in an off-the-books checking account that was shut down last year by the State Board of Accounts after auditors found seized money and assets were not going to local government general funds or common school funds. For years, the DTF spent the money on its own operation, and last year made downpayments on two new SUVs used by undercover officers.
Feick ordered the $25,212 deposited with the county clerk under the seizure case filed the DTF filed against Kirtz, who was arrested on cocaine dealing charges, based on a probable cause affidavit signed by former city DTF supervisor Jess Neal, a Muncie patrol officer who also works in the prosecutor's office as an infraction deferral coordinator. * * *
Delaware Circuit Court 2 Judge Richard Dailey had informed Feick of how DTF and McKinney seized and dispersed money in the Kirtz case. Dailey is conducting an investigation into whether the DTF and McKinney committed fraud in handling drug seizure and forfeiture cases.
Feick said Wednesday he was undecided on how to review more than 75 other seizure and forfeiture cases in his court. A list of those cases show many were dismissed or had default judgments entered, although a handful are still pending.
Ind. Courts - More on Pan Am Plaza lawsuit
A lawsuit filed Wednesday asserts the Indiana Sports Corp. owes Marion County taxpayers $6 million for selling Pan Am Plaza.
The complaint, filed on behalf of taxpayers Clarke Kahlo and Howard Elder, argues taxpayers are owed the money because the Sports Corp. and the city's Metropolitan Development Commission broke a 1985 deal that required Pan Am Plaza to remain as a public space.
Earlier this year, their lawyer, Paul Ogden, filed a lawsuit over plans by the Capital Improvement Board to give two nonprofits some of the money raised by auctioning off items from the RCA Dome. In light of the suit, the board reversed course, leaving the money with taxpayers.
According to the Pan Am Plaza lawsuit, which was filed in Marion Superior Court, the Sports Corp. sold the Pan Am Plaza lot in April to KRG/CP Pan Am Plaza LLC and placed the proceeds of the sale into a trust for future operations. Susan Williams, president of the Sports Corp., declined to disclose the amount of that sale Wednesday.
The lawsuit centers on a 22-year-old redevelopment agreement between the city's Metropolitan Development Commission and the nonprofit Sports Corp. Under that deal, Pan Am Plaza was to be maintained as a public space.
Ind. Courts - Fort Wayne paper editorial on "Judging the Judges"
With two of its county judges facing unrelated charges, the Fort Wayne Journal Gazette has a long and thoughtful editorial today that should be read in full:
Two Allen County judges familiar with passing judgment on people who have committed wrongdoings now find themselves on the other side of the bench.
The court officials who judge them will face the same challenges Circuit Court Judge Thomas Felts and Superior Court Judge Kenneth Scheibenberger face regularly: achieving justice by applying the rule of law to the actions of the defendants while weighing past behavior, remorse, the need to set examples for others and balancing punishment with reformation.
Felts and Scheibenberger are facing unrelated accusations within days of each other. The Indiana Commission on Judicial Qualifications charged Scheibenberger last week with violating judicial conduct rules for, according to court records, entering the courtroom of another judge while wearing his robe and verbally berating a defendant and members of his family. Three days later, Felts was arrested in downtown Indianapolis on charges of driving while intoxicated and public intoxication.
Felts, now wrapping up his first six-year term as a Circuit Court judge, is well liked and respected as a judge and was selected early this year as president of the Indiana Judges Association. His first-time arrest in the wee hours of the morning came as a shock to friends, colleagues and the legal community.
First, Felts will face the Marion County judicial system. Later, he will most likely face some type of disciplinary action from the Indiana Commission on Judicial Qualifications and the Indiana Supreme Court.
If their decision is based solely on the arrest and Felts’ record and reputation, he may well receive no more than an admonishment and possibly be referred to the Judges and Lawyers Assistance Program.
Whether Felts’ court should continue to oversee alcohol- and traffic-related cases is worthy of review. In many other counties, the circuit judge handles a variety of the most serious criminal cases as well as divorces.
Years ago, based on the strengths and preferences of Felts’ predecessor, Thomas Ryan, Allen County judges limited criminal cases in Circuit Court to those involving habitual traffic offenders or alcohol. In any event, the way cases are split between superior and circuit courts is overdue for reconsideration.
By all appearances, Felts displayed a lapse in judgment, but his long record of community service, dedication to justice and sincere remorse must also be heavily considered.
In Scheibenberger’s case, the outrage behind his outburst is understandable to any parent who has suffered a loss. The judge said the defendant in the courtroom he entered had sold drugs to Scheibenberger’s son, Sam, who died last year.
Scheibenberger has a reputation for being outspoken. Yet the public does have reason to expect judges to be held to a higher standard, particularly in the courtroom. “An independent and honorable judiciary is indispensable to justice in our society,” reads a judicial canon that Scheibenberger is accused of violating. “A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards in order to preserve the integrity and independence of the judiciary.”
Of more concern, this is not the first time the judge has been disciplined. In December 2002, the Commission on Judicial Qualifications admonished him for making a docket entry in a case involving his son.
In 2003, Scheibenberger’s Superior Court colleagues strongly urged him to receive inpatient treatment for alcohol abuse after an incident at a local tavern.
Scheibenberger now faces a hearing before three judges appointed by the state Supreme Court, and that court will have the final say in determining any disciplinary action.
Indiana court officials, particularly Supreme Court Chief Justice Randall Shepard, are commended for establishing an atmosphere where judges accused of wrongdoing face public discipline. In a previous era, the actions attributed to Scheibenberger and Felts would have been ignored.
Now, Felts and Scheibenberger are at the mercy of the same system they help administer. Like many cases they themselves have seen, determining proper punishment will be a difficult decision involving several factors, and the final results will doubtlessly be both praised and attacked.
Ind. Courts - More on "Judge Felts pleads not guilty"
Allen Circuit Court Judge Thomas J. Felts might have intentionally tried to subvert a breath test he was given early Friday when he was arrested on alcohol-related charges in Indianapolis.
That’s according to details in a probable cause affidavit filed in the case and arguments during Felts’ initial hearing Wednesday in Marion Superior Court.
Felts, 53, is charged with operating a vehicle while intoxicated and public intoxication, both misdemeanors.
“We’re not dealing with a layperson,” Marion County Deputy Prosecutor Christopher Gilley said. “He knows what causes a machine to malfunction.” * * *
But James Voyles, defense attorney for Felts, argued his client’s license should not be suspended because he did not refuse to take the tests and the officers did not strictly follow the law regulating refusals. And he noted there is no evidence of why the tests were invalid.
Gilley said Felts refused to maintain a constant flow of air when blowing into the machine and tried to make himself burp, which could interfere with the test results. He also requested another hearing on the refusal in which the officers could testify about the events of the test.
But Marion Superior Court Judge William J. Nelson ruled there was not probable cause to issue a suspension on the basis of refusal.
Police and prosecutors are still waiting for the results of a blood draw that will show Felts’ official blood-alcohol level, which could result in a license suspension at a later date.
Felts did not attend Wednesday’s initial hearing, at which a plea of not guilty was entered on his behalf and a pretrial hearing was set for Aug. 21.
Ind. Courts - More on: Two young attorneys in different parts of the state in court for drug/alcohol related charges
On May 11, 2007 the ILB posted an entry on two young attorneys - Teresa Perry of Evansville, who was charged with "eight counts related to possessing and distributing methamphetamine," and Terry J. Record, who, according to an Indianapolis Star report at the time, was:
A State Department of Health attorney [who] drank at least 14 beers and six shots at a strip club before getting behind the wheel of his car and causing a fatal wreck, police said Thursday.The ILB has subsequently posted a number of entries about Ms. Perry's interactions with the Indiana justice system, ending with this one from May 28th headed "Attorney's meth case ends in six-year prison sentence."
A story from July 22nd in the Evansville C&P reported:
An Evansville attorney recently convicted and sentenced to jail on methamphetamine charges has been suspended from practice by the Indiana Supreme Court.Here is the July 14th ruling.
The ruling, issued this month by the Indiana Supreme Court Disciplinary Commission, suspends Teresa Perry from the practice of law in Indiana “until further order of the Court,” due to Perry being found guilty of a felony.
A recent ruling by a Marion Superior Court judge likely will result in the dismissal of one of two major charges against a former state attorney accused of driving drunk before a fatal wreck.Today Bryan Corbin of the Evansville C&P has a long report on the Record case - it turns out Record is also from Evansville. Some quotes:
Terry Record, 28, is set to go on trial July 28 on multiple counts of operating a vehicle while intoxicated and reckless homicide. He is accused of drinking heavily at a strip club in May 2007 before a crash that killed the other driver, Jimmy R. Cash, 46.
An Evansville attorney accused of driving drunk and causing a fatal crash is scheduled to go on trial on Sept. 29 in Indianapolis.
Terry J. Record, a sole practitioner in Evansville, is charged with a class B felony and two class C felonies in connection with the May 6, 2007, collision in which the other driver, Jimmy Cash, 46, died of blunt-force trauma.
If convicted of the most serious charge, Record could face six to 20 years in prison. * * *
Out of jail since last year on $10,000 bond, Record remains on home detention in Evansville — allowed out for employment only — while awaiting trial. * * *
[Special Prosecutor Barry Brown], a former Monroe County prosecutor, was appointed to the case when Marion County Prosecutor Carl Brizzi took his office out of the case to avoid any perceived conflict. Record briefly had worked for Brizzi's office as an intern in 2005 and 2006, and Record also had worked for the state health department until around the time of his arrest.
Brown had sought to charge Record with a second class B felony count because Record allegedly had traces of marijuana in his bloodstream the night of the crash.
Marion Superior Court Judge Grant Hawkins ruled evidence from the marijuana test won't be admitted in court, because the search warrant police obtained for the blood samples wasn't specific enough to cover marijuana.
Brown wanted to appeal Hawkins' ruling to the Indiana Court of Appeals and postpone Record's trial. Hawkins, though, denied that request, meaning the prosecutor likely will not be able to proceed with the marijuana-related charge. Instead, Record's jury trial on the alcohol-related charges, originally set for next week, was rescheduled to Sept. 29.
Record was in Marion County Superior Court on Wednesday with his attorney, David Lewis. Record could say little afterward, other than he currently is practicing law in Evansville, doing pro bono representation for indigent clients in civil cases. He indicated he would comment after his case concludes.
At the time of the crash, Record had been working and living in Indianapolis. He since has relocated to his native Evansville.
"We are in negotiations right now, but we have not been able to reach (a plea) agreement," Lewis said. "Mr. Record is very remorseful for what happened and does not want to put the (victim's) family through a trial, if at all possible."
Members of the deceased's family also were in the courtroom Wednesday.
Chet Seidensticker, Cash's son, said the family wants justice to be served, and they believe prison time would be appropriate for Record.
"You can't put an amount of years on it; but definitely, he should be punished to the utmost of the law," he said.
For now, Record's license to practice law remains in good standing. The agency that investigates lawyer misconduct, the Indiana Supreme Court Disciplinary Commission, is aware of Record's felony charges, but it does not take action against an attorney's license until charges are concluded, commission attorney Robert Shook said.
Wednesday, July 23, 2008
Ind. Decisions - "Appeals court rules against sex offender"
Yesterday's Court of Appeals decision in the case of Jesse S. McCown v. State of Indiana (ILB entry here, 5th case, is the subject of a story posted this afternoon by Sophia Voravong in the Lafayette Journal Courier that begins:
A Lafayette man convicted of molesting a 14-year-old girl more than 20 years ago will have to register on Indiana's Sex and Violent Offender Registry, the Indiana Court of Appeals has ruled.
Jesse S. McCown, who was homeless at the time, was found guilty in May 2007 of two Class D felony counts of failure to register as a convicted sex offender and one misdemeanor count of failure to possess identification.
He appealed the decision by Tippecanoe Circuit Court Judge Don Daniel on grounds that his 10-year requirement to register already expired. McCown, who pleaded guilty in 1987 to two counts of child molesting, was released from prison in 1990 and from parole in 1991.
Sex with a 14-year-old is sexual misconduct with a minor under current law, but it constituted child molesting under the law that was in effect at the time of the offense.
"Our position was simply that his 10 year registration ran out a long time ago," Lafayette attorney Bruce Graham, who represented McCown on appeal, said today.
"It's not clear to me how the Court of Appeals concludes to the contrary. I've read the opinion twice now, and I still don't understand their underlying theory."
Graham said he plans to request that the case be transferred to the Indiana Supreme Court.
Ind. Courts - More on: "Activist lawyer works to keep city honest"
Updating this ILB entry from June 29th, quoting from a John Ketzenberger column in the Indianapolis Star about local attorney Paul Ogden, today Ogden has filed a class action complaint on behalf of Clarke Kahoo and Howard Elder against the City, the Metropolitan Development Commission, and the Sports Corp. Access the 7-page complaint here.
The suit requests relief based on:
... the illegal and unauthorized modification of a 1985 redevelopment contract between the City of Indianapolis and the Indiana Sports Corporation which modification resulted in the taxpayers of the City of Indianapolis not receiving the benefit of approximately $6 million dollars upon the sale of the Pan Am Plaza lot from the Indiana Sports Corporation to KRG/CP Pan Am Plza, L.L.C.
Ind. Law - Still more on: More issues with the General Assembly's website
Updating this ILB entry from July 13th, where I wrote:
[W]hen it posted the link for the Acts of 2008, the General Assembly removed the link for the Acts of 2007. This despite the urging of myself and many others that the files for ALL the volumes of the Acts of Indiana be made available to the public. (I've been urging this for five years; obviously to no effect.)I'm pleased to report that now links to the Acts of 2004 through 2008 have been made available. I have no idea why 2002 and 2003 also have not been made available, as they also are still there online, but they remain technically inaccessible because the General Assembly has eliminated the links.
The worst part of this is, the PDF files for the Acts of Indiana for six years -- 2002 through 2007 -- are all still there online, but they are inaccessible because the General Assembly has eliminated the links!
Caution: As I warned before, these PDF files are very large, and you are probably better of downloading them (right click/save, etc.) than trying to open them online. (And once you do capture them to your own computer, you will not have to worry if/when the General Assembly disappears them again.)
See also this entry from July 15th.
Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)
For publication opinions today (0):
NFP civil opinions today (0):
NFP criminal opinions today (3):
Ind. Courts - John Newman, records manager, is retiring July 25th
A press release issued today via the Courts site begins:
The Indiana Supreme Court is saying good-bye to the longtime Director of Information Management. John Newman is retiring July 25th, after 22 years with the Indiana Supreme Court, Chief Justice Randall T. Shepard announced today.
Newman began his career in state government in 1970, taking oral history interviews for the Indiana State Library. Within months, he was named Indiana State Archivist. He remained in that position until 1986. During his years as State Archivist, Newman dedicated his time to making state records easily accessible. Guided by the fundamental belief that citizens have the right to know and inspect what government is doing, he served as a watchdog for the public. Newman explained, “It is the duty of the government to keep good records. Information needs to be maintained in order to provide accountability on how taxpayer’s money is being spent.”
In 1986, Newman was named the Indiana Supreme Court’s Director of Information Management. Visiting all 92 counties many times, Newman began helping trial courts maintain records. He made recommendations to county courts on efficiency and storage. He was instrumental in helping courts dispose of tons of unneeded records. During Chief Justice Shepard’s 1997 State of the Judiciary, he and longtime associate Thomas Jones received a standing ovation. Justice Shepard highlighted their work and the “5400 file cabinets” standing empty thanks to their efforts.
Ind. Courts - "Judge Felts pleads not guilty"
Niki Kelly of the Fort Wayne Journal Gazette attended the initial hearing in Marion County Superior Court this morning and reports in a story that begins:
INDIANAPOLIS – Allen Circuit Judge Thomas Felts will keep his driver’s license after an initial hearing Wednesday morning in Marion Superior Court.See today's earlier entry here.
His attorney, James Voyles, entered a not-guilty plea on his behalf. Felts was not in court.
Prosecutors said Felts’ license should be suspended based on a refusal to take two chemical breath tests.
Voyles told Marion County Judge William J. Nelson that his client took part in two tests that were deemed invalid, arguing that is not the same as refusing to take them.
The judge agreed, saying there was no probable cause that he refused the tests.
Ind. Decisions - "Ex-Purdue football player's sentence reduced"
Yesterday's Court of Appeals decision in the case orf Kyle Williams v. State of Indiana (ILB entry here, 4th case, is the subject of a story today by Sophia Voravong in the Lafayette Journal Courier. Some quotes:
A former Purdue University football player who randomly attacked two women on campus will have his sentence for those crimes reduced by six years.
Kyle D. Williams, 22, was found guilty in April 2007 of attempted rape, a Class B felony; battery, a Class C felony; and criminal confinement, a Class C felony, for one of the assaults, which took place in a parking lot behind Delta Zeta sorority on Nov. 29, 2005.
The Tippecanoe Superior Court 2 jury also found Williams guilty of criminal confinement, a Class D felony, and battery causing serious bodily injury, a Class A misdemeanor, for an attack that occurred 90 minutes later on First Street near Waldron Street.
Both victims, who were students at Purdue at the time of the attacks, had been struck repeatedly and suffered head and facial injuries.
But in a unanimous ruling issued Tuesday, the Indiana Court of Appeals dismissed the criminal confinement charge in the first attack on grounds that it violated double jeopardy.
"We reach the conclusion that the record establishes clear evidence to support the jury's conclusion that Williams committed attempted rape ... and battery," Judge Carr Darden wrote in the 16-page ruling.
"However, we find a reasonable probability exists that the same evidentiary facts the jury used to establish his commission of these two offenses were also 'used to establish the essential elements of' the third offense -- criminal confinement."
Ind. Courts - Still more on: Unsolved Tippecanoe County Courthouse bombing nearly ten years old
In less than two weeks, the person who drove an explosives-laden pickup truck into the Tippecanoe County Courthouse -- causing extensive first-floor damage -- will have gotten away with the crime.
But Sheriff Tracy Brown is confident that, even after a 10-year federal statute of limitations for arson and related crimes expires on Aug. 2, investigators will continue to search for the suspect or suspects.
"There is a strong desire on our part, and on the community's part, to find out what happened," he said earlier this week. "I don't know if it ever will be a completely closed case."
For more than a year now, the sheriff's department has intensified its efforts with the FBI and the Bureau of Alcohol, Tobacco, Firearms and Explosives to find the person or people responsible for the attempted bombing on Aug. 2, 1998.
Ind. Courts - "Advocates Against Domestic Violence Blame Denial Of Protective Order For Woman's Death"
See the Advance Indiana entry here.
Ind. Courts - "Probable cause affidavit gives details of Allen County judge's arrest"
Jeff Wiehe of The Fort Wayne News-Sentinel posted details last evening (7:41 pm) of "a newly released Marion Superior Court probable cause affidavit." in the arrest of Allen Circuit Court Judge Thomas J. Felts in downtown Indianapolis early Friday morning.
For background, start with this ILB entry from July 22nd.
Tuesday, July 22, 2008
Ind. Law - Still more on "City considers allowing golf carts on streets"
Referencing the ILB item posted earlier this afternoon on the proposed Vincennes golf cart ordinance, Kevin R. Patmore, an attorney in Santa Claus, IN, writes (quoted with permission):
I have read your blog rather regularly, and noted your entry (again) today on golf carts. In connection with my representation of the Town of Santa Claus, I have dealt with this issue in the past, not as a question of legality on Town streets, but in enforcement of Town Ordinances on gated community (i.e. private) streets.
This is a recurrent issue, as the gated community (which includes a golf course) allows golf carts, but only if the person is on their way to or from the course, a rather difficult probable-cause distinction for our Town Marshals to make when seeing a golf cart driving down the roadway.
One thing I keep noticing is that towns adopting ordinances allowing golf cars have been inserting this crazy "you must have the cart inspected by the police department" requirement. Since our local police officers generally are not hired based upon their mechanical acumen, am I not the only attorney who cringes at the exposure to liability that some of these municipalities may be assuming with this inspection requirement for mechanical failures which might occur on carts approved by the municipal police?
Ind. Law - More on "City considers allowing golf carts on streets"
An ordinance drafted by VPD Chief Tom Grove on allowing golf carts on certain city streets was presented to the city's Board of Works several weeks ago for consideration, and Mayor Al Baldwin designated a committee - consisting of himself, Grove, Assistant Police Chief Nancy Holbrook, City Attorney Dave Miller and businessman Jim Gislason - to review it. The committee began looking to other communities that had adopted similar golf cart ordinances and used one from Gas City in northern Indiana as a model.
The state does not regulate the use of golf carts on public streets.
Under the proposed ordinance, the carts would first have to be inspected by the police department - for a fee of $25 - and issued a sticker of compliance. Each cart must have headlights, tail lights, brake lights, a slow moving vehicle placard, a rear view mirror, seatbelts for all occupants, and either a safety flag or strobe light extending at least four feet above the rear fender.
Only those over the age of 16 and with a valid driver's license would be eligible to drive, and the owner must have at least liability insurance on the golf cart.
Once deemed legal, there would be restrictions on how the carts could be used. They would be prohibited on all state and U.S. highways as well as high traffic areas, such as Hart, Willow, St. Clair and Sixth streets. Vigo Street from Sixth Street to the Lincoln Memorial Bridge also would be off limits.
Violators could be fined $100 for each offense, and their permit to operate a golf cart could be revoked for at least a year if caught violating the ordinance twice.
The ordinance is scheduled to go before the city council July 28. It likely then will go to the council's public safety committee for further review.
Ind. Decisions - 7th Circuit issues one Indiana decision today
In U.S. v. Woolsey (SD Ind., CJ Hamilton), a 20-page opinion, Judge Rovner writes:
Charles Woolsey was convicted of drug and firearms offenses after police executed a search warrant at his residence and discovered a cache of guns, cocaine, marijuana, and methamphetamine. On appeal Woolsey challenges the denial of his motion to suppress the evidence seized at his house, as well as the district court’s exclusion of two witnesses at his jury trial. The government cross-appeals and argues that at sentencing the district court erred in refusing to impose a life term on his conviction for possession of methamphetamine with intent to distribute. We affirm Woolsey’s convictions but vacate his sentence on the methamphetamine count and remand with directions to impose a life term on that count.
Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)
For publication opinions today (5):
Scottie Hart v. State of Indiana - "Scottie Hart, pro se, appeals from the denial of his petition for post-conviction relief. We affirm.
"Issues. 1. Whether the trial court erred in revoking Hart’s probation. 2. Whether Hart received ineffective assistance of trial counsel. 3. Whether the prosecutor committed misconduct. 4. Whether the post-conviction court exhibited prejudice."
Leslie G. Miller v. State of Indiana - "Appellant-Defendant, Leslie Miller (Miller), petitions for rehearing, asking us to revisit his sentence for three counts of child molesting, one Class A felony and two Class C felonies, Ind. Code § 35-42-4-3, in light of the trial court’s “Order Clarifying Sentence,” which the trial court entered sua sponte after we issued our original opinion. Because Miller’s sentence, as clarified by the trial court, violates the United States Supreme Court’s opinion in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d (2004), reh’g denied, we are bound to grant Miller’s petition."
In James Stafford v. State of Indiana, a 14-page opinion, Judge Brown writes:
James Stafford appeals his convictions for burglary as a class B felony and theft as a class D felony. Stafford raises two issues, which we revise and restate as: I. Whether the trial court abused its discretion by admitting evidence where a delay of six days occurred between Stafford’s arrest and a probable cause hearing; II. Whether the trial court abused its discretion by denying Stafford’s motion for a continuance, which was filed due to late disclosures and the amendment of charging informations. We affirm.In Kyle Williams v. State of Indiana, a 16-page opinion, Judge Darden writes:
Kyle Williams appeals his convictions and sentences after a jury found him guilty of five offenses: one count of attempted rape, as a class B felony; two counts of criminal confinement, one as a class C felony and one as a class D felony; and two counts of battery, one as a class C felony and one as a class A misdemeanor. We affirm in part, reverse in part, and remand with instructions.In Jesse S. McCown v. State of Indiana , a 10-page opinion, Judge Darden writes:
Issues. 1. Whether the Double Jeopardy Clause of Indiana’s Constitution bars Williams’ convictions and sentencing on three of the offenses. 2. Whether the sentences imposed for four of the offenses violate the statutory limitation for consecutive sentences in Indiana Code section 35-50-2-3.
Jesse S. McCown appeals his convictions, after a bench trial, for two counts of class D felony failure to register as a sex offender. We affirm the convictions and remand for proper enhancement of the habitual offender charge. * * *ILB Note: See this ILB entry from May 3, 2007 re the two issues that were raised at trial.
[W]e wholly reject McCown’s contention that his duty to register began, at the latest, on May 1, 1994, and expired on or before May 1, 2004. The State contends, and we agree, that “it is nonsensical to suggest that the ten-year registration period began before the duty to register was imposed.” State’s Br. at 6. Simply stated, statutory amendments made effective on July 1, 2001, rendered the registration requirement applicable to McCown. Because McCown was incarcerated in a penal facility on the effective date of the statute, his ten-year duty to register was triggered upon his release therefrom and subsequent placement on probation on November 10, 2001. McCown failed to register within seven days as required by statute, and was therefore, properly charged with class D felony failure to register as a sex offender. We find no error in the trial court’s denial of his motion to dismiss the State’s charging informations.
NFP civil opinions today (3):
Commissioner of Labor, on the Relation of Lemelany S. Murphy v. Shree JI Bava, LLC, et al. (NFP) - a 2-1 opinion. "The Commissioner of Labor (“the Commissioner”) on behalf of Lemelany Murphy appeals the amount of attorney fees awarded by the trial court in a wage payment action. We reverse and remand.
"Issue. The Commissioner raises one issue, which we restate as whether the trial court properly reduced the award of attorney fees."
Sjon Martin v. Banfield Pet Hospital of Castleton, Dr. Jim Dechand and Banfield Pet Hospital (NFP) "Although Martin continues to classify the Emswiller affidavit as newly discovered evidence, we conclude it is more appropriately deemed untimely. Nothing in the record leads us to conclude it could not have been discovered within the appropriate time limits. The trial court properly struck the affidavit and did not abuse its discretion by denying Martin’s motion to correct error."
The Paternity of M.S.M.; Michael Scott Murphy v. Susan A. Way (NFP) - "Appellant-Petitioner, Michael Scott Murphy (Father), appeals the trial court’s Order denying his Petition to Modify Custody. We affirm."
NFP criminal opinions today (7):
Ind. Gov't. - East Chicago case an issue in campaign for AG seat
Joe Carlson reports today in the NWI Times in a story that begins:
The two candidates for Indiana attorney general are sparring over the role a public construction contractor could play in the upcoming racketeering trial against former East Chicago city officials.
Chief Deputy Attorney General Greg Zoeller, whose office is prosecuting the civil case, said employees of the contractor will play a "critical" role in the trial -- which could mean company officials probably will want their attorney, Linda Pence, at their side during the case.
Pence is the Democratic candidate for attorney general, and Zoeller is the Republican candidate. The election is in November, and a trial date for the case has not yet been set.
"If you've been involved in a specific case ... you can't represent both sides," Zoeller said.
Pence brushed aside questions of whether she could have a conflict of interest in the case, adding that she was "amazed" that the current administration has delayed the trial so long that allegations from 1999 are a campaign issue in 2008.
"If there's judged to be a conflict of interests, it will not take me seven to nine years to find outside counsel and finish the case," Pence said.
Ind. Courts - "Despite protest and possible legalities, Randolph to build courthouse annex"
When last we hear of the Randolph County Courthouse project, it was July 16th and the Muncie Star-Press had thrown up its hands in an editorial titled "It's time for courthouse saga to come to an end."
Today the always excellent Joy Leiker of the Star-Press, whose beat appears to center on the Randolph County Courthouse and CAFOs, reports:
WINCHESTER -- Attempts to stop or change the Randolph County Courthouse project have failed, and on Monday county commissioners voted 2-1 to continue plans to renovate the existing courthouse, add an annex and build an elevator tower to connect the old and new.The Star-Press story today includes an artist rendering of the Courthouse with the proposed annex.
It's a plan county officials have long envisioned, but failed to execute. They last voted on the same idea in March 2007.
But even now, this latest vote is not a clear ticket to construction. * * *
[A]ctual construction is months away. Architect Ron Ross said that the earliest commissioners are likely to review and possibly award a construction contract is their Oct. 20 meeting.
In the meantime, there's a legal fight and interpretation game to be settled on the board of zoning appeals' denial of a variance for the project, and specifically on wording in the Unified Zoning Ordinance.
Today's online main story is accompanied by a sidebar labeled "Legal opinions aplenty":
As Randolph County commissioners voted to pursue their preferred plan Monday, an annex on the downtown square next to the existing courthouse, a legal battle remains. Can the project continue as planned, or does the county still need a variance from the board of zoning appeals?
The south side of the proposed annex is less than 25 feet away from the Franklin Street right of way, and when the county sought a variance to build as planned, the board of zoning appeals denied it.
Since then, County Attorney John Tanner has contended the county never needed a variance, because the setback rules only apply on Main Street, or the courthouse's front side.
Area Planning Commission Executive Director Cathy Flatter and APC attorney Bob Oliver disagree, and insist there are setbacks on all four sides of the courthouse square.
Tanner asked an attorney from Baker and Daniels in Indianapolis, the firm hired as bond counsel for the courthouse project, to review the Unified Zoning Ordinance. Steven Hardin from Baker Daniels agreed with Tanner that the setback only applies on Main Street.
Tanner also sought the opinion of Meeks Cockerill, the attorney for the city of Winchester. In a letter Monday Cockerill wrote that Hardin's position "would be a legitimate interpretation" of the ordinance and that Oliver's position "is supported by certain sections of the ordinance."
The final interpretation might come down to a request for a declaratory judgment by a court judge. And if that happens, one thing is certain -- Randolph County judges won't want to make the decision.
Courts - "Ohio Judges See More Do-It-Yourself Divorces and System Slowdown "
A long AP article today, posted by Law.Com, reports:
With the economy down and the cost of lawyers high, more people are choosing to represent themselves in divorce cases. But legal amateurs who struggle with complicated paperwork are slowing down an already clogged system, some judges say. * * *Indiana has taken a different route. The Supreme Court several years ago created a self-service legal center online, with divorce and other court forms, information on how to find a lawyer, etc.
Legal information is widely available in bookstores and on the Internet for couples looking to save money. Legal fees for the simplest dissolution, not involving children, are about $1,000, Columbus, Ohio-area lawyers say. Dissolutions with children start around $1,500. * * *
Self-representation is an absolute right. But it slows an already-clogged system that isn't designed for amateurs, said Judge James Mason of Franklin County Domestic Relations Court.
"It's an ever-increasing problem," Mason said. "Some of these cases just need so much massaging."
His bailiff estimates that pro se filings, relatively unusual a decade ago, now amount to more than a third of Mason's cases.
"There's definitely more self-represented people, but I wouldn't say it's bogging us down," said Lisa Dwenger, administrator of the Hamilton County Court of Domestic Relations in Cincinnati. "I would say it is challenging for magistrates and judges because they have to hold them (pro se filers) to the same standards as attorneys, and that's difficult because they don't have the same training." * * *
Dwenger said the Ohio Supreme Court is helping county court administrators deal with the problem of pro se filers seeking free legal advice.
"What tends to happen is that a self-represented person tends to ask more questions of our staff," she said.
Staff may direct unrepresented filers on certain procedures but cannot offer legal advice. The Supreme Court sent a representative to Cincinnati for a workshop on how to deal with questions, Dwenger said.
"We try to do what we can to keep our people from saying the wrong thing," she said.
Mason said domestic court officials in Franklin County plan to set up a center at the court this year to provide information on self-representation, initially offering packets on simple cases such as uncontested divorces and dissolutions without children.
A quick search has not turned up similar state-court sponsored, official self-help legal sites in Ohio, Illinois or Kentucky. However, an ILB entry from Sept. 4, 2007 quotes from a LCJ story that Legal Aid in Louisville is offering do-it-yourself divorce packets.
Ind. Courts - Still more on: Allen Circuit Court Judge Thomas J. Felts arrested in Indy
Rebecca S. Green of the Fort Wayne Journal Gazette reports today:
Allen Circuit Judge Thomas Felts was at work Monday handling domestic relations cases, days after his arrest in Indianapolis on a drunken-driving charge.For more on the distinction between a Public Admonition and a Public Reprimand, see this ILB entry from July 19th.
But whether he will return to his other duties handling the county’s felony criminal cases related to alcohol is a matter being discussed.
Felts was arrested early Friday just off Monument Circle in downtown Indianapolis on a charge of public intoxication and operating a motor vehicle while intoxicated, both misdemeanors. * * *
Felts said he is due to appear in a Marion County court for an initial hearing Wednesday.
One week a month, Felts trades weekly calendars with Circuit Magistrate Craig Bobay, handling domestic relations cases. This was one of those weeks, Felts said. * * *
The Indiana Commission on Judicial Qualifications could still weigh in on the matter, and according to Meg Babcock, counsel for the commission, the commission does not need a formal complaint to do so. She declined to comment on Felts’ case.
If the commission decides to do so after it completes its inquiry, it can file formal charges with the Clerk of the Supreme Court, as it did last week against Allen Superior Judge Kenneth Scheibenberger. He is accused of cursing at the family of a defendant in another courtroom. Scheibenberger believed the defendant sold his late son drugs.
The commission can also take another route, Babcock said. Instead of filing formal charges, the commission and the judge can reach an agreement for a public admonishment, she said.
Such was the case in May against Carroll Circuit Judge Donald Currie, who was arrested in December on a charge of public intoxication. He was not charged with formal misconduct, according to records of the Indiana Commission on Judicial Qualifications.
Ind. Law - More on: Pesky artists at both ends of the state
In the past year, the city has designated the Goosetown area around the old Alhambra Theatre as the Haynie's Corner Arts District, hoping to see the neighborhood blossom into an area where artists take up residence, create art, and attract people there to shop and enjoy the atmosphere.
To accomplish that, the city not only has created incentives to encourage artists to buy and fix up the older homes in the neighborhood, but it also has shaped zoning law so that it will permit artists to open galleries in their homes there. Otherwise, operating businesses out of residences would not be permitted.
For the permits, the city requires artists/owners to pay $200 plus postage for certified letters to inform their immediate neighbors of the request for the permit and of a hearing date. * * *
The zoning law has restrictions on how much of a residence may be used for the gallery and on the size of signs. The artwork must have been produced at the residence, the art of no more than three artists can be offered for sale at any one residence, and one of the artists must live at the residence.
McBain reported that thus far, the only special use permit sought and approved was for Tom Loesch Jr., sales manager for artist Billy Hedel, to operate a gallery at their home at 916 SE Second St.
One other gallery owner quoted by McBain, William Sovern, said he doesn't like some of the restrictions, particularly the one that restricts sales to three artists at any one time. He said he could never have a group show.
If you don't like any of the restrictions, talk about it with the city and other gallery owners, but don't ignore the process. It seems to us that the city and the arts community want to make this a successful endeavor and would at least listen to concerns.
As City Council member Keith Jarboe, who has led the push for the district, said, he was surprised that artists were not seeking the permits, because the creation of the special use permit was driven by the arts community.
"They indicated this is what they needed," Jarboe told McBain. "Now that we've provided the vehicle for them to do this, they need to step up to the plate and become legal."
Indeed they do.
Ind. Law - More on: Grand jury returns indictment in Jeffersonville "road rage" case
A six-member Clark Circuit Court grand jury spent last week reviewing evidence and witness testimony from the June 17 shooting in Jeffersonville before indicting Parrish on charges of aggravated battery and criminal recklessness.
In a three-page grand jury report read by Judge Abe Navarro, the grand jurors said that while the man who was shot -- Wesley Mosier, 52, of Corydon -- "clearly was not without fault … the deadly force used by (Parrish) was unreasonable under the circumstances."
Brian Butler, Parrish's lawyer, said his client had mixed reactions. She was pleased the grand jury didn't indict her on an attempted murder charge, he said, but she still faces trial on the lesser charges. "She's claimed all along that she had no choice" and acted in self-defense, he said.
Butler said that while the indictment means there was cause to believe Parrish committed the offenses, a trial jury would have to find beyond a reasonable doubt that she had not acted in self-defense in order to convict her.
"That's a far higher standard" for the prosecution to prove, he said.
Monday, July 21, 2008
Environment - Update on: Mary Gade, regional administrator of U.S. EPA Region 5, resigns
CHICAGO, July 21 /PRNewswire-USNewswire/ -- EPA Administrator Stephen L. Johnson today announced the appointment of Lynn Buhl to serve as Regional Administrator for EPA Region 5, which encompasses Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin. Bharat Mathur, EPA's Acting Regional Administrator since May of 2008, will resume his position as Deputy Regional Administrator.
"As an attorney and public servant for over 20 years, Lynn brings both leadership and experience in environmental regulation and enforcement to this position," said Johnson. "EPA is lucky to have Lynn, and I would like to thank Bharat for his continued service to the agency and the nation." * * *
Buhl, a native of Missouri, holds a bachelor's degree from the University of Virginia, and a J.D. from Wake Forest University School of Law.
Ind. Law - Longtime legislative attorney John Bremer, 86, dies
From the July 20th Indianapolis Star obituary:
John was an attorney from May 1, 1971 and retired in Nov. 1, 1992. His work mostly involved drafting bills and doing legal research for the legal services agency. He was Parliamentarian for the House of Representatives during the First Session of the 1973 General Assembly, an attorney for the House of Representatives from January to April 1971.John also compiled and edited Constitution Making in Indiana, Volume IV, 1930-1960, published in 1978.
Many of us had hopes Volume V, 1960-2000, was on its way.
Ind. Courts - 7th Circuit issues one Indiana opinion today
In Diana L. Vail v. Raybestos (SD Ind., Judge Young), a 10-page opinion, Judge Flaum writes:
Diana Vail is a former employee of Raybestos Products Company. Vail suffers from migraine headaches, a condition that required her periodically to take medical leave from her job there. In October 2005, Raybestos fired Vail for abusing her leave. Clandestine surveillance had caused Raybestos to suspect that, while supposedly on leave, Vail had actually been working for a family business. This lawsuit followed, alleging that Raybestos had violated both the Family Medical Leave Act, 29 U.S.C. § 2601, et seq., and the terms of a collective bargaining agreement covering Vail. Following discovery, the district court granted Raybestos’s motion for summary judgment on both counts. This appeal followed, and for the reasons set out below, we affirm. * * *
Though the use of an off-duty police officer to follow an employee on leave may not be preferred employer behavior, employers have certainly gone further than Raybestos. See, e.g., Kariotis, 131 F.3d at 681 (hiring private investigators to videotape employee). In any event, the information gleaned from Sergeant Largent’s reconnaissance was sufficient to give Raybestos an “honest suspicion” that Vail was not using her leave “for the intended purpose.” Vail had taken medical leave for her October 6, 2005 evening shift. The next morning, the off-duty police officer saw Vail working for her husband’s lawn-mowing business. Raybestos received this information after it already suspected that Vail was gaming her leave in order to work for her husband’s business. So when it heard information consistent with what they suspected she was doing while on leave, Raybestos decided to terminate her. Vail’s call later that day—after a day of mowing under Sergeant Largent’s gaze—stoked this suspicion. As a result of this “honest suspicion,” Raybestos did not violate Vail’s rights under the FMLA.
Ind. Law - Grand jury returns indictment in Jeffersonville "road rage" case
The Jeffersonville News & Tribune has an early report that begins:
A Clark County Grand Jury this morning indicted Yalanda Parrish of Jeffersonville for her role in a road-rage shooting last month.For background, start with this July 15th ILB entry referencing the 2006 law providing that "a person does not have a duty to first try to flee before using deadly force to defend against someone breaking into his home or car." See also this entry from August 7, 2006 and its two links to a Kentucky trial.
Parrish, 39, admitted to shooting Wesley Mosier Jr., 52, of Corydon at 10th Street and Allison Lane following a dispute.
She is charged with class B felony aggravated battery and class C felony criminal recklessness.
For the B felony, the six jurors decided Parrish “did knowingly or intentionally inflict upon Wesley L. Mosier injury that created a substantial risk of death and/or caused serious permanent disfigurement ... and did so by shooting Wesley Mosier in the chest area with a handgun.”
Ind. Courts - Union County receives $7,000 from Public Defender Commission
From a press release on the Indiana Courts site.
Ind. Decisions - Court of Appeals issues 2 today (and 2 NFP)
For publication opinions today (2):
In Jason J. Green v. Laura S. Green , a 19-page opinion, Judge Vaidik writes:
In the third time this child custody case has been before this Court, Jason J. Green (“Father”) appeals the trial court’s denial of his petition to modify custody of his son, B.G., who relocated to Iowa in 2005 with his mother, Laura S. Green (“Mother”). Although we conclude that the trial judge, who is the second judge to have reviewed this case, did not abuse his discretion in denying Father’s petition to modify custody of B.G., who has now been living in Iowa with Mother for three years, we do conclude that the judge abused his discretion in decreasing Father’s parenting time and ordering him to pay a portion of Mother’s attorney fees. We therefore affirm in part, reverse in part, and remand.In Jeffrey L. Cain, M.D. v. Richard and Suzette Back, a 22-page opinion, Judge Robb writes:
Following a jury trial, Dr. Jeffrey Cain, M.D., appeals the trial court’s judgment awarding Richard and Suzette Back $800,000 in damages on their claim of medical malpractice relating to the stillbirth of their daughter, C.B. On appeal, Dr. Cain raises two issues, which we restate as 1) whether the trial court properly excluded opinion testimony from two treating physicians and 2) whether the trial court properly excluded letters that the Backs’ counsel wrote to the same two treating physicians shortly before trial began. Concluding that the trial court did not abuse its discretion in excluding the opinion testimony or the letters, we affirm.NFP civil opinions today (2):
Eric Goetz, Eric Goetz Master Builder, Inc. v. Christopher and Beth Boyer (NFP) - "When we deem a specific argument to lack cogency or find that assertions and alleged facts lack any citation or reference to the record, we will find such arguments waived. See Ind. Appellate Rule 46(A)(8)(a) (“The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citation to authorities, statutes, and the Appendix or parts of the Record on Appeal.”); Carter v. Indianapolis Power & Light Co., 837 N.E.2d 509, 514 (Ind. Ct. App. 2005) (waiving issue where party failed cite to the record or authority to support its argument), trans. denied. Although we proceed to address the majority of the issues on the merits here, we remind counsel to provide briefs with adequate citations as contemplated by Indiana Appellate Rules 22 and 46.
"Goetz’s appeal survives the Boyers’ motion to dismiss, but some arguments are waived for failure to comply with appellate rules. We reverse in part in line with our interpretation of the construction contract. We remand for the trial court to enter an order for an additional $35,598.22 payable to Goetz. The findings and conclusions are otherwise adequately supported and the remainder of the judgment is not clearly erroneous. The judgment of the trial court is affirmed in part, reversed in part, and remanded."
Term. of Parent-Child Rel. of T.E.M.; Rusty Shannon v. Madison Co. Dept. of Child Svcs. (NFP) - "A trial court’s termination of parental rights will be reversed only upon a showing of clear error, that is, one which leaves us with a definite and firm conviction that a mistake has been made. In re M.M., 733 N.E.2d at 14. We find no such error here. The trial court’s judgment terminating Shannon’s parental rights to T.E.M. is therefore affirmed."
NFP criminal opinions today (0):
Ind. Courts - "Tax accounting trio unsung heroes in region's public corruption fight"
Andy Grimm of the Gary Post-Tribune has an interesting report today featuring the FBI tax accountants behind the Lake County anti-corruption efforts. The story begins:
If you follow Northwest Indiana's colorful, larcenous political history, you know the names: Operation Bar-Tab, Operation Lights Out, Operation Restore Public Integrity.
By one name or another, federal investigators have taken down elected officials and political players for decades: judges who fixed tickets for cash, mayors who took kickbacks on municipal projects, insiders who took money for the judicious use of clout.
The common thread that binds them, and the one that hung them out to dry, are a trio of tax accountants you've never heard of: Harry Bigda, Paul Drapac and Al Johnson.
For a combined 120 years, the three IRS revenue agents have burrowed through reams of documents like moles in a flower bed, looking for the ill-gotten gains of public officials and their cronies.
Bigda retired in January, Drapac earlier this month, and Johnson -- the senior member of the trio with 42 years -- will wind up his career in August.
"It's a tremendous loss. These three guys have been with me since the first day," said U.S. Attorney David Capp, who led Operation Lights Out in the 1980s and took over Restore Public Integrity this year when he was appointed to replace Joseph Van Bokkelen.
"To me they are the heart of our public corruption efforts, these behind-the-scenes guys, doing the heavy lifting."
Behind-the-scenes doesn't begin to describe the workplace the three shared in the basement of the Hammond federal building, a windowless room stacked with over-stuffed banker's boxes.
Courts - "Med school for judges: A crash course in medical litigation"
A long and very interesting article in the American Medical News, reported by Amy Lynn Sorrel. Here is a quote from within the article:
After getting a rare, behind-the-scenes look at the case, judges got a chance to address their own questions to the doctors, scientists, lawyers and fellow judges participating in the scenario and others like it.The long article concludes:
The occasion was the National Judges' Medical School, held at the Indiana University School of Law-Indianapolis in May. The mission: to equip judges with better knowledge of medical science to help them interpret complex health care cases.
Established more than two years ago, the program evolved from the Human Genome Project, funded by the National Institutes of Health, and the Einstein Institute for Science, Health and the Courts, a nongovernmental organization sponsored by the U.S. Dept. of Justice. The medical school is part of a larger initiative -- the Advanced Science and Technology Adjudication Resource Center, or ASTAR, based in Washington, D.C. -- that also educates judges on how to sort through other types of scientific evidence that arise in civil and criminal cases. More than 200 state and federal judges participate from 39 jurisdictions across the country.
Doctors hope the school offers judges insight into medical science and decision-making to bridge the gaps between medicine and the law. They share a common goal with judges: preventing unreliable or "junk" science from derailing the judicial process. * * *
The Indianapolis judges' school prepped participants with a crash course in litigation involving medical errors, where judges observed staged trials and sifted through clinical studies. They also peered into simulated conversations over treatment decisions among doctors, a patient, a health insurance executive and a hospital ethics committee.
The previous judges' med school -- and also the first, held at the University of North Carolina at Chapel Hill School of Medicine in 2006 -- focused on cancer.
Armed with their newfound knowledge, the 233 judges expected to complete the ASTAR advanced science training by the end of 2008 will serve as resources for fellow judges in their jurisdictions and help train the next generation of selected judges. The ASTAR program is free for invited participants.
The project aims to develop a corps of 500 active, specialized judges by 2010. Zweig, ASTAR's president, said it is up to individual states to create a system for deploying the judges.
ASTAR's board chair, Chief Judge Robert M. Bell of Maryland's Court of Appeals -- the state's highest level -- said the high court may establish a separate track to manage complex cases involving novel evidence and assign one of its 39 ASTAR-trained judges to those cases.
In Ohio, Chief Justice Moyer said the state Supreme Court is contemplating rule changes that would help courts identify its troop of 35 trained judges and encourage courts to appoint those specialized judges to appropriate cases.
Moyer hopes the medical profession "will find comfort in the fact that there is a developing group of judges who understand enough about the science of medicine to be better gatekeepers. ... Because at the end of the day, what we all want is for the judgment to be based on the very best information available."
Ind. Courts - "Procedure not followed in slander lawsuit, say attorneys"
Sophia Voravong of the Lafayette Journal & Courier reported July 19th in a story that begins:
A Tippecanoe County judge will decide whether a Lafayette man can proceed with a defamation lawsuit against the city over remarks a city councilman made to the man's employer.
Donn Brown, a driver for CityBus, filed the civil complaint -- specifically for slander -- in February in Tippecanoe Circuit Court. He is asking for $715,000 in punitive damages.
But during a hearing Friday afternoon, Indianapolis attorney John Roy argued that the lawsuit should be dismissed. Roy and city attorney Ed Chosnek are representing Lafayette in the case.
"He did not give us notice of tort claim. He simply brought forth the lawsuit," Roy told Judge Don Daniel. "In fact, we did not know about the lawsuit until it was filed."
Daniel did not make a decision on Friday.
Ind. Courts - Trouble in paradise? "Lawsuits flying in Ogden Dunes"
Joe Carlson reports in the NWI Times in a story that begins:
OGDEN DUNES | The calls of gulls and the gentle lapping of Lake Michigan waves belies a thorny and expensive legal battle brewing in this shoreline town.
The conflict centers on vacation rental homes, and specifically the practice of renting lakefront homes to strangers for short stays of less than a month.
Ogden Dunes officials say it violates local zoning laws by turning residential homes into lucrative commercial businesses for the owners, in the process threatening to turn the close-knit town into a resort area.
The town says violations carry penalties of $2,500 per day, which could amount to more than $100,000 in fines for one home.
But the home's owners, Lauren and Steven Siwinski, of Highland Park, Ill., say the town's supposed "crackdown" on short-term rentals is unfair because town officials are selectively targeting rentals by people who have second homes in Ogden Dunes.
Ind. Courts - More on handling of drug forfeiture cases in Delware County
Another long story today by Rick Yencer in the Muncie Star-Press about the Delaware County drug forfeiture cases. Today's story begins:
MUNCIE -- Mark McKinney maintains he has not "done anything wrong" in accepting payment for work on civil forfeiture cases after taking office as Delaware County prosecutor in January 2007.The most recent earlier ILB entry was July 18th.
"That was for work I did before I took office," McKinney, who was a deputy prosecutor for several years before his November 2006 election, said during a Friday interview. "I never billed the city for anything after I took office."
Ind. Courts - "After trials, one Lake County town judge changes practices"
Joe Carlson reports today in the NWI Times in a story that begins:
LOWELL | After hearing in recent federal trials about the hijinks involving court-ordered alcohol counseling, Town Court Judge Thomas Vanes decided to stop ordering his defendants to attend sessions at for-profit centers.
"I don't want to be in a position of ordering them to put money in a crony's pocket," Vanes said.
Not that Vanes feared perceptions about whether he was personally helping a "crony" with his own court orders.
Rather, he said after the recent court cases of Robert Cantrell, Deborah Riga and Nancy Fromm, he has grown weary of trying to untangle which firms are associated with various political players across Lake County.
His solution? He now is ordering defendants charged with drunken driving in his court to attend sessions with Alcoholics Anonymous, which are free.
Law - "Perverted Justice" praised in Kentucky
"Online sex stings in Kentucky win praise" is the headline to a lengthy story by Jason Riley Riley in today's Louisville Courier Journal. Some quotes:
[Twenty-eight men were] arrested in Kentucky between late 2006 and 2007 in three Internet sex stings set up by the citizen watchdog group Perverted Justice in consultation with local law enforcement.
As part of the sting, Perverted Justice members pretend to be young teenagers while corresponding online with men who vividly described sexual acts they would like to perform -- sometimes sending sexually graphic photographs or video via the Internet -- and then arrange to meet at the child's home.
When the men come to the address given, they are arrested by local law enforcement.
While some states have had mixed results with the so-called "predator" cases, made famous by Dateline NBC's "To Catch a Predator" segments, Kentucky's were deemed a success by all involved -- and have led to some of the longest sentences in the country.
The message was, "Don't come here to Campbell County and do this; you're going to go to prison," said Assistant Commonwealth's Attorney Michelle Snodgrass. Convictions there sent three men to prison for five years each, one for nine years and a fifth for 10 years. "Our experience with Perverted Justice was incredible. We had no problems."
Of the 28 Kentucky defendants caught up in the stings, all but three cases already have resulted in felony convictions.
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This week's oral arguments before the Court of Appeals that will be webcast:
This week's oral arguments before the Court of Appeals that will NOT be webcast:
Sunday, July 20, 2008
Ind. Law - Lake County "Access to Justice" Award will be presented posthumously
From the Gary Post-Tribune:
GARY -- The "Access to Justice" Award will be presented posthumously to the late attorney Gary Weiss and his law firm Weiss and Schmidgall for providing free legal services to low-income people. A ceremony is planned for Bennigan's Restaurant at U.S. SteelYard in Gary on Tuesday.This April 30th ILB entry, headed:"Well-known Merrillville attorney killed in car crash," reports on Gary Weiss' death.
Fourteen local attorneys were also recognized for donating free legal work.
Ind. Courts - Yet more on "Judicial candidate's registration in question"
A squabble over who should be on the ballot in the race for Clark Circuit Court judge has presented a new test for a state election agency that critics say is set up to fail because of its partisan makeup.See also this ILB entry from July 7th, which references the Feb. 1, 2007 Court of Appeals decision in the case of J. Bradley King and Krisi Robertson in their official Governmental capacities as Co-directors of the Indiana Election Division, et al. v. Leo T. Burns, et al.
But supporters say the Indiana Election Division maintains fairness between the political parties.
The division — part of the Secretary of State's office but not answerable to its elected head — is both partisan and bipartisan in its structure. It has two employees at every position — one Republican and one Democrat — including co-directors, attorneys and even receptionists.
And the Indiana Election Commission that the agency staffs is split with two members from each of the major parties.
It's a system that can result in conflicting advice for candidates and deadlocked votes on issues, leaving key campaign questions and problems to be resolved in court.
"It's a completely dysfunctional body," said Julia Vaughn, policy director for Common Cause Indiana. "I don't think it's accidental. Politicians aren't well served by a well functioning regulatory body."
But those who work within the system say they strive for cooperation and fairness as they interpret and enforce the sometimes confusing laws that govern campaigns and elections. * * *
Now, the co-directors must decide — and must agree — on whether the names should be certified to put on the ballot. If they can't agree, a judge will likely step in, said Republican co-director Brad King.
"That's a remedy when there's a dispute," King said.
Legal recourse has been used before. In 2004, two judges issued conflicting orders about whether Republican Brooks LaPlante, a legislative hopeful from Terre Haute, could replace a previous candidate who wanted to withdraw from the ballot. The agency's co-directors disagreed on the question.
Eventually, a judge ordered then-Democratic Co-Director Kristi Robertson to certify LaPlante's name, over her party's objections.
Ind. Courts - Hamilton County may need new juror questionnaire envelopes
A reader has sent me the envelope to a mailing from the Hamilton County Administrator of Courts. The envelope states OFFICIAL JURY QUESTIONNAIRE and warns "Your reply is required within ten (10) days by Indiana Law (IC 33-4-11-16)."
The problem? IC 33-4-11-16, if you try to look it up, has been repealed. All of Title 33, Courts and Court Officers (Articles 1-21), was repealed in 2004 by a recodification of Title 33.
Does it make a difference that the requirement now has a new citation and most people would have difficulty finding it, or might even conclude that the requirement no longer exists? Apparently not, according to IC 33-22-1, "Effect of Recodification of Title 33."
Saturday, July 19, 2008
Ind. Courts - More on: Allen Circuit Court Judge Thomas J. Felts arrested in Indy
Allen Circuit Judge Thomas Felts, who handles the lion’s share of Allen County’s alcohol-related criminal cases, was arrested in Indianapolis early Friday on drunken driving and public intoxication charges.Background: In late May, the Indiana Commission on Judicial Qualifications issued a Public Admonition of Judge Donald Currie, Carroll Circuit Court. See the May 27th ILB entry here.
When an Indiana Capitol Police officer pulled Felts’ black Lincoln over for failing to use a turn signal on West Market Street, the 53-year-old judge backed into the police car, according to a report from the Indiana State Police.
After Felts failed a field sobriety test, he provided two invalid breath tests and was charged with refusal, according to the report.
Police obtained a search warrant from a Marion County Superior Court judge and took a sample of Felts’ blood at Wishard Memorial Hospital in Indianapolis. The blood sample will be turned over the Indiana University Department of Toxicology for analysis, according to the report.
No information about his blood-alcohol content was available Saturday.
Felts was booked into the Marion County Jail’s Arrestee Processing Center about 4:40 a.m. Friday on misdemeanor charges of operating a motor vehicle while intoxicated and public intoxication. He was then released 11 hours later on his own recognizance.
When reached at his Fort Wayne home Saturday, Felts said he regretted the situation.
“I defer to and respect the system that has been set up to resolve these matters,” he said.
Elected to the bench in 2002 after serving as the Circuit Court magistrate since 1989, Felts is again running for the Circuit Court seat. As the county’s sole Circuit Court judge, Felts handles both civil and criminal cases. In Allen County, most of the drunken driving cases and other alcohol-related offenses are handled through Felts’ court.
On May 31st, 2007, the Supreme Court has issued a 2-page public reprimand of John F. Hanley, Judge of the Marion Superior Court, who was arrested for DUI on Dec. 4, 2006. See the ILB entry here.
The May 27th entry notes:
There is a distinction between when to issue a Public Admonition and when to proceed to a Public Reprimand. The Judicial Disciplinary Opinions page, where the opinion re Judge Hanley is found, provides: "When the Qualifications Commission files formal charges against a judge, judicial officer, or judicial candidate, only the Supreme Court may resolve the case, either after the Commission and the judge enter into a settlement agreement or after a panel of Masters preside over an evidentiary hearing and report to the Court."This ILB entry from Dec. 7, 2006 quotes from an Indianapolis Star story that notes: "Since 1986, the Indiana Supreme Court has sanctioned five judges accused of drunken driving" and then lists the judges.
Ind. Courts - "Case in jeopardy because of typos"
Kevin Lilly, Logansport Pharos-Tribune news editor, reported Friday:
A typographical error might have jeopardized the prosecutor’s case against a man accused of having sex with a Cass County teenager and getting her pregnant.
In a hearing in Cass Circuit Court Thursday, Judge Leo Burns listened to arguments from the defense and prosecution on the matter of mistakes made in the charging information filed by the Cass County Prosecutor’s Office against 23-year-old Jesse Alan Philapy of Kokomo.
Philapy is accused of having consensual sex with a 15-year-old. The teen became pregnant and gave birth to Philapy’s child. He was arrested July 19, 2007, and charged with class B felony sexual misconduct with a minor.
In May, defense attorney Randy Hainlen formally objected to the latest attempt by the prosecution to amend the charge.
The charging information contained errors, including an incorrect last name for the victim. The prosecution changed it once, but the second filing had mistakes as well. The defense was trying to block the third attempt at altering the document.
Age is the main concern at this stage in the case.
The time frame of the alleged sexual act is currently stated as August of 2007, not 2006, as reportedly intended by Chief Deputy Prosecutor Lisa Swaim.
The charge of sexual misconduct with a minor is age sensitive.
If the incident occurred in 2006, the girl would have been 15, thus constituting a crime. If it occurred in 2007, as stated in the charging information, she would have been 16, which would not be a crime, Hainlen said.
Hainlen says the prosecution missed the deadline for changing the charging information, and he wants the request for amendment dismissed.
Swaim said the change was a matter of form because it would not prejudice the defendant’s rights. The mistakes were typographical errors, Swaim argued. The charge itself would remain the same. * * *
Both sides submitted case law for the judge to consider. Burns said he would rule on the matter Friday, but had not prior to the courthouse closing for the weekend.
Ind. Law - Bloomington attorney Sylvan W. Tackitt, 99, dies
From the Bloomington Herald-Times, this story:
Longtime attorney Sylvan W. Tackitt, 99, died Thursday at Bloomington Hospital.
Tackitt had been a Bloomington attorney since 1933 and continued to maintain a law office in the downtown area. In June 2005, Tackitt received the 50-year award from the Fellows of the Indiana Bar Foundation.
He was born in Banta, in Morgan County, and was a Martinsville High School graduate. He went on to graduate from Indiana University and earlier this year received the Golden Barrister Award from the Indiana University School of Law.
During his career, Tackitt served as county attorney from 1964 to 1965 and was Monroe County prosecuting attorney from 1942 to 1945.
Ind. Law - Pesky artists at both ends of the state
On July 11th the ILB posted this entry, headed "Ind. Law - "Artist asks Valparaiso board to define vendor policy."
Today from Evansville, this story in the Courier & Press by Roger McBain, headlined "Permits lacking in Evansville's Arts District." Some quotes:
Nearly eight months after the City Council passed a zoning law permitting artists living in the Haynie's Corner Arts District to sell their work from their homes, only one gallery has applied for a permit.
In that same time, however, artists appear to be operating galleries from their residentially zoned homes, at least on a part-time basis, without permits and in violation of law.
Last month the Board of Zoning Appeals approved the first and, so far, only special use permit, for Tom Loesch Jr., sales manager for artist Billy Hedel, to operate a gallery from the home they share at 916 SE Second St.
The process cost them $200 "plus some postage" for certified letters to notify our immediate neighbors of their request and the hearing, says Loesch. Under terms of the permit, they can use 40 percent or up to 500 square feet of their home, whichever is less, to show and sell works of up to three artists, at least one of whom must live at the address.
Their gallery must sell art produced on the site, and their sign (which they haven't put up yet) can measure no more that 10 square feet.
In the meantime, other home galleries have sprung up, mainly on Adams Avenue in the area designated the Haynie's Corner Arts District in October 2006, but without seeking the special use permit required by the ordinance.
Several home venues are featured on the First Saturday Art Walk, a monthly art reception and sale coordinated by William Sovern, an artist and poet who operates the Poet House & Art Emporium from his home at 106 Adams Ave. The next tour is set for Aug. 2.
Sovern says he intends to continue selling art and hosting art receptions from his home, but he isn't sure whether he will apply for the special use zoning permit.
He doesn't like some of the restrictions in the special use permit ordinance, he explained, especially one that only allows work by at most three artists, one of whom must be a resident, to be offered for sale at any time.
"You could never have a group show," he pointed out.
City Council President Keith Jarboe, who championed the arts district designation and the special use permits, is surprised more artists haven't applied for them.
Like the arts district designation, the special use permit for artists "was all community driven, by the arts community," he said.
"They indicated this is what they needed. Now that we've provided the vehicle for them to do this, they need to step up to the plate and become legal."
Ind. Courts - Allen Circuit Court Judge Thomas J. Felts arrested in Indy
Jeff Wiehe of The Fort Wayne News-Sentinel reports this morning:
An Allen County judge charged with operating a vehicle while intoxicated and public intoxication allowed his black Lincoln to coast backward into a squad car in downtown Indianapolis early Friday morning, according to police.
Allen Circuit Court Judge Thomas J. Felts, 53, was pulled over after failing to signal a turn on West Market Street near Monument Circle about 3 a.m., according to Indiana State Capitol Police, an arm of the Indiana State Police that specializes in patrolling downtown government facilities in Indianapolis.
When Felts pulled over to stop he put the car in reverse instead of park, according to police, causing his car to hit the squad car behind it. According to police, Felts failed a field sobriety test and refused to take a breath test.
Police ordered a blood draw, but Felts’ blood-alcohol content was not available Friday night. * * *
Felts is running for re-election to a six-year term in November.
Friday, July 18, 2008
Ind. Decisions - Transfer list for week ending July 18, 2008
Here is the Indiana Supreme Court's transfer list for the week ending July 18, 2008. Note that there are four pages.
No transfers are granted.
Over four years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)
For publication opinions today (3):
In Indiana Dept. of Environmental Management v. Construction Management, LLC; et al , a 13-page opinion, the issue was whether the company's water supply system, under which each individual apartment building is supplied by a separate well, met the 327 IAC 8-2-1(60)* definition of a "public water supply." According to the trial court:
the Complex has twelve wells serving twelve buildings and that none of the wells have at least fifteen service connections and none of the buildings have at least twenty-five people. In other words, the trial court considered each building and well separately as if the buildings were not part of a phase of an apartment complex.IDEM initially sought to treat the Complex as maintaining one public water system. According to the opinion, it now treats Hilltop Farms I and II as maintaining two public water systems in response to a request from Hilltop Farms I and II.
Judge Vaidik writes beginning at page 9:
IDEM’s interpretation of 327 I.A.C. 8-2-1(60) is that six wells unconnected to one another but each serving separate buildings of a phase of the Complex together constitute a public water system. IDEM’s interpretation of 327 I.A.C. 8-2-1(60) hinges on the meaning of “system,” a term undefined in the statute. In its brief, IDEM defines “system” as the “[o]rderly combination or arrangement, as of particulars, parts, or elements into a whole; especially such combination according to some rational principle. * * *______________
IDEM’s definition of “system,” as it applies to 327 I.A.C. 8-2-1(60), is reasonable. Moreover, Webster’s Third New International Dictionary defines “system” as “a group of devices or artificial objects forming a network or used for a common purpose.” Webster’s Third New International Dictionary 2322 (1993). Although this definition recognizes some systems as having a connection between individual objects, its second use of the disjunctive “or” clearly indicates that, when used for a common purpose, a connection between objects is not necessary. Under both Black’s and Webster’s definitions, the wells at Hilltop Farms I and II need not be connected to be considered “systems.” IDEM’s interpretation of 327 I.A.C. 8-2-1(60) is reasonable because it applies the common and ordinary meaning of “system.” * * *
The trial court concluded in its decision on IDEM’s motion to reconsider that the only ascertainable standard in 327 I.A.C. 8-2-1(60) is whether there are at least fifteen service connections or at least twenty-five people served daily more than sixty days a year. It stated that IDEM “appears to have . . . expanded [the definition of a public water system] to include some measure of ownership, or operation or proximity, without the usual process of notification and adoption as part of the regulatory scheme.” Accordingly, the trial court ruled that IDEM provided no fair warning of the “additional standards” of ownership, operation, and proximity and therefore could not adjudicate the statuses of Hilltop Farms I and II as public water systems using those standards.
Although IDEM argues that ownership, operation, and proximity are standards included within the language of 327 I.A.C. 8-2-1(60), we decline to go so far and find only that the language of 327 I.A.C. 8-2-1(60) provides all the guidance necessary to allow CMA and Hilltop Farms I and II to determine that Hilltop Farms I and II constitute public water systems. Hilltop Farms I and II each have six wells providing water to six apartment buildings. No party has refuted that the six wells of Hilltop Farms I and the six wells of Hilltop Farms II each serve at least twenty-five individuals. These wells provide the public with water for human consumption through conveyances and regularly serve at least twenty-five individuals daily at least sixty days of the year. * * *
We will not allow a developer to thwart the purpose of the SDWA simply by drilling unconnected wells. Reversed.
*ILB - The opinion cites "327 I.A.C. 8-2-1(60)" but not any specific version of that provision. IAC 327 IAC 8-2-1 has been modified a number of times. Moreover, some might ask what is the source of the "rule" the Court is citing, as there is no printed version of the rule.
In The Adoption of unborn child B.W.; Wilfrido Garcia v. Davie Heine Bos and Janea Herbst Bos , a 13-page opinion, CJ Baker writes:
Appellant-petitioner Wilfrido Garcia appeals the trial court’s refusal to set aside its grant of adoption regarding his minor child, T.B., in favor of appellees-respondents David Heine Bos and Janae Herbst Bos (collectively, the “Boses”). Specifically, Garcia argues that he contested the adoption in a timely manner and the facts and circumstances demonstrate that the trial court abused its discretion in concluding that he impliedly consented to the adoption. Concluding that Garcia failed to follow the proper statutory procedures in contesting the adoption, we affirm the judgment of the trial court.In Safe Auto Ins. Co. v. American Family Mutual Ins. Co. , a 13-page opinion, CJ Baker writes:
Appellant-third-party-defendant Safe Auto Insurance Company (Safe Auto) appeals the trial court’s orders denying Safe Auto’s motion for summary judgment against appellee-third-party-plaintiff American Family Mutual Insurance Company (American Family) and granting summary judgment in American Family’s favor. Safe Auto raises the following arguments: (1) the trial court erroneously struck an affidavit that had been designated to support Safe Auto’s positions on the cross summary judgment motions; (2) the trial court erroneously concluded as a matter of law that Safe Auto waived all coverage defenses aside from non-cooperation because it sent a letter to its insured explaining that no coverage would be offered for the vehicle accident in question because of the insured’s failure to cooperate; and (3) the trial court erroneously found as a matter of law that coverage exists. Finding, among other things, that Safe Auto did not waive its coverage defenses and that coverage does not exist as a matter of law, we reverse and remand with instructions to enter summary judgment in Safe Auto’s favor.NFP civil opinions today (2):
Ralph D. Millsaps, M.D. and Julio A. Morera, M.D. v. Ohio Valley Heartcare, Inc. (NFP) - "Appellants-defendants Ralph D. Millsaps, M.D., and Julio A. Morera, M.D. (collectively, the appellants), appeal the trial court’s order entering summary judgment in favor of appellee-plaintiff Ohio Valley Heartcare, Inc. (OVHC), on OVHC’s complaint against the appellants for breach of contract. The appellants argue, among other things, that the trial court erroneously enforced a contract against them to which they were not a party.
"Finding that the trial court properly concluded that the appellants are bound to the terms of a contract that they executed but erroneously calculated the amount that they owe pursuant to a different contract to which they are not a party, and finding that this court’s determination in a prior appeal of the same parties may affect the amount owed by the appellants to OVHC, we affirm in part, reverse in part, and remand with instructions contained herein."
Chris McGehee v. Travis and Tamara Elliott (NFP) - "In sum, the trial court calculated the Elliotts’ damages pursuant to our instructions upon remand. Thus, we affirm the judgment of the trial court."
NFP criminal opinions today (5):
Ind. Courts - "Judge proposes rules aimed at DTF 'ethical concerns'"
Continuing his reporting on the drug forfeiture investigation in Delaware County, Rick Yencer of the Muncie Star-Press writes today in a story that begins:
New rules governing local drug forfeiture cases could end the practice of the Muncie-Delaware County Drug Task Force and its attorney, County Prosecutor Mark McKinney, of seizing -- and spending -- money from alleged drug dealers without court orders.For background, start with this ILB entry from July 16th.
Delaware Circuit Court 2 Judge Richard Dailey on Thursday gave local officials a draft of those rules, which would require criminal cases to be disposed of before any civil drug forfeiture is ordered.
And forfeitures would be handled by an attorney under written contract who is either not a deputy prosecutor or a salaried deputy prosecutor not assigned to any criminal prosecutions.
"That eliminates any ethical concerns," Dailey said of the proposed policy. "There are no questions that justice is for sale."
McKinney, as deputy prosecutor before his 1996 election as prosecutor, received nearly $100,000 in attorney fees over the past decade handling civil forfeiture cases, and also prosecuted criminal cases. The prosecutor and the drug task force used confidential settlement agreements, negotiated without court orders, to disperse hundreds of thousands of dollars in cash and property for the DTF's use.
The proposed rules -- which will go to Delaware County's five Circuit Court judges for approval, and then to the Indiana Supreme Court -- also cite state law that proceeds from drug forfeitures should be placed in local government general funds and common school funds after law enforcement costs have been paid.
The DTF had its own accounts under city government, and also maintained an off-the-books checking account that it used to spend money on its operations and various other expenses, including equipment for a city police gym, donations to youth charities and carpeting the prosecutor's office last year. The State Board of Accounts shut down that checking account last year.
Enironment - More on: DC Circuit strikes down the Clean Air Interstate Rule (CAIR)
An unexpected ruling from a federal appeals court has raised questions about dozens of air pollution control measures at coal-fired power plants in Kentucky and Indiana.
And in striking down the Bush administration’s Clean Air Interstate Rule as “fundamentally flawed,” the U.S. Court of Appeals for the District of Columbia last week undercut Louisville’s strategy to tackle its long-standing problems with the two types of pollution linked to lung ailments, heart attacks and death.
The 2005 EPA rule was an important piece of the city’s effort to meet clean air standards, said Matt Stull, spokesman for the Louisville Metro Air Pollution Control District. “We’re waiting for guidance from EPA on what parts, if any, are allowed to go forward.”
Installation of new pollution controls the rule required in a 28-state area that includes Kentucky and Indiana could come to a halt, and those that were previously installed could sit idle because of the costs of running them, warned Jeffrey Holmstead, who led the EPA air program when the 2005 rule was adopted.
“They no longer have any legal obligation” under the rule, Holmstead said of the power companies. “I can say with some confidence (that) people in the Eastern United States will be breathing dirtier air unless the EPA figures out something.” * * *
The federal rule that was struck down by the court established a regional cap-and-trade system for nitrogen oxides and sulfur dioxide and created an incentive for utilities to add pollution controls.
Companies that cut their pollution get a credit that can be sold to others who exceed limits.
It was generally supported by both industry and environmentalists.Mayoral task forces aimed at dealing with ground level ozone, or smog, and fine particle pollution, both cited the importance of the rule.
As a result of the rule, Louisville was counting on LG&E parent E.On U.S next year to start operating devices year round that sharply reduce nitrogen oxides at several plants, including its Mill Creek plant in Louisville. The utility has been required to run them only during the spring and summer ozone season. And some plants were scheduled to have those devices turned on for the first time in 2009.
With the legal dust still settling, company officials this week said they are not sure what they’ll do.
“It wouldn’t be appropriate to speculate on what changes, if any, our company may have to make going forward,” said Chip Keeling, an E.On spokesman.
Likewise, the future of some upgrades at Duke Energy plants in Indiana are also uncertain, company officials said. While there are no immediate plans to turn off three new sulfur dioxide scrubbers at its Gibson plant in southern Indiana, the officials would not make long-term pledges.
“This decision has created a lot of uncertainly,” said Duke spokeswoman Marilyn Lineberger. “We’ll be working with state and federal regulators on next steps.”
In some good news for Louisville area residents, new 70-foot-tall “bag houses” to collect soot and other particles at Duke’s Gallagher plant in New Albany cannot shut down because of how they were built into the power plant, said Angeline Protogere, another Duke spokeswoman.
Duke has said the bag houses would cut by 70 percent the particle pollution from the plant, and reduce sulfur dioxide by 40 percent.
Duke was among several companies that challenged aspects of the EPA rule, joining in the original lawsuit brought by North Carolina, which argued that the cap-and-trade provisions in the rule could allow too much pollution to blow in from other states. Duke, meanwhile, had contested how the rule allocated allowances for sulfur dioxide reductions.
Ind. Decisions - "Ex-county official’s conviction reversed"
The July 15th Court of Appeals decision in the case of Donald D. Vanhorn v. State of Indiana (see ILB entry here - 3rd case) is the subject of a story today by Brian M. Boyce of the Terre Haute Tribune-Star. Some quotes:
The stalking conviction of a former county official was reversed by the Indiana Court of Appeals Tuesday, and his defense attorney said new legal ground was broken in the case.
“Sadly, here’s an innocent man that’s basically already served his entire punishment,” remarked defense attorney John A. Kesler II on Wednesday afternoon, noting that the home detention aspect of Donald D. VanHorn’s sentence was completed by the time the appeals process concluded.
In an opinion filed by the Court of Appeals of Indiana on Tuesday, the court reversed the class-D felony conviction of stalking found against VanHorn in the Vigo County Superior Court of Judge Barbara Brugnaux on Aug. 17, 2007 based on insufficient evidence.
Joseph Etling, VanHorn’s defense attorney in the original case, said “…the Court of Appeals decision reaffirms our position from the date that the charge was filed,” noting that the issue of insufficient evidence has been raised throughout the nearly year-long process.
VanHorn, formerly a deputy director of the Vigo County Emergency Management Agency, was accused of stalking Terre Haute resident Robert Franks for parking his vehicle across the street from Franks’ home, watching through binoculars and taking photographs. * * *
According to the appeals court, for the state to have established VanHorn’s stalking, it would have had to prove beyond reasonable doubt that he “knowingly or intentionally engaged in a course of conduct involving repeated or continuing harassment of the victim, that would cause a reasonable person to feel terrorized, frightened, intimidated or threatened, and that actually caused the victim to feel terrorized, frightened, intimidated, or threatened.
“Stalking,” according to the court’s decision, “does not include statutorily or constitutionally protected activity.”
The court’s decision, Kesler said, hinged on the term “impermissible contact,” as VanHorn argued that the “complained-of conduct merely consists of parking near Franks’ house on four separate occasions and looking at Franks’ house through binoculars on two of those occasions.”
Ind. Decisions - "Dyer woman's in vitro court case first of its kind"
Joe Carlson reports today in the NWI Times:
CHICAGO | In a first-of-its-kind legal case that could have implications for women across the nation, federal judges have ruled that a Dyer woman should not have been fired for taking time off of work to undergo in vitro fertilization treatments.The 11-page 7th Circuit ruling in the ND Illinois case of Hall, Cheryl v. Nalco Company was issued Wednesday July 16th, Judge Sykes opinion begins:
The 7th Circuit Court of Appeals ruled Cheryl Hall was entitled to protection from gender discrimination because only women can become pregnant, and therefore firing someone for trying to become pregnant is a form of discrimination against women.
"It's not only a huge victory for Cheryl Hall but for women who are having trouble becoming pregnant," said Hall's attorney, Eugene Hollander, of Chicago. "They don't have to worry about retribution for taking time off of work to try to get pregnant."
It's the first case at the federal appeals level to decide the question of whether amendments to the Civil Rights Act outlawing sex discrimination apply to women with infertility problems who are trying to become pregnant.
In 2006, U.S. District Judge David Coar sided with Hall's suburban Chicago employer and said seeking infertility treatment was not grounds for sex discrimination because infertility is a condition that applies equally to men and women.
"The fact that (Hall) happens to be a woman in the present case does not qualify her for protection under Title VII" of the Civil Rights Act, Coar wrote.
On Wednesday, the appeals judges tossed out Coar's reasoning. * * *
Although the opinion set a precedent that Hollander said will be considered in similar cases across the country, it did not definitively resolve Hall's lawsuit. * * *
With Coar's decision out of the way, Hall still must convince a jury that her infertility treatments were the true reason for her firing, which Nalco denies.
Cheryl Hall maintains she was fired by Nalco Company for taking time off from work to undergo in vitro fertilization after being diagnosed with infertility. She filed this suit under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (“PDA”), alleging her termination constituted discrimination on the basis of sex. Without reaching the merits of her claim, the district court granted summary judgment for Nalco on the ground that Hall could not prove sex discrimination because infertility is a gender-neutral condition.
We reverse. The focus of any Title VII sex-discrimination claim is whether the employer treated the employee differently because of the employee’s sex. The PDA amended Title VII to provide that discrimination “because of” sex includes discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). Although infertility affects both men and women, Hall claims she was terminated for undergoing a medical procedure—a particular form of surgical impregnation—performed only on women on account of their childbearing capacity. Because adverse employment actions taken on account of childbearing capacity affect only women, Hall has stated a cognizable sex-discrimination claim under the language of the PDA.
Thursday, July 17, 2008
Ind. Decisions - Two today from 7th Circuit
In Trask-Morton v. Motel 6 (SD Ind., Judge McKinney), a 20-page opinion, Judge Manion writes:
Shortly after midnight on December 7, 2003, Marilyn Trask-Morton checked into a Motel 6 in Indianapolis. Later that morning, Morton, acting dazed and confused, staggered into the lobby of the motel and up to the front desk, slid sideways, and fell to the floor. Morton was taken to a hospital, treated, and released. Morton has no memory of what happened between when she went to bed at the motel and when she regained consciousness in the hospital. Nevertheless, Morton filed suit against Motel 6 Operating, L.P. alleging, among other things, that she had been sexually assaulted during that time and asserting several negligence claims against Motel 6 for allowing the assault to occur. Motel 6 filed a motion for summary judgment, which the district court granted. Morton appeals. We affirm.In U.S. v. Marietta Squibb (ND Ind., CJ Miller), a 6-page Per Curiam opinion:
A jury found Marietta Squibb guilty of committing mail and wire fraud, and of conspiring to defraud the United States. The district court sentenced her to ninety-six months’ imprisonment. On appeal she argues that the government presented insufficient evidence to show her knowledge of the conspiracy, and thus, she contends, her convictions should be overturned. Sufficient evidence supported the jury’s verdicts; therefore, we affirm. * * *
The record is not devoid of evidence of Marietta’s guilt, and her convictions are not “shocking.” We therefore AFFIRM the convictions.
Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)
For publication opinions today (3):
In Terra Nova Dairy, LLC v. Wabash Co. Board of Zoning Appeals , a 12-page opinion involving the denial of an improvement location permit for the construction of a CAFO by the BZA, Judge Crone writes:
Terra Nova Dairy, LLC, appeals from the denial of its application for an improvement location permit (“ILP”) for the construction of a concentrated animal feeding operation (“CAFO”). We affirm.In Monica Joyner-Wentland, M.D. v. Pamela J. Waggoner, a 12-page opinion, Judge Kirsch writes:
Issue. We restate the issue as whether the decision of the Wabash County Board of Zoning Appeals (“BZA”) to deny Terra Nova’s ILP application was arbitrary and capricious. * * *
Thus, as of February 28, 2007, the Ordinance required Terra Nova to submit both an application for an ILP and an application for a certificate of occupancy. Because Terra Nova failed to submit the latter, the BZA deemed the former to be incomplete.
At this point, we reiterate the well-established principle that “[p]roperty owners are charged with knowledge of ordinances that affect their property.” * * *
Having found no error, we affirm the BZA’s decision.
Monica Joyner-Wentland, M.D. (“Dr. Joyner-Wentland”) appeals a jury verdict in favor of Pamela J. Waggoner (“Waggoner”) in a medical malpractice case arising from Dr. Joyner-Wentland’s failure to order a pre-surgery mammogram before breast augmentation surgery. Dr. Joyner-Wentland raises the following restated issue: whether the trial court abused its discretion in failing to give her tendered final jury instructions on contributory negligence given Waggoner’s admission that she provided incorrect information regarding the date of her last mammogram prior to her surgery. We affirm. * * *Mark Hurst v. State of Indiana - "The maximum sentence imposed by the trial court is appropriate in light of Hurst’s character and nothing about the nature of the offense supports a contrary conclusion. Judgment affirmed."
The evidence at trial was overwhelming that Waggoner’s incorrect information on her intake sheet about the date of her last mammogram did not contribute to her injuries.
NFP civil opinions today (3):
Talib Alway, et al v. Big C Lumber Company, Inc. (NFP) - "Talib Alway appeals the trial court’s order finding him liable as a personal guarantor to Big C Lumber Co. (“Big C”) for debts incurred by Joseph Saviano d/b/a Classic Builders. We reverse.
"Issue. Whether the trial court erred when it considered extrinsic evidence as to the guaranty and proceeded to reform the guaranty’s terms."
Shoney's, Inc., et al v. Mid-American Five & Casualty Co. (NFP) - "Shoney’s has not demonstrated that a question of material fact exists as to whether Mid-American breached its duty of good faith and fair dealing to the Estate. The claims raised by Shoney’s in support of its bad faith argument are either waived, contradicted by the record, otherwise unsupported, or incorrect as a matter of law. Because the waiver and estoppel claim is based solely on the allegation of bad faith, Shoney’s has not demonstrated the existence of a question of material fact regarding waiver and estoppel. Thus, we conclude that the trial court did not err when it granted Mid-American’s motion for partial summary judgment on the bad faith and waiver and estoppel claims. Affirmed."
Robina N. Mount v. Richard Paul Mount (NFP) - "Robina N. Mount (“Mother”) appeals from the trial court’s order granting a motion filed by Richard Paul Mount (“Father”) to modify custody of the parties’ minor children, J.M. and D.M. (“the boys” or “the children”). Mother presents a single issue for review, namely, whether the trial court abused its discretion when it granted Father’s motion. We affirm."
NFP criminal opinions today (3):
Ind. Decisions - "Teen Showed Porn From Back Of Moving Car"
The Indiana Court of Appeals earlier this week upheld the conviction of a teen driver who was playing a pornographic video in his car.
The video screen was not installed in a typical place, nor was it the usual small-sized mobile screen, 6News' Rick Hightower reported.
The 16-year-old boy was pulled over at 38th and Sutherland Avenue last year because he had the sex video for all to see on a 15-inch video screen in the rear window of his car. * * *
"People have to be responsible for what's on those screens," said Indianapolis Metro police Sgt. Paul Thompson. "We had a situation where someone had a pornographic video that was visible to people outside the vehicle. Indiana has laws that protect children from obscene matter."
Children, whose parents' cars were nearby, got an eyeful of the on-screen action, and there wasn't much that could be done to avoid seeing it.
The appeals court affirmed a lower court conviction on Tuesday.
Ind. Gov't. - More on: Indiana proposal among finalists for Lincoln Museum
The final round of contenders to receive the collection of the former Lincoln Museum includes an Indiana group, but the keepers of the artifacts will not say how much the field has narrowed.
The Allen County Public Library and the Indiana State Museum submitted a proposal to share the collection and keep it in Indiana. The coalition also included support of the Indiana Historical Society, Indiana State Library and Friends of the Lincoln Museum. * * *
Spokeswoman Annette Moser said Wednesday afternoon the foundation was informing those who submitted proposals whether they were finalists. She would not say which proposals were finalists or how many had been chosen, and she said the foundation would not release further information until it selects a new home for the collection late this year or in early 2009.
Ind. Decisions - "Trial judge summarily dismisses legal malpractice suit"
The Indiana Court of Appeals has reversed a local court's dismissal of a breach of contract suit against veteran attorney Michael "Mick" Alexander.
Alexander, a former county prosecutor, was sued in 2000 by Municipal Tax Liens, a Florida company that purchases tax sale certificates, and owns and disposes of property acquired through tax sales.
MTL hired Alexander in 1998 to provide legal services to complete quiet title actions in Marion County and petitions for tax deeds in Vigo and Elkhart counties, agreeing to pay him $31,500.
The original suit filed in Delaware Circuit Court 1 accused Alexander of failing to provide those services, and allegedly costing MTL nearly $1 million in lost profits and property values. The company sought damages and costs for the contract breach and negligence.
After a series of pleadings and motions over the last seven years, Circuit Court 1 Judge Marianne Vorhees set the matter for a status conference last January after Alexander's attorney, Peter Drumm, moved to dismiss the case.
Vorhees agreed to the summary judgment dismissing the suit, saying the assignment of legal malpractice claim violated Indiana law and MTL was not the real party of interest in the action. * * *
The appeals court found that summary judgment was only appropriate where there was no genuine issue of material fact. * * *
"Based on Douglas's affidavit and construing the facts and reasonable inferences drawn from the facts in MTL's favor, we conclude that a genuine issue of material facts exists," the court wrote, regarding whether MTL was a direct continuation of RAP and whether RAP assigned the legal malpractice claim to MTL.
Wednesday, July 16, 2008
Ind. Decisions - 7th Circuit decides one Indiana case today
In U.S. v. Donald L. Cochran (ND Ind., Judge Simon), a 9-page opinion, Judge Flaum writes:
Defendant Donald L. Cochran was arrested as part of an on-line sex chat room sting. He was caught fondling himself in front of a webcam for who he thought to be a thirteen-year-old girl, but turned out to be an undercover officer. He was then convicted for violating 18 U.S.C. § 2422(b), which forbids adults from enticing minors to engage in “any sexual activity for which any person can be charged with a criminal offense.” Cochran admits to his actions and the evidence against him, but argues that his conduct did not violate the statute under which he was charged and convicted. For the following reasons, we affirm.
Ind. Decisions - Court of Appeals issues 6 today (and 9 NFP)
For publication opinions today (6):
In Tim Sinks v. Krista L. Caughey , a 16-page opinion in an interlocutory appeal, Judge Vaidik writes:
This case stems from a 2002 automobile accident in which Krista Caughey and her then-husband, Marius Sakalinskas, were rear-ended by a pickup truck. American Family Mutual Insurance Company, who insured both vehicles involved in the collision, informed Caughey that Jackie and Kathy Grover owned the truck and their son Michael Grover (“Michael”) drove it on the day of the accident. After the statute of limitations expired, Caughey learned that American Family had provided her with incorrect information because Tim Sinks was the actual driver of the truck on the day in question. As a result, the trial court allowed Caughey to amend her complaint and add Sinks as a party defendant. Sinks brings this interlocutory appeal after the trial court denied his motion to dismiss, which alleged that Caughey failed to bring her claim against Sinks within the applicable two-year statute of limitations and failed to comply with Indiana Trial Rule 15(C). Concluding that Sinks had constructive notice of the lawsuit when American Family was served with the lawsuit and that the “mistake” element of Trial Rule 15(C) was met, we affirm the judgment of the trial court.In Keith Elton Rich v. State of Indiana, a 19-page opinion, Judge Robb writes:
Following a guilty plea, Keith Rich appeals his fourteen-year sentence for burglary and possession of marijuana, the trial court’s order that Rich pay a $200 public defender fee, and the trial court’s order that Rich reimburse the victims for the cost of a home security system. Rich raises the issues of whether the trial court abused its discretion in ordering him to pay the public defender fee and reimburse the victims and whether his sentence is inappropriate given the nature of the offenses and his character. Concluding the trial court acted within its discretion in ordering Rich to pay the public defender fee and that his sentence is not inappropriate, we affirm the trial court in part. However, concluding the trial court abused its discretion in ordering Rich to pay for the installation of the victims’ security system, we reverse the trial court’s restitution order and remand with instructions that it correct this order to remove the cost of the security system.In Micorvote General Corp. v. The Office of Secretary of State and Todd Rokita, Indiana Secretary of State , an 11-page opinion, Judge Bradford writes:
Appellant/Petitioner MicroVote General Corporation (“MicroVote”) appeals from the trial court’s dismissal of its petition for judicial review of an adjudication by Appellees/Respondents the Office of the Secretary of State (“OSS”) and Indiana Secretary of State Todd Rokita. Concluding that (1) MicroVote’s failure to timely file either the record of the administrative proceeding or a request for an extension of time to do so deprived the trial court of jurisdiction over the case; (2) a motion to dismiss a petition for judicial review, if made on the wrong ground, does not require reversal; (3) MicroVote’s failure to transmit an adequate agency record deprived the trial court of jurisdiction over the case; and (4) MicroVote may not rely on equitable estoppel to excuse its failure to timely file the agency record, we affirm.In Chad A. Weideman v. State of Indiana , an 8-page opinion, Judge Riley writes:
Appellant-Defendant, Chad M. Weideman (Weideman), appeals his conviction for public nudity, as a Class B misdemeanor, Ind. Code § 35-45-4-1.5(c). We reverse and remand.In Jim & Jill Kovach v. Alpharma, Inc., Caligor, Inc.; et al. , a 29-page, 2-1 decision, Judge Riley writes:
Issues. Weideman raises three issues, which we restate as the following two issues: (1) Whether the public nudity statute, I.C. § 35-45-4-1.5, is unconstitutionally vague; and (2) Whether the evidence is sufficient to support the conviction of Weideman beyond a reasonable doubt.
Facts. On June 10, 2006, at approximately 8:45 p.m., Gerald Bowser (Bowser) and his girlfriend Patty Hogan (Hogan) went out to his truck that was parked on the street in front of his residence. Although it was dark outside, they both saw someone standing by a fence on Bowser’s property. Bowser then drove his truck on to the sidewalk and pointed his headlights at the person. When the lights shined upon the person, they saw their neighbor, Weideman, standing there naked with a look of panic or surprise on his face. Weideman immediately dropped and rolled into a nearby ditch that went between Bowser and Weideman’s property and crawled on his hands and knees to the back of his property. Hogan called the police. * * *
Weideman also argues that, even if the public nudity statute is constitutional, the evidence presented by the State was insufficient to support his conviction for public nudity, as a Class B misdemeanor. Specifically, he first contends that no witness testified that they saw his genitalia, pubic area, or buttocks. Secondly, he contends that there was no evidence that he had a specific intent to be seen. * * *
We conclude that this testimony is sufficient evidence to prove beyond a reasonable doubt that Weideman was nude.
The State was also required to prove beyond a reasonable doubt that Weideman had an “intent to be seen by another person” in order to convict Weideman of public nudity as a Class B misdemeanor. I.C. § 35-45-4-1.5(c). During the trial, Bowser testified that it was dark outside, and when he turned his truck lights on, Weideman had a panicked look on his face and “he turned to the ditch and just dropped, he just, like fell down and rolled.” “[H]e dropped and rolled into the ditch and then he crawled on his hands and knees down the ditch to the back of the property.” Weideman testified at the trial that he did not want to be seen. Based on our review of the record, we conclude that the State presented insufficient evidence to prove beyond a reasonable doubt that Weideman intended to be seen. Therefore, we must reverse Weideman’s conviction for public nudity, as a Class B misdemeanor. * * *
Conclusion. Based on the foregoing, we conclude that the public nudity statute is not unconstitutionally vague, but that the State failed to present evidence sufficient to prove beyond a reasonable doubt that Weideman committed public nudity, as a Class B misdemeanor. Reversed and remanded with instructions.
The Kovachs raise one issue on appeal, which we restate as follows: Whether the trial court erred by entering summary judgment in favor of the Cup Defendants. On cross-appeal, the Cup Defendants raise one issue, which we restate as follows: Whether the trial court erred by denying the Cup Defendants’ Motion to Exclude the opinion testimony of the Kovachs’ expert. * * *In Brennen Baker and Moisture Management v. Tremco Inc. and Rick Gibson, a 26-page, 2-1 opinion, Judge Bradford writes:
Matthew was prescribed 15ml, or one-half of the Cup’s volume, of Capital of Codeine. Although Nurse Robinette stated that she gave Matthew only 15ml of Codeine, Jim, who was in the room at the time, testified that the Cup was completely full. Matthew drank all of the medicine in the Cup. At 11:20 a.m., he was discharged from Surgicare. Later that day, after arriving home, Matthew went into respiratory arrest. He was transported to Bloomington Hospital, where he was pronounced dead of asphyxia due to an opiate overdose. The autopsy revealed that Matthew’s blood contained between 280 and 344 nanograms per ml of Codeine, more than double the recommended therapeutic level of the drug. * * *
In his affidavit and deposition testimony, O’Donnell [the Kovacachs' expert] examined a graduated measuring cup, identical to the one used to administer the Capital of Codeine to Matthew. Based upon his examination, education, and experience, he stated that children are generally more sensitive to an overdose of medication than adults and thus, especially when administering opiate medications, require precise medicinal doses. Describing the characteristics of the Cup, he opined that “[t]he Cup is a device that is fit to be used to determine the volume of medications that do not require [p]recision [m]easurements.” He concluded that “[t]he Cup is defective and unreasonably dangerous as a volume measuring device to determine [p]recision [m]easurements” and that a cause of the overdose was: (i) The Cup’s characteristics; (ii) The graduated measurement markings of the Cup not creating a clear contrast that could be easily read against the color of the Cup; and (iii) The Cup’s graduated measurements are not sufficiently visible to act as a reminder or checklist for the user when measuring the volume of medications to be administered.
Additionally, he opined that a cause of Matthew’s overdose and subsequent death was the lack of fitness and defective condition of the Cup.
The Cup Defendants now challenge O’Donnell’s opinions as lacking any scientific foundation, unreliable, and irrelevant. In essence, they request this court to completely ignore O’Donnell’s affidavit and deposition because they claim his opinions are entirely speculative. While it is true that no scientific principles underlie O’Donnell’s opinion, his opinion is still admissible as it is proper expert testimony based upon specialized knowledge, pursuant to Evid. R. 702. ... O’Donnell is a registered pharmacist and university professor who examined a medical device for dispensing medications to children and offered his professional opinion about what his examination disclosed. His opinions are reliably based upon his own observations and application of his specialized pharmaceutical knowledge to those observations. ... As such, we find them to be reliable and relevant to the issues at hand. Any challenge to O’Donnell’s opinions and perceived gaps in his examination could be exploited at trial through vigorous cross-examination. Mindful of our standard of review, we cannot conclude that the trial court abused its discretion by admitting O’Donnell’s testimony.
On appeal, the Kovachs contend that the trial court erred in entering summary judgment in favor of the Cup Defendants. In sum, they present us with two claims each under the Uniform Commercial Code and under the Product Liability Act, maintaining that a genuine issue of material fact exist on each assertion. * * *
Based on our analysis, we find that the Kovachs have established a genuine issue of fact with respect to both their claims under the Product Liability Act and the implied warranty of merchantability under the UCC. We reverse the trial court’s grant of summary judgment in these respects but affirm the grant of summary judgment regarding the Kovachs’ action of implied warranty of fitness for a particular purpose. We remand to the trial court for further proceedings.
Conclusion. Based on the foregoing, we find that the trial court erred when granting summary judgment to the Cup Defendants with respect to the Kovachs’ arguments under the Product Liability Act and the implied warranty of merchantability under the UCC. However, the trial court properly granted summary judgment with respect to the Kovachs action of implied warranty of fitness for a particular purpose under the UCC. Additionally, we find that the trial court did not abuse its discretion by admitting O’Donnell’s testimony. Affirmed in part, reversed in part, and remanded for further proceedings.
ROBB, J., concurs.
BAKER, C.J., dissents with separate opinion. [which states in part:] The nurse administered at least double the recommended dosage of the drug to Matthew. No reasonable factfinder would conclude that her actions were the result of a measuring error. Although there are many other possible causes of the tragic error, I can only conclude, based on these facts, that it cannot be found to have resulted from imprecise measuring. Therefore, I believe that the designated evidence establishes that the Kovachs have failed to show that the alleged defect, failure to warn, and/or breach of duty on the part of the Cup Defendants was the proximate cause of Matthew’s death.
Appellant/Plaintiff/Counterclaim Defendant Brennen Baker and Appellant/Third-Party Defendant Moisture Management appeal the trial court’s grant of partial summary judgment in favor of Appellees/Defendants/Counterclaim Plaintiffs/Third-Party Plaintiffs Tremco Incorporated and Rick Gibson. Baker and Moisture Management contend that the trial court erroneously granted summary judgment to Tremco and Gibson with respect to their claims that (1) Baker’s covenant not to compete with former employer Tremco is unenforceable, (2) Tremco tortiously interfered with Baker’s business activities, (3) Tremco wrongfully discharged Baker, (4) Gibson defamed Baker, and (5) Tremco violated Indiana’s blacklisting statute. We affirm in part, reverse in part, and remand with instructions. * * *NFP civil opinions today (1):
Conclusion. In summary, we affirm the trial court’s entry of summary judgment in favor of Gibson on Baker’s claim that Gibson defamed him by telling a third party that he suffered from mental illness and in favor of Tremco on Baker’s “blacklisting” and wrongful discharge claims. Moreover, we reverse and remand with instructions to enter summary judgment in favor of Baker on his claim that he did not violate the noncompete clause of the Agreement. Finally, we remand for trial on Baker’s claim against Tremco of tortious interference and his claim that Gibson defamed him by telling a third party that he had engaged in inappropriate sales practices. Trial on the defamation claim is limited to the issues of Gibson’s malicious intent, general damages, and special damages, if any. The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions.
BARNES, J., concur.
CRONE, J., concurring in part and dissenting in part. [which begins] I concur in the majority’s opinion in all respects except for its affirmance of the trial court’s entry of summary judgment in favor of Gibson on Baker’s claim that Gibson defamed him by telling a third party that he suffered from mental illness. Because I believe that a bare assertion that someone suffers from mental illness is sufficient to constitute slander per se, I respectfully dissent as to that issue.
Vinod Gupta v. Gary T. Hubbuch (NFP) - "We conclude that Hubbuch properly appealed the grant of tax deed to Gupta in the trial court pursuant to a Trial Rule 60(B) motion. We also conclude that Gupta made a bona fide effort to comply with the notice requirements of Indiana Code chapter 6-1.1-25. We affirm the trial court’s refusal to grant a tax deed to Gupta but remand for a refund of Gupta’s purchase price and calculation of interest due to him. The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions."
NFP criminal opinions today (8):
Ind. Courts - Still more on: "Scheibenberger faces ethics, misconduct charges"
The Indiana Commission on Judicial Qualifications filed formal charges of judicial misconduct against the Honorable Kenneth R. Scheibenberger, the Commission announced today.________________
The Commission filed a “Notice of the Institution of Formal Proceedings and Statement of Charges” with the Clerk of the Indiana Supreme Court accusing Judge Scheibenberger of violating ethical rules for judges. The charges stem from a November 2007 incident in another judge’s courtroom when Judge Scheibenberger allegedly verbally berated family members of a defendant in court for a sentencing hearing. The statement of charges includes four counts which can be read in their entirety [here].
The Clerk’s Online Appellate Docket lists the matter as public record under cause number 02S00-0807-JD-396. The filing includes a background detailing events in November 2007 which led to the charges.*
Judge Scheibenberger may file an answer to the charges within 20 days, after which the Supreme Court will appoint a panel of three judges to preside over an evidentiary hearing and report its findings to the Indiana Supreme Court. If the Court finds the Commission proved its charges, it will determine the appropriate sanction. Judicial sanctions may include reprimands, suspensions, or removal from office.
*However, the docket shows nothing other than:
7/15/08 - NOTICE OF THE INSTITUTION OF FORMAL PROCEEDINGS AND STATEMENT OF CHARGES. (6) PROOF OF SERVICE (2) MAIL. DLThe reference intended must be to the Statement of Charges.
Ind. Gov't. - Indiana proposal among finalists for Lincoln Museum
Anne Gregory of the Fort Wayne Journal Gazette is reporting at noon today:
The Allen County Public Library issued a statement Wednesday morning saying that Indiana is among the finalists to become the permanent home of the Lincoln Financial Foundation’s collection of Abraham Lincoln artifacts and documents.
The statewide team, led by groups from Fort Wayne and Indianapolis, was informed by the foundation Tuesday that the proposal is among those making it to the last round of reviews, the statement said.
Organizations involved with the effort include the Allen County library system, the Indiana State Museum, the Indiana Historical Society, the Indiana State Library and the Friends of the Lincoln Museum.
Environment - More on "Congress asks about trailers made in state"
Ind. Courts - Judge to significantly broaden extent of drug forfeiture probe
Delaware Circuit Court 2 Judge Richard Dailey intends to widen the scope of a drug forfeiture probe after finding 80 more cases during 1996-99 involving then-deputy prosecutor Mark McKinney where no court action was taken.
"We are going to open every case that has to do with forfeiture," said Dailey, explaining as many as 350 cases could ultimately exist.
The Indiana Supreme Court gave Dailey the authority last week to hear and act on an initial 54 cases where the local drug task force and most times McKinney, acting as their attorney, seized money and property from drug dealers, sometimes with confidential agreements and without court orders or any adjudication of law enforcement costs, as required by law.
Dailey plans to conduct more hearings to dispose of forfeiture cases being reviewed by his staff to ensure future seized property and cash goes to local government general funds or common school funds, according to state law. The DTF has been using seized assets to run its operation, pay other law enforcement costs, including a fitness gym at city hall.
Ind. Courts - Still more on: Randolph County Courthouse plans still up in air
The Muncie Star-Press has had enough. In an editorial today headlined "It's time for courthouse saga to come to an end," the paper opines:
Message to Randolph County officials: Your inability to move forward on the courthouse renovation project is making you look foolish.The paper then lists the history of the project from 2004 to date. You can also see this history in detail in these ILB entries.
Those words are harsh, but the continuing saga of the Randolph County Courthouse is starting to play like a soap opera -- it just never seems to end. And the losers are the county's taxpayers and the people who have to work and conduct business in the courthouse.
Consider some of the tortuous twists and turns of the project:
The editorial concludes:
County officials should be taken to task by their constituents for the time and money that has been wasted on this project -- with nothing to show for it.
By now, it should be clear that no side in this dispute is going to get everything they want.
The most prudent course of action is to build an annex on the courthouse square, and devise some attractive landscaping to mitigate the appearance of a wall of brick. It's time for those who oppose an annex to end their opposition and work with county officials to make the south side of the structure as attractive as reasonably possible.
It makes no sense to move into the former Marsh building and take that structure's $42,000 off of Winchester's tax base. Nor does it make sense to build a new court complex near the existing jail, which will raise still more issues that will need to be addressed. Not the least is the likely demolition of some homes and businesses.
Randolph County's inability to move forward on this issue is a black eye on the county's appearance to others beyond the county's borders. One has to ask whether a potential industry would consider locating in a county that can't seem to make headway on a vital building project.
The delay and confusion is sending a not-so-subtle message that government is not able to function when it comes to major issues.
After more than four years on this issue, it's time to put aside the differences. It's time to just build it.
Ind. Law - Yet more on: "Lawyer says driver is devastated by shooting: Woman had no choice, he said"
Updating this ILB entry from yesterday, Harold J. Adams of the Louisville Courier Journal reports today that:
The driver who shot an Indiana motorcyclist in what police called a road-rage incident testified yesterday before a Clark Circuit Court grand jury that is reviewing the incident for possible criminal charges. * * *Access the full story here.
[Driver Yolanda] Parrish has told police that [motorcyclist Wesley] Mosier tried to hit her and that she fired in self-defense.
Butler said yesterday the incident and its aftermath are taking a toll on Parrish.
"This is a 39-year-old lady that doesn't even have a traffic ticket," he said. "… It's weighing on her mind as heavily as you can imagine."
Parrish's 15-year-old son, who was with his mother at the time of the shooting, also testified yesterday. At least one witness told police the teen got out of the car after the shooting and kicked and yelled at Mosier.
Ind. Courts - Even more on "Judicial candidate's registration in question"
Updating this ILB entry from July 8th, Ben Hershberg of the Louisville Courier Journal writes today in a story that begins:
A court may have to decide whose names go on the Nov. 4 ballot for Clark Circuit Court judge.
The Indiana Election Division, which certifies names for the ballot, is divided about whether nomination filings for the Democratic and Republican candidates met required deadlines.
Ind. Courts - More on: "Scheibenberger faces ethics, misconduct charges"
The first count of the document alleges Scheibenberger failed to uphold the integrity of the judiciary and to maintain high standards of conduct. The second count alleges he failed to avoid impropriety at all times or act in a manner promoting the public’s confidence in the integrity of the judiciary. The third count alleges he committed conduct prejudicial to the administration of justice, and the fourth count alleges Scheibenberger committed willful misconduct while in office, according to court documents. * * *
It is not the first time Scheibenberger, appointed to the bench in 1991 then elected in 1992, has found himself in hot water. In December 2002, the judge drew a public admonition from the Indiana Commission on Judicial Qualifications for conduct prejudicial to the administration of justice. When his son was arrested for a misdemeanor in 2001, Scheibenberger obtained his son’s criminal file from a clerk’s office employee and made an entry delaying the case to give his son more time to prepare for an upcoming hearing, an action the commission found violated judicial canons prohibiting judges from using the power of their offices to advance private interests.
Ind. Law - More on: "Southern Illinois town saves gas money with golf carts"; Illinois has authorizing statute
Updating yesterday's ILB entry, it appears that towns all over Illinois are jumping on the golf cart band wagon. Steve Schmadeke of the Chicago Tribune has a lengthy story today headlined "Gas-sipping golf carts win over small towns." Some quotes:
Three Iroquois County burgs—Crescent City, Ashkum and Danforth—recently passed ordinances opening their streets to golf carts, and at least two other towns south of Kankakee were poised to enact similar laws. One of those towns, Gilman, scheduled a public hearing for Wednesday. Community leaders say their motives are mixed: They are acting in part to help residents cope with record gas prices, but also to regulate a mode of transport that has become more popular.To rev iew a list of all of the many ILB entries on golf cart ordinances, type "golf cart" in the search box in the right column.
The idea has taken hold in rural towns from Indiana to North Carolina. It has even reached Chicago's densely populated northern suburbs, where Wheeling is considering a similar move solely for the fuel-saving benefits. * * *
Newly written ordinances in Iroquois County permit licensed drivers of golf carts that are outfitted with headlights, turn signals, brake lights and a reflective sign to roam on town streets that have speed limits no higher than 35 m.p.h. The carts are not supposed to go faster than 25 m.p.h., according to federal regulations.
In one town, Danforth, owners must also register their golf carts.
Illinois towns have been free to open their roads to golf carts since 1998, when state legislators passed an authorizing law over the objections of the Illinois Municipal League, which opposed it for safety reasons. At least 11 other states have similar laws, according to the National Highway Traffic Safety Administration. [ILB - emphasis added]
Municipal League executive director Larry Frang said it has been rare for towns to give golf carts a green light. But, times have changed since 1998, when gasoline prices fell to $1.03 per gallon.
In Franklin County, the town of Sesser passed a golf-cart ordinance July 3, emulating nearby Breeze, said City Council Member Bob Woll. He said that it not only will help residents sick of high gas prices, but it also will save the town $600 a year by using a golf cart (Woll's) instead of a pickup to check water meters.
On Jan. 8, Ashkum (population 724, with no golf course) became the first Iroquois County town this year to change its ordinance.
Now even Mayor Paul Heideman, a gas-company supervisor, can be seen driving an electric cart seven blocks from his home to Assumption Catholic Church on Sundays. He said the town acted in part to keep youths from driving the carts, but gas prices were also on their minds. The first paragraph of their ordinance touts golf carts' "energy-efficient mobility."
Tuesday, July 15, 2008
Ind. Law - Town of Crothersville Limits Sex Offenders
A July 9th story in the Crothersville Times reports:
Passage of ordinances controlling sex offenders on public property and re-establishing a parks and recreation board were passed with the Crothersville town council met last Tuesday. Both ordinances passed unanimously.The entire ordinance may be accessed here.
The sex offender ordinance contains two parts. The first creates residential restrictions for registered sex offenders. A second part pertains to town-owned parks.
Convicted sex offenders cannot live within 500 feet of a school, daycare or park.
According to the ordinance, the sole intent is not to impose a criminal penalty but to serve the town’s “compelling interest to promote, protect and improve the health, safety and welfare of the citizens of Crothersville.”
If a person violates the residential prohibition ordinance, he or she can receive a fine of up to $500.
Sex offenders cannot enter certain property owned by the town of Crothersville, with the exception of town hall or another place where the offender has to pay fees or fines or to cast a vote.
If a sex offender enters a park, he or she can be fined anywhere from $100 to $2,500. The person also could receive charges of criminal trespass.
Crothersville police are to deliver notices to the sex offenders living in town boundaries to let them know of the ordinance. Signs prohibiting sex offenders will be erected at each of the town’s parks as well. A map showing prohibited areas also will be posted in town hall.
Ind. Decisions - 7th Circuit issues one Indiana opinion today
In Vivian Brown v. Family Dollar Stores of Indiana (SD Ind., Judge McKinney), an 11-page opinion, Judge Rovner writes:
Plaintiff-Appellant Vivian Brown brought an action against her former employer, Family Dollar Stores of Indiana, LP (“Family Dollar”), alleging that Family Dollar failed to pay in a timely manner overtime wages due her in violation of the Fair Labor Standards Act, (“FLSA”), 29 U.S.C. 201 et seq., the Indiana Wage Payment Statute, Ind. Code § 22-2-5-1 et seq., and the Indiana Wage Claim Statute, Ind. Code § 22-9-1 et seq. The district court granted Family Dollar’s motion for summary judgment on the FLSA claim and the state claim for an unpaid incentive bonus, and dismissed the remaining state claims without prejudice. Brown now appeals that decision, and we reverse.
Ind. Decisions - More on "Papa John's robbery suit heading to court"
Updating this ILB entry from July 14th on the Court of Appeals decision last Friday, July 11th in the case of Thomas Williams and Sanford Kelsey v. Kelly Eugene Tharp and Papa John's U.S.A., Inc., the National Law Journal this afternoon has a long story by Leigh Jones, including details such as:
A black tax attorney who was held at gunpoint and handcuffed by police officers after a Papa John's employee allegedly accused him of pulling a gun while buying a pizza has won an appeal in the Court of Appeals of Indiana.
Attorney Sanford Kelsey can move ahead to trial with his claims of false imprisonment, defamation, negligence and intentional infliction of emotional distress against the pizza chain.
Kelsey, who holds an LL.M. degree from Georgetown University Law Center, is a former attorney at Greenberg Taurig and at Indianapolis-based Ice Miller.
He currently works as in-house counsel for a major packing and shipping corporation.
The other plaintiff in the case is Thomas Williams, Kelsey's friend, who is also black and was with him at the restaurant when the incident occurred.
Ind. Courts - "Judge of the Day: Deborah Riga"
A court with an affiliated driving school? Judges who have to pay rent for their courtrooms? State and local courts can be so darn... weird.
Ind. Courts - "Scheibenberger faces ethics, misconduct charges"
Rebecca S. Green reports in the Fort Wayne Journal Gazette this afternoon in a story that begins:
The Indiana Commission on Judicial Qualifications took formal disciplinary proceedings Tuesday against Allen Superior Judge Kenneth R. Scheibenberger.According to ther story, "Scheibenberger has 20 days to file a response to the charges."
Alleging the judge violated rules of judicial ethics and committed willful misconduct while in office, the four-count statement of charges outlines a verbal exchange between Scheibenberger and the family of a criminal defendant.
On Nov. 30, Scheibenberger, while still wearing his robe, went into the courtroom of Allen Superior Judge Fran Gull and sat down in the gallery to witness the sentencing of a man accused of a weapons violation, according to court documents.
As the hearing concluded, Scheibenberger approached an Allen County deputy prosecutor and “created a disturbance,” telling the deputy prosecutor the defendant was a “drug dealer and declared ‘upstanding citizen, my (expletive deleted)’ in reference to a comment he heard during the sentencing,” according to court documents.
Then he turned to the man’s parents, seated in the front row, asking them if they were “related to that piece of (expletive deleted)? ‘Upstanding citizen, my (expletive deleted)! He’ll get his!’ or words to that effect,” according to court documents.
Ind. Law - More on: More issues with the General Assembly's website
Updating this ILB entry from July 13th, the General Assembly's online version of the Indiana Code now has been updated to reflect changes made by the 2008 General Assembly.
Ind. Courts - "Suit challenges U.S. Steel power lines along lake"
Joe Carlson of the NWI Times had an interesting story Monday about efforts to rid the Lake Michigan lakeshore of U.S Steel's transmission lines. Some quotes:
In efforts to redevelop the region's lakeshore so the public can enjoy it, many officials and business leaders find a common barrier -- the string of massive power lines along the shoreline.The ILB has acquired copies of the complaint filed April 24, 2008 in the case of The Majestic Star Casino, LLC v. U.S. Steel (including a copy of the 1954 easement between Universal Atlas Cement and U.S. Steel), and U.S. Steel's answer, entered 6/16/08.
Hammond city leaders have been working through the Northwest Indiana Regional Development Authority to get the power lines buried so beachgoers and condo developers can use the land.
The authority is funding a $1.2 million study of ways to improve the shoreline, including a review of the costs of removing -- or at least hiding -- U.S. Steel's transmission lines, which run through the area known on planning maps as the Marquette Greenway. * * *
But one local casino argues it has found a different answer buried in the fine print of a 1954 easement held within company archives.
Majestic Star Casino today sits on land once owned by the Universal Atlas Cement Co., which in 1939 gave the steel company, then known as Carnegie-Illinois Steel Corp., the right to build the power lines across its property, a lawsuit filed in Hammond federal court says.
The lawsuit filed by Majestic against U.S. Steel includes a copy of an original 1954 renewal of the power line easement that says the steelmaker must remove the lines at its own expense if the company does not use the lines for five consecutive years.
"U.S. Steel has not used the equipment for at least five consecutive years," Majestic's suit says. The casino is represented by Indianapolis law firm Ice Miller LLP.
Hammond Mayor Thomas McDermott Jr., who was not aware of the lawsuit until asked about it Thursday, said the power lines have not been energized in many years.
Ind. Decisions - Court of Appeals issues 5 today (and 13 NFP)
For publication opinions today (5):
In Lauth Indiana Resort & Casino v. Lost River Development, et al., a 14-page opinion, Judge Mathias writes:
Appellant-Defendant Lauth Indiana Resort & Casino, LLC (“Lauth”) brings this interlocutory appeal from the order of the Hamilton Superior Court denying its motion for partial summary judgment in the suit brought against Lauth by Appellees-Plaintiffs Merit Gaming Group, LLC (“Merit”), Auburn Gaming Co., LLC (“Auburn Gaming”), and Lost River Development, LLC (“Lost River”). We reverse and remand. * * *In Whitney Turner v. Franklin County Four Wheelers Inc., et al. , a 9-page opinion, Judge Brown writes:
[The opinion details the history of the riverboat casino project in Orange County, Indiana, and the involvement of "Trump Indiana Casino Management, LLC (“Trump Indiana”), Orange County Development, LLC (a group affiliated with French Lick native Larry Bird), and current Appellee-Plaintiff Lost River."]
Lauth admits that the Letter Agreement formed a joint venture for the development of the Lost River casino proposal, but Lauth claims that this joint venture ended as a matter of law when the IGC chose the proposal of Trump Indiana. Thus, Lauth claims, it could not have breached the Letter Agreement or breached any fiduciary duties to the other joint venturers because the joint venture was no longer in existence at the times in question.
Merit agrees that the Letter Agreement formed a joint venture. However, Merit argues that there is at least a genuine issue of material fact with regard to whether the joint venture was still in existence. Merit focuses its argument on the extensive contact between the parties which occurred after the times which Lauth now claims acted to end the joint venture as a matter of law. Merit argues that if Lauth truly believed that the joint venture had ended, then Lauth would not have communicated with the other joint venturers as if the joint venture were still in existence.
The parties further agree that this case presents an issue of first impression in Indiana regarding precisely when a joint venture terminates in those cases where the joint venture agreement itself contains no specific termination date. Although research has revealed no Indiana case which has addressed this issue, there does seem to be a consensus among our sister states and in federal jurisdictions with regard to this issue. Specifically, the generally accepted law of joint ventures is that “[a] joint venture without a termination date remains in force until its purpose is accomplished or that purpose becomes impracticable.” * * * Both parties urge us to adopt this rule, and we see no reason not to do so. But this does not end our discussion. To apply this rule, we must determine if and when the purpose of the joint venture between the parties was accomplished or became impossible or impracticable. * * *
In conclusion, we hold that if a joint venture is formed for the purpose of submitting a proposal or similar bid, and the joint venture agreement is silent as to when or under what circumstances the joint venture will end, then the joint venture ends, as a matter of law, when the proposal or bid is rejected. Therefore, the Lost River joint venture ended as a matter of law when the IGC chose the proposal of Trump Indiana. Lauth therefore did not breach the joint venture agreement or any duties it had to the other parties to the joint venture when it partnered with the Cook Group, and the trial court erred in denying Lauth’s motion for summary judgment. The judgment of the trial court is reversed, and the cause is remanded for proceedings consistent with this opinion. Reversed and remanded.
Whitney Turner appeals the trial court’s grant of a motion to dismiss filed by Franklin County Four Wheelers, Inc., the Fair Board of Franklin County, the Franklin County 4-H Fairgrounds, and the Franklin County Commissioners (collectively, “Defendants”). Turner raises one issue, which we restate as whether the trial court abused its discretion by denying her motion to amend her complaint and granting the Defendants’ motion to dismiss. We reverse and remand.In Donald D. Vanhorn v. State of Indiana , a 14-page, 2-1 opinion, Judge Crone writes:
The relevant facts follow. On May 25, 2007, Turner filed a complaint for damages against the Defendants. However, due to either a human error or an error in the computer program Turner’s counsel uses to generate his signature on pleadings, the complaint did not contain a signature of Turner’s counsel. At the same time Turner filed her complaint, her counsel also filed a notice of appearance, which contained his stamped signature.
On August 7, 2007, the Fair Board of Franklin County and the Franklin County 4-H Fairgrounds filed a motion to strike the complaint pursuant to Ind. Trial Rule 11(A) because the complaint was not signed. Turner responded by filing a motion for leave to amend the complaint. The Fair Board of Franklin County and the Franklin County Commissioners then filed an objection to Turner’s motion for leave to amend her complaint and filed a motion to dismiss. After a hearing, the trial court entered an order
denying Turner’s motion for leave to amend her complaint and granting the motion to dismiss pursuant to Ind. Trial Rule 11(A).
The issue is whether the trial court abused its discretion by denying Turner’s motion to amend her complaint and granting the Defendants’ motion to dismiss. Turner argues that the trial court’s dismissal of her action and failure to grant her motion to amend was “extreme” and an abuse of discretion. * * *
The dismissal of Turner’s action was an extreme remedy for the mistake of Turner’s counsel. The record reveals no undue delay, bad faith or dilatory motive on Turner’s part and no repeated failure to cure the deficiency. The Defendants argue that they would be prejudiced by the amendment because the statute of limitations has run. The Defendants also argue that the amendment would be futile because the complaint was stricken, leaving nothing to amend.
Given our preference for deciding cases on the merits, we must disagree with the Defendants’ arguments, concluding that, in conjunction with granting the motion to amend, the trial court should have denied the motion to strike. Thus, under Ind. Trial Rule 15(C), the amended complaint then would relate back to the date of the original complaint. We conclude that the trial court abused its discretion by granting the Defendants’ motion to strike and that the trial court abused its discretion by denying Turner’s motion to amend her complaint. Consequently, we conclude that the trial court abused its discretion by granting the Defendants’ motion to dismiss.
For the foregoing reasons, we reverse the trial court’s grant of Defendants’ motion to strike, the trial court’s denial of Turner’s motion to amend, and the grant of Defendants’ motion to dismiss and remand for proceedings consistent with this opinion.
Specifically, VanHorn asserts that the State failed to establish that his conduct constituted “harassment” of or “impermissible contact” with Franks. VanHorn observes that the complained-of conduct merely consists of parking near Franks’ house on four separate occasions and looking at Franks’ house through binoculars on two of those occasions. He points out that he made no actual physical contact with Franks and that he made no telephone calls, left no notes, or at any time stepped onto Franks’ property. Therefore, he argues, his conduct does not constitute contact, let alone meet the legal definition of “impermissible contact.”In M.S. v. State of Indiana , a 6-page opinion by Judge Brown, "M.S., while driving by the Indiana State Fairgrounds in a sports car, was playing a DVD containing nudity and sexual content on a fifteen-inch video screen mounted in the rearview window and visible to the public." The opinion concludes:
VanHorn presents an issue of first impression. In fact, we have been presented with few opportunities to examine the parameters of “harassment” and “impermissible contact.” * * *
We think that when a defendant’s conduct in a public place where the defendant has a lawful right to be, and that conduct alone, is alleged to constitute harassment, the accused’s due process rights must be safeguarded. In other words, when the government prohibits an individual from engaging in otherwise lawful conduct, it is important to provide the accused with notice and an opportunity to be heard. * * *
The issuance of a protective order pursuant to Indiana Code Section 34-26-5 would address our concerns by providing notice to the individual, an opportunity to be heard, and, where the issuance of a protective order is justified, a clear statement that his or her conduct is impermissible.5 No protective order was sought in this case. * * *
Accordingly, we conclude that the evidence was insufficient to support VanHorn’s conviction for stalking. Reversed.
BARNES, J., concurs.
BRADFORD, J., dissents with opinion. [which begins] In my view, otherwise lawful contact may be “impermissible” and satisfy the “harassment” element of stalking without being defined as such by a protective order or other official means providing notice and an opportunity to be heard. I understand the majority’s reluctance to find apparently “lawful” conduct unlawful, but I am confident that the jury system is an adequate safeguard for preventing unfair convictions for lawful behavior. Indeed, otherwise lawful behavior only constitutes “stalking” if the jury, or factfinder, concludes beyond a reasonable doubt that it would cause a reasonable person to feel terrorized.
Here, the facts most favorable to the conviction reveal that M.S. was driving a sports car on a busy street near the Indiana State Fairgrounds. We agree with the State that “the area was a public area to which minors had both auditory and visual access to what occurred in the rear window of M.S.’s vehicle.” * * * We conclude that the State presented sufficient evidence that M.S. knowingly or intentionally displayed matter that is harmful to minors in an area to which minors have visual, auditory, or physical access.Harold Donnegan v. State of Indiana - "Harold Donnegan appeals from the denial of his petition for post-conviction relief. We affirm.
For the foregoing reasons, we affirm M.S.’s adjudication as a delinquent for committing an act that would be disseminating matter harmful to minors as a class D felony if committed by an adult.
""Issues. 1. Whether Donnegan received ineffective assistance of appellate counsel. 2. Whether the prosecutor committed misconduct."
NFP civil opinions today (4):
Term. of Parent-Child Rel. of A.B.; and Cheryl B. v. Jennings Co. Dept. of Child Services - 802 (NFP) - "The trial court’s judgment terminating Mother’s parental rights to A.B. is supported by clear and convincing evidence. Accordingly, we find no error. Affirmed."
Term. of Parent-Child Rel. of C.B.; and Cheryl B. v. Jennings County Dept. of Child Svcs. - 803 (NFP) - "The trial court’s judgment terminating Mother’s parental rights to C.B. is supported by clear and convincing evidence. We therefore find no error. Affirmed."
Term. of Parent-Child Rel. of C.B.; A.B., Mother and M.H., Father v. Adams Co. Dept. of Child Services (NFP) - "A.B. (“Mother”) and M.H. (“Father”) appeal the trial court’s order that terminated their parental relationships with their son, C.B. We affirm."
Jeffrey N. Nelson v. Brooke E. Nelson (NFP) - "The trial court abused its discretion in modifying Mother’s parenting time without making a finding to support the modification. Reversed and remanded for proceedings not inconsistent with this Opinion."
NFP criminal opinions today (9):
Ind. Law - "Southern Illinois town saves gas money with golf carts"
All of a sudden, it looks like many are jumping on the golf cart band wagon.
Today the Louisville Courier Journal carries an AP report that begins:
SESSER, Ill. — One southern Illinois city has an idea to combat high fuel prices: golf carts.
The city of Sesser has passed an ordinance that lets golf carts and similar vehicles with steering wheels on city streets. Sesser alderman Bob Woll came up with the idea, saying he can drive his electric golf cart for 25 miles on a 10-hour charge that costs $1.30.
Sesser golf cart drivers can’t ride on sidewalks or state roads and they can’t go faster than 25 mph.
Environment - Bloomington Cleaners undertakes voluntary environmental cleanup; shovel-ready sites
From a June 13th story ($$) by Mercedes Rodriguez in the Bloomington Herald-Times
About 120 tons of soil were removed from the site of Bloomington Cleaners, a dry cleaning business owned by Steve Arthur, during the week of June 30.Shovel-Ready Sites. Of somewhat related interest is this July 12th article by the Louisville Courier Journal's reporter Lesley Stedman Weidenbener detailing what exactly is a "shovel-ready site."
Arthur says though he entered the cleaning business in 1992, his building had housed dry cleaners for more than 35 years. Equipment used in the past was more prone to leaks and spills. It was time to clean up, he said.
The Indianapolis firm Enviroforensics was brought in to do environmental cleanup, to remove soil under the building and under the parking lot. The soil was found to be contaminated with perchloroethylene, a chemical used in the dry cleaning process. Envvironforensics officials estimate that a job the size of Bloomington Cleaners would cost roughly $500,000. * * *
Enviroforensics found that the parking lot, a large section where former owners kept their old dry cleaning machinery and another area had been contaminated by perchloroethylene, also known as perc. Perc is a derivative of chlorine that can cause problems if it leaks into the ground water. The substance seeped through the concrete floor and into the soil at the Bloomington business. Since dry cleaners must now contain the chemical, a cleanup was planned.
Enviroforensics conducted searches for historical insurance (policies taken out by past owners) that may cover costs associated with the cleanup. According to Arthur, insurance paid for the cleanup.
Arthur and Enviroforensics worked with the Indiana Department of Environmental Management to make a remediation plan for cleaning the site.
“Basically, we feel we’re cleaning what happened in the 20 years before our ownership,” Arthur said. * * *
The business will send reports of the cleanup to IDEM. From there, they can earn certification as a clean site. The clean-site certification means the business has satisfactorily gone through the remediation process and meets all the regulatory standards, [Enviroforensics owner Stephen Henshaw] said.
Ind. Law - Still more on: "Lawyer says driver is devastated by shooting: Woman had no choice, he said"
As noted in this June 21, 2008 ILB entry, in 2006 the General Assembly passed a law providing that "a person does not have a duty to first try to flee before using deadly force to defend against someone breaking into his home or car." As reported in a June 19, 2008 Louisville Courier Journal story, also quoted in the June 21st entry:
A woman who told Jeffersonville police that she shot a motorcyclist in self-defense "felt she had no choice" because she thought he was going to hit her, her lawyer said yesterday.This June 25th ILB entry quotes a report that the county prosecutor had referred "the road-rage case" to a grand jury.
No charges have been filed against Yalanda Parrish, 39, of Jeffersonville, in Tuesday's shooting of Wesley Mosier, 52, of Corydon, who remains hospitalized.
Today Grace Schneider of the Louisville Courier Journal reports under the headline "Wounded motorcyclist testifies before grand jury: Decision expected by end of the week." Schneider's story begins:
A Corydon man who was shot last month in what police called a road-rage incident spent 90 minutes yesterday with a Clark Circuit Court grand jury as the panel opened its review of the shooting.
Several other witnesses to the June 17 Jeffersonville shooting of motorcyclist Wesley Mosier, 52, also went before the six-member panel, whose proceedings are closed. The grand jury is expected to decide by the end of the week what, if any, charges should be brought in the case.
Yalanda Parrish, 39, of Jeffersonville, told police she shot Mosier with a .38-caliber handgun. She is expected to go before the grand jury today, although her lawyer, Brian Butler of Louisville, has indicated he may not allow her to answer questions.
Parrish and Mosier have offered sharply contrasting versions of what happened.
Mosier said he got off his motorcycle on 10th Street at Allison Lane and approached Parrish's car to ask her to stop following him so closely. Parrish, who had a permit to carry the gun, told police that she fired in self-defense when Mosier tried to punch her.
Monday, July 14, 2008
Ind. Courts - Still more on: Three justices and at least one appellate judge up for retention this year
Updating this ILB entry from July 1, all incumbent appellate judges up for retention this year have now filed to seek retention. They include: Three of the five members of the Supreme Court: Chief Justice Randall T. Shepard, Justice Brent E. Dickson, and Justice Theodore R. Boehm. One member of the Court of Appeals, Judge Carr L. Darden. And the only judge on the Tax Court, Thomas G. Fisher.
I'm told the only one we were waiting on was Judge Fisher. Two years ago, the last to file was Justice Sullivan, on June 22, 2006. For more information, see this paper on the 2006 judicial retention put out by the Secretary of State.
Ind. Decisions - "Papa John's robbery suit heading to court"
The Court of Appeals decision last Friday, July 11th in the case of Thomas Williams and Sanford Kelsey v. Kelly Eugene Tharp and Papa John's U.S.A., Inc. (see ILB entry here) , is the subject of a story by James A. Gillaspy posted this afternoon on the Indianapolis Star website. The long story begins:
Two men who sued Papa John’s USA and a pizza deliveryman who wrongly accused them of armed robbery will get their day in court, despite a judge’s ruling that their claim had no merit.
The Indiana Court of Appeals has overturned decisions by Hamilton Circuit Judge Judith Proffitt to dismiss the lawsuit and has ordered it set for trial.
Proffitt’s staff said today that she has not yet reviewed the July 11 order.
“We are extremely pleased with the Court of Appeals decision,” said Arend Abel, attorney for plaintiffs Sanford Kelsey and Thomas Williams. “My clients are anxious to get their day in court, so that a Hamilton County jury can right the wrong they suffered.”
Kelsey, a tax attorney and former Zionsville resident, and Williams, a Fishers dental lab manager living in Noblesville, sued the Papa John’s chain and its Village Park Plaza store’s pizza deliveryman, Kelly Tharp, after a harrowing police stop in 2005.
Ind. Decisions - 7th Circuit issues one today, reversing Judge Tinder
In Steven Peters v. Gildead Sciences (SD Ind., Judge Tinder), a 14-page opinion, Judge Stykes writes:
Steven Peters suffered a shoulder injury while he was employed by Gilead Sciences, Inc. He took a relatively short medical leave to have corrective surgery, and when his condition did not improve after returning to work, he took another leave. During his second absence, Gilead filled his position with another employee, and when Peters returned to work, Gilead offered him a different position. He declined and Gilead terminated his employment.
Peters filed suit against Gilead, alleging (as relevant here) a violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq., and a claim for promissory estoppel under Indiana law. Gilead moved for summary judgment on the FMLA claim, arguing that Peters was ineligible for FMLA leave based on a provision in the Act that excludes employees at worksites at which less that 50 employees are employed “if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.” 29 U.S.C. § 2611(2)(B)(ii). It was undisputed that Gilead employed less than 50 employees within 75 miles of Peters’ worksite, making him statutorily ineligible for FMLA leave. It was also undisputed that if Peters was eligible for FMLA leave, Gilead had miscalculated the 12-week duration of his leave and replaced him before it expired.
Relying on language in Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579, 582 (7th Cir. 2000), Peters argued that Gilead was equitably estopped from asserting the FMLA’s 50/75 exclusion based on representations made in Gilead’s employee handbook and in letters it sent to Peters regarding his entitlement to 12 weeks of medical leave. The district court concluded Peters had not established the elements of equitable estoppel and granted summary judgment for Gilead.
We reverse. While Dormeyer suggested that FMLA eligibility might, “in an appropriate case,” arise by estoppel, the issue need not have been addressed in this case. Peters alleged a state-law claim for promissory estoppel—an equitable contract remedy that permits enforcement of a promise that induces actual and reasonable reliance on the part of the plaintiff, at least to the extent of the plaintiff’s reliance damages. The doctrine is available when a promise lacks the elements of contract; a threshold question is whether the promise created an enforceable contract.
The medical-leave representations contained in Gilead’s employee handbook (repeated in its letters to Peters) may have created an enforceable contract under Indiana law, giving Peters a contractual right to the equivalent of FMLA leave (that is, 12 weeks) regardless of his statutory ineligibility. If the representations in the handbook are not contractually enforceable, Indiana’s promissoryestoppel cause of action allows enforcement of Gilead’s promises to the extent of the reliance harm Peters suffered. Accordingly, we need not decide whether this is an “appropriate case” to apply FMLA eligibility-by-estoppel, a possibility assumed but not decided in Dormeyer.
Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
In Aubrie Sanders v. John Sanders (NFP), a 12-page opinion, Judges Barnes writes:
David McNamar, attorney for Aubrie Sanders, appeals the trial court’s order directing him to pay the attorney fees of Katherine Harmon, attorney for John Sanders, as discovery sanctions. We affirm in part and reverse in part.NFP criminal opinions today (1):
Issue. The sole restated issue that we address is whether the trial court properly sanctioned McNamar for alleged discovery violations in the Sanders’ divorce action. * * *
Conclusion. We reverse $750.00 of the sanctions imposed against McNamar but affirm the remaining $2223.00. We deny Harmon’s request for appellate attorney fees. Affirmed in part and reversed in part.
Ind. Law - Looking back through the ILB archives
From the Indiana Law Blog archives, one year ago this week:
- Ind. Law - Governor replaces commissioner of the Department of Local Government Finance; she starts Monday (Friday, July 13, 2007)
- Ind. Courts - "Entire constellations of political stars have dimmed, and sometimes flickered out, since Van Bokkelen was appointed in 2001" (July 15, 2007)
- Ind. Courts - Judge Patrick Sullivan retirement ceremony on Friday, July 20 (July 16, 2007)
- Courts - Federal judge John Daniel Tinder (SD Ind.) nominated to 7th Circuit (July 17, 2007)
- Environment - Protests grow over BP permit to increase dumping in Lake Michigan (July 19, 2007)
- Ind. Decisions - Inside details on Hammon v. Indiana argument before the U.S. Supreme Court (July 14, 2006)
- Ind. Courts - "Audit finds disorder in Payne court" (July 16, 2006)
- Ind. Courts - Six Indiana appellate judges up for retention in November (July 17, 2006)
- Ind. Decisions - More on the Court of Appeals' "not-for-publication" opinions (July 13, 2005)
- Indiana Courts - State judicial commission suspends Judge Kouros (July 15, 2004)
- Indiana Courts - Sarah Evans Barker's First 20 Years on the Federal Bench (July 18, 2004)
- Indiana Courts - Impact of Blakely in Indiana Reported (July 19, 2004)
- Indiana Law - The Elderly Drivers Issue (July 17, 2003)
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This week's oral arguments before the Court of Appeals that will be webcast:
This week's oral arguments before the Court of Appeals that will NOT be webcast:
This Tuesday, July 15th:
11:00 AM - JPMorgan Chase Bank, N.A., vs. Ricky J. Ferraro - CANCELLED
This Wednesday, July 16th:
10:00 AM - Star Transport, Inc. v. Hervey Byard - Hervey Byard was struck by a car when he was attempting to direct traffic around a tractor-trailer, driven by Jeffrey Cottingham, that was stopped after a minor one-vehicle accident and partially blocking State Road 421 in Osgood. Byard sued Cottingham and Star Transport, alleging they were partially at fault for his injuries, and a jury found in Byard's favor. The first issue on appeal is whether the trial court properly instructed the jury that it could rely on the "rescue doctrine" theory of liability against Cottingham and Star Transport. Cottingham and Star Transport also challenge the trial court's refusal to instruct the jury on the defense of incurred risk and its requiring Star Transport and Cottingham to share peremptory juror challenges with the driver of the vehicle that stuck Byard. The Scheduled Panel Members are: Judges Vaidik, Barnes and Bradford. [Where: Indiana Court of Appeals Courtroom]
Sunday, July 13, 2008
Ind. Law - More issues with the General Assembly's website
The Acts of Indiana. Recently the General Assembly posted the PDF files for the Acts of 2008 on its website. That would be a good thing, except for two problems.
The first is that the file is very large (16M), so I'd advise downloading it rather than trying to open it online.
The second is that when it posted the link for the Acts of 2008, the General Assembly removed the link for the Acts of 2007. This despite the urging of myself and many others that the files for ALL the volumes of the Acts of Indiana be made available to the public. (I've been urging this for five years; obviously to no effect.)
The worst part of this is, the PDF files for the Acts of Indiana for six years -- 2002 through 2007 -- are all still there online, but they are inaccessible because the General Assembly has eliminated the links!
The Indiana Code. Although nearly every law passed earlier this year by the General Assembly took effect July 1, if not earlier, the online Indiana Code has not been updated to reflect the 2008 General Assembly's actions.
I've written that the online Indiana Code may not be relied on as the official version, that the online Indiana Code has errors, and that many provisions of the Indiana statute law that are in effect are not included in the Indiana Code.
Even so, for the majority of Indiana's citizens, including many lawyers, the online Code is unfortunately all there is.
But the online Indiana Code, which should have been updated at the very latest, by July 1st, sets out the law as it existed on July 1, 2007..
BTW, if you go to the online Indiana Code, as I did this afternoon, you will see this note:
The Indiana Code has been updated to reflect changes made by the 2007 General Assembly and HEA 1010 from the 2008 Session of the General Assembly.Okay, what is "HEA 1010 from the 2008 Session"? It is the property tax bill that was passed in November 2007. It took effect Nov. 21, 2007, except for SEC. 8, which took effective retroactively to Jan. 1, 2007, and SEC. 9, whch took effect retroactively to July 1, 2007. It is now referenced as PL 1-2008.
Courts - "Supreme Court finds history is a matter of opinions"
David G. Savage of the LA Times writes today in a lengthy story that begins:
In 1985, President Reagan's attorney general, Edwin Meese III, criticized the Supreme Court's decisions and called on the justices to decide cases based on the "original intent" of the Constitution. The justices were wrong to rely on contemporary views of liberty and equality, Meese said; instead, they should rely on the understanding of those concepts in the late 18th century, when the Constitution and the Bill of Rights were written.From later in the article:
This year the Supreme Court relied more than ever on history and the original meaning of the Constitution in deciding its major cases.
In doing so, however, the court has drawn criticism from some historians and legal experts who say the justices' readings of history were less than scholarly. And the justices sometimes disagreed sharply on the historical record, demonstrating that divining the original meaning of the Constitution is no small matter.
The court's new focus on history drew the attention -- and some snide blog postings -- of legal historians who faulted the justices for selectively citing cases and writings to bolster their favored view.
"Neither of the two main opinions in Heller would pass muster as serious historical writing," Stanford University historian Jack Rakove wrote on a blog called Balkinization.
Neither Scalia nor Stevens is a "competent historian," University of Texas at Austin professor Sanford Levinson wrote in another Balkinization posting. Their work is "what is sometimes called 'law-office history,' in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one suspects are predetermined positions."
Harvard law professor Mark Tushnet, like Levinson, has studied the 2nd Amendment. Tushnet wrote that both opinions "demonstrate why judges shouldn't play historian."
History is complicated, Tushnet suggested, but the law requires clear answers, and the justices "share the natural human tendency to exaggerate the case that can be made for the side they ultimately favor."
Environment - Still more on "Flares at heart of BP air permit appeal"
On June 7th the ILB quoted from a story by Daniel Human of the Gary Post-Tribune:
A recent EPA ruling in Illinois might set a precedent that could help environmentalists in their appeal against BP's air permit, but the company stands by the permit it's been granted in Indiana.Unfortunately, when I went back to check on the Post-Tribune story, it was no longer available -- the paper apparently maintains its archives for only 30 days.
A U.S. Environmental Protection Agency appeal board stripped ConocoPhillips of its air permit for the expansion of the company's refinery in Roxana, Ill., last week.
In the appeal, the Natural Resources Defense Council presented a case pertaining to the refinery's flares, which release pressure by burning off extra and harmful gases but in turn release other pollutants into the air.
Today Christine Kraly of the NWI Times, which laudably maintains its archives forever, reports under the headline "BP critics see hope in prior case." The story begins:
Environmentalists in a new federal fight against BP Whiting's air permit say they come armed with a similar win already in hand.For more on the federal BP challenge, see this ILB entry from July 9th.
The Natural Resources Defense Council is hoping to capitalize on a fresh success in challenging an air permit for ConocoPhillips in Roxana, Ill.
"We're heartened in the recent decision in the ConocoPhillips case," NRDC Senior Attorney Ann Alexander said. "We have high hopes."
But a BP spokesman called the cases against the two refineries too different to claim any early victory against BP.
The challenge filed Wednesday in Hammond federal court claims, among other things, that BP did not account for increased pollution from three new flares -- the large torch structures used to relieve pressure in the refinery -- planned as part of the refinery's $3.8 billion expansion.
The U.S. Environmental Protection Agency last month upheld the permit, which was approved by the Indiana Department of Environmental Management. EPA spokesman Bill Omohudro said Friday the agency would not comment on the lawsuit against BP because the EPA had not completed a review of the case.
An EPA appeal board last month upheld an NRDC challenge to the ConocoPhillips refinery, based on the argument that the refinery had not properly controlled its flare emissions. The decision means that refinery will have to seek a new permit.
But a BP spokesman called the issues between the two refineries very different.
For more on the ConocoPhillips decision, see this story dated June 10th from the Environmental News Service headed "U.S. EPA Rejects ConocoPhillips Refinery Expansion."
Environment - Update on the drafting of Indiana anti-degradation rule
Gitte Laasby of the Gary Post-Tribune reports today on the status of IDEM's rewriting of the anti-degradation rule. Some quotes:
IDEM, industry representatives, environmentalists and municipal officials have met several times so far to clarify the language in what's called the anti-degradation rule, and will be meeting in smaller groups several more times in the coming months. The next time is Tuesday. [ILB - That would be July 15]Here is a History of Indiana's Antidegradation Implementation Rulemaking, presented to the Water Pollution Control Board on Jan. 9, 2008.
The good news is that the group has been working on clarifying how much review of alternatives to increased discharges needs to be done.
"What upset environmentalists with the BP application is that it did not go through a thorough technical review. They simply said, 'We don't have room for the additional treatment, so we're not going to do it.' That's not good enough," Bowden Quinn, conservation program coordinator with the Hoosier Chapter of the Sierra Club, said. "That's why we want better guidelines in the rule as to what would be required."
To the industrial community, it's important the new rules reflect a clear process and are consistently applied to everyone, Kay Nelson, environmental director for the Northwest Indiana Forum, said.
"What we're looking for, from a business, economic development standpoint -- as a state, not just Northwest Indiana -- is that the anti-degradation rule provides clarity so that when the permit is applied for, there is certainty that if you have done all of those things necessary to getting this permit" you will get it, Nelson said.
Ideally, environmentalists would like to see every increase in pollution evaluated. That includes assessing whether the increase is necessary, whether it can be minimized or avoided, and if so, at what cost.
Industry wants a fast permitting process to remain competitive. Companies believe the existing permitting process already asks them to use best available technology to minimize discharges. They say they're already required to meet state water quality standards so people can still use the water for swimming, drinking water and fishing.
Environmentalists counter that the standards for best available technology are set by the Environmental Protection Agency and that some haven't been reviewed for 20 years.
Both industry and environmentalists called IDEM's schedule for the rulemaking very ambitious.
IDEM Commissioner Tom Easterly was hoping the rule would be done by the end of the year. Once the rule is done, the Water Pollution Control Board would still have to approve it, and it would need to be out for public comment.
Here is the IDEM Anti-degradation rewrite webpage. It has information from the first two meetings of the informal anti-degradation workgroup. However, it says nothing about a July 15th meeting. Neither does the official IDEM calendar.
[Update 7/14/08] I'm told this is a subgroup of the workgroup, not the full body.]
Ind. Courts - A second Delaware County judge wants answers re handling of forfeiture cases in Muncie
The Muncie-Delaware County Drug Task Force, through its attorney, county Prosecutor Mark McKinney, disposed of money and property from a high-profile drug dealer last year without a court order.
The use of a confidential agreement that distributed over $50,000 in cash seized during the arrest of suspected drug dealer Adrian Kirtz, and his acquaintance, Lacie Williams, was done after Delaware Circuit Court 4 Judge John Feick ordered the assets frozen and not distributed.
Feick assumed that order was still in place until informed of the confidential agreement by Delaware Circuit Court 2 Judge Richard Dailey, who is investigating whether the prosecutor committed fraud in handling forfeiture cases.
"That causes me concern," said Feick, about the DTF distributing funds and property when the court ordered them frozen.
On Friday, Feick ordered McKinney's office to file a status report on the forfeiture case within 10 days.
The confidential settlement agreement between the DTF, Kirtz and Williams gave the DTF $35,774 in cash, a 2003 GMC Denali, a 1993 Kawasaki motorcycle and other personal property from the defendants' residence.
Law - "Who Killed Chandra Levy?"
The Post series provides a rare look at an unsolved homicide case from the inside, following the twists and turns of an investigation that was filled with false hopes, false leads and false suspects. It would tarnish a police department and wreck a reputation. It would move with tremendous energy and purpose in one direction and end up in another. It would be marked by an enormous effort by police - and a chain of mistakes that got longer and longer.
Ind. Law - "New alcohol regulations served up"
Gavin Lesnick of the Evansville Courier & Press reports today:
New alcoholic beverage regulations and enforcement laws that went into effect July 1 in Indiana mean changes ranging from allowing alcohol sales on New Year's Day to limiting the number of permits allowed in each community to mandating training for beverage servers.
Indiana State Excise Police Master Officer Scott Bedwell said the new laws, which range from big changes to procedural tweaks, are among the most he has seen in any year.
"There have been quite a few additions to the laws this year," he said. "... I've been doing this for almost 18 years, and I think they've made some real good changes."
He said the most significant among them may be new outlines that significantly reduce the number of alcohol permits available for grocery and drug stores.
Beer dealer permits — for grocery and convenience stores — and liquor dealer permits — for drug stores — previously operated well beneath their quota of 82 in Evansville.
But the new laws set limits based on population and the quota is just 23 for Evansville for each type. There are 15 existing liquor dealer permits, but already more than 23 beer permits.
None will be rescinded, but under the new laws only two additional beer dealer permits now can be issued.
Restaurant permits in Evansville have long been over quota, meaning a business seeking to get one must purchase it from a current permit holder. Bedwell said they sometimes sell for up to $30,000 locally.
He said it's unclear if a similar situation will develop for beer and liquor dealers as the permits run out.
The new laws also establish a firm definition of grocery store for permit purposes. It includes traditional supermarkets, gas station convenience stores, combination food-merchandise stores such as Wal-Mart and specialty food stores.
Being included in the grocery store heading may help gas stations. Owners of those businesses frequently appear before the board to seek beer permits, Bedwell said. But the quota system may make it a moot point.
"With the numbers going down so much, the convenience store issue now is almost a nonissue," he said. "There won't be the permits available."
The new laws also offer some restrictions for convenience stores such as those at gas stations: They must submit sales numbers to the state, and no more than 25 percent of their gross sales other than gas can come from alcohol.
Other changes brought by the new laws include:
- Alcohol sales at grocery stores and liquor stores on New Year's Day now will be allowed.
- People who serve alcohol must undergo mandatory training.
- Anyone who wishes to speak at a county alcoholic beverage commission must be allowed to do so.
- It is now a class C misdemeanor for a minor to make a false statement of his age, up from an infraction. It is also a class B misdemeanor for a person to intentionally furnish alcohol to a minor. It becomes a class D felony if bodily injury or death results.
Law - Soul singer James Brown and the right of publicity
NPR's Morning Edition last Friday had a fascinating, nearly 6-minute feature on the right of publicity. You may read or listen to it. A quote:
You've likely seen a concert photo of Brown — sweat pouring off his face, his features twisted with emotion. William Coulson, the attorney for Brown's estate, says when a phone card company put one of those images on its cards, it violated Brown's "right of publicity."Indiana has such a law, at IC 32-36-1-19. For more on the Indiana right, see this ILB entry from May 5, 2007.
"The right of publicity is the right to your image and your voice and other personal characteristics," Coulson says. "And you are protected from the commercial use by somebody else of your image. It's a little different from copyright. You can copyright a song, you can copyright a movie — that is a tangible work of art. … But rights of publicity are quite different."
If a photographer takes a photograph, the photo is an original work and it's protected by copyright. But the subject of that photo must grant permission before it is used on a product like a T-shirt or a mug. Celebrities typically charge a licensing fee for that use. The "right of publicity" is a law in about 20 states.
BTW, the ILB looked up the website of the attorney in the James Brown story, William Coulson and found that his firm, Gold & Coulson in Chicago, has a rather attractive law firm website.
Courts - The Supreme Court and its conundrum of continuity and change
Linda Greenhouse, who is soon to leave the NY Times after 30 years, offers reflections and a personal overview of the Supreme Court's work titled "2,691 Decisions." Here is a sample:
[I]t is often the court that eventually retreats when it finds itself out of sync with the prevailing mood. That appeared to be the case with the “federalism revolution” that Chief Justice Rehnquist began in the mid-1990s. In a series of 5-to-4 decisions, the court declared that Congress did not have the power it assumed it had to make federal statutes binding on the states. These decisions, reflecting the chief justice’s longstanding goal to re-adjust the post-New Deal federal-state balance, signaled an abrupt jurisprudential shift.
But then 9/11 happened and the national mood changed. Suddenly, the federal government looked useful, even necessary. The Supreme Court’s federalism revolution had been overtaken by events. In 2003, Chief Justice Rehnquist wrote for a 6-to-3 majority that Congress acted within its constitutional authority when it said state governments could be sued for failing to give their employees the benefits required by the Family and Medical Leave Act. It was a decision of enormous symbolic significance. Without apology or much in the way of explanation, the chief justice gave up the fight and moved on.
Saturday, July 12, 2008
Environment - Still more on "Huntington County dairy coming under new management"
Updating this ILB entry from March 26th which quoted a story by Niki Kelly of the Fort Wayne Journal Gazette that began:
There is good news and possible bad news for neighbors who have been fighting with the troubled DeGroot Dairy in rural Huntington County.July 9th Carl Smith reported for Indiana's News Center:
Owner Johannes DeGroot and DeGroot Dairy LLC are barred from operating animal feeding operations in Indiana through 2048 under an agreement with the Indiana Department of Environmental Management.
But the new operator – Ohio-based Vreba-Hoff Dairy Development LLC – has had regulatory skirmishes in other states and plan to nearly double the herd size of the Huntington farm to pay for improvements.
A dairy farm that was ordered to change ownership due to environmental violations has submitted a permit to expand its operations. The Indiana Department of Environmental Management held a public hearing to discuss expanding operations for the Huntington County dairy.Yesterday and today the Muncie Star- Press and a number of other Indiana papers carried this unattributed AP report. Some quotes>
Johannes De Groot was forced to sell the dairy faciltiy for environmental violations such as water application processes and applying manure in fields without proper slopes. The new owners Andrews Dairy, L.L.C want to expand operations from 3 barns and 1400 cows to 5 barns and 2500 cows. They are currently operating on the original owner's permit.
Most everyone attending the meeting was not only against the farm expanding, but the farm being in existence at all.
Residents are concerned a new dairy that wants to expand on the site of a former operation that was shut down over manure spills might have similar problems.
The dairy was sold earlier this year to Ohio-based Vreba-Hoff Dairy Development LLC as part of a legal order barring the former owner, Johannes DeGroot, from operating livestock farms in Indiana through 2048. The agreement resolved legal proceedings over several manure discharges that had spilled into tributaries of northeastern Indiana’s Salamonie Reservoir.
Now Vreba-Hoff, which runs the dairy as Andrews Dairy LLC, is seeking a permit to expand the operation from 1,400 to 2,500 cattle. * * *
“We were told that the farm’s problems would be taken care of but they have not. We know that it was not built to specifications and there were problems with construction,” Jackie Lindsey said. “It’s been a living nightmare and nothing has changed, just a shift in name. I have no confidence in the ability of IDEM.”
Dennis Lasiter of IDEM said he believes the requirements of the permit will be enough to stabilize the operation. “It is protective, it provides unique conditions and it really is more protective than most farm permits out there,” he said.
But business owner Chuck Homier said he saw no reason the farm should receive the permit. “How can we reward a farm that has broken every possible rule by allowing them to double its cows?” he asked.
Ind. Courts - Updating "Supreme Court issues emergency order re handling of forfeiture cases in Muncie"
The Indiana Supreme Court on Friday gave Delaware Circuit Court 2 Judge Richard Dailey the green light to proceed and act in drug forfeiture cases now being investigated for alleged fraud.
After a unanimous decision, Chief Justice Randall Shepard signed the order denying Delaware County Prosecutor Mark McKinney's motion to appoint a special judge to the forfeiture cases.
McKinney had maintained Dailey was exceeding his authority presiding over the more-than-50 forfeiture cases, and that the judge and his court staff were biased against the prosecutor.
Dailey in recent weeks began conducting hearings into allegations that some forfeiture cases had been settled without court orders or any adjudication of law enforcement costs, as required by law.
There also were reports of cash and assets belonging to alleged drug dealers being disposed of through confidential settlements, without any in-court forfeiture action.
In a brief -- prepared by Dailey's attorney, Peter Drumm, and city attorney Charles R. "Chic" Clark -- the judge argued he was not prohibited by trial rules from exercising jurisdiction in the cases, given that Delaware County has a unified court system that allows for transfer of cases among judges. * * *
The Supreme Court vacated an emergency order issued last month that allowed Dailey to hear but not act in the forfeiture cases. The Superior Court 2 judge now has the authority to proceed with the cases.
The Supreme Court's disciplinary commission also is investigating a complaint filed by Muncie Mayor Sharon McShurley that accuses McKinney of misleading the court by not filing proper court orders to disperse seized money and property. Those assets went into Muncie-Delaware County Drug Task Force bank and checking accounts and not to local government general funds or school common funds, as required by state law, McShurley alleges. * * *
Dailey is expected to conduct more hearings this month, reviewing contents of the DTF safe.
An inventory this week showed the safe had nearly $80,000 in cash from both pending and closed drug cases. Also in the safe was more than two kilograms of cocaine seized from Christopher Bryant, a 24-year-old Muncie man expected to plead guilty this month to federal drug-related charges in U.S. District Court.
Friday, July 11, 2008
Environment - "Bush to partners: 'Goodbye from the world's biggest polluter'" [Updated]
Seriously. See the story from the LA Times ...
[Updated 7/12/08] "Decisions Shut Door on Bush Clean-Air Steps " is the headline to this story today on the front-page of the NY Times, reported by Felicity Barringer. It begins:
Any major steps by the Bush administration to control air pollution or reduce emissions of heat-trapping gases came to a dead end on Friday, the combined result of a federal court ruling and a decision by the head of the Environmental Protection Agency.
In the morning, a federal appeals court struck down the cornerstone of the administration’s strategy to control industrial air pollution by agreeing with arguments by the utility industry that the E.P.A. had exceeded its authority when it established the Clean Air Interstate Rule in 2005. The court, the United States Court of Appeals for the District of Columbia Circuit, said the rule, which set new requirements for major pollutants, had “fatal flaws.” [Note: See ILB entry in the ruling here.]
A few hours later, the E.P.A. chief rejected any obligation to regulate heat-trapping gases like carbon dioxide under existing law, saying that to do so would involve an “unprecedented expansion” of the agency’s authority that would have “a profound effect on virtually every sector of the economy,” touching “every household in the land.”
Taken together, the developments make it clear that any significant new effort to fight air pollution will fall to the next president.
Ind. Decisions - Transfer list for week ending July 11, 2008
Here is the Indiana Supreme Court's transfer list for the week ending July 11, 2008.
There are only four cases listed, and all are granted transfer. For details, see this ILB entry from earlier today.
Over four years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
Enironment - DC Circuit strikes down the Clean Air Interstate Rule (CAIR)
North Carolina and some electric power producers opposed aspects of the regulation and President Bush found himself with unusual allies.
"This is the rare case where environmental groups went to court alongside the Bush administration," said Frank O'Donnell, president of Clean Air Watch, a group that has criticized other Bush administration policies.
The U.S. Court of Appeals for the District of Columbia Circuit ruled Friday that the EPA overstepped its authority by instituting the rule. It said the Clean Air Act did not give the EPA the authority to change pollution standards the way it did. Citing "more than several fatal flaws," the court scrapped the entire regulation.
"This is without a doubt the worst news of the year when it comes to air pollution," O'Donnell said.
Ind. Decisions - 7th Circuit rules in two Indiana cases today
In Manez, et al v. Bridgestone Firestone (SD Ind., Judge Barker), a 28-page opinion, Judge Wood concludes:
In summary, we conclude that the district court had subject-matter jurisdiction to decide whether there had been an abuse of process and that Pereznieto’s contacts with the Indiana proceeding were sufficient to support personal jurisdiction over him. We further conclude that although the district court possesses inherent authority to address the kind of abuse with which Pereznieto is charged, Pereznieto did not receive constitutionally adequate notice and an opportunity to be heard in the proceeding that led to the $100,000 fine and other sanctions against him. We therefore VACATE the order and REMAND to the district court for reconsideration in light of this opinion. Each party shall bear its own costs on appeal.In US v. Nunez (SD Ind., Judge Barker), a 17-page opinion, Judge Bauer writes:
On appeal, Nunez argues that the district court erred in permitting the jury to use transcripts of intercepted phone conversations that marked and defined alleged code words for drug terms. Nunez also asserts that multiple instances of prosecutorial misconduct amount to cumulative error resulting in an improper verdict. For the following reasons, we reject Nunez’s contentions and affirm his conviction.
Ind. Decisions - Court grants transfer in 4 cases
The formal transfer list should follow later today, but the ILB has received advance notice about four cases granted transfer yesterday, July 10th:
State v. Chad Arnold - Deals with the issue of expungement. See 3/11/08 COA ruling here.
Edwin D. Hayes, Jr. v. State - Sentencing. See 1/31/08 COA ruling here.
Stanley Klotz v. Sarah Hoyt - Deals with a landlord-tenant dispute. See 2/25/08 COA ruling here.
Christine Scheible v. Ronald Smith - Concerns whether the vendor in a land-sale contract owes a duty to third parties. See 3/7/08 COA ruling here.
Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP)
For publication opinions today (2):
In Thomas Williams and Sanford Kelsey v. Kelly Eugene Tharp and Papa John's U.S.A., Inc. , an 18-page opinion, Judge May writes:
Two African-American men, Thomas Williams and Sanford Kelsey, went to a Papa John’s restaurant in Westfield to pick up a pizza they had ordered. They paid for the pizza and left for Williams’ home. An employee falsely reported one of the men pulled a gun. A number of police officers surrounded their vehicle when the two returned home with the pizza. Police detained the men, in handcuffs and on their knees, for an hour and a half while they investigated.In Matthew J. Aplin v. State of Indiana , a 7-page opinion, Judge Bailey writes:
Williams and Kelsey sued Papa John’s and its employee for defamation, false imprisonment, negligence, and intentional infliction of emotional distress. The trial court granted summary judgment for Papa John’s and its employee on the ground the complaint included no defamatory statement; it also found the employee’s statement was privileged even if defamatory and the employee did not act intentionally or in an extreme and outrageous manner. We reverse and remand for trial. * * *
[ILB: Note from p. 2 that "[I]n February 2005, Kelsey came to Indianapolis for a job interview with a law firm.]
Williams and Kelsey’s complaint adequately alleged a defamatory statement and there is a genuine issue of fact as to whether Tharp’s statement was protected by a privilege. We accordingly reverse summary judgment for Tharp and Papa John’s and remand for trial.
Appellant-Defendant Matthew J. Aplin (“Aplin”) appeals his convictions for Attempted Sexual Misconduct with a Minor, as a Class B felony, and Child Solicitation, as a Class C felony. We reverse the Attempted Sexual Misconduct with a Minor conviction and affirm the Child Solicitation conviction. * * *NFP civil opinions today (5):
The Internet conversation ended at 3:24 p.m. and by 4:13 p.m. Aplin arrived in his green truck at the Fishers Super Target parking lot. He was wearing tan pants, a yellow shirt, and a green sweater. Officers observed Aplin walk to the entrance of the Starbucks and “peer inside.”
The State presented sufficient evidence from which the jury could conclude that Aplin used a computer network to solicit a person he believed to be fifteen years old to engage in deviate sexual conduct. Aplin’s emphasis on the youthful appearance of the Internet photograph of “glitterkatie2010” and the Yahoo requirement that chat room participants be at least eighteen years of age is merely an invitation to reweigh the evidence. This we cannot do. Drane, 867 N.E.2d at 146.
Conclusion The State did not establish Aplin’s commission of Attempted Sexual Misconduct with a Minor. Therefore, we remand with instructions to the trial court to vacate this conviction and sentence. However, there is sufficient evidence to support Aplin’s conviction for Child Solicitation. Affirmed in part, reversed in part, and remanded with instructions.
The Invol. Term. of Parent-Child Rel. of G.E. (child) and Angela E. (mother) v. Marion Co. Dept. of Child Svcs. (NFP) - "We cannot ignore the exceptional facts here demonstrating a commitment by Emswiller to turn her life around and change her conditions as necessary to parent G.E. She has taken advantage of many opportunities during her incarceration to learn a trade, to deal with her substance abuse, and to improve her parenting skills and education. She has secured placement in a program that will ease the transition from incarceration and put her on a path to an independent life. The trial court’s conclusions that there is a reasonable probability that the conditions that resulted in the removal will not be remedied and that the continuation of the parent-child relationship poses a threat to G.E. are not supported by the evidence.
"Conclusion We find that DCS did not present sufficient evidence to terminate Emswiller’s parental rights at this time. We reverse."
Michael A. Williamson v. Penny Jane (Williamson) Rose (NFP) - "Appellant-Respondent Michael A. Williamson (“Michael”) appeals the denial of his Indiana Trial Rule 60(B) motion to set aside a judgment obtained by his ex-wife Appellee-Petitioner Penny Williamson (“Penny”). We reverse and remand for an evidentiary hearing. * * *
"In ruling on a Trial Rule 60(B) motion, the trial court must balance the alleged injustice suffered by the party moving for relief against the interests of the winning party and societal interest in the finality of litigation. Id. To this end, T.R. 60(D) requires a hearing at which pertinent evidence is to be presented. We decline to review the “exhibits” presented by Michael and remand for the development of a factual record in a T.R. 60(D) hearing. Reversed and remanded."
Black Cowboys, LLC v. State of Indiana Department of Natural Resources (NFP) - "Black Cowboys operated a saddle barn concession at Fort Harrison State Park under a license from the Department of Natural Resources (“DNR”). Black Cowboys brought a breach of contract action against DNR after DNR terminated the concession. The trial court denied Black Cowboys’ motion for summary judgment and granted DNR’s motion. We affirm. * * *
"DNR could properly terminate its contract with Black Cowboys based on the complaints it had received from the public. The license agreement permits DNR to immediately terminate the agreement “where continued operation by the Licensee may result in significant or irreparable harm to the Department and/or the public. * * *
"The undisputed evidence of complaints about the condition of the horses while Black Cowboys operated the saddle barn supports a determination Black Cowboys’ operation of the saddle barn “reflect[ed] adversely on the Department” and summary judgment for DNR was therefore not error. Affirmed."
Darrin Coomer v. DaimlerChrysler Corp., et al (NFP) - "Appellant-plaintiff-cross-appellee Darrin Coomer appeals the trial court’s grant of summary judgment in favor of appellees-defendants-cross-appellants DaimlerChrysler Corp., Metadyne Corp., and NC-M Chassis Systems, LLC (collectively, the appellees). Specifically, Coomer argues that the trial court erred in granting summary judgment in favor of the appellees because the evidence establishes a good faith dispute regarding the cause of his seizures. Additionally, the appellees cross-appeal the trial court’s denial of their motion to strike Coomer’s expert’s affidavit and report. Concluding that the appellees were entitled to summary judgment as a matter of law because Coomer’s designated evidence was insufficient to establish causation, we affirm the judgment of the trial court."
Matthew Gregory v. DaimlerChrysler Corp., et al (NFP) - "Appellant-plaintiff-cross-appellee Matthew Gregory appeals trial court’s grant of summary judgment in favor of appellees-defendants-cross-appellants DaimlerChrysler Corp., Metadyne Corp., and NC-M Chassis Systems, LLC (collectively, the appellees). Specifically, Gregory argues that the trial court erred in granting summary judgment in favor of the appellees because the evidence establishes a good faith dispute regarding the cause of his seizures. Additionally, the appellees cross-appeal the trial court’s denial of their motion to strike Gregory’s expert’s affidavit and report. Concluding that the appellees were entitled to summary judgment as a matter of law because Gregory’s designated evidence was insufficient to establish causation, we affirm the judgment of the trial court."
NFP criminal opinions today (8):
Ind. Law - "Artist asks Valparaiso board to define vendor policy"
We've reported on the development of golf cart ordinances and wind farm ordinances, as well as local efforts at governing outdoor wood-fired boilers.* Today it is artists working on street corners. James D. Wolf Jr. writes today in the Gary Post-Tribune:
VALPARAISO -- A man trying to sell his paintings on the southeast corner of Lincolnway and Franklin Street for a week has the city trying to define what it will allow for outdoor vendors._______________
Kelly Zollman, who moved to Valparaiso from Oregon, asked the Board of Works and Safety on Thursday what he needs to sell his paintings against the bare wall of the commercial building.
"I'm not opposed to people selling paintings on the sidewalk, but it has to be thought out," board member Chuck Williams said.
A hot dog vendor couldn't set up in front of a restaurant and the city needs to develop a policy to address such situations, he said.
Valparaiso had an ordinance regulating door-to-door sales and vending but, after recent U.S. Supreme Court rulings, stopped enforcing it, City Clerk Sharon Swihart said.
City attorney David Hollenbeck said it used to be that "commercial speech" was less protected than religious or political speech, such as having signs on one's lawn saying "Out of Iraq."
Despite the Supreme Court's rulings, "we still reserve the right to regulate time, place and manner," Hollenbeck said.
Until it decides on a policy, the city has asked Zollman to move his sales to the Farmer's Market at Lafayette Street and Indiana Avenue, which operates three times a week.
*Not to mention, adult bookstores.
Ind. Courts - Federal court decides in favor of Nettle Creek in teacher's discrimination case
The Richmond Palladium-Item's Natalie Root reports today on federal judge Richard L. Young's 51-page ruling July 3rd in the case of Lucero v. Nettle Creek School Corp. Thanks to the Pal-Item, you may access the opinion here. From the lengthy story:
A federal district court judge ruled in favor of the Nettle Creek Schools last week in a case brought against the school corporation by an English teacher at Hagerstown Junior-Senior High School.
Sharon Lucero filed the lawsuit after she was moved from teaching honors and regular senior English to seventh-grade English for the 2004-05 school year. The lawsuit brought 11 different claims alleging the violation of her civil rights, including allegations of sexual harassment; a hostile work environment; breach of contract; administrative retaliation; violation of the school board's Just Cause and Appeal Policy; and discrimination on the basis of sex, race, color and national origin. The allegations related to events taking place during the year she taught senior English and for about a year following that time.
In his ruling, Judge Richard L. Young said he found that Principal Mark Childs' reassignment of Lucero to seventh-grade English, which she had taught the first year she was hired, was not an "adverse employment action," and she wasn't being retaliated against by being moved to an inferior position.
"Mr. Childs' decision to reassign her to seventh-grade English was grounded in reason and logic, and was a legitimate exercise of his discretionary authority as principal of the junior-senior high school," said Young in his ruling.
A press release from the Nettle Creek Schools said the reassignment was made because Lucero had been a successful seventh-grade teacher and because it was "a better match between teacher and student."
Ind. Courts - More on: "Former Schererville judge to be sentenced today"
Former Schererville Town Judge Deborah Riga was sentenced Thursday to 15 months in prison -- substantially less time than she could have received for sending more than 1,000 of her defendants into programs from which she personally profited.Andy Grimm of the Gary Post-Tribune writes:
Defense attorney Nick Thiros pleaded for less prison time, arguing that the 51-year-old former judge -- his longtime colleague and friend -- was an honest-minded person who allowed herself to be corrupted by "political hacks" all around her.
"She relied on political people to sort of show her the way, and we know that's not right," Thiros said, urging U.S. District Judge Philip Simon to give Riga just five months in prison.
Thiros described Riga as a kind of reformer who came into a town court that had been created as a "political reward" and tried to use it for positive programs that helped youths and senior citizens. More than 30 people wrote letters to the court on her behalf.
Simon didn't buy it.
"This is not the fault of any political hack. This is the result of choices that you made, Ms. Riga, and it amounts to an abdication of your office," the federal judge told the former town judge. "It's really an affront to the citizens who elected you."
In addition to serving about 85 percent of her prison sentence, Riga will pay $12,120 in restitution to Schererville and the state. She was ordered to surrender to prison Sept. 23. * * *
Riga was eligible for up to four years in prison, but prosecutors agreed to compute her sentence using more lenient rules that were in place in 2002, which decreased her sentence by at least a year.
Another year was taken off the sentence because of her cooperation in the prosecution of former political ally Robert Cantrell, who was convicted last month of 11 counts of fraud.
Riga now lives in Florida, working on a management training program.
HAMMOND -- Nearly four years after she was indicted for extortion and fraud, former Schererville Town Judge Deborah Riga was sentenced Thursday to 15 months in federal prison.
Riga pleaded guilty two years ago to funneling fees from defendants she sentenced to a driving school she secretly owned and to demanding kickbacks from a counseling firm that worked with her court.
Arguing for a more lenient sentence, defense attorney Nick Thiros said Riga had been a well-intentioned civil servant until shady political advisers steered her wrong. * * *
Judge Philip Simon decided to split Riga's sentence into five-month blocks of prison time, home detention and supervised release so Riga would not lose her job in Sarasota. * * *
"I could not understand what would motivate you to do this for what is really a paltry sum ... whether it was arrogance or hubris," Simon said. "The citizens of Schererville, and more generally, of Indiana, deserve better."
Thursday, July 10, 2008
Ind. Decisions - 7th Circuit warns against baseless petitions
In a Per Curiam ruling on a petition for rehearing issued July 3rd, in the Wisconsin case of Easley v. Reuss, the court cautioned:
Petitions for rehearing and petitions for rehearing en banc are mechanisms governed by rule and designed to ensure the integrity of individual panel decisions and the consistent and thoughtful development of the law. The criteria for both petitions are explicit, and, in submitting petitions, we expect counsel to ensure that their petitions meet those criteria.This from an item dated July 8th in the Wisconsin Law Journal, written by David Ziemer. Read it all here.
Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)
For publication opinions today (1):
In Petition for the Establishment of the Millpond Conservancy District, an 8-page opinion, Judge Riley writes:
Appellants-Remonstrators, Ralph Holman and Wayne Crowl (Remonstrators), appeal the trial court’s order establishing the Millpond Conservancy District (District). We affirm.NFP civil opinions today (1):
Issue. Remonstrators present a single issue on appeal, which we restate as: Whether the trial court erred in establishing the District because one part of the proposed project underlying the District—the construction of a road and a bridge—does not appear in Indiana Code section 14-33-1-1, the statute that lists the permissible purposes for the establishment of a conservancy district. * * *
Remonstrators’ essential contention in this appeal is that they and the other freeholders in the proposed District should not have to pay for bridge and road construction. But according to the Commission’s report to the trial court, they will not have to pay for that part of the proposed project. * * *
Because the evidence before the trial court shows that the construction of the bridge and road will not be funded by the District, we need not determine whether that portion of the project is a permissible purpose for the establishment of a conservancy district under Indiana Code section 14-33-1-1. We conclude that Remonstrators have failed to present a case of prima facie error.
In Robert J. Norris v. Bennett's Clothing & Shoes, Inc. (NFP), a 10-page opinion, Judge Riley writes:
Appellant-Defendant, Robert J. Norris (Norris), appeals the trial court’s judgment awarding Appellee-Plaintiff, Bennett’s Clothing and Shoes, Inc. (Bennett’s Clothing), damages plus additional interest and costs on its claim for breach of contract. We affirm.NFP criminal opinions today (1):
Issue. Norris raises two issues for our review, one of which we find dispositive and which we restate as: Whether the trial court’s determination that Donna Norris was acting as Norris’ agent when she signed his name as a co-signer on a promissory note was clear error. * * *
Conclusion. Based on the foregoing, we conclude that the trial court did not commit clear error when it determined that Donna acted as Norris’ agent when she signed his name to the promissory note. Affirmed.
Courts - "Constitutional ballot proposal presents quandary for Michigan justices"
A lengthy and fairly odd AP story today in the South Bend Tribune, by David Eggert, begins:
LANSING -- Judges who would see a pay cut and in some cases a pink slip under a sweeping amendment to the state constitution likely will decide if the measure gets on the November ballot.Michigan allows constitutional amendments to be proposed via a referendum process. Here is another story, from July 9th, reported by Saulius Anuzis in the Detroit Free-Press. The story begins:
It's an ethical quandary because court rules say judges can be disqualified from hearing a case if they have an "economic interest" in the result.
The salaries of Supreme Court justices, Court of Appeals judges and trial judges would fall 15 percent if the proposal passes. It also would cut the number of high court justices from seven to five and appeals judges from 28 to 21 while adding 10 trial judges.
Backers of the amendment, including Michigan Democratic Party Chairman Mark Brewer, refuse to say who wrote it or paid to collect 487,000 signatures to try to put it on the ballot. But Brewer and other supporters say judges have a clear conflict of interest if they block the measure from reaching voters.
What happens when a constitutional amendment is so complicated that the amendment itself becomes unconstitutional?
We might be about to find out. Here's why.
A group calling itself Reform Michigan Government Now! -- a group that won't tell us anything about its members or where it gets its money -- has filed signatures for a constitutional amendment that involves wholesale changes to four different articles and 28 different sections of the 1963 Michigan Constitution, with a complicated implementation schedule and more fine print than a subprime mortgage.
Here's the rub: The same state Constitution requires that the ballot voters will see explain the "purpose" of this proposal in 100 words or less. A hundred words? Or less? Impossible.
Law - Chicago: "The winners in city scandals? The lawyers "
A long story today by Tim Novak, Art Golab and others today in the Chicago Sun-Times begins:
As City Hall's scandals mount, so do the legal bills for taxpayers.Even more interesting is the side-bar, which lists top billings of law firms to which the City has paid more than $49 million in legal fees since January 2004. Another list shows the city departments that have spent the most money on outside legal fees since January 2004. Topping the list by far: Police $34 million.
Since January 2004, Mayor Daley's administration has spent more than $625,000 on outside lawyers to represent city employees in federal criminal investigations, records show.
Ind. Law - Clinton County developing wind farm ordinance
Max Showalter reports today in the Lafayette Journal Courier:
FRANKFORT -- Members of the Clinton County Area Plan Commission Ordinance Review Committee spent some time Tuesday afternoon taking a close look at zoning regulations that govern potential wind farms in the county.
The meeting held here is the first session the committee has had since several members toured an 87-turbine wind farm in Benton County that began generating electricity earlier this year.
Clinton County's wind farm ordinance borrows much of its content from the one that was crafted for Benton County.
"We're picking line by line, word for word, through our ordinance," said Curt Emanuel, president of the Clinton County Area Plan Commission.
"We're trying to insert language and different clauses that we feel are applicable for the county. We'll be meeting on this for a while."
Emanuel said the committee wants language in the zoning ordinance to protect land and the property rights of landowners.
Ind. Courts - "Former Schererville judge to be sentenced today"
Joe Carlson reports today in the NWI Times:
HAMMOND | Exactly 25 months after Deborah Riga pleaded guilty to using her judicial powers to enrich herself, the former town judge is set to learn her prison sentence today.Here is a list of earlier ILB entries mentioning "Deborah Riga."
Riga was the second person ever elected town judge of Schererville, but her second term in office was stopped short after she was indicted on multiple counts of mail fraud.
Riga is eligible for a more lenient prison sentence because she cooperated extensively in the criminal investigation of East Chicago political fixer Robert Cantrell.
Cantrell was convicted last month of 11 counts of fraud. In court filings Monday, prosecutors said Riga's testimony was essential during the trial. In particular, Riga testified that Cantrell spoke openly about receiving cash kickbacks in exchange for arranging government contracts. * * *
Riga hired Cantrell's favored firm, Addiction and Family Care, in exchange for cash payments to counsel defendants in the Schererville court. She said Cantrell talked openly about getting cash kickbacks from the deal.
Riga pleaded guilty in June 2006 to a similar but unrelated scheme in which she used her judicial powers to force youthful defendants to attend driving and counseling classes at businesses she controlled.
Ind. Law - More on: "Anderson police remain on the lookout for a man believed to have abducted his lawyer at knifepoint"
Police on Wednesday night found a sport-utility vehicle stolen Monday from an Anderson attorney after a client left him tied up in a Madison County nature preserve.
A 2007 red Ford Escape owned by lawyer Thomas Hamer was found parked on Muncie's south side, outside the Aldi store at 3221 S. Madison St.
On Monday, Hamer was in the process of returning client Richard L. Hudson, 52, of Anderson, to the Madison County jail after a civil hearing in Indianapolis when Hudson allegedly took the lawyer hostage at knifepoint.
Hamer told investigators Hudson left him bound in the Rangeline Nature Preserve on Anderson's east side, the drove away in the attorney's SUV.
Authorities searching the SUV in Muncie late Wednesday said they believed they had also recovered the knife used in the abduction.
Hudson -- who spent more than 20 years in Florida prisons for 1981 armed robbery and assault convictions -- had been in the Madison County jail since June 11.
Ind. Courts - More on: Randolph County Courthouse plans still up in air
WINCHESTER -- Even with two new options on the table for the Randolph County Courthouse, officials learned Wednesday night that the least-expensive option for expansion is building an annex on the downtown square.Accompanying the Star-Press story today is a very long side-bar headed "Randolph courthouse timeline." The introduction:
It's not a popular option, but compared to more than $13.1 million that could be spent on an empty Marsh supermarket and $16.5 million to build next to the county jail, the $10.7 million for a two-story annex next to the existing courthouse looks like the best deal.
The dollars and cents, and lots of supporting details, were the focus of a two-hour presentation by Lester "Spike" Shepler Jr., the project manager hired to lead the courthouse renovation. * * *
Commissioners likely will discuss Shepler's report at their next regular meeting July 21. Even if they decide to stay the course and continue with the annex, there's another stumbling block that remains in the way. The project doesn't abide by the Unified Zoning Ordinance and was denied a variance by the Board of Zoning Appeals to continue.
In the years since officials voted to demolish the Randolph County Courthouse, that vote has been reversed, officials have been voted out of office and now county commissioners and council members are working on a building project. The project’s history includes these milestones:Here is an updated version of the story, with photo.
Wednesday, July 09, 2008
Environment - "BP Whiting’s air permit challenged" in Federal Court [Updated]
The Gary Post-Tribune this afternoon has a breaking news item by Gitte Laasby:
The Natural Resources Defense Council filed an appeal today against BP Whiting’s plant modernization project air permit in federal court in Hammond.[Updated at 6:00 PM] The NWI Times also has the story, along with a link to the 23-page complaint. Christine Kraly reports:
The NRDC argues that BP and the Indiana Department of Environmental Management have not properly accounted for increases in pollution that will result from the refinery modernization.
The increased pollution requires that the refinery control its pollution more effectively, and operate under a more stringent permit, the NRDC said.
“The permits simply do not protect the public and do not live up to the law. The failure of Indiana and BP to take the public interest and the law seriously has forced the issue and required that this case be brought before the federal courts,” said Ann Alexander, senior attorney with the NRDC.
HAMMOND | Environmentalists are taking another swing at BP’s new Whiting plant air permit, this time by suing the company in federal court.So what is the rationale justifying bringing suit in federal court?
The Natural Resources Defense Council filed a suit Wednesday against BP in federal court in Hammond for violations of the Clean Air Act, according to the NRDC.
The group’s lawsuit focuses primarily on three new flares -- the large torch structures used to relieve pressure in the refinery – planned as part of the refinery’s $3.8 billion expansion.
The rationale is explained in Paragraph 2 of the complaint, which states that CAA Sec. 304(a)(3):
allows any person to bring suit against one who "proposes to construct or construct any new or modified major emitting facility" without a major source permit. This action seeks a declaration that the Project requires a major source permit pursuant to Parts C and D of subchapter I of the CAA, imposition of an appropriate penalty, and a preliminary and permanent injunction prohibiting further construction of the Project until BP applies for an receives such a permit from IDEM
Ind. Decisions - 7th Circuit issues four Indiana opinions today
In U.S. v. Kevn L. Hicks (ND Ind., Judge Lee), an 11-page opinion, Judge Flaum writes:
Kevin Hicks was arrested when police responded to a 911 caller who reported that an armed man was beating a woman. Hicks was charged with being a felon in possession and moved to suppress the gun on the grounds that the officers lacked reasonable suspicion to stop him because of the striking inconsistencies in the 911 call. Specifically, the caller gave two different names for himself, said that he was inside a house before admitting that he was outside, and revised his position on whether the man he was reporting had a gun. The district court denied the motion, and Hicks entered a plea of guilty that preserved the suppression issue for appeal. Although the transcript of the 911 call reveals a somewhat questionable accusation, the responding officer, who did not hear the call, reasonably relied on the straightforward information that was transmitted to him. Thus, we affirm.In U.S. v. William J. Higdon (SD Ind., Judge Young), a 7-page opinion, Judge Posner writes:
I. Background. The strange story behind this case begins with a romantic triangle involving Hicks, Sylvia Lynn McClendon, and David Woodbury.
The defendant pleaded guilty to defrauding the Indiana Medicaid program of $294,000, in violation of 18 U.S.C. § 1347, which criminalizes schemes to defraud health care benefit programs. The guideline sentencing range, as the parties agreed and the judge determined, was 18 to 24 months. The presentence investigation report, and the prosecution, recommended that the defendant be sentenced within the guidelines range, but the district judge sentenced him to 60 months (as well as to pay restitution of the amount he had stolen). The defendant appeals only the prison sentence. * * *In Stephen D. Hemmer, DVM v. Ind. St. Db. Animal Health (SD Ind., Judge Barker), a 10-page opinion, Judge Flaum writes:
The last two mistakes or omissions, and also the first, could reflect the district judge’s possession of a personal penal philosophy at variance with the Sentencing Commission’s; and that, as we said, is permitted. But we can have no basis for confidence in such an inference, and the other six mistakes or misunderstandings that we have identified seem unrelated to a legitimate philosophical difference.
We suggest that when a judge decides to impose an outof- guidelines sentence—whether it is above or below the guidelines range—he write out his reasons rather than relying entirely on the transcript of his oral remarks to inform the reviewing court of his grounds. The discipline of committing one’s thoughts to paper not only promotes thoughtful consideration but also creates a surer path of communication with the reviewing court.
The judgment is vacated and the case remanded for resentencing.
Stephen Hemmer is a veterinarian employed by the Indiana State Board of Animal Health (“ISBOAH”). He was accused of violating certain employee procedures. After a severe motorcycle accident that rendered him disabled, he attended a hearing with his employer regarding the issue of whether he could be fired for cause on account of his failure to follow these procedures. Hemmer was discharged, and he appealed this decision to a state agency, and then the state trial court, where he argued that he was denied due process because, among other things, he was mentally incapacitated during the hearings. The Indiana Court of Appeals subsequently ruled that the state trial court—which agreed that Hemmer was denied due process—did not have jurisdiction to hear his case. Hemmer then decided to file a complaint in federal district court, again arguing that he was denied due process. The district court determined that it was precluded from hearing the claim because it was “inextricably intertwined” with a prior state court judgment. Because we find that the effect of the Indiana Court of Appeals decision was to void the prior state court judgment, we reverse. * * *In Eagle Services v. H2O Industrial Services (ND Ind., Mag.Judge Cherry), a 9-page opinion, Judge Posner concludes:
Similarly, in this case, Hemmer could not obtain an adjudication of his claims in state court because the Indiana courts ruled that they did not have the power to hear his case. Therefore, there was no decision on the merits that would cause the federal district court’s ruling one way or the other to become “inextricably intertwined” with a state court judgment. True, the Indiana trial court did mistakenly reach the merits of Hemmer’s claim, and ruled in his favor. But the subsequent Indiana Court of Appeals decision—which concluded that there was a lack of subject matter jurisdiction—had the effect of voiding the lower court judgment. The appeals court even directly stated that under Indiana law, the “absence of subject matter jurisdiction . . . renders a judgment void and open to collateral attack.” * * * Because the Indiana trial court decision was voided for lack of subject matter jurisdiction, the state-court slate is wiped clean.
This leaves Hemmer in the position of having filed his federal district court complaint when the only relevant prior history was a loss in state agency proceedings. The parties did not raise this issue, but the question remains whether Hemmer counts as a state-court loser when he lost in his state administrative agency proceedings. The Supreme Court has answered this question in the negative. In Verizon Maryland Inc. v. Public Service Commission of Maryland, 535 U.S. 635 (2002), the Court declared that the Rooker-Feldman “doctrine has no application to judicial review of executive action, including determinations made by a state administrative agency.” Id. at n.3. Hence, the district court is not precluded from hearing Hemmer’s case, or deciding for or against him, even though a state administrative agency has already ruled against him.
III. Conclusion. For the forgoing reasons, we REVERSE the district court’s ruling and REMAND for further proceedings consistent with this opinion.
The presumption in a copyright case is that the prevailing party (though if it is the plaintiff, only if his copyright had been registered, [cites omitted] receives an award of fees. [cites omitted] The presumption has not been rebutted.
The judgment is therefore reversed and the case remanded with instructions to compute and award reasonable attorney’s fees to the defendants.
Ind. Decisions - Court of Appeals issues 0 today (and 12 NFP)
For publication opinions today (0):
NFP civil opinions today (0):
NFP criminal opinions today (12):
Ind. Courts - Supreme Court names former TV journalist as Public Information Officer
Today's press release begins:
The Indiana Supreme Court has named a former television journalist to serve as its Public Information Officer, Chief Justice Randall T. Shepard announced today. Kathryn Dolan, former WLFI morning news anchor started in the position June 30th.
The Chief Justice approved Dolan’s hiring in an effort to continue promoting public awareness about the Supreme Court. Chief Justice Shepard said, “It is tremendously important the court communicates what it is doing for the citizens of Indiana. Kathryn will help the court successfully educate citizens about the role of the court and the importance of its decisions and its programs.”
Ind. Courts - Still more on "Judicial candidate's registration in question"
The controversy continues.
Ben Hershberg reports today in the Louisville Courier Journal:
Citing errors in the nomination process, the chairman of the Clark County Democratic Party has asked state election officials to reject the Republican nominee for circuit court judge.Melissa Moody of the Jeffersonville Evening News & Tribune had a long report yesterday evening, July 8th.
In a petition mailed yesterday to the Indiana Election Division of the secretary of state's office, Democratic Chairman Rod Pate also acknowledged he made errors and asked for the state election commission to hold a hearing on both parties' nominations.
Pate requested a 30-day extension of the July 3 deadline to nominate candidates properly.
"I think people would rather vote for a judge than have one appointed by the governor," he said in an interview.
But Abe Navarro, the Republican nominee who was appointed by Gov. Mitch Daniels to the bench for the rest of this year after Circuit Judge Daniel Donahue retired at the end of May, said he believes his nomination was handled properly. * * *
Pate contends that both parties missed deadlines for sending notices to the secretary of state about their nomination procedures. If there are no valid nominees, he said, he believes Daniels would appoint a judge to serve for the next two years, until the next county election, unless the deadline is extended. * * *
Leslie Barnes, the Democratic co-counsel of the election division, said the nominations must be certified by Aug. 22 if the candidates' names are to appear on the Nov. 4 ballot.
Barnes said yesterday that "there are numerous questions with both filings" but that the election commission has the authority to extend the nominating deadline.
According to state law, an extension can be granted for a natural disaster or other emergency that makes it unreasonable to require nominations to be completed by the usual deadline.
Barnes said it's up to the commission to decide if it will review the matter and, if it does, whether to grant an extension. As of yesterday, neither nomination had been certified, she said.
Ind. Courts - More on: COA will hear oral arguments today in dispute over Terre Haute mayor's office
Arthur E. Foulkes of the Terre Haute Tribune-Star reports today on yesterday's oral arguments before the Court of Appeals in the case of Burke v. Bennett. Some quotes:
The Indiana Court of Appeals listened to arguments Tuesday in the case of Burke v. Bennett – the legal battle for the job of mayor of Terre Haute.The story also quotes questions asked by members of the panel:
In the approximately 90-minute oral argument, former Mayor Kevin Burke was represented by Ed DeLaney, an Indianapolis attorney. Mayor Duke Bennett was represented by Indianapolis-based attorney Bryan Babb. * * *
Bennett, before becoming mayor, was director of operations at the not-for-profit Hamilton Center, which operates a federally funded Head Start program.
Burke, who lost the November election by 110 votes to Bennett, believes the Hatch Act and Indiana law require that he should be returned to the office of mayor.
“My client is not embarrassed to say the law requires this result,” DeLaney said to the three appeals court judges.
Bennett’s attorney, on the other hand, argues, as Judge Bolk ruled, that Indiana law only applies the Hatch Act to candidates for office, not sitting mayors. Babb also argued that Bennett’s role at the Hamilton Center had very little to do with the organization’s Head Start program.
“He was not employed by Head Start. He did not have a regular, foreseeable role with Head Start. He did not have supervisory control over Head Start funds,” Babb told the judges.
Two key areas of disagreement in the case are whether the Hatch Act applies to any candidate – with the exception of sitting officeholders – involved in any way with federal funds and whether Hatch Act violations, under Indiana law, are grounds for overturning an election result.
While federal Hatch Act violation penalties do not include removal from office, Indiana’s “legislators decided those [federal] sanctions were not enough,” DeLaney told the court.
Federal law states anyone “employed by a state or local agency whose principal employment is in connection with an activity which is financed in whole or in part” by federal money is subject to the Hatch Act. However, Babb argued that there are cases where the degree of involvement in a federally funded program has been taken into account in deciding whether the Hatch Act applies to individual candidates.
The court should rule that the Hatch Act only applies to people who directly receive or direct the spending of federal money, Babb said, adding that otherwise, “we’re going to lose a whole lot of qualified candidates” for public office.
Each of the appeals court judges asked questions of both lawyers. Presiding judge Edward W. Najam Jr. focused many of his questions around whether Indiana’s law applied only to candidates or could be used to sanction an elected official. He also asked several questions about the extent of Bennett’s involvement with Head Start.Watch the entire oral argument here, via the Court's site.
Judge Elaine Brown asked Babb why the Bennett team did not reference a 1958 Indiana Supreme Court case, which she said made a strong argument for Bennett’s side. She also asked why Burke and Bennett both failed to have the Office of Special Counsel investigate Bennett’s eligibility prior to the November election.
Judge Carr L. Darden asked Burke’s attorney about Bennett’s role at the Hamilton Center and asked Babb why Bennett didn’t seek pre-election advice from Indiana or federal election officials.
Tuesday, July 08, 2008
Ind. Law - More on: "Indy Law Firm moves beyond its nightmare"
This morning the ILB quoted from John Ketzenberger's story in the Indianapolis Star:
The partners made an undisclosed cash payment to the state, then gave Department of Insurance Commissioner Jim Atterholt the right to sue ProNational. The state's attorneys, Irwin Levin and Richard Shevitz, who won the original judgment against Fillenwarth Dennerline, did just that.Now Greg Andrews of the Indianapolis Business Journal has revealed the amount in a story that begins:
An Indianapolis law firm has paid $50,000 to the Indiana Department of Insurance in a deal that extricates it from an $18 million jury verdict stemming from the collapse of a health insurance trust.
The department released Fillenwarth Dennerline Groth & Towe from the massive judgment that a Marion County jury handed down against the law firm two years ago. In return, the firm transferred to the department the bad-faith claims it is pursuing against its malpractice insurer, Alabama-based ProNational Insurance Co.
That's where the real money is, said Doug Webber, chief legal counsel for the department.
"It is our view that the law firm had limited assets," and even those would be difficult to get at if the firm sought bankruptcy court protection, Webber said.
Environment - "States Approve Compact To Protect Great Lakes"
NPR's Morning Edition this morning had an excellent 5-minute story on the Great Lakes Water Compact and the likeliness of it being approved by Congress. You may read it or listen to it here.
Law - "In One Ohio County, Golf Carts Patrol Streets"
From NPR's All Things Considered yesterday, this story, to which you may listen here:
Some sheriff deputies in Fairfield County, Ohio, are using golf carts to save gas and money.
Deputies in the community of Bremen (pop. 1,200) use the electric carts to patrol some neighborhoods.
Deputies say the carts are not only more efficient, they also improve community-policing efforts.
Ind. Decisions - 7th Circuit decides one Indiana case today
In Mobley v. Allstate (SD Ind., Judge Barker), a 30-page, 2-1 opinion, Judge Flaum writes:
Plaintiff Catherine A. Mobley worked for Allstate Insurance (“Allstate”) for sixteen years before being laid off with 31 other employees in October 2003 as part of a reduction in force (“RIF”). In July 2001, Mobley had begun having problems concentrating and staying awake at work, due to what was ultimately diagnosed as essential tremor and nocturnal myoclonus. From fall 2002 until April 2003, Mobley wrangled with her supervisors over workplace accommodations for her conditions. In May 2003, Allstate permitted Mobley to regularly work in a private room rather than a cubicle. Although Mobley’s earlier, temporary placement in this private room had improved her work performance, Mobley’s performance level never reached the “meets” level after May 2003, causing her name to be included on the RIF in October of that year. Mobley subsequently brought suit against Allstate under the Americans with Disabilities Act (“ADA”), bringing claims for failure to accommodate her disability, discriminatory termination, and unlawful retaliation. The district court granted summary judgment in favor of Allstate on all claims, which Mobley now appeals. For the reasons discussed below, we affirm.
[Judge Wood's dissent begins:] Summary judgment is appropriate, as everyone knows, only if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Applying that well-worn standard, the majority has concluded that Catherine Mobley has failed to show that a trial is needed to resolve her case. I agree with the majority that Mobley’s presentation has indeed fallen short with respect to her retaliation claim. As I read this record, however, there are genuinely disputed material facts relating to her claims under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., for failure to accommodate and wrongful termination. I would therefore reverse and remand for further proceedings on the latter two theories.
Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)
For publication opinions today (5):
In In re the Paternity of M.M.; Bryan F. v. Liana M. , a 6-page opinion, Judge Bailey writes:
Bryan F. (“Bryan”) appeals the denial of his motion to rescind a paternity affidavit and request for paternity testing. We reverse and remand for court-ordered genetic testing. * * *In George Jackson v. State of Indiana , a 13page 2-1 opinion, Judge Riley writes:
Here, Bryan testified without contradiction that Liana advised him he was the only potential father of M.M. Two genetic tests showed otherwise. Thus, Bryan provided unrefuted testimony of circumstances amounting to either fraud or a material mistake of fact.1 He was the victim of either Liana’s intentional deception or misapprehension of the critical fact of paternity. This, however, can only satisfy the first prong of Indiana Code Section 16-37-2-2.1(i). A paternity affidavit may not be rescinded unless the court, at the request of the legal father, has ordered a genetic test, and the court-ordered test indicates that the man is excluded as the father of the child. See Ind. Code § 16-37-2-2.1(i)(2). Bryan’s request for genetic testing was summarily denied, apparently due to the trial court’s perception that disestablishment of paternity contravenes public policy. As previously discussed, however, some extraordinary circumstances will permit a challenge to paternity despite the strong public policy in favor of the establishment of paternity.
We reverse and remand with instructions to the trial court to order a genetic test in accordance with Indiana Code section 16-37-2-2.1(i)(2).
Appellant-Defendant, George Jackson (Jackson), appeals his conviction for unlawful possession of a firearm by a serious violent felon, a Class B felony, Ind. Code § 35-47-4-5. We reverse. * * *In Tanicka Smith v. State of Indiana , a 2-1 opinion, Judge Robb writes:
Based on the foregoing, we conclude that the search warrant was invalid under Indiana Code § 35-33-5-2 and that the evidence seized during the search was not otherwise admissible under the good faith exception to the warrant requirement. Therefore, the trial court abused its discretion by admitting the evidence during trial. Because the State does not contend that the error was harmless, we reverse Jackson’s conviction for unlawful possession of a firearm by a serious violent felon. Reversed.
ROBB, J., concurs.
BAKER, C.J., dissents with separate opinion. [that begins] I respectfully dissent from the result reached by the majority because I believe that the trial court’s search warrant was supported by probable cause. While I agree that Detective Blackwell’s sworn testimony was based on hearsay, I believe that his testimony was sufficient to support issuing the search warrant. Moreover, even assuming for the sake of the argument that probable cause did not exist, I believe that the good faith exception applies.
Following a bench trial, Tanicka Smith appeals her conviction of possession of cocaine, a Class D felony. On appeal, Smith raises one issue, which we restate as whether the trial court properly admitted into evidence cocaine that was found following a search of the motel room in which Smith was an occupant. Concluding that the search was unreasonable and that the trial court therefore improperly admitted the cocaine into evidence, we reverse and remand. * * *Victor T. Sobolewski v. State of Indiana - "Victor Sobolewski appeals his conviction and sentence for child exploitation as a class C felony enhanced by his status as an habitual offender. Sobolewski raises four issues, which we revise and restate as: I. Whether the trial court abused its discretion by denying his requests for a continuance; II. Whether the prosecutor committed prosecutorial misconduct; III. Whether he was denied a fair trial as a result of certain remarks made by the prosecutor; and IV. Whether his sentence is inappropriate in light of the nature of the offense and the character of the offender. We affirm."
Chimel instructs that a search incident to a lawful arrest is reasonable only to the extent it can be characterized as promoting officer safety or preventing the destruction of evidence. * * * Accordingly, we conclude that the search of the toilet tank violated the Fourth Amendment and that the trial court necessarily abused its discretion when it admitted the cocaine recovered from that search into evidence.
Conclusion. The trial court improperly admitted the cocaine into evidence because it was the product of an unreasonable search. Reversed and remanded.
RILEY, J., concurs.
BAKER, C.J., dissents with opinion. [that concludes] I believe that as an objective matter, a reasonable officer could have inferred from this sound that one of the occupants of the hotel room was attempting to destroy evidence—specifically, drugs—by dumping it into the toilet tank. Because the circumstances, viewed objectively, justify the officers’ actions pursuant to Chimel, their subjective intentions and concerns do not invalidate the search. Thus, I believe that the search did not violate the Fourth Amendment and would affirm the trial court’s admission of the evidence.
Richard Pendergrass v. State of Indiana - "Based on the foregoing, we conclude that the trial court properly admitted State’s Exhibits 1, 2, and 3 and related testimony concerning DNA analysis and the subsequent test result without the testimony of the laboratory technician who performed the actual testing; and Pendergrass’ confrontational rights pursuant to the Sixth Amendment of the United States Constitution were not implicated when he was denied the opportunity to confront and cross-examine the laboratory technician who performed the DNA analysis. Affirmed."
NFP civil opinions today (2):
Higland Town School Corp. a/k/a School Town of Highland v. Review Board of the Indiana Dept. of Work Force Dvlpmt. (NFP) - "Appellant-respondent Highland Town School Corporation a/k/a School Town of Highland (Highland) appeals the order of the Department of Workforce Development Review Board (the Board) granting appellee-claimant Dan J. Candiano, Jr.’s, petition for unemployment compensation benefits. Highland contends that the Board erroneously concluded that the Administrative Law Judge (ALJ) impermissibly relied on hearsay evidence in denying Candiano’s petition. Finding that Candiano failed to make proper objections to the alleged hearsay evidence, we reverse and remand with instructions that the Board enter judgment in favor of Highland."
Municipal Tax Liens, Inc. v. Michael Alexander (NFP) - "Municipal Tax Liens, Inc. (“MTL”) appeals the trial court’s grant of summary judgment to Michael Alexander regarding MTL’s attorney malpractice complaint against Alexander. MTL raises one issue, which we revise and restate as whether the trial court erred by granting summary judgment to Alexander. We reverse and remand."
NFP criminal opinions today (8):
Law - Do sex offender laws make homelessness a crime?
Bill Rankin of the Atlanta Journal-Constitution reported yesterday:
Georgia's sex-offender registry law should be struck down as unconstitutional because it makes being homeless a crime, a lawyer told the state's highest court on Monday.
"The law is fundamentally unfair to homeless sex offenders," public defender Adam Levin argued to the Georgia Supreme Court.
Levin represents William James Santos, a who is charged in Hall County for failing to register a new address in the sex-offender registry. Because this would be his second failure-to-register offense, Santos faces a mandatory life sentence.
The law requires sex offenders to provide a route or street address, and it specifically states that an offender cannot use "homeless" as an address. Santos couldn't abide by the law because he could not give an address, Levin said.
Ind. Law - "Deadline looms for lenders, mortgage brokers must pass test"
Secretary of State Todd Rokita held a press conference yesterday and at least four Indianapolis newspapers have original coverage, rather than relying on a wire service.
Bryan Corbin of the Evansville Courier & Press reports in a story that begins:
INDIANAPOLIS — More than two-thirds of Indiana's mortgage broker companies could lose their licenses for not complying with a 2007 state law intended to clean up the industry in the wake of the subprime lending and home foreclosure crisis.Here are other stories from the Louisville Courier Journal, the Fort Wayne Jurnal Gazette, and the Indianapolis Star.
The 2007 law said that each licensed mortgage loan broker had to have one principal manager, someone with three years' experience who had passed a state examination. Of 950 affected loan brokerages statewide, principal managers at 639 of them still had not taken the exam by the law's July 1 deadline, officials said.
Indiana Secretary of State Todd Rokita, whose office regulates the broker industry, said he is giving principal managers a 30-day grace period, until Aug. 5, to pass the exam, or he will revoke their companies' licenses. Without a state license, mortgage companies can't write loans to homebuyers.
"The General Assembly has said this is how Indiana intends to operate," Rokita said.
"Especially when we have a loan crisis on hand, we are going to hold loan professionals up to a higher standard — and part of that standard is a competency test."
The law applies to third-party brokers who shop around for the best loans, not to mortgage lenders such as banks.
Rokita and state securities commissioner Chris Naylor said mortgage brokers had ample warning of the new requirement: The Legislature passed the law last year, and Rokita's office sent the companies warnings about it and held several public meetings.
Ind. Courts - More on: Plea deal pulled in attorney sex-attack case
Harrison Superior Court Judge Roger Davis has set an Aug. 19 trial date for Anthony Wallingford, a New Albany lawyer accused of criminal deviate conduct and sexual battery stemming from an alleged attack on a 16-year-old Elizabeth girl.
However, Special Prosecutor David Powell and James Voyles, Wallingford's lawyer, held out the possibility of a plea agreement during a pretrial hearing yesterday.
Voyles told Davis that he and Wallingford needed to review a new offer and would try to abide by a local court rule to submit a proposed agreement 21 days before the start of a trial.
Environment - "Union Co. group again requests CAFO moratorium"
Pam Tharp reports today in the Richmond Palladium-Item:
LIBERTY, Ind. -- Concerned Citizens For Union County has again asked county commissioners to recommend a moratorium on building permits for concentrated animal feeding operations.
The commissioners took no action on the request Monday and aren't scheduled to meet again before the public hearing at 7 p.m. July 28 on the proposed livestock zoning ordinance.
Commissioner Allen Paddock said the area plan commission already has rejected a moratorium, which is the body that must initiate one, based on Randolph County commissioners' experience earlier this year. Randolph County Board of Commissioners withdrew a CAFO moratorium it imposed without area plan commission input, after legal action was taken by CAFO supporters.
Ind. Law - "Anderson police remain on the lookout for a man believed to have abducted his lawyer at knifepoint"
Read the latest updates here from, complete with photos, the Anderson Herald-Bulletin. A quote:
Richard Lee Hudson was still at large Tuesday morning, according to Anderson Police Department Lt. Steve Olheiser. While traveling with attorney Tom Hamer, Hudson used a knife to gain control of Hamer’s vehicle and tied him up. Hamer later escaped unhurt.
Indiana Law - "Indy law firm moves beyond its nightmare"
John Ketzenberger, business columnist for the Indianapolis Star, writes again today about the law firm of Fillenwarth Dennerline Groth & Towe. Some quotes:
The venerable labor law firm was on the hook for an $18 million judgment that held it solely liable for the 2002 collapse of the Indiana Construction Insurance Trust, which provided health insurance for union contractors. Some 50 others settled with the Indiana Department of Insurance for far less.For background, start with this June 20, 2008 ILB entry headed "State Insurance Commissioner sues Insurer in Dennerline matter." The entry includes a link to the 8-page complaint of the Indiana Insurance Commissioner, filed in federal court June 19th.
Fillenwarth Dennerline wanted to settle, too, but its malpractice insurer did not. ProNational Insurance Co. refused to settle for the $1 million policy limits and took a chance. That move backfired when a jury decided Frederick Dennerline III, the trust's attorney, was liable for the failure.
But even before that, Fillenwarth Dennerline filed a lawsuit against ProNational that claimed the insurance company acted in bad faith by not settling before the trial.
Last month Fillenwarth Dennerline did what ProNational would not do -- settle.
The partners made an undisclosed cash payment to the state, then gave Department of Insurance Commissioner Jim Atterholt the right to sue ProNational. The state's attorneys, Irwin Levin and Richard Shevitz, who won the original judgment against Fillenwarth Dennerline, did just that.
"Things could have been very different if the insurance company had taken a different approach," Shevitz said.
That's lawyerspeak for "They shoulda settled." Now ProNational is the state's sole focus for collecting the judgment that, with interest, increases by $3,943.24 each and every day. * * *
Partners declined to talk about the case. Undoubtedly living with the mammoth judgment has been painful. Attorney Bill Hurst told me two years ago, "It's the worst, most god-awful thing I've ever seen."
It still is, but now the attorneys at Fillenwarth Dennerline feel like they can look ahead. They have a new malpractice carrier and a new Downtown address. And they have restructured the partnership to limit a partner's individual liability.
Instead of fighting with the state or their insurance company, they can fight for their clients.
Ind. Courts - More on "Judicial candidate's registration in question"
Updating this ILB entry from yesterday, quoting a story from the Louisville Courier Journal that began:
Questions have been raised about whether Clark County Democratic Party Chairman Rod Pate properly registered Dan Moore as the party's nominee in November's race for Clark Circuit Court judge.reporter Ben Hershberg writes today in a story that begins:
Facing the possibility of having no valid candidate for circuit court judge, the Clark County Democratic Party will ask state election officials for a new deadline allowing both major parties to file nominating papers.Today's story concludes:
But county GOP Chairman David Buskill said yesterday the Democrats are trying to change the rules because they failed to meet state requirements and he's confident the Republican nominee is legally a candidate.
County Democratic Chairman Rod Pate has acknowledged his party failed to file notice of its June 17 nominating caucus with the Indiana Election Commission by the deadline of at least 10 days before the event.
Pate said he learned of the omission only after the documents he understood were required to nominate Dan Moore, the Clark County attorney, for the Nov. 4 election were filed Thursday in Indianapolis.
But Pate said, "They also have problems," referring to county Republicans, who nominated Judge Abe Navarro for the position.
Navarro was appointed to the bench by Gov. Mitch Daniels after Judge Daniel Donahue retired at the end of May. Buskill then nominated Navarro for the fall election under the authority given him by the county GOP central committee.
Based on consultations with Moore and others, Pate said he believes the Republicans were required to file a notice of Navarro's nomination with the Indiana secretary of state by June 26, within three days after Navarro was nominated by Buskill.
Moore said he believes the state's guidelines for certifying circuit court nominees are confusing, and he understands why party leaders may have made mistakes in the process.The "2007 lawsuit" would be the case involving Leo Burns, cited by the ILB in its entry yesterday.
An appeals court decision in a 2007 lawsuit says state law is intended to ensure a fair nominating process, not put technical objections in the way, Moore said. So he hopes the election commission will set a new deadline.
[More] Melissa Moody of the Jeffersonville Evening News & Tribune reported yesterday evening in a story that began:
Newly appointed Clark County Circuit Court Judge Abe Navarro will run unopposed this fall, unless the Indiana Election Commission rules that an Indiana Secretary of State Election Office’s decision regarding the nomination of Democratic Party candidate Dan Moore was incorrect.
The election office threw out the county Democratic Party’s request to nominate attorney Dan Moore because county Democratic Party Chairman Rod Pate filed caucus paperwork late, or not at all, according to Dale Simmons, the co-general counsel for the election division office.
Ind. Courts - COA will hear oral arguments today in dispute over Terre Haute mayor's office
As noted in the earlier entry this morning, the Court of Appeals will hear oral arguments at 1 PM today in the dispute over the Terre Haute mayoral election. Here is a long list of earlier ILB entries containing "Kevin D. Burke.")
Here is a story from MyWabashValley.com
The dispute over Terre Haute's mayoral election goes back to court Tuesday. Indiana's Court of Appeals will hear arguments over whether Mayor Duke Bennett should stay in office.
After Duke Bennett won November's Terre Haute mayoral election over incumbent Kevin Burke, Burke went to court to contest Bennett's eligibility based on the Hatch Act. The Hatch Act is a law that prevents some federally funded employees from running for elected office.
While Bennett campaigned he kept his job at Hamilton Center, which receives federal funds for a Head Start program. Bennett told us in November his job never dealt with those funds, but still checked his Hatch Act eligibility anyway. * * *
By December 21, it was determined that Hamilton Center had used federal funds to pay about 2% of Bennett's salary. So Judge David Bolk ruled that Bennett had unintentionally violated the Hatch Act. But Bolk also ruled Bennett could take office, because the Hatch Act only applies to candidates and politicians in office.
Because Burke had waited until after the election to go to court, Bennett was no longer a candidate and Bennett would not take office until January 1, days after resigning from his job at Hamilton Center.
Burke appealed to Indiana's Supreme Court, which refused to consider the case until it goes through Indiana's Court of Appeals.
Ind. Decisions - Addendum to: Upcoming oral arguments this week
Yesterday the ILB wrote:
Either there are no oral arguments this week, or there is a technical glitch, or someone has fallen down on the job. This morning neither the official Supreme Court oral argument calendar for July, nor the Court of Appeal calendar, show any oral arguments scheduled for this month.Likely it was the third option, because the Court of Appeals calendar has now been updated with at least some of the cases to be heard in July.
Because of the calendar glitch, we've already missed one appeal, Dutchmen Manufacturing, Inc. v. Chad Reynolds (Appellant-Defendant Dutchmen Manufacturing appeals the $30 Million jury verdict that Appellee Plaintiff Chad Reynolds received as a result of injuries sustained while working near some scaffolding that Dutchmen personnel had installed), which was argued July 1st.
And the two arguments before the Court of Appeals this week are today:
This Tuesday, July 8th:
10:00 AM - Joel Silverman, et al vs. Miguel Villegas, et al - This case follows Villegas v. Silverman, 832 N.E.2d 598 (Ind. Ct. App. 2005). The Bureau of Motor Vehicles' ("BMV") identification requirements were challenged by illegal aliens. After this court held that the BMV had to comply with rulemaking procedures to adopt identification requirements and remanded to the trial court, the BMV properly promulgated identification rules. The trial court on remand granted summary judgment to the plaintiffs because the previously-challenged identification requirements were void. The trial court then granted the plaintiffs' motion for attorney fees in excess of $100,000 upon finding that they were "prevailing parties" for the purpose of 42 U.S.C. § 1988. Joel Silverman, in his official capacity as Commissioner of the BMV, appeals the trial court's award of attorney fees. The Scheduled Panel Members are: Chief Judge Baker, Judges Riley and Judge Robb. [Where: Indiana Court of Appeals Courtroom] [For background, see this ILB entry from Sept. 10, 2005.]
1:00 PM - Kevin D. Burke vs. Duke Bennett - Kevin Burke appeals the trial court's order denying his petition contesting the election of Duke Bennett for mayor of Terre Haute. Burke argues that Bennett was ineligible under Indiana's election contest statutes and requests this court to declare him elected pursuant to Ind. Code 3-12-8-17. The Scheduled Panel Members are: Judges Najam, Darden and Brown. [Where: Indiana Supreme Court Courtroom]
The Burke argument will be webcast and will be available here.
Monday, July 07, 2008
Ind. Law - Golf carts, but not ATVs in Geneva
The Tri-Weekly Berne News has this report today by Christina Stucky:
The Geneva Town Council met on Tuesday night, July 1, and incoming clerk-treasurer Bill Warren was on the agenda to ask why ATVs are not included in the town ordinance permitting golf carts on the road. He stated that he was coming home from filling up his ATV with gas recently when he was stopped by a town officer and informed that ATVs are not permitted on town streets. He wondered why those vehicles are not permitted on the streets when golf carts and wheelchairs and other small vehicles are.For many more ILB golf cart entries, type "golf cart" in the search box in the right column.
“I want to make it clear that I am not against golf carts on the streets, that I think that ordinance is a very good one, but I just want to know why I can’t drive my ATV to the gas station,” said Warren.
Council members explained that many years ago they were allowed by ordinance but the ordinance was abused and it was rescinded. They explained that ATVs are able to go faster than golf carts and can easily go off road and outrun police. They promised to look into the matter.
Ind. Courts - "Longtime public defenders withdraw in Delph case"
So reports Shawn McGrath of the Anderson Herald Bulletin in a lengthy story that begins:
Nearly four years after prosecutors brought murder charges against Rex David Delph, his longtime public defenders have withdrawn from the case, saying the county is unwilling to pay about $95,000 for their services and experts to testify at trial and further review evidence. It’s the latest twist in the years-long legal saga, and possibly jeopardizes Delph’s chances of a fair trial.Note, the McGrath story continues for four screens.
Attorneys Zaki Ali and Joseph Cleary filed a joint motion to withdraw from the case Thursday. Madison Circuit Court Judge Fredrick Spencer asked the two to withdraw in late June if they couldn’t negotiate with the Madison County Public Defender Board to lower the mounting costs associated with Delph’s defense.
Environment - Still more on: Rhode Island's Massive Lead Paint Tort Case
Updating this July 1 ILB entry on the Supreme Court of Rhode Island's decision rejecting a massive public nuisance suit against former lead-pigment manufacturers, Eric Tucker of the AP has a comprehensive story today headed "R.I. lead paint loss gives industry huge win." The story begins:
PROVIDENCE, R.I. (AP) -- Communities and child health advocates around the country had pinned their hopes on Rhode Island prevailing in its landmark lawsuit against the lead paint industry.
Now, after the state Supreme Court threw out the first-ever jury verdict finding former lead paint companies liable for creating a public nuisance, at least one city says it's rethinking a similar lawsuit against the industry, and one of the lawyers in the Rhode Island case predicted the decision would have a "devastating" effect on national efforts to hold the manufacturers accountable for their products. Still, other lawyers with pending cases say they're not deterred.
Ind. Courts - More on: Three justices and at least one appellate judge up for retention this year
This July 1st ILB post reported that:
Three of the five members of the Supreme Court: Chief Justice Randall T. Shepard, Justice Brent E. Dickson, and Justice Theodore R. Boehm. must stand for retention in 2008, if they wish to remain in office.Statements that a juror wishes to stand for retention must be filed with the Secretary of State on or before noon of July 15th.
What happens if one or more justices, for whatever reason, decides not to stand for retention this year?*
Expiration of term. The judge's term expires on December 31, 2008, per IC 33-25-2-3.
Filling the vacancy. When may be vacancy be filled? Article 7, Sec. 10:
Selection of Justices of the Supreme Court and Judges of the Court of Appeals. A vacancy in a judicial office in the Supreme Court or Court of Appeals shall be filled by the Governor, without regard to political affiliation, from a list of three nominees presented to him by the judicial nominating commission. If the Governor shall fail to make an appointment from the list within sixty days from the day it is presented to him, the appointment shall be made by the Chief Justice or the acting Chief Justice from the same list.I read this to mean that a Governor may not appoint a new justice to fill a vacancy until there is in fact a vacancy -- in this case this would mean on or after January 1, 2009.
To be eligible for nomination as a justice of the Supreme Court or Judge of the Court of Appeals, a person must be domiciled within the geographic district, a citizen of the United States, admitted to the practice of law in the courts of the State for a period of not less than ten (10) years or must have served as a judge of a circuit, superior or criminal court of the State of Indiana for a period of not less than five (5) years.
(History: As Amended November 3, 1970).
When may the Judicial Nominating Commission act? IC 33-27-3-1 provides:
(a) When a vacancy occurs in the supreme court, the court of appeals, or the tax court, the clerk of the court shall promptly notify the chairman of the commission of the vacancy.But for subsection (d), I would read this section to mean that a vacancy must have occurred before the commission may convene.
(b) The chairman shall call a meeting of the commission not later than twenty (20) days after receiving the notice.
(c) The commission shall submit the nominations of three (3) candidates for the vacancy and certify them to the governor as promptly as possible, but not later than seventy (70) days after the time the vacancy occurs.
(d) When it is known that a vacancy will occur at a definite future date, but the vacancy has not yet occurred, the clerk shall notify the commission immediately of the future vacancy, and the commission may, not later than sixty (60) days after receiving the notice of the vacancy, make nominations and submit to the governor the names of three (3) persons nominated for the future vacancy.
(As added by P.L.98-2004, SEC.6.)
But subsection (d) would appear to allow the commission in this case to convene after July 15th, should a justice fail to file for retention. Thereafter, not later than sixty days after receiving the notice of the vacancy, under subsection (d) the commission is to make nominations and submit to the governor the names of three persons nominated for the future vacancy.
But nothing I see authorizes the governor to actually fill the vacancy until a vacancy in fact exists. That language is in the Constitution. IC 33-27-3-1(d) therefore may be problematic, because if followed a governor could be required either to fill a vacancy before it exists, or cede that authority to the chief justice.
*My first thought, of course, is that this would be an opportunity for the Governor to appoint a woman to the Supreme Court. For background, start with this ILB entry from Oct. 6, 2007.
Ind. Courts - Monroe County Courthouse nearly razed in the 1980s
"County courthouse at center of celebration" was the headline of a July 2 story ($$) in the Bloomington Herald-Times:
The star of the Fourth of July parade in downtown Bloomington Friday will be the building the parade will pass by in the center of the city.
The Monroe County Courthouse’s 100th birthday is being celebrated, with the county commissioners leading the parade and a replica of the courthouse featured on a float. Cake will be served on the courthouse lawn after the parade to celebrate the centennial of the county’s most recognizable building.
There was a time, in the early 1980s, when this celebration was in jeopardy.
Charlotte Zietlow was a county commissioner at the time, and she sent the H-T a long reminder of what occurred. The county needed more space, and many in the community were proposing tearing down the courthouse and moving county government out of downtown.
That didn’t happen, of course, through the efforts of Zietlow and many other community members who took part in the Let’s Save It campaign. They believed that saving the grand old building would be in the best interests of the citizens of the county.
They were right. The courthouse was restored in 1983-84, and stands now, 100 years after it was originally dedicated, as a symbol of our community.
While downtown for the parade Friday, take a moment to ponder how different Bloomington would be had the courthouse not been restored. Then thank the visionary people whose tenacity and community spirit helped save it.
Ind. Courts - From U.S. District Judge Joseph Van Bokkelen first jury trial
Joe Carlson of the NWI Times reports today in a story that begins:
EAST CHICAGO | Although no one ever could directly prove East Chicago Mayor George Pabey ordered the firing of a city restaurant inspector in 2005 because of her politics, that fact was reconstructed by jurors through a "mosaic of circumstantial evidence," her lawyer argues.
Blanca Camacho, the former inspector, remains the only city worker among the dozens who sued Pabey in 2005 to have a jury decide in her favor. She was awarded $250,000, including $25,000 in punitive damages, for violation of her First Amendment rights.
But in his first jury trial as a judge, U.S. District Judge Joseph Van Bokkelen refused to make the jury's award official until both sides could air more arguments in writing -- a discussion that appears to boil down to whether the jury was relying on circumstantial evidence or mere speculation in its conclusion. The judge's final ruling is expected in the coming weeks.
Van Bokkelen's decision likely will receive close scrutiny as city officials move into a second round of mass layoffs. At least 50 people were laid off last month as city officials trimmed the bloated work force they inherited from former Mayor Robert Pastrick.
In early 2005, when Pabey fired dozens of people after taking office, he was hit with 21 lawsuits claiming the administration was illegally targeting Pastrick supporters for layoffs.
In the Camacho case, city officials admitted they fired Camacho and retained other workers in the same position who were less reliable, including one who slept on the job, and even hired convicted felons for similar positions afterward.
Ind. Courts - "Judicial candidate's registration in question"
Ben Hershberg reports today in the Louisville Courier Journal:
Questions have been raised about whether Clark County Democratic Party Chairman Rod Pate properly registered Dan Moore as the party's nominee in November's race for Clark Circuit Court judge.This is reminiscent of the case of Leo Burns. See the ILB entry here on the Feb. 1, 2007 Court of Appeals decision in the case of J. Bradley King and Krisi Robertson in their official Governmental capacities as Co-directors of the Indiana Election Division, et al. v. Leo T. Burns, et al. (See all "Leo Burns" ILB entries here).
Pate said last night that the party's caucus at which Moore was nominated was not reported to the secretary of state as required.
He said he learned of the problem Thursday, the deadline for registering candidates in the race.
Pate said he's had no experience with such circumstances, which are the result of former Circuit Court Judge Daniel Donahue's resignation in May. Donahue's term expires Dec. 31. "How often does a judge resign?" Pate said in a phone interview last night.
Gov. Mitch Daniels named Republican Abe Navarro, a former Floyd County deputy prosecutor, to fill the vacancy; David Buskill, the Clark County Republican chairman, has nominated Navarro to run this fall.
Pate said he believed he could register Moore as the Democratic nominee with the Clark County clerk of court. But at a farewell party Wednesday for the county's retiring judges -- including Clark Superior Court judges Ciel Blau and Steve Fleece -- Pate learned he was required to register Moore with the secretary of state's office in Indianapolis as well.
Here is a quote from a Sept. 10, 2006 entry on Burns:
Democrat Leo Burns is awaiting word from state election officials today on his candidacy. Although Burns was chosen by precinct committeemen in a caucus to be slated as the party candidate in November, a notice of the caucus was not filed by Burns or County Chairman Matt Meagher with the state.(Quote from Dave Kitchell of the Logansport Pharos-Tribune.)
Ind. Decisions - Upcoming oral arguments this week
Either there are no oral arguments this week, or there is a technical glitch, or someone has fallen down on the job. This morning neither the official Supreme Court oral argument calendar for July, nor the Court of Appeal calendar (click arrow to reach July), show any oral arguments scheduled for this month.
But we know that isn't the case for the Supreme Court, via another resource, Oral Arguments Online, which shows arguments to be webcast. There is no similar backup place to look for COA oral arguments.
This week's oral arguments before the Supreme Court:
This Thursday, July 10th:
9:00 AM - Tommy Pruitt v. State - Pruitt was previously convicted of murder and other charges, and sentenced to death for killing a police officer. See Pruitt v. State, 834 N.E.2d 90 (Ind. 2005). Thereafter, the Dearborn Circuit Court denied Pruitt’s petition for post-conviction relief. On Appeal, Pruitt argues, among other things, that the death sentence is improper because he is mentally retarded and his attorneys deprived him of his right to the effective assistance of counsel. Attorneys for Appellant: Thomas C. Hinesley, Kathleen Cleary, Laura Volk, Indianapolis, IN. Attorneys for Appellee: James B. Martin, Stephen R. Creason, Indianapolis, IN.
10:00 AM - State v. Adam L. Manuwal - Manuwal was charged with operating a vehicle while intoxicated under Indiana Code section 9-30-5-2. The Marshall Superior Court dismissed the charges, noting the offense alleged occurred while Manuwal was operating an all-terrain vehicle on private property. A majority of the Court of Appeals affirmed, after concluding the State should have proceeded pursuant to Indiana Code section 14-16-1-23. See State v. Manuwal, 876 N.E.2d 1142 (Ind. Ct. App. Nov. 28, 2007), vacated. (See ILB entry here.) The Supreme Court has granted a petition to transfer the case, and has assumed jurisdiction over the appeal. Attorney for Appellant: Cynthia L. Ploughe,
Indianapolis, IN. Attorney for Appellee: James N. Clevenger, Plymouth, IN.
Webcasts will be available here.
This week's oral arguments before the Court of Appeals that will be webcast:
This week's oral arguments before the Court of Appeals that will NOT be webcast:
Courts - "Facial challenges are out, As-applied challenges are in"
That according to David G. Savage, who covers the U.S. Supreme Court for the Los Angeles Times, writing in the July 2008 issue of the ABA Journal. His article begins:
The U.S. Supreme Court under Chief Justice John G. Roberts Jr. has been sending a message to lawyers who want to challenge state laws as unconstitutional. It goes like this: Show us the proof. Be specific. And if you want us to throw out an entire law because it may infringe the rights of a few people, you may be wasting your time.
Here’s another way to say it: Facial challenges are out. As-applied challenges are in.
In a series of rulings during the past two years, the court has rejected broad challenges to new laws while at the same time leaving open the door to a more targeted attack on some of the laws’ provisions.
In Crawford v. Marion County Election Board, decided April 28, the court rejected by a 6-3 margin a facial attack on an Indiana law that requires voters to have current, government-issued photo identification when they go to the polls.
The American Civil Liberties Union and the Indiana Democratic Party sued in 2005 to have the law voided on the grounds that it would severely burden the right to vote for those who are indigent, disabled, elderly or minorities. But the lawyers did not name a single plaintiff who had been deterred from voting because of the requirement.
“Given the fact that [the plaintiffs] have advanced a broad attack ... seeking relief that would invalidate the statute in all its applications, they bear a heavy burden of persuasion,” wrote Justice John Paul Stevens.
Moreover, “a facial challenge must fail where the statute has a plainly legitimate sweep,” he said, and combating voter fraud is a legitimate goal. The challengers may well be able to show that the photo ID rule puts a barrier before indigent people who do not drive a car and cannot easily obtain a birth certificate, the court said, but they failed to prove it in this litigation.
Sunday, July 06, 2008
Ind. Gov't. - "Musgrave's first year as Department of Local Government Finance marked by achievements and conflicts"
Bryan Corbin of the Evansville Courier & Press has a long story today on the longtime Vanderburgh County official, elevated by Governor Daniels to head the Department of Local Government Finance. Some quotes:
INDIANAPOLIS - After outraged homeowners took to the streets one year ago to protest sudden increases in their tax bills, the governor turned to a longtime Vanderburgh County official to take control of the state agency that is gatekeeper over property taxes and local spending.Here are some earlier ILB entries on Cheryl Musgrave's tenure:
Cheryl Musgrave said she had to change the culture and mission of the agency she now leads, the Indiana Department of Local Government Finance, from one that was a "rubber stamp" for local politicians' spending to one that is now an advocate for Hoosier taxpayers.
Musgrave's no-nonsense style and depth of assessing knowledge appear to have achieved results in correcting botched assessments; but her yearlong tenure also has drawn sharp criticism from some local government officials.
Her current job as commissioner of the Department of Local Government Finance has made her the final authority on budgets and tax rates for counties, municipalities, libraries and school districts, and - until last week - on school building projects. Some local officials, though, complain the agency that used to work with them now works against them. They criticize the agency, its employees and Musgrave herself for what they view as a heavy-handed approach and hostile attitude toward local officials.
Some of the harshest criticism comes from the superintendent of the rapidly growing Clark-Pleasant School Corp. in Whiteland. In what is believed to be a first for her department, Musgrave in April rejected a $60 million new middle-school building project the district had proposed. She cited the tax burden on the district's homeowners and the leveling off of enrollment growth in saying no.
"If I felt like there was a reasonable rationale for this denial, I guess I could sleep better," fumed J.T. Coopman, the Clark-Pleasant school superintendent. Coopman said the middle school project had been planned for years to cope with the burgeoning 6,000-plus enrollment and students stuck in portable classrooms. The school district won its signature-petition-gathering contest against project remonstrators.
Now Clark-Pleasant officials are appealing Musgrave’s ruling to the Indiana Tax Court, where a judge will decide. "I don't know where the idea came in that they (the department) had to be the watchdog," Coopman said. * * *
Musgrave's resilience and single-mindedness are familiar to Vanderburgh County voters. For 10 years the Republican served as county assessor, and was an innovator in posting assessment data online. For two and a half years she was a Vanderburgh County commissioner, and helped lead disaster-relief efforts after the deadly November 2005 tornado. Musgrave also occasionally got into dust-ups with other county officials who didn't share her enthusiasm for technology projects.
But when Daniels named Musgrave as head of the state agency last July, it meant big changes. No longer an elected official, Musgrave now is an appointee of the Republican governor -- and her continued tenure likely hinges on his being re-elected this fall over Democratic opponent Jill Long Thompson.
Musgrave now stays in Indianapolis during the week but commutes on weekends to Evansville, where her husband Bob Musgrave still lives. She finds "a lot more partisanship" in state government, at the Legislature, than when she was a county government, she said.
Ind. Law - "Legislative patchwork befuddles state panel"
So reads the headline to a story by Patrick Guinane in yesterday's NWI Times: INDIANAPOLIS | The legislative labyrinth surrounding Indiana's property tax system proved too difficult Thursday for a state oversight panel to navigate. The Local Government Property Tax...
Posted in The Indiana Law Blog on June 28, 2008 01:22 PM
That is the headline to this long and fascinating opinion piece today in the Fort Wayne Journal Gazette, written by Karen Francisco. Just a sample:One of the agency’s highest-profile missteps was on display last week, when the commissioner backed off...
Posted in The Indiana Law Blog on June 15, 2008 01:28 PM
Pam Tharp of the Richmond Palladium-Item reports, in a story later picked up by the AP, that:Residents who want to object to new public construction projects now have an online toolkit to help them. The Citizen's Petition and Remonstrance Toolkit...
Posted in The Indiana Law Blog on January 13, 2008 12:27 PM
Ind. Gov't. - DLGF puts assessed value and sales information online
Both Lesley Stedman Weidenbener of the Louisville Courier Journal (here) and John Byrne of the Gary Post-Tribune (here) have stories today about the Department of Local Governmental Finance's website, offering statewide data on sales and assessments. From the LCJ:The Indiana...
Posted in The Indiana Law Blog on September 14, 2007 09:47 AM
The Indianapolis Star has an outstanding editorial today headed "There's too much wrong to do anything but fix it." The ILB will pick up right now on just one of the many important points made, near the end of the...
Posted in The Indiana Law Blog on July 29, 2007 08:19 AM
A press release from the Governor's Office:INDIANAPOLIS (July 13, 2007) – Governor Mitch Daniels today appointed Cheryl Musgrave, president of the Vanderburgh County Commission, as the new commissioner of the Department of Local Government Finance. Musgrave replaces Melissa Henson, who...
Posted in The Indiana Law Blog on July 13, 2007 10:17 AM
Ind. Decisions - "Dams continue to age, but money to fix them in compliance with state standards is scarce"
The Court of Appeals decision June 30th (see ILB entry here) in the case of Indiana Department of Natural Resources and State of Indiana v. Lake George Cottagers Association is part of the focus today in a lengthy and comprehensive story by Ron Shawgo of the Fort Wayne Journal Gazette on maintaining Indiana dams - he writes about "the difficulty many dam owners face: Their dams continue to age, but money to fix them in compliance with state standards is scarce." A few more quotes:
After 12 years and a legal challenge to funding efforts, Hamilton officials are still seeking money to fix Hamilton Lake’s two dams. The state has agreed to pay 90 percent of the cost, and the town’s share could be determined this month, Town Manager Milton Otero said.
Hamilton is only one local community grappling with the problem.
In other moves addressing expensive dam repairs, a Lake George cottage owners association filed a lawsuit denying ownership of the Steuben County lake’s dam, and a homeowners association in Allen County claims its dam’s dimensions take it out of the state’s jurisdiction and stringent maintenance standards.
All three are considered high-hazard dams, meaning loss of life is possible if they fail.
There are 32 high-hazard or significant-hazard dams – those that could cause property loss or interrupt public utilities if breached – in northeast Indiana. * * *
Ownership is at the heart of a lawsuit filed by the Lake George Cottagers Association, which argued the state, not the association, owned the lake’s dam. In 2006, a study estimated that, depending on the severity of problems found, work on the dam could cost between $222,000 and $3.4 million. The dam, built in 1927, is rated conditionally poor.
The association won a trial court ruling, but last week the Indiana Court of Appeals overturned that decision and ruled for the state. A decision whether to appeal to the state Supreme Court has not been made, said Joy Kent, president of the association.
The association, she said, exists on the voluntary donations of lake homeowners, of which about 75 percent contribute. Kent was unsure how much the association has spent on legal fees. As for dam repairs, she believes no major fixes are needed. Still, talk of millions of dollars has her and other homeowners a bit edgy, she said.
“That’s what’s so scary about this whole thing,” Kent said.
Ind. Law - "Fore! Winchester could allow golf carts on streets"
Joy Leiker of the Muncie Star-Press reports today:
WINCHESTER -- In the wake of higher fuel prices, Hoosiers are searching for more efficient modes of transportation, and Winchester could become the next Indiana city to respond by allowing golf carts on its streets.The Star-Press has also made available a copy of the new Winchester golf cart ordinance. Here is an ILB entry from Dec. 11, 2006 on the Portland ordinance upon which it was modeled. For many more ILB golf cart entries, type "golf cart" in the search box in the right clumn.
On Monday, the Winchester City Council will review for a second time an ordinance that would allow golf carts on most city streets.
The only exceptions would be a nine-square block section of downtown and any street with a speed limit over 20 mph, including state and federal highways.
It's a move that other towns and cities in Indiana have already made. And though in Winchester the measure has the support of Winchester Police Chief Michael Burk -- he presented the ordinance to council last month -- the support of law enforcement isn't universal.
The Indiana Bureau of Motor Vehicles doesn't license or register golf carts, and Indiana State Police Sgt. Rod Russell said that's reason enough for them not to be on the road.
"We have visited this issue many, many times about golf carts, and the bottom line is, golf carts are for golf courses or for private properties," Russell said. * * *
City Council President Larry Preston supports the ordinance, and he thinks it's good to get it on the books before more golf carts take to the road.
"It's something I support because I think we're going to need it in the near future," Preston said.
In New Castle, Deputy Police Chief Scott Ullery said there's been off-and-on discussion over the years about allowing golf carts on city streets.
But it always boils down to the fact they're not official vehicles, according to the BMV.
Still, Ullery said he sees a few on city streets. But he's also noticed people driving lawn tractors. So far, he hasn't ticketed them.
"I try not to go that route. The people that are doing that would be hard pressed to pay a citation anyway," Ullery said.
In December 2006, the Portland City Council adopted a golf cart ordinance, in part because the city is swamped with the vehicles anytime there's a large event at the Jay County Fairgrounds, especially the summertime Tri State Gas Engine and Tractor Association show.
Winchester used the Portland ordinance as its model.
Asked whether the ordinance leaves the city liable, since it allows non-licensed vehicles on the road with other regulated vehicles, Winchester City Attorney Meeks Cockerill said no.
"I don't think the city has any liability problems," Cockerill said, "if you would drive a golf cart down a city street just like driving a (car). The problems are people driving down (Ind.) 32 in a golf cart."
Ind. Courts - "Clark County on forefront of juvenile treatment"
Tara Hettinger of the Jeffersonville Evening News & Tribune reports in a story that begins:
Clark County Superior Court Judge Vicki Carmichael has seen her share of youth coming through her courtroom.
“Over the years, there are so many kids that go through the [juvenile justice] system time and time again and you’re never really sure what’s going on with them,” Carmichael said. “You know something is wrong, but you can’t quite pinpoint it.”
Now, Clark County’s juvenile detention center is one of six chosen in the state to participate in a pilot program, targeted at finding that problem and fixing it.
The Juvenile Mental Health Screening, Assessment and Treatment Pilot Project, initiated by the Indiana State Bar Association, focuses on screening youths within hours of their arrival in the juvenile justice system for mental health and substance abuse disorders. Treatment, such as counseling, is then administered to those who need it.
Clark’s center — which also serves youth in Floyd, Harrison and Scott counties — has been doing the screenings since Jan. 1. Carmichael said though it is too early to see any changes in the number of youth in the juvenile justice system, she does see an obvious increase in those getting help.
Judge Mary Harper, who is the chair of the advisory board for the project, said this program not only benefits the children, but also those who work with them, such as employees in the detention centers. She said it helps the employees address the needs of the youth as well as improve safety.
Harper said youth are still held accountable for their offenses. However, she said oftentimes children are acting out due to issues that can be resolved through treatment.
Carmichael compared the old way of “putting Band-Aids” on the issues, while this process helps to heal the problems and prevent the children from returning.
Ind. Courts - Editorial: Legislature should regulate adult bookstores, not court
The Bedford Times-Mail editorializes today:
Lawmakers will have to try again if they want to take on businesses that sell sexually explicit material.After discussing Judge Barker's voiding of the law, the editorial continues:
So far their efforts, while laudable, have not passed constitutional muster. We trust they will try again, because the Legislature, not the courts, is the most prudent area for the issue.
This all began with the phenomenon of adult bookstores popping up along highways, usually in rural communities that have no zoning restrictions. Lawrence County, lacking zoning in rural areas, could be a target. Other parts of the state have already been hit.
For example, the Lion’s Den adult bookstore off Interstate 65 near Crothersville has attracted a lot of attention. The state representative in that area, Rep. Terry Goodin, D-Austin, also happens to be the superintendent of the Crothersville schools. He was not pleased to see the new business seemingly show up overnight.
Goodin wrote a bill requiring retailers to register with the state and pay $250 if they sell sexually explicit material. With the help of supporters like Sen. Brent Steele, R-Bedford, that bill became law.
“We have to send a message to retailers that there is more than porn in Indiana,” Goodin said, recording one of the most memorable quotes of this year’s legislative session.
Indiana Attorney General Steve Carter said he would not appeal Barker’s ruling.See also this updated ILB entry from July 4th.
Instead, he said, lawmakers can try to create a stronger, more clearly worded law during the 2009 legislative session.
“I’ve got pencil in hand,” [legislator and school superintendent] Goodin said in the AP report. “I’m ready to go. I’m not going to let this sleeping dog lie.”
We’re glad to see this issue headed back to the lawmakers, where it belongs, instead of to the courts, where more time and money will be wasted.
And we trust that Goodin, Steele and others concerned about this issue will take another hard look at it during the 2009 legislative session.
Ind. Courts - Warrick County Drunk Driving and Drug Court and the Youth Substance Abuse Program
Lydia McCoy of the Evansville Courier & Press reports today:
In the 33 years that Warrick County Judge Keith Meier has worked in the criminal justice system, he's seen the correlation between crime and drugs and alcohol.
In 2005, he founded the Warrick County Drunk Driving and Drug Court, which works to rehabilitate people convicted of crimes who have drug and alcohol addictions. Now he's partnering with Judge David Kelley, county Prosecutor Todd Corne and court services to reach out to juvenile offenders.
The new Youth Substance Abuse Program is intended as a corrective, rehabilitative program for juvenile offenders and will include parents and their responsibilities in the curriculum.
"We don't really have any similar program in the judicial system here in Warrick County," Meier said. "Judge Kelley, who does virtually all of the juvenile delinquencies (cases), has wanted to be able to refer the juveniles that are using drugs or alcohol to something, to get some intervention."
Meier said it's a natural progression from the drug court.
"Had these people that are in the drug court gotten the intervention they needed when they were juveniles, they probably wouldn't have ended up in a drug court program," he said. "When I set up the drug court, I ultimately wanted to get into the juvenile area."
The program could be extended into a drug court program, but that hinges in part on staffing and funding, Meier said.
"It's a step in the right direction," he said. "We're certainly not going to be a full service for the juveniles, but maybe as we progress we can do that."
Saturday, July 05, 2008
Courts - Still more on: Hamilton Ohio Naked Prosecutor
HAMILTON -- A former city prosecutor who was fired for taking nude after-hours strolls in a public building has won a court victory in his battle to get his job back.
Scott Blauvelt, 36, is entitled to civil-service job protection, Visiting Judge Thomas Nurre ruled in a decision filed June 25 in Butler County Common Pleas Court.
The decision, if it stands, means Blauvelt would be entitled to have a civil service panel consider whether to rehire him.
City Law Director Hillary Stevenson says she disagrees with Nurre’s analysis of Blauvelt’s job situation and will seek a reversal from the Ohio 12th District Court of Appeals in Middletown.
The saga has been going on since late 2006. Stevenson fired Blauvelt after security cameras videotaped his naked nighttime walks through the Government Services Center downtown. Blauvelt was then working in that building.
Blauvelt’s lawyer, Mike Gmoser, says Blauvelt has overcome the mental problems that fueled his odd behavior, and he’s back to work as a criminal defense lawyer in Hamilton.
But Gmoser said Blauvelt loved working as a prosecutor and “he’s just a good, solid guy who wants his job back.”
Gmoser says Blauvelt’s aberrant behavior could be partly blamed on side effects of a medication used to treat depression and seizures.
Blauvelt was taking that medicine before he was found nude in a near-fatal Indiana car wreck in 2005, Gmoser previously said. Blauvelt suffered a severe brain injury in that wreck, which also influenced his behavior, Gmoser said.
“These issues are in the past for Scott,” Gmoser said Thursday. “The city didn’t take the time to fully analyze what was causing this behavior. They just looked at the bizarreness of the behavior and said, ‘Oh my God, we’ve got to fire this guy.’”
Ind. Courts - Story lauds Tippecanoe County Prosecutor Pat Harrington
"Prosecutor on fast track to fulfill his promises" is the headline to a lengthy story today in the Lafayette Journal Courier, by Sophia Voravang.
Ind. Law - "Helmet-law discussion gears up as motorcycle deaths rise"
Vic Ryckaert of the Indianapolis Star reports today in a story that begins:
At least 12 people have died in motorcycle crashes in Indianapolis and nearby counties since April, leaving some to ask if it's time for a mandatory helmet law in Indiana.
Indiana deaths climbed 80 percent in the past 10 years, according to Indiana Criminal Justice Institute data released in May. Motorcycle deaths also have climbed nationally in recent years after states eased restrictions on helmet laws, according to a recent analysis of federal accident reports by Gannett News Service.
Sen. Thomas J. Wyss, R-Fort Wayne, said motorcycle helmets are similar to vehicle seat-belts and child car seats -- both of which have been shown to save lives.
"If those things work, why doesn't it make sense that we go for a helmet law?" Wyss asked.
Environment - Great Lakes compact; another BP appeal
Gitte Laasby, environmental reporter for the Gary Post-Tribune, has sent along two news items:
Late last night [July 3rd], the Pennsylvania Senate passed the Great Lakes Compact. The governor has said he plans to sign it. With that, the Compact is now headed for Congress, which still has to ratify it for it to become a reality.
Also yesterday, environmentalists filed a state court appeal of BP's air operating permit. The previous three appeals are of the construction permit, and will be heard by a state environmental law judge. The info's in a brief in today's paper but not online.
Friday, July 04, 2008
Ind. Courts - 7th Circuit has "yet to rule on adult bookstore in New Albany: New Albany DVD has stayed open" [Updated]
Judge Barker was also the judge in the New Albany adult video shop dispute, decided Jan. 6, 2005. As Ben Zion Hershberg of the Louisville Courier Journal reported at the time:
After 11 months of litigation, a federal judge has ordered New Albany to allow an adult video store to operate near downtown. Steve Mason, a lawyer for New Albany DVD, said he expects his clients to open the store at 601 W. Main St. early next week.Here is a link to that opinion.
The decision, issued Tuesday by U.S. District Judge Sarah Evans Barker, came in a lawsuit filed by the store's owners in which they claimed their constitutional rights were violated when the city shut it down.
Barker issued a preliminary injunction against the city on grounds that its adult-entertainment zoning ordinance enacted after New Albany DVD had tried to open was too broadly written. * * * Barker's decision was on the store's request for an order allowing it to operate while the case is considered on its merits.
On Sept. 27, 2005, the case was argued before the 7th Circuit, as Hershberg also reports.
From today's story:
Almost three years ago, lawyers for the city of New Albany and an adult bookstore presented arguments to a federal appeals court on whether the business should remain open.Presumably the "adult-business case from Indianapolis" is another Judge Barker ruling - Annex Books Inc, et al v. City of Indianapolis - that is even older, from August 30th, 2004 -- see this ILB entry from Sept. 7, 2004. (Court of Appeals Docket #: 05-1926) Oral arguments in the as-yet-to-be-decided case were held before Judges Flaum, Easterbrook, and Rovner, on Sept. 8, 2005.
But the case surrounding New Albany DVD, which also has a sign calling it "Cleopatra's super store," is still pending before the Chicago-based 7th U.S. Circuit Court of Appeals.
"I don't know" why there hasn't been a ruling, Scott Bergthold, a Chattanooga, Tenn., lawyer for the city, said this week, noting that oral arguments were presented on Sept. 28, 2005. * * *
New Albany DVD started doing business on Feb. 19, 2004.
Later that day, the New Albany City Council adopted a six-month moratorium on the opening of any sexually oriented company, and city officials ordered New Albany DVD to close.
But a few days later Mason sued in federal court, claiming the city had violated his client's right to free expression.
U.S. District Judge Susan Evans Barker ruled against the city, saying zoning ordinances adopted after officials had ordered the store closed were too broad. She ordered the city to let the store remain open. The city appealed.
A clerk in the federal appeals court office said when asked about the case this week that it was unusual for a case to go so long without a ruling.
"But that could be caused by the complexity of the issues," the clerk said.
Bergthold and Mason said the same court is also considering an adult-business case from Indianapolis. But they said it's unclear if the judges have linked the cases.
Every few months, Bergthold said, the appeals court automatically schedules a "settlement hearing," and both sides agree to postpone it because "there's no point before we know what the decision is."
[Updated 7/6/08] Note that in Annex Books, Judge Barker upheld provisions of an Indianapolis adult business ordinance. Some quotes from the 31-page, August 27, 2004 opinion (which the ILB has now located and made available here):
An ordinance is properly classified as content neutral if it does not seek to regulate the content of the expression (e.g., ban the sale of adult-oriented materials altogether) but rather imposes limitations only on the location of a business or its hours of operation.Note that the Court subsequently granted the Plaintiffs’ Motion for an Injunction Pending Appeal.
Our review of the City’s adult entertainment business ordinance causes us to conclude that it is a permissible time, place and manner regulation. Chapter 807 does not ban adult bookstores instead it requires adult entertainment businesses to apply for a license, to meet certain premises requirements and to limit the hours of operation.
Whether the ordinance serves a substantial governmental interest again is a decision to be made in light of Supreme Court precedent and Seventh Circuit interpretations, and, again we find that the City’s ordinance passes constitutional muster. Secondary effects are those harmful side effects allegedly associated with the presence of adult entertainment businesses, such as increased crime, an increase in public sexual acts, the spread of sexually transmitted diseases and declining property values. * * *
The City urges the Court to sever any part of the ordinance it finds invalid so to avoid a ruling invalidating the whole. As explained above, we have found only the inspection provision, Sec. 807-302 (b), constitutionally deficient. * * * The judicial review provision, along with the licensing and premises requirements, operate independently from the inspection provision and as such are not affected by our invalidation of Sec. 807-302(b).
In summary, for the reasons stated above, we DENY Plaintiffs’ Motion for Summary Judgment and GRANT Defendant’s Motion for Summary Judgment on the first and second grounds (judicial review, licensure and premises requirements) and DENY the motion on the third ground relating to the unconstitutionality of warrantless inspections.
Ind. Gov't. - More on: Competition fierce for Fort Wayne's Lincoln Museum
In reporting about the closing of the Lincoln Museum in Fort Wayne, I wrote on March 9th: "Kentucky and especially Illinois make a big deal over Abraham Lincoln. The State of Indiana has done comparatively little. * * * The is certainly an opportunity for the State of Indiana that likely will never come again." A number of additional ILB entries followed.
Today, on July 4th, columnist Matthew Tully has a report titled "Hoosiers bid sad farewell to museum." It begins:
It was a sad day in Fort Wayne this past Sunday.Later in the column:
A line stretched more than 100 people long out of The Lincoln Museum in the city's downtown, as residents waited in the rain for the chance to pay their last respects to a museum dedicated to the nation's 16th president. The museum was closing, and the future of its massive, $20 million collection is uncertain.
Joe Milledge, a 50-year-old salesman, was among the many waiting in line. Closing time was approaching and the rain had become a steady drizzle, but Milledge wanted to enjoy "the last of many visits" to a local institution.
Lincoln lived in Southern Indiana from the ages of 7 to 21. Still, our state has never had as much of a public claim to him as have our neighbors in Illinois, and the location of a Lincoln Museum in Northern Indiana has been something of a curiosity.
Why was it here?
The history stems from the interest a Fort Wayne businessman named Arthur Hall had in the former president. Hall in 1905 founded the Lincoln National Life Insurance Co., naming it for Lincoln with the blessing of the president's family.
Over the years, Hall and others affiliated with the company created a research foundation and put together a world-class collection of books, photographs, historical documents and other items. The foundation created a small museum in the 1930s and opened the larger one downtown in 1995.
The company, now known as Lincoln Financial, moved its headquarters to Philadelphia a decade ago. So it's no surprise that the foundation, which spent $1.5 million a year to run the museum, decided to close it earlier this year.
Courts - Judges urges Lilly to try to settle Zyprexa drug claims
Eli Lilly and Co., which already has paid more than $1 billion to settle legal claims over the side effects of its top-selling drug, Zyprexa, now faces another protracted legal battle over whether it improperly marketed and overcharged for the antipsychotic and should pay billions more to insurers.A side-bar to the story details "Zyprexa's Legal Scorecard." The Star also makes the entire 291-page "discussion draft" written by federal district judge (ED NY) Jack B. Weinstein, dated July 2nd, available online.
The stage was set Thursday when U.S. District Judge Jack Weinstein issued a draft order saying the case against Lilly is strong enough to warrant a trial and noting that the company may have excessively encouraged questionable uses of the drug. In his 291-page draft, he urged Lilly to negotiate a worldwide settlement with plaintiffs, who are seeking up to $7.7 billion in reimbursements.
It's the latest twist in a lengthy legal saga, filled with complex medical issues and implications for the national health-care system, including how drug makers market and charge for medicines, and how doctors prescribe them.
The case also continues to cast uncertainty over Lilly, the largest private employer in Indianapolis. The company already has paid more than $1 billion to settle personal injury claims by patients who said the company hid Zyprexa's side effects, including weight gain and increased blood sugar. The company still faces criminal and civil investigations by federal and state officials.
Environment - "Georgia Court Halts Construction of New Coal-Fired Plant"
The subhead to this July 3rd story in Scientific American is: "First-ever thumbs-down by a court based on greenhouse gas as a pollutant." The report begins:
A Georgia court this week halted construction of a new 1,200-megawatt coal-fired power plant on the Chattahoochee River, dubbed Longleaf, because backers failed to provide a plan to limit climate change–causing carbon dioxide emissions from it.Matthew L. Wald reported July 1st in the NY Times:
"The plant as permitted [by the Georgia Department of Natural Resources] would annually emit large amounts of air pollutants, including eight [million] to nine million tons of carbon dioxide," Fulton County Superior Court Judge Thelma Wyatt Cummings Moore wrote in her decision. "There was no effort to identify, evaluate or apply available technologies that would control CO2 emissions and the permit contains no CO2 emission limits…. Since CO2 is 'otherwise subject to regulation under the [Clean Air] Act,' a PSD [prevention of significant deterioration] permit cannot issue for Longleaf without CO2 emission limitations."
The decision marks the first time that potential greenhouse gas pollution has been cited as a factor in denying permission to build a new coal-fired power plant; it is also the first that hinges on a Supreme Court ruling issued last year that found the Clean Air Act gives the U.S. Environmental Protection Agency (EPA) the power to regulate carbon dioxide and other greenhouse gas emissions.
A judge in Georgia has thrown out an air pollution permit for a new coal-fired power plant because the permit did not set limits on carbon dioxide emissions.A Reuters analysis piece by Eileen O'Grady and Timothy Gardner, from July 1, begins:
Both opponents of coal use and the company that wants to build the plant said it was the first time a court decision had linked carbon dioxide to an air pollution permit.
The decision’s broader legal impact was not clear, either for the plant, proposed to be built near Blakely, in Early County, Ga., or for others outside Georgia, but it signaled that builders of coal plants would face continued difficulties in the court system as well as with elected officials in many states.
In the ruling released late Monday afternoon, a state judge relied on a decision by the Supreme Court last year that carbon dioxide could be regulated as a pollutant. Carbon dioxide, which is colorless, odorless and not directly harmful to animals or plants, is not now regulated, and the Bush administration has signaled that it would not issue such regulations before the president leaves office.
But the judge, Thelma Wyatt Cummings Moore in Superior Court in Fulton County, Ga., said that federal air pollution control laws required pollution permits to cover all pollutants that could be regulated under the Clean Air Act, not just those for which there is “a separate, general numerical limitation.” The case had been brought by the Sierra Club and a local environmental group, Friends of the Chattahoochee.
Judge Moore sent the case back to the Georgia Department of Natural Resources, which had issued a permit in May 2007. The builders had planned to break ground on the $2 billion project later this year.
HOUSTON, July 1 (Reuters) - Developers of coal-fired power plants in the U.S. will face yet more obstacles since a Georgia court overturned an air permit for a new coal plant, saying the plant needed to limit emissions of carbon dioxide, a greenhouse gas blamed for global warming.Here, via Green-law.org, is a copy of the 20-page, June 30th opinion.
Environmental groups predicted Monday's ruling would discourage investment in coal plants while supporters of the fuel said the ruling was unlikely to be seen as a legal precedent in other states.
While the legal importance of the Georgia decision remained cloudy, financial community reaction may be more visible, said Matt Preston, principal analyst with Hill & Associates, a Wood Mackenzie company focused on coal.
"This adds to the uncertainty as if that was needed," Preston said. "Until there is a more clear path for coal projects with regard to climate change, it will be more difficult to raise money for coal projects."
The only point observers agreed on was that Monday's court ruling was "unprecedented" in scope as it relates to the need for coal plants to regulate carbon emissions now.
Thursday, July 03, 2008
Ind. Decisions - Transfer list for week ending July 3, 2008
Here is the Indiana Supreme Court's transfer list for the week ending July 3, 2008. Note that there are five pages.
The Court granted one transfer with opinion on June 30th, in Phillip Miles v. State. There was no oral argument before the Supreme Court. The opinion was posted here on the ILB on June 30th. The Court of Appeals opinion was issued over two years earlier, on May 5, 2006.
The Court has also granted transfer (on 6/26/08) to the case of Shawn E. Norris v. State of Indiana (see ILB entry here), where the COA ruled:
Shawn Norris appeals from the trial court’s summary disposition of his petition for post-conviction relief. Norris raises the sole issue of whether the trial court improperly granted summary disposition. Concluding that issues of material fact preclude summary disposition, we reverse and remand with instructions that the trial court conduct a hearing on Norris’s petition.
An odd thing. All but one of the cases on this July 3rd list is dated 6/26/08 - I have not been able to learn, as of yet, were they weren't included on last week's June 27th list. [Update: I'm told they came down late, too late for last week's list.]
Ind. Decisions - 7th Circuit decides one Indiana case today
In United Steel, Paper etc. Union v. TriMas Corp (ND Ind., Judge Springmann), a 14-page opinion, Judge Cudahy writes:
The defendant TriMas Corporation (TriMas) owns a number of heavy manufacturing plants in the Midwest. In July 2003, it signed a neutrality agreement with an organization whose name is a “mouthful”—the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (Union). In essence, TriMas agreed to cooperate with Union efforts to organize its workforce, at least within certain parameters. The agreement specified that any disputes regarding the terms of the agreement would be settled by arbitration.
In 2005, the Union informed TriMas of its intention to organize the Rieke plant, a TriMas facility in Auburn, Indiana. The Union believes that the Rieke plant is a “covered workplace” subject to the provisions of the agreement requiring neutrality. TriMas, however, refused to accord neutrality to the Union. TriMas claimed that the plain language of the neutrality agreement was not controlling because the neutrality agreement had been modified by an oral side agreement. The modified agreement applied to only three or four plants, it argued, and the Rieke plant was not one of them. When the Union insisted that they submit the dispute to arbitration, TriMas again refused. It characterized the dispute as one involving the “scope” of the agreement itself and so claimed that it had no duty to submit it to arbitration.
The Union then brought this action in federal court to compel arbitration under the Labor-Management Relations Act (LMRA). See 29 U.S.C. § 185(a). The parties filed cross-motions for summary judgement, and the district court granted the Union’s motion. TriMas now appeals, claiming that the district court “ignored” the extrinsic evidence that would have established the existence of the side agreement. We believe that the district court was correct in finding that the dispute was covered by the language of the arbitration clause and in leaving consideration of the extrinsic evidence to the arbitrator.
Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
Susan Steinsdoerfer v. Master Guard (NFP) - "Although competent evidence did not support some of the hearing member’s findings, the Board nevertheless properly affirmed the hearing member’s conclusion that Steinsdoerfer failed to establish she sustained an injury arising out of and in the course of her employment with Master Guard."
NFP criminal opinions today (1):
Ind. Courts - Porter County prepares to start juvenile drug court
Vicki Urbanik reports in the Chesterton Tribune in a story that begins:
Porter County juvenile court officials are awaiting state approval to begin a new juvenile drug court, which will focus on treatment of offenders with substance abuse problems.
With an anticipated start date of Sept. 1, the Porter County Commissioners on Tuesday approved a request from the Juvenile Probation Department for $12,819 in equipment needs for the new court.
Porter County Chief Juvenile Probation Officer Amy Beier said the juvenile drug court will be limited to 10 participants, at least initially. She noted that because this will be an entirely new program for Porter County, officials want to take the time needed to make it successful. Further, a larger drug court could require additional staff.
Only two other Indiana counties currently have juvenile drug courts. Beier commended the support from the Porter County Council, which agreed to fund a new probation officer in this year’s budget specifically for the new court.
Ind. Courts - St. Joseph Prosecutor Dvorak claims his attorneys aren't receiving comparable pay to public defenders
Pablo Ros reports today in the South Bend Tribune in a lengthy sstory - some quotes:
For most in St. Joseph County's criminal justice system, it has been everything it promised to be.
A reimbursement program with the Indiana Public Defender Commission that began a year ago has funneled dollars back to county coffers while helping to strengthen the county's public defender office.
But to St. Joseph County Prosecutor Michael Dvorak, the program, which helped raise the salaries of public defenders while reducing their caseloads, has confirmed the fears he expressed last year that unless the county helped him raise the salaries of his own deputies it would create disparity.
Dvorak claims three deputy prosecutors have left his office this year because those jobs have lost competitiveness in the "attorney market." * * *
The county can expect to receive about $100,000 in excess funds from the state, according to Circuit Judge Michael Gotsch, who advises the public defender board.
The reimbursement program, which was approved by the County Council in June 2007, was supposed to give back to the county up to 40 percent of its eligible public defender expenses while helping to reduce the caseloads of overworked public defenders.
According to figures from the Indiana Public Defender Commission, it has pretty much fulfilled its promises. * * *
John Marnocha, chief judge of St. Joseph Superior Court, said things are running "a lot more efficiently" in the courtroom since the state reimbursement program took effect.
"It's helped us deal with the caseload we have," he said.
With attorneys being less "booked up" and he no longer having to fight everyone's calendar, Marnocha said, cases are being resolved in a more timely way.
Ind. Courts - Randolph County Courthouse plans still up in air
WINCHESTER -- In response to public pressure, the Randolph County Board of Commissioners next week will once again consider a new option for its much beleaguered courthouse project.
During a special meeting 7 p.m. Wednesday, commissioners will hear from project manager Lester "Spike" Shepler Jr., who will present two new options for a courthouse annex -- in the former Marsh store on East Washington Street or in a new structure that could be built next to the Randolph County Jail.
Both of those options temporarily relieve the pressure of figuring out how to make a two-story annex, planned for the courthouse square, work. The plans on paper, in the works for two years, don't conform to zoning rules and have left the project in a stalemate.
The expansion and renovation of the existing courthouse built in 1877 remains a sore spot for Randolph County residents. It's been the subject of state and national criticism.
But next week's meeting, and the new options, show hope for residents who don't want the annex built on the courthouse square. Don Matchett owns an insurance office across the street from the courthouse, and he's never supported the annex. * * *
Commissioner Ron Chalfant, one of two board members who will leave office this year with a still-incomplete courthouse project, said his rural constituents don't want to spend millions of dollars on a courthouse renovation.
"The folks that I talk to are not in favor of spending a lot of money on this project at all," said Chalfant, who supports the idea of delaying the project even longer, January 2009 when a new board will take office. "To go ahead and push the annex (on the square) forward is a mistake."
Courts - More on: Linda Greenhouse points to blog that identified an error in a major SCOTUS opinion
In a highly unusual admission of error, the Justice Department acknowledged on Wednesday that government lawyers should have known that Congress had recently made the rape of a child a capital offense in the military and should have informed the Supreme Court of that fact while the justices were considering whether death was a constitutional punishment for the crime.
“It’s true that the parties to the case missed it, but it’s our responsibility,” the department’s public affairs office said in a statement.
“We regret,” the statement said, “that the department didn’t catch the 2006 law when the case of Kennedy v. Louisiana was briefed.”
Courts - "Next Term: A Fatter, Faster Calendar for Supreme Court"
Tony Mauro of Legal Times writes today in a long story that begins:
The current term is history, so what's up for the Supreme Court's next term, which begins Oct. 6? More cases, heard more quickly, and possibly decided with more division among the justices than the term just ended.
The Court has already granted review in enough cases to fill 43 hours of oral argument, allowing Chief Justice John Roberts Jr. to hasten the argument calendar, and making it likely that the Court will decide more cases with signed opinions after argument than this term's 67, the lowest number in more than 50 years.
The cases pose a range of tough and possibly divisive issues from religion in the public square to expletives on the public airwaves. More about those later. At a Court that changes its ways rarely and uneasily, tinkering with the calendar is as significant as the cases it will consider.
Steering the Supreme Court's doctrine in a new direction is one thing. But altering its calendar -- that's a true sign that a new chief justice has taken control of the Court. Roberts announced the change in a June 6 speech at the judicial conference of the U.S. Court of Appeals for the D.C. Circuit.
In October and November, the justices will hear three arguments a day instead of two, likely leaving fewer cases to be argued next spring -- possibly as few as one a day. By front-loading the calendar, Roberts aims to give himself and his colleagues more decisions to write and issue through the winter, alleviating the Court's usual headlong race to finish the term's work in May and June.
Ind. Decisions - Still more on: "Booksellers incensed over sexual content law"
As reported here yesterday in the ILB, Attorney General Carter has elected not to appeal Judge Barker's July 1st decision in the Big Hat Books case. Several papers editorialize today on the case.
The Indianapolis Star's editorial is headed "Earning an XXX rating with an anti-porn show:
Tuesday, Barker rightly tossed out a vague, sloppily written state law requiring sellers of "sexually explicit" materials to register with the secretary of state and pay a $250 fee.The Richmond Palladium-Item's editorial is headed "Good choices made to scrap ill-advised law." It concludes:
A little over three years ago, the same judge upheld key parts of an Indianapolis ordinance that restricted the operations of adult bookstores. (The ruling remains under appeal).
The difference? The city ordinance was aimed essentially at curbing crime and other unsavory activities spawned by adult businesses. The state law was aimed at the words and pictures they sell, and that violates the First Amendment.
Advertised by its legislative sponsors as an answer to the very real problem of X-rated emporia dominating interstate exits and hawking their wares on giant billboards, House Enrolled Act 1042 said virtually nothing about zoning, location, hours of operation and other issues not related to free speech.
Instead, it cast a net over any and all purveyors of sex-related merchandise, meandering through "definitions" so loose that the law could be applied to classic works of art and to the places that sell and display them. The lawsuit that led to the ruling was filed by bookstores and the Indianapolis Museum of Art, which feared they'd be operating under a cloud if the statute had taken effect Tuesday as scheduled. A sweeping censorship law was not doing the state's national image a great deal of good either.
Not surprisingly, the bill's principal sponsor, Rep. Terry Goodin, D-Crothersville, says the judge got it wrong and he'll be back to try again. Implying that one is leading the battle against the forces of smut is astute politically; but in fairness, Goodin is addressing a real quality-of-life issue. His proposed solution, however, never should have become reality. Gov. Mitch Daniels' rationale for signing HEA 1042 into law -- that he had not heard complaints about it -- is likewise unreal.
There is a solution, or at least an approach, to the problems posed by adult bookstores. The solution must be local, must be focused, and is limited to offshoot effects on the order of noise, drunkenness, prostitution or underage employees or customers. These are not constitutionally protected. Nor are they matters of personal taste. Books, movies, pictures and statues, whether sold off the exit ramp or in the museum gift shop, are another story. Someone should read it to Indiana's elected leaders.
Rep. Terry Goodin, D-Crothersville, said he wrote the law to stop companies from deceiving communities with weak zoning laws. He noted one company told the southern Indiana community of Dale it planned to operate a truck stop, but instead opened an adult business.
But that represents a failure of good zoning laws, not cause for an end run around First Amendment guarantees of expression.
As we noted in this space three months ago, just after Gov. Mitch Daniels sought to legitimatize with his signature this ill-conceived legislation: "We struggle with the idea of placing words or pictures on the same kind of state registry now reserved for convicted sex offenders. Words and pictures deserve wider protection."
Thanks to Judge Barker, that struggle is over.
Thanks to Attorney General Steve Carter, there will be no costly appeal, at taxpayers' expense, of the judge's ruling. Carter said Wednesday that if legislators want such a law, they could try again in the next session to enact a stronger law with language that is clearer.
Not to mention constitutional.
Law - "Ave Maria School of Law Dodges Bullet, Retains Accreditation"
For those following news of the Ave Maria Law School (which the ILB covered for a time last year because of brief speculation it was moving to Fort Wayne - see the last line of this June 4th entry for links), the WSJ Law Blog had this entry yesterday.
Wednesday, July 02, 2008
Environment - Bartholomew County hog farmer to pay fine, close operation
Kirk Johannesen has this brief story in the Columbus Republic:
A Bartholomew County hog farmer agreed to close his confined feeding operation and pay a $7,750 fine for environmental violations, according to Indiana Department of Environmental Management.
Ron Trotter, a Bartholomew County Board of Zoning Appeals member, and president of Trotter Farms, had been negotiating with IDEM after being fined $32,500 for a manure spill that the state agency said harmed state waterways.
"What we agreed to was a business decision. We couldn't afford to fight it anymore," said Barry Trotter, Ron's son, who works on the farm.
Law - Indiana-born civil rights lawyer Thomas Atkins dies
In an article today in the South Bend Tribune, Laureen Fagan, writes:
Elkhart native and nationally prominent civil rights lawyer Thomas I. Atkins used to say that power was colorless.The story includes a photo:
"It's like water. You can drink it or you can drown in it," he'd say.
And when Atkins died Friday at age 69, that was one of the memorable quotes used by the Boston Globe to honor the man who came to their city to attend Harvard Law School, stayed to become the first black to hold a Massachusetts Cabinet post, was president of the city's NAACP chapter -- and argued the landmark Boston school desegregation case.
A Tribune file photo taken from the IU yearbook shows Atkins at his desk in 1961 after he became the student body's first black president, also a first for any Big Ten school.I remember, I was an IU undergrad at the time.
The Boston Globe had a long obituary June 29th that began:
Thomas I. Atkins, a hard-driving champion of racial justice who rose from rural Indiana to become Boston's first black at-large city councilor and faced off against opponents of busing in the 1970s as an NAACP leader, has died at 69.The Globe published this editorial on July 1. Some quotes:
The Harvard Law School graduate knew that access to education had enabled his rise and fought to secure opportunities for others, first in Boston and later in desegregation cases across the country.
"He was clearly the most brilliant and insightful civil rights lawyer, both in and beyond Boston, to take on the challenges of school desegregation," said Ted Landsmark, who worked with Mr. Atkins in the late 1970s as a lawyer at Mr. Atkins's Boston law firm, Atkins and Brown. "He was a great humanist."
Mr. Atkins died Friday night at a nursing home in Brooklyn, N.Y., after struggling for nearly two decades with the degenerative muscular disease Amyotrophic Lateral Sclerosis, or Lou Gehrig's disease.
He was a humanist, but he also had a steely resolve. As a central figure in the city during a turbulent era, he received repeated death threats. He fortified his Roxbury home to protect his family, running chicken wire over windows to block Molotov cocktails and installing spigots throughout the seven- bedroom house to connect hoses for fighting fires, said his son Thomas Jr.
THOUGH HE was a native of Elkhart, Ind., Thomas I. Atkins, a civil rights lawyer who combined sharp intellect and political muscle, mastered the art of Boston politics. Atkins, the city's first black at-large city councilor, died Friday at age 69.
Atkins's election in 1967 was, in part, a function of the increase in the city's black population, which had climbed to about 90,000 that year. But he also ran well in white working-class neighborhoods where he reached out for votes in local barrooms considered hostile territory by many minorities.
Atkins could be brash, even pushing his way into Harvard Law School long after the application deadline. But there was always an analytical underpinning to his actions, whether fighting for school desegregation nationwide in his role as general counsel for the NAACP or arguing on behalf of Boston neighborhoods threatened by short-sighted urban renewal policies.
Boston has seen more fiery civil rights leaders than Atkins. But none smarter or more strategic.
Ind. Decisions - More on: "Booksellers incensed over sexual content law"
This week’s ruling by a federal district court judge striking down a new law that would have required retailers selling sexually explicit material to register with the state will not be appealed announced Indiana Attorney General Steve Carter today.
“The next general assembly session will provide legislators with an opportunity to explore ways to address the weaknesses of the statute,” Carter said. “The attorney general’s office is available to consult with lawmakers if they choose to pursue revised language to meet their objectives.”
Courts - Linda Greenhouse points to blog that identified an error in a major SCOTUS opinion
In Kennedy v. Louisiana, issued last week, the Court prohibited states from imposing the death penalty for child rape. Linda Greenhouse writes today in the NY Times:
When the Supreme Court ruled last week that the death penalty for raping a child was unconstitutional, the majority noted that a child rapist could face the ultimate penalty in only six states — not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government either.Here is the entry in Colonel Sullivan's blog. It is titled "The Supremes Dis the Military Justice System." The entry concludes:
This inventory of jurisdictions was a central part of the court’s analysis, the foundation for Justice Anthony M. Kennedy’s conclusion in his majority opinion that capital punishment for child rape was contrary to the “evolving standards of decency” by which the court judges how the death penalty is applied.
It turns out that Justice Kennedy’s confident assertion about the absence of federal law was wrong.
A military law blog pointed out over the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty. The revisions were in the National Defense Authorization Act that year. President Bush signed that bill into law and then, last September, carried the changes forward by issuing Executive Order 13447, which put the provisions into the 2008 edition of the Manual for Courts-Martial.
Anyone in the federal government — or anywhere else, for that matter — who knew about these developments did not tell the court. Not one of the 10 briefs filed in the case, Kennedy v. Louisiana, mentioned it. The Office of the Solicitor General, which represents the federal government in the Supreme Court, did not even file a brief, evidently having concluded that the federal government had no stake in whether Louisiana’s death penalty for child rape was constitutional.
The provision was the subject of a post over the weekend on the blog run by Dwight Sullivan, a colonel in the Marine Corps Reserve who now works for the Air Force as a civilian defense lawyer handling death penalty appeals.
Mr. Sullivan was reading the Supreme Court’s decision on a plane and was surprised to see no mention of the military statute. “We’re not talking about ancient history,” he said in an interview. “This happened in 2006.” [emphasis added]
Many years ago, Professor Schlueter gave a Hodson lecture he called, "Military Justice for the 1990's -- A Legal System Looking for Respect." See 133 Mil. L. Rev. 1 (1991). If the Kennedy Court's apparent unawareness of the military justice system is any guide, 17 years after Professor Schlueter's lecture, military justice remains the Rodney Dangerfield of legal systems.
Ind. Decisions - 7th Circuit issues one Indiana opinion today
In Nick's Cigarette City, Inc. v. U.S. (ND Ind., Judge Lozano), a 17-page opinion, Judge Manion writes:
Nick’s Cigarette City, Inc. (“Cigarette City”) brought this action in the United States District Court for the Northern District of Indiana. It sought a refund of federal corporate income taxes that it had paid for the taxable years of 1997 and 1998. The district court concluded that it lacked jurisdiction and dismissed the complaint. For the reasons set forth in this opinion, we affirm the judgment of the district court.
Ind. Courts - "Division of State Court Administration Seeks Director of Appellate Court Information Technology"
The Courts Site has posted this job notice. A quote:
The Indiana Supreme Court Division of State Court Administration is seeking a Director of Appellate Court Technology to provide the Supreme Court, Court of Appeals, and Tax Court, and their agencies with pro-active planning and forward-looking technology solutions. The Director will oversee a staff of 7 and will be responsible for managing existing and future IT systems, assessing user needs, recommending improvements, developing requests for proposals, managing system acquisitions, and implementing deployment of new technologies.This is good news. Two thoughts:
First, hopefully the phrase "assessing user needs" includes those of us users on the "outside" who have a continual need to access at a minimum the opinions and the dockets.
Second, hopefully the phrase "recommending improvements" will encompass soliciting such recommendations from those of us on the outside.
Ind. Decisions - Court of Appeals issues 3 today (and 17 NFP)
For publication opinions today (3):
In Indiana Bureau of Motor Vehicles and State of Indiana v. Brent Orange, a 7-page opinion, Judge Kirsch writes:
Intervenor, the Indiana Bureau of Motor Vehicles (the “BMV”), appeals the trial court’s denial of its motion to correct error holding that Brent Orange (“Orange”) was entitled to his plea-negotiated probationary driving privileges after Orange, who held a commercial driver’s license (“CDL”), was convicted of operating a noncommercial vehicle while intoxicated (“OWI”). The issue before us is whether Indiana law prohibits probationary driving privileges for a driver who holds a CDL and is convicted of OWI while driving a noncommercial vehicle. We affirm.In Safe Auto Ins. Co. v. Enterprise Leasing Co. of Indianapolis, Inc., et al. , an 8-page opinion, Judge Mathias writes:
After a policyholder was involved in a automobile accident in Virginia while driving a rental car owned by Enterprise Leasing (“Enterprise”), Safe Auto Insurance Company (“Safe Auto”) filed a complaint for declaratory judgment in Adams Circuit Court arguing its policyholder was not driving a covered vehicle, and therefore, there was no coverage under the Safe Auto policy. Enterprise then moved for summary judgment asserting that Safe Auto’s policy language excluding coverage for leased vehicles is void because it is contrary to Indiana Code section 27-8-9-9. The trial court agreed and entered summary judgment in favor of Enterprise. Safe Auto appeals and argues that there is no conflict between the statute and its policy provision.In Thomas K. Hupfer v. Mary and Ernest Miller , a 6-page opinion, Judge Mathias writes:
We conclude that while Safe Auto’s extraordinarily limited coverage for leased vehicles is unusual at the very least, this limited coverage is not in conflict with state statute. Accordingly, the trial court erred when it granted Enterprise’s motion for summary judgment and we reverse and remand for proceedings consistent with this opinion. * * *
While we might be persuaded by Enterprise’s public policy argument, that argument is more properly made to the General Assembly. “[T]he purpose of the Financial Responsibility Act is simply ‘to assure no more than the availability of the statutory minimum amount of coverage.’” Am. Family Ins. Co. v. Globe Am. Cas. Co., 774 N.E.2d 932, 939 (Ind. Ct. App. 2002) (citation omitted), trans. denied. Safe Auto’s policy provides coverage for Harrison’s vehicle and a temporary replacement vehicle in the event that his vehicle is being serviced or repaired, or has been stolen or destroyed. Moreover, insureds have a duty to read and to know the contents of their insurance policies. See Anderson Mattress Co., Inc. v. First State Ins. Co., 617 N.E.2d 932, 939 (Ind. Ct. App. 1993). Contrary to Enterprise’s argument, there is no law in Indiana requiring insurance companies to provide coverage for vehicles leased by their insureds for any reason and in any circumstance. Finally, it is important to note that Harrison admitted that he did not expect his Safe Auto policy to provide coverage for the Enterprise truck, yet he did not purchase Enterprise’s Supplemental Liability coverage.
For all of these reasons, we conclude that the trial court erred when it granted Enterprise’s motion for summary judgment. We therefore reverse the trial court’s judgment and remand for proceedings consistent with this opinion. Reversed and remanded for proceedings consistent with this opinion.
Mary D. Miller (“Miller”) prevailed on a claim filed in Vanderburgh Superior Court for medical malpractice against Thomas K. Hupfer (“Hupfer”). She filed a motion for prejudgment interest, which the trial court granted. Hupfer appeals and argues that the trial court abused its discretion when it awarded prejudgment interest to Miller. We affirm.NFP civil opinions today (5):
Sheila Skobel v. Douglas Shaw d/b/a Doug's Welding & Gate Shop (NFP) - "Finding that Sheila is not bound by the prior litigation because she was not a party and the issue of her liability was not fully litigated and finding multiple issues of fact, we reverse and remand for further proceedings."
Michael Chatwell v. Dave's Automotive (NFP) - "Specifically, Chatwell argues that the court clearly erred by failing to properly consider his submitted evidence. Concluding that the small claims court’s judgment is not clearly erroneous, we affirm."
Kathleen A. Grothe v. Young Park (NFP) - "The evidence must support the findings and the findings must support the judgment. Hyde, 751 N.E.2d at 765. Here, they do not. The inconsistencies between the trial court’s findings and its conclusions render the trial court’s decision clearly erroneous. They also make appellate review impossible. We vacate the trial court’s judgment and remand for entry of new findings, conclusions and judgment consistent with this opinion and consistent with each other. In its entry, the trial court shall give due consideration to the contributions of Kathleen of her pre-marital assets and post-marital earnings. Vacated and remanded."
NFP criminal opinions today (12):
Ind. Courts - "Haughee's appeals all are denied"
Two new stories today on former Lake County deputy prosecutor Michael B. Haughee (see list of earlier ILB entries).
James D. Wolf Jr.'s Gary Post Tribune report begins:
VALPARAISO -- A Porter County Judge denied all the motions that a former Lake County prosecutor and Hebron council member filed as part of his appeal on a sexual assault conviction.Bob Kasarda's story in the NWI Times begins:
Judge Mary Harper said little Tuesday before denying the motions that Michael B. Haughee, 56, filed in April.
Harper said the court had addressed most of Haughee's concerns before the January trial where he was found guilty of sexual battery, criminal confinement and interference with the reporting of a crime in regard to an attack on a woman in a wheelchair.
Haughee has been representing himself in the appeals process, which includes motions for bond while he is working on his case.
VALPARAISO | Former Hebron Town Council President Michael Haughee failed Tuesday to convince a judge to throw out his sexual assault conviction.
Haughee, who is currently serving a one-year term at the county jail, argued in part that the woman accusing him of the attack was under the influence of 26 different prescription medications when she testified against him.
Ind. Law - More on: Hoosiers may apply for gun permits online
Updating yesterday's ILB entry referencing a story from the Fort Wayne Journal Gazette, the Journal Gazette has posted what appears to be a supplemental story today, this one by Becky Manley, reporting that:
After applicants complete the online form, they will still need to visit their local law enforcement agency to pay fees and be fingerprinted, Berkey said. Applicants also will have to provide an identification number obtained during the online application process and provide an ID.Right now the online application is being tested in two small counties. Instead of going to storefronts that advertise "Gun Permits Typed While You Wait," it appears that the procedure, when implemented in a county, will allow applicants to complete that step online.
The online process will save the state data-entry time because employees currently enter information from handwritten applications, Berkey said. It also eliminates problems caused by illegible handwriting and missing information.
Ind. Decisions - Stories today on: "Booksellers incensed over sexual content law"
Francesca Jarosz of the Indianapolis Star reports today on yesterday's opinion by federal district judge Sarah Evans Barker in the case of Big Hat Books v. Prosecutors: Adams, et al. - see yesterday's ILB summary and links to the opinion and HEA 1042. From the story:
The law would have required anyone who intended to sell sexually explicit materials -- which plaintiffs say could have included classic literature, as well as pornography -- to register with Indiana's secretary of state, pay a $250 fee and submit a statement with details about the materials. It would have applied to new businesses and existing ones that relocated or began selling the materials after June 30.Reporter Ken Kusmer writes for the AP:
"The problem is, sexually explicit materials was defined so broadly," said Ken Falk, legal director for the ACLU of Indiana. "We're not talking about quadruple-X videos. We're talking about 'Lolita' and 'The Joy of Sex' . . . great works of art."
The bill's author, Rep. Terry Goodin, D-Crothersville, said the intent was not to stifle free speech but to help rural communities where weak zoning ordinances allow pornographic establishments to move in. Under the law, the secretary of state would have passed registration information to local officials, who then could more closely monitor the businesses.
Goodin said Barker "totally interpreted (the law) wrong" and that it was perfectly clear that the law targeted pornographic businesses. * * *
Goodin said he didn't know whether the decision would be appealed and planned to consult with the Indiana attorney general's office, which defended the case.
"I'm ready to start all over," he said. "I'm just going to have to figure out a way to tighten (the law) up."
Ruling on the day the law took effect, U.S. District Judge Sarah Evans Barker concluded it was vague, too broad and potentially applicable against "unquestionably lawful, nonobscene, nonpornographic materials being sold to adults."
"A romance novel sold at a drugstore, a magazine offering sex advice in a grocery store checkout line, an R-rated DVD sold by a video rental shop, a collection of old Playboy magazines sold by a widow at a garage sale ... would appear to necessitate registration under the statute," Barker wrote.
The author of the legislation, Rep. Terry Goodin, D-Crothersville, said he might take it back to lawmakers at the 2009 session for revision.
"I've got pencil in hand," Goodin said. "I'm ready to go. I'm not going to let this sleeping dog lie."
Tuesday, July 01, 2008
Ind. Courts - More on: "United States Senate Confirms William T. Lawrence as District Judge"
The United States District Court for the Southern District of Indiana is pleased to announce that on Tuesday, July 1, 2008, the Hon. William T. Lawrence took the oath to become a United States District Judge. Chief Judge David F. Hamilton administered the oath at noon in Judge Lawrence’s courtroom in the Birch Bayh Federal Building and United States Courthouse in Indianapolis. Judge Lawrence’s wife and a number of court staff attended the swearing in, which took place one day after President Bush signed Judge Lawrence’s commission.
Ind. Decisions - Yet more on: "Booksellers incensed over sexual content law"
Today federal Judge Sarah Evans Barker, in a 31-page opinion, ruled:
For the reasons detailed in this entry, Plaintiffs’ facial challenge to HEA 1042 is well-founded. We hold that HEA 1042 unduly burdens First Amendment rights, and is unconstitutionally vague and overbroad. Therefore, Plaintiffs’ Motion for Summary Judgment is GRANTED. IT IS SO ORDERED.So, another 2008 law found unconstitutional.
Here is today's opinion in Big Hat Books v. Prosecutors: Adams, et al. Here are some quotes from Judge Barker's opinion:
In this litigation, brought against the prosecutors of each of Indiana’s ninety-two counties, Plaintiffs challenge the constitutionality of I[HEA 1042], which is to go into effect on July 1, 2008, requiring that persons who intend to offer for sale or sell sexually explicit materials must register with Indiana’s secretary of state, pay a fee, and provide a statement detailing the types of materials intended to be offered for sale. Plaintiffs assert that the statute is not narrowly tailored to meet a compelling government interest, that it unlawfully imposes a content-based fee or tax on First Amendment rights, and that it is fatally overbroad and vague. Defendants dispute Plaintiffs’ contentions regarding the constitutionality of HEA 1042, asserting that the statute is a constitutional, reasonable regulation of speech, and is not unconstitutionally vague or overbroad. * * *
Defendants assert that Plaintiffs have not properly brought (and lack standing to bring) a facial challenge to the statute, in accordance with United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”); Washington State Grange v. Washington State Republican Party, 128 S.Ct. 1184, 1190-91 (2008). * * *
Accordingly, we hold that Plaintiffs have standing to facially challenge HEA 1042 in its entirety.
Plaintiffs challenge the constitutionality of HEA 1042 first on the grounds that it is a content-based regulation of protected expression that fails to meet the requisite standard of strict scrutiny. Defendants assert that an intermediate level of judicial scrutiny is proper here, given the “zoning-like” aims of the statute. * * *
It is clear to us that HEA 1042 is precisely the sort of content-based restriction necessitating examination through the lens of strict scrutiny. As Plaintiffs note, courts have consistently found statutes regulating sexually explicit speech to be content-based restrictions. * * * Defendants’ argument that the statute is akin to a zoning ordinance, and therefore subject to an intermediate degree of scrutiny, is unsupported both factually and by controlling precedent. * * *
Our next inquiry, then, becomes whether the statute is narrowly tailored to serve a compelling governmental interest. * * *
The new law, by explicitly encompassing sales of materials to adults, does not embody the narrow tailoring the Constitution requires when First Amendment activity is so burdened. * * *
Plaintiffs also challenge the statute on the grounds that it operates as an unconstitutional fee or tax on the exercise of constitutional rights. * * *
Defendants assert that the $250.00 fee for registration under HEA 1042, though admittedly higher than any other fee charged for registration of various sorts with the Indiana secretary of state, is justified as a means of covering the costs of the statute’s implementation. * * *
Defendants have provided not a shred of evidence suggesting that the $250.00 fee is proportional to the amount of work required by the secretary of state’s office resulting from a filing, and we cannot fathom how “notification of local officials” could justify such a fee. * * *
Plaintiffs also challenge the statute as an unconstitutional permit requirement for the exercise of protected speech, relying upon the Supreme Court’s pronouncement in Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 166 (2002), that “[e]ven if the issuance of permits . . . is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in [protected] speech constitutes a dramatic departure from our national heritage and constitutional tradition.” * * *
We therefore conclude that the statute fails constitutional scrutiny on this basis as well. * * *
A statute is unconstitutionally vague if it “fails to define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and it fails to establish standards to permit enforcement in a nonarbitrary, nondiscriminatory manner.” * * *
Plaintiffs assert that several key terms in the statute are inherently vague or defined in a way that fails to provide fair notice, and will thus cause a chilling effect on otherwise lawful conduct. Among these are the requirement that registrants “provide a statement detailing” the types of sexually explicit materials intended to be offered for sale. HEA No. 1042 (to be codified at IC § 23-1-55-2). Plaintiffs object that the statute provides no explanation or instructions regarding the level of detail required in such a statement, or whether (and how often) it needs to be updated when a vendor’s inventory changes.
Defendants admit that the statute suffers from “poor drafting,” but assert that it is not unconstitutionally vague. * * *
There can be no doubt that compliance with such a vague mandate will be unduly burdensome, will have a chilling effect on expression, and will fail to provide ordinary people with a reasonable degree of notice as to the law’s requirements; the Constitution demands no less. * * *
We agree with Plaintiffs that a fair reading of the statute leaves entirely unclear the matter of to whom it applies. Defendants’ argument – that the statute requires only one registration per business per location – is not set out as such in the language of the statute. Inadequate notice of these requirements, the violation of which gives rise to possible criminal sanctions, renders the law unconstitutionally vague. In addition, the likelihood of confusion and the resultant self-censorship on the part of merchants is very high, creating a chilling effect on otherwise free speech. * * *
Plaintiffs’ final argument is that HEA 1042 is substantially overbroad because it burdens a vast amount of expression protected by the First Amendment in an attempt to meet its regulatory aim. * * *
Clearly, a vast array of merchants and materials is implicated by the reach of this statute as written. A romance novel sold at a drugstore, a magazine offering sex advice in a grocery store checkout line, an R-rated DVD sold by a video rental shop, a collection of old Playboy magazines sold by a widow at a garage sale – all incidents of unquestionably lawful, nonobscene, nonpornographic materials being sold to adults – would appear to necessitate registration under the statute. Such a broad reach is, without question, constitutionally disproportionate to the stated aim of the statute to provide a community “heads-up” upon the opening of “adult bookstore-type businesses.”
Conclusion. For the reasons detailed in this entry, Plaintiffs’ facial challenge to HEA 1042 is well-founded. We hold that HEA 1042 unduly burdens First Amendment rights, and is unconstitutionally vague and overbroad.
Ind. Decisions - 7th Circuit decides one Indiana case today
In U.S. v. Antone C. Harris (SD Ind., Judge Barker), a 17-page opinion, Judge Williams writes:
Harris argues that the district court should not have reconsidered whether the affidavit contained false statements under the law of the case doctrine. Because the law of the case doctrine does not compel a district court to ignore evidence presented at a hearing that clarifies a prior misunderstanding, we find no error in the district court’s decision to reconsider one of its findings. We also find no error in the district court’s decision not to compel the government to disclose the identity of the confidential informant in this case, as the district court was entitled to credit the testimony of Detective Forrest that the confidential informant existed, and Harris has made no showing that such disclosure was essential to his defense. Therefore, we affirm the decision of the district court.
Ind. Decisions - Supreme Court issues one today
In Anthony A. Hopkins v. State of Indiana, a 4-page, 5-0 opinion, Chief Justice Shepard writes:
Almost a decade ago, appellant Anthony Hopkins stood trial by jury, and the jury found him guilty of two counts of attempted murder and other offenses. Before proceeding with an habitual offender allegation, he and his lawyer announced they wished to waive jury and acknowledge the habitual. He has now claimed that this was an unknowing and unintelligent “guilty plea.” The post-conviction court denied relief, and we affirm. * * *
The burden of one whose petition for post-conviction relief has been denied is a substantial one. This Court will affirm the denial unless “the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion.” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002). Hopkins has not overcome this burden. The post-conviction court’s determination that what occurred was a stipulation rather than a plea should stand.
Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
Debra Byrum v. Bookout Properties, Inc. (NFP) - "Debra Byrum appeals the trial court’s order denying her request for unpaid commissions earned before Bookout Properties terminated her employment. Specifically, Byrum maintains that the trial court erred as a matter of law by concluding that her written commission schedule did not satisfy the “signed and written” requirement of the Statute of Frauds, specifically, Indiana Code § 32-21-1-10. Concluding that her written commission schedule satisfies Indiana Code § 32-21-1-10, we reverse and remand."
NFP criminal opinions today (2):
Environment - More on: Rhode Island's Massive Lead Paint Tort Case
Overturned! That is the word this afternoon.
Susan A. Baird of the Providence Business News reports in a long story that begins:
PROVIDENCE – In a unanimous ruling this morning, the R.I. Supreme Court rejected the landmark decision against former lead-pigment makers, holding that public-nuisance law had been misapplied. “This Court is bound by the law and can provide justice only to the extent that the law allows,” the justices wrote.Here is the 83-page opinion in Rhode Id. v. Lead Industries. See also the "summary" of the opinion on this RI Judiciary page.
In February 2006, a R.I. Superior Court jury found that lead paint that had accumulated on Rhode Island homes and public buildings in the decades before such pigments were banned constituted a public nuisance, and that Millennium Holdings LLC, NL Industries Inc. (formerly National Lead Co.) and The Sherwin-Williams Co. “were liable for causing or substantially contributing” to that nuisance and should be held responsible for the cost of abating the risk. A fourth defendant, Atlantic Richfield Co. (ARCO) was cleared of liability.
Here is the AP coverage.
For background, start with this ILB entry from May 26, 2008.
See also the Providence Journal's breaking news blog.
Ind. Law - Hoosiers may apply for gun permits online
That from this story this morning by Anne Gregory of the Fort Wayne Journal Gazette. Some quotes:
Residents of Wells and Miami counties are the first people in Indiana who may apply for a firearm permit online.Here is the online application. Here is a State Police FAQ on Firearms, including information on the lifetime handgun license.
This is a test of a Web-based computer application system anticipated to be available for statewide use by early 2009, according to Tuesday’s announcement from the Indiana State Police.
The state police, the Indiana Sheriff’s Association and the Indiana Association of Chiefs of Police approved developing the electronic application process. * * *
The new program began Tuesday.
Here’s how it works:
• After completing the online form the applicant receives a control number, printed from their computer.
• The applicant presents this number and identification to their local police chief or the county sheriff, as determined by the applicant’s legal address.
• By state law all handgun permits are ultimately approved or denied, for legal cause, by the superintendent of the Indiana State Police.
NOTE: See this update from July 2.
Ind. Courts - Three justices and at least one appellate judge up for retention this year
In 2006 one Supreme Court justice, Frank Sullivan Jr., and five Court of Appeals judges, James S. Kirsch, Terry A. Crone, Ezra H. Friedlander, Edward W. Najam Jr., and Patricia A. Riley, were up for retention for new 10-year terms. The ILB constructed this website, Resources for the 2006 Indiana Appellate Judicial Retention Election, to aid voters in finding out information about the jurists whose names would be on the ballot, via the question "Shall ___ be retained in office?”
Under IC 33-25-2-2, relating to appeals court judges:
A judge who wishes to be retained in office shall file a statement with the secretary of state, not later than noon July 15 of the year in which the question of retention of the judge is to be placed on the general election ballot, indicating that the judge wishes to have the question of the judge's retention placed on the ballot.Presumably most have filed already, as in 2006 incumbents filed to seek retention as early as Feb. 1, 2006.
Who must stand for retention in 2008, if they wish to remain in office? Three of the five members of the Supreme Court: Chief Justice Randall T. Shepard, Justice Brent E. Dickson, and Justice Theodore R. Boehm. At least one member of the Court of Appeals, Judge Carr L. Darden.
The ILB intends to expand its coverage for 2008. Let me know if you have suggestions.
[More] The law creating the Indiana Tax Court provides at IC 33-26-2-3:
(a) The initial term of office of a person appointed to serve as the judge of the tax court begins on the effective date of that appointment and ends on the date of the next general election that follows the expiration of two (2) years from the effective date of that appointment.Judge Thomas G. Fisher is up for retention this year.
(b) The tax court judge may be approved or rejected for an additional term or terms in the same manner as are the justices of the supreme court under IC 33-24-2.
Ind. Gov't. - "Like Kelvin Sampson before him, Rick Greenspan agreed not to sue Indiana University in announcing his resignation"
Mike Alesia, who has had a number of good stories covering the legal woes of Indiana University sports (see ILB list here), reports today on "IU's lame-duck athletic director" Rick Greenspan and his separation agreement. Some quotes:
Like Kelvin Sampson before him, Rick Greenspan agreed not to sue Indiana University in announcing his resignation.The Star has posted a copy of Greenspan's 5-page resignation agreement. This joins Coach Sampson's 11-page separation agreement, posted Feb. 25th.
Yet it's another clause in Greenspan's agreement, released Monday, that stood out as unique from previous athletic department resignations. The IU athletic director "retains rights to any book he may wish to write and publish."
Greenspan's resignation, effective at the end of the calendar year, was announced Thursday. At the time, IU also disclosed his $441,000 in severance payments.
The resignation announcement came almost immediately after IU released news of the NCAA infractions committee adding a "failure to monitor" charge to allegations of misconduct in the men's basketball program. * * *
In Greenspan's employment contract, there is a paragraph about not disclosing confidential information "during or following employment by the university." It's unclear if that has any relation to the clause about Greenspan's "rights to any book he may wish to write."
Greenspan's employment contract listed several responsibilities, among them "assuring compliance by the Department's coaches, staff and student athletes with NCAA . . . rules, regulations and bylaws."
The contract said he could have been fired "for cause" for not performing his responsibilities. In a "for cause" firing, the university would have owed him nothing.
But specific examples of grounds for a "for cause" firing said only that Greenspan had to use his "best efforts to maintain an environment" in which coaches and employees comply with NCAA rules.
If Greenspan had been fired "without cause," IU would have owed him two years' salary, or $600,000. * * *
The $441,000 IU agreed to pay Greenspan comes on top of the $750,000 buyout for Sampson and the $66,000 buyout for Senderoff. That kind of spending has drawn the ire of many IU fans.
Ind. Courts - More on "Accused officers' drugs cases at risk"
This story, first posted by the Indianapolis Star online yesterday morning (see ILB entry here), is now in an expanded version the main front-page story in today's paper. Reported by Vic Ryckaert and Jon Murray, the story begins:
The arrests of four Indianapolis police officers are forcing the dismissals of more than two dozen pending cases and could cause drug-crime convictions in other cases to be overturned on appeal, prosecutors said Monday.
As of today, the Marion County prosecutor's office expects to have dismissed 20 cases investigated by former narcotics officers Robert Long and Jason Edwards, officials said.
"These officers were in this court several weeks ago testifying against defendants," Prosecutor Carl Brizzi said Monday. "Now they are defendants."
Deputy Prosecutor Lawrence Brodeur, the chief of narcotics and gun cases, said he was evaluating 12 other cases and would consider the effect on even more in coming days.
Ind. Decisions - "Ex-trustee absolved in Steuben sex assault"
The Supreme Court's opinion in Debra A. Barnett v. Camille Clark, Trustee of Pleasant Township, decided last Friday (see ILB entry here), is the subject today of a story by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:
Former Pleasant Township Trustee Camelia Clark cannot be held legally responsible for the sexual battery committed by one of her employees – and husband – the Indiana Supreme Court ruled.
The justices issued a decision late Friday, about a month after hearing arguments that upheld the original finding of the trial court, which dismissed the case in favor of the trustee.
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. At the time, he was the deputy trustee and his wife, Camelia Clark, was trustee.
The former chairman of the Republican Party in Steuben County and the 4th District received a two-year prison sentence and has since been released. * * *
At his sentencing, police testified they had investigated seven cases involving Donald Clark and female township residents going back to 1979.
But the trial court granted summary judgment in favor of his wife.
The Indiana Court of Appeals overturned the ruling in December 2007, finding that an employer can be liable for the criminal acts of an employee if the employee’s actions were at least for a time authorized.
The Supreme Court, though, ruled unanimously that the actions of the deputy trustee were not sufficiently associated with his employment duties to fall within the scope of employment.
Attorneys for Barnett argued the case fell within a narrow exception, but the justices disagreed.
“His alleged acts of confining, sexually touching, and raping the plaintiff were not an extension of authorized physical contact. Such acts were not incidental to nor sufficiently associated with the deputy trustee’s authorized duties,” the decision said. “They did not further his employer’s business. And they were not motivated to any extent by his employer’s interests.”
Ind. Gov't. - More on: Indianapolis Public Schools asks court to rule on vote
Updating this ILB entry from June 13th, Andy Gammill of the Indianapolis Star reports today: "2 get OK to take seats on IPS board: Judge says voters' will should stand; big vote on construction expected today."
A Marion County judge cleared the way Monday for two candidates to take seats on the Indianapolis Public School Board, resolving a legal dilemma just hours before a vote on $278 million in building projects.With many thanks to a reader, here is Marion Superior Court Judge John Hanley's 15-page, June 30, 2008 opinion in the case of Board of School Comm. v. Ind. State Bd. of Education, et al.
Michael R. Cohen and Elizabeth M. Gore are scheduled to be sworn in as the board's new at-large members tonight after Judge John Hanley ruled they could take their seats today despite a state law that appeared to disqualify at least one.
State law says the board's two at-large members cannot live in the same part of the district, as Cohen and Gore do. * * *
Incumbents Clarke C. Campbell and Leroy Robinson had argued that they should remain in their seats until properly qualified candidates were selected -- in several years.
Hanley ruled that the state law limiting the number of board members from a district is discretionary rather than mandatory and that conflicts over elections should err in favor of the "choice of the people."
Campbell, who pushed the case, could not be reached for comment Monday. Robinson, who lost to Cohen, said he wishes the retired education professor the best of luck and will not file an appeal.
"That's probably the decision I would have made, too: Let the will of the voters override the state law," Robinson said. "In the court of public opinion, he made the right decision." * * *
Typically, the district screens out candidates who would violate the law because the two seats are up for election in different years. This year was unusual because one of the seats was up in a special election to replace Olgen Williams, who resigned late last year to become deputy mayor.
Hanley's ruling focused on two key legal points:
The wording of the law -- "not more than two of the members who serve on the board may reside in the same board district" -- is more of a recommendation. He ruled that the word "may" suggests "a permissive condition and a grant of discretion" unlike the word "must."
Courts have long ruled in Indiana that election outcomes should not disregard voters, and that courts should err on the side of "promoting the choice of the people."