« July 2008 | Main | September 2008 »

Sunday, August 31, 2008

Courts - Still more on: DOJ moves to improve immigration judges, after months of criticism

This Aug. 10, 2006 ILB entry began: "Some readers may recall this Dec. 26, 2005 ILB entry, quoting from several stories critical of U.S. immigration judges. The 7th Circuit has not been reticent in criticizing the rulings of immigration judges ..." On April 21 of this year, Judge Richard A. Posner, U.S. Court of Appeals, Seventh Circuit, gave a speech before the Chicago Bar Association, Administrative Law Judges Committee, titled "Judicial Review of Immigration Judges."

On July 28th the US Dept. of Justice issued a 146-page report: "An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General."

Charlie Savage, now of the NY Times, recently published an analysis of Justice Dept. data. His report begins:

WASHINGTON — Immigrants seeking asylum in the United States have been disproportionately rejected by judges whom the Bush administration chose using a conservative political litmus test, according to an analysis of Justice Department data.

The analysis suggests that the effects of a patronage-style selection process for immigration judges — used for three years before it was abandoned as illegal — are still being felt by scores of immigrants whose fates are determined by the judges installed in that period.

The data focuses on 16 judges who were vetted for political affiliation before being hired and have since ruled on at least 100 cases each.

Comparison of their records to others in the same cities shows that as a group they ruled against asylum-seekers significantly more often than colleagues who were appointed, as the law requires, under politically neutral rules.

Critics of the politicization of the immigration bench say it is not enough that in 2007 the department stopped using illegal hiring procedures. The fact that many of the politically selected judges remain in power, they say, continues to undermine the perceived fairness of hearings for immigrants fighting deportation.

The immigration court “is now the seat of individuals who were appointed illegally, and that means that in the minds of many people the court symbolizes illegality,” said Bruce Einhorn, a Pepperdine University law professor who was an immigration judge from 1990 until he retired last year.

Peter A. Carr, a Justice Department spokesman, wrote in an e-mailed response to questions, “The fact that the process was flawed does not mean that the immigration judges selected through that process are unfit to serve.” * * *

The Justice Department employs more than 200 immigration judges in more than 50 courts around the country. They conduct hearings for noncitizens asking not to be deported, including asylum-seekers who say they fear religious or political persecution.

Although called “judges,” the hearing examiners are not confirmed by the Senate for life; they are covered by federal civil-service laws, which stipulate that they must be hired on the basis of merit under politically neutral criteria. But in early 2004, political appointees took control of hiring the judges away from career professionals and essentially began treating the positions — which carry salaries of $104,300 to $158,500 — as patronage jobs. They screened out liberals and Democrats, while steering openings to White House-vetted “Bush loyalists” and other job-seekers vouched for by Republican political appointees.

According to the story the administration changed back "to a nonpolitical selection method handled by career professionals" in 2007 "after the Civil Division questions the legality of the process. ... But in the interim 31 immigration judges had been appointed by the flawed process." Who are these judges? See this NYT graphic

Posted by Marcia Oddi on Sunday, August 31, 2008
Posted to Courts in general

Ind. Courts - "Lake County judges shy away from exclusive contracts in wake of corruption scandals"

Joe Carlson and Marisa Kwiatkowski of the NWI Times have an enterprising report today looking at current counseling services contracts. The long story begins:

Judges in Lake County have shied away from exclusive contracts with counseling providers, a Times review of city, town and county courts' records shows.

For years, corruption in court-ordered counseling services rattled Lake County's justice system.

The issue has dragged through the federal courts, as prosecutors investigated the dealings of former Schererville Town Judge Deborah Riga, counseling provider Nancy Fromm and former power broker Robert Cantrell.

The Times canvassed city, town and Lake County courts to review their policies for ordering defendants to undergo counseling.

Only Gary, Hammond, East Chicago and Whiting city courts have exclusive contracts -- with driving schools to which they steer their traffic defendants. None of the county courts cited exclusive contracts with counseling providers.

Lake County Superior Court Judge Nicholas Schiralli, Lake County Juvenile Court Judge Mary Beth Bonaventura and Lake County Superior Court Judge Gerald Svetanoff did not respond to repeated requests for public information.

Most judges direct defendants to agencies based on location and what the defendant can afford without contracts, The Times found.

Lowell Town Judge Tom Vanes said he tired of watching counseling programs become "cash crops for political insiders." He now uses Alcoholics Anonymous, which is free.

Posted by Marcia Oddi on Sunday, August 31, 2008
Posted to Indiana Courts

Law - "Police Using G.P.S. Units as Evidence in Crimes"

That is the headline to this AP article published today in the NY Times. Some quotes:

Like millions of motorists, Eric Hanson used a Global Positioning System device in his Chevrolet TrailBlazer to find his way around. He probably did not expect that prosecutors would use it, too — to help convict him of killing four family members.

Prosecutors in suburban Chicago analyzed data from the Garmin G.P.S. device to pinpoint where Mr. Hanson had been on the morning after his parents were fatally shot and his sister and brother-in-law bludgeoned to death in 2005. He was convicted of the killings this year and sentenced to death.

Mr. Hanson’s trial was among recent criminal cases in which the authorities used such navigation devices to help establish a defendant’s whereabouts. Experts say such evidence will almost certainly become more common in court as the systems become more affordable and show up in more vehicles. * * *

Critics, however, say the police should be allowed to acquire global positioning data only by getting a warrant. Renée Hutchins, a University of Maryland law professor, wrote an article recently suggesting Global Positioning System data was protected under the Fourth Amendment.

“I think that in the last couple of years,” Ms. Hutchins said, “people are starting to be aware that if they have these units in their car, people can keep track of you. I think it’s a growing public awareness. The problem is that most people feel like, ‘I’m not doing anything wrong, so who cares?’ But I think that’s the wrong way of looking at it.”

Here is a longer version of the story, by Mitch Stacy of the AP, as published in USAToday.

And the ILB was able to locate the law journal article referenced. Written by Renée Hutchins of the U. of Md. School of Law, here is the 58-page article, "Tied Up in Knotts?" GPS and the Fourth Amendment" 55 UCLA Law Review 1 (2007).

Posted by Marcia Oddi on Sunday, August 31, 2008
Posted to General Law Related

Saturday, August 30, 2008

Ind. Courts - More on Rockies Express Pipeline suing Indiana counties [Updated]

On Thurs., Aug. 28th the ILB had an entry quoting a story about Rockies Express Pipeline suing Decatur County in federal court.

Yesterday, Rockies Express filed suit in federal court against Franklin County. Here is a copy of the 9-page complaint, plus a copy of the 25-page memorandum in support of motion for TRO, preliminary injunction, and permanent injunction.

[Updated 8/31/08] Rockies Express has filed four condemnation actions in the SD Ind. in 2008: Franklin County, Aug. 29; Decatur County, Aug. 26; 123.62 Acres, June 6; McCarroll, et al, March 14th.

Posted by Marcia Oddi on Saturday, August 30, 2008
Posted to Indiana Courts

Ind. Courts - Two stories today on impact of latest report of weighted caseload measures

Matt Thacker of the Jeffersonville/New Albany News & Tribune reports today:

"Clark County has busiest judicial officers in state," a story that begins:

Clark County has the most over-burdened judicial officers in the state, according to a report published this year.

In 1993, the Judicial Administration Committee of the Indiana Judicial Conference began comparing trial court caseloads by weighing the amount of time on average it takes for particular types of case and how many of those cases each court has. They only take into account new case filings.

The utilization number in Clark County is 1.82, meaning the caseload is 82 percent higher than recommended.

Clark County Superior Court No. 2 Judge Cecile Blau said a new magistrate this year has helped tremendously, but she said it is only a “Band-Aid.”

She believes the judicial system has not kept up with the growth in the county.

“Ever since I’ve been on the bench, I’ve seen an increase in cases,” she said.

Blau said all of the judges are doing more to overcome the high caseload.

"Floyd courts second busiest in state," a story that begins:
Floyd County’s courts are the second-busiest in the state, according to a report published this year, but the judges are confident a new court eventually will help ease their burden.

Circuit Court Judge Terrence Cody said he expects to see the change within six months to a year of when the court is added. * * *

Floyd County’s caseloads are 66 percent higher than recommended, the report states. Because criminal cases legally must take precedent, other cases are sometimes delayed longer than some people want.

“It’s to the detriment of civil cases and domestic cases,” Cody said.

Cody believes some of the burden will be lifted after Jan. 1, when a new Superior Court is added. Some ongoing cases may be transferred to the new court, but it will still take time for the new court to get up and running.

Last year, Floyd County had a utilization of 1.59, of 59 percent higher than recommended. It increased by 0.07 this year.

Floyd County Superior Court Judge Susan Orth said that each Wednesday and Thursday, she and Judge Cody hear criminal cases from 8:30 a.m. until 6:30 p.m. She believes part of the heavy docket may be attributed to more people going to trial who would otherwise be receiving other types of care.

“We have gradually more and more mental health facilities closing,” Orth said.

Another factor for the slight increase may be that Children In Need of Services cases in Floyd County already have surpassed last year’s total, Cody said.

While the new court and new judge will help, Floyd County still will need 11⁄2 more judicial positions to be at the recommended number.

Cody said it would be “ideal” to have an additional magistrate, but is grateful for the new court.

Clark County has the most over-burdened judicial officers in the state, according to the report. The caseload in Clark County is 82 percent higher than recommended.

The Division of State Court Administration's Court Management & Statistics webpage is available here and includes a link to the new 2007 Weighted Caseload Measures report.

Posted by Marcia Oddi on Saturday, August 30, 2008
Posted to Indiana Courts

Courts - More on: U.S. seeks clarity on muddy Rapanos ruling

Updating this ILB entry from Aug. 26th, Lyle Denniston of SCOTUSBlog writes Aug. 29th in an entry that begins:

The Justice Department on Friday urged the Supreme Court to leave intact a federal appeals court ruling on the scope of the government’s authority to protect wetlands from pollution — in this case, discharges from home septic tanks. Although the Fifth Circuit Court ruling being challenged in the case, Lucas v. U.S. (07-1512), is one of a series of rulngs contributing to confusion over the meaning of the Clean Water Act, the Justice Department prefers to have that issue decided by the Justices in a newly filed government appeal — U.S. v. McWane, Inc.

Posted by Marcia Oddi on Saturday, August 30, 2008
Posted to Courts in general

Ind. Courts - "Shelby County court records available via online firm"

From a long report by Bettina Puckett, staff writer for the Shelbyville News:

The computer age has roared into Shelby County in the form of more than 136,000 Shelby County court records that now can be easily accessed and viewed on the Internet via a company called Doxpop.

The recent addition of Shelby County increases the coverage of the Doxpop Court Record Database to half of Indiana's 92 counties, said Raymond Ontko, president of the Richmond-based public records access company.

Shelby County Clerk Carol Stohry worked in cooperation with Doxpop to make the records of the county's three courts - Circuit, Superior I and Superior II - available online 24 hours a day. Shelby County court records on the Doxpop system date back to July 1995.

The Doxpop network provides online access to judicial case-tracking information without visiting or placing a call to the courthouse, Ontko said. Out-of-town attorneys are a good example of people who normally would make a lot of calls to the clerk's office or ask that office to do a lot of faxing, he said. * * *

When Stohry pitched the Doxpop idea to the Shelby County Board of Commissioners back in February, she emphasized that it would not cost the county's taxpayers a dime. Doxpop makes its money by charging customers subscription fees for the online service.

"Development and installation of the Doxpop interface to Shelby County court records have cost Shelby County nothing, and all related expenses have been assumed by Doxpop," Ontko said. In addition, the ongoing operation of the system is supported entirely by voluntary subscription users of the Doxpop system, so taxpayer money is never required for its operation, he said. * * *

Monthly fees range from $25 for individuals tracking a single case or looking for a small number of documents to $450 for organizations having 20 or more users. The company gives complimentary subscriptions to some county offices, including sheriff's departments.

All data transmitted to Doxpop is held in a secure database, completely isolated from the courts' and recorders' own systems. * * *

Doxpop permits subscription users to see the full case details of open/pending and closed/disposed cases dating back to 1995. The chronological case summary, or docket sheet, is the heart of this information. Users may also see the schedule of upcoming hearings in a case, and any attorney can view a personal court calendar showing events in all Doxpop courts.

The Doxpop system enables searching by name, by case number and by any combination of known bits of data about a case party. Advanced features include automatic e-mail notification of any changes on cases of interest. E-mail notice of calendar changes is also easy to set up on the Doxpop system, the company's press release said.

"Doxpop is rapidly becoming a de facto state-wide system for public and professional access to important public information," Ontko said. "We continue to work with all case management system providers to produce a truly statewide system."

Shelby County is the 46th Indiana county to become a part of the Doxpop network. An additional five Indiana county court systems are expected to join the network by the end of 2008.

And, as you can see via the right-hand column of the ILB, Doxpop has been an ILB supporter since April of this year .

Posted by Marcia Oddi on Saturday, August 30, 2008
Posted to Indiana Courts

Ind. Courts - Issue of trying youth in juvenile court or as an adult

Jon Murray of the Indianapolis Star takes a long look today at the issue of trying youth in juvenile court or as an adult. He looks at four decisions made by Marion County juvenile court Judge Marilyn Moores, who has "granted one request to waive a murder defendant to adult court and denied three." Details of each case are provided in a side-bar. The main story itself begins:

An 85-year-old woman beaten savagely inside her home. A man and his 18-year-old son shot to death during a robbery. An auto mechanic fatally shot after an argument over repairs.

In each case, a Marion County boy no older than 15 was accused in the crime.
Advertisement

And in each case, a Marion County judge decided to try the youth in juvenile court rather than the adult system, where penalties are harsher.

The decisions frustrate victims' family members and highlight an issue being debated in juvenile courtrooms here and across the nation: Should young, violent offenders be punished to the greatest extent of the law and locked up in adult prisons -- or should they have the best opportunity for rehabilitation, which means keeping them in the juvenile system and releasing them before they turn 22?

From later in the lengthy story:
The Marion County prosecutor's juvenile division is adjusting to Moores' approach, but officials don't plan to curtail requests to transfer murder cases to the adult system.

Larry Landis, executive director of the Indiana Public Defender Council, said Moores' stance is progressive, in line with that of many juvenile judges who have digested research on young offenders' brain development.

"Adolescent brains look so much different than adult brains," said Bill Glick, executive director of the Indiana Juvenile Justice Task Force. "One of the questions we have is what purpose is served by a person that age spending so much time in the adult system.

"What are we going to get in the end?"

But some argue the answer is simple: justice and deterrence.

In the 1980s and '90s, state lawmakers nationwide eased the way for juveniles who commit violent crimes to be tried as adults.

In Indiana, juvenile judges make the call in a murder case only when the defendant is younger than 16. Older than that, and state law gives prosecutors the authority to file murder charges directly in adult court.

State law also allows the automatic filing of adult charges at age 16 for several violent offenses. But the decision falls to juvenile courts when youths as young as 14 are accused of acts deemed "heinous or aggravated."

Defendants convicted of murder in adult court face a sentencing range of 45 to 65 years. Those handled in the juvenile system must be released from detention facilities by their 22nd birthdays, but many are freed sooner.

"A lot of young killers are more mature than kids 20 years ago," said Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council. "There are other issues that are in the best interest of society. If you commit a crime as a juvenile, there will be consequences."

Posted by Marcia Oddi on Saturday, August 30, 2008
Posted to Indiana Courts

Friday, August 29, 2008

Ind. Decisions - Transfer list for week ending August 29, 2008 [Updated]

Here is the Indiana Supreme Court's transfer list for the week ending Aug. 29, 2008.

The list contains two items, dated Aug. 22 and Aug. 27.

Over 4.5 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.
_____________

[Updated immediately] Okay, I was about to push the button to post the above when I received a message from Supreme Court Administration, with a list of transfers granted yesterday, Aug. 28. None of these, of course, is on the Aug. 29 list just put out by the Clerk's Office. Evidently there is no coordination between the two offices. These transfers granted yesterday (along with the transfers denied, which there appears no way of knowing) will not appear on the Clerk's list until next Friday, Sept. 5th. Here is what I have from Supreme Court Administration, I'll fill in details later:

The following cases have been granted transfer:

Brenda Wagner v. Bobbi Yates
22A01-0710-CV-474 - 8/28/08

Kitchin Hospitality v. Indiana Dep't of Revenue
49T10-0604-TA-35 - 8/28/08

Keith Myers v. Leedy Wesley 85A02-0711-CV-999 - 8/28/08

Tony Gray v. State 10A01-0708-CR-356 - 8/28/08

State v. Shannon Hollars
12A02-0711-CR-979 - 8/28/08

Posted by Marcia Oddi on Friday, August 29, 2008
Posted to Indiana Transfer Lists

Ind. Courts - Report on Thursday's meeting of the Commision on Courts

Last Friday, Aug. 22nd, I attended the meeting of the Commission on Courts to testify about the Indiana Code. The agenda for the next meeting, which took place yesterday, Aug. 28th, looked so interesting that I attended again, this time as a reporter for the ILB.

And a wise decision it was. I came back with pages of notes. Over the upcoming weekend I will reporting to you on:

(1) The judiciary's effort to address the complaints of lack of information for Indiana voters who are asked to decide whether to vote "yes" or "no" on the retention of appellate judges. As you will recall, the ILB attempted to address that issue in 2006 with the creation of a special website, Resources for the 2006 Indiana Appellate Judicial Retention Election. This election cycle, the Court has created its own website.

(2) Judicial mandates. There was a long and lively discussion of judicial mandates yesterday, from the point of view of both the judges and the local officials who have budget-making authority. I, for one, learned some things. In my notes I see I jotted down: "More nuanced than I had realized." Watch for it.

(3) Representative Ralph M. Foley's 2006 effort, HB 1419, to change the Judicial Nominating Commission and the way appellate judges are retained. Rep. Foley is urging the consideration of the proposal again in the 2009 session. Looking back to 2006, I see I wrote quite a bit about the proposal at the time and will bring you up to date.

Posted by Marcia Oddi on Friday, August 29, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 today (and 21 NFP)

For publication opinions today (4):

In Countrymark Copperative, Inc.; et al. v. Joseph Hammes, Trustee of Stephen Turner , a 19-page opinion, Judge Brown writes:

Countrymark Cooperative, Inc., (“Countrymark, Inc.”) and Countrymark Cooperative, LLP, (“Countrymark, LLP”) (collectively, “Countrymark”) appeal a judgment in favor of Joseph Hammes, Trustee of Stephen Turner, (“Turner”). Countrymark raises three issues, which we revise and restate as: I. Whether the trial court erred by denying Countrymark’s motion for summary judgment; II. Whether the trial court erred by granting Turner’s motion to amend his complaint to conform to the evidence; and III. Whether the trial court erred by denying Countrymark’s motion for judgment on the evidence pursuant to Ind. Trial Rule 50. We affirm. * * *

I II. The next issue is whether the trial court erred by denying Countrymark’s motion for judgment on the evidence pursuant to Ind. Trial Rule 50. * * *

Turner argues that Countrymark invited any error, and we agree. A party may not take advantage of an error that he commits, invites, or which is the natural consequence of his own neglect or misconduct. Smith v. McLeod Distributing, Inc., 744 N.E.2d 459, 466 (Ind. Ct. App. 2000). Invited error is not subject to review by this court. Id. Countrymark, Inc., did not file an answer to Turner’s complaint, did not assert an affirmative defense that it was not the real party in interest, and did not file a motion to dismiss under Ind. Trial Rule 12(B)(6). In the remainder of the pleadings, Countrymark variously described itself as both Countrymark, Inc., and Countrymark, LLP. Additionally, although evidence was presented at the trial that Countrymark, LLP, owned the property in question, the insurance policy provided in discovery identified Countrymark, Inc., as the policyholder. Under these circumstances, we conclude that Countrymark invited any error, and we decline to find that the trial court erred by denying Countrymark, Inc.’s motion for judgment on the evidence. See, e.g., Smith, 744 N.E.2d at 465 (holding that equity required that Colonial Mat be held liable for the debt at issue in order to protect an innocent third party from unfairness because Colonial Mat and Colonial Industrial d/b/a Colonial Carpets were treated as if they were adjunct corporations, or mere alter egos or instrumentalities of each other that shared a common identity). For the foregoing reasons, we affirm the judgments against Countrymark, LLP, and Countrymark, Inc.

In Ace Bail Bonds, American Bail Bond Co., Bertholet Bail Bond, and Express Bail Bond v. Government Payment Service, Inc., an 8-page opinion, Judge Kirsch writes:
Ace Bail Bonds, American Bail Bond Company, Bertholet Bail Bond, and Express Bail Bond (collectively, the “Bail Agents”) appeal the trial court’s order: (1) granting the release of the Bail Agents’ $2,500 bond to Government Payment Service, Inc. (“GPS”); and (2) awarding GPS attorney fees in the amount of $88,564. On appeal, the Bail Agents raise the following restated issue: whether the trial court erred in awarding costs and attorney fees to GPS pursuant to Indiana Trial Rule 65(C) following the reversal of a permanent injunction against GPS. We vacate and remand. * * *

The Bail Agents contend that this court’s October 11, 2006 opinion, which denied GPS attorney fees, was binding on the trial court. As such, the Bail Agents argue that it was an abuse of discretion for the trial court to grant GPS the $2,500 bond and attorney fees. Citing to the “law of the case” doctrine, the Bail Agents argue that the issue of costs and attorney fees was previously decided against GPS. We disagree.

As a general rule, “the ‘law of the case’ doctrine designates that an appellate court’s determination of a legal issue is binding on both the trial court and the Court of Appeals in any subsequent appeal given the same case and substantially the same facts.” Herrell v. Casey, 609 N.E.2d 1145, 1146 (Ind. Ct. App. 1993) (quoting Cha v. Warnick, 476 N.E.2d 109, 114 (Ind. 1985), cert. denied, 474 U.S. 920, (1985)). In the 2006 decision, our court determined that costs and attorney fees were not appropriate; however, that decision arose from GPS’s counterclaim for malicious prosecution and not a determination under Trial Rule 65(C). * * *

Under Trial Rule 65(C), “no right of action accrues upon an injunction bond until the court has finally decided that the plaintiff was not entitled to the injunction or until something occurs equivalent to such a decision.” Nat’l Sanitary Supply Co. v. Wright, 644 N.E.2d 903, 906 (Ind. Ct. App. 1994), trans. denied. In Palace Pharmacy, Inc. v. Gardner & Guidone, Inc., we held that a defendant is entitled to attorney fees for defending an injunction if he prevails at a later hearing or otherwise ultimately wins the case. 164 Ind. App. 513, 515, 329 N.E.2d 642, 644 (1975). Here, the wrongfulness of the injunction was not “finally or ultimately determined” until April 12, 2007, when the Clerk certified the 2006 decision. Consequently, GPS’s entitlement to attorneys fees and costs pursuant to Trial Rule 65(C) did not arise until that date. Pflederer v. Kesslerwood Lake Ass’n, Inc., 878 N.E.2d 510, 514 (Ind. Ct. App. 2007). The instant case regarding attorney fees and the counterclaim for malicious prosecution are not the same action. Therefore, the “law of the case” doctrine has no application here. * * *

Here, the Bail Agents’ temporary restraining order was only valid from March 27, 2003 through April 7, 2003. Thereafter, the TRO expired. The trial court did not enter a preliminary injunction, but instead, entered a permanent injunction on July 12, 2005, following a trial on the merits. The Bail Agents are liable to GPS only for the damages that occurred as the result on the wrongfully issued TRO. While we agree that the trial court was within its discretion to grant costs and attorney fees pursuant to Trial Rule 65(C), we reverse and remand for the trial court to determine which fees GPS incurred in connection with its defense of the TRO. Vacated and remanded.

In Janella Matthew v. State of Indiana, a 12-page, 2-1 opinion, Judge Robb writes:
We conclude sufficient evidence exists to support Matthew’s conviction. We remand to allow the trial court to correct the abstract of judgment to indicate that it entered judgment as a Class A misdemeanor instead of as a Class D felony. Affirmed and remanded.

RILEY, J. concurs.
BAKER, C.J. dissents with opinion: [which begins] Although I very much agree in principle with the result reached by the majority, I believe that we are compelled by Willis v. State to reverse Matthew’s conviction. 888 N.E.2d 177 (Ind. 2008). [ILB note: Willis v. State is the 4-1 Supreme Court opinion on corporal punishment of children - see list of ILB entries.] * * *

Considering the propriety of the force used by Matthew, the record reveals that the children had been fighting all day and that throughout the day, Matthew had warned J.M. to stop hitting her brother and sister. Thus, as in Willis, Matthew had employed progressive forms of discipline. As for the nature of the punishment inflicted by Matthew, I observe that J.M. received approximately ten blows from Matthew’s hand and a belt. I see no reason to diverge from our Supreme Court’s conclusion in Willis that, in response to a serious offense, there is “nothing particularly degrading about this manner of punishment. Nor, in context, is it readily apparent that the punishment was disproportionate to the offense.” Id. And as in Willis, Matthew’s discipline left bruises and welts, but “[i]n essence it appears from the record that the bruises [and welts] were neither serious nor permanent,” militating “against a conclusion that the punishment was unreasonable.” Id. at 184. Under these circumstances, I do not see how we can avoid the Willis court’s conclusion that Matthew’s actions herein fall within the parental discipline privilege.

In Lloyd N. Huff, et al. v. Maxine Huff, et al. , a 13-page opinion, Judge Brown writes:
Lloyd N. Huff, as trustee of the Elihu W. Huff Trust, Lloyd N. Huff, as beneficiary of the Elihu W. Huff Trust, and Edith Ham, now deceased, by her duly authorized attorney-in-fact, John Ham, as beneficiary of the Elihu W. Huff Trust (collectively “Beneficiaries”), appeal the trial court’s grant of summary judgment to Maxine Huff and the Estate of Wayne Huff (“Wayne’s Estate”). The Beneficiaries raise three issues, which we consolidate and restate as whether the trial court erred by granting in part the motion for summary judgment filed by Maxine and Wayne’s Estate. On cross appeal, Maxine and Wayne’s Estate raise two issues, which we consolidate and restate as whether the Beneficiaries’ remaining claims against Wayne’s Estate are barred by the doctrines of laches and estoppel. We reverse and remand. * * *

We conclude that there remain questions of fact as to whether Wayne properly disclosed the material facts of the conveyance to the Beneficiaries in accordance with his duty as trustee and that, therefore, summary judgment on the expiration of the statute of limitations was inappropriate. * * *

The final issue raised by Maxine and Wayne’s Estate on cross appeal is whether the Beneficiaries’ breach of trust claim against Wayne’s Estate concerning Wayne’s failure to distribute the trust principal after Elihu’s death is barred by the doctrines of laches and estoppel. * * *

Here, Wayne never filed a final account, and the exception to the special pleading requirement for affirmative defenses for trustees does not apply. Accordingly, the failure of Maxine and Wayne’s Estate to specifically plead the affirmative defenses of laches and estoppel waived the defenses. * * *

For the foregoing reasons, we reverse the trial court’s grant in part of the motion for summary judgment filed by Maxine and Wayne’s Estate and remand for proceedings consistent with this opinion.

NFP civil opinions today (3):

Tram Development Group, Inc. v. Joseph and Florence Maginot (NFP) - "Tram appears to have performed its portion of the contract up until the point that it was no longer advantageous. Despite agreeing to purchase all fifty acres, Tram waited until the last minute to inform the Maginots that it was not willing to buy the last portion of the land, which just happens to be the portion that is not suitable for Tram’s purposes. Tram is essentially asking this Court to permit it to keep the best portions of the land, break its original agreement, and pay a nominal amount as compensation to the Maginots. We do not believe such a solution is equitable. Therefore, we conclude that the trial court did not abuse its discretion in ordering specific performance for the outstanding portion of the contract for real estate. Affirmed."

Tony Elliott v. Elayne Elliott (NFP) - "In sum, the trial court’s conclusions that Tony owed Elayne the principal sums of $2,891.04 in seized taxes and $28,065.11 for the Key Bank line of credit are not clearly erroneous. Further, the court did not abuse its discretion in finding Tony to be in indirect contempt of court. Thus, we affirm the trial court’s judgment in all respects."

JPMorgan Chase Bank, N.A, et al v. Rita E. Nicholson f/k/a Rita Campbell, et al (NFP) - "The trial court erred in granting summary judgment to EverHome because there remains a genuine issue of material fact as to whether Chase Bank was required to release its mortgage lien on Nicholson’s property. Accordingly, the judgment of the trial court is reversed, and this case is remanded to the trial court for further proceedings consistent with this opinion. Reversed and remanded."

NFP criminal opinions today (14):

Kail Fortson v. State of Indiana (NFP)

Elliot Carter v. State of Indiana (NFP)

Curtis N. Cooper v. State of Indiana (NFP)

Michael Myers v. State of Indiana (NFP)

T.H. v. State of Indiana (NFP)

John Prosser v. State of Indiana (NFP)

Anthony E. Miller v. State of Indiana (NFP)

Kevin Ingram v. State of Indiana (NFP)

Charles Wagner v. State of Indiana (NFP)

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

Stephen Clark v. State of Indiana (NFP)

James E. Wilhelm, Jr. v. State of Indiana (NFP)

Earl Eugene Jackson v. State of Indiana (NFP)

Jacque Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 29, 2008
Posted to Ind. App.Ct. Decisions

Ind. Law - The golf cart issue seems to be snowballing

Following up on my post Wed., August 27th, which quoted both the Indiana State Police press release on golf carts on public roads, and a clarification the ILB requested directly from the ISP spokeman, this morning I send an e-mail to the Bureau of Motor Vehicles spokesperson. I wrote:

Dennis, Can you give me the BMV position on issuing registrations for golf carts? The State Police have told me: "The fact still remains no one can operate the golf carts on the roadways legally unless the BMV should decide to let the operators register them. As to that, the BMV would have to answer the question as to if they will or they won’t." [This is a quote from the Aug. 27th ILB entry]
Mr. Rosebrough is out of the office for the weekend, but I did get a direct response from him a few minutes ago:
Indiana does not permit us to license traditional golf carts. They do not meet State or Federal safety requirements. Please call me ... if we need to discuss. Dennis.
Well, this would seem to put lid on it for now. Or maybe not.

Here are some recent stories from Jay County and from Bluffton.

From yesterday's Bluffton News-Banner, some quotes from a long story by Glen Werling:

She’s tired of the calls and the emails.

You can’t ride a golf cart on Bluffton city streets, emphasized Police Chief Tammy Schaffer Tuesday.

“Up until now I think everyone has turned a blind eye, but this is getting to be a real problem,” said Schaffer.

High gas prices have caused some people to seek alternative sources of transportation for short trips and golf carts are one means to putter about town cheaply.

At last week’s city council meeting, city attorney Andrew Carnall responded to a letter from a Bluffton resident seeking city permission to ride her golf cart on the city streets. He explained that because the state does not recognize golf carts as a motor vehicle, they cannot be operated on public thoroughfares.

Since that time, Schaffer has received letters, emails and oral assaults from people who are sure that Carnall is wrong.

Schaffer contacted the Indiana Association of Chiefs of Police and received a response from Government Relations Co-chair Joe Pitcher advising that state law prohibits all-terrain vehicles, golf carts and other such vehicles on public streets unless they and their operators meet all of the requirements of a motor vehicle. * * *

Small communities appear to be the ones where the push is on to pass these kinds of ordinances. In Fishers—which Pitcher admits is no longer a small community—golf carts are permitted on streets where the speed limit is below 25 MPH, during daylight hours and only in residential neighborhoods.

But even in those cases, Pitcher didn’t believe that the ordinances were really legal. “What isn’t well known is that in most of those cities and towns, the state police has been issuing tickets and towing golf carts they find on public streets, notwithstanding local ordinances. Lebanon was issuing golf cart permits to its citizens, but the Indiana State Police came into town and wrote people riding these on the streets UTTs (uniform traffic tickets).

Two stories from Steve Garbacz, reporting for the Jay County Commercial Review. From 8/23/08, a good story headed "Uncertainty abounds about golf carts." Some quotes:
In the Indiana Code, there is no specific section regarding what a golf cart is. Unlike entries for bicycles, mopeds or off-road vehicles (which specifically exclude golf carts in its outline), there is no listing for golf carts and no rules for their use. Therefore, [Indiana State Police 1st Sergeant Al Klingerberg] said, they fall into the general definition of a motor vehicle, which covers standard vehicles such as everyday cars.

Motor vehicles have certain specifications they must meet before they can be registered and licensed with the Bureau of Motor Vehicles. But since golf carts don't meet those requirements and there are no other special procedures for registering them, it's technically illegal to operate them on roadways without that state certification.

"Indiana Law says that if a vehicle has an engine smaller than 50cc and is not designed to go over 25 mph, it is not a vehicle that gets licensed," said Dennis Rosebrough, communications director for the Indiana Burueau of Motor Vehicles. "We do not issue license plates or register golf carts."

Therefore, the state law, by not having a complete entry for golf carts, nulls Portland and other towns' ordinances allowing golf carts to be driven within city limits, Klingerberg said. This interpretation of the law would also contradict the recent intentions of the Jay County Commissioners to legalize golf cart traffic on county roads. * * *

Klingerberg did mention that during special festival events, such as this week's Tri-state Gas Engine and Tractor show, a town ordinance allowing golf cart usage, such as Portland's, would be legal. Festivals and certain scenarios, he said, do allow for a suspension of the rules. But once the festival is over, so is that allowance.

"Ordinances can't do that," he said. "I think state law would always win outside of the allowable festival."

So far it is winning in other municipalities, as golf cart drivers in Boone and Lawrence counties have been slapped with citations for driving without registration.

A court case challenging a golf cart ticket in the town of Lebanon is set for Nov. 13 and could be a step toward a clearer answer in Indiana.

The golf cart issue is one that will need to be resolved at the state level. In order to effectively allow golf cart traffic on roadways, state legislators would have to work to make an addition to the Indiana Code supplying the much-needed definition and regulations for golf carts. Then, local governing bodies could allow carts on the roads if they so choose.

As far as the state legislature adding golf carts to the Indiana Code, the conversation hasn't surfaced in the state legislature yet, but will likely be coming soon.

"I know it's an area that's going to be discussed at the legislature during the next session," said State Rep. Bill Davis, R-Portland. "I can tell you that it's something that people want and I know that local communities are trying to deal with the safety aspects of that. You have to weigh the convenience - and right now with the cost of fuel and things, the economics - versus the safety."

When January rolls around, the state legislature may work to remedy the problem. But as for now, golf carts will continue to roll through the gray area in the state code.

And from 8/25/08, this story. Some quotes:
Attorney Lon Racster presented research to the Jay County Commissioners this morning on the off-road vehicle and golf cart ordinance which has been proposed to allow these vehicles to travel on county roadways.

Off-road vehicles, Racster said, should be no trouble, since the county can state that as long as drivers follow the provisions in the Indiana Code, those vehicles will be allowed to ride the roadways. The commissioners continued to support that an additional requirement should be added that drivers under 18 years of age will need to wear a helmet.

And then the discussion turned to the muddled golf cart debate. * * *

"Subdivisions cannot pass statutes that are less restrictive than the state," Racster said and added, "Golf carts are not something the state has decided to regulate."

Racster informed the commissioners, however, that the power of the home rule, a rule that allows local governments to regulate the unregulated in their jurisdiction, might allow the county to pass such an ordinance since there is no state statute barring it.

"In my opinion, until such a time as (the state) chooses to regulate (golf carts), the home rule says we could," Racster said.

The lack of clarity leaves options open. A golf cart could fall under the defined sections of a low-speed vehicle. Those are defined as four-wheel, electric vehicles that have certain safety implements non-standard on most golf carts such as mirrors, turn signals and a windshield among others. The definition was likely formed to cover electric cars which have started to appear, but could possibly cover a modified golf cart.

There were questions, though, about whether the county would be liable if someone were injured in an accident while on a golf cart. The county could be liable if they authorize the non-state-regulated carts on the roadways.

There are no clear answers with golf carts since the information isn't complete.

"It's just not addressed," Racster said. "The state legislature has got to address the problem."

Posted by Marcia Oddi on Friday, August 29, 2008
Posted to Indiana Law

Environment- "Great Lakes Compact loophole allows bottled water"

Gitte Laasby of the Gary Post-Tribune has a great story today on the Great Lakes Compact. The story begins:

Lawmakers and concerned environmentalists are sounding the alarm on the Great Lakes Compact just weeks before the historic agreement may be ratified by Congress. They say a loophole would allow businesses to sell bottled Great Lakes water -- exactly what the compact was supposed to prevent. * * *

The compact prevents Great Lakes water in containers 5.7 gallons or larger from being exported outside the natural drainage basin. The agreement exempts water used to produce a product that's transferred out of the watershed -- for instance steel or beer. The problem is, the compact defines a product as intended for "intermediate or end-use consumers" and bottled water could fall under that definition, [U.S. Rep. Dennis] Kucinich said.

Work on the compact intensified after public outrage in 1998 when a Canadian company wanted to sell in Asia the equivalent of 50 tankers per year of Lake Superior water.

"Here we are, 10 years after, with a compact that will allow diversion of water. It significantly limits pipelines and tanker trucks and freighters full of water ... (but) they're allowed to leave the Great Lakes with containers full of water," said Dave Dempsey, spokesman for Conservation Minnesota. "The Great Lakes don't know the difference."

Kucinich, Rep. Bart Stupak, D-Mich., and some environmentalists want Congress to close the loopholes by adding language and clarifying that the lakes are public property and not for private profit. That could be done without sending the compact back to the states, said Jim Olson, an environmental law attorney.

The P-T story includes a link to the "compact", but it is to the long-time "Great Lakes Basin Compact," NOT the now before Congress "Great Lakes Compact."

More about the possible loophole on p. 2 of this Aug. 26th story by Dave Dempsey himself in Alternet. A quote:

What gives critics concerns are two interlocking provisions of the compact that they say open the gates to large-volume exports of water in packages like bottles. First, the compact defines "product" to include that which is produced "by mechanical or human effort" and intended for "intermediate or end users." Anything meeting this definition -- including, presumably, water packaged in bottles -- is exempt from the export ban. A second clause holds that water exported in containers under 5.7 gallons (20 liters) or less in volume is not treated as a diversion, although individual states can treat such proposals more stringently if they choose.

The result, charge the critics, is a policy that endorses withdrawal and packaging of enormous volumes of Great Lakes water in these containers. Wenonah Hauter, executive director of Food and Water Watch, says this "establishes a precedent that water can be grabbed by profit-hungry corporations who want to claim it is a product not subject to the compact. This undermines the very purpose of the compact and creates a dangerous precedent for exporting water in the U.S., in this instance from the largest body of freshwater in North America."

In other words, an agreement born in 1998 because of outrage about the sale of Lake Superior water as a product may allow the sale of all Great Lakes Basin water as a product in containers.

Where is this in the Compact? Here is the Great Lakes Compact as passed by the 2008 Indiana General Assembly - SEA 45. See at p. 28: Section 4.12 - Applicability, item 10, "bulk water transfer." See at p. 41: Sec. 13 - definition of "product" and exception.

[More] Re bottled water, the ILB is reminded of this Oct. 22, 2007 entry, headed "Canadian company mining Indiana aquifer."

Posted by Marcia Oddi on Friday, August 29, 2008
Posted to Environment

Environment - More on the move to wind power - things to watch for

Recently the ILB posted an entry headed "Porter County braces for future in wind power" (8/25/08) and another headed "In Rural New York, Windmills Can Bring Whiff of Corruption" (8/19/08).

Thursday the NY Times had another interesting wind power story, this one headed "Wind Energy Bumps Into Power Grid’s Limits ." Some quotes from the lengthy report by Matthew L. Wald:

When the builders of the Maple Ridge Wind farm spent $320 million to put nearly 200 wind turbines in upstate New York, the idea was to get paid for producing electricity. But at times, regional electric lines have been so congested that Maple Ridge has been forced to shut down even with a brisk wind blowing.

That is a symptom of a broad national problem. Expansive dreams about renewable energy, like Al Gore’s hope of replacing all fossil fuels in a decade, are bumping up against the reality of a power grid that cannot handle the new demands.

The dirty secret of clean energy is that while generating it is getting easier, moving it to market is not.

The grid today, according to experts, is a system conceived 100 years ago to let utilities prop each other up, reducing blackouts and sharing power in small regions. It resembles a network of streets, avenues and country roads. * * *

Politicians in Washington have long known about the grid’s limitations but have made scant headway in solving them. They are reluctant to trample the prerogatives of state governments, which have traditionally exercised authority over the grid and have little incentive to push improvements that would benefit neighboring states.

In Texas, T. Boone Pickens, the oilman building the world’s largest wind farm, plans to tackle the grid problem by using a right of way he is developing for water pipelines for a 250-mile transmission line from the Panhandle to the Dallas market. He has testified in Congress that Texas policy is especially favorable for such a project and that other wind developers cannot be expected to match his efforts.

“If you want to do it on a national scale, where the transmission line distances will be much longer, and utility regulations are different, Congress must act,” he said on Capitol Hill. * * *

The cost would be high, $60 billion or more, but in theory could be spread across many years and tens of millions of electrical customers. However, in most states, rules used by public service commissions to evaluate transmission investments discourage multistate projects of this sort. In some states with low electric rates, elected officials fear that new lines will simply export their cheap power and drive rates up.

Without a clear way of recovering the costs and earning a profit, and with little leadership on the issue from the federal government, no company or organization has offered to fight the political battles necessary to get such a transmission backbone built. * * *

Wind advocates say that just two of the windiest states, North Dakota and South Dakota, could in principle generate half the nation’s electricity from turbines. But the way the national grid is configured, half the country would have to move to the Dakotas in order to use the power.

“We still have a third-world grid,” [Bill] Richardson said, repeating a comment he has made several times. “With the federal government not investing, not setting good regulatory mechanisms, and basically taking a back seat on everything except drilling and fossil fuels, the grid has not been modernized, especially for wind energy.”

Posted by Marcia Oddi on Friday, August 29, 2008
Posted to Environment

Ind. Decisions - One tax court opinion Aug. 28

Brambles Industries v. Ind. Dept. Revenue is a sales tax case, re a sale for resale exemption on leased pallets.

Posted by Marcia Oddi on Friday, August 29, 2008
Posted to Ind. Tax Ct. Decisions

Thursday, August 28, 2008

Ind. Decisions - 7th Circuit posts one Indiana decision today

In Ben-Yisrayl v. Buss (ND Ind., Judge Sharp), a 26-page opinion, Judge Bauer writes:

Obadyah Ben-Yisrayl, formerly known as Christopher Peterson, was convicted of two counts of murder by an Indiana jury. After extensive proceedings through the Indiana and federal courts, he was ultimately sentenced to two consecutive sixty-year terms of imprisonment. He filed a petition for a writ of habeas corpus, claiming various constitutional violations. The district court denied the petition in part and granted the petition in part. We reverse the district court’s grant of the petition and affirm the denial. * * *

We are bound by a state court’s interpretations of state law. See, e.g., Wainwright v. Goode, 464 U.S. 78, 84, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983). The Indiana Court of Appeals properly followed the dictates of the Indiana Code and the Indiana Supreme Court in upholding Ben- Yisrayl’s sentence; and in making this determination, the court did not run afoul of Supreme Court precedent. Habeas relief should not have been granted.

III. CONCLUSION

Accordingly, we AFFIRM the district court’s decision to deny habeas relief, and REVERSE the district court’s limited grant of habeas relief with respect to Ben- Yisrayl’s consecutive sentences.

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

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In H.M. v. State of Indiana , an 8-page opinion, Judge Vaidik writes:

After the juvenile court issued true findings that H.M. is a juvenile delinquent for committing offenses that would be Class D felony criminal confinement, Class D felony attempted theft, and Class A misdemeanor battery if committed by an adult, H.M. appeals. Specifically, she argues that her adjudications for attempted theft and battery constitute double jeopardy. Concluding that double jeopardy principles apply to juvenile delinquency proceedings where multiple true findings result in a single delinquency adjudication and that separate evidence supports the battery finding that was not used to support the attempted theft finding, we affirm.
NFP civil opinions today (1):

James D. Victery v. Carol D. Victery (NFP) - In a 30-page opinion in an appeal from a final decree of dissolution, the COA affirms the lower court.

NFP criminal opinions today (4):

Frank Castillo v. State of Indiana (NFP)

John Dean Jr. v. State of Indiana (NFP)

Thomas L. Baker v. State of Indiana (NFP)

Jeffrey Miller v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 28, 2008
Posted to

Ind. Law - Yet another confusing story about the legality of golf carts of public streets and roads

Updating yesterday's ILB entry, here is a story by Katie Shane at WabashValley.com. Some quotes:

By the look of it Gene Deckard is ready for a round of golf.

But if you look closer Gene is also ready for fishing and maybe a trip to the store.

"It's good to go to the grocery store just to go any place in this town," he said.

Gene isn't alone; many residents of Sullivan County are using golf carts instead of cars and trucks to get around.

"It's easier and affordable and a means of transportation and popular here and i think because of the economy related to gasoline they are here to stay," said Sullivan Mayor Scott Biddle.

But while the popularity of golf carts in Sullivan is speeding along Indiana State Police say they want to put on the brakes.

"Technically if you are operating a golf cart for any reason on a public roadway in Indiana you are violating state law," said Indiana State Police Sgt. Joe Watts. "I think there is an illusion for some golf cart owners that since the city has passed an ordinance to allow then to use it on a city street that they can use it but that they don't know is that city and county ordinances don't supersede state law."

Posted by Marcia Oddi on Thursday, August 28, 2008
Posted to Indiana Law

Ind. Courts - Yet again on "Landowner calls move by pipeline company as intimidation"

Updating this June 11th ILB entry (see all ILB entries on "pipeline" here), Jason Thomas of the Indianapolis Star has an interesting report today. Some quotes:

A paragraph in a Decatur County zoning ordinance has led the developers of a multistate natural gas pipeline to file a lawsuit in federal court.

Rockies Express Pipeline LLC filed the lawsuit Tuesday in U.S. District Court in Indianapolis, seeking a temporary restraining order against the Decatur County Commissioners and the county Plan Commission.

At issue is a 2007 amendment to the Decatur County zoning ordinance that requires a 6-inch or larger gas line to maintain a 500-foot setback from any structure that is not receiving service from the line.

Rockies Express has been awarded federal approval to build the eastern leg of a 1,600-mile pipeline from Colorado to Ohio. The eastern leg, called Rockies Express-East, will go through nine Indiana counties, including Decatur, as it stretches from Missouri to Ohio.

Because the pipeline is 42 inches in diameter, it would be subject to the Decatur County ordinance.

But Rockies Express argues that the construction of an interstate natural gas pipeline is regulated by the Federal Energy Regulatory Commission through the federal Natural Gas Act, which pre-empts any county ordinance.

"Enforcement of the ordinance . . . constitutes an illegal attempt to regulate facilities used for transportation of natural gas in interstate commerce," the lawsuit states. The suit also states "REX will suffer irreparable harm" if the county enforces the ordinance.

Pipeline officials say the lawsuit is merely formalizing an informal agreement with county officials that the county would not enforce its ordinance.

Brian Keith, president of the Decatur County Plan Commission, said Rockies Express told county officials in a letter a few months ago that it did not have to abide by the ordinance because the pipeline is a federal project.

"This just takes me completely by surprise," he said of the lawsuit, adding he thought it was merely a formality.

In addition to the injunction, the pipeline also is seeking damages, attorney fees and court costs.

Posted by Marcia Oddi on Thursday, August 28, 2008
Posted to Indiana Courts

Ind. Decisions - More on: Terre Haute paper loses $1.5 million defamation suit

Updating this ILB entry from July 25th, the Tribune-Star reports today under the headline "Tribune-Star launches appeal of libel verdict," that:

The Tribune-Star has asked the judge who presided over the libel trial against the paper to set aside the $1.5 million jury verdict because it contradicts the state and federal constitutional rights of the press to report citizen allegations against public officials.

The 39-page brief was submitted last week to Magistrate Ann Smith Mischler in a defamation case brought against the paper by Jeff Maynard, a Clay County law enforcement officer. The brief also asked that if the verdict was not overturned, the judge should reduce the jury’s award of $500,000 in compensatory and $1 million in punitive damages, describing both as “excessive” and “outrageous” awards that would deter free speech.

The long story includes links to the Motion to Correct Errors and the Brief Supporting the Motion.

Posted by Marcia Oddi on Thursday, August 28, 2008
Posted to Ind. Trial Ct. Decisions

Environment - More on "Plans nixed for BP asphalt plant"

Following up on this story yesterday broken by the Gary Post-Tribune, Christine Kraly of the NWI Times reports today:

HAMMOND | The BP refinery in Whiting has withdrawn its plans to build a portion of its $3.8 billion expansion in the city of Hammond.

BP officials sent a letter to the city officially withdrawing the company's request last week, BP spokesman Tom Keilman said Wednesday. * * *

No BP officials attended the city's Board of Zoning Appeals meeting at which attorneys for the firm offered a one-sentence withdrawal of the permit requests needed to build the facility.

City environmental regulators appeared ready to approve the plan in March when they issued a 96-page report outlining several conditions through which BP could earn a favorable recommendation from the zoning board.

The report sparked a request by BP to postpone any decision on the asphalt center plan -- the seventh such delay since the project was first brought to city officials in October 2006.

"We were just doing our job," Ronald Novak, executive director of the Hammond Department of Environmental Management, said Wednesday night. "Which was dealing with issues brought to our attention by the public."

Posted by Marcia Oddi on Thursday, August 28, 2008
Posted to Environment

Environment - Different takes on water pollution antidegradation rule progress

Patrick Guinance writes today in the NWI Times under the headline "State sees progress on water pollution rule." Some quotes:

INDIANAPOLIS | A critical water quality rule designed to head off controversies like the one that dogged BP's Whiting Refinery expansion last summer should be in place by this time next year, Indiana's top environmental regulator said Wednesday.

Indiana Department of Environmental Management officials told a legislative committee that study groups are sorting through a half-dozen issues crucial to crafting a new antidegradation policy. The rule would spell out the circumstance in which the state could allow increased pollution discharges into Lake Michigan and other "outstanding state resource waters."

"I think we are on our way to getting that type of document in place," said Rae Schnapp, water policy director for the Hoosier Environmental Council.

IDEM Commissioner Thomas Easterly said if the committees of business, environmental and municipal leaders remain on track, a draft rule should be ready by year's end, and a final policy could be adopted by mid-2009.

"State's water-quality revisions hit snags" is the headline to the AP report by Rick Callahan that begins:
INDIANAPOLIS -- Revised water quality rules intended to protect Indiana's waters from pollution are taking longer than expected to draft and likely won't be finalized until mid-2009, the state's top environmental official said yesterday.

Thomas Easterly, the commissioner of the Indiana Department of Environmental Management, said in March that he hoped the new water quality rules could be in place by year's end.

But Easterly said yesterday that it has proven difficult for representatives of industry, municipalities and environmental groups to agree on the wording of the new so-called "antidegradation" rules.

His agency will use those rules as a guide when it decides whether to approve wastewater permits for new or expanded industrial operations or to require companies to take greater steps to reduce their pollution discharges.

Easterly said he hopes the new rules' wording is complete by the end of the year, followed by final approval by mid-2009 by the state's Water Pollution Control Board.

"By the end of this year we should know what everybody thinks the rule will say. I'm sure there'll still be discussions, but it should be relatively smooth after that," he said after speaking to a panel of lawmakers, other government officials and environmental stakeholders.

Posted by Marcia Oddi on Thursday, August 28, 2008
Posted to Environment

Ind. Law - More on: AG announces filing suit to stop illegal fax blaster

Recall this ILB entry from August 19th, where the AG announced he was filing suit "seeking more than $1.5 million in civil damages from a New Jersey-based company accused of breaking Indiana’s Do Not Fax law."

Here is a story published yesterday in NJ Biz ("All business, all New Jersey") that reports:

An Englishtown company's effort to generate mortgage leads was a bit too ambitious, according to a lawsuit filed by the Indiana state attorney general's office against the firm.

EZ Precious Metals Group Inc., which does business as EZPMG and advertises itself as a "lead generation specialist," violated Indiana’s law against sending unsolicited faxes when it sent more than 1,000 faxes to Indiana residents advertising mortgage services, the state's Attorney General Steve Carter said in an announcement. His office is awaiting a response from the company, a Carter spokeswoman told NJBIZ today.

The lawsuit, which was announced Aug. 18, was filed in Indiana’s St. Joseph County Court. It asks the court to halt EZPMG’s faxing activities in the state, and seeks civil penalties of up to $1,500 per violation against the company and its president, Kenneth B. Elias. The suit also seeks $10,000 for the company’s alleged failure to obtain a certificate of authority from Indiana to do business within the state. EZPMG did not return a reporter’s call seeking comment.

"For each fax brought to our attention, it is likely there were hundreds more that were unreported and caused headaches for people across the state,” Carter said on Aug. 18 in an Indiana state news release. “We have heard from citizens in 51 counties who were supplementing the advertising costs of this East Coast company thousands of miles away. One person in Pulaski County received as many as 200 faxes alone.”

The company had previously been sued by at least two clients in other states for similar alleged violations. At least one of those suits was dismissed.

Posted by Marcia Oddi on Thursday, August 28, 2008
Posted to Indiana Law

Courts - More on: "Bankruptcy Filings Near Million Mark for 12-Month Period Ending June 30, 2008"

Supplementing this ILB entry yesterday is a story today in the Indianapolis Star, reported by John Russell and Ted Evanoff, that has an Indiana focus. Headed "Bankruptcy filings are soaring in Indiana: As bankruptcies rise, Indiana ranks 5th on a per-capita basis for all types of filings", it begins:

Bankruptcy filings in Indiana have soared 26.5 percent, the latest sign that the economy is slowing down and taking a toll on businesses and households.

The Hoosier state ranked second nationally for business filings per 1,000 residents, behind only Michigan, which has been hurt by a shift in auto manufacturing from large cars and trucks to more fuel-efficient vehicles.

For individual filings in the 12 months that ended June 30, Indiana ranked eighth nationally per capita, behind first-place Tennessee.

For bankruptcy filings of all types, Indiana ranked fifth nationally per capita, behind Tennessee, Georgia, Alabama and Nevada.

Posted by Marcia Oddi on Thursday, August 28, 2008
Posted to Indiana Courts

Ind. Courts - "Judge Wayne Lennington could face criminal charges"

The ILB has had a number of earlier entries about former Delaware Circuit Court 5 Judge Wayne Lennington. Today the Muncie Star-Press has a story headlined "Judge Wayne Lennington could face criminal charges." Reporter Rick Yencer writes in a story that begins:

MUNCIE -- Former Delaware Circuit Court 5 Judge Wayne Lennington now faces a special prosecutor who will decide whether he committed a crime or misconduct.

Indiana General Attorney Steve Carter and Delaware County Prosecutor Mark McKinney sought a special prosecutor earlier this month in the investigation of Lennington, who resigned from the bench last May after acknowledging he was being investigated for financial interests in tax sale properties he judged.

Former Adams County Prosecutor Daniel J. Sigler of Columbia City was appointed by Delaware Circuit Court 1 Judge Marianne Vorhees recently, based on the petition indicating that a joint task force formed by McKinney, Carter and the Indiana State Police was investigating Lennington.

Carter and McKinney would not comment about allegations against the 78-year-old former judge, although McKinney, who faces his own misconduct investigation by the Indiana Supreme Court Disciplinary Commission, felt it was important to get a special prosecutor due to the nature of investigation, which he would not specify and only acknowledged this week, months after it began. It was the first time Carter and McKinney have admitted a criminal investigation existed after going to court to get a special prosecutor.

Posted by Marcia Oddi on Thursday, August 28, 2008
Posted to Indiana Courts

Wednesday, August 27, 2008

Ind. Law - More on: State Police issue golf carts press release [Updated with answer from ISP]

The ILB posted the Indiana State Police press release yesterday and thought it was a clear statement of the ISP's interpretation of what is the law is regarding driving golf carts on public roads.

The interpretation turns on this paragraph from the ISP release:

What does all this mean? A golf cart can be lawfully operated on public streets and/or highways if they can be properly registered and plated with the BMV. The BMV will not register a golf cart because it does not meet the safety and equipment standards for motor vehicles that are to be driven on highways.
The ILB read this to mean that the BMV will not register golf carts because the carts don't meet the standards. So the carts don't have plates, and the ISP tickets them.

But several papers are reporting it differently, apparently reading "because" as "if." From Q-100 News:

Indiana State Police are saying if a golf cart has all the proper safety and signal equipment like that of any other any other registered motor vehicle, the BMV can register them. A release by the Indiana State Police say there is nothing in the Indiana Code prohibiting golf carts from being registered at the Bureau of Motor Vehicles. The Indiana Code says golf carts, being self-propelled, are technically defined as motor vehicles and under the jurisdiction of the BMV.
From WBIW News:
ISP: Golf Carts Can Be Registered At BMV

Last updated on Wednesday, August 27, 2008

(UNDATED) - In an unusual turn of events in the debate over golf carts on public roadways, Indiana State Police say there may be a way to drive them currently.

A release by the Indiana State Police say there is nothing in the Indiana Code prohibiting golf carts from being registered at the Bureau of Motor Vehicles, contrary to what was previously thought.

The Indiana Code says golf carts, being self-propelled, are technically defined as motor vehicles and under the jurisdiction of the BMV.

If a golf cart has all the proper safety and signal equipment of any other motor vehicle, the Indiana State Police say the BMV can register it and issue tags, but they won't register it if it doesn't meet requirements.

The ILB has sent a message to Sgt. Anthony Emery, Public Information Office, ISP Indianapolis District, asking for clarification of the ISP position. Yes, ironically, we are parsing the press release, rather than the statutes.

[Updated at 4:17 pm] Sgt. Emery has quickly responded to my message. He writes:

Marcia,

A golf cart can be lawfully operated on public streets and/or highways if they can be properly registered and plated with the BMV. The BMV has the final say as to what they will register and what they will not. If someone had a golf cart that met all the safety standards/equipment and the driver of the golf cart had a valid driver’s license and insurance on the cart, then someone could be legal to the letter of the law. However, the law also states that the BMV has the supreme authority in determining what they will and what they won’t register and plate. It comes down to the fact that a golf cart cannot be operated on roadways legally because they meet the criteria requiring registration and license plate. The BMV could decide to approve a golf cart for registration and plates but are not likely to do so.

Attorneys throughout the state may have varying opinions in this matter. The legal staff for the Indiana State Police has determined that we will continue to take enforcement action for violations relating to the golf carts without the registrations.

I hope this clears up this matter for you. The fact still remains no one can operate the golf carts on the roadways legally unless the BMV should decide to let the operators register them. As to that, the BMV would have to answer the question as to if they will or they won’t.

Let me know if I can be of further assistance to you in this matter. Thanks.

Posted by Marcia Oddi on Wednesday, August 27, 2008
Posted to Indiana Government | Indiana Law

Courts - Big county courthouse is a hub for local business

ABA News today highlights an interesting story that appeared last Friday, Aug. 22nd in the Columbus Ohio Business First publication. Written by Kevin Kemper and headed "Downtown court complex economic stimulus to many an entrepreneur," the report begins:

It’s almost a small city. A micro economy that feeds dozens of businesses and vendors.

One of the busiest courts in the state, the Franklin County Courthouse complex is a three-building spread that employs an estimated 3,350 people while annually welcoming more than one million people through its doors.

Located at 369, 373 and 375 S. High Street in downtown Columbus, the courthouse and its employees are responsible for not only the administration of justice in Franklin County, but also the well-being of dozens of area businesses that supply the complex and its employees with food, documents and a variety of services.

And when the county’s new courthouse opens just north of the existing complex on High Street, these businesses expect they will continue to act as satellites in the courthouse’s economic orbit.

The story then goes on to highlight bail bond companies, courier services, title searchers, restaurants, and concludes:
Even the city of Columbus makes money off the courthouse.

The roughly 60 parking meters that surround the courthouse brought in $123,690.04 in 2007.

“The meters around the courthouse are some of the busiest (in the city) and in terms of finances, some of the most lucrative,” said Mary Carran Webster, assistant director for the city’s Department of Public Service.

Posted by Marcia Oddi on Wednesday, August 27, 2008
Posted to Courts in general

Courts - "Bankruptcy Filings Near Million Mark for 12-Month Period Ending June 30, 2008"

Here is the news release from US Courts on the most recently compiled bankruptcy statistics. It begins:

August 27, 2008 — In the 12-month period ending June 30, 2008, there were 967,831 bankruptcy cases filed, according to statistics released today by the Administrative Office of the U.S. Courts. That is a 28.9 percent increase compared to filings for the 12-month period ending June 30, 2007, when cases totaled 751,056. Historic data on bankruptcy filings is available on the Judiciary's website under Bankruptcy Statistics.

Additional statistics released today include business and non-business filings for the 12-month period ending June 30, 2008 (Table F-2, 12-month); a comparison of June 2007 and 2008 filings (Table F), 3rd quarter filings (Table F-2, 3-month); monthly filings for the 12-month period ending June 30, 2008 (Table F-2, Monthly); and filings per capita.

Posted by Marcia Oddi on Wednesday, August 27, 2008
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

For publication opinions today (4):

In Grover Fitzgerald v. U.S. Steel, a 13-page opinion, Judge Vaidik writes:

Grover Fitzgerald appeals from the Worker’s Compensation Board’s (“Board”) dismissal of his application for adjustment of claim. Concluding that Fitzgerald’s application is time-barred under Indiana Code § 22-3-3-27 (1998), that the reimbursed wages he received from U.S. Steel (“USS”) do not constitute “compensation,” that the date of maximum medical improvement or the date his permanent partial impairment rating was issued is not the starting date for calculating the statute of limitations under the facts of this case, that USS did not make fraudulent misrepresentations to Fitzgerald, and that USS did not breach any legal duties owed to him, we affirm.
In Kempf Contracting and Design, Inc. v. Cynthia Holland-Tucker, an 11-page opinion, Judge Kirsch writes:
Kempf Contracting and Design, Inc. (“Kempf”) appeals the judgment, after a jury trial, in favor of Cynthia Holland-Tucker (“Tucker”) in her action against Kempf for negligence. Kempf raises several issues, of which we find the following dispositive: whether the trial court erred when it entered judgment on a second verdict reached by the jury, where, after an initial verdict was reached, the trial court reconvened the jury, gave them new instructions and verdict forms, and allowed the jury to deliberate a second time. We reverse and remand. * * *

Both parties argue that the trial court erred when it entered judgment on the second verdict by the jury after it realized that the jury had been given an erroneous jury instruction and verdict form and then allowed the jury to re-deliberate after they received a revised jury instruction and verdict form. Kempf contends that it is entitled to a new trial because it believed that the jury did not follow the instruction given by the trial court and issued a verdict that was contrary to the instruction and law of the case. Tucker claims that the original jury verdict pronounced in July 20, 2007 was facially sound and accurate, that the trial court erred when it set aside the original judgment, and that the judgment originally entered should be reinstated. * * *

“From the moment of its official discharge the jury is released from any further obligations or duties in the case” and “may not at any time thereafter be reassembled even on the orders of the judge for the purpose of correcting errors of substance in the verdict or for further deliberation of its verdict.” West v. State, 228 Ind. 431, 438, 92 N.E.2d 852, 855 (1950). When a jury is officially discharged, it becomes functus officio as a jury in that particular case, and anything it does thereafter, even by order of the trial court, is null and void. Id. Based on this, the trial court incorrectly entered judgment after allowing the jury to re-deliberate when it had previously been discharged by the trial court. * * *

Because the jury had ceased to exist as an entity to determine the case when it was discharged, it was not able to render a second verdict. * * *

Therefore, the trial court improperly entered judgment on the jury’s second verdict. We vacate the judgment and remand to the trial court with instructions to declare a mistrial and to order a new trial.

Because it is likely to be raised on retrial, we address the issue of whether the expert testimony was properly admitted. * * *

[W]e conclude that Tucker failed to meet her burden of proving that Tierney’s methodology was scientifically reliable under Indiana Evidence Rule 702(b), and the trial court abused its discretion when it allowed Tierney to testify. Reversed and remanded with instructions.

In Gina Williams v. State of Indiana , an 11-page opinion, Judge Najam writes:
Gina Williams appeals her convictions for Forgery, a Class C felony, and Attempted Theft, as a Class D felony, following a bench trial. Williams raises a single issue for our review, which we restate as the following three issues: 1. Whether Williams’ conviction for attempted theft is barred by Indiana’s prohibitions against double jeopardy. 2. Whether the trial court’s denial of Williams’ motion for involuntary dismissal, pursuant to Indiana Trial Rule 41(B), was clearly erroneous. 3. Whether the State presented sufficient evidence to support Williams’ convictions. We affirm in part and reverse and remand in part. * * *

Williams’ conviction for forgery is supported by sufficient evidence and affirmed. However, because the same evidence was used to convict Williams of both forgery and attempted theft, as a Class D felony, her conviction for attempted theft must be reversed on double jeopardy grounds. Hence, we remand that issue to the trial court with instructions to vacate Williams’ attempted theft conviction.

In Byron Breaston v. State of Indiana , a 20-page opinion, Judge Bradford writes:
Appellant-Defendant Byron Breaston appeals his conviction, following a jury trial, for Theft,1 a Class D felony, and the finding that he was a habitual offender. Breaston raises numerous issues on appeal, which we restate as: (1) whether the trial court erred in denying Breaston‟s request for a mistrial; (2) whether the evidence was sufficient to support the finding that he was a habitual offender; (3) whether the trial court erred in allowing the State to amend the habitual offender enhancement information; (4) whether the sentences resulting from separate findings that one is a habitual offender in separate criminal proceedings may be served consecutively to one another; (5) whether the trial court erred in admitting certain evidence at trial; and (6) whether the trial court erred in denying Breaston‟s motion to dismiss. We affirm.
NFP civil opinions today (2):

In Re: The Marriage of William D. Cronkhite, II v. Tammy Cronkhite (NFP) - "William Cronkhite appeals the trial court’s distribution of marital property in the dissolution of his marriage to Tammy Cronkhite. We affirm. * * *

"It is well settled that we will not consider an appellant’s assertion on appeal when he or she fails to present cogent argument supported by authority and references to the record as required by the rules. Id. If we were to address such arguments, we would be forced to abdicate our role as an impartial tribunal and would instead become an advocate for one of the parties, which we cannot do.

"Moreover, William cannot take refuge in the sanctuary of his amateur status. As we have noted many times before, a litigant who chooses to proceed pro se will be held to the same rules of procedure as trained legal counsel and must be prepared to accept the consequences of his or her action. Accordingly, William’s argument is waived for lack of cogent argument.

Conclusion. Because of the inadequacy of William’s brief, we cannot address the merits of his claim. The issues raised on appeal are waived. We affirm."

Carolyn S. and Richard Kane v. Wibbeler Distributors, Inc. and Jerry Wibbeler (NFP) - "Carolyn S. Kane (“Carolyn”) and her husband, Richard Kane (collectively, “the Kanes”), appeal the trial court’s denial of their motion to correct error after the jury returned a verdict finding that Jerry Wibbeler (“Wibbeler”) was not liable for the damages they allegedly sustained after a van negligently driven by Wibbeler struck the truck driven by Carolyn. We affirm."

NFP criminal opinions today (7):

Antonio Sims v. State of Indiana (NFP)

Willie Anderson v. State of Indiana (NFP)

Martin Estrada a/k/a Martin Pineada Tovar v. State of Indiana (NFP)

Tammy Berry v. State of Indiana (NFP)

Jonathan L. McBride v. State of Indiana (NFP)

Autuan M. Leanyear v. State of Indiana (NFP)

Charles W. Chorpenning v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 27, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues two today

In Brian Woods v. State of Indiana, a 7-page opinion, Justice Rucker writes:

To reverse a trial court’s decision to exclude evidence, there must have been error by the court that affected the defendant’s substantial rights and the defendant must have made an offer of proof or the evidence must have been clear from the context. The purpose of an offer of proof is to convey the point of the witness’s testimony and provide the trial judge the opportunity to reconsider the evidentiary ruling. Equally important, it preserves the issue for review by the appellate court. [cites omitted]

Neither on direct appeal nor on transfer to this Court does Woods make any attempt to explain why he violated the terms of his probation. More importantly, Woods did not make an offer of proof to the trial court. Generally this failure is fatal to his claim. * * * We affirm the judgment of the trial court.

In Christopher R. Brown, D.D.S., Inc. v. Decatur County Memorial Hospital, a 13-page opinion, Justice Rucker writes:
In this opinion we explore whether the Worker’s Compensation Board may award interest on worker’s compensation benefits including past due medical bills. We conclude that in the absence of express statutory authority it may not do so. * * *

To support his argument for an award of interest, Dr. Brown directs our attention to Indiana statutory and case authority standing for the proposition that once the amount of damage is readily ascertainable as of a particular time a claimant can only be fully compensated by the payment of interest. * * *

Essentially, Indiana’s Worker’s Compensation Act sets forth a comprehensive system for the compensation of injuries arising out of and in the course of employment. As demonstrated by the various approaches taken in other jurisdictions, crafting a rule that allows interest on medical payments or worker’s compensation benefits involves choosing among an array of equally compelling policy considerations. Because the system is uniquely legislative in nature and alters the common law rights and liabilities of both employees and employers, appellate courts should be hesitant to disturb the delicate balance the General Assembly has reached and thus refrain from applying provisions not expressly included in the statutory scheme. * * *

In plain terms, there is nothing in the Act that could be read to authorize an award of interest. If a policy consideration suggests that interest on worker’s compensation awards should be allowed, then the legislature and not the courts should implement such a policy. We conclude the Worker’s Compensation Board properly denied Dr. Brown’s request for interest on unpaid medical bills. * * *

Dr. Brown next contends that any interpretation of the Worker’s Compensation Act that results in the denial of his request for interest on overdue medical bills violates Article I, Section 23 of the Indiana Constitution. * * * In sum, Dr. Brown argues that because the Act requires delinquent payment claims of healthcare providers be submitted to the Board – where no interest is allowed – he is treated differently than healthcare providers who may pursue delinquent payments in court and be awarded interest. * * *

The different treatment accorded Dr. Brown is reasonably related to differences between healthcare providers who provide medical services to patients covered by the Act and those not so covered. As a result Dr. Brown has failed to support his claim that his Equal Privileges rights have been violated.

We affirm the judgment of the Board.

Shepard, C.J., and Dickson and Sullivan, JJ., concur.
Boehm, J., concurs with separate opinion. [which begins] I agree with the majority that Indiana’s Worker’s Compensation Act is silent on the ques-tion of interest for past due compensation benefits and healthcare bills, and that any authorization for interest should come from the General Assembly. I write separately to suggest that the Act already addresses the issue of late payments, and to set out what I see as the practical conse-quences of our decision.

Posted by Marcia Oddi on Wednesday, August 27, 2008
Posted to Ind. Sup.Ct. Decisions

Environment - "Plans nixed for BP asphalt plant"

A story from the Aug. 5, 2007 NWI Times includes this quote:

Concerns over BP's compliance with city health and safety regulations also led the [Hammond] Board of Zoning Appeals to postpone any approval of a $110 million asphalt production facility planned for North Hammond, which company officials said was the first step in the project to bring Canadian crude oil to its refinery.
From May, 2008:
The proposed asphalt center would be just south of the Lost Marsh Golf Course, and would fill as many as 220 tanker trucks and 80 rail cars per day.
From a May 13, 2008 story in the Gary Post-Tribune:
"We wanted to go with the environmental justice issue since we thought that was completely overlooked in this permit. This permit has been broken down in different sections. This is a major expansion. You spend $3.8 billion and IDEM refers to it as a minor. If you spend that kind of money, it's a major," said Bessie Dent, a Hammond resident and member of the Calumet Project.

If the permit was considered as one rather than three different permits -- for an asphalt plant, a diesel plant and the expansion, it would have been considered a major modification, she said.

Today, at 11:07 am, Gitte Laasby posted this story on the Gary Post-Tribune website:
HAMMOND — BP Whiting has scrapped its plans for an asphalt plant in Hammond.

In a letter to the city of Hammond, the refinery has withdrawn its petition for conditional use and developmental variance for a property at 1304 129th St. across from the Lost Marsh Golf Course.

“At this point, BP has exercised its right to withdraw its petitions that are currently before the Hammond board,” BP spokesman Tom Keilman told the Post-Tribune Wednesday morning.

He said BP is considering whether and where to build another plant.

“We’re currently reviewing our options in terms of the asphalt operations,” he said.

Keilman acknowledged that the city of Hammond had a number of conditions for granting the petition, including requirements to monitor emissions, but he would not comment on whether requirements had anything with BP canceling its plans.

Hammond Mayor Tom McDermott Jr. said he felt he had no choice but to put conditions on granting the request because the asphalt plant would harm the community.

“We didn’t really support it. I support the expansion but the part of moving the asphalt plant to where they wanted in Hammond, we didn’t like it,” McDermott Jr. said. “There was a lot of concern about the health issues. There’s been studies that this can cause cancer clusters in the neighborhood around it. It doesn’t make sense you take that and move it closer to a neighborhood. I didn’t want that to be my legacy if I found out 20 years from now that kids got sick.”

The zoning issue was on the agenda of tonight’s meeting of the Hammond board of zoning appeals.

For more details, read tomorrow’s Post-Tribune.

Posted by Marcia Oddi on Wednesday, August 27, 2008
Posted to Environment

Ind. Courts - "State supreme court wants documents about McKinney pay"

A story today in the Muncie Star-Press, reported by Rick Yencer, begins:

MUNCIE — The Indiana Supreme Court Disciplinary Commission this week subpoenaed city records documenting payment of attorney fees to Delaware County Prosecutor Mark McKinney for civil forfeiture work.

The Disciplinary Commission is investigating possible misconduct by the prosecutor in regards to his handling of drug forfeiture cases, based on a misconduct complaint filed with the court by Mayor Sharon McShurley.

The records include invoices for payment and checks issued from city funds to McKinney from Jan. 1, 2000, to the present, according to the subpoena issued to City Controller Mary Ann Kratochvil from Donald Lundberg, executive secretary of the Disciplinary Commission.

Kratochvil said that when she became controller in 2006, she questioned the payments McKinney and Deputy Prosecutor Eric Hoffman received from the city.

Posted by Marcia Oddi on Wednesday, August 27, 2008
Posted to Indiana Courts

Ind. Courts - "Court scuffle puts new alert system to test"

Updating this story from yesterday, Rebecca S. Green of the Fort Wayne Journal Gazette reports today in a story that begins:

Monday’s Courthouse brawl provided one of the most serious tests of a relatively new panic alarm system installed in a number of offices throughout the historic building.

Sheriff’s department Sgt. Brian Sandberg said 64 of the alarms are installed throughout the Allen County Courthouse, with 21 others in a nearby annex, nine in the City-County Building, and 11 in the Bud Meeks Criminal Justice Center.

Three of the alarms near the corridor where the fight occurred were set off Monday morning, and according to department logs, officers responded in less than a minute.

When the alarm is pressed, there is no audible alarm, but county officers in the building receive three radio transmissions telling them the location of the alarm, Sandberg said. Though the alarms are occasionally set off by accident, they are rarely set off on purpose. Monday’s was the most serious occurrence since their installation about a year ago, Sandberg said.

Posted by Marcia Oddi on Wednesday, August 27, 2008
Posted to Indiana Courts

Tuesday, August 26, 2008

Ind. Law - State Police issue golf carts press release

The Indiana State Police has just issued a press release on golf carts. Here is the whole thing; here are some quotes:

Title 9 of the Indiana Code (I.C.) which regulates “Motor Vehicles” does not specifically ban or restrict the use of golf carts on public roadways and therefore a golf cart could be legally operated on public roadways provided it meets all requirements and restrictions set forth by Indiana Code. I.C. 9-13-2-175 defines a “street” or “highway” as the entire width between the boundary lines of every way publicly maintained when any part of the way is open to the use of the public for purposes of vehicular travel. The term includes an alley in a city or town.

To be lawfully operated upon a public street or highway in Indiana, motor vehicles must be registered and plated with the BMV (see I.C. 9-18-2-29). A golf cart is a motor vehicle as defined by I.C. 9-13-2-105(a) because it is a self propelled vehicle. I.C. 9-13-2-105(a) is a definition statute that excludes certain types of vehicles from the definition of a “motor vehicle.” Golf carts are not specifically excluded from the definition of “motor vehicle” and therefore are included in the definition of a motor vehicle.

In addition, a golf cart would likely be required to display a slow moving vehicle emblem as defined in I.C. 9-21-9 if the golf cart is not capable of being operated at a speed greater than 25 m.p.h. The cart may also be required to be equipped with flashing red or amber lights in further compliance with I.C. 9-21-9. Golf cart operators may even be required to wear safety belts under certain circumstances.

While some municipalities have adopted local ordinances allowing for the operation of golf carts on “city and town” streets, those local ordinances are superseded by state statutes to the extent that such ordinances contradict, duplicate, alter, amend, modify, or extend the subject matter of the applicable statute. Thus, an ordinance does not excuse golf cart operators from liability under state statutes, and state statutes “trump” local ordinances.

What does all this mean? A golf cart can be lawfully operated on public streets and/or highways if they can be properly registered and plated with the BMV. The BMV will not register a golf cart because it does not meet the safety and equipment standards for motor vehicles that are to be driven on highways.

Well, if you've made it this far you see that in the end they tie their hats on the definition of "highway" as including every street and alley, and on the BMV: "The BMV will not register a golf cart because it does not meet the safety and equipment standards for motor vehicles that are to be driven on highways." Where is the law the BMV uses? Presumably it is IC 9-19, Motor Vehicle Equipment. See particularly IC 9-19-1-5:
Sec. 5. Except as otherwise provided in this article, an owner of a vehicle may not cause or knowingly permit to be operated or moved upon a highway in Indiana a vehicle or combination of vehicles that is not constructed or equipped in compliance with this article.
Looking through Title 9, however, I ran across some other interesting laws. For instance, IC 9-21-11, the law relating to bicycles and motorized bicycles. For instance IC 9-21-11-12:
Sec. 12. A motorized bicycle may not be operated under any of the following conditions:
(1) By a person less than fifteen (15) years of age.
(2) By a person who has not obtained an identification card under IC 9-24, a permit under IC 9-24, an operator's license under IC 9-24, a chauffeur's license under IC 9-24, or a public passenger chauffeur's license under IC 9-24.
(3) On an interstate highway or a sidewalk.
(4) At a speed greater than twenty-five (25) miles per hour.
So a kid on a motorized bicycle can ride on a street, and even have a passenger, provided the bike has a second seat, but his grandfather may not do the same in his golf cart.

Back to the State Police bulletin. It concludes with a paragraph that begins:

One might think that police officers should have more pressing traffic enforcement issues that take priority over taking enforcement action against someone driving down a local street on a golf cart.
and ends:
[W]hile the Indiana State Police is not engaged in an active enforcement campaign to target the operation of golf carts on roadways, troopers will not turn a blind eye where violations of this nature are observed in the course of routine patrol.

Posted by Marcia Oddi on Tuesday, August 26, 2008
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In R.W., Sr. (father) and D.B.W.(mother) v. Marion Co. Dept. of Child Svcs., et al. , an 18-page opinion, Judge Friedlander writes:

Diane B-W. (Mother) and Richard W. (Father) appeal the termination of their parental rights in Marion Superior Court, Juvenile Division, to their respective biological children. They present the following restated issues on appeal: 1. Did the juvenile court commit reversible error when the presiding magistrate failed to sign the final order terminating Mother’s and Father’s parental rights? 2. Did the Marion County Department of Child Services (MCDCS) fail to prove by clear and convincing evidence the statutory elements required for termination of Mother’s and Father’s parental rights? * * *

In sum, we conclude the final termination order was not technically flawed on the basis that it lacked the magistrate’s signature. Additionally, the record reveals the MCDCS proved by clear and convincing evidence all the statutory elements required for the termination of Mother’s and Father’s parental rights to their respective biological children. The judgment terminating parental rights was not clearly erroneous, and therefore is affirmed.

NFP civil opinions today (1):

In Term. of Parent-Child Rel. of V.R. (minor) and Jimmy R. v. Lake Co. Office of Family and Children, et al. (NFP), a 15-page opinion, Judge Vaidik writes:

Jimmy R. (“Father”) appeals the involuntary termination of his parental rights to his daughter, V.R., claiming the Lake County Department of Child Services (“LCDCS”) failed to prove: (1) that the conditions resulting in V.R.’s removal or continued placement outside his care will not be remedied and that continuation of the parent-child relationship poses a threat to V.R.’s well-being and (2) that termination of his parental rights is in V.R.’s best interests. Concluding that the juvenile court’s judgment terminating Father’s parental rights to V.R. is supported by clear and convincing evidence, we affirm.
NFP criminal opinions today (1):

Kevin O. Chevrette v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 26, 2008
Posted to Ind. App.Ct. Decisions

Law - More on: US News Law School ranking system may be changed

If you read the entry earlier today with interest, you may want to check it again -- I've updated it several times now with more information.

Posted by Marcia Oddi on Tuesday, August 26, 2008
Posted to General Law Related

Courts - "Ever-More-Expensive Court Races Heading Higher "

Three of Indiana's five Supreme Court justices will be on the ballot this fall. But they do not have opponents. Instead, Indiana's justices are appointed by the Governor, from a list of nominees submitted to him by the Judicial Nominating Commission. After an initial two years, and then again every ten years, the names of the justices (should they decide to serve again) appear on the ballot and the voters may vote "Yes" or "No" on the question of whether they should be retained in office. This is the "Missouri Plan" - 16 states use some form of it.

In other states, appellate judges and justices run for office, just an any other candidate. Kathy Barks Hoffman of the AP reported yesterday on the ever-increasing costs of those court races. The report begins:

State courts across the country are caught in a high-stakes, high-priced fight between groups trying to get a handle on large damage awards and others who are concerned consumers and wronged employees are going to be left in the dust.

The struggle is being played out this year in states such as Michigan and Wisconsin, where races for spots on their respective Supreme Courts have drawn millions of dollars in contributions, much of it spent not by the candidates but by business groups, unions and trial lawyers.

"Wisconsin and four other Midwest states ... have become the epicenter of a spreading arms race between corporate interests, trial lawyers, ideological groups and political partisans who are committed to bending judges to their will," said a statement accompanying a report released earlier this year by the Midwest Democracy Network and Justice at Stake Campaign, a Washington-based judicial watchdog group. "It's time for a truce."

Given what's happening as November approaches in many of the 40 contested state Supreme Court races around the country, a truce looks unlikely.

Spending by judicial candidates for the nation's highest state courts races has gone up from $62 million raised between 1993 and 1998 to $165 million between 1999 and 2007, according to the report, raising questions about whether justices can remain impartial when so much money is spent to elect them.

To get around the problem, some states are considering publicly financing judicial races.

See also this ILB entry from Oct. 9, 2006, headed "Big Money and Special Interests Are Warping Judicial Elections."

Posted by Marcia Oddi on Tuesday, August 26, 2008
Posted to Courts in general | Indiana Courts

Courts - U.S. seeks clarity on muddy Rapanos ruling

SCOTUSBlog's Lyle Denniston has a long entry today that begins:

The U.S. government, arguing that the lower courts have fallen into confusion and disagreement over federal power to protect wetlands, has urged the Supreme Court to make clear what it meant in the “highly fractured” ruling two years ago in Rapanos v. U.S. (04-1034) — a significant decision on the scope of the Clean Water Act.
Here is an ILB entry from Sept. 22, 2006 on a 7th Circuit action on a case out of Wisconsin, U.S. v. Gerke Excavating, which had been remanded to the Circuit Court, post-Raponas.

Posted by Marcia Oddi on Tuesday, August 26, 2008
Posted to Courts in general

Ind. Courts - More on: "ACLU suit targets state welfare fixes"

This ILB entry from May 20th reported on a suit brought in Marion County by the ACLU.

Today the Indianapolis Star's Tim Evans reports on the filing of a second suit, under the headline: "LaPorte County suit seeks to halt welfare privatization: FSSA privatization effort has led to many losing aid, plaintiffs allege." The story begins:

Claiming Indiana's welfare privatization drive is hurting needy Hoosiers, eight LaPorte County residents who receive assistance through the Family and Social Services Administration are asking a judge to halt its rollout in their part of Northwest Indiana.

The suit seeking to block expansion of the state's $1.2 billion modernization project names Gov. Mitch Daniels, FSSA Secretary Mitch Roob and Zach Main, head of the agency's Division of Family Resources, as defendants.

In paperwork filed Friday, the plaintiffs asked the court to prohibit FSSA from expanding the project to the state's Region 3, which consists of LaPorte, St. Joseph, Lake and 10 other counties in the northwestern part of the state.

LaPorte Circuit Judge Thomas Alevizos has set a hearing for Sept. 2 on their request for a preliminary injunction.

From later in the story:
The LaPorte County suit is the second filed in connection with the FSSA project. In May, the American Civil Liberties Union filed suit in Marion County alleging problems with the project have cost some disabled residents food stamps and other benefits they need to survive.

The new suit contends the modernization rollout in other parts of the state -- which changes the way needy Hoosiers can apply for assistance -- has resulted in thousands losing food stamps, Medicaid or Temporary Assistance to Needy Families benefits at the same time assistance rolls are growing in sections of the state where the old system remains in place.

In particular, the suit notes, the number of applications rejected for failing to cooperate in establishing or verifying income and failing to complete a personal interview increased from 7,162 in May 2006 to 17,919 in May 2008 -- a jump of 150 percent.

The plaintiffs claim that many of the problems and lost benefits stem from changes that replace much of the face-to-face contact with state caseworkers who knew and worked with individual recipients -- the heart of the old system -- with a new intake process that relies heavily on privately run call centers and the Internet.

Posted by Marcia Oddi on Tuesday, August 26, 2008
Posted to Indiana Courts

Law - US News Law School ranking system may be changed [Updated]

The WSJ reports today, in a front-page story by Amir Efrati headlined "Law School Rankings Reviewed to Deter 'Gaming,'" that:

The most widely watched ranking of U.S. law schools may move to stop an increasingly popular practice: schools gaming the system by channeling lower-scoring applicants into part-time programs that don't count in the rankings.

U.S. News & World Report is "seriously" considering reworking its ranking system to crack down on the practice, says Robert Morse, director of data research at the magazine, who is in charge of its influential list.

Such a move could affect the status of dozens of law schools. It would likely reverse gains recently made by a number of schools that have helped their revenue by increasing their rosters of part-time students with lower entrance-exam scores and grade-point averages, without having to pay a price in the rankings.

In some cases the part-timers' course load is barely less than that of full-timers, and they are able to transfer into the schools' full-time programs in their second year. Statistics about second-year students' pre-law school scores also aren't counted in the rankings.

Counting part-timers would roil the law-school rankings, which have a big impact on where students apply and from where law firms hire. A number of law-school administrators interviewed about the potential change contend it could have another effect: narrowing a traditional pathway to law school for minorities and working professionals. Those groups often perform worse on the important Law School Admission Test, or LSAT, and schools could feel pressure to raise their admission thresholds.

A change in criteria would "catch the outliers but punish part-time programs that have existed forever and aren't doing it to game the system," says Ellen Rutt, an associate law-school dean at the University of Connecticut. If U.S. News makes the move, many schools with part-time programs would have a tough choice: Leave their admission standards for part-timers unchanged, which could hurt their rank, or raise the standards, likely shrinking the programs and cutting revenue.

The story includes a graphic on how some schools' rankings could be affected, but no Indiana law schools are included in the illustration.

[Updated at 11:15 am] A reader writes to point out this paragraph in the story, explaining how these rankings can have a significant impact:

Initially, "the effect of a drop in the rankings is psychological, but it can have real institutional consequences," says Bill Henderson, a law professor at Indiana University-Bloomington who tracks the legal job market. For some schools that fail to effectively manage their U.S. News ranking, the drop could cause a snowball effect over several years in which there is a "falloff in good applicants and eventually a tapering off of employers," he says.
See also this just-posted entry from the WSJ Law Blog. A quote:
These kinds of drops can put the jobs of law school deans in jeopardy. Nancy Rapoport, the former dean of the University of Houston Law Center, resigned in 2006 after the school had fallen from 50th to 70th in the span of a few years. (The school is now ranked 55th; Rapoport has moved on to teach at University of Nevada-Las Vegas.) In the 2009 rankings, Buffalo law school experienced the most precipitous drop in the rankings, from 77 to 100.
A front-page Indianapolis Star story in 2005 (quoted in this April 11, 2005 ILB entry) began:
[T]he latest ranking of the Indiana University School of Law-Indianapolis -- the state's largest of four law schools -- has plummeted from 63rd to a tie for 95th in the U.S. News & World Report graduate school listings.
This entry just posted on the Volokh Conspirary is also worth reading - he discusses "long established part-time evening programs."

More: See Brian Leiter's Law School Reports, here. A quote:

But including part-time students is also going to have pernicious consequences as well, given the way the US News tail wags the legal education dog. For many, probably most, part-time programs serve older, working students, who might not have time for fancy LSAT prep courses, but who bring levels of dedication, seriousness, and pertinent experience that enrich legal education and the legal profession. What a loss it will be if, out of fear of US News, schools start cutting back their part-time programs or rejecting these students whose numerical credentials might impede their crusade for a "higher ranking."

Posted by Marcia Oddi on Tuesday, August 26, 2008
Posted to General Law Related

Ind. Decisions - "Former Cal Twp. trustee must change attorneys"

Joe Carlson reports in the NWI Times:

GARY | A federal judge ruled that former Calumet Township trustee and political insider Dozier Allen cannot use the township's former attorney, Fred Work, as his personal defense attorney in a fraud case.

Work's history with the township conflicts with his interests in the Allen case, U.S. District Judge Paul Cherry ruled in Hammond.

Indiana rules of professional conduct for attorneys mandate that lawyers must be disqualified from cases in which their current and former clients have conflicting interests and refuse to sign waivers.

In this case, current Calumet Township Trustee Mary Elgin has refused to give Work permission to represent Allen, Hammond federal court records show.

"These ethical considerations outweigh and trump the right of Dozier T. Allen Jr. to continue to be represented by his chosen, preferred attorney, Frederick T. Work," Cherry wrote.

Allen already has retained an alternate defense attorney, former Gary Mayor Scott King. * * *

While Cherry agreed with Assistant U.S. Attorney Gary Bell's legal arguments, the judge chastised the prosecutor in a court opinion for waiting so long to bring the issue regarding Work's conflicts to light. The judge noted it will impose severe hardship on Allen.

"The United States Government was, or should have been, well aware of these ethical and legal concerns on Sept. 21, 2007, the day attorney Work filed his written appearance," Cherry wrote. "Yet the Government waited nearly 10 months to first call these concerns to the court's attention."

Posted by Marcia Oddi on Tuesday, August 26, 2008
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Park ban on sex offenders challenged: Man can't watch son play baseball" [Updated]

This report Aug. 9th in the Jeffersonville News & Tribune concluded:

Judges with the Jeffersonville City Court have twice denied exemption requests filed on behalf of [Eric] Dowdell. The case first came about when Dowdell was coaching his son’s team last summer, and they had a game scheduled in Jeffersonville. He no longer coaches the team.

Dowdell has the option to take the case to the Indiana Court of Appeals. Rose said he will talk to his client soon to discuss what steps to take next.

In a separate case, the constitutionality of the city’s ordinance is being challenged by another ACLU lawyer. A hearing is scheduled for Aug. 25.

Today Ben Zion Hershberg reports in the Louisville Courier Journal:
Prohibiting a man convicted of sexual battery 10 years ago from going to a Jeffersonville park to watch his son play baseball is irrational and unconstitutional, a lawyer told a Clark Superior Court judge yesterday.

The park rule imposed on Eric Dowdell and others by a city ordinance enacted last year "bans people who have had no offense in a park" and violates Dowdell's "rights to personal autonomy," said Ken Falk, legal director of the ACLU of Indiana.

Falk also told Judge Vicki Carmichael there is nothing to support an argument that Dowdell presents a particular risk to children in the park.

But Larry Wilder, the lawyer who wrote Jeffersonville's sex-offender ordinance, argued that cities have the authority to make laws protecting their citizens in city parks. Use of parks "is not a fundamental right and constitutional protections don't apply," Wilder said.

Dowdell, 36, of Clarksville also wants to use Jeffersonville parks to play basketball and baseball himself, watch Thunder Over Louisville, and take part in other lawful activities, Falk said in a court filing.

Carmichael, whose hearing considered the constitutional claims in the case, said she would issue a decision after Sept. 12, the deadline for the lawyers to submit final documents.

[Updated at 1:00 pm] See this story by Matt Thacker headed "ACLU challenges Jeffersonville's sex-offender ordinance" in the Clark County Evening News. A quote:
Dowdell has pleaded guilty to domestic battery and battery and faces charges of class D felony strangulation and class A misdemeanor domestic battery.

Falk argued that his history is irrelevant.

“He’s not even required to register (on the sex-offender list),” Falk said. “The state has determined that we don’t have to know Mr. Dowdell’s whereabouts.”

When asked in an interview if it would be constitutional for Jeffersonville to prohibit people currently on the registered sex-offender list from entering public property, Falk said that would not be constitutional either. He said doing so violates their “rights to personal autonomy.”

Wilder countered that “it is not a fundamental right to enter a park.”

The decision will have widespread effects. Falk said he has been contacted by other sex offenders in Jeffersonville who want the ordinance overturned, but he said he could not recall how many. He also said the ruling is important as other communities in Indiana are considering similar ordinances.

Posted by Marcia Oddi on Tuesday, August 26, 2008
Posted to Indiana Courts

Law - Still more on "Loan repayment assistance programs progress"

Updating earlier ILB entries on the John R. Justice Prosecutors and Defenders Act, Julianna Parker of the Norman Oklahoma Transcript reported Aug. 18th in a story headed "Law students being offered debt relief for picking public service roles:"

Law students who want to pay off debt quickly now will have an incentive to enter public service.

A measure recently signed into law will pay back up to $60,000 of debt for law school graduates who become prosecutors and public defenders for at least three years. * * *

The measure that creates the program, the John R. Justice Prosecutors and Defenders Act, is part of the Higher Education Opportunity Act signed into law Thursday.

Those taking advantage of the program would get $10,000 per year in debt repayment from the government, provided they stayed at least three years. The maximum pay-out would be $60,000.

"I think a lot of us in law school would like to be in public service, but when you look at all the loans you have to repay -- and hey, money's attractive to anybody," said Amanda Clark, second-year law student at OU.

Posted by Marcia Oddi on Tuesday, August 26, 2008
Posted to General Law Related

Ind. Courts - More on: "Fight delays manslaughter trial"

Updating this ILB entry from yesterday, Rebecca S. Green and Jeff Wiehe of the Fort Wayne Journal Gazette report today:

A brawl in a hallway of the Allen County Courthouse sent two people to the hospital, four people to jail and caused a nearly five-month postponement of a manslaughter trial Monday morning.

A Courthouse maintenance worker scrubbed blood off the tile floor and swept up clumps of hair outside the Allen Circuit Court room, while prosecutors and defense attorneys came up with a new date for William Shoemaker's trial on charges of voluntary manslaughter and criminal recklessness. * * *

The blood, hair and a lingering odor of pepper spray in the Courthouse hallway were the only tangible evidence of the fistfight that occurred about 30 minutes earlier when Shoemaker's family and friends gathered alongside the Garcia family outside the courtroom. Police said family members of the victim mistook one of Shoemaker's relatives for Shoemaker, which may have led to the fight. * * *

When Allen Superior Judge John Surbeck resumed the court session late Monday morning, both sides agreed to delay the trial until January.

While potential jurors were assembled on the first floor of the Courthouse, two floors away from the fight, the ruckus was audible to most in the expansive building and likely heard by the jury pool.

Surbeck said that could have cast doubt on any verdict by the jury and reset the trial to Jan. 26, with a pretrial conference in mid-December. The "extraordinarily unusual" commotion was unlike anything Surbeck had seen in his years around the Courthouse as either a judge or an attorney.

He was quick to offer praise to the Allen County police officers who provide security in the building and who broke up the fight.

Posted by Marcia Oddi on Tuesday, August 26, 2008
Posted to Indiana Courts

Monday, August 25, 2008

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

In US v. Arreola-Castillo (SD Ind., Judge Barker), a 13-page opinion, Judge Cudahy writes:

After a three-day trial, a jury convicted Jesus Arreola-Castillo of participating in a conspiracy to distribute more than 1,000 kilograms of marijuana. See 21 U.S.C. § § 841(a)(1), 846. Because he had already been convicted of three previous felony drug offenses, Arreola-Castillo received a mandatory minimum sentence of life imprisonment pursuant to the recidivism provisions of § 841(b)(1)(A). Arreola-Castillo now appeals his sentence. He argues that the mandatory minimum should not have been imposed because the sentencing judge failed to properly apply § 841(b)(1)(A) and because the government failed to comply with the procedural requirements set out in § 851. We find, however, that Arreola-Castillo’s sentence was properly imposed.

Posted by Marcia Oddi on Monday, August 25, 2008
Posted to Ind. (7th Cir.) Decisions

Environment - "Porter County braces for future in wind power"

Charles M. Bartholomew reports in the Gary Post-Tribune:

VALPARAISO -- Porter County is in the path of a new industrial wind that's blowing across northern Indiana, driven by funding from foreign-based energy companies.

Officials here are feeling the breeze in the wake of a statewide energy conference in June, according to Raymond S. Joseph in the Porter County Plan Commission office.

Porter County was one of 15 in the state cited at this week's Pinney Purdue Agriculture Field Day by Benton County extension educator Jimmie Bricker as having contacted his office to learn more about his county's wind turbine ordinance that is serving as a model for the rest of the state.

"I'm working on an ordinance using Benton County as a template, with bits and pieces from all over the country," Joseph said Thursday.

Bricker said Benton County is currently the site of two wind farm developments by BP Alternative Energy of Texas and California-based Orion Energy Systems that will raise about 650 of the three-bladed wind turbines above the county where less than 10,000 people live on 400 square miles.

Most of the eight energy companies he has dealt with are American subsidiaries of companies in Germany, Spain and other parts of Europe, which is where many of the makers of wind turbine parts are located, he said.

"The Benton County ordinance isn't as specific as I'd like. It's designed for large facilities. I'd like ours to address (smaller) commercial facilities, like the one near Indianapolis that's supplying 60 percent of the power for a warehouse operation," Joseph said.

He said he returned from the June 17 and 18 conference set on writing wind turbine zoning rules for Porter County after seeing a climate map of the state that put the southern townships square in the path of steady prevailing winds.

"It's coming. Porter County is prime," he said.

He said he also found phone messages from at least three energy companies seeking information on what the county could offer and might require of a wind farm development.

"One of them, Trade Wind from Kansas, is looking at 1,000 acres in Porter County, extending into LaPorte County," Joseph said.

At the Purdue Field Day, a LaCrosse-area farmer indicated Trade Wind had approached landowners there. Bricker advised him and his neighbors to form a group and get a lawyer, of which there are a growing number who specialize in wind farms, to negotiate the best deal.

From an AP story today in the Chicago Tribune:
LACROSSE, Ind. - A Kansas company that's considering building two wind farms in northwest Indiana will erect a wind-monitoring tower in LaPorte County within the next month.

Trade Wind Energy of Lenexa, Kan., will put up the tower, 197 feet high and 6 inches in circumference, outside LaCrosse to monitor wind speeds at various heights 24 hours a day for about two years.

The testing will determine if there's enough wind to warrant building a wind farm that might produce 200 megawatts per hour, said Paul Smith, a leasing specialist with Trade Wind Energy. The monitoring tower will be on a site that's leased.

"We believe there is. We've been studying this area now for eight months," Smith said. * * *

The state's first commercial power station fueled by the wind, the 130-megawatt Benton County Wind Farm about 60 miles south of Gary, went online in May. It generates enough power to light 43,000 homes.

Another Benton County wind farm, the 750-megawatt Fowler Ridge Wind Farm, will be one of the nation's largest when complete. A 400-megawatt first stage is expected to begin operating later this year.

At least four other Indiana wind farms are in the planning stages.

A 2006 study by the U.S. Department of Energy's National Renewable Energy Laboratory found that Indiana's winds could produce at least 40,000 megawatts of electricity, or more than twice the state's current generating capacity.

Readers may recall this ILB entry from last week, quoting a NYT story headed "In Rural New York, Windmills Can Bring Whiff of Corruption."

Posted by Marcia Oddi on Monday, August 25, 2008
Posted to Environment

Ind. Courts - "Fight delays manslaughter trial"

Rebecca S. Green of the Fort Wayne Journal Gazette reported early this afternoon in a brief story that begins:

A fistfight at the doors to an Allen County courtroom Monday morning caused a five-month delay in a voluntary manslaughter trial scheduled for this week.

The melee sent three people to the hospital and led to the arrests of four men listed as witnesses in the case. A court security officer also was inadvertently shot in the face with pepper spray as he attempted to help break up the fight.

More details will be posted in tomorrow's JG, but the reporter notes: "Because of the commotion, Allen Superior Judge John Surbeck postponed the trial until mid-January."

Posted by Marcia Oddi on Monday, August 25, 2008
Posted to Indiana Courts

Law - "E-book publisher to pay $50K to settle piracy claim"

Tom Spalding of the Indianapolis Star reports in a story that begins:

Web-based self-publishing specialist Author Solutions of Bloomington has agreed to pay $50,000 to settle claims that it had unlicensed copies of computer software installed on its computers.

The Business Software Alliance, a Washington, D.C.-based group that seeks penalties for computer piracy, said today that it settled with the company over the programs from Adobe, Microsoft and Symantec.
Advertisement

The violations occurred in "one of our companies prior to our ownership," said President and CEO Kevin Weiss, in a statement. Author Solutions agreed to cooperate with the BSA to resolve the matter, he said.

See the complete BSA press release here. Here is a quote:
“BSA’s settlement with Author Solutions illustrates that even a well-managed, reputable company needs to be fully attentive to software licensing requirements,” said Neil MacBride, BSA’s Vice President of Anti-Piracy and General Counsel. “It’s necessary for businesses to purchase licenses for all software installed on their computers. They need to pay as careful attention to their software management as they do to other aspects of their business. The lesson can sometimes be a hard one: it’s cheaper to purchase legal software and invest in software management than get caught by the BSA.”

BSA was alerted to the unlicensed software use by a confidential report made to BSA’s hotline, 1-888 NO PIRACY. Each year, BSA receives nearly 3,000 reports of software piracy to its website, www.nopiracy.com, and hotline. The majority of BSA’s leads come from current or former employees who had information relating to the unlicensed software activity.

Posted by Marcia Oddi on Monday, August 25, 2008
Posted to General Law Related

Ind. Decisions - Tax Court issued one Aug. 22

In Virginia Perry, et al v. Indiana Dept. of Local Government Finance, et al, an 11-page opinion, Judge Fisher writes:

Virginia Perry, Gregg Terhune, and other similarly situated individuals (the Petitioners) appeal the two final determinations of the Department of Local Government Finance (DLGF) approving Morgan County, Madison Township Board’s (Board) loan resolutions. The Petitioners allege that the DLGF’s final determinations are contrary to law, unsupported by the evidence, contrary to the weight of the evidence, arbitrary and capricious, and constitute an abuse of discretion. * * *

The Petitioners have demonstrated that they do not want to pay for additional firefighters or new firefighting equipment. They have not demonstrated, however, that the DLGF’s final determinations were not supported by substantial evidence or not in accordance with the law. As a result, the DLGF’s final determinations are AFFIRMED.[7]
________
[7] The Court is mindful of the political rancor surrounding this litigation. See supra n. 4. Nevertheless, it is not the function of this Court to determine whether Madison Township’s transition to a full-time fire department, or its purchase of additional vehicles and equipment, were good policies or bad policies. Rather, this Court can only decide whether the DLGF’s loan approvals were supported by substantial evidence and in accordance with the law.

Posted by Marcia Oddi on Monday, August 25, 2008
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 3 NFP)

For publication opinions today (2):

In Lowell J. Pflum v. Wayne Co. Board of Commissioners, an 11-page opinion, Chief Judge Baker writes:

Appellant-plaintiff Lowell J. Pflum appeals the judgment in favor of appellee-defendant Wayne County Board of Commissioners (the Board), claiming that the evidence was insufficient to support the conclusion that the Board’s improvement project had not resulted in the discharge or casting of surface water upon Pflum’s lot in accordance with the common enemy doctrine. Finding that the trial court properly applied the common enemy doctrine in determining that Wayne County (the County) did not collect surface water and cast it on Pflum’s property, we affirm the judgment of the trial court. * * *

In addressing Pflum’s claim that the trial court erroneously entered judgment for the Board because it misapplied the provisions of the common enemy doctrine, we initially observe that this doctrine declares that surface water which does not flow in defined channels is a common enemy and that each landowner may deal with it in such a manner as best suits his own convenience. Argyelan v. Haviland, 435 N.E.2d 973, 975 (Ind. 1982). These sanctioned dealings include walling the water in or out, diverting it, or accelerating its flow by any means. However, a landowner may not collect or concentrate surface water and cast it, in a body, upon his neighbor. This point is further clarified as throwing or casting surface water on one’s neighbor “in unusual quantities so as to amplify the force at a given point or points.” However, it is not unlawful to accelerate or increase the flow of surface water by limiting or eliminating ground absorption or changing the grade of the land. Id. And “it is one thing to grade a highway and cast off artificial water as a consequence of . . . grading, and quite another thing to change the natural flow, unite artificial channels, increase the volume of water, and cause it to flow upon private property in an increased volume.” Patoka Twp. v. Hopkins, 30 N.E. 896, 897 (Ind. 1892). * * *

For these reasons, the trial court properly determined that the Board was not subject to liability under the common enemy doctrine. The judgment of the trial court is affirmed.

In David L. Barlemay v. Nancy Witt f/k/a Nancy Barlemay , a 20-page opinion, Chief Judge Baker writes:
Appellant-respondent David L. Bartlemay appeals the trial court’s order finding him in contempt of court for allegedly violating previous orders stemming from the post-dissolution proceedings between David and appellee-petitioner Nancy Witt, f/k/a Nancy Bartlemay. Specifically, David argues that the trial court improperly used its civil contempt power to “order illegal and punitive remedies and by determining that findings of the court, entered six years before by a different judge, were incorrect.” We reverse and remand to the trial court with instructions to recalculate the attorney fee award.
NFP civil opinions today (0):

NFP criminal opinions today (3):

Curtis Palmer v. State of Indiana (NFP)

Thomas J. Stamey v. State of Indiana (NFP)

Willie Clark v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 25, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending August 22, 2008

Here is the Indiana Supreme Court's transfer list for the week ending Aug. 22, 2008. (I'm told a small clerical snafu held it up.)

The list includes the 5 transfers granted April 14th (described here and here), but no new grants in addition.

Over four years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on Monday, August 25, 2008
Posted to Indiana Transfer Lists

Environment - More on: "State leaders need to revisit concentrated animal feeding legislation"

The Fort Wayne Journal Gazette's August 9th editorial on the need to revisit concentrated animal feeding legislation used the proposed 4,000 hog farm in Allen County as an example. Today, this long report by Angela Mapes Turner reveals many more aspects of the Allen County story.

Posted by Marcia Oddi on Monday, August 25, 2008
Posted to Environment

Courts - "I think it's a Jerry Springer-type show masquerading as a court"

TV "courts" - the story today by Diane Krieger Spivak in the Gary Post Tribune is headed "TV justice not so sweet," and presents an interesting cautionary tale. The report begins:

SCHERERVILLE -- A disabled Schererville woman is accusing producers of a new courtroom TV series of seducing her into appearing on the reality TV show, coaching her to be confrontational and then setting her up to be humiliated before a national audience.

And Eileen Klapak says the $100 that "The Judge Pirro Show" paid her to drop her small claims suit in Lake County and appear on the show hardly makes up for the embarrassment she suffered during a 15-minute taping of the show last month. * * *

When the cameras started rolling, however, the mood quickly turned from friendly and supportive to angry and confrontational, Klapak said.

She said Pirro attacked her verbally, ridiculing her for hiring a contractor she didn't know, sitting idly by while the contractor slandered her, and repeatedly insulting her intellect.

"She called us both stupid and said we deserved each other and didn't award either one of us anything," Klapak said. "I was so upset I started crying hysterically. I think it's a Jerry Springer-type show masquerading as a court."

Posted by Marcia Oddi on Monday, August 25, 2008
Posted to Courts in general

Ind. Decisions - "Court upholds 42-year sentence for highway sniper"

The Court of Appeals August 21st decision in the case of Zachariah J. Blanton v. State of Indiana (NFP) is the subject of an AP story published in a number of Hoosier papers over the weekend. The Muncie Star-Press heads it "Court upholds 42-year sentence for highway sniper."

Posted by Marcia Oddi on Monday, August 25, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Thursday, Aug. 28th:

9:00 AM - State v. Kimco of Evansville, Inc. - As part of a road reconfiguration project, the State took a portion of property owned by Kimco and used as a retail shopping center, which impacted ingress and egress from the property. Following a jury trial, judgment was entered awarding damages, costs and interest to Kimco. The Court of Appeals affirmed, holding that Kimco was entitled to damages for its loss of access to an adjacent thoroughfare. State v. Kimco of Evansville, Inc., 881 N.E.2d 987 (Ind. Ct. App. 10/31/2007), vacated. (See ILB entry here - 4th case.) The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. For Appellant State of Indiana: David L. Steiner, Indianapolis, IN. Kimco of Evansville: Grard Carmody, Kelley F. Farrell, St. Louis, MO. R. Thomas Bodkin, Evansville, IN.

9:45 AM - John W. Miller v. State - The LaPorte Circuit Court ordered that Miller be placed in restraints during his trial and the Court of Appeals affirmed in an unpublished memorandum decision, Miller v. State, No. 46A04-0612-CR-696 (Ind. Ct. App. Apr. 15, 2008). Miller has petitioned the Supreme Court to accept jurisdiction over the appeal. For Appellant: John Pinnow, Greenwood, IN. For Appellee: Joby D. Jerrels, Indianapolis, IN.

Webcasts will be available here.


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

None scheduled.

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

This Monday, Aug. 25th:

2:00 PM - Commercial Warehouse & Cartage, Inc., et al, vs. Thomas & Jerri Shipp - Thomas Shipp was injured in his employer's warehouse when a forklift driven by Randall Hobbs, working for an independent contractor, ran over his foot. Thomas and his wife, Jerri, sued Hobbs and Hobbs's employer, Commercial Warehouse and Cartage, Inc. ("CWC"). A jury returned a verdict awarding Thomas $12 million in personal injury damages and Jerri $5 million in damages for loss of consortium. CWC and Hobbs jointly were found to be 30% at fault for the accident, meaning they were liable for $5.1 million of the total verdict of $17 million, with Thomas himself 30% at fault and Thomas's employer 40% at fault. On appeal, CWC and Hobbs first argue the trial court erred in instructing the jury that if it found Hobbs had violated certain OSHA regulations in his operation of the forklift, that "would constitute fault" to be assessed against CWC and Hobbs. The second issue is whether the trial court erred in refusing to instruct the jury that Hobbs had no duty to warn Thomas of dangers of which Thomas was aware. Finally, CWC and Hobbs contend that the $5 million awarded to Jerri for loss of consortium is clearly excessive. The Scheduled Panel Members are: Judges Barnes, Crone and Bradford. [Where: Indiana Court of Appeals Courtroom]

Posted by Marcia Oddi on Monday, August 25, 2008
Posted to Upcoming Oral Arguments

Sunday, August 24, 2008

Ind. Courts - AG files suit against Countrywide Mortgage, joining other states

A press release issued today by Attorney General Carter begins:

Indiana Attorney General Steve Carter has filed a lawsuit against the country’s largest mortgage lender, Countrywide Home Loans, Inc., and its parent company, Countrywide Financial Corporation. Carter alleges that Countrywide engaged in deceptive and misleading practices that led to borrowers obtaining potentially risky and costly loans. The lawsuit has been filed in Steuben County Court.

“A pattern of misleading and questionable practices has emerged from our investigation into home loans,” said Carter. “These unfair lending practices may have harmed thousands of people and, in turn, negatively affected our communities and neighborhoods throughout the state.”

Carter’s investigation revealed that homeowners were misled when they were told one thing about their loans while signing contracts that indicated other terms. The most common misrepresentations uncovered to date have been on 1) pre-payment penalty terms, and 2) the time period in which interest rates would be recalculated (resetting ARMs – adjustable rate mortgages). The company also utilized no-documentation loans where a borrower’s income was misrepresented on the loan documents. In one case a person’s income was stated as $14,000 per month when in actuality the person’s income was approximately $3,000 per month.

Carter alleges in the lawsuit that Countrywide:

  1. Provided financial incentive for employees and loan brokers acting as agents to sell loans with potentially risky features.
  2. Made deceptive or misleading representations or omissions on loan terms and charges including, but not limited to, the interest rate of loans, the presence or mechanics of the adjustable rate feature of the loans and the interest rate or material costs of the loans.
  3. Misled borrowers about the presence, significance and/or meaning of a prepayment penalty or the time period in which a pre payment penalty would apply.
  4. Inflated or fabricated a borrower’s income on a loan application allowing a borrower to be approved for loans he would have failed to qualify for otherwise.
For those who have Countrywide loans, the AG provides a useful Q&A about how the loans may be impacted.

Here is a brief Indianapolis Star story, posted late this afternoon.

Posted by Marcia Oddi on Sunday, August 24, 2008
Posted to Indiana Courts

Ind. Law - "Moped rider's Catch-22"; also, golf carts legal in South Carolina

Mopeds. Frank Gray of the Fort Wayne Journal Gazette has a column today, not about golf carts, but about another confused area of Indiana traffic law, that involving the moped. Some quotes:

The debate over what constitutes a moped and whether you need a license to ride one has been going on for years.

Judging from the case of Michael Barton, the debate still isn’t settled.

Barton rides a moped – yes, because he lost his license. He got his first DWI the night he graduated from high school in 1979 and later got others. He was caught driving a work truck with a suspended license, and that was turned into a lifetime suspension.

Today, Barton doesn’t drink anymore. He quit in 2000, and his life has changed dramatically. He has a nice house and a good job. It’s amazing how much money you have when you don’t drink, he says.

But he can’t drive, so he gets to work on a moped, a bike with a 49-cubic-centimeter engine. It is the type of bike you couldn’t get a license for if you tried because the Bureau of Motor Vehicles doesn’t license them.

Last week, though, on the way to work, he was stopped by a state trooper. Barton says he tried to explain that the bike was only 49 cc and didn’t need to be licensed, and that he didn’t need a license to drive it.

No, he was told, it’s a motorcycle, and Barton was given a ticket for driving an unlicensed vehicle and another ticket for being a habitual traffic offender. He was handcuffed and hauled to jail, where he spent 10 hours before his wife, who was able to pick up the moped, bailed him out.

He then hired a lawyer and went to court the next day, where the tickets were dismissed.

So it turned out OK for Barton, though he’s out the money for the lawyer and missed a day of work. But it makes him angry. The BMV won’t license bikes with 49-cubic-centimeter engines, so how can he get a ticket for driving one without a license plate?

He complained to the Indiana State Police but got a letter in response saying the trooper was operating within department standards.

Barton asks: "How can you get a ticket for riding a machine without a license when you can’t get a license for it?"

Golf carts. The above is reminiscent of the ILB entry August 20th, which references state police arrests of golf cart drivers, where the driver was licensed, but the golf carts were not (and apparently could not be) registered by BMV.

South Carolina's BMV does register golf carts, according to this story yesterday in the North Carolina State. From a side-bar:

New “street-legal” golf carts — also known as low-speed vehicles — with extra safety features that expand their range are showing up on city streets. The law says:

• Drivers must be at least 16 years old and hold a valid driver’s license.

• The cart must have a title, registration, proof of insurance and a license plate.

• According to the DMV application, low-speed vehicles “can only be operated on secondary roads having speed limits of 35 mph or less.” Secondary roads often have black street signs with a number on them, starting with an “S.”

• They are not allowed on interstates, because they can’t reach speeds of 45 mph, the minimum speed along interstates. They also are not allowed on state highways.

• Low-speed vehicles can run at night.

SOURCE: S.C. Department of Motor Vehicles

Posted by Marcia Oddi on Sunday, August 24, 2008
Posted to Indiana Law

Ind. Courts - Huntington Courthouse turns 100

Becky Manley reports in the Fort Wayne Journal Gazette:

As the Huntington Courthouse’s south clock tower’s gears ticked into the future, an antique cannon’s blast launched an event that celebrated the past.

The blast echoed through the courthouse and into the attic that houses the clocks, marking the start of the courthouse’s centennial celebration Saturday.

The ceremony included speeches from officials, patriotic music and the formerly undedicated courthouse’s official dedication. * * *

Humbert, an architect who has worked on courthouse projects, agrees a 100-year-old building can be a “maintenance nightmare,” but he also is quick to point out the building’s points of interest.

The courthouse still has a Grand Army of the Republic room, Humbert said, pointing to the room’s ceiling, which bears the stylishly painted names of Civil War battles.

Although the Grand Army of the Republic often paid for the construction of rooms in courthouses to use for meetings, Humbert said most courthouses have converted the rooms to other uses.

Each courtroom has an art glass dome and a larger art glass dome spans the center of the courthouse. Some gas light fixtures remain throughout the courthouse, though they have been retrofitted to accommodate electricity.

But Humbert’s favorite place in the courthouse is in its tower, accessible only by a narrow flight of winding wood stairs, a plank catwalk that crosses the art glass domes, and finally narrow metal steps that spiral into the tower, which Humbert said is about 60 feet above the ground.

Standing on the ledge outside the tower, Humbert gazes at the expansive view of Huntington as old-time music and the sounds of people talking drift up from the courthouse lawn.

“I’ve been up here quite a few times,” Humbert said.

Soon after, the ceremony began, and Huntington resident Jill Miller, shaded by a black umbrella, swayed to a montage of patriotic music.

“I love our courthouse. I think it’s the neatest old building,” Miller said.

Here are links to photos of the Huntington County Courthouse (currently 208-213) from the University Libraries Digial Media Repository.

Posted by Marcia Oddi on Sunday, August 24, 2008
Posted to Indiana Courts

Saturday, August 23, 2008

Environment - "Vote in Alaska Puts Question: Gold or Fish? "

William Yardley reports today in a story on page 1 of the NY Times, headlined "Vote in Alaska Puts Question: Gold or Fish?" It begins:

DILLINGHAM, Alaska — Just up the fish-rich rivers that surround this tiny bush town on Bristol Bay is a discovery of copper and gold so vast and valuable that no one seems able to measure it all. Then again, no one really knows the value of the rivers, either. They are the priceless headwaters of one of the world’s last great runs of Pacific salmon.

“Perhaps it was God who put these two great resources right next to each other,” said John T. Shively, the chief executive of a foreign consortium that wants to mine the copper and gold deposit. “Just to see what people would do with them.”

What people are doing is fighting as Alaskans hardly have before. While experts say the mine could yield more than $300 billion in metals and hundreds of jobs for struggling rural Alaska, unearthing the metals could mean releasing chemicals that are toxic to the salmon that are central to a fishing industry worth at least $300 million each year. And while the metals are a finite discovery, the fish have replenished themselves for millenniums.

“If they have one spill up there, what’s going to happen?” said Steve Shade, 50, an Alaska Native who has fished on Bristol Bay all his life, for dinner and for a living. “This is our livelihood. They’re going to ruin it for everybody.”

Rarely are Alaskans at odds over which of their natural resources they want to exploit. Oil? Timber? Minerals? Fish? While outsiders and some state residents may urge restraint, most people here typically just select all.

Yet the fight over what is known as the Pebble Mine is playing out as a war between economies and cultures, between copper and clean water, gold and wild salmon. Strange alliances and divisions have developed. Miners have been pitted against fishermen, as have Yupik Eskimos, Aleuts and Athabascan Indians and other Alaska Native people who want the jobs the new mine could bring versus those who fear it threatens thousands of years of culture.

Now the fight is expanding, from the bush to the ballot.

Posted by Marcia Oddi on Saturday, August 23, 2008
Posted to Environment

Ind. Courts - More on: Grant County Superior Court 2 closes doors

Updating this ILB entry from August 18th, Maribeth Holtz of the Grant County/Marion Chronicle Tribune had a story yesterday about a special meeting of the Grant County Commissioners on Thursday that included this information:

Also at the meeting, commissioners formally approved that Superior Court 2 will be housed on the sixth floor of the county complex.

The cost of the move would be about $751, Banter reported to commissioners. The cost would include $500 for computer set up, $211 for construction of an interior wall and $101 for more drywall and insulation.

The interior wall would be paid for out of the Grant County Sheriff’s Department budget; the rest would be paid for out of the commissioners’ budget. Bardsley said after the meeting that he probably would ask the Grant County Council for additional money to pay for the project.

Bardsley also said the Indiana Department of Health will conduct a study of air quality in the courthouse Monday.

“We want to know what’s going on in the building,” he said.

Judge Randall Johnson was at the meeting, noting again his health conditions because of mold in the courthouse. He said there are others who work in the building who also have problems but fear publicly saying something about it.

“The mold has been in this building for years — that’s my opinion; I can’t prove it,” Johnson said. “When the roof blew off two years ago, it’s been worse.”

Johnson said doctors told him mold is in his system, likely causing health issues. Glickfield said Johnson is the first who has publicly come to commissioners to discuss the problem.

“We as commissioners recommended quite some time ago that we build a new courthouse, and the council said no,” Glickfield said.

Here are links to 8 photos of the Grant County Courthouse (144-151) from the University Libraries Digial Media Repository.

Posted by Marcia Oddi on Saturday, August 23, 2008
Posted to Indiana Courts

Courts - Sarbanes-Oxley Upheld By Court as Not Violating Separation of Powers

A very interesting administrative law / separation of powers decision yesterday, of which we will not have heard the last. Here, from a story by David S. Hilzenrath in the Washington Post:

The plaintiffs in the lawsuit argued that the Sarbanes-Oxley Act violated the constitution's separation of powers by investing the Public Company Accounting Oversight Board with governmental authority while insulating it from presidential supervision and control. They also argued that the act subverted the president's power over appointments by having PCAOB members appointed by majority vote of the Securities and Exchange Commission.

Defenders of the Sarbanes-Oxley Act said in a court filing that the case against the law was tantamount to an assault on independent agencies -- a reference to such long-established regulators as the SEC, the Federal Trade Commission and the Federal Communications Commission, which are not directly controlled by the president.

Writing for the appeals court panel's majority, Judge Judith W. Rogers said the plaintiffs lost the bulk of their case more than 70 years ago when the Supreme Court upheld the constitutionality of independent agencies. In addition, the SEC, whose members are nominated by the president and confirmed by the Senate, has broad authority over the board, including the power to change its rules, limit its operations and block any sanctions it proposes against auditors, she said.

The Sarbanes-Oxley Act "vests a broad range of duties" in the accounting oversight board, but the board's "exercise of those duties is subject to check" by the SEC "at every significant step," Rogers wrote. She was joined in the majority by Judge Janice Rogers Brown.

In an impassioned dissent, Judge Brett M. Kavanaugh wrote that the Sarbanes-Oxley Act renders the PCAOB "unaccountable and divorced from Presidential control to a degree not previously countenanced in our constitutional structure."

Here is the 92-page opinion (including a 58-page dissent) in Free Enterprise Fund v. Public Company Accounting Oversight Board. See also this informative entry yesterday in the The Blog of Legal Times.

Posted by Marcia Oddi on Saturday, August 23, 2008
Posted to Courts in general

Ind. Law - More on: "Can you rely on the Indiana Code?"

Yesterday afternoon several of us, members of the Environmental Law Section of the Indiana State Bar Association, buttressed in the audience by other bar members and a number of professional law librarians, had the opportunity to testify before the highly-regarded legislative Commission on Courts. The topic was our concerns about the Indiana Register and Indiana Administrative Code, which as of July 2006 are only available online, and our concerns about the fact that not all the statute law in Indiana is compiled in the Indiana Code.

This may ring a bell with some of you who have read my Res Gestae articles from Sept. 2007 (Assuring authentic legal information in the digital age: Part II - The Indiana Register and the Indiana Administrative Code) and May 2008 (Can you rely on the Indiana Code? Part I -- Noncode sections). Our testimony was received with lively interest.

During my presentation on the Indiana Code, I gave a number of new examples (some of them sent to me by some of you readers*) of provisions which have substantive impact but are not in the Indiana Code. I plan to compile these into Part II of the article, and also to post them here within the next several weeks.
______
*No, I did not use your names.

Posted by Marcia Oddi on Saturday, August 23, 2008
Posted to Indiana Law

Ind. Law - "Wine-shipping rules still not settled"

I've been looking forward to the Fort Wayne Journal Gazette's Dan and Krista Stockman's take on the recent 7th Circuit ruling in Baude v. Heath. It does not disappoint. Read it here. Here is a "taste", in the section about the state’s desire for a face-to-face transaction requirement:

The wine lovers who brought the case argued the requirement amounted to unfair treatment of out-of-state wineries because the cost of traveling increases with the distance from Indiana. So while it’s relatively easy for someone in Fort Wayne to visit Satek Winery in Fremont, it’s much harder and more expensive for him to visit a winery in Napa before he can have wine shipped.

Here’s where the court’s thinking seems to go beyond the letter of the law and into the land of leaps of logic.

Because Indiana’s wineries are spread throughout the state, the court said, it’s not easy to visit many at once. California wineries, though, are close together.

“A connoisseur might well find it easier to visit and sign up at 30 California wineries than at 30 Indiana wineries,” the decision said. “So although it may be more costly for a person living in Indianapolis to satisfy the face-to-face requirement at five Oregon wineries than at five Indiana wineries, it is not necessarily substantially more expensive (per winery) to sign up at a larger number of west-coast wineries than at an equivalent number of Indiana wine producers.”

Talk about trying to twist logic to fit the outcome you want. We calculate that driving to 30 Indiana wineries would cost about $180 in gas at $4 a gallon, plus $300 for three days in hotels and $270 for meals on the road. That’s $750 for 30 wineries.

The cheapest flight we could find from Fort Wayne to Napa was $497 each (that’s with two stops), so you’ve already spent more and you haven’t gotten a hotel room or eaten yet. Driving there is even worse: $818 in gas, nine nights in hotels (just for the drive there and back) and $800 in food while driving. You’re looking at nearly $2,500 and haven’t rented a room in Napa or eaten in a restaurant there.

But even if it is more expensive, the court said, that’s not outweighed by the reduction in underage drinking the face-to-face requirement might make. Note the word might : Despite evidence showing that Internet age-verification techniques were six times more effective than face-to-face transactions, the court said the evidence it might not be very effective does not outweigh Indiana’s desire to keep alcohol away from minors, and overturned the lower court’s decision.

Pamela A. MacLean of The National Law Journal also has an article, dated August 25th, about the 7th Circuit opinion. It concludes:
Indiana revised its law in 2006 to require state residents to go to individual wineries, wherever they are in the country, to fill out an age-verification form. Prior to that, wineries had to ship to wholesale merchants and could not ship direct to consumers.

The legal burden in a facial challenge to the age verification requirement falls to the plaintiffs to show that wineries and consumers are disadvantaged by the requirement, Baude v. Heath, 07-3338.

The plaintiffs argued that while the Indiana law treated all vintners the same, as a practical matter, Indiana wineries had a competitive advantage because of the travel distance to fill out forms in California, Oregon and Washington wineries.

Easterbrook noted that while it was not much burden to sign age-verification forms in Michigan, Illinois, Kentucky or Ohio wineries, the plaintiffs have "their hearts set" on the boutique wines of California, Oregon and Washington.

He rejected the claim that Indiana consumers faced more of a burden traveling to California's Napa Valley to fill out the forms than to the various wineries scattered around Indiana.

"Indiana thinks that in-person verification with photo ID helps to reduce cheating on legal rules, for both buying wine and voting (and perhaps other subjects,)" wrote Easterbrook, citing the Supreme Court ruling that allowed voter ID checks earlier this year. [ILB - Crawford v. Marion County Election Bd.] If voter photo ID requirements can withstand a first amendment challenge, "it would be awfully hard to take judicial notice that in-person verification with photo ID has no effect on wine fraud and therefore flunks the interstate commerce clause," he said.

He said it is hard to know just how effective the ID checks are in thwarting teen drinking. Minors who "can get beer locally may not want to pay for costly, upmarket wine plus shipping charges," he speculated.

The court upheld the in-person age-verification terms of the 2006 law.

[Emphasis added by ILB]

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

Ind. Decisions - More on "Women Battling Infertility Find a Friend in the Court"

Updating this ILB entry from August 20th, about the 7th Circuit's July 16th decision in a case out of Illinois, Cheryl Hall v. Nalco Company, Findlaw columnist Joanna Grossman, a professor of law at Hofstra University has a new column headed "Can a Woman be Fired for Absenteeism Related to Fertility Treatments? A Federal Court of Appeals Says No." Grossman's lengthy article concludes:

Will Cheryl Hall Win on Remand?

While Hall won this round of her case - obtaining the important appellate ruling that fertility-treatment discrimination can be a form of pregnancy discrimination under the PDA - she still has obstacles to surmount. The grant of summary judgment to her employer was reversed, but now she must proceed to trial.

Let's assume for a moment that Hall's employer did just as she alleged - that is, it fired her for absenteeism related to infertility treatments. Is that an unlawful form of discrimination? It depends. If her employer fired her because it bore animosity or hostility against women because of their pregnancy status (including those actual pregnancy, potential pregnancy, or inability to achieve pregnancy), then the termination would certainly constitute unlawful discrimination.

But if her employer did not seek to penalize her because of her potential pregnancy, but simply disliked her absenteeism, what then? Under the PDA, women have no absolute right to accommodations for disability related to pregnancy or childbirth. Her employer could fire her for absenteeism - even if the cause was her fertility treatments - as long as it would have fired a man under comparable circumstances. Hall's ultimate burden will be thus to prove that they singled her out for adverse treatment because of her fertility treatment, or to allege and prove that a strict absenteeism policy has a disparate impact on pregnant or potentially pregnant women.

Regardless of whether Cheryl Hall is able to prove liability at trial, this appellate ruling vindicates an important right of gender equality. It is also an important reminder that the burden of juggling reproduction and work falls almost exclusively on women. The law should do more to accommodate that reality, but the Seventh Circuit's ruling is at least one step in the right direction.

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

Ind. Courts - "Sentenced to four years for burglary to steal urine"

Friday's Chesterton Tribune reports in a story that begins:

A Valparaiso resident was sentenced to six years after pleading guilty to a charge of burglary in connection with his forced entry in August 2007 of the Porter County PACT office to steal two drug-test urine samples, one of them his own.

Joseph William Klinkman, 24, who at the time of his arrest was residing at 252 Michigan St. in Valparaiso, was sentenced on Tuesday to six years in the Department of Corrections (DOC), two of those years suspended, by Circuit Court Judge Mary Harper, Deputy Prosecuting Attorney Cheryl Polarek told the Chesterton Tribune on Thursday. Klinkman was also sentenced to two years on probation following his release from DOC, Polarek said.

Posted by Marcia Oddi on Saturday, August 23, 2008
Posted to Ind. Trial Ct. Decisions

Ind. Courts - More on: Goats OK in Fortville backyard

Remember the story from earlier this month (see Aug. 13th ILB entry here). Today the Indianapolis Star reports under the headline "Town may change law to get rid of pet goats." From the story:

Fortville officials -- stymied in their efforts to stop a local couple from keeping two goats as pets -- are considering a new town law that might get the job done.

Officials in the Hancock County community earlier this year ordered Joshua and Sarah Brown to remove the two goats from their backyard. But the couple sued the town and won, pointing out that the town's ordinance against farm animals within town limits did not include goats on the list of prohibited animals.

Town Manager Joe Renner said the town's next logical step is to revise the ordinance.

The new ordinance would provide a longer list of prohibited animals. The town's current ordinance lists "cows, bulls, pigs, horses, chickens, bees or rabbits" as prohibited animals.

I wonder what the judge would make of that.

Posted by Marcia Oddi on Saturday, August 23, 2008
Posted to Indiana Courts

Friday, August 22, 2008

Ind. Decisions - Transfer list for week ending August 22, 2008

Oddly, the ILB has received no transfer list from the Clerk's Office this afternoon.

Odd because, as those who follow these lists will recall, last week's list, issued April 15, showed no transfers granted. Subsequently we became aware of 5 transfers (here and here) granted on April 14th and assumed they would be reported on today's transfer list.

Posted by Marcia Oddi on Friday, August 22, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

In Yolanda Rice, as Guardian and Next Friend of Dagoberto Lozez v. Albert Harper, et al. , a 16-page opinion, Judge May writes:

Dagoberto Lopez was injured while riding in a van driven by an employee of Kenny Industrial Services. Yolanda Rice, as Lopez’s guardian and next friend, filed suit against Kenny. Kenny filed a motion to dismiss, asserting the Worker’s Compensation Act provided Lopez’s exclusive remedy. The trial court granted the motion to dismiss, and we affirm. * * *

Pursuant to American Coal Mining and Chaney, Lopez’s injuries arose out of and in the course of his employment. Therefore, the trial court did not err by concluding the Worker’s Compensation Act applies and dismissing the case.

NFP civil opinions today (1):

In Hussein Mroueh and Phillip K. Dabagia v. Luke Oil, Inc. (NFP), a 2-1, 14-page opinion (including the 7-page dissent), Judge Najam writes:

At some point after all of the purchase documents were executed, M & D ceased operating the facility as a Citgo-branded facility. Thereafter, in September of 2003, Citgo informed Luke Oil of a breach in the branding obligations, and Citgo demanded Luke Oil pay $84,653.89 in damages. Luke Oil complied, requested reimbursement from M & D, and, after that request went unanswered, brought an indemnity suit against M & D, Dabagia, and Mroueh. * * *

Both of Mroueh and Dabagia’s arguments pertaining to the guaranties ignore Indiana’s well-established law of contract interpretation. Namely, the court will attempt to determine the parties’ intent when entering a contract from their expressions within the four corners of the written instrument. See, e.g., City of Lawrenceburg v. Milestone

On March 20, 2007, Luke Oil filed a motion for summary judgment in which Luke Oil argued that it was “entitled to reimbursement of the debranding obligation.” * * *

Here, the four corners of the personal guaranties plainly state that Mroueh and Dabagia each “guarantee the prompt payment at maturity of all indebtedness hereafter or heretofore so incurred by [M & D] to [Luke Oil] under the terms of any and all such agreements. * * *

The trial court’s grant of summary judgment to Luke Oil is affirmed in all respects. Affirmed.

DARDEN, J., concurs.
BROWN, J., dissents with separate opinion. [which begins] I respectfully dissent from the majority’s conclusion that the guaranties are unambiguous in favor of Luke Oil. I conclude that the guaranties are ambiguous and lack consideration and, thus, that the trial court erred by granting Luke Oil’s motion for summary judgment.

NFP criminal opinions today (8):

Robert J. King v. State of Indiana (NFP)

Randy L. Nelson v. State of Indiana (NFP)

Dennis W. Spratt v. State of Indiana (NFP)

Lok Mabbitt v. State of Indiana (NFP)

Anthoney E. Mayberry v. State of Indiana (NFP)

Ramon Harper v. State of Indiana (NFP)

Jerome Herrod, Sr. v. State of Indiana (NFP)

Jeffrey Robinson v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 22, 2008
Posted to Indiana Courts

Ind. Decisions - Gary Post-Tribune editorial about 7th Circuit wine shipping decision

Here it is, I laughed out loud:

Teens don't go online to get drunk on wine

The U.S. 7th Court of Appeals in Chicago is afraid teenagers are buying wine online.

Seriously.

The judges are so concerned they've upheld an Indiana law that requires people who wish to buy Indiana wines to meet face-to-face with winemakers who can then verify the buyer's age.

The court wrote that without face-to-face verification, it will "make it easier for minors to get wine by phone or Internet, and sales to minors will increase."

Unfortunately for both the court and for wine consumers, the judges' argument is entirely made up.

It's as if they made a decision based on the number of angels who can dance on the head of a pin.

The reason it's fiction is that there never has been one case in the entire United States of minors buying wine online in order to get "crunk," as the kids say.

Had the judges used common sense, they might have realized the folly of the scenario: Some minors want to get drunk in a couple of weeks. So they go online, where fine wines are sold. It's not as though these are cheap, fortified wines. They pay the going rate for a nice pinot noir, pay for packaging and wait several weeks to get snockered on an intense red with hints of oak, fruit and black pepper.

Anyone with a brain knows this doesn't happen in the real world.

Internet wine sales are being fought by lobbyists for retail alcohol outlets who fear losing business.

That's it. It's not about protecting kids. It's about protectionism in what's supposed to be a free-market economy.

The U.S. Supreme Court already has said Internet wine sales are constitutional.

Let's hope further appeals courts share that wisdom.

The most recent earlier ILB entry on Baude v. Heath is from August 16th.

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

Ind. Courts - Still more on: Report issued Monday by Delaware Circuit 2 Judge Richard Dailey

Updating this ILB entry from yesterday, today's Muncie Star-Press story is headlined "Report brings secret deal to light: Prosecutor Mark McKinney denies that justice was ever for sale." The story by Rick Yencer begins:

MUNCIE -- Justice was never for sale, Delaware County Prosecutor Mark McKinney maintained Thursday, in a response to a pair of local drug-dealing cases that saw charges reduced against defendants who forfeited money and property through agreements with the Muncie-Delaware County Drug Task Force.
Advertisement

"That never, ever happened," McKinney said. "I don't care how many cases there are."

Drug defendant and accused arsonist Adrian Kirtz -- seen as a key witness in the pending conspiracy-to-commit-bribery case against ex-county prosecutor Michael Alexander -- apparently wanted more in a confidential settlement last year than just splitting his money and property with the Muncie-Delaware County Drug Task Force.

Posted by Marcia Oddi on Friday, August 22, 2008
Posted to Indiana Courts

Thursday, August 21, 2008

Ind. Courts - Judge Felts pleads in OWI case [Updated]

Niki Kelly has just reported via the Fort Wayne Journal Gazette website:

Allen Circuit Judge Thomas Felts pleaded guilty Thursday in Marion Superior Court to a misdemeanor count of operating a vehicle while intoxicated, and received a one-year suspended sentence.

"You won't see me on this side of the bench again," Felts said to Marion Superior Judge William J. Nelson during the guilty-plea hearing.

Felts, 54, has entered an alcohol rehabilitation program and must continue that as a condition of his plea. He also was placed on probation for one year and is allowed to report by telephone to Marion County probation officers.

By agreement, his driver's license was suspended for 90 days, to begin Friday, and Nelson allowed Felts to drive himself back to Fort Wayne.

"Everybody is entitled to make a mistake," Nelson said during the hearing. "I commend you for being here today, doing the right thing like I knew you would."

[Updated at 4 pm] Judge Felts has just issued this statement.regarding today’s court hearing. I'm told there will be no further comment from Judge Felts.

[Updated 8-22-08] Here is toda'y's updated Kelly story in the FWJG.

Posted by Marcia Oddi on Thursday, August 21, 2008
Posted to Indiana Courts

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

In Michelle Wheeler v. Lawson (ND Ind., Judge Miller), a 24-page opinion, Judge Ripple writes:

Michelle Wheeler filed this action under 42 U.S.C. § 1983 against Ronald Lawson, individually and in his official capacity as an officer of the Starke County Sheriff’s Department. Ms. Wheeler alleges that Detective Lawson violated the Fourth Amendment, as made applicable to the States by the Fourteenth Amendment, by unlawfully arresting her without probable cause for maintaining a common nuisance. Detective Lawson filed a motion for summary judgment, which the district court granted. Ms. Wheeler timely appeals. For the reasons set forth in this opinion, we affirm the judgment of the district court.

Posted by Marcia Oddi on Thursday, August 21, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 10 NFP)

For publication opinions today (4):

In Wesley H. Fueger v. CNH America LLC, et al. , a 6-page opinion on a petition for rehearing, Sr. Judge Barteau writes:

Case Corporation, Case IH, Case Equipment Corporation, Case LLC, CNH America LLC (collectively “Case”) bring this petition for rehearing, requesting that we reconsider our conclusion that the trial court erred by granting Case’s motion to strike the expert affidavit of Walter Yeager (“Yeager”). We reaffirm our opinion on that issue, but grant Case’s petition for rehearing solely for the purpose of more fully explaining our decision on the issue of summary judgment. * * *

It appears from the testimony available to the trial court at the summary judgment stage that there was a question of fact regarding whether the skid loader was state of the art. Accordingly, Case was not entitled to summary judgment, and the trial court erred.

In Steven Rudnick v. Northern Indiana Commuter Transportation District , a 9-page opinion, Judge May writes:
Steve Rudnick sued his employer, Northern Indiana Commuter Transportation District (“the District”), under the Federal Employers’ Liability Act (“FELA”). The trial court granted summary judgment for the District because Rudnick did not substantially comply with the notice requirement of the Indiana Tort Claims Act. We affirm. * * *

We find the following issues dispositive: (1) whether Rudnick was required to comply with the Tort Claims Act’s notice requirements, and (2) whether Rudnick substantially complied with the notice requirements. * * *

Rudnick addressed due process in his reply brief, but did not respond to the District’s waiver argument or cite any facts demonstrating the District had unequivocal notice of the issue. Rudnick has waived his due process argument. * * *

Rudnick urges a lenient approach to substantial compliance because the District is a state agency and it did not make claim forms available. Notice to state agencies is governed by Ind. Code § 34-13-3-6. * * * This provision requires state agencies to make claim forms available; however, they are not required to take affirmative action to hand out forms to employees who may have claims. Rudnick never sought a claim form; therefore, we decline to reverse on the ground the District did not make them available. Rudnick did not notify the District of his intention to sue, and summary judgment for the District was appropriate.

In State of Indiana v. Jeanette Serowiecki , a 16-page opinion complete with graphics, Judge Friedlander writes:
The State of Indiana appeals the trial court’s grant of summary judgment in favor of Jeanette Serowiecki, as Trustee under the provisions of the Louise Sikora Declaration of Trust dated July 30, 1984, (the Trustee) on the State’s complaint to quiet title to an 18.6-acre tract of land in Newton County. On appeal, the State presents three issues for our review: 1. Did the State acquire legal title to the disputed property based on the existence of a fence along a ditch and the long-time assumption that the ditch and fence represented the true boundary line? 2. Did the State acquire title to the disputed property through adverse possession? Did the State acquire title to the disputed property under the doctrine of title by acquiescence? We affirm. * * *

We therefore agree with the Trustee that the State waived the argument of title by acquiescence by failing to first present it to the trial court.

Having concluded that the State did not acquire legal title to the disputed property because of a mistake as to the boundary line or under the doctrine of adverse possession, we affirm the trial court’s grant of summary judgment in favor of the Trustee. Judgment affirmed.

ILB Note: I've pulled this portion out of the above opinion for special highlighting. It begins on p. 14 [emphasis added]:
As a third argument in support of its claim that the State acquired title to the disputed land, the State asks this court to consider the doctrine of title by acquiescence, a theory the State admits it did not present to the trial court. Generally, a party may not raise an issue on appeal that was not presented to the trial court, even in summary judgment proceedings.

In Huntington v. Riggs, 862 N.E.2d 1263 (Ind. Ct. App. 2007), trans. denied, this court applied the doctrine of title by acquiescence in a case involving a boundary line dispute between property owners who had treated a county road as the boundary line between their properties although the road did not coincide with the actual boundary-line. Huntington v. Riggs was decided by this court on March 21, 2007, twenty-six days prior to the State filing its motion for summary judgment in this case. The State, however, did not argue application of the doctrine of acquiescence to the trial court. In its reply brief, the State points to sparse case law on the subject of title by acquiescence, see Huntington v. Riggs, 862 N.E.2d 1263, and the timing of the Huntington v. Riggs decision as excusing its failure to argue application of the doctrine because such “would not [have] be[en] a likely word search on Westlaw.” Reply Brief at 7.

The State’s failure to argue application of the doctrine of title acquiescence to the trial court is not excused by the fact that a search on Westlaw would not have revealed the Huntington v. Riggs decision. As recognized by the Huntington court, the doctrine of title by acquiescence was “especially popular during the turn of the century” but “disappeared out of case law altogether in the sixties and seventies.” Huntington v. Riggs, 862 N.E.2d at 1267. Even so, it remains that the doctrine is not new to the legal world. The State could have argued its application notwithstanding unawareness of this court’s recent analysis of the doctrine in Huntington v. Riggs. Moreover, we note that the State failed to present this argument to the trial court during the summary judgment hearing, which was held nearly three months after the Huntington v. Riggs decision. We therefore agree with the Trustee that the State waived the argument of title by acquiescence by failing to first present it to the trial court.

In The Paternity of Brennan McGuire-Byers; Raymond S. Byers v. Brennan McGuire-Byers, Mary S. McGuire - "As a necessary party, Mary was a party to the paternity action. It was within the trial court’s discretion to award retroactive child support; however, Mary, not Brennan is the proper recipient of those payments. The trial court did not abuse its discretion in ordering Raymond to pay approximately one-half of the attorney fees incurred by the Appellees. We remand for the trial court to determine the proper recipient of the payments incurred after 2005 and to determine appellate attorney fees. We affirm in part, reverse in part, and remand."

NFP civil opinions today (3):

Kevin M. Gertiser v. Ann T. Gertiser (NFP) - "Kevin Gertiser (“Husband”) appeals the decree dissolving his marriage to Anne Gertiser (“Wife”). He asserts his motion to correct error in the original decree should not have been deemed denied even though more than thirty days passed between the date of the hearing and the court’s ruling; the trial court should not have ordered him to co-sign a mortgage Wife would obtain after the dissolution; and Wife was not entitled to incapacity maintenance. We affirm in part, reverse in part, and remand."

Nailah Alaka-Muhammad v. Review Board of the Indiana Dept. of Workforce (NFP) - "Nailah D. Alaka-Muhammad appeals the determination of the Review Board of the Indiana Department of Workforce Development (“Review Board”), which affirmed the decision of the Administrative Law Judge (“ALJ”) dismissing her appeal for lack of jurisdiction. Alaka-Muhammad presents two issues for review, namely: 1. Whether the Review Board abused its discretion when it refused to accept additional evidence. 2. Whether the Review Board erred when it affirmed the dismissal of her appeal for lack of jurisdiction. We affirm."

The Involuntary Term. of Parent-Child Rel. of Ma.H., My.H. and Veronica R. v. Marion Co. Dept. of Child Svcs., Child Advocates, Inc. (NFP) - "Veronica R. (“Mother”) appeals the involuntary termination of her parental rights to her children, Ma.H. and My.H. As the juvenile court did not abuse its discretion when it denied Mother’s motion to continue and admitted several of the State’s exhibits into evidence, and its judgment is supported by clear and convincing evidence, we affirm."

NFP criminal opinions today (7):

Jeremy J. Sutton v. State of Indiana (NFP)

Michael Hamilton v. State of Indiana (NFP)

Diana Saylor v. State of Indiana (NFP)

Paul Harris v. State of Indiana (NFP)

Kenneth E. Hatchett, II v. State of Indiana (NFP)

Herbert S. Foust v. State of Indiana (NFP)

Zachariah J. Blanton v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 21, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "St. Joseph County judges defend proposed budgets as mandates"

Nancy J. Sulok writes today in the South Bend Tribune:

Lurking in the background of the court budgets for next year is that dirty word "mandate.''

The Superior Court and Circuit budgets came up for hearing Wednesday before the county commissioners, council and auditor.

John Marnocha, chief judge of the St. Joseph County Superior Court, repeated what he had written in a letter Tuesday to the budget group.

He said he doesn't think the auditor, council or commissioners "has the ability to reject a proposed court budget.''

The courts, he wrote, "are not a county department, we are an independent branch of government which the county has a legal obligation to fund.''

Circuit Court Judge Michael Gotsch made a similar comment during his budget session Wednesday afternoon. He said he has trimmed beyond "fat and are now into cutting muscle, sinew and bone.''

"I've tried to work this thing out,'' he said. "If you tell me 'no' I may just have to say we're going to do it.''

Monday morning, Probate Court Judge Peter Nemeth made the same reference to mandating the funds that he needs.

A point of contention in both the Superior and Circuit court budgets was the amount budgeted for jury expenses.

Marnocha asked for only $100,000 for jury pay in 2009, while Gotsch asked for nothing, either for petit jurors or grand jurors.

But both judges said they know the numbers are false. Marnocha said the Superior Court budget for jurors was $215,000 in 2007, but the actual cost was $325,597.

Gotsch said he would have to add $24,000 to his petit jury fund and $1,000 to the grand jury fund to make it a more honest budget for 2009.

That prompted county Commissioner Mark Dobson, R-1st, to say that he doesn't want "a smoke and mirrors'' budget but wants honest figures.

Both judges said they hope to save money next year by sharing jury pools. Marnocha said he and Judge Jane Miller will experiment with scheduling trials on the same dates in order to use a single pool of jurors for both trials. Gotsch said he will try something similar. * * *

Marnocha said each Superior Court judge is handling 153 percent of the statewide average for caseloads. He personally has handled 26 jury trials so far this year, he said.

Gotsch said he is on his ninth jury trial this year, with two more coming up. In a normal year he has five, he said.

The ILB has had a number of entries on judicial mandates over the years. Here are some of them.

I also wrote an article on judicial mandates in 1993, titled "Separation of Powers in the County Courthouse," concerning judicial mandates other than those involving court funding.

Posted by Marcia Oddi on Thursday, August 21, 2008
Posted to Indiana Courts

Ind. Law - More on: "Red light camera push starts again"

Updating this ILB entry from April 18th, an editorial today in the NWI Times is headlined: "Green light to cut spending, but not to red light cameras." Some quotes:

Red light cameras will get another look from the Indiana General Assembly next year, but not as a way to improve safety.

What has driven communities like Hammond to consider installing these cameras at traffic lights is to generate revenue. The idea is to use technology to photograph the license plates of offenders so the owners of those vehicles can be sent traffic tickets in the mail.

It's an interesting idea, but not a good one.

Red light cameras aren't currently set up to photograph the driver behind the wheel, so determining who actually committed the offense still requires a human -- a police officer, not a camera.

Because of Hammond's zeal for these cameras, which prompted requests by interested legislators, Indiana Attorney General Steve Carter was asked to render an official opinion on whether they are legal.

Carter's answer is that they aren't legal yet.

Three years ago, the General Assembly crushed a bill to legalize the red light cameras. The bill got only 17 of the 51 votes needed in the House.

State Sen. Earline Rogers, D-Gary, said the tax caps that have put the squeeze on municipal budgets are a good argument to reconsider the legislation. * * *

The pursuit of revenue should not be a driving force behind the push to authorize municipalities to install red light cameras.

An argument can be made for safety, but coveting the revenue could jeopardize safety down the road by officials wanting to shorten the yellow light to increase revenue from each red light camera at some point in the future.

The property tax caps that are curbing municipalities' spending are there for a reason. They are in place to force local governments to learn to live within their means. Tightening the belt, not installing red light cameras, is the answer.

Posted by Marcia Oddi on Thursday, August 21, 2008
Posted to Indiana Law

Ind. Courts - More on: Report issued Monday by Delaware Circuit 2 Judge Richard Dailey

Updating this ILB entry from Aug. 19, Rick Yencer reports today in the Muncie Star-Press in a story that begins:

Delaware County judges unanimously approved new rules governing civil drug forfeitures Wednesday, two days after Circuit Court 2 Judge Richard Dailey found County Prosecutor Mark McKinney committed fraud on the court in his handling of those cases.

"This is going to make everything accountable and the money will go according to statute," said Circuit 1 Judge Marianne Vorhees, the local court system's presiding judge. "Everyone appreciate Judge Dailey's work."

The new rules end a practice during the administrations of McKinney, who took office last year, and his predecessor as prosecutor, Richard Reed, of allowing deputy prosecutors to handle civil forfeitures -- along with using confidential agreements, abandoned property affidavits and other means -- to seize and distribute money and property from accused drug dealers.

A second story today by Rick Yencer is headed "McKinney says he's target of 'revenge and retaliation'". It ebgins:
Delaware County Prosecutor Mark McKinney said Wednesday he was the target of "revenge and retaliation" for attempting to "clean up" the local justice system.

The prosecutor's comments came two days after Delaware Circuit Court 2 Judge Richard Dailey issued findings that McKinney's actions in handling drug forfeiture cases had been "purposeful" and "deceitful" and "willfully violated a court order."

In a statement e-mailed to The Star Press, McKinney referred to the judge's findings as a "press release."

"We certainly will be challenging these findings on a number of grounds, both procedural and substantive," the prosecutor said. "The fact that the judge refused to acknowledge his own responsibility in these matters reveals a great deal."

Dailey forwarded his findings to the Indiana Supreme Court's disciplinary commission, which had earlier received a complaint from Mayor Sharon McShurley about McKinney's handling of forfeiture cases.

Delaware County judges wouldn't offer any opinion on McKinney's conduct or future Wednesday after they approved new rules for civil drug forfeitures drafted by Dailey.

Posted by Marcia Oddi on Thursday, August 21, 2008
Posted to Indiana Courts

Ind. Law - More on "Digital billboard gets nod from zoning board"

Updating this ILB entry from August 13, Jeff Swiatek of the Indianapolis Star reports today:

The city has reversed a zoning variance granted to Lamar Advertising last week to build the first digital billboard in Marion County.

The Metropolitan Development Commission, acting as a zoning appeals board, voted 7-0 Wednesday to deny the variance to the national billboard giant to convert one of its billboards near Keystone at the Crossing into a digital format. * * *

The commission's action reverses an earlier zoning board approval of the variance Lamar sought to turn one side of its billboard at White River and East 86th Street into a digital format. * * *

Opponents, including neighborhood groups, who addressed the commission said the digital sign would distract motorists and that Lamar doesn't deserve a variance from the county ordinance that bans digital billboards not located on a business's property.

At least six City-County Council members submitted letters to the commission voicing opposition to the digital sign on 86th Street, said commission spokesman John Bartholomew. The 86th Street board currently is equipped with mechanical louvers that display three messages in succession.

Digital boards are expensive, costing up to $500,000 each, but advertising companies can reap more revenue from the signs because they typically can display four to six messages every minute.

Several digital boards already have been built in surrounding counties.

Also according to the story, "Lawrence's zoning board [has] approved conversion of two billboards along I-465 into digital formats. Those boards, operated by Lamar and Lightpoint Impressions, are on the west side of I-465 near East 46th Street."

Posted by Marcia Oddi on Thursday, August 21, 2008
Posted to Indiana Law

Wednesday, August 20, 2008

Ind. Decisions - "Women Battling Infertility Find a Friend in the Court"

That is the headline to a column (Work and Family) in the Wall Street Journal. written by Sue Shellenbarger. Here is the link, but I can't tell if it is generally available. Here is a quote:

In the first decision of its kind at the federal appeals-court level, a three-judge panel in Chicago found women who need time off work for infertility treatment may invoke the Pregnancy Discrimination Act as potential protection against adverse action. The ruling came in a case involving Cheryl Hall, a secretary who was laid off after taking time off for in vitro fertilization, then asking for more. Without ruling on the merits of her case, the court last month set a precedent by giving Ms. Hall a green light to sue her former employer for pregnancy-related bias. * * *

The ruling suggests women will have to worry less about the "repercussions of taking time off for IVF," says Eugene Hollander, Ms. Hall's attorney. A spokesman for Ms. Hall's former employer, Nalco, declined to comment on the case, but it said the company is committed to treating all employees fairly. Nalco is seeking a re-hearing before a full 11-judge panel of the court. While the decision applies only in Indiana, Illinois and Wisconsin, it could influence other courts or, if a conflict arises, trigger a Supreme Court petition.

Here is the July 16th 7th Circuit opinion, in a case out of Illinois, Cheryl Hall v. Nalco Company.

Posted by Marcia Oddi on Wednesday, August 20, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit issues one Indiana decision today

In US v. Terry L. Reed (ND Ind., CJ Miller), an 11-page opinion, Judge Manion writes:

During interrogation by police, Terry Reed claimed he had no authority to permit a search of a dwelling he apparently shared with his girlfriend. After he was arrested on an outstanding warrant, his girlfriend consented to a search that produced a weapon and drugs. Reed was convicted by a jury of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and being a drug user in possession of a firearm in violation of 18 U.S.C. § 922(g)(3). Reed appeals the district court’s denial of his motion to suppress, claiming that the search violated the Supreme Court’s holding in Georgia v. Randolph, 126 S.Ct. 1515 (2006). He also challenges the district court’s rejection of a proposed jury instruction. We affirm. * * *

The police officers’ search of 4009 Bonfield did not violate the principles set forth in Randolph, and therefore the district court properly denied Reed’s motion to suppress. Regarding the jury instructions, the district court did not err in denying Reed’s proposed instruction because the instruction given properly informed the jury of the controlling law and instructed the jury on Reed’s theory of defense. Accordingly, we AFFIRM.

ROVNER, Circuit Judge, concurring. [the dissent begins I agree both with the result and the bulk of the reasoning in this majority opinion. I object only to the statement that a valid arrest eviscerates a resident’s objection to an officer’s request to search made while that resident was present on the property.

Posted by Marcia Oddi on Wednesday, August 20, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

In Barbara Pettineo v. Crown Point Comm. School Corp. (NFP), an 8-page opinion, Judge Kirsch writes:

Barbara Pettineo appeals the Indiana Worker’s Compensation Board’s (the “Board”) ruling and award, raising the following restated issues on appeal: I. Whether medical evidence established that Pettineo would require on-going medical care to reduce and/or limit the amount and extent of her impairment II. Whether the Board erred in ruling that Pettineo’s employer is not responsible for paying medical expenses incurred after December 9, 1999. * * *

We reverse and remand with instructions to amend the findings to reflect the medical evidence expressed above and to institute an award that reimburses Pettineo for medical treatment obtained after December 9, 1999.

NFP criminal opinions today (2):

Darren E. Dugger v. State of Indiana (NFP)

Fred Winfield v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 20, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Carroll County judges' 2009 spending requests

Today's edition of the weekly Carroll County Comet reports, in a story by Debbie Lowe:

Carroll County Council met Friday for a second day of 2009 budget hearings. Judges from both courts were among the department heads to present 2009 spending requests. One of the two was adamant there would be no reductions to his requests.

Carroll Superior Court Judge Jeffrey Smith, who is running unopposed for another six years in office this fall, presented his spending plan to the council and indicated he is not willing to negotiate line item increases. He explained salary increase requests were based on what court employees would have made had they been given raises for the past five years, plus a raise for 2009. He said all spending requests were based on five years' expenditures. The budget request amount was $18,606 more than was appropriated in the 2008 amended budget.

Council member Carl Abbott said there would be no more income for the county to spend in 2009 than there was in 2008. He said the council did not chastise any department by not granting line item increases, however all requests could not be filled.

"That's my only response," he said.

Smith said the goal for the home-detention program was to be self-sufficient, however an income reduction is expected for the fund because neighboring counties are no longer using and paying for Carroll County services. He said a personnel shift as a result of attrition would help the program's financial situation.

Circuit court judge Donald Currie, after presenting a circuit court budget which was $25,816 more than the 2008 appropriation, was questioned about the need for the level of public defender and indigent counsel spending request from joint courts.

"Are we making a good attempt to determine if people really deserve a public defender?" asked Ann Brown.

Currie said defendants swear under oath and their word had to be taken as truth. He added however that he questions them when he believes a full accounting of their resources was not given.

The total requested, including increases, for the public defender position funded through joint courts was $85,970, $15,000 for the indigent counsel/part-time and $77,000 for additional pauper counsel. The total increase for joint courts from the 2008 amended appropriated budget was $145,778.62.

Currie said there were plans to re-establish a Public Defender Council, which would provide 40 percent reimbursement of the cost of public defenders hired if requirements were met. (According to the Indiana Public Defender Commission Non-Capital Reimbursements chart located on the Web site, http://www.in.gov/judiciary/ pdc/, dated June 26, 2008, Carroll County received $134,854 in public defender cost reimbursement from the state, beginning in 2001 until the county public defender commission was dissolved in 2006.)

A public defender commission board would be established to set the salaries for public defenders among other duties which include standard and program requirement adherence and monitoring. Currie said two of the threemember board would be appointed by the judges and one by county commissioners.

Ashby asked Currie to review "substantial hardship standards" as adopted by the Indiana Public Defender Commission. He said the standards were developed to guide judges to make more informed decisions about which defendants qualify for the taxpayer-funded free service.

"We have borrowed $1.3 million this year," Ashby said. "I'm really concerned about making it all work."

Brown questioned Currie about the significant raises for both courts' employees. Currie requested a $6,164 raise in salary for the chief court reporter in circuit court, a $5,362 increase for the deputy reporter and a $4,540 increase for the bailiff in circuit court. The probation secretary's salary request increased approximately $5,898.

"We depend on taxpayers to fund these things," she said. "Some of them have not had raises either."

"How can you ask people to do that?" she added.

Currie responded that good and competent court reporters are leaving. He said the court bailiff "is making just over minimum wage."

Currie agreed to match the zero appropriation in the 2008 amended budget for per diem petit jurors, per diem/grand jurors, jurors meals and lodging and jury postage, thereby reducing the request increase to $114,278.62.

It should be noted each court has a separate budget and the two judges manage the joint courts budget together.

Recall that the ILB had a number of entries earlier this year concerning a dispute about the 2008 amended budget.

Posted by Marcia Oddi on Wednesday, August 20, 2008
Posted to Indiana Courts

Law - Legal resumes of potential vice presidential candidates

American Lawyer has a story looking at the legal resumes of potential vice presidential candidates. For examples:

[Evan] Bayh, 52, started his legal career at the University of Virginia's law school. He clerked for U.S. District Court Judge James Noland in Indiana before joining Hogan and Hartson in Washington for a year. Bayh then hopped to Birch Tabbert & Capehart to work with his father, former U.S. Sen. Birch Bayh, for another year before heading to Indianapolis law firm Bingham, Summers, Welsh and Spilman (now Bingham McHale). Between his tenure as governor and senator, in 1997-1998, Bayh was also a partner at Baker and Daniels.

Posted by Marcia Oddi on Wednesday, August 20, 2008
Posted to General Law Related

Ind. Gov't. - Still more on: "Indiana taxpayers contribute millions to lawmakers' generous pension plan"

Updating this ILB entry from August 15th, the Fort Wayne Journal Gazette has an editorial today headed "In a different pension class." Some quotes:

Are you among the growing number of workers whose employer does not offer a pension plan or whose employer has frozen existing benefits?

Don’t expect your state legislators to feel your pain. Their pension plans are in excellent shape thanks to the 4-to-1 match Indiana taxpayers have been contributing since 1992. And don’t feel sorry for the lawmakers when their plans are pared down, effective Jan. 1. The new plan is still far more generous than what almost all other workers enjoy.

Details about how the generous perk has accumulated are now available only because the information was leaked to the Indianapolis Star. Several years ago, legislators adopted a law keeping confidential specific information about their publicly funded retirement benefits.

What the leaked information revealed were benefit packages for part-time work far exceeding anything found in the private sector. For the past 16 years, the state has been kicking in a contribution equal to 20 percent of a legislator’s salary – compared to private-sector contributions that generally don’t exceed 3 percent. * * *

The generous packages represent the consolation prize lawmakers awarded themselves in lieu of raises in 1989. With bipartisan support, they created the 4-to-1 match, and it was finalized three years later. That didn’t eliminate their complaints about an $11,600 base salary, however. So in 2007 they made a grand show of cutting their pension benefits – while increasing their pay. * * *

What they did was to almost double their base salaries but cut the 4-1 pension match to 2-1 – a hit that won’t be terribly noticeable. Under the old plan, taxpayers’ 20 percent contribution amounted to $2,320 of the $11,600 base. Effective next year, taxpayers will contribute about 9 percent of the $22,600 base salary – or $2,034. [ILB - see below]

In addition, lawmakers tied their salary increases to the average raise given every year to state employees of similar salary brackets. That means senators and representatives will never again find themselves in the uncomfortable position of voting themselves a raise.

This is not quite correct. As the ILB pointed out in the Aug. 15th entry:
after Dec. 31, 2008, "salary" for purposes of computing the pension benefit, includes (1) salary, (2) per diem, and (3) leadership allowances.

Posted by Marcia Oddi on Wednesday, August 20, 2008
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Law - Still more on: "Vanderburgh commissioners pass abortion regulations"

Updating this ILB entry from August 16th, Thomas B. Langhorne of the Evansville Courier & Press reports today:

In remarks alternately apologetic and bristling with defiance, the Vanderburgh County Commissioners told a packed meeting room Tuesday night they regret passing an abortion-related ordinance without public input.

But Commissioners President Jeff Korb, Bill Nix and Troy Tornatta declined to rescind the ordinance, saying after about an hour of public comment that they had heard nothing to change their minds.

Again, the issue of whether the commissioners may have violated the open meetings law is not directly addressed.

Posted by Marcia Oddi on Wednesday, August 20, 2008
Posted to Indiana Law

Ind. Decisions - Bloomington doctor fined for tossing patient records in open trash bin

From the AP:

A physician who dumped more than a dozen boxes filled with patients' sensitive medical records in the trash has been fined $1,250 by state officials.

Dr. J.B. O'Donnell agreed to the fines and promised to post information about the possible security breach on his Web site for 30 days. He also agreed to be more diligent about patients' security in the future and to quickly notify the state attorney general's office if he commits another potential security breach.

"He's done what he needs to do, but if he does this type of thing again he will be in a lot more trouble, and the fines will be much larger," said Elizabeth Sutton, the paralegal with the state office who handled the case. The agreement was filed Aug. 8 in Monroe Circuit Court.

Last October, boxes filled with personal patient records tucked inside manila envelopes were found spilling out of an open-lidded trash bin behind O'Donnell's Bloomington office. The records contained patients' names, addresses, birth dates, Social Security numbers, marital status, birth control methods, places of employment and insurance information.

Posted by Marcia Oddi on Wednesday, August 20, 2008
Posted to Ind. Trial Ct. Decisions

Ind. Law - Pressure for allowing golf carts on public streets continues

Monday the ILB posted this entry, which we titled "State police say golf carts are illegal on city streets, period." The story from the Vincennes Sun Commercial reported that "Sgt. Todd Ringle, a spokesman with the Indiana State Police Post in Evansville, said golf carts are illegal on public streets." The reason, he said, was because they are not registered - i.e don't have license plates.

The ILB asked: "State police patrolling city streets, at least in Lebanon and Vincennes; who is watching the highways and interstates?" A reader wrote to ask: "Are they using the Mustangs for this?"

Another reader: "So who do you think will offer legislation next year about this? While it is becoming a huge issue in many communities, this is exactly the kind of issue that they hate to take on because it makes them look so silly . . . "

I personally don't think so, I think legislators will recognize this as an important issue to many voters, especially those in smaller Indiana communities and among older voters. It has become more pressing because of soaring gas prices and the high cost of everything. Witness the number of Indiana communities considering the question. Other states have addressed this issue and allow golf carts at least on residential streets; Indiana's state law needs to be made clear.

There have been at least two more stories this week on this topic.

Dave Martin of the Goshen News reported:

MIDDLEBURY, Ind. — Two weeks ago, Town Council members asked for public input on the issue of whether an ordinance should be drafted to allow the use of golf carts on the public streets in Middlebury.

Councilman Jack Kortie, who favors the use of carts on the town’s streets, told his council cohorts Monday that he received a response on the issue greater than any other matter since joining the council. * * *

The council had said that if significant response were received, the panel would hold a public hearing on the golf cart issue. However, Kortie said after Monday’s meeting that the council is continuing to study the issue and is awaiting a court decision on an Indiana case involving a golf cart, so the issue won’t likely be decided soon in Middlebury. * * *

[Town manager Lowell] Miller had looked at golf cart use in other Indiana towns and at Indiana statutes related to the issue. He told the panel two weeks ago that golf carts are considered moving vehicles and state statutes place “significant restrictions” on what must be included in any town ordinances relating to golf cart use on streets and highways, he said.

For example, before carts can be used on streets and highways, they must be registered as moving vehicles and undergo safety inspections. * * *

Councilman Dan Frederick quoted a state statute prohibiting the operation of golf carts on state highways where the speed limit is at least 35 miles per hour.

Miller said that a Nov. 13 trial date had been set on a golf cart case in Lebanon where a cart driver was ticketed by the Indiana State Police for having no registration for his cart while operating it on a city street there as opposed to a state highway. The driver is challenging the state police officer’s authority in that situation. * * *

Resident James Markley said that carts would be much safer to operate on the streets than “low-slung bicycles,” as long as the carts have proper lights and signals installed.

Parks and Recreation Manager John Stout said he opposes golf carts, or any motorized vehicles, on the town’s bicycle and pedestrian path. Councilman Dan Frederick assured Stout that the council would not allow carts on the path. [Emphasis added by ILB]

The ILB would like to know more about the trial set for Nov. 13 in Lebanon.

The Elkhart Truth also had a story this week about the Middlebury Town Council meeting.

Posted by Marcia Oddi on Wednesday, August 20, 2008
Posted to Indiana Law

Tuesday, August 19, 2008

Ind. Decisions - Even more on "Supreme Court hears arguments in Jeff Pelley case" [Updated]

Updating this ILB entry on the oral arguments held last Thursday, Aug. 14th, in the case of Robert Jeffrey Pelley v.State, the South Bend Tribune is now reporting at 1:25 pm that transfer has been granted.

[Updated at 4:30 pm] Okay, I just got a notice from Supreme Court Administration that Robert J. Pelley v. State was (also) granted transfer August 14th. No explanation of why the delay in notifications. See the rest of the transfers here, from earlier today.

Posted by Marcia Oddi on Tuesday, August 19, 2008
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Decisions - 7th Circuit issues one "Indiana" decision today [Updated]

In Angela Tyson v. Gannett Co (Southern District of Illinois [sic], Indianapolis Division—Richard L. Young, Judge), a 7-page opinion, Judge Coffey writes:

Plaintiff Angela Tyson sued her employer Gannett Company, Inc., alleging that it had discriminated against her on the basis of her race—she is black—and disability and further retaliated against her for filing a disability charge of discrimination by refusing to let her return to work when she wanted to after she had suffered a back injury. During the course of the litigation, she abandoned all avenues of relief except for her two race discrimination claims brought under 42 U.S.C. § 1981 and 42 U.S.C. § 2000e-2. The district court granted summary judgment in favor of Gannett on both claims. The court found that Tyson failed to make out a prima facie case because she failed to present sufficient evidence to establish that a similarly situated white employee was treated more favorably. We affirm.
[Updated 8/25/08] The Court has posted this correction.

Posted by Marcia Oddi on Tuesday, August 19, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 9 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Term. of Parent-Child Rel. of T.K. and J.S. v. Johnson Co. Dept. of Child Svcs. (NFP) - "Jessica S. (“Mother”) appeals the involuntary termination of her parental rights, in Johnson Circuit Court, to her son, T.K. On appeal, Mother claims there is insufficient evidence supporting the trial court’s judgment terminating her parental rights to T.K. Concluding that the trial court’s judgment is supported by clear and convincing evidence, we affirm."

Term. of Parent-Child Rel. of B.L.; Mary LaRose and Walter Logan v. Howard Co. Dept. of Child Svcs. (NFP) - "Appellants-respondents Mary LaRose and Walter Logan (collectively, the parents) appeal the trial court’s order terminating their respective parental relationships with their child, B.L. The parents argue that the evidence is insufficient to support the termination order and that Walter’s due process rights were violated because he allegedly did not have notice of the initiation of the underlying proceedings declaring B.L. a Child in Need of Services (CHINS) and because appellee-petitioner Howard County Department of Child Services (DCS) allegedly refused to offer him services to better himself as a parent. Finding no error, we affirm."

NFP criminal opinions today (7):

Shannon L. York v. State of Indiana (NFP)

Ronald Fields v. State of Indiana (NFP)

Erskin Jenkins v. State of Indiana (NFP)

Jeroboam N. Wilson, Jr. v. State of Indiana (NFP)

William O. Lee v. State of Indiana (NFP)

Clarence Taylor v. State of Indiana (NFP)

Fernando A. Rosales v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 19, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Marla K. Young v. Timothy S. Young, an 8-page, 5-0 opinion, Chief Justice Shepard writes:

This appeal raises several important issues about child support. First, in a claim for Parenting Time Credit under the Child Support Guidelines, the word “overnight” means overnight and not something else. Second, business deductions taken by a spouse that may be ordinary for tax purposes are not necessarily determinative for child support purposes. Third, payments to a former spouse for division of property are not deductions for child support purposes. * * *

We remand with direction to reexamine the child support order as respects these three elements.

Posted by Marcia Oddi on Tuesday, August 19, 2008
Posted to Ind. Sup.Ct. Decisions

Environment - Interesting item on Angola wastewater treatment

From WLKI Angola:

Members of the Angola City Council could not hide their frustrations with the Indiana Department of Enviromental Management last night. Wastewater Superintendent Craig Williams requested $10,000 to hire an Indianapolis law firm to review a permit application with a limitation on the amount of chloride that the Angola Wastewater Treatment plant can discharge into Mud Creek. IDEM requested the limitation following a measurement taken last April. When it was explained that Indianapolis was the only other city in Indiana that would be facing such a restriction, Council Member Dave Martin let loose with both barrels. He called the issue raised by IDEM "ridiculous". The request by Williams was approved on a 4-1 vote with Martin casting the only negative vote.

Posted by Marcia Oddi on Tuesday, August 19, 2008
Posted to Environment

Ind. Decisions - More on: Transfer petition pending in school finance case

Updating this ILB entry from late this morning, the ILB has now received copies of the State's brief in its Petition to Transfer in the case of Bonner v. Daniels (49 A 02 - 0702 - CV - 00188), and the State's reply brief.

If the ILB receives a copy of the plaintiff's brief, it will be posted here, so check back.

Posted by Marcia Oddi on Tuesday, August 19, 2008
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: Coach Crean's contract online

On April 4th, the ILB posted this entry, including a link, via the Indianapolis Star, to Coach Tom Crean's 3-page, $18 million "memo of understanding".

This afternoon, from a story by Star reporter Mark Alesia:

Indiana University men's basketball coach Tom Crean has signed a contract worth at least $23.6 million over 10 years.

Since being hired in April, Crean had been working under a "memorandum of understanding," which outlined the terms of his employment before a detailed contract was drafted and signed.

The Indianapolis Star reported last month that IU had agreed to increase the length of the agreement from eight to 10 years.

Crean's buyout if he leaves before the end of the contract did not increase from the memorandum of understanding. It remains $3 million for the first three years, $2 million in the fourth and fifth years and $1 million per year for the rest of the deal.

Crean's compensation increases each year of the deal.

Again, the Star has posted the agreement, now 22-pages long, online so we lawyers can look it over.

Posted by Marcia Oddi on Tuesday, August 19, 2008
Posted to Indiana Government

Ind. Courts - Doxpop now provides access to Court information in half of all Indiana Counties

Doxpop (Indiana court records online) has announced:

The Shelby County Courts have become the newest local government information providers in the Doxpop community. With 46 counties participating, Doxpop now provides access to Court information in half of all Indiana Counties. The Shelby County Court Records extend back to July of 1995.
See Doxpop's August 2008 newsletter here.

Posted by Marcia Oddi on Tuesday, August 19, 2008
Posted to Indiana Courts

Environment - "Another EPA air rule goes down"

Read this entry by Jonathan Adler of the Volokh Conspiracy.

Posted by Marcia Oddi on Tuesday, August 19, 2008
Posted to Environment

Ind. Decisions - Transfer petition pending in school finance case

A transfer petition is pending in the suit challenging the school finance system, Bonner v. Daniels (49 A 02 - 0702 - CV - 00188). On May 2nd, the Court of Appeals, in a 2-1 decision, ruled:

[W]e find that the trial court erred in dismissing Bonner’s cause as his claim is clearly justiciable and subject to judicial review and, additionally, we find that the Education Clause, encapsulated in Article VIII, §1 of the Indiana Constitution, provides Indiana’s children with the right to a public education, as envisioned by the framers of our Constitution. We reverse and remand for further proceedings pursuant to this decision.
Yesterday the ILB learned that:
The Tax Foundation, in a friend-of-the-court brief filed with the Indiana Supreme Court, urges the reversal of a lower court decision creating a judicially enforceable right to a "quality" education. The brief explains that such an interpretation goes beyond the text and historical meaning of the Education Clause of the Indiana Constitution, focuses improperly on funding as the only way to improve state education, and ignores the problematic experiences other states have had with judicial funding mandates.
Read the entire release here.

The Tax Foundation's amicus brief is also available for review. Access it here. The ILB would be pleased to post the briefs of the parties, if they can be made available.

Posted by Marcia Oddi on Tuesday, August 19, 2008
Posted to Ind. App.Ct. Decisions | Indiana Transfer Lists

Ind. Decisions - Court granted transfer in 4 cases last Thursday

The formal transfer list should follow later this week, but the ILB has received notice of four transfers granted last Thursday, August 14th. None of them were on the Clerk's list, issued late Friday.

One we've already posted
about (and here also), Indiana Attorney General v. East Chicago Second Century, Inc., because the AG issued a press release last Friday. The COA ruling was issued March 12.

The second is City of East Chicago, Indiana v. East Chicago Second Century, Inc.. See ILB on the Dec. 21, 2007 COA ruling here.

Filter Specialists, Inc. v. Dawn Brooks, Charmaine Weathers, and Michigan City Human Rights Commission, a Dec. 28, 2007 2-1, 56-page opinion - see ILB summary here, about half-way down the page.

Finally, the recently decided Richard Pendergrass v. State of Indiana (7/8/08) - where the COA held: "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."

The case name may be familiar because it was cited in another COA opinion, Ricky L. Jackson v. State of Indiana (see ILB entry here, 2nd case), issued by a different panel Aug. 12:

Thus, we reject the State’s contention that the Certificate of Analysis is admissible under the business record exception to the hearsay rule under Indiana Evidence Rule 803. Cf. Pendergrass v. State, 889 N.E.2d 861 (Ind. Ct. App. 2008) (holding Confrontation Clause inapplicable to use of Certificate of Analysis pertaining to DNA test where Certificate used to provide context for expert’s testimony, not to prove element of charged crime), trans. pending. Neither is the Certificate admissible through Ballard’s [the lab supervisor] expert testimony under Indiana Evidence Rule 703. Jackson’s Sixth Amendment right to confrontation is not subordinate to a rule of evidence under the circumstances of this case. As the Court stated in Crawford, “[w]here testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence[.]” 541 U.S. at 61. In sum, the Court in Crawford rejected “reliable hearsay” as a substitute for the right of confrontation. See Giles, 128 S. Ct. at 2695 (Souter, J., concurring in part). Jackson’s conviction must be reversed.

Posted by Marcia Oddi on Tuesday, August 19, 2008
Posted to Indiana Transfer Lists

Environment - "Delaware County CAFO moratorium clears first hurdle"

So reports Nick Werner today in the Muncie Star-Press in a story that begins:

MUNCIE -- A moratorium on the building of new concentrated animal feeding operations (CAFOs) in Delaware County cleared its first hurdle Monday toward becoming law.

Advocates of the moratorium say the measure is necessary because efforts by the Muncie-Delaware County Planning Commission to regulate CAFOs have failed.

"We've hit a brick wall with the plan commission," Commissioner Larry Bledsoe said. "We're going to continue to hit a brick wall with the plan commission."

See also the Star-Press editorial today:
The discussion about confined animal feeding operations (CAFOs) in Indiana has become so divisive that government, from the county level to the General Assembly is experiencing a legislative gridlock.

A prime example of the problem this presents is the case of Stateline Agri Inc. and its owner, Rick Kremer. Stateline, which operates a 1,500-pig CAFO near Union City, was recently blamed for a massive fish kill in the Little Mississinewa River after heavy rains washed manure applied to a farm field into the river. An attorney for Kremer denies his client was at fault. * * *

Kremer has an application pending to increase the size of his Indiana operation, but none of the Ohio complaints can be considered by IDEM under present Indiana law.

It is not for lack of trying. State Sen. Beverly Gard, R-Greenfield, said a "good character clause" has been part of CAFO legislation filed in the past, and she expects it to again be considered in the 2009 session. "IDEM has asked for the ability to look at past violations," she said.

According to Gard, a good character clause was part of a CAFO bill that went all the way to conference committee in 2007. She said the bill died because House members refused to support it unless it contained a moratorium on CAFOs.

"Even livestock producers want it," she said, because most producers don't want their reputations tainted by a few problem operators.

Gard said a task force organized by Lt. Gov. Becky Skillman that includes representatives from a wide variety of interests, is expected to release a report this fall on the state of CAFOs and CAFO legislation in Indiana. She expects CAFO legislation considered next year will be driven by the contents of the report.

In the meantime, operators like Stateline Agri will continue to get a free ride when it comes to complaints filed in other states.

Posted by Marcia Oddi on Tuesday, August 19, 2008
Posted to Environment

Ind. Courts - Report issued Monday by Delaware Circuit 2 Judge Richard Dailey

Rick Yencer of the Muncie Star-Press reports today:

Delaware County Prosecutor Mark McKinney acted deceitfully in using confidential settlements to distribute and spend seized money and property from accused drug dealers, according to a report issued Monday by Delaware Circuit 2 Judge Richard Dailey.

"McKinney's actions are purposeful, deceitful, and directly against the interests of his clients, the Muncie Common Council and Delaware County Council," the judge wrote in the findings of his probe on civil drug forfeitures. "He knowingly and willfully violated a court order and sought to conceal this action from the court."

McKinney on Monday evening issued a statement denying "any effort to mislead or deceive anyone."

That is just the beginning of the long story. The 16-page "Findings and Report" issued by Judge Dailey is also available via the Star-Press.

A second story today
by the same reporter begins:
Confidential settlements between the Muncie-Delaware County Drug Task Force and accused drug dealers were not the only way local courts were bypassed in the seizure of money and property.

In examining cases from over the past decade, Delaware Circuit Court 2 Judge Richard Dailey found 140 abandoned property affidavits, executed by Muncie police in charge of their property room or DTF officers, to distribute money and property seized from alleged drug dealers.

There were instances where property was declared abandoned while forfeiture cases were pending and owners of the property and their counsel were present and engaged in litigation, Dailey wrote in a 16-page report on civil drug forfeiture cases.

Posted by Marcia Oddi on Tuesday, August 19, 2008
Posted to Indiana Courts

Ind. Courts - SLAPP-type lawsuit filed against several members of Allen County Plan Commission

A lengthy editorial today in the Fort Wayne Journal Gazette begins:

A lawsuit filed by a developer against three individuals serving on the Allen County Plan Commission is a slap in the face to citizens who volunteer their time to serve the community. The lawsuit also uncomfortably resembles a SLAPP suit, or strategic litigation against public participation. In short, it appears to be an unsubtle attempt to bully members of the plan commission into approving a project that has run into significant public opposition.

Oakmont Development Co. III LLC is the developer behind the controversial Canyon Cliffs subdivision planned for the northeast corner of Coldwater and Chapman roads. Last week, it filed a lawsuit in Allen Circuit Court against the Allen County Plan Commission, as well as three members of the plan commission who voted against the project.

SLAPPs are lawsuits launched by plaintiffs with the objective of intimidating challengers and coercing them to drop protests against building projects or initiatives. It’s a common but underhanded tactic often used to subdue environmental advocates or other activists, who typically don’t have the money to defend themselves against a costly lawsuit.

Eric Dannenmaier is a law professor at Indiana University School of Law in Indianapolis who teaches courses on law in democracy, property law and environmental law. He wrote in an e-mail that “This doesn’t appear to be, technically, a SLAPP suit because this is a suit against commission members, not members of the public who are taking a stand against some sort of development. But it is like a SLAPP suit in that it could be seen as calculated to intimidate individuals and discourage future actions by them or others – rather than simply calculated to assert a legal right. If the developer/plaintiff is correct in his legal position, a suit against the commission itself, in its corporate form, would seem to be equally effective in obtaining the development approval he desires. Suing individual commissioners appears to add nothing to an underlying legal claim for approval, and thus one might question its purpose.”

Posted by Marcia Oddi on Tuesday, August 19, 2008
Posted to Indiana Courts

Ind. Courts - "Randolph County seeking judge's opinion on zoning law for courthouse annex"

Updating this ILB entry from July 22, Joy Leiker of the Muncie Star-Press reports today:

WINCHESTER -- Randolph County will ask a judge to interpret its unified zoning ordinance, determining specifically whether the county ever needed a variance for the embattled courthouse expansion project.

It's a ruling already months in the making and will require the Board of County Commissioners, through its attorney, to file a request in court.

The goal is to put an end to the fight over whether a planned annex, to be built on the south side of the existing courthouse, needed a variance.

The county applied for one in April, thinking the annex was too close to the right-of-way on Franklin Street. It was denied by the Board of Zoning Appeals in May. Since then, the county has looked for a way to proceed without the BZA's approval.

What's become clear is that the unified zoning ordinance doesn't address rules for the courthouse, which is situated on the downtown square and bordered by four streets. There are rules for corner lots and properties next to everything from industry to commercial business, but there's nothing that regulates an island property like the courthouse.

For a time Monday, it appeared Commissioners David Lenkensdofer and Kathy Beumer were poised to continue with the project without an official legal interpretation. But fellow Commissioner Ron Chalfant said he wasn't comfortable with that, and made a motion to ask for a judge's ruling. Lenkensdofer and Beumer ultimately voted with Chalfant.

Posted by Marcia Oddi on Tuesday, August 19, 2008
Posted to Indiana Courts

Ind. Law - Revival in Crown Point brings complaints from neighbors

From the AP:

CROWN POINT, Ind. (AP) - Crown Point city officials are threatening to revoke a permit for a church's tent revival meeting after numerous noise complaints from neighbors.
From the Gary Post-Tribune, this story by Diane Krieger Spivak:
CROWN POINT -- What would Jesus do?

Residents just wanted peace and quiet.

Living Stones Fellowship church just wanted a good old-fashioned revival.

And city officials just wanted everybody to be happy.

So, after 40 complaints against the commotion going on all month in the church's revival tent at 909 N. Pratt St., the Board of Public Works and Safety, which approved a permit for the tent late last month, called an emergency session Monday. * * *

Church representatives argued that the board's approval of use of a tent as a venue for speakers from all over the country came with no restrictions.

But Mayor David Uran said church officials never mentioned loud music, a violation of the city's noise ordinance, which police measured at 85 decibels, well above the limit of 40.

Police, prompted by the complaints, issued 10 citations, which city attorney David Nicholls said could reach $75,000 by the end of the month-long revival, if violations continue. * * *

In the end, the board voted to allow the nightly events, with restrictions that the events take place only in the church building, not the tent, during the work week Mondays through Thursdays; and that the noise level not exceed 40 decibels.

Any violations will automatically revoke the permit, Mayor David Uran said.

Posted by Marcia Oddi on Tuesday, August 19, 2008
Posted to Indiana Law

Ind. Gov't. - Indiana OKs $8.5 million payout to some state workers

The ILB has a lot of additional information on this settlement. First, the news reports. Christine Won of the Indianapolis Star writes:

For 20 years, the state required some of its employees to work more hours than those in other state agencies yet paid them the same.

Now it appears the state is going to pay for that decision -- as much as $8.5 million.

The state reached a tentative agreement Monday on a class-action lawsuit that could affect an estimated 15,000 state employees who, from 1973 to 1993, worked 40-hour weeks but received the same pay as others in similar jobs who worked 37.5 hours a week.

The lawsuit was filed 15 years ago but was delayed repeatedly. The suit was scheduled to go to trial today. * * *

John Kautzman, the attorney representing the plaintiffs, said the state would fully compensate the affected employees up to $8.5 million, including compensation pay for those extra 2.5 hours per week, fees and expenses. Attempts to reach the state attorney general's office for comment were unsuccessful.

Claim forms will be available to potentially affected current and former state employees in the next month, and they will have 45 days to file them. A judge will determine who is entitled and what requirements have to be met. For example, it's not clear whether families of employees who have died during the past 15 years will be compensated.

According to Kautzman, if the calculated total amount exceeds $8.5 million, the state can back out of the settlement and resume trial or pay off the remainder. A tentative hearing is scheduled for mid-October.

"We're thrilled we have brought 100 percent relief to all potentially affected claimants," Kautzman said on behalf of his Downtown law firm, Ruckelshaus Kautzman Blackwell Bemis & Hasbrook. * * *

The unequal pay system ended two months after the lawsuit was filed in 1993, when the state mandated 37.5-hour weeks across the board.

"I guess the state woke up to the problem when we filed the lawsuit," Kautzman said. "It was a widespread issue in the state."

The 1993 lawsuit was the second of its kind. In 1991, 35 state employees sued after they learned about the discrepancy.

That suit received a boost when an appellate court affirmed an existing state regulation guaranteeing equal pay for equal work. The Indiana Supreme Court agreed in 1992, and the state stopped the practice in 1993.

But that still left all the state employees who worked without compensatory pay for the additional 2.5 hours a week during the period from 1973 to 1993. That led to the second lawsuit, filed in 1993.

Patrick Guinane of the NWI Times reports:
Indiana agreed Monday to pay up to $8.5 million to settle a class-action lawsuit brought on behalf of thousands of state employees who worked longer work weeks than similarly paid peers.

The preliminary settlement, which calls for the state to pay another $4 million in plaintiff legal fees, was reached a day before the case was scheduled for trial in Marion County. The dispute, dating to 1993, covers an estimated 15,000 workers who toiled 40 hours a week while state employees in comparable positions received the same pay for 37.5-hour weeks. * * *

John Kautzman, one of the Indianapolis attorneys who represented the workers, said settlement negotiations began last week, continued through the weekend and a judge approved the agreement on Monday.

"It is essentially calling for each claimant that has been affected by this situation to be paid 100 cents on the dollar for the full amount of their back pay claim," Kautzman said.

But the deal allows the state to walk away from the settlement and proceed to trial if the total claims exceed $8.5 million.

"It's simply based on the fact that no on knows on a case this old how many claimants are going to come forward," Kautzman said.

The work-week discrepancy covers employees who were on the state payroll between 1973 and 1993. The dispute was caused by conflicting state law and personnel directives.

The General Assembly passed a 1953 law establishing a 37.5-hour week for state office workers. Fourteen years later, a state personnel board set a 40-hour week for employees of state hospitals and other institutions. In 1993, the state personnel director established a standard 37.5-hour week for all state workers.

A spokeswoman for Indiana Attorney General Steve Carter confirmed the details of the settlement but declined further comment Monday. An Oct. 20 court hearing has been scheduled to consider final approval of the settlement.

This story from Reuters, dated August 15th gives necessary background information, such as the name of the case and the court involved. Some quotes:
A lawsuit brought by Indiana state employees who worked longer hours than comparable employees without additional pay is scheduled to go to trial on Tuesday, August 19, in Marion Superior Court.

The $42 million class action suit, Paula Brattain et al v. Richmond State Hospital et al, (cause no. 49D11-0108-CP-1309) represents an estimated 15,000 state employees at state institutions and offices who were required to work a 40-hour week while employees in similar positions at other state institutions and offices were receiving comparable pay for a 37.5-hour week. * * *

The State of Indiana corrected the pay disparity in 1993 after an appeals court ruled in favor of 35 employees that challenged the State's policy. Following that decision, a new state directive based all salaries for full-time employees on a 37.5-hour week. This class action suit followed. But the State has long resisted compensating employees who worked for years at an effective hourly rate lower than that earned by other state employees in comparable positions.

John F. Kautzman of Ruckelshaus Kautzman Blackwell Bemis and Hasbrook, an attorney for the employees, said, "For two decades the State of Indiana failed to meet the most basic standard of fairness -- equal pay for equal work -- and short-changed thousands of employees. Now the State continues to fight tooth and nail to avoid compensating employees who worked for years at a lower rate than peers with the same job description and pay grade. If the State won't rectify this plain injustice, we're confident that the Court will."

The ILB talked with Mr. Kautzman this morning to fill in some details. The 1991 Court of Appeals decision involving 35 employees was Arden & Coulter v. State Employees' Appeals Commission (578 N.E.2d 769). Transfer was denied by the Supreme Court in 1992. Early in 1993 the present suit was filed as a class action. Two months later, the State changed all state employee hours to 37.5.

Why 15 years? A litany of factors including slow discovery, a number of interlocutory appeals, a summary judgment in the 90s that the State tried to appeal.

The reported $4 million in attorney fees (on top of the $8.5 for the workers) includes expenses - $3.5 million plus expenses - and part of it goes to a specialty class action firm out of Houston, Susman Godfrey.

What about interest? By law, the State is not liable for prejudgment interest.

Who is in the class? No easy answers. It is a subset of the people who worked 40 hours a week during the period from 1973 to 1993, those in a split job classification, where part of the members worked 37.5 hours and part worked 40 hours, but both received the same compensation. An example would be a clerk-typist who was forced to work 40 hours per week at one of the state institutions, while other clerk-typists in the same job classification at the Statehouse worked only 37.5 hours for the same pay.

Posted by Marcia Oddi on Tuesday, August 19, 2008
Posted to Indiana Government

Ind. Law - AG announces filing suit to stop illegal fax blaster

Here is the story in the Fort Wayne Journal Gazette, and here is the AG's press release. Here is how to file a complaint with the AG. I've filed a number of them over the past 2 years, but still can't keep my fax turned on without these unwanted faxes spewing out.

Posted by Marcia Oddi on Tuesday, August 19, 2008
Posted to Indiana Law

Environment - "In Rural New York, Windmills Can Bring Whiff of Corruption"

A lengthy, fascinating story in Monday's NY Times, by Nicholas Confessore, looks at another aspect of the proliferation of wind turbines along the New York side of the Canadian border. Some quotes:

BURKE, N.Y. — Everywhere that Janet and Ken Tacy looked, the wind companies had been there first.

Dozens of people in their small town had already signed lease options that would allow wind towers on their properties. Two Burke Town Board members had signed private leases even as they negotiated with the companies to establish a zoning law to permit the towers. A third board member, the Tacys said, bragged about the commissions he would earn by selling concrete to build tower bases. And, the Tacys said, when they showed up at a Town Board meeting to complain, they were told to get lost.

“There were a couple of times when they told us to just shut up,” recalled Mr. Tacy, sitting in his kitchen on a recent evening.

Lured by state subsidies and buoyed by high oil prices, the wind industry has arrived in force in upstate New York, promising to bring jobs, tax revenue and cutting-edge energy to the long-struggling region. But in town after town, some residents say, the companies have delivered something else: an epidemic of corruption and intimidation, as they rush to acquire enough land to make the wind farms a reality.

“It really is renewable energy gone wrong,” said the Franklin County district attorney, Derek P. Champagne, who began a criminal inquiry into the Burke Town Board last spring and was quickly inundated with complaints from all over the state about the wind companies. Attorney General Andrew M. Cuomo agreed this year to take over the investigation.

“It’s a modern-day gold rush,” Mr. Champagne said.

Mr. Cuomo is investigating whether wind companies improperly influenced local officials to get permission to build wind towers, as well as whether different companies colluded to divide up territory and avoid bidding against one another for the same land.

The industry appears to be shying away from trying to erect the wind farms in more affluent areas downstate, even where the wind is plentiful, like Long Island.

But in the small towns near the Canadian border, families and friendships have been riven by feuds over the lease options, which can be worth tens of thousands of dollars a year in towns where the median household income may hover around $30,000. Rumors circulate about neighbors who can suddenly afford new tractors or trucks. Opponents of the wind towers even say they have received threats; one local activist said that on two occasions, she had found her windshield bashed in.

This is just the beginning of the story. And don't miss the slide show.

Posted by Marcia Oddi on Tuesday, August 19, 2008
Posted to Environment

Monday, August 18, 2008

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

These were just posted, but the stamps indicate they were filed at 9:30 am . . .

For publication opinions today (0):

NFP civil opinions today (1):

The Commitment of J.M. v. Wishard Health Svc./Midtown Community Mental Health Ctr. (NFP) - "J.M. appeals from the trial court’s order temporarily committing her to a mental institution. She raises a single issue, namely, whether the evidence was sufficient to show that she was gravely disabled as defined in Indiana Code Section 12-7-2-96. We affirm."

NFP criminal opinions today (2):

Richard Whitlock v. State of Indiana (NFP)

Donald R. Orman, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 18, 2008
Posted to Ind. App.Ct. Decisions

Ind. Law - State police say golf carts are illegal on city streets, period

Jenny Peter of the Vincennes Sun Commercial reports:

The Vincennes City Council hasn't made a decision on whether to regulate the use of golf carts on city streets, but the Indiana State Police say it isn't theirs to make.

It was the understanding of many that the state of Indiana didn't regulate the use of the golf carts and left doing so up to cities and towns. That now doesn't seem to be the case.

Mayor Al Baldwin released a statement Thursday warning those who drive golf carts around town that at least one driver had been issued a ticket by a trooper with the Indiana State Police.

"She was ticketed for being improperly registered, not driving a properly registered vehicle," Baldwin explained.

Baldwin declined to release the woman's name.

Sgt. Todd Ringle, a spokesman with the Indiana State Police Post in Evansville, said golf carts are illegal on public streets. Golf carts don't, he said citing state statute 9-13-2-105, meet the required definition of a motor vehicle, and only those that meet that definition can operate on public streets. Anything classified as a motor vehicle must also be registered by the Bureau of Motor Vehicles to be legal, he said citing state statute 9-18-2-29.

"Under that statute, it says that all vehicles that are operated on public highways must be plated (have license plates)," Ringle said. "And the (BMV) will not plate a golf cart because it does not meet that statute.

"It's important to point out that even if a city passes an ordinance (allowing for the use of golf carts), a person that operates one on a public street would still be violating state law." * * *

Then, during Monday night's regular city council meeting, Becky Blagrave, 703 S. Ninth St., said the federal government several years ago classified golf carts as low-speed vehicles - not to be confused with slow-moving vehicles - that are not allowed on roads with speed limits in excess of 35 mph.

Indiana recognizes the federal government's definition of low-speed vehicles but allows cities and towns to regulate their use, Blagrave argued citing at least two state statutes.

Baldwin said it, too, was his understanding that the state had no statute in place prohibiting the use of golf carts on city streets. The proposed ordinance had been approved by City Attorney Dave Miller, but, in light of recent events, Miller now planned to speak with Indiana's attorney general to get some clarification on the issue, Baldwin said.

"I haven't the slightest clue (what's going on)," Baldwin said. "We didn't think the state regulated (golf carts), but the state police have indicated that they're going to interpret the law that they're not legally registered vehicles and ticket them appropriately."

State police patrolling city streets, at least in Lebanon and Vincennes; who is watching the highways and interstates?

Posted by Marcia Oddi on Monday, August 18, 2008
Posted to Indiana Law

Ind. Courts - "Federal Grant Brings $1 million to Supreme Court for E-Ticket Program"

Here is the press release that begins:

The Indiana Supreme Court has been awarded a grant from the Federal Motor Carrier Safety Administration. The $1.27 million goes to the Supreme Court and the Indiana Bureau of Motor Vehicles, Chief Justice Randall T. Shepard announced plans for the Supreme Court money today.

The e-ticket system will be expanded with the Commercial Driver License Program Improvement grant. The federal grant will help pay for more law enforcement agencies to have the system. The electronic Citation and Warning System (eCWS) was developed in 2007 by the Indiana Supreme Court’s Division of State Court Administration Judicial Technology and Automation Committee section in partnership with the Indiana State Police, Indiana Criminal Justice Institute and law enforcement officials including the Indiana Association of Chiefs of Police, the Indiana Sheriffs’ Association, and local departments across the state.

Posted by Marcia Oddi on Monday, August 18, 2008
Posted to Indiana Courts

Ind. Decisions - 7th Circuit issues one today, partially reversing Judge Tinder

In Grieveson v.Frank Anderson (SD Ind., Judge Tinder), a 30-page opinion, Judge Kanne writes:

During Joseph Grieveson’s detainment at the Marion County, Indiana, Jail, he allegedly suffered several attacks at the hands of other inmates, and one attack by an unnamed jail guard. He brought suit against numerous government defendants in their individual and official capacities, raising constitutional and state-law claims. The United States District Court for the Southern District of Indiana dismissed some of the claims and granted summary judgment in favor of the defendants for the remaining claims. We affirm the district court’s grant of summary judgment in favor of the Marion County Sheriff on the official-capacity claims. However, with respect to the individual-capacity claims against individual defendants, we affirm in part and reverse in part. There is a genuine issue of material fact surrounding whether one jail guard was deliberately indifferent to Grieveson’s safety needs, and there is a genuine issue of material fact about whether three jail guards were deliberately indifferent to Grieveson’s medical needs. Finally, we reverse the district court’s disposition of Grieveson’s negligence claims against certain defendants under Indiana law.

Posted by Marcia Oddi on Monday, August 18, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "Red light camera push starts again"

So reports Patrick Guinane of the NWI Times in a comprehensive story. Some quotes:

INDIANAPOLIS | A move to let Indiana cities install cameras to catch drivers running red lights is expected to fare better with Indiana lawmakers next year, now that new state tax caps are driving municipal budgets into the red.

The last attempt to allow the traffic cameras failed overwhelmingly three years ago in the Indiana House, where it garnered only 17 of the 51 votes needed to pass. Several opponents cited privacy concerns.

But that was before lawmakers created tax caps that are expected to deprive Indiana cities and towns of nearly $97 million next year and $188 million in 2010. * * *

Hammond, which faces at least $1.3 million in 2009 budget cuts, adopted an ordinance in June that sought to make the city the first in Indiana to install red light cameras. But Indiana Attorney General Steve Carter stepped in last week with an advisory opinion concluding the Legislature must act first.

Carter pulled the plug only a day after Illinois Gov. Rod Blagojevich proposed installing cameras to catch speeding motorists on accident-prone interstate corridors. The idea was spurred by the estimated $50 million a year it could raise to hire state troopers.

Illinois already uses cameras to catch speeders in highway work zones. And three dozen Illinois municipalities, including Chicago, deploy red light cameras. Nationwide, the technology is in use in more than 300 communities, according to the Insurance Institute for Highway Safety.

The Indiana Association of Cities and Towns and the Insurance Institute of Indiana supported past attempts to allow red light cameras, and spokesmen for both groups say they would back the effort again next year. * * *

Asked about the issue this week, Republican Gov. Mitch Daniels and his opponent for November, Democrat Jill Long Thompson, said they believed they could support legislation to allow red light cameras.

"It's in use in many places. I can think of lots of other enforcement tools that are at least as aggressive as that," Daniels said. "I'd listen to both sides, but I'm open-minded about that. If it would help improve traffic safety, compliance with the law, be cost-efficient to the taxpayer, we ought to think about it."

For background, start with this ILB entry from August 13th.

Posted by Marcia Oddi on Monday, August 18, 2008
Posted to Indiana Law

Environment - "U.S. Steel ready to transfer acid sludge"

Gitte Laasby of the Gary Post-Tribune reports today about the potential end of an era at the Gary U.S. Steel plant. Some quotes from the long story:

For nearly three decades, 94,600 cubic yards of oily, hazardous sludge from steelmaking has been sitting in two open craters in the ground on the west side of U.S. Steel's Gary property. That will end soon.

The U.S. Environmental Protection Agency ordered U.S. Steel to come up with a plan to remove the waste about 30 years ago. Now the company is finally ready to transport the acid sludge to its on-site hazardous waste unit on Gary's north side.

U.S. Steel has submitted a $4.3 million closure plan to the Indiana Department of Environmental Management, which is up for public comment until Sept. 11.

If IDEM approves the plan, the company would start removing the black and brown sludge within five months.

The company wants to dispose of the material in its corrective action management unit (or CAMU) north of Ellsworth Street and West 2nd Avenue in Gary, where it would be mixed with contaminated sediment dredged from the Grand Calumet River and eventually capped. The storage would require EPA approval.

If EPA does not approve, the sludge would be transported off-site to a hazardous waste treatment or storage facility.

"U.S. Steel is currently not aware of a commercially available cost-effective solution for treating these materials in place," U.S. Steel spokeswoman Erin DiPietro said in an e-mail. "Removal of the material and placement in the CAMU ensures that the wastes are contained in a state of the art facility designed to ensure long term protection of the environment." * * *

From 1967 to the mid-1980s, U.S. Steel used the unlined and uncovered holes, which total five acres, to dispose of the waste temporarily. After one lagoon was filled, the liquid-neutralized acid waste was pumped into the other lagoon so the first one could dry out and sludge could be transferred to another site for disposal. One lagoon is about 400 feet long and 260 feet wide. The other is about 600 feet long and up to 200 feet wide. The sludge is up to 13 feet thick.

Posted by Marcia Oddi on Monday, August 18, 2008
Posted to Environment

Ind. Law - "State has duty to pay for school books"

The Supreme Court's 2006 decision in Frank Nagy, et al. v. Evansville-Vanderburgh School Corporation (for background, start here) is the subject of an editorial today in the South Bend Tribune. Some quotes:

When the Indiana Constitution and the Indiana Code are at odds, which should take precedence?

Most would agree that the Constitution trumps the code. But that has not been the case when it comes to charging students for the textbooks used in public schools.

That’s because the Indiana Supreme Court has succeeded supremely in dodging this issue. The solution is for the General Assembly to face up to the state’s responsibility to cover the cost of public education, as the Constitution requires — including textbooks.

That would mean changing the Indiana Code.

The state Constitution says it’s the duty of the General Assembly to provide education “wherein tuition shall be without charge, and equally open to all.”

But the Indiana Code, enacted by the General Assembly, says that school systems may charge students to rent textbooks. * * *

[T]he Indiana Court of Appeals in 2004 found a $20 activities fee then charged by Evansville-Vanderburgh County School Corp. to be unconstitutional. The court issued a broad opinion that included textbook fees in a list of expenses it deemed to be the responsibility of the state.

Just when it looked as if the textbook issue might be resolved — and in a way favorable to the constitutional mandate and Hoosier families — the Supreme Court agreed to review the case, thus vacating the Appeals Court decision.

The Supreme Court contemplated the case for nearly two years and in 2006 issued a very narrow decision. It said that the $20 fee was indeed unconstitutional in a state that promised free public education. But it didn’t mention textbooks.

Perhaps the justices thought it better to maintain the status quo than to upset a whole new group of people. Whatever the logic, the court did a disservice to Indiana families. It also did a disservice to school systems that find themselves in the role of collection agencies, trying to pry hundreds of dollars from families that are dealing with other back-to-school expenses. * * *

Forty-seven states have it right: The cost of textbooks most assuredly is part of the cost of public education and should be shared by all taxpayers.

In the words of the Indiana Court of Appeal in its 2004 ruling: “It is absurd to suggest that public schools may not charge for the services of a teacher, but may charge students a fee for things as essential to teaching and instruction as the services of a teacher, such as school buildings, maintenance, heating and cooling, electricity, or textbooks.”

We could not agree more. When a new General Assembly convenes in 2009 — after the election in November — lawmakers should correct their past failing.

Posted by Marcia Oddi on Monday, August 18, 2008
Posted to Indiana Law

Ind. Courts - Grant County Superior Court 2 closes doors

From Saturday's Grant County/Marion Chronicle Tribune, a story by Brett Wallace:

Friday was the last day Judge Randall Johnson said he would open Superior Court 2 and the Juvenile Court at the Grant County Courthouse.

In a letter Tuesday to the Grant County Council and commissioners, Johnson told the council a medical condition has worsened as a result of working in the mold-infested environment and that courthouse operations would be suspended until he had a suitable alternate venue.

Johnson plans to continue working from home.

County Administrator Angela Banter said a decision was made late Friday afternoon to move Juvenile Court to the county council chambers. “Juvenile Court will be held in the Grant County Complex on Monday, Wednesday and Friday in the council chambers,” Banter said. She said cases will be heard there beginning at 8:30 a.m. Monday.

A new venue for Superior Court 2 is yet to be determined, Banter said. She said that will be at the discretion of the commissioners. “I’m compiling information and will present it to the commissioners Tuesday,” Banter said.

Banter said part of the complications are the special needs required to conduct Superior Court 2, including technology, software, recording equipment, security, a separate jury room and more. Calls to Commissioner Mark Bardsley were not returned Friday.

In his letter, Johnson said doctors have found high levels of several dangerous molds in his blood and that many were the same molds that were found in the courthouse during a Department of Labor study in March.

Johnson also said in the letter that he told the council as early as March that the situation needed to be addressed or else he would pull his court out of the building.

Wednesday night, the county council voted unanimously to accept a 60-month line of credit from Regions Bank to pay for $1.8 million in repairs to the courthouse.

Johnson said that action was simply more of the same discussion and called the process frustrating. “They’re just talking back and forth,” he said of the council. “It’ll be four more months before we get started on anything.”

While working from home, Johnson said he will still be able to hear cases under advisement but won’t be able to conduct jury trials or hearings. He said he hopes to have a new facility from which to conduct Superior Court 2 as soon as possible. “I’m working with the commissioners and Angela Banter to try to find temporary quarters for the court,” Johnson said.

Circuit Court Judge Mark Spitzer doesn’t anticipate that Johnson’s decision will have a major impact on the county’s other courts. “Our courts operate somewhat independently,” Spitzer said. “It shouldn’t have an impact on the operations of our courts.”

Spitzer said he couldn’t speak for judges Jeffrey Todd and Natalie Conn but that he plans to keep his courtroom open. “I don’t have any plans to close my court, but that doesn’t mean I’m not concerned about the health of my staff and the public,” Spitzer said.

Johnson’s decision will almost definitely cause a slowdown in the number of cases being heard in Superior Court 2, which could potentially result in another buildup of inmates at the Grant County Jail.

“I’m very concerned about the potential backlog,” he said. “(The courts) are backlogged tremendously, and this does not help.”

The story includes a link to Judge Johnson's three-page letter.

Here is another Chronicle-Tribune story, from Thursday, August 14th.

Posted by Marcia Oddi on Monday, August 18, 2008
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

None scheduled.

This week's oral arguments before the Court of Appeals

This Monday, Oct. 22nd:

None scheduled.

Posted by Marcia Oddi on Monday, August 18, 2008
Posted to Upcoming Oral Arguments

Sunday, August 17, 2008

Ind. Courts - "New Albany attorney’s career in jeopardy after felony plea"

Updating this long list of earlier ILB entries, Matt Thacker of the New Albany News & Tribune reports today:

A New Albany-based attorney will spend no more than four months in prison for the sexual battery of a 16-year-old girl, but his career remains uncertain after pleading to a felony.

Anthony J. Wallingford pled guilty to class D felony sexual battery in Harrison County’s Superior Court Aug. 8. As part of the agreement, jail time cannot exceed 120 days in the Harrison County Jail. The judge may also require probation, and he will have to register as a sex offender. * * *

Donald R. Lundberg, executive secretary of the Indiana Supreme Court Disciplinary Commission, said Wallingford and the judge hearing his case will have 10 days to report the conviction to them. The commission will likely request the Supreme Court suspend Wallingford’s license to practice.

“The Supreme Court normally but not universally will grant a suspension on a temporary basis,” Lundberg said.

After serving his sentence, Wallingford will reserve the right to request his conviction be lowered to a class A misdemeanor as part of the plea deal. Lundberg said the Supreme Court generally looks at the category of the offense rather than the level when deciding whether to revoke his license.

Wallingford has been out on $24,000 cash bond since his arrest Nov. 13. He has an office at 430 W. First St. in New Albany and another one in Marengo.

A reporter for the Evening News and Tribune was told to leave the New Albany building after asking Wallingford if he would be willing to comment on the case. Wallingford’s attorney, James Voyles, did not return a message seeking comment.

Posted by Marcia Oddi on Sunday, August 17, 2008
Posted to Indiana Courts

Ind. Gov't. - Still more on: "Indiana taxpayers contribute millions to lawmakers' generous pension plan"

The Indianapolis Star's editorial today focuses on legislators' remuneration, as did its stories on August 15 (see ILB entries here and here). Today's editorial begins:

Applause rang out far and wide in 2007 when the Indiana General Assembly made a deal with the taxpayers. Now that the ovation has died down, it's rather easy to see who got the better of the deal; and it's not us.

Through a measure duly signed into law by Gov. Mitch Daniels, the lawmakers promised to strip the camouflage from their compensation by raising salaries while cutting fringe benefits.

They had not voted themselves a pay raise since 1989; yet the sums they were pocketing for their part-time service had quietly swollen thanks to health insurance and pensions far sweeter than other state employees and most Hoosiers in general received. Not to mention lavish expense accounts from the people of Indiana and virtually unchecked gifts from lobbyists.

In the face of public outrage, legislators in that 2007 session voted to eliminate the health-care perk and cut in half the taxpayer contribution to their pension plan beginning in 2009. In other words, each dollar a legislator invested would be matched with $2, not $4.

In exchange, the legislature would be "up front" about pay. It would nearly double the base salary -- to $20,700 a year -- and peg any future increases to 18 percent of what judges made.

It seemed reasonable, compared to what other states were paying. And anything that smacked of transparency was a refreshing departure for this august body, to say the least.

Alas, the more time passes, the less the state's most powerful public servants seem to have given away.

Posted by Marcia Oddi on Sunday, August 17, 2008
Posted to Indiana Government | Indiana Law | Legislative Benefits

Environment - More on: Major pipeline break near Indiana border

Updating this ILB entry from August 13th, Mark Wilson reports today in the Evansville Courier & Press:

If last weekend's oil pipeline break had happened somewhere other than a remote farm field in Wayne County, Ill., it might well have been labeled an environmental catastrophe.

"If you are going to have a spill of that magnitude, it was the right place to have it," said Sherman Greer, director of the Evansville-Vanderburgh County Emergency Management Agency.

The 5,000-barrel spill from a 20-inch interstate transit line owned by Marathon Oil Co. nearly reached the volume of the BP crude oil spill on Alaska's north slope region in 2006, in which about 6,357 barrels were reportedly lost.

Marathon's spill, however, seemed to have a minimal effect on the environment, at least in the short term. An initial assessment came up with wildlife deaths of two ducks, five small fish and a snapping turtle, according to Maggie Carson, a spokeswoman for the Illinois Environmental Protection Agency.

Unlike the Alaska spill, which came from a relatively small leak in an above-ground pipe, the Marathon Oil spill last weekend was an eruption from a pipeline buried 4 feet underground. The crude oil covered a three-acre area.

"It was more or less an explosion because it was under pressure, so it covered a large area. It went into farm fields and some areas where it was not immediately accessible," Carson said. "Considering the geographic area covered, this appears fairly minimal, but the agencies involved will conduct a formal damage process."

That assessment may well turn up additional damage, she said.

Posted by Marcia Oddi on Sunday, August 17, 2008
Posted to Environment

Saturday, August 16, 2008

Environment - More on: "Attorney says manure could not kill 25,000 fish"

Updating this ILB entry from earlier today, on the manure spill last week that allegedly caused an estimated 25,000 fish to die in the Little Mississinewa River, the ILB has looked for other large fish kills and found this one:

On Feb. 29, 2008, IDEM signed Agreed Order 2007-16661-W with West Hancock Utilities. The AO (settlement agreement) provides in part:

Respondent permitted degradation of Buck Creek by discharging wastewater from its outfall that killed an estimated seventy one thousand six hundred forty five (71,645) fish and thirty one thousand five hundred thirty four crayfish (31,534), interfering with existing beneficial uses, in violation of 327 IAC 2-1-2. * * * Respondent is assessed a civil penalty of Fifty Thousand Eight Hundred Dollars ($50,800). * * * Pursuant to IC 13-14-10-3, Respondent shall reimburse complainant for the cost incurred by IDEM in responding to the August 2006 events which are the subject of this action. IDEM has determined this amount to be ten thousand one hundred and twenty dollars ($10,120). This dollar amount is strictly for the purposes of cost recovery, and is separate and distinct from any penalty which may also be assessed in this case. * * * Respondent shall reimburse the Indiana Department of Natural Resources (“IDNR”) for the value of the damage to natural resources, under authority of IC 14-22-10-6. IDNR has determined this figure to be seventy one thousand seven hundred ninety three dollars and forty-seven cents. ($71,793.47).

Posted by Marcia Oddi on Saturday, August 16, 2008
Posted to Environment

Ind. Decisions - "Jeffersonville annexation upheld: Oak Park opponents vow appeal in case"

The Court of Appeals decision yesterday in the case of Bruce Herdt, Louis Evans and Charlie Milburn v. City of Jeffersonville, Indiana and Common Council for Jeffersonville, Indiana (see ILB summary here, 6th case), is the subject of a story today in the Louisville Courier Journal, reported by Ben Zion Hershberg. Some quotes:

Jeffersonville's annexation of the Oak Park Conservancy can be completed, the Indiana Court of Appeals said yesterday in a decision that is likely to be appealed.

The unanimous ruling by a three-judge panel upheld former Clark Circuit Judge Daniel Donahue's conclusion in February that he couldn't consider an annexation challenge by Oak Park residents because the required signatures filed with the challenge were submitted three days late.

Bruce Herdt, a leader of the annexation opponents, indicated they would appeal.

"We will go until there aren't any more appeals," he said.

Attorney Larry Wilder, who is handling the case for Jeffersonville, said yesterday's decision can be appealed to the Indiana Supreme Court. But if it isn't, or if the justices decide not to review the case, the annexation will be completed, he said. * * *

The Oak Park opponents gathered more than the 2,600 signatures they needed to challenge the annexation in court. But Donahue's ruling and yesterday's Court of Appeals decision mean the court can't consider the claim of errors in the annexation plan.

Derrick Wilson, the opponents' lawyer, has said the signatures couldn't be filed by the deadline because his office wasn't able to make the required number of copies of all the pages in time.

Posted by Marcia Oddi on Saturday, August 16, 2008
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: "Vanderburgh commissioners pass abortion regulations"

Updating this August 15th ILB entry, Thomas B. Langhorne reports again today in the Evansville Courier & Press about the August 5th Vanderburgh County Commissioners' vote, but the issue of whether the commissioners may have violated the open meetings law is not directly addressed. Some quotes from the lengthy story:

Two Vanderburgh County Commissioners acknowledged Friday that fear of controversy was a factor in their decision to pass an abortion-related ordinance in about 45 seconds, without discussion and without uttering the word "abortion."

But commissioners Jeff Korb and Troy Tornatta each said the other wanted to slip the ordinance through without public input.

Although the ordinance is titled "An Ordinance Concerning Abortion Provider Patient Safety," it appears on the County Commissioners' Aug. 5 public meeting agenda as "CO. 08-08-018 Patient Safety Ordinance."

Korb, Tornatta and Commissioner Bill Nix did not debate the ordinance, which states a doctor may not perform an abortion in Vanderburgh County without having hospital admitting privileges in the county or an adjacent county. The doctor also must inform the patient where she can receive follow-up care in case of complications.

The ordinance provides for no fines or penalties.

"The word 'abortion' probably should have been used (during the Aug. 5 meeting and on the meeting agenda), I understand that," Nix said. "But it's not an issue about abortion being right or wrong. It's strictly an issue about the safety of a woman who might have an abortion. Who would be opposed to something like that? To me it was just a no-brainer."

Posted by Marcia Oddi on Saturday, August 16, 2008
Posted to Indiana Law

Environment - Still more on: massive fish kill in Union City

Updating this ILB entry from August 11th, Joy Leiker reports today in the Muncie Star-Press, under the headline "Attorney says manure could not kill 25,000 fish."

UNION CITY -- A hog farmer's attorney denies the state's assertion that its manure spill last week caused thousands of fish to die in the Little Mississinewa River.

"It seems improbable to me that the amount of runoff from the type of application that occurred could cause a fish kill of the magnitude that the government's talking about," said Jack Van Kley, attorney for Ohio farmer Rick Kremer's Stateline Agri Inc.

On Aug. 8, the Indiana Department of Environmental Management and Indiana Department of Natural Resources responded to a fish kill that the DNR said killed about 25,000 fish. That same day, IDEM said Kremer's company had taken responsibility for the manure that flowed into the river.

The previous weekend, 27,000 gallons of manure had been applied to a field near Randolph County's Base Road and 625-E. Heavy rains on Aug. 4 washed that manure into an underground field tile, which dumps into the Little Mississinewa.

Van Kley admits "there may have been some runoff from a field," though he wonders whether something else contributed to the pollution of the river. He noted there are lagoons and other hog farms in the vicinity.

IDEM said there's no indication that anything else, or any other party, contributed to the fish kill.

"The pollution of this nature normally moves as a slug. Once it passes, it's gone," Van Kley said. "It's kind of hard to say that Stateline's manure application caused the problem, because there was no real evidence of that."

The evidence he's looking for includes actual manure, or elevated ammonia levels, remaining in the water. But by the time the spill was discovered -- first by someone in Union City's Harter Park -- that evidence already was removed from Kremer's farm ground.

Van Kley has worked as an environmental attorney for 28 years, in both private practice and for the state of Ohio, according to his firm's Web site. He said he's seen a number of fish kills.

"I know what a fish kill looks like and what causes it and how it acts, and this one doesn't look like it came from a simple manure application because of the volume that could come off a field; ... (there) doesn't appear to be enough manure to do that," Van Kley said.

But Stateline Agri's problems in Randolph County look a lot like the complaint lodged against Kremer and his company in Ohio. Last month, the Ohio Attorney General's office filed a 23-point complaint against Kremer, Stateline Agri, an employee, Kremer's sons, and Stateline Resource Management, a manure application business operated by one of Kremer's sons.

Van Kley said Ohio's charges are "greatly exaggerated" and a result of the fact that Kremer wouldn't settle and pay the fines the state wanted. He said those fines added up to a six-figure settlement.

The side-bar to a Star-Press story dated Aug. 11th quotes from the 23-point complaint filed in Ohio.

Posted by Marcia Oddi on Saturday, August 16, 2008
Posted to Environment

Ind. Decisions - Still more on "Supreme Court hears arguments in Jeff Pelley case"

Updating this ILB entry from August 15, about the oral arguments Thursday in the case of Robert Jeffrey Pelley v.State, here is the first useful summary the ILB has seen, an AP story carried by the LCJ. Some quotes:

Pelley was not charged in the 1989 murders until 2002, and his trial did not begin until 2006. The delay was caused in part by a legal dispute over admission of Pelley's counseling records, which were a focus of arguments again Thursday.

The Court of Appeals threw out Pelley's conviction, holding that the delay in bringing him to trial violated his constitutional right to a speedy trial. The attorney general's office then asked the Supreme Court to review the case.

Both sides argued Thursday that they had not been responsible for the delay. State attorney Ellen Meilaender further argued that the dispute's outcome had benefited Pelley, since the trial court had found the records were privileged.

But Pelley's attorney, Stacy Uliana, argued that Pelley should not be blamed for the delay because he was not directly involved in the dispute.

"It is a third party saying 'you are not entitled to these records' and Jeff did nothing to participate in that -- that was a fight between the state and a third party and he should not be held accountable for that," Uliana said.

Posted by Marcia Oddi on Saturday, August 16, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on "Court Agrees to Review Attorney General’s Lawsuit Against Second Century, Inc. "

Updating this ILB entry from yesterday, stories today in both region papers. Any Grimm of the Gary Post Tribune has this story, which begins:

The Indiana Supreme Court has given Attorney General Steve Carter another chance for a look at the records of East Chicago Second Century, a private, for-profit corporation that has received millions of the city's casino revenue.

Carter's lawsuit against the foundation, chartered in 1995 by allies of former Mayor Robert A. Pastrick to boost economic development in the city, was dismissed in Marion County and by the Indiana Court of Appeals in March.

Under terms of the deal with the city, Second Century was to receive .75 percent of the city's casino revenue, some $16 million before the Indiana Gaming Commission voided the agreement in 2006 at the urging of Carter and Gov. Mitch Daniels.

Patrck Guinane of the NWI Times writes:
The Indiana Supreme Court agreed Thursday to review state Attorney General Steve Carter's attempt to pry open the books of a politically connected East Chicago developer that has reaped $16 million in local casino subsidies.

"The public deserves to know what happened to this money," Carter said Friday in a statement. "There is little evidence that these funds, intended for economic development, have not been wasted."

Carter so far has struck out in his attempts to order a public accounting of the casino cash that East Chicago Second Century, a for-profit firm, received through a 1994 economic development deal then-Mayor Robert Pastrick brokered to bring riverboat gambling to his lakefront city.

The company, run by Pastrick allies Thomas Cappas and Michael Pannos, was created to help revitalize the struggling steel town.

But Cappas and Pannos instead enriched themselves and family members by taking "enormous" salaries, according to a partially redacted state investigation The Times obtained last year.

Carter contends that the $2 million annual casino subsidy to Second Century was created to foster a public good and that the company therefore should be forced to make public its finances. The Indiana Court of Appeals and a Marion County judge have rejected that argument.

Attorneys for Second Century maintain that their clients, as managers of a private business, are under no legal obligation to open their books.

Posted by Marcia Oddi on Saturday, August 16, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Still more on: "Love the wine? You must visit the vine"

The decision of the 7th Circuit August 7th in the case of Baude v. Heath (start here for background) is the subject of a long story today by Supriya Sinhababu in the South Bend Tribune that begins:

When a federal court reinstated the law requiring in-person age verification for Indiana residents purchasing wine last week, winemaker Larry Satek was dismayed, but not surprised.

"This is going to be the fifth major flip in what the rules are in the last three years," said Satek, who serves as president of the Indiana Winegrowers Guild.

He and his wife, Pam, own Satek Winery in Fremont, Ind.

"It makes life quite difficult because customers at this point aren't sure if we can ship anywhere," he said.

A federal judge lifted the face-to-face requirement in August 2007, allowing Indiana customers to fax or mail proof of identification to wineries.

But the U.S. 7th Court of Appeals in Chicago reinstated the regulation, ruling that a lack of age verification in person would give minors easier access to wine. Now Indiana consumers must visit wineries in person to have their identification checked before wine can be shipped to them.

Satek, who ships wine to 11 states, said the changing laws have made reaching Indiana customers more difficult.

He brought up his concern Wednesday when he ran into Lt. Gov. Becky Skillman at the Indiana State Fair.

"One of the things I pointed out to her was that we ship more wine to Michigan most months, more wine to Ohio most months," Satek said. "About half the time we ship more wine to California than we do to Indiana because of the confusion in the law, and somehow that doesn't seem right."

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

Friday, August 15, 2008

Ind. Decisions - "Court Agrees to Review Attorney General Steve Carter’s Lawsuit Against Second Century, Inc. "

The AG issued this press release late today:

Carter Seeks Court Ordered Accounting of $16 Million in Casino Revenues

(INDIANAPOLIS, IN) – The Indiana Supreme Court has agreed to hear Attorney General Steve Carter’s lawsuit against Second Century, Inc. (Second Century), a private business that has received more than $16 million from East Chicago riverboat casino revenues, yet has never provided an accounting to the citizens of East Chicago. The Court granted Carter’s Petition to Transfer today.

“The public deserves to know what happened to this money,” Carter said. “There is little evidence that these funds, intended for economic development, have not been wasted.”

In March, 2007, the attorney general filed for a public accounting of funds disbursed to Second Century from the state-licensed East Chicago riverboat (Attorney General’s Counterclaim and Crossclaim for Imposition of Constructive Trust for Public Benefit and Accounting). The Indiana Court of Appeals affirmed the Marion Circuit Court’s dismissal of the case, allowing Second Century the ability to continue to shield its financial records from the public.

In the Petition to the Indiana Supreme Court, Carter stated: “The Court should grant transfer in this case to update Indiana law concerning constructive trusts, and in particular to decide whether a constructive trust is warranted to remedy the injustice of a deal siphoning millions of dollars of casino gambling revenue to associates of a public official.”

Assisting the Attorney General is Indiana University School of Law professor Patrick L. Baude (Bow-d), a constitutional law expert.

This transfer was apparently granted too late for the Clerk's Office to include in its weekly list, which was posted in this earlier ILB entry this afternoon.

The 3/12/2008 Court of Appeals decision in Steve Carter v. City of East Chicago, Indiana, East Chicago Second Century, Inc., Michael A. Pannos, et al , which found:

The Attorney General’s authority to bring its counterclaim and crossclaim was premised on its characterization of the Showboat agreement as establishing a “public charitable trust.” The agreement did not establish such a “charitable trust,” and therefore the dismissal of counterclaim and crossclaim was not error.
is available here.

Posted by Marcia Oddi on Friday, August 15, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - Transfer list for week ending August 15, 2008

Here is the Indiana Supreme Court's transfer list for the week ending Aug. 15, 2008. Note that there are four pages.

There are no transfers granted this week. Page 4 lists a transfer denial noted as "inadvertently omitted from the list in March."

Over four years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on Friday, August 15, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - Two Indiana decisions today from the 7th Circuit

In US v. Chube (ND Ind., Judge Lozano), a 25-page opinion, Judge Wood writes:

Responding to growing concerns about widespread abuse of OxyContin, a Schedule II narcotic opioid often prescribed to treat chronic pain, the federal Drug Enforcement Administration (“DEA”) in 2001 launched a public campaign called the “OxyContin Action Plan” to ferret out unlawful uses of the drug. Dr. David Demaret Chube II and his brother Dr. Charles Randall Chube (“Dr. David” and “Dr. Randy,” respectively, or, collectively, “the Doctors”) were two of the 2 Nos. 06-3674 & 06-3675 hundreds of physicians investigated by the DEA for possible illegitimate prescribing of the drug. On February 2, 2005, the Doctors were charged in a 33-count indictment with unlawful distribution of controlled substances, health care fraud, and conspiracy to commit each of those offenses. After a two-week jury trial, the jury acquitted Dr. Randy of 32 out of 33 charges, and acquitted Dr. David of 27 out of 33 charges, rejecting both the conspiracy charges and many distribution charges. It found Dr. Randy guilty of one count of unlawful distribution and Dr. David guilty of four counts of unlawful distribution and two counts of defrauding a health benefit program.

After the sentencing hearing, at which relevant conduct findings played a critical role in enhancing each brother’s advisory Guidelines range, the district court sentenced Dr. Randy to five years’ imprisonment and Dr. David to 15 years. Both men appeal. We affirm their convictions, but we vacate both sentences and remand for resentencing.

In US v. Curry (SD Ind., Judge McKinney), a 25-page opinion, Judge Ripple writes:
On May 9, 2006, Daniel Curry was indicted on four counts of armed bank robbery, in violation of 18 U.S.C. § 2133(a) and (d), and four counts of using a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). A jury convicted Mr. Curry on all counts, and the district court sentenced him to 1,071 months’ imprisonment, five years of supervised release and restitution in the amount of $1,052,337.65. For the reasons set forth in this opinion, we affirm his conviction and sentence.

Posted by Marcia Oddi on Friday, August 15, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - More on: "Indiana taxpayers contribute millions to lawmakers' generous pension plan"

Here are some thoughts on the earlier ILB entry today based on Matt Tulley's Indianapolis Star story. Tulley wrote, in his story about the new pension law:

Under the old law, the state contributed an amount equal to 20 percent of a legislator's salary to a 401(k)-type account. The new law cut the contribution rate to about 9 percent. But along the way, lawmakers nearly doubled their base salary, from $11,600 to about $22,600. The difference: Twenty percent of the old base is $2,320, while 9 percent of the new base is $2,034. * * *

[In addition] all lawmakers will have their pension match based not only on their salaries, but also on thousands of dollars intended to cover expenses [which now will be included in the defintion of "salary"].

I reported something similar in a March 4, 2007 ILB entry, citing the revised IC 2-3.5-5-5.5, which states that after Dec. 31, 2008, "salary" includes (1) salary, (2) per diem, and (3) leadership allowances. I asked:
Q - What does this mean? A - It seems to mean that the new 2009 "salary" of about $21,700 is not the "salary" for the purposes of legislative PERF. The definition in IC 2-3.5-2-10, itself applicable only to legislators, is expanded here to include the per diem allowance and leadership allowances. [Note: Tully and I made the same mistake - see below.]

Q - Why is this important? A - because the new subsection (c) provides that:

The state shall make a contribution to the defined contribution fund on behalf of each participant on June 30 of each year. The amount of the contribution is determined by multiplying the participant's salary for that year by a percentage determined for that year by the PERF board under subsection (d).
Okay, but the figures in the database don't show this. They don't show that a legislator got 20% of his $11,600 salary in past years. This would be $2,320 (5 x $2,320 = $11,600). But look, for instance, at the 2007 matching contribution for Pat Bauer. It is $6,411. This is not 20% of a base salary of $11,600; 5 x $6,411 = $32,055.

*What's wrong here? The definition of "salary" in IC 2-3.5-2-10 already included per diem:

Sec. 10. "Salary" means:
(1) the salary; and
(2) the business per diem allowance and the subsistence allowance treated as compensation for federal income tax purposes;
paid to a participant by the state, determined without regard to any salary reduction agreement established under Section 125 or Section 457 of the Internal Revenue Code.
As added by P.L.6-1989, SEC.1. Amended by P.L.5-1992, SEC.1; P.L.4-1992, SEC.2; P.L.195-1999, SEC.1 and P.L.205-1999, SEC.2.
So what legislators have been receiving all along has been a 4:1 match, not of their $11,600 legislative salary, but a 4:1 match of their legislative salary plus their per diem.

To illustrate, taking 1992-2007 of Rep. Bauer's salary, assuming the statutory salary was $11,600 for each of those years, the total salary would have been $185,600. The 20% match for this would be $37,120.

But the total match shown for 1992-2007 is $84,792, which is presumably based on salary plus per diem.

What does this all mean? (1) That the "4:1" match legislators have received in the past has been much larger than anyone realized, because the definition of "salary" was not limited to the statutory salary amount. (2) That the new law, taking effect in 2009, actually may be a sacrifice, relatively speaking.

Posted by Marcia Oddi on Friday, August 15, 2008
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Decisions - Court of Appeals issues 7 today (and 8 NFP)

For publication opinions today (7):

In Ronald J. Solnosky, Gary L. Miller, and Medical Marketing Resources SE, Inc. v. Karen R. Goodwell, Derrick H. Wilson, et al, a 19-page opinion, Judge Crone writes:

Ronald J. Solnosky appeals the trial court’s reduction of the jury’s $1,491,886 verdict in favor of Solnosky and against Karen R. Goodwell, Derrick H. Wilson, and Mattox, Mattox & Wilson (“the Law Firm”) (collectively, “the Lawyers”) on his legal malpractice claim. Solnosky, Gary L. Miller, and Medical Marketing Resources SE, Inc. (“Medical Marketing”) (collectively, “the Clients”), appeal the trial court’s grant of the Law Firm’s motion for judgment on the evidence on its counterclaim against the Clients for unpaid attorney’s fees. The Lawyers cross-appeal the trial court’s denial of their motion for judgment on the evidence on Solnosky’s malpractice claim. We affirm the denial of the Lawyers’ motion for judgment on the evidence, reverse as to the remaining issues, and remand with instructions to reinstate the jury’s verdict.
In Roger J. Schlatter, Jr. v. State of Indiana , a 9-page opinion, Judge Mathias writes:
Roger J. Schlatter, Jr., (“Schlatter”) pleaded guilty in DeKalb Superior Court to Class B felony sexual misconduct with a minor. Schlatter filed a petition for post-conviction relief, which the post-conviction court denied. Schlatter now appeals and claims that the post-conviction court erred in concluding that Schlatter’s trial counsel was not ineffective for failing to present the defense of automatism. Concluding that the defense of automatism was not available to Schlatter due to his voluntary intoxication, we affirm. * * *

Schlatter claims that his trial counsel rendered ineffective assistance by failing to present the defense of automatism. The State argues that the defense of automatism was unavailable to Schlatter in light of his voluntary intoxication. The issue before us is therefore a question of law; if the defense of automatism was not available to Schlatter, then his trial counsel could not have been ineffective for failing to present it. * * *

[A]n automatism defense would not have been available to Schlatter. The allegedly overlooked defense of automatism is a claim the defendant did not act voluntarily as required by Indiana Code section 35-41-2-1. See McClain, 678 N.E.2d at 107. According to Sanchez, however, Schlatter acted voluntarily as required by Indiana Code 35-41-2-1 when he voluntarily became intoxicated. See Sanchez, 749 N.E.2d at 517. Therefore, because Schlatter acted voluntarily in becoming intoxicated, he cannot now claim that his actions which resulted from his intoxication were involuntary, and because he cannot claim that his actions were involuntary, the automatism defense is unavailable to him.

Scott A. Scales v. Diane K. Scales - Affirmed. "While he argues that he did not have access to Wife’s retirement account statement until the final hearing, there is no indication that he ever filed a motion to compel discovery of that statement or made a request for production of it from Wife’s plan administrator. In fact, the record shows that Husband himself failed to comply with Wife’s requests for discovery. The trial court imposed sanctions for his failure to comply with discovery and prohibited him from presenting certain exhibits at the hearing that should have been provided via discovery prior to that date. We will not now allow him to circumvent the trial rules by claiming that he could not have discovered these retirement account figures before the final hearing. The trial court acted within its discretion in denying Husband’s motion to correct error."

In Samuel M. Baumgartner, Jr. v. State of Indiana , a 14-page opinion, Judge Mathias writes:

Baumgartner waived his rights under Criminal Rule 4(C) by failing to object to the trial court setting a trial date which was outside the one-year time limit provided by that rule. Indiana Code section 35-42-4-5 is not unconstitutionally vague, and the evidence is sufficient to support Baumgartner’s conviction thereunder for performing sexual conduct in the presence of a minor.
In Craig E. Teague v. State of Indiana , a 14-page opinion, Judge Friedlander writes:
[W]e find the following restated issue dispositive: Did the trial court err by permitting the State to use Teague’s prior silence to impeach his exculpatory story told for the first time at trial? Because the issue will almost certainly arise on retrial, we also address the propriety of the trash searches. We reverse and remand. * * *

We initially observe that the State’s entire argument with respect to this issue is based on the premise that the State’s cross-examination questions “were directed at [Teague’s] prearrest silence.” We acknowledge that it is permissible to impeach a defendant at trial based upon his pre-arrest, pre-Miranda silence. See Jenkins v. Anderson, 447 U.S. 231 (1980). Contrary to the State’s assertion on appeal, however, the challenged cross-examination testimony regarded Teague’s post-arrest silence, not his pre-arrest silence. [The Court ultimately concludes this is a Doyle violation and that it is not harmless error.] * * *

Here, approximately one or two weeks before the initial trash pull, Detective Early received information from a reliable source regarding cocaine dealing out of Teague’s residence. The informant, who received no incentive for providing information to police, specifically reported that she went to the residence on several occasions with another individual who purchased crack cocaine there. In light of the informant’s reliability and her indication of on-going drug sales at Teague’s residence, we find that the totality of the circumstances gave rise to an articulable and individualized reasonable suspicion of criminal activity, justifying Detective Early’s search of the trash from the residence. See id. As a result, we conclude that the evidence seized pursuant to the trash pulls and the subsequent search warrant was properly admitted at trial.

In Bruce Herdt, Louis Evans and Charlie Milburn v. City of Jeffersonville, Indiana and Common Council for Jeffersonville, Indiana , an 11-page opinion, Judge Brown writes:
The Remonstrators raise three issues, which we revise and restate as whether the trial court erred when it dismissed their complaint for lack of jurisdiction. We affirm. * * *

The Remonstrators failed to comply with the statutory requirement that the written remonstrance signed by the landowners be filed within ninety days after publication of the annexation ordinance. Because Ind. Code § 36-4-3-11 precludes the filing of an amended complaint to add the necessary signatures after the limitations period, the Remonstrators were unable to cure the procedural defect. The trial court was therefore unable to exercise its subject matter jurisdiction over the petition for remonstrance, and we conclude that it did not err in granting the City’s motion to dismiss for lack of jurisdiction. * * *

The Remonstrators also appear to argue that their complaint raises a claim for declaratory judgment that the annexation ordinance is invalid because of certain due process violations committed by the City. However, the Remonstrators did not file an action for declaratory judgment, and we fail to find any language in the remonstrance that could be construed as a prayer for declaratory relief. Likewise, their proposed amended complaint did not present a claim for declaratory judgment.

In James R. Webb v. Nancy J. (Webb) Schleutker, a 19-page opinion, Judge Vaidik writes:
James R. Webb (“Husband”) appeals the trial court’s treatment of the marital property in his dissolution from his wife, Nancy J. (Webb) Schleutker (“Wife”). Wife cross-appeals. The trial court did not abuse its discretion in including soon-to-be harvested crops in the marital pot and, when assigning a value to the crops, subtracting the value of the Husband’s labor in planting, harvesting, and otherwise caring for the crops. Further, it was not an abuse of discretion for the trial court to include in the marital pot crop subsidy payments from the United States Department of Agriculture (“USDA”) earned before and during the period of the parties’ separation, but paid during the period of the parties’ separation. Finding no other error, we affirm.
NFP civil opinions today (2):In Ronald R. Mote and Carrie J. Mote v. Jess A. Wilkinson and Tracy E. Wilkinson (NFP), a 9-page opinion, Judge Kirsch writes:
Ronald R. Mote and Carrie J. Mote (the “Motes”) appeal the trial court’s judgment in favor of Jess A. Wilkinson and Tracy E. Wilkinson (the “Wilkinsons”) on the Wilkinsons’ complaint alleging fraud in the sale of the Motes’ home. The Motes raise several issues, of which we find the following dispositive: whether the trial court erred when it found that the Motes committed fraud by making a material misrepresentation as to the condition of the septic system, which was made with knowledge or reckless ignorance of its falsity. We vacate and remand. * * *

Generally, a seller is not bound to disclose any material facts unless a relationship exists for which the law imposes a duty of disclosure. Id. A duty to disclose has been found “where the buyer makes inquiries about a condition on, the qualities of, or the characteristics of the property.” Id. When a buyer makes such inquiries, “it becomes incumbent upon the seller to fully declare any and all problems associated with the subject of the inquiry.”

Here, in its findings and conclusions, the trial court made the following conclusion: “The court does find credible [Mr.] Mote’s testimony that he reasonably believed the system’s problems had been fixed because of . . . Cole’s observations or [Mr.] Mote’s own efforts to repair the system.” Appellants’ App. at 18. This conclusion is not consistent with many of the trial court’s other conclusions or its judgment that the Motes committed fraud because based on this conclusion, if Mr. Mote reasonably believed that the septic system’s problems had been fixed, any misrepresentations made by the Motes could not have been made with knowledge or reckless ignorance of their falsity. Because of this inconsistency, we vacate the trial court’s judgment and remand for clarification to the trial court to either enter new findings of fact and conclusions consistent with its original judgment or to enter a new judgment based upon the original findings of fact and conclusions.

In the Matter of S.S., Amber S. v. Hamilton Co. Dept. of Child Services (NFP) - "Concluding that the trial court’s judgment terminating Mother’s parental rights is supported by clear and convincing evidence, we affirm."

NFP criminal opinions today (6):

Darryl Jackson v. State of Indiana (NFP)

Maurice L. Brownlee v. State of Indiana (NFP)

Eric Wayne Wilson v. State of Indiana (NFP)

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

Karim Jabr Al Azawi v. State of Indiana (NFP)

Randall Pike v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 15, 2008
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Indiana taxpayers contribute millions to lawmakers' generous pension plan"

Legislators passed a law in 2004 to make confidential the amount of their contributions, and the state's contributions, to their pension plans. Here are some ILB entries from that time:

Indiana Law - More on PERF Privacy and the Star's editorial

The Indianapolis Star editorial last week on "PERF privacy" (see the March 11 Indiana Law Blog entry here, or simply scroll down) caused me to wonder why the push to keep PERF records confidential, other than protecting the obvious such...

Posted in The Indiana Law Blog on March 14, 2004 02:13 PM

Indiana Law - Even More on PERF Privacy

Last week the Indianapolis Star ran an editorial on "PERF privacy," criticizing HEA 1285, now awaiting action by Governor Kernan. The Star editorial said the bill would "close public employee pension records to public scrutiny." (Access the Indiana Law Blog...

Posted in The Indiana Law Blog on March 15, 2004 08:18 AM

Indiana Law - More Information on Proposed PERF Information Lock-Down

More information is available this morning on the proposal, via HEA 1285, to amend various retirement fund laws, including the General Assembly's, to limit public access to fund records. House Enrolled Act 1285 was presented to Governor Kernan on March...

Posted in The Indiana Law Blog on March 16, 2004 09:08 AM

Indiana Law - Governor Kernan Signs PERF Confidentiality Bill into Law

Last evening Governor Kernan announced that he had signed into law HEA 1285. As a result, the law is now in effect, retroactive to September 1, 2003. This new law will prevent anyone from accessing PERF information, other than member...

Posted in The Indiana Law Blog on March 19, 2004 09:59 AM

The March 19, 2004 entry begins:
Last evening Governor Kernan announced that he had signed into law HEA 1285. As a result, the law is now in effect, retroactive to September 1, 2003. This new law will prevent anyone from accessing PERF information, other than member names and years of service, through a FOIA request.
Today Matt Tully of the Indianapolis Star has a story headlined: "Indiana taxpayers contribute millions to lawmakers' generous pension plan: Taxpayers contribute 20% of state lawmakers' salaries to their pensions every year -- a total of $14.2 million since 1992."" It begins:
If you want to understand why so many people don't trust politicians, take a look at the Indiana Legislators' Retirement System.

State lawmakers created this generous perk for themselves in 1989 and then defended it for nearly two decades. The program has allowed lawmakers to quietly build up government retirement accounts beyond the means of average Hoosiers -- even though most lawmakers have other full-time jobs with benefits or are already retired.

How generous is it?

"That is about as lucrative a program as I've ever heard of," Tom Hardin, a financial planner with Canterbury Investment Management in Zionsville, told me. "You wouldn't be able to find that anywhere -- in corporate America or elsewhere."

But you can find it at the Indiana Statehouse, where under the lawmakers' plan, taxpayers hand out a $4 match for every $1 lawmakers invest in their accounts. Year after year, the state contributes an amount equal to 20 percent of a legislator's salary, including hefty per diem payments in many cases.

According to a file leaked to The Indianapolis Star and verified by state officials, lawmakers have contributed $3.6 million to their pension accounts since 1992, when they put the finishing touches on the system. During that same time period, taxpayers contributed $14.2 million to the lawmakers' accounts. (You can go to IndyStar.com to search a database showing how much the state has contributed to each lawmaker's account.)

The Star has created a database so that you can look up a current or past legislator and see the total amount of both the legislator's and the state's contributions to his or her pension. For instance, here is a link to the report on former state Sen. Joseph W. Harrison, who authored HEA 1285 in 2004, the bill that provided that the public may only access legislators' names and years of service, not the amount of the legislators', and the state's, contributions.

Be aware that, as Tully's report notes, the Star database does not include accumulated interest or other ROI:

That doesn't include investment returns. Those figures aren't publicly available. But according to the annual return rates on different funds available to the General Assembly, lawmakers who accumulated [for instance,] $160,000 in contributions since 1992 likely would have more than $215,000 in their accounts -- considerably more if they chose a more aggressive fund.
Tully has a second story today, headed "Pension rules are changing, but the deal's just as sweet." Some quotes:
Lawmakers tweaked the rules, but come January, their pension benefit remains far more generous than other state workers'.

State lawmakers sure can put on a good show.

They staged one in the winter of 2007 before approving a bill to set new rules for their prized pension program. The old rules had become a political grenade, angering voters and producing unflattering headlines. So lawmakers crafted a new set of regulations, and on a February afternoon they stood on the floor of the Indiana Senate and praised their selflessness. * * *

In the end, the new law, which takes effect in January, will ensure lawmakers continue to receive special treatment. And it guarantees their generous pensions are protected. * * *

Come 2009, those rules will change. The special treatment afforded to legislators will not.

Read today's ILB entry in conjunction with this one from March 4, 2007, headed "Senate passes a non-transparent and convoluted pay raise bill."

Here is a list of all the ILB entries on "legislative benefits."

Posted by Marcia Oddi on Friday, August 15, 2008
Posted to Indiana Government | Indiana Law | Legislative Benefits

Environment - New Hampshire's new law regulating outdoor wood boilers goes into effect

As the ILB wrote in this Feb. 12th entry:

The ILB has posted a large number of entries on the possible regulation of outdoor wood-fired boilers or stoves used to heat homes. This entry from Nov. 24, 2007 gives some good background. Because IDEM and US EPA have both failed to act, a number of local entites have explored the possibility of writing their own ordiances
Today New Hampshire's Foster's Daily Democrat reports in a story that begins:
CONCORD — A new law applying to outdoor wood boilers (also known as outdoor wood-fired hydronic heaters) has gone into effect, the state Department of Environmental Services has announced.

Those who already own an outdoor wood boiler or are thinking about purchasing one should know about HB 1405 (Chapter 362, Laws of N.H. 2007) of which certain provisions went into effect on Sunday. The law establishes requirements for the sale, installation and use of the devices.

As of Sunday, clean wood and wood boilers that are purchased and installed after that day and before next Jan. 1, and do not meet certain particulate emission standards as certified by the U. S. EPA, must meet two conditions. First, they must be installed no closer than 200 feet from abutting residence. Second, they must have a permanent attached stack that is at least two feet higher than the peak of the roof of a residence or place of business (not served by the unit) located within 300 feet of the outdoor wood boiler.

Also, all distributors and sellers of outdoor wood boilers are required to provide prospective buyers with a copy of the new law.

Owners of existing outdoor wood boilers that are deemed a nuisance or injurious to public health by either the municipality or the Department of Health and Human Services will now be required to take corrective action. DES will provide technical assistance to the municipality and the Department of Health and Human Services if this situation arises.

Posted by Marcia Oddi on Friday, August 15, 2008
Posted to Environment

Ind. Law - "Vanderburgh commissioners pass abortion regulations"

"Physician seeks law for post-op" was the headline of a story by Amanda Iacone published Aug. 9th in the Fort Wayne Journal Gazette. It reported:

A local gynecologist has asked the Allen County Commissioners to consider a local law that could enhance follow-up care for surgery patients but could also affect a local abortion provider.

The commissioners heard the request Friday from Dr. Geoff Cly, who wants the county to require all surgeons and doctors that provide outpatient invasive procedures to have ties to a local hospital and have on-call, after-hours staff to handle emergencies. * * *

Most local doctors have admitting privileges with local hospitals, but doctors who are transient and come to Fort Wayne only during the day are among the groups that may not have such privileges, Cly said.

The doctor who performs abortions for the lone clinic in Fort Wayne is based in South Bend. Dr. George Klopfer also works in Gary. Klopfer questioned whether county government had jurisdiction to require such a change when he is already licensed through the state.

He said the county couldn’t enforce such a law and that it would likely end up in a lengthy court battle.

Besides the local abortion clinic, such a law would affect other doctors such as plastic surgeons, dentists, and even podiatrists. An out-of-town specialist flown in to assist a hospital patient could no longer be of service because he or she wouldn’t have privileges, Klopfer said. * * *

But a local pro-choice activist felt the proposal was a strange way to limit women’s choices locally. Joan Uebelhoer with the Fort Wayne Feminists said if there is a problem with patient safety in Allen County, the commissioners aren’t suited to fix it.

“I can’t believe that the commissioners would even get involved in such a thing. What is it their business, either legally or personally?” Uebelhoer said. “This is just another way to take woman’s decision-making abilities from her.”

A similar battle has been waged previously in the Indiana legislature.

This year, Cly testified in support of Senate Bill 146, which would have required physicians who perform abortions to have admitting privileges at a hospital in the county or in a county adjacent to where the abortion is performed, and to notify the patient of the hospital location where the patient can receive follow-up care by the physician.

Today Thomas B. Langhorne reports in the Evansville Courier & Press in a story that begins:
Without mentioning the word "abortion" or using it on their public meeting agenda, Vanderburgh County Commissioners unanimously passed an "abortion provider patient safety" ordinance on first and final reading recently. There was no debate.

According to the Associated Press, the ordinance states a doctor may not perform an abortion in Vanderburgh County without having local hospital admitting privileges in the county or an adjacent county. The doctor also must inform the patient where she can receive follow-up care in case of complications.

The ordinance appears on the County Commissioners' Aug. 5 public meeting agenda as "CO.08-08-018 Patient Safety Ordinance." According to meeting minutes and audio and video tapes of the meeting, Commissioners President Jeff Korb called for a motion to waive second reading on what he called "the patient safety ordinance." Korb did not use the word "abortion."

In a procedure that took about 45 seconds, Korb and Commissioners Bill Nix and Troy Tornatta voted first to waive the second reading and then to approve the ordinance. None of them mentioned abortion or discussed the ordinance.

And Ken Kusmer of the AP has a story today headed "Backers of abortion restriction shift strategy" by the Indianapolis Star that reports:
Abortion foes frustrated at the state level are turning to counties to win legislation requiring doctors who perform the procedure to have admitting privileges at local hospitals.

The Vanderburgh County commissioners in Evansville quietly passed such an ordinance last week, and activists are seeking a similar ordinance in Allen County, home to the Fort Wayne Women's Health Organization abortion clinic. Backers say such measures protect patient safety, but abortion providers say they restrict women's access to the procedure.

Local measures mark a shift in strategy for anti-abortion activists, who during the past two legislative sessions watched the state Senate - but not the Indiana House of Representatives - pass bills that would require doctors who perform abortions to have privileges at a local hospital. Measures must pass both chambers to become law. * * *

At first glance, the Vanderburgh ordinance might seem inconsequential, since the Ohio River county has no abortion clinics. Indiana has nine in all, but none south of Bloomington. They provided 10,224 abortions in 2005, the last year for which the Indiana State Department of Health has statistics.

However, Fichter called the passage of the Vanderburgh ordinance, apparently the first of its kind in Indiana, a victory because it makes it harder to establish an abortion clinic in an area of the state that doesn't have one. Some doctors providing abortions in Indiana travel among several clinics that are many miles apart and might not have local hospital admitting privileges.

Right to Life has targeted other "priority counties," Fichter said without identifying them.

Posted by Marcia Oddi on Friday, August 15, 2008
Posted to Indiana Law

Ind. Decisions - More on "Supreme Court hears arguments in Jeff Pelley case"

Updating yesterday's ILB entry about oral arguments to be held that morning in the case of Robert Jeffrey Pelley v.State, today's web stories contain several brief descriptions of the arguments. Recall that on April 8th, the Court of Appeals set aside the conviction, under the speedy trial rule - Criminal Rule 4(C).

From WSBT-TV, in the South Bend Tribune.

From WNDU.com, South Bend.

From WSBT-TV, via the AP.

Watch the oral argument here.

Posted by Marcia Oddi on Friday, August 15, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "High court ponders semantics of plea deal in Steuben sex crime"

The oral argument Thursday (see earlier ILB entry here) before the Supreme Court in the case of Bruce Wayne St. Clair, Jr. v. State is the subject of a story today by Niki Kelly in the Fort Wayne Journal Gazette:

Indiana’s five Supreme Court justices spent the morning Thursday getting back to basics as they heard a Steuben County case that hinges on the definition of the word “recommend.”

Bruce Wayne St. Clair Jr., 21, of Angola, is trying to appeal his sentence in a case of sexual misconduct with a minor. His attorney, Kimberly Jackson, said St. Clair was an 18-year-old special education student when he had sex with his 15-year-old girlfriend of more than a year.

According to a plea agreement in the case, the state agreed to dismiss a higher-class felony and “recommend” a sentence of three years with all but 180 days suspended and 2 1/2 years on probation.

A trial judge found that his plea agreement was “fixed” – or that the both sides had agreed on a specific sentence – and denied St. Clair’s appeal. But the Indiana Court of Appeals said the plea agreement involved only a recommendation and the judge had the discretion to sentence St. Clair to more or less time.

“The words in a contract are to be given the ordinary legal significance,” Jackson argued. “Recommend refers to an action that is advising in action, rather than one having a binding effect.”

Ian McLean, the attorney arguing for the attorney general’s office, contended that the plea was not “open” and that both sides had agreed to a specific sentence. He noted as well that a colloquy between the judge and the defense counsel made clear that St. Clair knew what the exact conditions of the plea were.

“It’s a term of art,” McLean said of the word “recommend” while also noting that he personally would have preferred the document clearly state that the sides agreed on a sentence.

At times the justices smiled and even snickered a bit as they tried to ferret out an acceptable ending to a case complicated by a poorly drafted plea agreement form.

Jackson even said Steuben County prosecutors have since changed the form to remove the word recommend.

“You think it’s ironclad clear that recommend means agree?” Justice Frank Sullivan Jr. asked.

Justice Theodore Boehm followed up by asking, “Isn’t it a much better legal universe if we declare that ‘recommend’ means recommend and ‘agree’ means agree?”

Watch the oral argument here.

Posted by Marcia Oddi on Friday, August 15, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on "Haughee's appeals all are denied"

Updating this ILB entry from July 2, Bob Kasarda of the NWI Times reports today in a story that ebgins:

VALPARAISO | Former Hebron Town Council President Michael Haughee failed again Thursday to persuade a judge to allow him to bond out of jail in order to pursue an appeal of his sexual assault conviction.

Yet he said the loss is one for all inmates at the Porter County Jail.

Haughee, who is a suspended attorney and former Lake County deputy prosecutor, argued he should be released in part because the jail, unlike the Indiana Department of Correction, does not provide inmates access to law books.

"I've been denied that right," he said. "Porter County is not an island. It's not a gulag."

Posted by Marcia Oddi on Friday, August 15, 2008
Posted to Indiana Courts

Ind. Gov't. - No bid sewer contract ruling affirmed [Updated]

For background on this controversy, for which the ILB has had a number of entires, begin with this from April 8th.

Today Dick Kaukas of the Louisville Courier Journal reports:

Floyd Circuit Judge J. Terrence Cody has reaffirmed a March ruling that the New Albany sewer board acted lawfully last year when it awarded a $3.3 million annual contract for operation of the city sewer system without competitive bidding.

Cody said the agreement between the board and Environmental Management Corp, or EMC, was for "professional and technical services," not for a public work, so no bidding was required.

In an order issued last week, the judge rejected a motion from the New Albany City Council that he "correct errors" in the prior ruling when he dismissed the council's lawsuit challenging the contract. * * *

The council had filed suit challenging the sewer board-EMC agreement as well as a separate, $507,000 no-bid contract awarded to EMC last year by the city storm water board.

In his latest ruling, Cody also said no bidding was required for the storm water board contract.

But Cody did grant two other parts of the council's motion to correct errors in his earlier ruling.

In them, Ulrich argued that the storm water contract was void because it hadn't been signed by then-Mayor James Garner and because it obligated the city to payments beyond what was appropriated for the storm water board. Cody said further proceedings on those issues would be conducted when requested by lawyers for the council or the board. * * *

The council, meantime, addressed the no-bid issue by an ordinance in May, adopting a measure that requires bids for contracts between city boards and companies, as outlined in state law.

[Updated 8/16/08] See also this story in the Jeffersonville News & Tribune.

Posted by Marcia Oddi on Friday, August 15, 2008
Posted to Indiana Government

Thursday, August 14, 2008

Ind. Decisions - 7th Circuit issues one Indiana decision today

In Carlos K. Williams v. Buss (ND Ind., Judge Sharp), a 12-page opinion, Judge Wood writes:

Carlos K. Williams was sentenced to 55 years in prison for the murder of Amondo Nelson. Williams filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, claiming that his trial counsel was ineffective, and the district court granted his petition. We find that the claim was procedurally defaulted, and no cause and prejudice has been shown to excuse the default; we therefore vacate the district court’s judgment and remand for denial of the petition. * * *

The district court reached the merits of the petition without discussing the procedural default. Williams, 2006 U.S. Dist. LEXIS 29360 at *5. It should not have done so, because an unexcused procedural default ends the case. See, e.g., Daniel v. Knight, 476 F.3d 426, 435 (7th Cir. 2007). Williams procedurally defaulted his ineffective assistance claim by failing to present it fully to the state courts. He has not shown the type of cause that would excuse this defect, nor has he made any argument demonstrating prejudice. In light of his procedural default, we therefore VACATE the district court’s judgment granting the writ and REMAND with directions to deny the petition.

Posted by Marcia Oddi on Thursday, August 14, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Gary Becker v. Heather Becker, a 4-page opinion, Judge Riley writes:

Appellant-Petitioner, Gary Becker (Becker), appeals the trial court’s Order modifying his child support. We reverse. * * *

Based on Lambert, the trial court abated Becker’s child support obligation from $110.00 to $25.00 per week, effective February 22, 2007, the date of our supreme court’s Lambert decision, until August 25, 2009, the date of Becker’s projected earliest possible release from incarceration. * * *

[W]e conclude that the trial court abused its discretion by making the abatement of Becker’s child support obligation retroactively effective to a date before the date Becker filed his request to modify child support. The modification of child support of $25.00 per week is hereby entered beginning December 28, 2007, and continuing until further hearing in the trial court to determine child support upon Becker’s release from incarceration.

In Paternity of C.H.W., Jeffrey H. Smith v. Lisa H. Weedman, an 18-page decision with 3 opinions, one of them dissenting, Judge Riley writes:
Appellant-Respondent, Jeffrey Smith (Smith), appeals the trial court’s Findings of Fact and Conclusions of Law, ordering Smith to pay the extraordinary educational expenses for the private school education of his minor child. We affirm. * * *

We find that the trial court did not abuse its discretion when it ordered Smith to pay 41% of C.H.W.’s extraordinary educational expenses for his elementary private school. * * *

ROBB, J., concurring with separate opinion. * * *
BAKER, C.J., dissenting with separate opinion. [which concludes] The majority relies on Father’s past failure to pay child support and obstreperous behavior during discovery in concluding that the trial court found him able to pay the costs of tuition. Slip op. p. 11. I cannot see how this past behavior in any way supports a conclusion that the trial court considered Father’s ability to pay the tuition and found that he is, in fact, able to do so. There is neither any indication whatsoever that the trial court made this required inquiry nor findings supporting the order that Father pay for a portion of the ISI tuition costs. Therefore, I would reverse this portion of the trial court’s order.

NFP civil opinions today (3):

Lori Caldwell v. Adolphus A. Anekwe, M.D., et al (NFP) - "Caldwell failed to demonstrate a genuine issue of material fact regarding informed consent. Accordingly, we find that the trial court properly granted the Defendants’ renewed motion for summary judgment."

Aaron Israel v. David J. Donahue, et al (NFP) - "Because Israel is challenging his assignment to the Secure Housing Unit and because enforcement of prison disciplinary sanctions are not subject to judicial review, Israel’s claim is not a claim upon which relief may be granted. Accordingly, Israel’s claim is dismissible under the Frivolous Claim Law. We therefore affirm the trial court."

Russel Dean Banks v. Donna Sue Banks (NFP) - "Based on the foregoing, we conclude that the trial court needs to clarify whether it intended to deviate from an equal division of the marital estate, and if so, explain the reason for the deviation and make findings as to the amount and percentage of the marital estate being distributed to each party. If the trial court does not intend to deviate from an equal split of the marital estate, the trial court should adjust the division of the marital estate accordingly."

NFP criminal opinions today (3):

Dwight Vandiver, Sr. v. State of Indiana (NFP)

Garry D. Shuler v. State of Indiana (NFP)

Libraye M. Harris v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 14, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Supreme Court hears arguments in Jeff Pelley case"

The Supreme Court heard oral arguments this morning in the case of Robert Jeffrey Pelley v.State, over whether or not to grant transfer. See the oral argument here.

On April 8th, the Court of Appeals set aside the conviction, under the speedy trial rule - Criminal Rule 4(C).

South Bend's WSBT is reporting:

INDIANAPOLIS — The Indiana Supreme Court is deciding whether or not to take the case of a Lakeville man convicted of killing his family.

A jury convicted Jeff Pelley of murdering his father, stepmother and two stepsisters in 1989.

Police arrested him 13 years later, but his trial didn't start until four years after that.

In April, Indiana's Court of Appeals overturned his conviction, ruling prosecutors took too long to take him to trial.

If the Supreme Court agrees to take the case, it could take months to decide Pelley's fate. If they decide not to take the case, the Court of Appeals' decision will stand and he will go free.

Posted by Marcia Oddi on Thursday, August 14, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - JTAC Odyssey Case Management System expanded

From a press release:

The Indiana Supreme Court has agreed to invest an additional $1.1 million to acquire a computer system to provide advanced probation, community corrections, and other court supervisions functions, Justice Frank Sullivan, Jr., told the leadership of the Probation Officers’ Professional Association of Indiana at its monthly meeting today. The new features will comprise the “Supervision Module” of the Supreme Court’s Odyssey Case Management System, a computer system that Indiana trial courts and court clerks use to record and manage information on pending cases, Sullivan said.
Currently the Odyssey system is up and running only in Monroe County plus one Marion County small claims court. According to the release:
Odyssey has been installed in the nine Circuit Courts of Monroe County and in the Marion County Washington Township Small Claims Court since December, 2007, and January, 2008. Work is underway to install Odyssey in the courts of Warren and Tipton Counties during August and September, 2008, and in the courts of Allen, Clark, DeKalb, Floyd, Hamilton, Harrison, Huntington, Madison, and additional Marion County Small Claims Courts later in 2008 and the first half of 2009.

Posted by Marcia Oddi on Thursday, August 14, 2008
Posted to Indiana Courts

Ind. Courts - "Porter County judges seeking higher pay for their court workers"

Vicki Urbanik reported yesterday in a lengthy story in the ChestertonTribune:

Porter County’s judges are seeking higher pay for their court workers, in part because the salaries and perks for other county government employees outweigh those of court personnel.

Porter County Superior Court Judge Julia Jent told the Porter County Council at budget hearings Tuesday that unlike other county employees, court workers do not get breaks built into their work day. They must stay at work for as long as court proceedings take, sometimes working late into the night, she said.

“Our staff is lucky to take a lunch break,” she said.

Also speaking in support for higher court worker pay was Porter County Circuit Court Judge Mary Harper, who said that taking into account vacation, sick days and personal days, county employees actually get up to five more paid days off than court staff. * * *

On behalf of all the county’s judges, Jent requested raises ranging from 2.3 percent to 3.9 percent for court staff, in addition to whatever raise is given to all county employees.

Under the request, the pay for a court executive assistant would go from $27,895 to up to $28,983, while the pay for court secretaries would climb from $26,250 to up to $27,273. The pay for a court reporter would go from $34,881 to $35,701 and for a bailiff, from $31,845 to $33,128. The salary amounts are somewhat different for the employees in the magistrate courts.

Jent’s report compared the pay for other secretaries elsewhere in county government and found that several other departments pay their employees several thousands of dollars more than the courts do.

Posted by Marcia Oddi on Thursday, August 14, 2008
Posted to Indiana Courts

Ind. Courts - "Federal judge throws out lawsuit filed against US attorney"

No surprises here. A brief story today in the NWI Times reports:

HAMMOND | A man who tried to sue the assistant U.S. attorney who prosecuted him for selling a handgun to a felon on school property has had his civil lawsuit thrown out of court.

Dwayne Haskins, of Gary, tried to sue federal prosecutor Dean Lanter for showing jurors an edited video of Haskins confessing to federal agents that he had sold a handgun to the felon while working as a school security supervisor.

Haskins claimed the edited portions of the tape would have supported his side of the story, and now says he never knew the gun buyer was a felon.

U.S. District Judge Rudy Lozano threw the civil lawsuit out of court, noting that prosecutors have an absolute right of immunity for actions taken while performing functions as government advocates, such as prosecuting criminals.

Posted by Marcia Oddi on Thursday, August 14, 2008
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "Randolph Central board's closed meeting violated law, according to open records office"

Joy Leiker reports today in the Muncie Star-Press:

RIDGEVILLE -- When the Randolph Central School Board asked member Dana Cox to resign Tuesday, behind closed doors, it did so illegally, according to the Indiana Public Access Counselor's office.

Boards can meet in executive session to discuss some personnel issues, but that right doesn't extend to elected officials like Cox. Instead, such privacy is intended for employees and students.

Tuesday night, an hour before the regular board meeting, the five members of the Randolph Central board met inside Deerfield Elementary School. (The executive session had been scheduled to address issues related to resignations and appointments of other personnel, but those issues were resolved before Tuesday's meeting.) The board opted not to cancel the executive session, and instead use it to address Cox.

Cox said he was given two options -- either to resign, and sign a resignation letter that had been prepared for him, or know that the board planned to ask for his resignation publicly at the forthcoming meeting, and also censure him.

On Aug. 2 Cox was arrested in downtown Muncie for soliciting a prostitute.

Tuesday night he didn't resign, and the other board members voted 4-0 for a motion that both sought his resignation and also censured him for his "alleged misconduct and the undue attention that it has brought to Randolph Central."

Posted by Marcia Oddi on Thursday, August 14, 2008
Posted to Indiana Government

Wednesday, August 13, 2008

Ind. Courts - "System brings video arraignment to LaGrange County courts"

From WTHD 105.5, serving NE Indiana, comes this story by Tim Murray, complete with photo and audio, but check it soon because the stories aren't archived.

LAGRANGE - It's a major step into the 21st century for LaGrange County's two courts.

A new 40-thousand dollar digital recording system is providing a big technology boost in both Circuit and Superior courts.

The system provides a digital means of recording and archiving the courtroom proceedings.

It's also allowed the introduction of video arraignment of detainees at the LaGrange County Jail. They now make their initial court appearances from a special area at the jail that is set up for video conferencing.

LaGrange Superior Court Judge George Brown says the system will reduce the number of trips from the jail to the courthouse.

Sheriff Terry Martin says the other main benefit is not having to transport prisoners who may be security risks.

Posted by Marcia Oddi on Wednesday, August 13, 2008
Posted to Indiana Courts

Ind. Decisions - More on: 7th Circuit rules in Indiana case where defendant wore stun-belt throughout trial

The 7th Circuit's decision in Wrinkles v. Buss, summarized here in the ILB yesterday, August 12th, is the subject of a story this afternoon in the Louisville Courier Journal by Tom Coyle of the AP. Some quotes:

A federal appeals has rejected the appeal of an Indiana man sentenced to death for the 1994 murder of his estranged wife and two of her relatives.

Matthew Eric Wrinkles, 48, of Evansville was convicted in 1995 in the murders of Debra Jean Wrinkles, 31; her brother, Mark “Tony” Fulkerson, 28; and Fulkerson’s 26-year-old wife, Natalie “Chris” Fulkerson. Wrinkles’ attorneys argued that he should have received a new trial because jurors were biased since they could see he was wearing a stun belt during his trial.

In a 2-1 decision, a panel of the 7th U.S. Circuit Court of Appeals in Chicago on Tuesday affirmed a ruling by District Judge John Daniel Tinder that Wrinkles could not demonstrate prejudice because the jury was not aware he was wearing the stun belt. * * *

At the time of the trial, Vanderburgh Circuit Judge Richard Young informed Wrinkles he had to wear a shackles or a stun belt because it was the court’s policy. A stun belt is a battery-powered device devices designed to deliver electric shocks to wearers if they become violent.

In 2001, the Indiana Supreme Court banned the use stun belts to restrain defendants in courtrooms, ruling the devices could interfere with a person’s defense. That ruling was the result of the appeal by Wrinkles.

But the high court rejected Wrinkles’ claim that his attorneys were ineffective because they did not object to him being forced to wear the belt. Wrinkles’ trial attorneys chose the device over shackles because they believed it would not be visible to jurors.

Although Wrinkles presented affidavits from three jurors who claimed to have seen the stun belt during the trial, Tinder ruled that Wrinkles did not prove that the belt was visible or that the jury knew about it. The Appeals Court upheld that finding.

Posted by Marcia Oddi on Wednesday, August 13, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Goats OK in Fortville backyard

Bill McCleery of the Indianapolis Star reports:

A Hancock County judge has ruled that a Fortville town ordinance does not prohibit a local couple from keeping goats in their backyard.

Residents Joshua and Sarah Brown sued the town in June after Fortville officials in the spring ordered them to get rid of their two goats. County Judge Terry Snow ruled Tuesday that by having goats on their property, the Browns did not violate the town’s ordinance against keeping farm animals within town limits.

The ordinance, Snow noted, specifically enumerates which animals are prohibited — without mentioning goats.

“We can bring our goats home anytime we want to,” Sarah Brown said Tuesday afternoon after the ruling. “They’re at a friend’s farm right now.

Ejustem generis?

Posted by Marcia Oddi on Wednesday, August 13, 2008
Posted to Indiana Courts

Law - "Plaintiffs' Lawyers Fight Restrictions On Product-Liability Suits"

From today's WSJ, an article by Alicia Mundy on the upcoming:

Supreme Court case, Wyeth v. Levine, which is to be heard Nov. 3, could affect lawsuits involving products such as cars, toys and flammable mattresses.

Corporate defense lawyers are also girding for battle. A spokesman for the Chamber of Commerce Institute for Legal Reform said, "Pre-emption will be one of the top issues in Congress next year, and we'll be focusing significant resources on it."

Trial lawyers are expected to be heavily outspent. The chamber, which has helped drive the pre-emption and tort-reform campaign, intends to raise $40 million for political candidates this year.

The Bush administration has over the past few years circumvented Capitol Hill by weakening regulatory agencies' safety rules and adding introductions, called preambles, to public-safety regulations that effectively prohibit plaintiffs from suing at the state level, where safety standards can be tougher than those at the federal level.

Pre-empting plaintiffs' right to sue will come under the microscope in the Wyeth case. The case centers on Diana Levine, a professional guitarist who lost an arm to gangrene after a receiving a shot to treat a migraine headache in 2000.

See the SCOTUSBlog Wiki on Wyeth v. Levine here.

Posted by Marcia Oddi on Wednesday, August 13, 2008
Posted to General Law Related

Ind. Courts - "Floyd County judge upset with renovation plans"

Chris Morris reports this afternoon in the Jeffersonville News & Tribune:

Glenn Hancock didn’t attend Tuesday night’s Floyd County Council meeting as a judge. He said he was there simply as a taxpayer.

And he had plenty to say about the proposed renovations planned for the fourth floor of the City-County Building.

The Floyd County Commissioners recently awarded a $716,565 bid to Upton Pry Inc., to renovate the fourth floor — to include the construction of a new superior courtroom and relocation of the public defender and drug and alcohol office to the first floor. It also includes moving the county court probation offices to the M.L. Reisz building and turning that area into conference rooms.

That is the part that has Judge Hancock upset.

He said not only will moving his probation offices to the Reisz building hurt the efficiency of his court, he also said building three conference rooms is a waste of space and money.

“I’m speaking up for the taxpayers now,” Hancock said. “Moving probation offices to create three meeting rooms which will not be used makes no sense.”

Hancock said the plans he saw for the fourth floor didn’t have the conference rooms. He said those were added at a special meeting.

“I’m not saying it wouldn’t be nice to have a lawyer area, but we have never had a problem before finding a place to meet with clients,” he said.

Councilwoman Dana Fendley said she was at the meeting where the conference rooms were added. She said other attorneys said having three conference rooms will get people out of the hallway and will allow a much-needed area for attorneys to meet with clients.

Hancock said there are usually two to three jury rooms sitting empty that could serve as meeting areas. He also said there will always be lawyers and clients in the hallway discussing cases because that is the nature of the business.

“On Wednesday, we will see 85 to 100 people. We would have to have 90 meeting rooms to solve this problem,” he said. “It’s a terrible waste of money and will make the court less functional by moving probation officers out of the building.”

Hancock also said it’s a waste of gas and money for his probation officers to travel back and forth from the Reisz building to the City-County Building.

“They are in court a lot,” he said.

Council President Larry McAllister asked Hancock to draft a letter discussing his concerns and said he would personally present it to the commissioners at the board’s Aug. 19 meeting.

Work will begin soon on the fourth floor since the new superior court has to be completed by Jan. 1.

Posted by Marcia Oddi on Wednesday, August 13, 2008
Posted to Indiana Courts

Ind. Decisions - 7th Circuit issues two Indiana opinions today

In Getch v. Astrue (ND Ind., Cherry, Magistrate Judge), 20-page opinion, Judge Ripple writes:

Charles Getch appeals the order of the district court upholding the Social Security Administration’s denial of his application for Disability Insurance Benefits. Mr. Getch contends that the Administrative Law Judge (“ALJ”), who denied his application for benefits, erred in concluding that environmental conditions at his former workplace did not prevent him from resuming his past work as a seam welder. Mr. Getch also contends that the ALJ failed to consider the combined impact of his health problems and erred in finding his testimony not fully credible. Finally, Mr. Getch argues that the Social Security Appeals Council erred in concluding that new evidence did not warrant rehearing before the ALJ. For the reasons set forth in this opinion, we reverse the judgment of the district court and remand for further proceedings before the agency.
In US v. Bender and Johnson (SD Ind., Judge Young), a 13-page opinion, Judge Sykes writes:
Vishnu Bender and Tony Johnson were convicted of conspiracy to distribute cocaine, cocaine base, and marijuana stemming from their involvement in a drug-distribution network operating between Chicago and Evansville, Indiana. Bender challenges the sufficiency of the evidence of a conspiracy and also claims he was denied his counsel of choice in violation of the Sixth Amendment. Johnson argues the district court improperly denied his motion for a new trial. That motion was premised on an alleged violation of the district court’s witness-sequestration order. In support of the motion, Johnson submitted a letter from a jail inmate who claimed to have overheard some of the coconspirator-witnesses discussing the case in their jail cell and expressing a willingness to lie in order to get reduced sentences.

We affirm. The evidence of Bender’s involvement in the charged drug conspiracy was overwhelming and included the usual array of intercepted telephone conversations, drug-seizure evidence, and extensive testimony from coconspirators regarding Bender’s role in maintaining the wholesale flow of drugs from Chicago to Evansville. Regarding the Sixth Amendment claim, the attorney Bender wanted to represent him declined to do so once alerted by the government to a possible conflict of interest. Moreover, by the time of trial, the attorney’s law license was suspended as a consequence of his own conviction on a drug charge. There was no Sixth Amendment violation.

Finally, Johnson’s argument about an alleged violation of the sequestration order is misplaced. The court’s order was entered pursuant to Rule 615 of the Federal Rules of Evidence, which permits the trial court to exclude witnesses from the courtroom “so that they cannot hear the testimony of other witnesses.” There is no evidence suggesting that any of the coconspirator-witnesses conveyed the substance of their testimony to one another. Regardless, only one of the witnesses the inmate-informant allegedly overheard discussing the case in the jail actually testified about Johnson’s involvement in the conspiracy; the testimony of the others pertained to Bender only. Johnson had ample opportunity at trial to cross-examine this witness about his motives and incentives for testifying.

Posted by Marcia Oddi on Wednesday, August 13, 2008
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (2):

In Cemantha Sidell Wolljung v. Joseph Sidell, an 8-page opinion, Judge Najam writes:

Cemantha Sidell Wolljung (“Mother”) appeals from the trial court’s order granting a motion filed by Joseph Sidell (“Father”) to modify custody of the parties’ minor child, S.S. Mother presents a single issue for review, namely, whether the trial court abused its discretion when it granted Father’s motion based on Mother’s intent to relocate with the child. * * *

The relocation statutes do not require findings of fact, but, at a minimum, there must be evidence in the record on each of the factors listed in Indiana Code Section 31-17-2.2-1(b). We agree with Mother that the record before us does not demonstrate that the parties or the trial court fully considered or took into account the statutory factors in Indiana Code Section 31-17-2.2-1(b). Thus, we reverse the trial court’s order modifying custody and remand to the trial court with instructions to conduct another hearing on Father’s motion to modify custody and to hear evidence on each of the statutory factors. See Ind. Appellate Rule 66(C)(3). Absent exigent circumstances, the court shall order the parties to maintain the status quo vis-à-vis the child’s custody and parenting time under the trial court’s September 12, 2007, Order pending the outcome of the new hearing, which shall be conducted within thirty days from the date of this opinion. Reversed and remanded with instructions.

In Samara J. Copas v. State of Indiana , a 9-page opinion, Judge Najam wrties:
Copas raises a single issue for our review, which we restate as whether the State’s seizure of a blood sample from Copas while she was unconscious was supported by probable cause, as required by the Fourth Amendment to the United States Constitution. * * *

Our standard of review here is well-established: * * * “Significantly, ‘probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.’” Eaton v. State, 889 N.E.2d 297, 2008 Ind. LEXIS 497 at *3 (Ind. June 30, 2008) (quoting Gates, 462 U.S. at 245 n.13). * * *

All the relevant facts must be taken together, and the conclusion that Copas was operating the Suburban while intoxicated, while not a necessary conclusion, is within the “fair probability” required to establish probable cause. See Query, 745 N.E.2d at 771. While Copas might ultimately challenge the sufficiency of the State’s evidence at trial, her arguments are not enough to defeat the “fair probability” that she operated the vehicle while intoxicated, which is all that is required for probable cause. See, e.g., Ware v. State, 859 N.E.2d 708, 720 (Ind. Ct. App. 2007) (“The amount of evidence necessary to meet the probable cause requirement . . . is determined on a case-by-case basis, and is less than the level of proof necessary to establish guilt beyond a reasonable doubt.”) (quoting Ross v. State, 844 N.E.2d 537, 542 (Ind. Ct. App. 2006)), trans. denied. Accordingly, we affirm the trial court’s denial of Copas’ motion to suppress the blood evidence. Affirmed.

NFP civil opinions today (2):

Melinda, Gary, and Kady Smith v. American Service Ins. Co., Inc. (NFP) - "There is no question a failure to agree exists here. It is clear ASI never agreed to provide uninsured motorist benefits in an amount that Melinda believed was adequate, regardless of whether the amount ASI “offered” was $2,500 or $0. Thus, the Smiths were required to submit an arbitration demand within two years and they did not do so. We find the Smith’s arguments to be without merit.

"Conclusion. The trial court lacked discretion to consider the evidence presented by the Smiths at the summary judgment hearing, and the grant of the motion for summary judgment in favor or ASI was proper. We affirm the trial court."

Arbor Homes, LLC v. Beacon Pointe, LLC (NFP) - "Arbor Homes, LLC (“Arbor”) appeals the trial court’s authorization of Beacon Pointe, LLC’s (“Beacon”) sale of property to GMD Brown, LLC (“GMD”). We affirm.

"Arbor raises multiple issues, and Beacon urges us to dismiss the appeal as moot. We consolidate and restate the issues as: I. whether the appeal is moot because the sale of the property is complete; and II. whether the trial court abused its discretion in approving the sale to GMD."

NFP criminal opinions today (2):

Abel Lopez v. State of Indiana (NFP)

Jerald Anthony Minzey v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 13, 2008
Posted to Ind. App.Ct. Decisions

Law - "Are Contingency-Fee Arrangement Between an Attorney General and a Private Law Firm Illegal?"

Tobacco litigation. Asbestos litigation. Lead paint litigation. An interesting article today on Findlaw.com by Anthony J. Sebok, a Professor at Benjamin N. Cardozo School of Law in New York City, titled "Should State Attorneys General Use Private Law Firms to Pursue Civil Suits? An Appeal to the California Supreme Court Raises This Hot-Button Issue."

Posted by Marcia Oddi on Wednesday, August 13, 2008
Posted to General Law Related

Ind. Law - Still more on: "Hammond's red light camera ordinance not legal"

Updating this ILB entry from yesterday, where the Lafayette Journal & Courier reported: 'Both Lafayette and West Lafayette mayors said Monday they'll lobby state lawmakers to create a law authorizing municipalities to use red light cameras", today the NWI Times has a story headlined "Downstate mayors to push for law allowing red light cameras", noting:

Hammond was not alone in its interest in installing the cameras, but it was the first community to go so far as to enact an ordinance.

That interest now extends to Lafayette Mayor Tony Roswarski, who said he'd like to talk to legislators about passing such a law.

Posted by Marcia Oddi on Wednesday, August 13, 2008
Posted to Indiana Law

Ind. Law - Still more on golf carts in Lebanon

Updating this ILB entry from June 26th, the Boone County FastNews had a report yesterday headed: "Golf cart use still illegal on city streets":

LEBANON — City attorney Eileen Sims reiterated at Monday night's meeting of the Lebanon City Council that driving golf carts on city streets is technically illegal.

Sims commentary came after Council President Dick Robertson asked her the status of city and state laws regulating golf cart use.

In 2006, the council passed an ordinance to regulate the use of golf carts in Lebanon, which had become widespread during summer months. The ordinance allowed use of golf carts by those who purchased an annual permit, except on streets that were also state highways, such as Lebanon and South streets.

Indiana State Police, however, continued to ticket those who drove golf carts on local streets, citing state code that prohibited that activity. The City of Lebanon suspended the issuance of golf cart permits in 2007. Then-Mayor Jim Acton said Lebanon Police would not issue tickets for golf cart use, but warned that ISP might.

It been speculated that the matter could be addressed at the state level during the next session of the Indiana General Assembly.

Posted by Marcia Oddi on Wednesday, August 13, 2008
Posted to Indiana Law

Ind. Law - "Digital billboard gets nod from zoning board"

Updating this ILB entry from May 18th (the first half of which talks about plain old-fashioned billboards), y Jeff Swiatek reports today in the Indianapolis Star that begins:

Marion County is a step closer to getting its first electronic digital billboard after the company agreed to decrease the number of images that would be displayed.

The Indianapolis Zoning Board voted 3-2 Tuesday in favor of a zoning variance requested by Lamar Advertising Co. to convert the west-facing side of its billboard at East 86th Street and the White River to a digital form.
Advertisement

Lamar's attorney agreed to the board's request to lengthen the time an image would be displayed on the sign from one advertisement or message every 10 seconds to one every 15 seconds. Lamar also agreed to post for free public service messages on the 14-by-48-foot billboard, including missing children reports and weather and traffic alerts.

If the request receives final approvals from the Metropolitan Development Commission and the City-County Council, the location would be the first digital billboard in Marion County.

Several already exist in counties surrounding Indianapolis, and the city also has allowed businesses to post digital signs on their properties, such as one at the main 86th Street entrance to Castleton Square Mall.

Posted by Marcia Oddi on Wednesday, August 13, 2008
Posted to Indiana Law

Environment - Major pipeline break near Indiana border; Last of VX nerve agent eliminated at Newport

Significant oil spill in Illinois. From the Evansville Courier & Press, a story (with map) by Len Wells that begins:

GOLDEN GATE, Ill. — The weekend pipeline break that released 5,000 barrels of crude oil onto southeastern Illinois fields has been termed a "significant" spill by federal authorities.

Any spill greater than 100,000 gallons is considered "significant" by the Environmental Protection Agency. The spill at Golden Gate, in Wayne County, equals about 210,000 gallons.

A 20-inch transmission line running from a tank farm near Patoka, Ill., to Owensboro, Ky., failed Sunday morning. The site, on the William Rickett farm, is so remote that contractors had to build a nearly two-mile-long gravel road from the closest township road to access it.

The new road will allow oil field vacuum trucks to drive in to suction up oil that has been contained by emergency crews.

Marathon Oil said workers had recovered about a quarter — 1,305 barrels — of the oil as of Tuesday afternoon.

Nerve gas. Deb Kelly reports in the Terre Haute Tribune Star:
On Aug. 8, personnel at the Newport Chemical Agent Disposal Facility confirmed the last ton container of VX had been successfully neutralized, marking the completion of stockpile elimination at the Newport Chemical Depot.

For nearly 40 years, workers at the facility have safely stored 1,269 tons of the Cold War-era liquid chemical agent VX in the steel containers.

Hydrolysate, the resulting byproduct of the neutralization process, is sent to Veolia Environmental Services in Port Arthur, Texas for final disposal. The Army receives Chemical Weapons Convention treaty credit for chemical destruction when the hydrolysate is transferred from shipping containers at Veolia.

“This day marks a tremendous milestone for the workers at Newport, the citizens of Indiana and the rest of the world,” said U.S. Army Chemical Materials Agency Director Conrad Whyne. “Newport's stockpile has been safely eliminated, which brings the United States one step closer to fulfilling the commitment of destroying our nations’ chemical weapons.”

Posted by Marcia Oddi on Wednesday, August 13, 2008
Posted to Environment

Ind. Decisions - "New trial for losers in $450,000 verdict"

The Court of Appeals 2-1 opinion yesterday (see ILB summary here - 4th of the NFPs) in the case of Rudrappa and Jayashree Gunashekar v. Kay Grose, d/b/a America's Affordable Housing J & K Mfg. (NFP) is the subject of a story today by Rebecca S. Green in the Fort Wayne Journal Gazette that begins:

A Fort Wayne man who lost a lawsuit and ended up with a nearly $450,000 judgment against him will have a new trial after a ruling by the Indiana Court of Appeals.

Rudrappa Gunashekar and his wife, Jayashree Gunashekar, will again have the opportunity to defend themselves in a civil lawsuit filed by Kay Grose accusing them of stealing $130,196 from her company.

On Tuesday, the Indiana Court of Appeals ruled that Allen Superior Court Judge Nancy Boyer abused her discretion by not allowing the Gunashekars time to obtain a new attorney after theirs quit six weeks before a July 2007 trial.

According to court documents, the lawsuit grew out of a 2002 fire at a commercial building owned by the Gunashekars.

Rudrappa Gunashekar hired Grose and her company, America’s Affordable Housing, to repair and improve the property. In September 2002, an insurance company issued a check for $130,196, payable to Rudrappa Gunashekar and Grose. Gunashekar deposited the entire check in a bank account and made a partial payment to Grose. The check Grose was given was not honored.

In 2005, Grose sued for the unpaid balance and damages for criminal conversion and deception, winning contract damages of $147,337 and other damages of $296,520, according to court documents.

Weeks before the trial, the Gunashekars’ lawyer quit and Boyer denied a request to delay the bench trial, causing the Gunashekars to proceed without a lawyer.

After losing their case, the Gunashekars asked Boyer to reverse her decision, saying they were from India and non-native English speakers. Boyer denied their request and they appealed to the higher court, according to court documents.

Posted by Marcia Oddi on Wednesday, August 13, 2008
Posted to Ind. App.Ct. Decisions

Tuesday, August 12, 2008

Ind. Courts - "Motion filed to pull driver’s license in judge’s drunken driving case"

Rebecca S. Green reports this evening in a story posted on the Fort Wayne Journal Gazette website that begins:

Marion County prosecutors filed paperwork Tuesday to take away an Allen County judge's driver's license after he was arrested for drunken driving.

In a motion filed Tuesday, prosecutors asked a judge to suspend Allen Circuit Judge Thomas Felts' driving privileges while his misdemeanor criminal case progresses. Last week, blood test results revealed Felts' blood-alcohol content measured at more than twice the legal limit when he was arrested in downtown Indianapolis in the early morning of July 18.

Under Indiana law, a positive blood-alcohol test allows prosecutors to seek a license suspension, officials said.

The Marion County judge can merely sign the order without a hearing, said Matthew Symons, spokesman for the Marion County Prosecutor's Office.

Posted by Marcia Oddi on Tuesday, August 12, 2008
Posted to Indiana Courts

Courts - More on "Ohio Judges See More Do-It-Yourself Divorces and System Slowdown "

Updating this ILB entry from July 22nd on self-representation by divorcing parties in Ohio said to be clogging up the system (an entry that includes at the end information about Indiana's online self-service legal center, established via the Indiana Supreme Court, with divorce and other court forms, information on how to find a lawyer, etc.) , today Molly McDonough of the ABA Blog reports:

There may be a trend nationally to establish more self-help centers in courthouses and public spaces to aid those who are choosing the pro se route in court. But not in Texas.

A pilot program meant to test the self-help waters in San Antonio is sunk.

The center, which in pilot form was staffed by two lawyers and housed in law library of the Bexar County Courthouse, drew strong opposition from area practitioners, Texas Lawyer reports.

The initial project was championed by 407th District Judge Karen H. Pozza and some San Antonio Bar Association leaders. Permanent funding for the clinic would have come from an $11 increase to local filing fees.

But, Texas Lawyer reports, approval of the project "led to an uproar among solos and other attorneys who practice family law in Bexar County courts."

With that, court commissioners reversed and the two lawyers and clerk hired to staff the clinic are out of jobs.

Posted by Marcia Oddi on Tuesday, August 12, 2008
Posted to Courts in general

Ind. Law - More on: "Barnes & Thornburg is cutting its summer associate program next year in its Chicago office"

Apparently not just B&T anymore. Updating this ILB entry from Aug. 6, Lynne Marek of The National Law Journal reports today:

Arnstein & Lehr is the latest Chicago law firm to say it will abandon its summer associate program next year, explaining that the difficulty of estimating its hiring needs two years in advance so it can extend some of those associates job offers is more trouble than the program is worth.

"For a firm our size, the crystal ball just isn't good enough to tell us," said Raymond Werner, chairman of the firm. "It's really a predictability of needs issue." * * *

Barnes & Thornburg also said recently that it would cease its summer associate program in the Chicago office, though it will continue in some of the firm's other offices. That firm also noted the difficulty of planning for hiring needs so far in advance.

Chicago's Freeborn & Peters hasn't had a program for at least two years and Much Shelist, also based in Chicago, hasn't had one for 10 years. Much Shelist Chairman David Brown said his firm has been pleased with its ability to get associates with two to five years experience after they've had a dose of big-firm work.

Posted by Marcia Oddi on Tuesday, August 12, 2008
Posted to Indiana Law

Ind. Decisions - 7th Circuit rules in Indiana case where defendant wore stun-belt throughout trial

In Wrinkles v. Buss (SD Ind., Judge Tinder), a 53-page, 2-1 opinion, Judge Kanne writes:

This case is before the court on collateral review. In 1995, a Vanderburgh, Indiana, Circuit Court jury convicted Matthew Wrinkles of murdering his wife, his wife’s brother, and his sister-in-law. The jury recommended and Judge Richard L. Young imposed a death sentence. Wrinkles unsuccessfully appealed his conviction and sentence to the Indiana Supreme Court, and thereafter, Judge Carl Heldt of the Vanderburgh Circuit Court denied his request for post-conviction relief. Wrinkles then filed a petition for a writ of habeas corpus, 28 U.S.C. § 2254, in the United States District Court for the Southern District of Indiana. Wrinkles argued that his constitutional rights were violated during the trial and sentencing proceedings because, pursuant to the Indiana trial judge’s blanket policy of restraint, he was required to wear a stun belt that he alleges was visible to the jury.

Wrinkles was barred from raising a direct challenge to the constitutionality of the stun belt because he procedurally defaulted the claim in state court. Wrinkles instead claimed that he received ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), because his counsel failed to object to the imposition of the stun-belt restraint. With respect to the prejudice prong of Strickland, Wrinkles claimed that the jurors saw the stun belt, and that he presumptively suffered prejudice as a result. United States District Judge, John Daniel Tinder, concluded that Wrinkles could not demonstrate prejudice because the jury was not aware of the stun belt.

Wrinkles’s habeas claim hinges on whether the jurors saw the stun belt during the trial and the sentencing proceedings. One passage in the Indiana Supreme Court’s opinion—actually, one sentence—complicates our review. We ultimately conclude that the Indiana Supreme Court made no factual finding regarding the belt’s visibility. The last state-court decision on point—the post-conviction court decision—holds that the jurors did not see the belt. We defer to that finding and agree with the district court that Wrinkles suffered no prejudice from his counsels’ failure to object to the stun belt. * * *

Without evidence that the jurors saw the stun belt, or that he was otherwise affected by the stun belt throughout trial, Wrinkles cannot demonstrate prejudice. See Strickland, 466 U.S. at 694. He therefore cannot show that he received ineffective assistance of counsel, so he cannot demonstrate the requisite cause and prejudice necessary to overcome his procedural default. Guest, 474 F.3d at 930. Thus, this Court is procedurally barred from examining his freestanding stun-belt claim and must deny the writ.

III. CONCLUSION. The decision of the district court is AFFIRMED.

[p. 35 of 53] ROVNER, Circuit Judge, dissenting. I agree with my colleagues that Matthew Wrinkles’s trial attorneys were deficient in failing to object to the trial court’s insistence on the use of restraints absent judicial findings that Wrinkles presented a security threat or otherwise required physical restraints. I cannot agree, however, that Wrinkles was not prejudiced by counsels’ error. The natural reading of the opinion of the Indiana Supreme Court in Wrinkles II is that several jurors were aware of the stun belt during the trial. In light of that finding, Wrinkles has shown both the inherent prejudice that accompanies visible restraints and other detriments specific to his case. Only through a tortured interpretation of the Indiana Supreme Court’s opinion, with which not even the respondent agrees, does the majority conclude that Wrinkles was not prejudiced by his attorneys’ error. I would not wager a man’s life on the correctness of the majority’s grammatical parsing, and therefore I respectfully dissent. * * *

Finally, even if I could accept my colleagues’ strained characterization of the Indiana Supreme Court’s statements on the visibility of the stun belt, I would find it difficult to accept their reflexive conclusion that Wrinkles was not prejudiced. The jurors’ awareness of the restraint aside, Wrinkles also argues that he could not fully and meaningfully participate in his trial while strapped to a torture device. This argument was a logical application of existing Supreme Court precedent on restraints, and competent counsel would surely have raised it in response to the trial court’s illegal “policy.” The majority dismissively concludes that Wrinkles did not present “evidence” that the stun belt “affected his abilities to participate in his own defense,” ante at 35. Not only did he present such evidence (see discussion ante at 51-52), in my view a court need not abandon its common sense when considering whether being forced to wear, with no justification, a device that delivers an unstoppable, 8-second, 50,000-volt shock might affect a defendant’s participation and demeanor, and, relatedly, the jury’s impressions of him. For this reason, and more importantly because of the prejudice stemming from the jurors’ awareness that Wrinkles was restrained with a stun belt, I respectfully dissent.

Here is a link to the Ind. Supreme Court decision referenced, Wrinkles v. State, 749 N.E.2d 1179, 1186 (Ind. 2001) (“Wrinkles II”), cert. denied, 535 U.S. 1019 (2002)

Posted by Marcia Oddi on Tuesday, August 12, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 11 NFP)

For publication opinions today (3):

In Star Transport, Inc. and Jeffrey Cottingham v. Hervey Byard, a 17-page opinion, Judge Barnes writes:

Star Transport, Inc., (“Star”) and its employee, Jeffrey Cottingham, appeal a judgment finding them jointly 75% at fault for injuries sustained by Hervey Byard when a car driven by Robert Peters struck Byard. We affirm.

Issues The issues before us are: I. whether the trial court properly instructed the jury on the “rescue doctrine”; II. whether the trial court properly refused to instruct the jury on the doctrine of incurred risk; and III. whether the trial court properly refused to permit Star and Cottingham to have peremptory juror challenges separate from Peters. * * *

The trial court did not abuse its discretion by instructing the jury on the rescue doctrine and refusing to instruct it on incurred risk. Star Transport and Cottingham have failed to demonstrate any actual prejudice from the manner in which the trial court assigned peremptory challenges. We affirm.

In Ricky L. Jackson v. State of Indiana , a 9-page opinion, Judge Najam writes:
Ricky Jackson appeals his conviction for Dealing in Cocaine, as a Class A felony, following a jury trial. He presents a single issue for our review, namely, whether he was denied his right to confront witnesses under the Sixth Amendment to the United States Constitution when the trial court admitted into evidence a laboratory report prepared by a technician who did not testify at trial. We reverse. * * *

Here, the Certificate of Analysis is a testimonial statement under Crawford. The State does not direct us to any law carving out an exception to the Confrontation Clause that applies here. While Lang [the lab technician] might have been unavailable to testify at trial, the Sixth Amendment requires that Jackson have been given an opportunity to cross-examine her prior to trial. See Crawford, 541 U.S. at 53-54. We hold that the admission into evidence of the Certificate of Analysis without Lang’s testimony violated Jackson’s Sixth Amendment right to confront witnesses.

Thus, we reject the State’s contention that the Certificate of Analysis is admissible under the business record exception to the hearsay rule under Indiana Evidence Rule 803. Cf. Pendergrass v. State, 889 N.E.2d 861 (Ind. Ct. App. 2008) (holding Confrontation Clause inapplicable to use of Certificate of Analysis pertaining to DNA test where Certificate used to provide context for expert’s testimony, not to prove element of charged crime), trans. pending. Neither is the Certificate admissible through Ballard’s [the lab supervisor] expert testimony under Indiana Evidence Rule 703. Jackson’s Sixth Amendment right to confrontation is not subordinate to a rule of evidence under the circumstances of this case. As the Court stated in Crawford, “[w]here testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence[.]” 541 U.S. at 61. In sum, the Court in Crawford rejected “reliable hearsay” as a substitute for the right of confrontation. See Giles, 128 S. Ct. at 2695 (Souter, J., concurring in part). Jackson’s conviction must be reversed.

See Pendergrass, decided 7/8/08 by another panel, here.

In Pamela S. Fackler v. Melvin J. Powell, Jr. and M. Jack Powell, Jr. Living Trust, a 12-page opinion, Judge Bailey writes:

Appellant-Petitioner Pamela S. Fackler (“Fackler”) appeals a post-dissolution order interpreting a Mediated Settlement Agreement (“the Agreement”) and awarding attorneys’ fees to Fackler’s ex-husband Melvin J. Powell, Jr. and the M. Jack Powell, Jr. Living Trust (collectively, “Powell”). We reverse and remand. * * *

To the extent that Beck possessed relevant information regarding the amount of the claim, it was inadmissible having been obtained in the course of negotiations. * * *

Fackler established that Powell breached the Agreement. Accordingly, Powell must pay attorneys’ fees because of his breach, in an amount to be determined by the trial court.

We reverse and remand for an order that Powell pay the balance due upon the sale of Lot 22, reasonable attorneys’ fees, and prejudgment interest

FRIEDLANDER, J., concurs.
KIRSCH, J., concurs in result with opinion. [which begins] I fully concur with the decision of my colleagues holding the mediated settlement agreement was unambiguous and that, therefore, the trial court erred in admitting extrinsic evidence to prove the meaning of its terms. I also fully concur with the decision regarding attorney fees. I part ways with my colleagues, however, in regard to their discussion of mediation confidentiality.

NFP civil opinions today (3):

Cadleway Properties Inc. v. 5620 Industrial Rd., LLC, Richard A. Magley, et al (NFP) - "Appellant/Defendant Cadleway Properties, Inc. (“Cadleway”), appeals from the trial court‟s grant of partial summary judgment in favor of Ossian State Bank (“Ossian”). On appeal, Cadleway contends that the trial court erroneously concluded that Ossian, pursuant to a previously-issued mortgage containing a so-called “dragnet” provision, owns the right to a personal guaranty that Cadleway claims to own. We affirm."

Speedway International Trucks v. Clyde Baugh (NFP) - a 2-1 decision. "On appeal, Speedway contends there was no finding or evidence to support the Full Board’s conclusion that Baugh was entitled to future medical expenses for pain management treatment. We reverse."

Paternity of J.J.; I.Y. v. A.J. (NFP) - a 2-1 opinion. From the dissent: "Here, we have a custody dispute between a natural parent and a third-party custodian. The methodology in determining such a dispute was set out in In re: Guardianship of L.L., 745 N.E.2d 222, 230 (Ind. Ct. App. 2001), trans. denied. * * * Here, the trial court did not follow this methodology, but looked only to the best interest standard. By doing so, I believe the court erred and that the error is of constitutional dimension."

Rudrappa and Jayashree Gunashekar v. Kay Grose, d/b/a America's Affordable Housing J & K Mfg. (NFP) - a 2-1 opinion. "The trial court abused its discretion in denying the Gunashekars’ pro se motion to continue after their attorney withdrew six weeks prior to trial." [ILB Note: there are 3 NFP opinions today decided 2-1, all are from the same panel.]

Term. of Parent-Child Rel. of K.A., C.A., T.A., D.C., D.A., and T.A., and K.C., Father v. Marion Co. Dept. of Child Services, and Child Advocates (NFP) - "There is ample evidence that the conditions resulting in the Children’s removal will not be remedied. Accordingly, the juvenile court’s finding that the conditions were not likely to be remedied is not clearly erroneous. Affirmed."

NFP criminal opinions today (6):

Lee Ann Hughes v. State of Indiana (NFP)

Johana Marie Kalinowicz v. State of Indiana (NFP)

Eric K. Farnsley v. State of Indiana (NFP)

James Earl Brown v. State of Indiana (NFP)

Antreaun Rice v. State of Indiana (NFP)

Mareese S. Boyd v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 12, 2008
Posted to Ind. App.Ct. Decisions

Environment - More on: Air permit request raises concerns in Allen County

Referencing its lengthy story from Sunday on the pending BF Goodrich air permit application (see ILB entry here), the Fort Wayne Journal Gazette has this editorial today. Some quotes:

A proposal from BFGoodrich seeking a permit to increase the amount of pollution once again raises questions about the willingness of the leadership at the Indiana Department of Environmental Management to do its job.

As Dan Stockman’s Sunday story reported, the tire manufacturer is asking IDEM to grant a permit that allows it to increase its ozone-causing pollution at its Woodburn plant by as much as 40 tons per year. The company wants to use the additive silane in its tire-making process to improve the fuel efficiency of its tires. But it will also increase pollution.

The environmental concern is that the draft permit doesn’t call for any new pollution controls to reduce the increase in pollution. It doesn’t call for any monitoring of the company’s pollution to ensure it does not exceed the 40-ton-per-year increase in pollution. And the most disconcerting aspect of the flawed permit application is that it uses secret calculations provided by the company to determine the anticipated amount of the increase in pollution and, so far, IDEM has shown a distinct lack of interest in double-checking the numbers.

The permit application is a real eye opener about how little outside oversight IDEM exercises over companies’ compliance with environmental regulations. * * *

There is no evidence Goodrich is using chicanery in its formula calculating the amount of ozone-causing pollution that will be created by using the silane additive. But the secret formula combined with the lack of oversight from environmental regulators is good reason for environmental advocates, economic development leaders and the general public to be concerned.

The Indiana Department of Environmental Management’s 30-day public comment period ends Wednesday. But it’s difficult for the public to comment on the proposal when citizens have no way of checking the accuracy of the pollution emission claims the company is making.

I recommend reading the entire editorial.

Posted by Marcia Oddi on Tuesday, August 12, 2008
Posted to Environment

Courts - "Conservatives plot on campaign finance"

A story today in Politico, reported by Jeanne Cummings, features a photo of Terre Haute attorney James Bopp Jr., described as "making a name for himself by challenging federal and state campaign finance laws." Some quotes from p. 2:

Bopp recently won a Supreme Court case that loosened the rules around corporate interest groups’ ability to run issue advertisements in the weeks before Election Day. And last week, he filed a lawsuit on behalf of another 527 organization, challenging a requirement that it disclose its donors. The group — Real Truth About Obama Inc. — intends to run advertisements critical of Democrat Barack Obama’s support of abortion rights.

With Bopp already in action, the arrival of [former Federal Election Commission Chairman Bradley] Smith “seemingly doubled the number of challenges to campaign finance restrictions,” said Paul S. Ryan, an associate legal counsel for the Campaign Legal Center, which supports the regulations. “There is plenty of work to do,” Ryan explained.

Richard L. Hasen, a campaign finance expert at the Loyola Law School in Los Angeles, said the rightward shift on the Supreme Court is the fuel behind the spate of legal challenges.

“What the Center for Competitive Politics can do and is trying to do is to bring the right kind of cases before the court,” Hasen said, so Chief Justice John Roberts and his new coalition of conservatives can “knock them out of the park.”

Critics of the Smith-Bopp campaigns say their handiwork could roll back campaign finance laws to the Watergate era, when there were scant public records of who was giving money to politicians, no limits on how much they could give and little, if any, disclosure of how the money was spent.

Posted by Marcia Oddi on Tuesday, August 12, 2008
Posted to Courts in general

Ind. Law - More on: "Hammond's red light camera ordinance not legal"

Updating this ILB entry from August 9th, Michael Malik of the Lafayette Journal & Courier reports today:

Both Lafayette and West Lafayette mayors said Monday they'll lobby state lawmakers to create a law authorizing municipalities to use red light cameras.

Passing a state law authorizing the use of the cameras may be the only option left for local officials who want to use the technology. Steve Carter, the state's attorney general, issued an opinion on Friday saying the legislature must create a law before municipalities can use the cameras to catch drivers who run red lights.

Both cities have placed the cameras at intersections to research how many drivers they would catch. * * *

State Sen. Ron Alting, R-Lafayette, said he would support a bill authorizing use of the cameras.

"Both of my mayors support that," Alting said. "I would support that bill."

Alting said bills authorizing red light cameras have been proposed in previous sessions. Those bills have failed.

Support for the bill in the General Assembly is growing, Alting said.

For some ILB history, see: "State may jump on red-light camera bandwagon" from Feb. 2, 2005, and "Driving to Illinois? Also, red light camera law in Indiana" from March 30, 2005.

Posted by Marcia Oddi on Tuesday, August 12, 2008
Posted to Indiana Law

Ind. Law - An ATV is not a golf cart and a county road is not necessarily a gravel road

On July 27th, the ILB cited a story in the Evansville Courier & Press that began:

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.

Yesterday the Perry County News had this story, reported by Kevin Koelling. Some quotes:
TELL CITY - People have asked Perry County Commissioner Jody Fortwendel about allowing off-road vehicles to use county roads, and now he's asking county residents what they think.

Vanderburgh County commissioners adopted an ordinance about a month ago, Fortwendel said during a regular meeting of the Perry County commissioners Wednesday.

"I have been approached by several people about making it legal for (all-terrain vehicles) to have access to county roads," he said. "I'm asking for input from the public."

Under current state law, off-road vehicles must be registered in most cases, and can be driven on rights-of-way along public highways "if there is sufficient width to operate at a reasonable distance off and away from the traveled part and in a manner so as not to endanger life or property."

Indiana Code 14-16-1-20 also allows an off-road vehicle to be operated "on a highway in a county road system outside the corporate limits of a city or town if the highway is designated for this purpose by the county highway department."

Drivers of off-road vehicles must be licensed before using them on public highway, according to the law. * * *

County attorney Chris Goffinet told Fortwendel the county has an ordinance concerning off-road vehicles, and their use on public roads is permitted in some circumstances.

A Perry County ordinance adopted in 1989 permits "three and four wheelers" to be operated on county roads and highways "only for non-recreational purposes." Operators must have valid driver's licenses and the same liability insurance as required for on-road vehicles.

Posted by Marcia Oddi on Tuesday, August 12, 2008
Posted to Indiana Law

Ind. Courts - More on Delaware County Courts drug forfeitures and related matters

The last story the ILB posted on the Delaware County courts' drug forfeiture and related issues was Aug. 8th. Today the Muncie Star-Press has two more stories. In the first, Rick Yencer reports:

Delaware County Prosecutor Mark McKinney on Monday accused Judge Richard Dailey of acting on behalf of local attorney Michael J. Alexander, who faces a bribery-related charge.

Dailey quickly denied that allegation, and later paraphrased the New Testament in calling into question McKinney’s participation in drug forfeiture cases.

The remarks came during the latest in a series of hearings the Delaware Circuit Court 2 judge has conducted on secret, out-of-court agreements that settled some civil forfeiture cases targeting the assets of accused drug dealers.

Dailey — expected this week to issue formal “findings” of his investigation — perhaps provided a preview of that document Monday when he told McKinney he “can’t put yourself in the place of the court” in the seizure and division of personal property. “It requires a court adjudication,” Dailey said. “That money is forfeited by whose mandate?”

The judge also said he saw a conflict of interest in McKinney’s roles as prosecutor and private attorney representing the Muncie-Delaware County Drug Task Force in forfeiture proceedings.

“The public official by virtue of having a contingent fee has an interest in that contract,” Dailey said. “It goes back to Biblical times. You can’t serve two masters.”

In the second story, Douglas Walker reports:
Muncie attorney Michael J. "Mick" Alexander's trial on a conspiracy-to-commit-bribery charge, which was set to begin next week, has been postponed.

Special Judge Brian Hutchison of Jay County on Monday granted a request from Alexander's attorney, Donald McClellan, for a continuance.

McClellan noted at a Friday hearing he had not yet been able to take depositions from two key prosecution witnesses, Adrian Kirtz and Stanley D. Wills.

Posted by Marcia Oddi on Tuesday, August 12, 2008
Posted to Indiana Courts

Ind. Courts - "Judge sentences absent juror to serve as a warning to others"

So reports Bill Dolan today in a story today in the NWI Times. Some quotes:

CROWN POINT | A judge bent on instructing the public to fulfill jury obligations got his point across Monday morning with the reluctant help of a Cedar Lake man.

As part of his sentence for being a jury duty scofflaw, Michael Leibengood stood outside the Lake County Government Complex holding a sign saying, "I failed to appear for jury duty." It was a public lesson for prospective jurors entering the courthouse.

Lake Criminal Court Judge Thomas P. Stefaniak ordered Leibengood's public display of remorse last week after refusing to believe Leibengood failed to serve on a murder trial jury in late May because he had a flat tire.

Posted by Marcia Oddi on Tuesday, August 12, 2008
Posted to Indiana Courts

Courts - "In U.S., Expert Witnesses Are Partisan"

The American justice system and expert witnesses is the focus of this Adam Liptak column today in the NY Times. It is one of a "series of articles [examining] commonplace aspects of the American justice system that are actually unique in the world." A quote:

In most of the rest of the world, expert witnesses are selected by judges and are meant to be neutral and independent. Many foreign lawyers have long questioned the American practice of allowing the parties to present testimony from experts they have chosen and paid.

Posted by Marcia Oddi on Tuesday, August 12, 2008
Posted to Courts in general

Ind. Courts - Vanderburgh County major drug prosecutions may fall next year due to budget constraints

Thomas B. Langhorne reports today in the Evansville Courier & Press in a long story that begins:

The number of major drug cases prosecuted in Vanderburgh County next year could fall because of money problems detailed publicly on Monday.

After the first day of 2009 budget hearings, the president of the county's fiscal body said Prosecutor Stan Levco probably won't get the $258,923 he is seeking to absorb the loss of a federal drug-fighting grant.

The Edward Byrne Memorial State Justice Assistance Grant now pays for the only three full-time felony drug prosecutors in Levco's office, plus a secretary to support them. This year, the county kicked in $132,308 as a local match.

But federal spending on the grants was slashed by hundreds of millions of dollars nationwide, meaning Levco now needs the county to pick up the entire $258,923 tab if his drug prosecution unit is to continue at full strength in 2009.

The county's financial obligation would be even greater by virtue of the fact that its previous $132,000 grant match included no obligation to pay health insurance, but those costs would have to be added to the almost $259,000 outlay if the county funded the team.

"I doubt we will handle (felony drug cases) as well (without the money), but we'll do the best we can," Levco said after Monday's budget hearing.

Determined not to increase this year's $62 million county budget in the face of exploding fuel costs and legislatively mandated property tax caps, County Council President Marsha Abell said Levco probably is out of luck.

Posted by Marcia Oddi on Tuesday, August 12, 2008
Posted to Indiana Courts

Ind. Law - "Golf carts a possibility on Oldenburg streets"

Debbie Blank reported Aug. 8th in the Batesville Herald Tribune:

Will golf carts be a common sight on Oldenburg streets in coming months? All sorts of vehicles were debated at the Aug. 4 council meeting.

“There are a lot of people in town that would like to legalize golf carts,” which would be more economical to operate than larger vehicles with the high cost of gas, said Dan Weigel. Two other advantages: “They're quiet” and carts would “make it easy to run to the store.”

Although it seems like a novel idea, carts are legal in nine Indiana towns, according to Weigel, and three more are talking about it. In Fairfield County, Ohio, police use golf carts to patrol the streets, he added.

After reading guidelines from other towns, Weigel reported, “You have to be a licensed driver,” which would rule out kids operating the carts. They would have to be equipped like streetworthy vehicles, with turn signals, lights and seat belts. “Some have slow moving vehicle signs.” * * *

Town attorney Tom O’Connor wondered if Hoosier golf cart ordinances have been tested in court.

Moeller asked, “Do any of these towns have a state highway running through them?” Weigel answered yes. Some ordinances allowed carts to cross state highways, but not travel on them.

Moeller questioned, “How fast do they go? If I get behind you and I'm in a hurry ...” According to Weigel, one ordinance stated carts couldn't be driven on roads with speed limits above 35 miles per hour.

Moeller acknowledged, “It's worth looking into.” If town leaders decide to allow golf carts, “we'd be on the cutting edge.”

Posted by Marcia Oddi on Tuesday, August 12, 2008
Posted to Indiana Law

Ind. Decisions - More on: "Love the wine? You must visit the vine"

The decision of the 7th Circuit August 7th in the case of Baude v. Heath (see ILB entries here and here) was the subject of a story yesterday in the Wine Spectator, reported by Robert Taylor. Some quotes:

After one year of unrestricted direct-shipping privileges, Indiana residents are again being required to fill out an age-verification form in person at any winery from which they wish to receive wine shipments.

This past week, the U.S. 7th Court of Appeals in Chicago reinstated the face-to-face clause in Indiana, ruling that the unrestricted sales made it easier for minors to obtain alcohol.

Indiana residents have been on a roller coaster ride when it comes to direct shipment of wine—and it isn't over yet. Following the Supreme Court's Granholm decision in 2005, Indiana lawmakers needed to enact new legislation specifically granting Indiana wineries the right to ship wine to in-state residents (something they'd been doing for nearly 30 years). In 2006, they passed a bill requiring Indiana residents to fill out an age-verification form, in person, at any winery (in-state or out-of-state) from which they wished to order wine. The 2006 law also virtually excluded all out-of-state wineries from shipping to residents by prohibiting wineries with wholesale privileges in their home states from receiving an Indiana wine-shipping permit. (California, Oregon and Washington all grant wholesale privileges to their wineries.)

In late August 2007, a federal judge ruled Indiana's wine shipping laws to be unconstitutional, and abolished the face-to-face verification requirement as well as the wholesale restriction on obtaining wine-shipping permits. The court declared that the burden of traveling across the country to have wine shipped directly to a resident provided an unfair advantage for Indiana's in-state wineries (who were nevertheless also hurt by the face-to-face requirement), a violation of the Constitution's commerce clause. "Forcing nearly all out-of-state wineries to use a wholesaler or come to Indiana to sell gives in-state wineries a distinct competitive advantage," the court wrote. "Indeed, virtually the entire direct shipping market is limited to in-state wineries."

But a three-judge panel disagreed with the 2007 ruling, reinstating the face-to-face verification provision in a decision handed down on Aug. 7 (arguments were heard Feb. 22). "It is important to remember that we are dealing with effects on the margin," the court's ruling explained. "Make it easier for minors to get wine by phone or Internet, and sales to minors will increase."

Later in the story, this point:
The appeals court's decision to reinstate face-to-face age verification may have been influenced by a U.S. Supreme Court ruling earlier this year. In Rowe vs. New Hampshire Motor Transport Association, the court ruled unanimously this past February that states did not have the right to require shipping companies to conduct age verifications for deliveries of tobacco products.
The story notes: "Many legal analysts believe the court would rule similarly on wine sales were they to be challenged."

See ILB entries on Rowe here and here.

Posted by Marcia Oddi on Tuesday, August 12, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Outburst response filed by Judge Scheibenberger"

Rebecca S. Green reports today in the Fort Wayne Journal Gazette:

An Allen Superior Court judge doesn't deny the allegations of impropriety for the outburst he made in another judge's courtroom but said the commission reviewing his conduct does not have all the facts necessary to come to a conclusion.

In a brief response to the Indiana Commission on Judicial Qualifications filed late last week, Allen Superior Judge Kenneth R. Scheibenberger said he does not dispute any of the material facts alleged by the commission when it filed formal charges with the Indiana Supreme Court in July.

According to the judicial qualifications commission, Scheibenberger violated rules of judicial conduct in a verbal exchange with the family of a criminal defendant last November in another judge's courtroom. In July, the commission took the rare step of filing formal charges with the Indiana Supreme Court.

On Nov. 30, Scheibenberger, while wearing his robe, went into the courtroom of Allen Superior Court Judge Fran Gull and sat down in the gallery to witness the sentencing of a man accused of a weapons violation.

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 ass' in reference to a comment he heard during the sentencing," according to court documents.

Then Scheibenberger turned to the man's parents, seated in the front row, asking them whether they were "related to that piece of (expletive)? Upstanding citizen, my ass! He'll get his!' or words to that effect," according to court documents.

The man had not appeared before Scheibenberger, according to court documents. The judge has said he believed the man sold his late son drugs.

In the response documents filed last week, Scheibenberger's attorney, James Fenton, also said the judge disagreed with some of the conclusions the commission wanted to draw from those facts.

"Judge Scheibenberger deeply regrets that he failed to prevent his emotions from affecting his conduct and recognizes that his actions were inappropriate," Fenton wrote in his response.

Since the charges were filed, Scheibenberger has declined to speak about the matter. He did say he believed the man to whom he was referring had sold drugs to Scheibenberger's son, Sam, who died last August.

The next step will be the appointment of three judges, known as masters, by the Indiana Supreme Court. The panel of judges will conduct a hearing on the charge of judicial misconduct and file a report with the high court on whether the commission proved its case. The court will then determine whether any sanctions, including reprimand, suspension or removal, are warranted.

This 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 for involving himself in a case against his son.

Posted by Marcia Oddi on Tuesday, August 12, 2008
Posted to Indiana Courts

Monday, August 11, 2008

Law - More on "Loan repayment assistance programs progress"

Updating this ILB entry from March 27th, the AP is reporting, in a story with an Oklahoma slant, but one that I believe is applicable nationally:

A federal law awaiting President Bush's signature will allow Oklahoma prosecutors and public defenders to retain more qualified, dedicated attorneys who are saddled with law school debt, legal officials say.

The John R. Justice Prosecutors and Defenders Act would repay up to $60,000 in law school loans for lawyers who agree to work for a district attorney or public defender office for at least three years.

Participants in the program would be limited to $10,000 in government repayment during any year, up to the overall maximum.

Oklahoma County's Chief Public Defender Robert Ravitz and District Attorney David Prater both say the measure will help them keep lawyers who otherwise might find themselves having to go into higher-paying private practice jobs to pay down their loans.

"After a year or two, for really top-notch people, we can't match anywhere close to the salaries they'll make in private firms," Ravitz said. "A lot of good people have flat-out told me, 'We love working here, but our student loans are such that, even though we're willing to work for less money, because we like doing what we're doing, we can't afford to live in a decent apartment or a decent house.'"

Posted by Marcia Oddi on Monday, August 11, 2008
Posted to General Law Related

Ind. Courts - More on: Lake County Council "frowns on unchanged budgets from county judges "

Budget time and the annual questions of county budgeting for the judiciary, illustrated by this entry from Aug. 7th headed "Lake County Council frowns on unchanged budgets from county judges."

The Indianapolis Star this morning had a story that began:

Mayor Greg Ballard tonight will present to the City-County Council a $1.1 billion budget that proposes to reduce funding for parks, courts and the arts and depends on steep cuts in jail costs and the consolidation of township assessors.
But a just issued release from the Mayor's Office reads
Proposed 2009 Budget Does Not Include Cuts to Courts Funding

Information released to media only on August 11, 2008 is being interpreted by many as an indication that the Proposed 2009 Budget for the City of Indianapolis seeks to cut funding to courts. This is not accurate.

In 2008, the courts paid for one half of the cost to incarcerate juveniles in the state system. In 2009, the State is paying 100 percent of that cost. When you adjust for this change, the City proposed to increase the courts budget by $1.6 million. The 2009 budget includes $1.7 million in new spending for a new civil court, increased probation officer salaries, increased funding for juvenile medical, and additional funding for the community court.

Posted by Marcia Oddi on Monday, August 11, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 today (and 20 NFP)

For publication opinions today (4):

In Misty D. Davis v. State of Indiana , a 16-page opinion, Judge Kirsch writes:

Misty D. Davis appeals her convictions and sentence for assisting a criminal in murder as a Class C felony and giving a false statement to law enforcement as a Class B misdemeanor. Davis raises nine issues on appeal, which we consolidate and restate as: I. Whether the trial court erred in denying Davis’ motions to dismiss based on improper venue and her marital status. II. Whether the trial court abused its discretion in allowing the admission of evidence of the murders in which she was alleged to have assisted. III. Whether the trial court abused its discretion in admitting into evidence Davis’ marriage certificate. IV. Whether the trial court abused its discretion in giving a jury instruction detailing Indiana’s marriage laws. V. Whether there was sufficient evidence to convict Davis. VI. Whether Davis’ Presentence Investigation Report was admissible at her sentencing hearing. VII. Whether Davis’ sentence was inappropriate. We affirm. * * *

The trial court did not abuse its sentencing discretion, and Davis’ sentence is not inappropriate.

In Elwood and Lila Simmons v. Erie Ins. Exchange , a 24-page opinion, Judge Robb writes:
Elwood and Lila Simmons appeal following a judgment awarding them each $10,000 following an automobile accident. The Simmonses raise two issues, but we find dispositive the issue of whether the trial court abused its discretion by instructing the jury on the affirmative defense of failure to mitigate damages. Concluding that insufficient evidence exists to support this instruction, we reverse and remand for a new trial. * * *

Erie argues that Elwood failed to mitigate damages due to his failure to undergo surgery to treat his plantar fasciitis, his learned gait, and his alleged failure to regularly use his medications and orthotics. We will address each in turn. * * *

Based on the circumstances at bar – 1) no doctor recommended surgery to Elwood; 2) Elwood saw several doctors, who prescribed a variety of treatments other than surgery; and 3) Erie’s failure to introduce evidence regarding the risks, benefits, costs, or inconveniences of the surgery – we conclude Elwood’s failure to undergo surgery is insufficient to support an instruction on failure to mitigate damages. * * *

Based on these considerations we conclude the trial court’s instruction on failure to mitigate damages cannot be supported by the evidence introduced at trial relating to Elwood’s learned gait. * * *

We conclude the trial court’s instruction on failure to mitigate damages cannot be supported by Elwood’s alleged failure to regularly take his medications or wear orthotics, without more evidence in the record. * * *

We conclude the trial court abused its discretion in instructing the jury on the affirmative defense of failure to mitigate damages. We also conclude that this error was not harmless and therefore reverse and remand for a new trial.

In Danny Brian Brattain v. State of Indiana , a 7-page opinion, Judge Bradford writes:
Appellant-Defendant Danny Brattain appeals the sentence imposed following his guilty plea to Operating a Vehicle with a Blood Alcohol Concentration (“BAC”) of .15 percent or Greater as a Class A misdemeanor, and Operating a Vehicle After Forfeiture of License for Life as a Class C felony, for which he received an aggregate eight-year sentence, with three and one-half years suspended to probation. Upon appeal, Brattain claims that his sentence is inappropriate in light of the nature of his offenses and his character. Concluding that Brattain has waived his claim and that, in any event, it fails on the merits, we affirm.
In Dutchmen Manufacturing, Inc. v. Chad Reynolds, a 27-page opinion, Chief Judge Baker writes:
Appellant-defendant Dutchmen Manufacturing, Inc. (Dutchmen), appeals the $6 million jury verdict entered against it in favor of appellee-plaintiff Chad Reynolds as the result of injuries that Reynolds sustained while working near some scaffolding that Dutchmen personnel had installed. Specifically, Dutchmen argues that: (1) the trial court erred in denying its motion for a judgment on the evidence; (2) the jury was improperly instructed; (3) the trial court erred in denying its motion for a mistrial because of opposing counsel’s allegedly improper comments; and (4) the jury’s damage award was excessive. Concluding that the trial court properly denied Dutchmen’s motion for judgment on the evidence and finding no other error, we affirm.

[ILB Note: From the end of the opinion: "Finally, Dutchmen argues that the damage award must be set aside. Specifically, Dutchmen claims that a $30 million damage award was excessive because Reynolds 'only presented evidence of approximately $10 million in damages.'” -- while at the beginning of the opinion a $6 million jury verdict is mentioned.

Here is the answer to that, from p. 9 of the opinion: "On July 17, 2007, the jury returned a verdict on liability, finding that Dutchmen was 20% at fault and Keystone was 80% at fault. Following a trial on damages, the jury found that Reynolds’s damages totaled $30 million, resulting in a verdict in favor of Reynolds and against Dutchmen in the amount of $6 million."]

NFP civil opinions today (8):

Gayle Parkevich individually, as Successor Trustee and Beneficiary v. Stephen Harlow, et al. (NFP) - "On appeal, we address a single issue, namely, whether the trial court erred when it granted summary judgment to the Malpractice Defendants. We affirm. * * *

"Parkevich was only a potential successor trustee of Vernon’s Trust, because she was never confirmed by the court as trustee. Thus, Parkevich does not qualify as a “trustee” under the definition that applied when Vernon Payne last amended Vernon’s trust. Because she does not qualify as a trustee, she does not have standing to pursue the professional negligence claims against the Malpractice Defendants."

Vernon and Elva Payne Irrevocable Trust for Beverly Draper v. Janet Best, Paula Eller and Beverly Draper (NFP) - "But we do not reach the merits of whether the trial court erred in denying the Petition to Re-Docket based on laches. Instead, we consider sua sponte whether that issue is justiciable. * * * In a companion case, also handed down today, we hold that Parkevich does not have standing and is not a real party in interest to maintain the malpractice action. In re Vernon Payne and Evla Payne Irrevocable Trust (Parkevich v. Harlow), No. 29A04-0711-CV-624 (Ind. Ct. App. August 11, 2008). Because Parkevich does not have standing and is not a real party in interest to pursue the malpractice claims against the Malpractice Defendants, the trial court could grant no relief on her Petition to Re-Docket. As such, her appeal from the order denying the Petition to Re-Docket is moot. * * * Therefore, we dismiss Parkevich’s appeal from the trial court’s denial of her Petition to Re-Docket."

Dennis Peterson v. Miami Correctional Facility (NFP) - "It is well settled that the State and its agencies are not liable for ordinary court costs as a matter of public policy. State v. Mileff, 520 N.E.2d 123, 128-29 (Ind. Ct. App. 1988). It is error for a trial court to assess court costs against the State or its agencies as part of a judgment. Id. at 129. Accordingly, the trial court erred by assessing costs of $9.40 against the State, in this case, the Miami Correctional Facility. See IC 11-8-2-1."

Sue Hayes v. Sean and Beth Smith (NFP) - "Here, although it does not appear that the Smiths requested attorney fees and costs in their motion for summary judgment, we cannot say that this is an unexpected request or a new issue that Hayes had no notice of or opportunity to defend against. The contract signed by both parties contained a provision stating that in the event of litigation, the prevailing party shall be entitled to reasonable attorney fees and costs. Further, in their answer to Hayes’s complaint, the Smiths included a request for attorney fees and costs in defending the action. We therefore conclude that the Smiths have not waived their request for attorney fees and that Hayes had ample notice that the Smiths, as the prevailing party in the litigation, would be entitled to reasonable attorney fees and costs. We remand to the trial court for a determination of reasonable attorney fees and costs."

Gregory Hare v. Heather Ellison (NFP) - "Gregory Hare (“Hare”) appeals the trial court’s order denying his petition to modify custody and subsequent order to pay appellate attorney fees. Hare raises many issues,1 which we consolidate and restate as follows: I. Whether the trial court’s order denying Hare’s petition to modify custody is contrary to the evidence. II. Whether the trial court erred in awarding appellate attorney fees. We affirm in part, reverse in part, and remand."

Term. of Parent-Child Rel. of J.B., C.B.; and Cha.B., R.B. v. Grant Co. Dept. of Child Svcs. (NFP) - "In sum, we conclude that after excluding all improper findings, the remainder of the findings made by the juvenile court were sufficient to support the judgment. We also conclude that sufficient evidence was presented to support the juvenile court‟s judgment terminating Mother‟s and Father‟s parental rights to J.B. and C.B. The judgment of the juvenile court is affirmed."

The Guardianship of Letha Bell Sullivan; Geneva Underwood v. Rodger Sullivan (NFP) - "Geneva Underwood appeals the trial court’s order granting her brother, Rodger Sullivan, guardianship over their mother, Letha Sullivan. On appeal, Geneva raises two issues, which we restate as 1) whether the trial court improperly excused Letha from attending the hearing on Geneva’s petition for appointment of a guardian over Letha and 2) whether the trial court improperly concluded that Rodger was not required to execute a guardian’s bond. Concluding the trial court did not improperly excuse Letha from attending the hearing or exempt Rodger from executing a guardian’s bond, we affirm."

David M. Wolf v. Richard Ogle (NFP) - "Appellant/Cross-Appellee/Plaintiff David Wolf appeals following a trial in which the jury found him to be zero percent at fault and awarded him damages of $1,050,000 against Appellee/Cross-Appellant/Defendant Richard Ogle, after which the trial court, in response to Ogle‟s motion to correct error, upheld the damages award but ordered a new trial on the single issue of fault apportionment upon determining that the jury‟s verdict was against the weight of the evidence. Upon appeal, Wolf challenges the trial court‟s determination that the verdict was against the weight of the evidence. On cross-appeal, Ogle claims that the trial court erred in upholding the damages award, which Ogle claims was excessive. We affirm in part, reverse in part, and remand."

NFP criminal opinions today (12):

Freddie Mills v. State of Indiana (NFP)

Quincy E. Wade v. State of Indiana (NFP)

Larry R. Mitchell v. State of Indiana (NFP)

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

Donald Mallard v. State of Indiana (NFP)

Terrence Webbs v. State of Indiana (NFP)

Jesse Matthews v. State of Indiana (NFP)

Thomas A. Armfield v. State of Indiana (NFP)

Keith D. Owens v. State of Indiana (NFP)

Daniel W. Zerbe v. State of Indiana (NFP)

Robert S. Phillips v. State of Indiana (NFP)

Perry Crowe, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 11, 2008
Posted to Ind. App.Ct. Decisions

Ind. Law - "Governor announces school discipline plan to protect teachers"

From a press release issued today:

FORT WAYNE (August 11, 2008) -- Governor Mitch Daniels today announced his intention to seek legal protection for teachers and school staff who act in good faith to maintain discipline and order in their classrooms. * * *

The governor said he would ask the 2009 Indiana General Assembly to pass a law providing legal immunity for teachers who act in good faith to preserve order in their classrooms or other school settings. In addition, he said he would work with the next Indiana Attorney General to help in this effort by using the office’s statutory authority to defend any teacher who becomes the target of unreasonable litigation.

Daniels said teachers should feel comfortable maintaining discipline in their classrooms. Though many cases do not result in litigation, teachers have said they frequently worry about taking action in difficult circumstances because they fear lawsuits. * * *

“In schools today, teachers are protected from litigation when they hand out medicine, but there are no protections for them when they try to prevent disruptive students from disturbing others who are trying to learn,” said the governor.

A number of states have implemented laws that are more protective of teachers than current Indiana law. Those are being reviewed to determine which have been the most effective and if they might serve as a good model for Indiana.

Posted by Marcia Oddi on Monday, August 11, 2008
Posted to Indiana Government

Law - Kentucky prosecutor charges husband with murder after wife kills herself; likened to Indiana case

From a long story today by Jason Riley in the Louisville Courier Journal:

During a drunken argument with her husband on Sept. 10, Katherine Mae Simpson put a loaded handgun to her head and pulled the trigger.

Nearly a year after Simpson's death was ruled a suicide, husband James Simpson -- who called 911 and reported the shooting -- has been charged with murder.

Police and prosecutors don't argue that Katherine Simpson shot herself, but, in a legal rarity, they claim James Simpson is responsible for her death because he gave his "highly intoxicated and suicidal" wife a loaded gun, according to court records.

Ryan Vantrease, one of James Simpson's attorneys, said a tragic situation -- the death of a 35-year-old wife and mother -- is wrongly being compounded by the decision to bring the murder charge.

"There's no crime that's been committed here," Vantrease said. "When she pulled that trigger, that was a decision that she made."

Vantrease said he's been unable to find a similar case in Kentucky. Two national criminal justice experts and several local attorneys also had never heard of one.

First Assistant Commonwealth's Attorney Harry Rothgerber acknowledged the case is unusual, but said he believes charging James Simpson is appropriate because state law allows a murder charge when someone acts recklessly and with extreme indifference to human life.

He likened it to cases where someone is charged with murder after playing Russian roulette, where someone hands a person a gun they know has a bullet in it. An Indiana man was sentenced to 10 years in prison in 1991 after being convicted of manslaughter in the death of his wife during such a game.

"We intend to prove our case at trial," said Rothgerber, who declined to discuss specifics.

Posted by Marcia Oddi on Monday, August 11, 2008
Posted to General Law Related

Ind. Gov't. - Paper pens tribute to state public access counselor

From an editorial today in the Fort Wayne Journal Gazette:

[I]t’s encouraging to see the impressive record that Indiana’s new public access counselor is building.

Heather Willis Neal, who was appointed to the post by Gov. Mitch Daniels in July 2007, issued 336 opinions in response to formal complaints filed in the 12 months ending June 30. That number represents a 34 percent increase compared to the previous year.

The public access counselor has a statutory requirement to issue opinions within 30 days, but no such requirement in responding to informal inquiries. To her credit, Neal also made inroads in a backlog of those inquiries, some dating to 2005. She issued 42 informal opinions in response to those inquiries and in the first quarter of 2008 maintained a response rate averaging just 10 days.

And those inquiries don’t include the telephone calls the public access counselor’s office receives from someone simply asking if they are entitled to attend a closed-door meeting or to see a government document. Neal categorizes those as general inquiries. Her office, which includes herself and one staff member, field almost 2,700 phone calls and e-mails in the one-year period.

While she made great progress in issuing opinions, Neal wasn’t holed up in her office. She gave two dozen presentations on Indiana’s open government law to groups that included the Fort Wayne Housing Authority and the Indiana Township Association. She also partnered with the Indiana Coalition for Open Government and the Hoosier State Press Association for the first update of the Handbook on Indiana’s Public Access Laws since 2003.

Ms. Neal was appointed PAC by Governor Daniels effective July 1, 2007 - see ILB entry here. The PAC's annual report for the period July 1, 2007-June 30, 2008, is available here. The improved PAC website is here.

Posted by Marcia Oddi on Monday, August 11, 2008
Posted to Indiana Government

Environment - More on: massive fish kill in Union City

Updating this ILB entry from Aug. 8th, Joy Leiker reports today in the Muncie Star-Press:

UNION CITY -- The hog farmer who admitted to polluting the Little Mississinewa River last week with manure, and as a result killed tens of thousands of fish, has a history of polluting other waters and disregarding applicable laws and permits.

On July 9 the Ohio Attorney General's office filed a 23-count complaint against Stateline Agri Inc., its owner Rick Kremer and four others connected to the business.

The charges were filed in the Court of Common Pleas of Darke County.

"We file as a last resort to the problems we see, and in this case we thought it was necessary to do this," said Rick Wilson, an environmental specialist with the Ohio Environmental Protection Agency. "(It's) after we accumulate a number of problems and violations until we even consider this."

The complaint details five years of problems involving two hog facilities owned by Kremer, who hasn't returned messages left for him by The Star Press. * * *

In Indiana, Kremer has one permitted CAFO, said Indiana Department of Environmental Management spokesman Barry Sneed. The farm is permitted to hold 1,500 pigs and is at the corner of Randolph County's Base Road and 625-E. Manure was applied to an unplanted field just north of that farm a week ago, and then heavy rains last Monday washed it through a field tile and into the Little Mississinewa River. The Indiana Department of Natural Resources said the manure caused the ammonia levels in the river to rise and kill fish, between 10,000 and 20,000 as of last week's count.

Sneed said IDEM records show no previous compliance issues with Kremer in Indiana.

He has applied for a permit to expand his Randolph County operation, but it has yet to be approved. Sneed said it's common for the state to ask further questions of applicants, and seek additional information, after an application is submitted.

But that search for additional information doesn't mean IDEM investigates farmers' out-of-state records.

"Presently, the rules do not allow us to consider the performance of livestock operations in other states," Sneed said. "However, we do look at their performance in Indiana and make sure that they are able to meet environmental rules and laws."

That lack of background has been an issue of interest to East Central Indiana lawmakers. For the past two years, legislation has been proposed that would include a good character disclosure for livestock operators who seek IDEM permits. Such a disclosure could include a farmer's record in other states, but the legislation has never been enacted.

The violations at Kremer's farms in Ohio include mishandling manure, not measuring and anticipating how much manure storage systems could handle in the event of rain and operating in ways not allowed by his state-issued permits.

Posted by Marcia Oddi on Monday, August 11, 2008
Posted to Environment

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court, including plea agreements, right to speedy trial:

This Thursday, Aug. 14th:

9:00 AM - Bruce Wayne St. Clair, Jr. v. State - After the Steuben Superior Court accepted a plea agreement and imposed sentence, the appellant initiated an appeal to which the State objected, in part, on grounds appellant had agreed to a “fixed plea” which cannot be challenged by direct appeal. The Court of Appeals reversed, deciding a direct appeal was available because the plea had been “open” and remanded for resentencing because the appellant “had not received the benefit of his bargain.” St. Clair v. State, 880 N.E.2d 1213 (Ind. Ct. App., 2/20/2008), vacated. (See ILB summary of the 2-1 opinion here.) The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal. For Appellant: Kimberly A. Jackson, Indianapolis, IN. For Appellee: Ellen H. Meilaender, Indianapolis, IN.

9:45 AM - Robert Jeffrey Pelley v.State - After the State’s interlocutory appeal of an evidentiary ruling became final, the St. Joseph Superior Court denied Pelley’s motion for discharge pursuant Criminal Rule 4(C), and a jury subsequently found Pelley guilty of murder. The Court of Appeals reversed, holding that the State’s interlocutory appeal was chargeable to the State for purposes of the speedy trial rule and therefore Pelley was entitled to discharge. Pelley v. State, 883 N.E.2d 874 (Ind. Ct. App., 4/8/2008). (See ILB summary of the 2-1 deccision here.) The State has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorneys: For Appellant: Stacy R. Uliana Indianapolis, IN. For Appellee: Jodi Kathryn Stein, Indianapolis, IN.

Webcasts will be available here.


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

None scheduled.

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

This Tuesday, Aug. 12th:

10:30 AM - French-Tex Cleaners, Inc., vs. Towne Management Co. & Cafaro Co. - Pursuant to a lease agreement, French-Tex Cleaners, Inc. ("French-Tex") agreed to pay Towne Management Company ("Towne") a pro-rata share of the "Real Estate Tax Expense" for Towne's Muncie shopping plaza. Towne billed French-Tex through Towne's property management company, Cafaro Company ("Cafaro"), for more taxes than Towne paid. In this interlocutory appeal, French-Tex contends that the trial court erred in: (1) ruling that the facts did not support that Towne and Cafaro had the requisite mens rea necessary for criminal conversion; and 2) dismissing Cafaro as a party to this contract dispute. Towne cross-appeals and claims that it billed French-Tex at the agreed upon rate. The Scheduled Panel Members are: Judges Kirsch, Bailey and Brown. [Where: Indiana Court of Appeals Courtroom]

This Wednesday, Aug. 13th:

1:30 PM - David L. Green vs. State of Indiana - Appellant, David L. Green, by counsel, has filed a Verified Motion to Accept Jurisdiction of Interlocutory Appeal. The Court, having reviewed Appellant's Verified Motion, has concluded that Oral Argument will assist this Court in determining whether to grant or deny it. [Where: Indiana Court of Appeals Courtroom]

Posted by Marcia Oddi on Monday, August 11, 2008
Posted to Upcoming Oral Arguments

Sunday, August 10, 2008

About this blog - The ILB had 67,578 page views in July

All the ILB statistics are available using the SiteMeter logo at the bottom of the right-hand column.

Once at the ILB's SiteMeter page, from the left-hand column select "visits and page views > previous 12 months" to see total ILB visitors and page views for the past 12 months.

To see how the ILB ranks against 4,000 other law blogs, check here at Justia BlawgSearch.

Add your firm to the list of Indiana Law Blog supporters. Click here for information.

Posted by Marcia Oddi on Sunday, August 10, 2008
Posted to About the Indiana Law Blog

Ind. Courts - LaPorte Circuit judge announces he will reject any future plea agreement to reduce a felony to a misdemeanor

Stan Maddux reports today for The Michigan City News-Dispatch:

LA PORTE - In his nearly 20 months on the bench, La Porte Circuit Court Judge Tom Alevizos has often made it clear that he won't tolerate a soft approach toward criminals.

His latest outburst was Friday when he rejected a plea agreement from 27-year-old Seth Carpenter, who is accused of having sex with a 15-year-old girl.

The plea called for Carpenter to be convicted of Class D felony sexual misconduct with a minor, which carries anywhere from a six-month to three-year sentence.

However, the plea also stipulated the judge shall reduce the conviction to a Class A misdemeanor when Carpenter finishes serving the sentence.

Alevizos quickly protested as defense attorney Kurt Earnst tried to persuade the judge.

"Don't argue with me. It's not going to happen," Alevizos snapped.

Alevizos then announced he will reject a plea agreement in any future case that mandates the reduction of a felony conviction to a misdemeanor.

The judge also bristled at a plea agreement offered by Michael Santos, believing the punishment was too light.

In September, the 39-year-old Santos tried stealing a plane at La Porte Municipal Airport while drunk to try and impress his girlfriend, according to court records.

He allegedly climbed into the aircraft and sped down a taxiway but missed the curve heading to the runway. The plane crashed into a soybean field.

Under the plea, Santos would receive a four-year sentence with some time on probation.

Defense attorney Don Pagos argued his client should be allowed to serve his period of incarceration on electronic home monitoring.

Alevizos quickly interrupted, saying nothing short of jail time was deserved for Santos, citing a criminal history.

"He's going to jail," Alevizos said.

Pagos questioned how Alevizos could arrive at that conclusion without hearing all of the arguments from the defense.

Alevizos said he felt it was best to reject that plea agreement but made no decision.

He scheduled a hearing for Aug. 29 to hear sentencing arguments in that case.

See also this ILB entry from earlier today.

Posted by Marcia Oddi on Sunday, August 10, 2008
Posted to Indiana Courts

Ind. Gov't. - "Public records not released from Jeffersonville's Clerk-Treasurer's Office"

The Jeffersonville Evening News & Tribune reports in a story dated Saturday evening:

Mike Hutt, a former Jeffersonville City Council candidate, has filed a formal complaint against the city’s Clerk-Treasurer’s Office, alleging that he was wrongly denied access to public records.

The office maintains that the documents being requested are not public record, but private property.

The complaint was filed with the Indiana Public Access Counselor on Friday. The grievance relates to a request that Hutt made in late July, asking for statements for the Clerk-Treasurer’s Office’s credit card.

Suzy Bass, chief deputy at the office, responded to the request Thursday with a letter that said the statements he requested belong to Clerk Treasurer Peggy Wilder, not the City of Jeffersonville.

There are no statements available because the credit cards belonged personally to Peggy Wilder, not the city, said Larry Wilder, a city attorney who is also her ex-husband. * * * He said there were never any credit cards issued to Jeffersonville’s Clerk-Treasurer’s Office.

She would use her personal cards for business-related purchases and would later be reimbursed by the city. She also allowed employees in her office to use her personal cards for the same purpose, he said.

Hutt said he’s not interested in any personal credit cards, only those issued to the city.

“In the past, anything I have asked for from the city, I have gotten,” he said.

In his complaint, he notes that he had spoken with an official from the Indiana State Board of Accounts who said that credit card statements were to be kept for three years.

The assertion that the credit cards belonged to Peggy Wilder, not the city, came as news to some in city government, including Councilman Mike Smith, who’d recently taken inventory of cards.

According to his inventory, the Clerk-Treasurer’s office had three credit cards, two of which were kept in a safe and another one that was carried by Bass.

The inventory, made just before the council passed a new ordinance on credit card policy in April, indicated that these were city cards, not Peggy Wilder’s, he said.

Posted by Marcia Oddi on Sunday, August 10, 2008
Posted to Indiana Government

Environment - Air permit request raises concerns in Allen County

Dan Stockman of the Fort Wayne Journal Gazette has a major story today on a BFGoodrich air permit request. Some quotes:

An Allen County tire manufacturer may be allowed to increase its ozone-causing pollution by up to 40 tons per year.

But the decision by Indiana’s environmental regulators to let BFGoodrich in Woodburn use a new additive in its tire-making process is raising red flags for environmentalists. The concerns include:

• There is no requirement in Goodrich’s draft permit for new pollution controls to reduce the new emissions.

• It does not require any monitoring of the pollution to ensure it stays within the 40-ton limit.

• There will be no additional scrutiny before a permit is issued that a permit for more than 40 tons would require.

• The emission calculations are based on numbers supplied by Goodrich, but the analysis is not available for public review.

A 30-day public comment period on the proposed Indiana Department of Environmental Management permit ends Wednesday.

IDEM’s upcoming local decision comes about a year after its controversial decision to allow BP’s Whiting oil refinery to increase the amount of pollution released into Lake Michigan and a year and a half after Allen County returned to ozone attainment status, because its ozone levels had crept back into allowable levels.

Despite the new designation, the American Lung Association rated Allen County’s air quality a “D” this year, up from an “F” in 2007, based on its high levels of ozone.

The lengthy story is accompanied by a link to the 85-page draft permit.

Posted by Marcia Oddi on Sunday, August 10, 2008
Posted to Environment

Ind. Courts - Lake Criminal Court drug defendants bargain for lesser sentences

Marisa Kwiatkowski of the NWI Times reports today in a long story that begins:

CROWN POINT | More than 96 percent of Lake Criminal Court defendants charged in drug-related crimes have pleaded their way out of heftier prison time in the last six months, a Times computer-assisted analysis shows.

Illinois resident Elvin Long hacked his potential 149-year prison sentence for dealing cocaine and marijuana to six years with a plea agreement. He pleaded guilty to felony possession of cocaine and misdemeanor possession of marijuana in the first half of this year, court records show.

Randy Warner, who faced two felony charges of dealing cocaine and a misdemeanor count of possessing marijuana, was sentenced to three years of probation after pleading guilty to dealing a controlled substance.

The Times analyzed six months of drug-related case dispositions using Lake Criminal Court records and data provided by the Lake County prosecutor's office.

On average, defendants who entered plea agreements with Lake County prosecutors served about half the sentences of defendants who gambled on a jury trial, data shows.

And the pleas don't set well with everyone in law enforcement.

"If 96 percent are able to plea, it sounds to me that the prosecutors are doing as little as possible to get these people to serve the maximum sentence," Hammond police Cpl. Kristopher Howard said.

See also this ILB entry from Aug. 4 re last week's series in the South Bend Tribune about sentencing in drug cases.

Posted by Marcia Oddi on Sunday, August 10, 2008
Posted to Indiana Courts

Ind. Law - "New law reshapes government construction game"

That is the headline of a story today by Patrick Guinane in the NWI Times. A quote:

The Indiana General Assembly set a higher bar for public support as of July 1. New projects, including most school buildings, now will be routed to referendum if at least 100 local taxpayers or voters sign a petition in opposition to such proposals.

Posted by Marcia Oddi on Sunday, August 10, 2008
Posted to Indiana Government | Indiana Law

Saturday, August 09, 2008

Ind. Law - "Indianapolis civil rights advocate Alan Nolan dies at 85"

From the front-page of this morning's Indianapolis Star, a lengthy story by Heather Gillers that begins:

Alan Nolan had credentials and an education that could open any door. He used those tools instead to break down walls.

On Sunday, the city will remember Nolan, a civil rights activist, attorney, preservationist and author who fought segregation and intolerance in Indianapolis. He died July 27 at 85.

See also this ILB entry from Aug. 5.

Posted by Marcia Oddi on Saturday, August 09, 2008
Posted to Indiana Law

Ind. Law - "Hammond's red light camera ordinance not legal"

Several Indiana cities have been looking into using red-light cameras, Gary, Hammond, West Lafayette among them. The ILB has had a number of entries about whether red-lights cameras are legal - see the list here.

Karen Snelling of the Gary Post-Tribune reports today:

MERRILLVILLE -- Hammond's plan to use cameras to catch drivers who run red lights violates current state law, Attorney General Steve Carter said Friday.

"It is the opinion of the attorney general's office that a moving violation is not something that can be regulated by local governmental units," Carter said at a news conference in Merrillville.

As part of a plan to generate new revenue, Hammond launched a pilot red-light camera enforcement program in cooperation with Safe Speed, a Chicago traffic systems company.

Safe Speed installed cameras at the intersections of 169th Street and Grand Avenue and 169th Street and Parrish Avenue in April 2007, according to the Hammond Police Department.

In exchange for mounting the cameras and videotaping red light violations, Safe Speed expected to share part of the $100 court fines once they were assessed. Motorists would be charged with violating a city ordinance rather state law pertaining to moving violations, under an ordinance passed by Hammond.

But Carter insists the Indiana General Assembly must pass enabling legislation before a city or town can implement the red-light camera enforcement program. * * *

Two other Lake County communities -- Gary and Hobart -- have also expressed interest in the camera enforcement program.

State Sen. Earline Rogers, D-Gary, asked for the attorney general's opinion on behalf of Gary officials. Carter said state Sen. Frank Mrvan and other Hammond representatives also have asked for his opinion.

Rogers said she intends to get a bill allowing red light camera enforcement drafted to gauge support for the idea.

A similar bill was defeated in the state Senate three years ago.

Susan Brown reports in the NWI Times:
In an official opinion issued Friday, the office of Indiana Attorney General Steve Carter has found only the state can authorize the use of red light cameras.

The Hammond City Council in June gave the green light to the use of red light cameras to catch motorists running red lights.

At the time, it was unclear whether state legislation was needed for Hammond to move forward. Hammond was not alone in its interest in installing the cameras, but it was the first community to go so far as to enact an ordinance.

The ordinance would have imposed a $100 fine on offenders, and the violation would not have counted as points against their license. The city intended to treat the offense as an infraction like a parking ticket, not a moving violation.

On Friday, Carter said authorizing the use of red lights, whether on state, local or private roads, is up to the state, and Hammond's ordinance would contravene state law.

He also nixed the effort to treat the offense as an infraction and declared the offense a moving violation. * * *

The opinion does not address the constitutional issues that have been raised against the cameras. Carter said the question to his office was whether the cameras are valid under state law, which could be addressed without going into other issues.

Carter said a court could decide otherwise if his office's opinion is challenged, but official opinions from his office are taken seriously by the courts.

Here is the AG's 3-page Official Opinion 2008-3.

Earlier ILB entries on this topic include "Gary cameras may nab drivers who run red lights" from Nov. 27, 2007, "State may jump on red-light camera bandwagon" from Feb. 2, 2005, and "Driving to Illinois? Also, red light camera law in Indiana" from March 30, 2005.

Posted by Marcia Oddi on Saturday, August 09, 2008
Posted to Indiana Law

Ind. Courts - More on "Attorney Michael 'Mick' Alexander seeks delay of trial, new judge"

Updaing this entry from yesterday, Douglas Walker reports today in the Muncie Star-Press that begins:

MUNCIE -- A Jay County judge on Friday declined to disqualify himself from presiding over ex-Delaware County Prosecutor Michael J. "Mick" Alexander's upcoming conspiracy-to-commit-bribery trial.
Advertisement

Judge Brian Hutchison said the fact that he last year sentenced Alexander's defense attorney, Donald McClellan, to 30 days in jail for a drug-related conviction did not indicate he had "personal bias" against either Muncie attorney.

Hutchison -- appointed to Alexander's case in May by the Indiana Supreme Court -- took under advisement a defense request to postpone the trial, now set for Aug. 20.

"I'm not excited about the prospect of continuing this," said Hutchison, expected to rule next week on whether the trial will be rescheduled.

Posted by Marcia Oddi on Saturday, August 09, 2008
Posted to Indiana Courts

Environment - "State leaders need to revisit concentrated animal feeding legislation"

From an editorial today in the Fort Wayne Journal Gazette:

A proposal to build a 4,000-hog farm near New Haven brings the issue of Indiana’s dramatic increase in large concentrated feeding operations close to home.

Although large animal operations are more efficient and more profitable, they also pose more environmental risks when they are not well managed. But there are too few state laws regulating the operations of large livestock farms. * * *

Indiana is an agricultural state, and concentrated animal feeding operations, or CAFOs, are becoming the norm for agricultural businesses. The large animal operations are more productive and cost-effective than smaller animal operations. Raising livestock in the controlled environment requires less labor, less land and protects animals from predators and diseases. The Sierra Club reports that the number of U.S. hog farms has dropped from 600,000 to 157,000 in the past 15 years, but the number of hogs has remained level.

According to Indiana Pork Industry, Indiana is the fifth-largest producer of pork in the United States and contributes $3 billion annually to Indiana’s economy.

But with the money also comes the manure. One hog produces more waste than four people. And hog waste does not get treated; it sits in a manure lagoon where it can potentially leak ammonia, nitrates, nitrogen, phosphorus and a dozen other nasty chemicals into groundwater.

According to the U.S. Department of Agriculture, a 4,000-hog operation such as the Bradtmueller farm could produce as much as 10,000 tons of manure each year. The largest hog farm in Allen County is about 9 miles south of Fort Wayne. It received a permit from IDEM in February to have more than 9,000 pigs.

Unfortunately, state leaders have not ensured that environmental laws will keep up with the growth in CAFOs. For more than a decade, state legislators have dallied with legislation to regulate CAFOs but have made little progress. Concentrated feeding operations largely go unchecked. And since state regulations are so lax, local governments can do little to regulate the location and size of the animal operations.

The Indiana Department of Environmental Management can only regulate water quality issues. It has no control over air quality, odor or other potential dangers created by large livestock operations.

State leaders need to revisit concentrated animal feeding legislation to give local government reasonable control over where large livestock operations can locate and ensure they are run in an environmentally sound manner.

Posted by Marcia Oddi on Saturday, August 09, 2008
Posted to Environment

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

Updating yesterday's ILB entry, Harold J. Adams reports today in the LCJ:

New Albany attorney Anthony Wallingford pleaded guilty yesterday to sexual battery involving a 16-year-old girl and likely faces losing his right to practice law, at least temporarily, in addition to a short jail term.

Wallingford admitted to Harrison Superior Court Judge Roger Davis that he attacked the girl in her bedroom in Elizabeth on April 14, 2007.

He was charged with criminal deviate conduct, a Class B felony, and with sexual battery, a Class D felony. But under a plea deal, Special Prosecutor David Powell agreed to drop the criminal deviate conduct charge in exchange for admission of sexual battery.

Davis took the plea deal under advisement and set sentencing for Sept. 24.

The deal calls for Wallingford to spend no more than 120 days in the Harrison County Jail but allows Davis to require more time on home incarceration. Conviction on the sexual battery charge also requires Wallingford to register as a sex offender for 10 years. * * *

Wallingford's lawyer, James Voyles, declined to comment after the hearing.

Indiana Rules of Court require reporting the felony conviction of any attorney to the Indiana Supreme Court Disciplinary Commission, which must verify the information and request that the Supreme Court suspend the attorney from practice pending further disciplinary action. The attorney then has 15 days to respond before the Supreme Court acts.

Charles Kidd, a staff attorney for the disciplinary commission, said the Supreme Court typically grants the suspension, followed by a formal grievance procedure in which the commission investigates the case and forwards its findings and recommendation to the court. The court then decides whether a penalty -- ranging from a reprimand to permanent disbarment -- should be imposed.

Posted by Marcia Oddi on Saturday, August 09, 2008
Posted to Indiana Courts

Courts - "Are Facial Challenges Going the Way of the Dodo?" Indiana voter ID ruling cited

So asked Ashby Jones in the WSJ Law Blog yesterday. The entry quotes from Marcia Coyle's August 8th review of the court term in the National Law Journal. Among the "trends" Coyle points out to track:

The broadest of constitutional attacks, the so-called facial challenge, which aims to strike down an entire law on its face, is now clearly disfavored by the Court. Across the areas of abortion, campaign finance, elections and the death penalty, the Roberts Court has rejected facial challenges in favor of as-applied challenges in which the justices examine the application of a particular law to actual facts, case-by-case. "I think this is John Roberts' chief legacy so far," said Alan Morrison, special counsel to Fair Elections Legal Network. "The Court is saying, 'We are going to be very skeptical of facial challenges and demand a high level of evidence. Without knowing who is disadvantaged, how many are disadvantaged and the level of disadvantage, we are not going to overturn the statute.' " * * *

The facial versus as-applied constitutional challenge played out in two key cases this term -- the challenge to Kentucky's lethal-injection protocol in Baze v. Rees, 128 S. Ct. 1520 (2008), and the challenge to Indiana's voter ID law in Crawford v. Marion County Election Board, 128 S. Ct. 1610 (2008).

"I think this emerging trend in the difference between facial and as-applied challenges is crucial," said Kilpatrick Stockton's Levy. "The difference is who can sue, when they can sue and what kind of relief they can get. It partially closes the courthouse door, limits judicial remedies, and reduces the judicial role."

For the Roberts Court, the trend has its roots in Roberts' first term and the decision in Ayotte v. Planned Parenthood, 546 U.S. 320 (2006), a facial challenge to New Hampshire's law requiring parental notice before a minor can obtain an abortion. The Court, led by O'Connor in a rare unanimous abortion decision, declined to strike down the entire statute based on its unconstitutional application to a small percentage of cases.

In Baze, a plurality, led by Roberts, upheld the Kentucky protocol and articulated a standard for determining whether a lethal-injection protocol violates the Eighth Amendment bar on cruel and unusual punishment. The Court held that a method of execution violates the Eighth Amendment if it poses a substantial risk of severe pain that could be significantly reduced by adopting readily available alternative procedures. Stevens, in a concurrence, joined in the judgment but announced he no longer supported the death penalty. With concurrences, the vote was 7-2.

The Court left open the door to future litigation that might show that another state's protocol violated the Eighth Amendment, but there was insufficient proof of such a violation in the record of the Kentucky case.

In Crawford, another plurality, led by Stevens, rejected a facial attack on the Indiana statute after concluding that there was insufficient evidence that the law burdened the right to vote and that the state's interest in preventing voter fraud was legitimate. The Court again left open the door to future challenges by potential voters actually impeded in their effort to case a vote. With concurrences, the vote was 6-3.

Crawford can be explained by the principle of "the dog who didn't bark," said Morgan Lewis' Cruz. "The Court found both sides failed to introduce very much evidence, but the burden was on the plaintiffs," he said.

Neither case was viewed by experts as the strongest possible challenge to the laws at issue. Cases with better records, particularly in the lethal-injection context, were passed over by the Court.

"I do think the as-applied approach is important and a major device the chief has hit upon to continue to get narrow rulings and rulings with vote margins wider than 5-4," said Pepperdine's Kmiec. But he questioned what is achieved by the rulings in the end. "You get a general discussion of the meaning of the statute, which can be helpful, but you also get a remand to the lower court," he said. "The proof will be in pudding as to how the lower courts react. Do they take the hint from the consensus opinion or continue to go their own way? We don't have a representative sample on that yet."

But "the handwriting is on the wall," said high court litigator Thomas Goldstein, co-chairman of the Supreme Court practice at Akin Gump Strauss Hauer & Feld. As-applied challenges may be brought in both areas of the law, but they are unlikely to succeed, he predicted.

Posted by Marcia Oddi on Saturday, August 09, 2008
Posted to Courts in general

Ind. Courts - More on: Jeffersonville's ban on sex offender in park to be tested again

This ILB posting yesterday quoted a Harold J. Adams report in the Louisville Courier Journal that began:

A judge said he will decide today whether to grant a Clarksville man an exemption to an ordinance that bans sex offenders from Jeffersonville city parks.
Now this report from the evening Jeffersonville News & Tribune, written by Matt Thacker:
A convicted sex offender’s latest request to be allowed to watch his 11-year-old son play Clarksville Little League baseball in Jeffersonville was denied Friday morning.

Clark County Circuit Court Judge Abe Navarro denied Eric C. Dowdell’s request for an exemption from a city ordinance that prohibits him from watching the games. * * *

Larry Wilder, the city’s attorney, said Dowdell met 10 of the prerequisites for an exemption from the ordinance, but he did not meet the 11th, which is that the offender cannot be a danger to the community.

Dowdell’s attorney, Gavin M. Rose of the American Civil Liberties Union, said he was disappointed in the decision and believes the judge only looked at Dowdell’s criminal history and not his relationship with his son. * * *

In court records, Navarro cites Dowdell’s criminal history as evidence that he “continues to present a danger to the community.”

In July 1996, Dowdell was convicted of class D felony sexual battery and sentenced to three years in prison. His victim, according to court testimony, was a 13-year-old girl.

He was required to register as a sex offender for the next 10 years.

Dowdell has had other legal problems too. In 2001, he pled guilty to domestic battery, and in 2002, he pled guilty to battery.

He has also been charged with class D felony strangulation and class A misdemeanor domestic battery for an incident that allegedly occurred March 2 of this year.

Judges with the Jeffersonville City Court have twice denied exemption requests filed on behalf of Dowdell. The case first came about when Dowdell was coaching his son’s team last summer, and they had a game scheduled in Jeffersonville. He no longer coaches the team.

Dowdell has the option to take the case to the Indiana Court of Appeals. Rose said he will talk to his client soon to discuss what steps to take next.

In a separate case, the constitutionality of the city’s ordinance is being challenged by another ACLU lawyer. A hearing is scheduled for Aug. 25.

[More] Here is today's report from the LCJ's Harold J. Adams.

Posted by Marcia Oddi on Saturday, August 09, 2008
Posted to Indiana Courts

Ind. Courts - More on "Stop making judges run for office, Lake County commissioners argue"

Updating this ILB entry from Aug. 5th, Marisa Kwiatkowski of the NWI Times reports:

CROWN POINT | The Lake County Bar Association joined the call this week to convert four county courts to a merit-based system.

Lake County is one of two counties in the state in which most superior court judges are nominated by a panel of lawyers and lay people and appointed to office by the governor. They face the voters every six years in nonpartisan retention referendums.

Lake County commissioners argue shifting the four judges who are still elected into a merit-based selection system would save taxpayers the expense of employing larger court staffs through patronage jobs.

The county bar association unanimously passed a resolution that favors the extension of merit-based selection to the county courts division.

The Indiana Legislature ultimately controls any changes to the process of selecting judges.

Posted by Marcia Oddi on Saturday, August 09, 2008
Posted to Indiana Courts

Friday, August 08, 2008

Ind. Decisions - "Weapons case appeal 'untimely'"

The Lafayette Journal & Courier has a story this afternoon on what apparently is a ruling of the Court of Appeals, but the ruling does not appear online:

The Carroll County prosecutor waited too long to appeal a judge's decision that evidence against a Cutler man accused of having a stash of guns, ammunition and explosives was inadmissible, Indiana's higher court ruled today.

Carroll Circuit Court Judge Don Currie in April ordered that evidence seized at the home of Jessie W. Snider, 29, could not be submitted on grounds of an ineffective police search.

Two months later, Prosecutor Tricia Thompson moved to dismiss charges against Snider, which Currie granted the same day. Snider had been charged in Carroll Circuit Court with nine felonies, including possession of a destructive device, possession of a machine gun and dealing in marijuana.

Thompson on June 25 filed notice that she planned to appeal Currie's earlier ruling. But Currie said that had to be done within 30 days of his April 17 decision - directing the clerk not to assemble the record or transcribe any hearings in the case.

Thompson then petitioned the Indiana Court of Appeals for "writ of aid," asserting that she was allowed to file past the 30-day deadline under Indiana statute and by precedent from a 2000 appeals court ruling.

But the appeals court, in its unanimous ruling filed today, disagreed.

"To allow the state to wait any length of time it chooses to appeal a suppression order ... would be, at the very least, a violative of basic notions of fairness," Chief Judge John Baker wrote.

Posted by Marcia Oddi on Friday, August 08, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending August 8, 2008

Here is the Indiana Supreme Court's transfer list for the week ending Aug. 8, 2008. Note that there are five pages.

The three transfers granted Aug. 1st, Estate of Prickett, McSwane v. Bloomington Hosp, and Meredith v. State, are on today's list. They are summarized in this ILB entry from Aug. 1st.

Over four years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on Friday, August 08, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - Two Indiana cases today from the 7th Circuit

In US v. Spells (SD Ind., Judge Barker), a 24-page opinion, Judge Flaum writes:

Defendant Melvin Spells was convicted by a jury on three counts stemming from a robbery of a Papa Johns Pizza restaurant. While Spells challenges the sufficiency of the evidence on appeal, the main thrust of this appeal involves Spells’s sentencing. The district court, in sentencing Spells, found that he was an armed career criminal under 18 U.S.C. § 924(e)(1), based on what it deemed to be prior “violent felonies,” as well as a career offender under U.S.S.G. § 4B1.1. Spells was then sentenced to 346 months’ imprisonment—262 months, concurrent, on Counts 1 and 3, with a consecutive sentence of 84 months on Count 2. In addition to challenging the sufficiency of the evidence, Spells appeals the court’s findings that he was an armed career criminal and a career offender, as well its imposition of a 262 month sentence on Count 1, when the statutory maximum sentence on that Count was 240 months. For the following reasons, we affirm the district court’s judgment on all grounds, except for the 262 month sentence on Count 1, and order a limited remand for the district court to correct this error.
In Nautilus Insurance v. Reuter (ND Ind., Judge Sharp), a 20-page opinion, Judge Kanne writes:
After numerous small corporations submitted claims to Nautilus Insurance Company (“Nautilus”) for the insurer’s defense and indemnity for lawsuits the small corporations were facing, Nautilus sought a declaration that it did not owe such duties to the small corporations for the underlying claims. The insurance policies did not contain choice-of-law provisions; as a federal court sitting in Indiana, the district court applied Indiana choice-of-law rules to choose which state had the most intimate contacts with the contracts. After deciding that Indiana law governed the interpretation of the contracts, the district court granted summary judgment in favor of Nautilus on the ground that Indiana law does not contemplate insurance coverage for the types of claims arising under the insurance policies held by the insureds—claims for negligent hiring. The district court correctly applied Indiana law to the insurance policies involving two of the small corporations involved in this appeal. However, for the insurance policies involving one of the corporations, Phoenix Imagery, there is conflicting evidence about the small corporation’s principal place of business. Because we cannot resolve the conflict on the basis of the paper record, we remand this particular choice-of-law determination to the district court for further proceedings, such as an evidentiary hearing.

Posted by Marcia Oddi on Friday, August 08, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Law - More on: ILB makes the complete history of the Indiana Code of 1971 accessible; and a plea for funding

Updating this ILB entry from August 4th, I've now completed the second index to the complete history of the deliberations of the Indiana Statute Revision Commission, covering the course of its existence - 1969-1970.

A "Listings by topic" index now accompanies the "Listings by date." This topics index is particularly helpful if your want to research how decisions were made re, for instance, the treatment of every appropriation enacted from 1852 to 1970. Or legalizing acts. Or temporary legislation.

And the plea for funding continues.

Posted by Marcia Oddi on Friday, August 08, 2008
Posted to Indiana Law

Courts - "Judge declares mistrial, blames newspaper"

From a report by KSN.com that begins:

SALINA, KS, August 7, 2008 -- A judge declared a mistrial Thursday in the Saline County rape case of Jerry Sellers and blamed the local newspaper.

On page A5 of the Salina Journal, the reporter reveals Sellers was sentenced on Monday in Harvey county to 11 years in prison for fondling a 13-year-old girl there.

The judge in the Saline County case said that information could taint the jury.

The defense attorney asked for a mistrial and the prosecution didn't object. Neither would go on camera, saying they didn't want to contribute to any more trial publicity.

The county attorney, however, said she just wished the paper would have been more responsible in their reporting. She says if they would have held the story just one more day, the trial would have continued.

"Our job is to report the news and our responsibility is to our readers and our responsibility is not to sit there and restrain ourselves thinking what the court might want, what the court might do,” said Ben Wearing copy editor for the Salina Journal. “If we had to do it all over again, we would do it all over again."

Wearing says in his 30 years as a journalist he's never heard of a newspaper article leading to a mistrial.

Journalists routinely report on all aspects of a case and jurors are told to stay away from all media relating to the trial.

Here is a report from the newspaper itself, the Salina Kansas Journal.

[Thanks to the Poynteronline column, Romenesko, for the link.]

Posted by Marcia Oddi on Friday, August 08, 2008
Posted to Courts in general

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

For publication opinions today (0):

NFP civil opinions today (1):

In LeWayne Hilbert v. Deborah S. Hilbert (NFP), a 15-page opinion, Judge Najam writes:

LeWayne Hilbert (“Husband”) appeals from the dissolution court’s final decree dissolving his marriage to Deborah Hilbert (“Wife”). He presents the following issues for our review: 1. Whether the dissolution court excluded Wife’s interest in a trust from the marital estate. 2. Whether the dissolution court abused its discretion when it divided the marital estate. 3. Whether the dissolution court abused its discretion when it concluded that Husband is voluntarily underemployed. We affirm.
NFP criminal opinions today (9):

Lazarus Turner White, II v. State of Indiana (NFP)

Rodney G. Pollard v. State of Indiana (NFP)

Terry Burkett v. State of Indiana (NFP)

John Coble v. State of Indiana (NFP)

Jose Antonio Perez v. State of Indiana (NFP)

Frederick Jackson v. State of Indiana (NFP)

Daryl W. Barton v. State of Indiana (NFP)

Larry Robinson, Jr. v. State of Indiana (NFP)

Charles S. Tink v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 08, 2008
Posted to Ind. App.Ct. Decisions

Courts - "For 'Maverick' Federal Judges, Life Tenure Is Largely Unfettered License"

This freely-available opinion piece today in the WSJ, written by Nathan Koppel, is aimed at federal judges, and particularly at a single federal district court judge, 84-year-old LA Judge Manuel Real:

Life tenure for federal judges aims to give them the independence to do what is right -- not protect them while doing wrong.

A string of recent transgressions by a federal judge in Los Angeles has some questioning whether the federal bench can adequately police itself.

In the most recent incident, the U.S. Federal Circuit Court of Appeals in Washington, D.C., last week ordered Judge Manuel Real to be removed from a patent-infringement case against Microsoft Corp. The appellate court said Judge Real, who ruled for Microsoft, improperly ignored evidence and failed to adequately state the reasoning behind his rulings. Trial judges are often reversed on appeal, but rarely found so lacking that they are removed from cases.

The very people charged with meting out carefully measured punishments are themselves subject to imprecise sanctions that are either too lax, according to some critics, or too severe to be used except in the rarest occasions. The U.S. Constitution allows judges to serve "during good behavior," which traditionally has been interpreted as "for life." The U.S. House of Representatives can impeach judges for "high crimes and misdemeanors," but only 13 judges have ever met this fate.

Defenders of the federal bench say the vast majority of federal judges are exemplary, in part because they are free to follow their consciences without worrying about losing their jobs. After all, federal judges, as one attorney noted, led the way in desegregating the South.

But the concerns come at a time when there are more serious-misconduct investigations of federal judges than at any time in recent years. Discipline short of impeachment, which typically results in a reprimand, is usually left to court-governing bodies, whose most severe penalty is to require misbehaving judges to take paid leaves of absence.

"How many people in America hold jobs where, if you do them badly enough, the punishment is you have to stop working and collect your pay?" says Charles Geyh, a professor at the Indiana University School of Law, who specializes in judicial ethics. Public shaming is a sufficient sanction for most judges, he says, but probably not for "the maverick judge who doesn't give a damn."

Noteworthly is this section, on state court judges:
In state courts, judges can be voted out of office or removed by state supreme courts for misconduct. State judges are also subject to mandatory codes of conduct, unlike their federal counterparts, who operate under advisory conduct codes that can be loosely interpreted.

Posted by Marcia Oddi on Friday, August 08, 2008
Posted to Courts in general

Courts - "Study Finds Settling Is Better Than Going to Trial "

So reports Jonathan D. Glater in this story today in the business section of the NY Times. Check out this NYT graphic. The study is to be published in the September issue of the Journal of Empirical Legal Studies.

Posted by Marcia Oddi on Friday, August 08, 2008
Posted to Courts in general

Ind. Courts - Jeffersonville's ban on sex offender in park to be tested again

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

A judge said he will decide today whether to grant a Clarksville man an exemption to an ordinance that bans sex offenders from Jeffersonville city parks.

Eric Dowdell, 36, took his case to Clark Circuit Judge Abe Navarro yesterday after twice being turned down in Jeffersonville City Court.

Dowdell, who completed a required 10-year stay on Indiana's sex-offender registry in 2006 following a 1996 sexual battery conviction, wants to attend his son's baseball games at Jeffersonville's Little League complex and his football games in city parks.

Dowdell's lawyer, Gavin Rose of the American Civil Liberties Union, argued yesterday before Navarro that Dowdell has satisfied the conditions to be granted an exemption to the city ban and is not a danger to the community.

But Jeffersonville City Attorney Larry Wilder disagreed, citing domestic-violence convictions against Dowdell in 1999 and 2001 as well as a pending case this year.

The ban on sex offenders in city parks, adopted in 2006, allows offenders who have completed their legal obligations to petition the City Court for an exemption.

City Court Judge Ken Pierce denied Dowdell's petition in April, just as his predecessor, R. Scott Lewis, did last year.

The ordinance says parties to City Court rulings may ask a state court to take a fresh look at the matter, and Dowdell did so.

Wilder and Rose agree that Dowdell has done well on nearly all of the factors that the ordinance says a judge may consider in determining whether to grant an exemption. Those factors include completing any required prison or probation term and counseling.

But the attorneys spent much of yesterday's hearing arguing over whether Dowdell's criminal record after the 1996 conviction means he is a danger to the community and should be kept out of city parks. * * *

In a separate action, Dowdell -- with ACLU representation -- is challenging the constitutionality of the ordinance in Clark Superior Court. That case is set for a hearing Aug. 25.

Here is a list of three earlier ILB entries on the Jeffersonville challenge.

Posted by Marcia Oddi on Friday, August 08, 2008
Posted to Indiana Courts

Ind. Courts - "Attorney Michael 'Mick' Alexander seeks delay of trial, new judge"

So reads the headline to this story today by Douglas Walker in the Muncie Star-Press. Some quotes:

Former Delaware County Prosecutor Michael J. "Mick" Alexander wants his upcoming trial on a conspiracy-to-commit-bribery charge postponed.

He also wants a new judge.

In a document filed Wednesday, Alexander alleged Special Judge Brian Hutchison of Jay County should be disqualified because he "unfairly attacked the integrity" of Alexander's defense attorney, Donald McClellan, last year when he sentenced McClellan to 30 days in jail.

Alexander's motion was accompanied by a transcript of a Randolph Superior Court hearing on Oct. 18, 2007, in which McClellan, convicted of possession of cocaine and public intoxication, received a one-year sentence with all but 30 days suspended.

During the 2007 hearing, Hutchison -- also serving as special judge in that case -- expressed reservations about a sentencing option of having McClellan provide 240 hours of free legal service to the needy in lieu of going to jail.

"I think it is problematic because you would be the one accounting for your hours," the judge told McClellan, whose convictions stemmed from a July 2006 arrest along Ind. 28 in northern Randolph County.

Alexander -- who was McClellan's attorney in the Randolph County case -- contended a plea agreement left it up to McClellan whether to perform the community service or serve the 30-day jail term.

"I have a serious problem with allowing a defendant to choose the sentence in a criminal proceeding," Hutchison said, ordering the attorney to serve the 30-day sentence.

In the pending Delaware County case, McClellan and Alexander have exchanged roles as defense attorney and defendant, respectively.

Alexander's trial -- based on that allegations he, private investigator Jeff Hinds and a client conspired to bribe witnesses in a criminal case -- is set for Aug. 20.

Here is an earlier ILB entry, from May 22nd.

Posted by Marcia Oddi on Friday, August 08, 2008
Posted to Indiana Courts

Environment - Massive fish kill in Union City; Complaints of CAFO permit delay in Union County

Two CAFO stories today.

"Fish toll may reach 40,000 from manure spill" is the headline of a story today by Joy Leiker of the Muncie Star-Press. It begins:

UNION CITY -- A minimum of 10,000 fish have died, and that number could quadruple in the coming days as the Indiana Department of Natural Resources counts dead fish in the Little Mississinewa River after a hog manure spill.

As of Thursday afternoon, Rick Garringer, the DNR Conservation Officer for Randolph County, estimated 10,000-20,000 fish had died, and the total "could easily be twice that."

"It's killing all the fish," Garringer said, noting the number would be higher if the river's water was deeper and more heavily populated.

The dead fish span about seven miles, while the pollutants in the river extend up to nine miles, and include areas both north and south of Union City, as well as through Harter Park, the city's largest park.

Garringer said most of the dead fish are small, like minnows, but conservation officers also have counted catfish, bluegill and bass.

Rita Mangas estimates there are thousands of dead fish along the banks and in the river that crosses her family's property on Randolph County Road 500-N. Unaware that the DNR and Indiana Department of Environmental Management had been called to a hog manure spill several miles south of their home, Leon Mangas on Wednesday noticed fish trying to stand in the river's water and gasp for air. Hours later, the Mangas' son Rod noticed all the fish were dead.

"There's a pile and it stinks," Rita Mangas said. "If it's in our streams, what about our wells?"

Last weekend, Stateline Agri Inc. (also known as Stateline Farms and Kremer Family Farms) applied 27,000 gallons of hog manure to a field about a mile south of Ind. 32. Heavy rains Monday washed that manure off the field and into a drainage tile into the river, said IDEM spokeswoman Amy Hartsock.

"Attorney questions Union County's delay on CAFO permits" is the headline of a story today by Amy Tharp in the Richmond Star-Press. Some quotes:
LIBERTY, Ind. -- Four months after plans for a Harrison Township megadairy were announced, Union County still lacks a zoning ordinance governing the placement of mega livestock farms.

Now, a Fort Wayne attorney representing Liberty Dairy LLC is questioning the county's delay in issuing septic and building permits for the 2,500-cow concentrated animal feeding operation, Commission President Allen Paddock said.

County officials hoped to have a new livestock zoning ordinance in place before the dairy's building permit was issued, so it would be governed by the new rules.

The zoning ordinance approved in June by the area plan commission and the changes county commissioners recommended on July 28 are back in the hands of the Union County Area Plan Commission, Paddock said.

"We talked Monday about changing the setback between CAFOs to something less than eight miles, but (county attorney) Tom (Thompson) didn't recommend making any changes on Monday. He said we should go to the area plan meeting and if we wanted to make changes then, we could," Paddock said. * * *

The delay is frustrating to Concerned Citizens for Union County member and Area Plan Commission member Randy Hartman. Concerned Citizens wants a more comprehensive ordinance and a moratorium on building permits for CAFOS until the ordinance is approved.

Posted by Marcia Oddi on Friday, August 08, 2008
Posted to Environment

Ind. Courts - Judge Dailey on the Delaware County drug forfeiture investigation

Updating this ILB entry from Aug. 7th, the Muncie Star-Press today has an unattributed story headed "Dailey says not his role to determine if crimes occurred":

MUNCIE -- Delaware Circuit Court 2 Judge Richard Dailey said Thursday it was not his role to determine whether crimes had been committed "in cases involving civil drug forfeitures."

A Star Press article in Thursday's edition reported that in a courtroom discussion with attorneys, Dailey indicated he seen no evidence of crimes by police officers in his investigation of the handling of civil forfeiture lawsuits pursued against alleged drug dealers by the Muncie-Delaware County Drug Task Force and the county prosecutor's office.

The judge on Thursday issued a prepared statement seeking to "more fully explain what I intended to be the meaning of my remarks."

Dailey noted he had been instructed by the Indiana Supreme Court to continue his inquiry into whether fraud on the court had occurred in local forfeiture cases.

The judge said his investigation focused entirely on possible fraud on the court, not criminal wrongdoing.

"However, this does not mean that matters under investigation do not constitute criminal acts, only that I am not seeking evidence of criminal acts, but, instead, evidence of fraud on the court," the judge wrote.

"The finding whether criminal activity has occurred is and should be left to Judge Michael Peyton of Henry County, before whom a petition for special prosecutor has been filed (by Mayor Sharon McShurley's administration), or any other court that has appropriate jurisdiction to consider such matters," Dailey added.

Dailey said he intended to issue "in the next few days" a report that will contain "my findings regarding fraud on this court."

He also said he would forward a copy of that report to both the Indiana Supreme Court and its disciplinary commission.

Judge Dailey's complete statement appears in a side-bar to the story.

Posted by Marcia Oddi on Friday, August 08, 2008
Posted to Indiana Courts

Ind. Courts - Still more on: Plea deal pulled in attorney sex-attack case

Updating earlier ILB entries, Harold J. Adams of the Louisville Courier Journal reported Aug. 7th in a story that begins:

In a second deal with prosecutors, New Albany attorney Anthony Wallingford has agreed to plead guilty to sexual battery in connection with an attack on a 16-year-old girl at her Elizabeth home last year.

The plea-bargain reached with Special Prosecutor David Powell in Harrison County would allow Wallingford to avoid a potentially lengthy prison sentence, but he would be required to register as a sex offender for 10 years.

Powell withdrew an earlier agreement -- which would have avoided the sex-offender registration requirement by eliminating sex from the charges -- largely because the victim objected.

Wallingford's attorney, James Voyles, did not return a call yesterday seeking comment on the new deal. Powell declined to comment except to confirm that a guilty plea to sexual battery would trigger the 10-year registration requirement.

Posted by Marcia Oddi on Friday, August 08, 2008
Posted to Indiana Courts

Ind. Decisions - "Love the wine? You must visit the vine"

The subhead to today's Indianapolis Star story by Jeff Swiatek: "Judges toss out ruling that let you simply order online; Hoosiers must appear in person for an ID check first.". The decision is that of the 7th Circuit yesterday in the case of Baude v. Heath. An ILB summary is posted immediately below this entry. From today's Star story:

Hoosiers who want to order wine by phone or over the Internet once again will have to make face-to-face contact with the vintner first, a federal appeals court ruled Thursday.

The requirement was lifted nearly a year ago in a ruling by then-U.S. District Judge John D. Tinder in Indianapolis. But the 7th U.S. Circuit Court of Appeals in Chicago reinstated it Thursday, noting that the absence of face-to-face age verification made it easier for minors to have wine sent to them.

While the ruling is a loss for Hoosier connoisseurs and the wineries that want to ship to them, it was a victory for the Indiana Alcohol and Tobacco Commission and others who argued that the "face-to-face" rule was needed to protect minors.

It also was a win for wine distributors and wholesalers who get cut out of sales when vintners ship directly to the consumer. * * *

A three-judge panel on Thursday rejected Tinder's ruling that Indiana's face-to-face provision "erects a trade barrier to most out-of-state wineries" and determined the provision's impact on interstate commerce was negligible. "Indiana has not tried to keep wine from crossing its border," the court said.

Since throwing out the law, Tinder was named to a 7th Circuit judgeship but was not on the panel that reversed his decision.

Thursday's 11-page appellate ruling also rejected evidence submitted by plaintiffs that age-based verification online is as effective as verification in person.

"It is important to remember that we are dealing with effects on the margin; make it easier for minors to get wine by phone or Internet, and sales to minors will increase," the court said.

Here is an AP report.

Posted by Marcia Oddi on Friday, August 08, 2008
Posted to Ind. (7th Cir.) Decisions

Thursday, August 07, 2008

Ind. Decisions - 7th Circuit posts two Indiana decisions late today

One is the wine shipping case, Baude v. Heath (SD Ind., Judge Tinder). For background, see this ILB entry from Feb. 22nd. Today Judge Easterbrook writes, in an 11-page opinion:

After Granholm v. Heald, 544 U.S. 460 (2005), held that states that allow wineries to ship direct to consumers may not discriminate against outof- state vintners, Indiana revised its statutes. We had held in Bridenbaugh v. Freeman-Wilson, 227 F.3d 848 (7th Cir. 2000), that the portions of Indiana’s laws there under challenge were non-discriminatory but had flagged other questionable provisions. Indiana eliminated them and revamped the way in which it regulates direct shipments.

Today wineries inside and outside Indiana may ship to customers, if (a) there is one face-to-face meeting at which the buyer’s age and other particulars can be verified; and (b) the vintner is not allowed to sell to retailers in any state as its own wholesaler. Indiana also requires wineries to obtain licenses and remit taxes, and it limits each customer to 24 cases per winery per year, but these elements of the state’s system have not been challenged. The district court enjoined enforcement of the two contested provisions because they have a disparate impact on out-of-state sellers. 2007 U.S. Dist. LEXIS 64444 (S.D. Ind. Aug. 29, 2007). * * *

One of the two provisions challenged here is indeed a needless and disproportionate burden on interstate commerce. The wholesale clause in Ind. Code §7.1-3-26-7(a)(6) provides that a winery may sell direct to consumers only if it “does not hold a permit or license to wholesale alcoholic beverages issued by any authority” and is not owned by an entity that holds such a permit. Indiana says that this clause is designed to protect the state’s “three-tier system” under which retailers may buy their inventory only from wholesalers. If a wholesaler in another state could sell wine direct to consumers, the state insists, the winery-to-wholesaler-to-retailer-to-consumer model would collapse. * * *

Indiana does not defend the wholesale clause, though a trade association, which intervened to protect its economic interest, insists that the clause is valid. * * *

The wholesale clause protects Indiana’s wholesalers at the expense of Indiana’s consumers and out-of-state wineries.

Analysis of the law’s other requirement is more complex. Indiana requires any consumer who wants to receive direct shipments of wine—from any winery, in or out of Indiana—to visit the winery once and supply proof of name, age, address, and phone number, plus a verified statement that the wine is intended for personal consumption. See Ind. Code §§ 7.1-3-26-6(4), 7.1-3-26- 9(1)(A). The parties call this the face-to-face clause. Plaintiffs say that a face-to-face meeting is more expensive, the farther away is the winery (so the law has a disparate impact on interstate commerce), and that local benefits are negligible because people under 21 are bound to find some way to get hold of wine no matter what the law provides (they could, for example, present forged credentials or bribe sellers to overlook their youth). * * *

None of the plaintiffs contends that Indiana’s law has led him to buy more wine from Indiana and less from other states. The law simply shifts sales from smaller wineries (in all states, including Indiana) to larger wineries (all of which are located outside Indiana). The Indiana Winegrowers Guild has filed a brief as amicus curiae opposing the face-to-face clause, which the Guild maintains has made it unduly difficult for its members to ship their wine direct to consumers. But if what the Guild says is true, then the statute—although bad economically for Indiana’s wineries—must be sustained against a challenge under the commerce clause. Favoritism for large wineries over small wineries does not pose a constitutional problem, and the fact that all Indiana wineries are small does more to show that this law’s disparate impact cuts against in-state product than to show that Indiana has fenced out wine from other jurisdictions.

The judgment of the district court with respect to the wholesale clause is affirmed, and with respect to the faceto- face clause is reversed. The case is remanded for the entry of a judgment consistent with this opinion.

The second opinion today is in US Sec. & Exchange Comm. v. Lyttle (SD Ind., Judge Barker), involving bank fraud. Defendants appealed their penalties. The panel, in a 6-page opinion by Judge Posner, affirmed.

Posted by Marcia Oddi on Thursday, August 07, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Indiana building codes, part of the Indiana Administrative Code, are copyrighted and not available online

The ILB entry yesterday on the Fire Prevention and Building Safety Commission called to mind another very irksome situation insofar as the accessibility of Indiana laws and rules is concerned.

It is not an easy thing to review the Indiana State Building Codes in the Indiana Administrative Code (here is the link to 675 IAC).

Why not? Because Indiana has incorporated by reference the copyrighted "International Building Code, 2006 Edition, first printing, as published by the International Code Council, Inc." 675 IAC 13-2.5-1 provides:

Sec. 1. (a) That certain document being titled the International Building Code, 2006 Edition, first printing, as published by the International Code Council, Inc., 500 New Jersey Avenue NW, Sixth Floor, Washington, D.C. 20001-2070, is hereby adopted by reference as if fully set out in this rule save and except those revisions made in sections 2 through 36 of this rule.

(b) This rule is available for review and reference at the:
Code Services Department
Indiana Government Center-South
402 West Washington Street, Room W246
Indianapolis, Indiana 46204.

All you will find in the Indiana rules are provisions such as:
675 IAC 13-2.5-3. * * * (F) Add the definition: BUILDING CODE: BUILDING CODE means the INDIANA BUILDING CODE.
These are exceptions to what is in the published International Code, and of course mean nothing to you if you can't read them with a copy of that Code.So what is an Indiana citizen to do? The copyrighted codes are nowhere freely available online. Go downtown and read the agency's copy. Or maybe there is one at your library. Or you can purchase one for $95 from the International Code. Actually, in all cases it is two: you'll need both the International Code and the state exceptions. And the state has a number of different codes, plumbing, electrical, mechanical, etc.

Here is the Indiana Dept. of Homeland Security homepage, which houses what used to be the Administrative Building Council. I did not find it helpful.

More helpful, perhaps, is this page from the Goshen Building Dept., which near the bottom lists all the current construction codes in effect in Indiana.

This situation with copyrighted building codes forming part of our state law is not unique to Indiana.

And the problem may not be limited to the building codes, although it turns out that, for instance, the 2002 Real Property Assessment Manual & Guidelines (effective until 2011-pay-2012), which are incorporated by reference at 50 IAC 2.3-1-2, are in fact available online is a useable format through the Dept. of Local Government Finance.

I may have more later.

Posted by Marcia Oddi on Thursday, August 07, 2008
Posted to Indiana Government

Ind. Decisions - "Circuit Court rejects suit opposing religion in vets care"

The 7th Circuit's decision 32-page decision yesterday in the case of Freedom from Religion Foundation v. Nicholson, out of Wisconsin, is the subject of an AP story today in the Fort Wayne Journal Gazette. Some quotes:

MADISON, Wis. – Taxpayers cannot sue the U.S. Department of Veterans Affairs for incorporating religion into its health care programs for the nation's veterans, an appeals court has ruled.

The 7th Circuit Court of Appeals ruled Tuesday the Madison-based Freedom From Religion Foundation and three of its members have no legal standing to bring the case.

The group was trying to end the department's practice of asking patients about their religion in "spiritual assessments," its use of chaplains to treat patients, and drug and alcohol treatment programs that incorporate religion. It claimed those practices violated the separation of church and state.

But the court ruled that federal taxpayers cannot challenge those expenditures. The court cited a U.S. Supreme Court decision last year in which the same group was not allowed to sue over President Bush's faith-based initiative.

In that case, the court ruled 5-4 the executive branch cannot be sued by taxpayers for expenses that allegedly promote religion. Cases can only be brought when the questionable expenditures are explicitly authorized in a congressional spending bill, the court ruled.

Congress never authorized spending on the chaplain services, pastoral care and other programs challenged, the 7th Circuit ruled.

Posted by Marcia Oddi on Thursday, August 07, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 1 NFP)

For publication opinions today (2):

In LHT Capital LLC v. Indiana Horse Racing Commission, et al. , a 19-page opinion, Judge Brown writes:

LHT asserts that the Commission demanded a $15 million transfer fee. In an August 6, 2007 letter to the Commission’s counsel, counsel for Indiana Downs and LHT complained regarding the Commission’s “illegal attempts to extract $15 million or more from our client.” Indiana Downs and LHT included a draft complaint with the letter and argued that the Commission’s “transfer tax” for non-controlling interests [ILB - but authorized by an emergency rule of the commission] was not authorized by the legislature and was unconstitutional. * * *

The issue is whether the trial court abused its discretion by granting the motion to dismiss for failure to exhaust administrative remedies. * * *

Failure to exhaust administrative remedies deprives the trial court of subject matter jurisdiction. Johnson v. Celebration Fireworks, Inc., 829 N.E.2d 979, 984 (Ind. 2005). Under the Administrative Orders and Procedures Act (“APOA”), “[a] person may file a petition for judicial review under this chapter only after exhausting all administrative remedies available within the agency whose action is being challenged and within any other agency authorized to exercise administrative review.” Ind. Code § 4-21.5-5-4(a). Moreover, a person may obtain judicial review only of an issue that was raised before the administrative agency. Ind. Code § 4-21.5-5-10. * * *

On appeal, LHT argues that the trial court erred by dismissing its petition for judicial review because: (1) it exhausted its administrative remedies by raising the constitutionality and legality of the Emergency Rule before the Commission and by filing a timely petition for judicial review; and (2) it was not required to exhaust its administrative remedies because doing so would be futile and because it is challenging the rule as facially invalid and unconstitutional. * * *

LHT also argues that it was not required to exhaust its administrative remedies because the Emergency Rule was facially invalid or unconstitutional. Under some circumstances, the Indiana Supreme Court has concluded that a litigant may bypass the exhaustion of administrative remedies where “a statute is void on its face,” and “if an agency’s action is challenged as being ultra vires and void.” Ind. Dep’t of Envtl. Mgmt. v. Twin Eagle LLC, 798 N.E.2d 839, 844 (Ind. 2003). * * *

However, unlike both Tioga Pines and Twin Eagle, LHT did not file a declaratory judgment action challenging the regulation; rather, LHT brought a petition for judicial review of the Commission’s order allowing it to transfer ownership of its shares of Indiana Downs. * * *

Because LHT’s arguments regarding the validity of the Emergency Rule are mainly issues of law, we might have reached a different result if LHT had simply filed a declaratory judgment action rather than pursuing the settlement with the Commission. * * * However, having pursued the settlement with the Commission and having failed to present its arguments regarding the validity of the Emergency Rule, LHT failed to exhaust its administrative remedies.

In summary, we conclude that LHT did not argue to the Commission that the Emergency Rule was invalid and unconstitutional. LHT’s failure to raise the issue with the Commission is not excused by futility or by its challenge to the constitutionality of the rule. Because LHT failed to exhaust its administrative remedies, the trial court did not have subject matter jurisdiction and properly granted the Commission’s motion to dismiss. * * * Given our resolution of this issue, we express no opinion on LHT’s argument that the Emergency Rule is facially invalid and unconstitutional.9 For the foregoing reasons, we affirm the trial court’s grant of the motion to dismiss. Affirmed.

In Craig Cross v. Victoria Cross , a 17-page, 2-1 opinion, Judge Brown writes:
Craig Cross appeals the trial court’s grant of Victoria Cross’s petition for modification of child support and the denial of his petition to claim their children for tax exemption purposes. Craig raises five issues, which we consolidate and restate as: I. Whether the trial court abused its discretion by granting Victoria’s motion to withdraw admissions; II. Whether the trial court abused its discretion by granting Victoria’s petition for modification of child support; and III. Whether the trial court erred when it denied Craig’s petition to claim their children for tax exemption purposes. We affirm in part, reverse in part, and remand. * * *

For the foregoing reasons, we affirm the trial court’s grant of Victoria’s motion to withdraw admissions, its exclusion of V.E.C.’s SSI from its determination of Craig’s child support obligation, and its denial of Craig’s petition to claim the children for tax exemption purposes. We reverse the trial court’s order crediting Victoria for her daycare expenditure and remand for proceedings consistent with this opinion. In this regard, the trial court is free to enter a written finding articulating its reasons for deviating from the Child Support Guidelines or, alternatively, to adjust Craig’s child support obligation without crediting Victoria for the daycare expenditure.

MATHIAS, J. concurs
BAKER, C. J. dissents in part with separate opinion [which begins] I respectfully dissent from the majority’s conclusion regarding Victoria’s weekly childcare expenses. I believe that the majority’s application of the Child Support Guidelines is overly literal. The record herein reveals that Victoria was a full-time caregiver for her disabled daughter and a part-time caregiver for a patient with Alzheimer’s Disease. In fact, Victoria often cared for both at the same time, bringing her daughter with her to the patient’s home. It is certainly reasonable that Victoria sought a break from her responsibilities once a week for five hours. That break likely gave Victoria an opportunity to relax and recharge so that she could continue to care for her daughter and maintain her paying job.

NFP civil opinions today (0):

NFP criminal opinions today (1):

William Le'Shawn Thomas v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 07, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Lake County Council "frowns on unchanged budgets from county judges "

John Byrne reports today in the Gary Post-Tribune:

CROWN POINT -- The Lake County Council is ready to put several county judges on notice.

Unhappy with initial 2009 budget proposals from three of the four County Division courtrooms, council members said Wednesday they need to call the judges on the carpet.

"They're going to need to be corralled together for a meeting," said Councilman Tom O'Donnell, D-Dyer.

Judge Jesse Villalpando was the only one of the four to turn up for initial budget hearings Tuesday in Crown Point.

And only Villalpando presented a plan to cut positions from his courtroom, announcing he would close out three secretarial spots.

Representatives for judges Nicholas Schiralli, Julie Cantrell and Sheila Moss proposed 2009 budgets largely unchanged from this year.

That didn't sit well with the council, which is hoping to adopt a 2009 county budget $15 million smaller than this year's.

The County Division judges have also been in the Lake County commissioners' crosshairs of late.

The four are the only ones of 16 Lake County judges still chosen in partisan elections.

In a letter released this week, the commissioners said they believe state legislators will now support a statutory change to have the County Division chosen by a judicial commission and the governor, like their peers.

See this Aug. 5th ILB entry quoting an earlier, related story.

Posted by Marcia Oddi on Thursday, August 07, 2008
Posted to Indiana Courts

Ind. Courts - More again today on the Delaware County drug forfeiture investigation

The most recent ILB entry on the drug forfeiture investigation in Delaware County was Aug. 6. Today Rick Yencer of the Muncie Star-Press reports in a story that begins:

Delaware Circuit Court 2 Judge Richard Dailey on Wednesday concluded his series of hearings on the handling of forfeitures and seizures in local drug-related cases, making no finding of criminal activity.
Advertisement

"That is something left to someone else to do," said Dailey, referring to a grand jury or special prosecutor.

Dailey reviewed 10 more cases Wednesday in which the Muncie-Delaware County Drug Task Force, Delaware County Prosecutor Mark McKinney and Deputy Prosecutor Eric Hoffman used confidential settlements or affidavits to seize and disperse the money and assets of alleged drug dealers.

While state law requires that such money be placed local government and school funs, the DTF maintained separate city accounts and checkbooks in which they deposited and spent hundreds of thousands of dollars over the past decade and equipment, vehicle, charitable donations and other expenses.

Dailey spoke from the bench to McKinney and Hoffman, along with city attorney Charles "Chic" Clark, after Wednesday's hearing, saying he had not seen evidence of criminal activities by police in the nearly 40 cases he had reviewed so far.

Posted by Marcia Oddi on Thursday, August 07, 2008
Posted to Indiana Courts

Courts - "Groups Urge High Court to Review Key Judicial Recusal Case"

Updating this ILB entry from Aug. 4th, Marcia Coyle of The National Law Journal reports today in a brief story:

Bar, campaign reform and citizens' groups this week filed briefs urging the U.S. Supreme Court to hear a case challenging a West Virginia Supreme Court justice's refusal to recuse himself from a case involving his chief campaign contributor.

The American Bar Association, the Washington Appellate Lawyers Association and Public Citizen filed amicus briefs, along with the Brennan Center for Justice, the Reform Institute and the Campaign Legal Center.

In Caperton v. Massey Coal, No. 08-22, the president of a coal company, represented by former Solicitor General Theodore B. Olson, argues that his due process rights were violated because West Virginia Supreme Court Justice Brent Benjamin refused to recuse himself from hearing the appeal of a $50 million jury verdict against a rival coal company. The rival's chief executive officer contributed more than $3 million in direct and indirect support of Benjamin's campaign for the bench. Benjamin ultimately was the deciding vote in overturning the verdict.

The ABA and the other organizations urged the high court to grant review to address whether and when the due process clause of the Constitution requires judges to recuse themselves, or withdraw, from ruling in cases in which they have accepted campaign contributions from parties to a case.

"This case perfectly illustrates how large contributions in judicial races can distort the judicial process, providing, at the very least, the appearance of corruption," said Cecilia Martinez, executive director of the Reform Institute. "When litigants feel that they are at a disadvantage in court proceedings due to contributions to the presiding judge from the opposing party, respect for the rule of law suffers."

Posted by Marcia Oddi on Thursday, August 07, 2008
Posted to Courts in general

Wednesday, August 06, 2008

Ind. Decisions - Improvements needed to highlight late-added opinions

Late this afternoon, another COA opinion was posted by the Clerk; the stamp indicates it was filed at 3:40 pm. The NFP case is Mitchell Jackson v. State of Indiana (NFP).

Only by accident did the ILB discover this, noticing that the count from earlier in the day, 15, had now increased to 16. To determine which of the list of 16 was new, the ILB had to tediously compare the old list against the new list. As one can see from looking at the list of postings, the newly added Jackson falls in the middle of the 8/6/08 postings.

I have no idea how often this happens and goes undiscovered. The last time the ILB spotted one of these late-added opinions was June 5th: "[Note: This opinion was posted after the regular posting; as the ILB has stressed before, there is always the danger that additional opinions added later in the day with no designation as such will not be spotted.]"

The ILB has written about this issue several times. This ILB entry from Dec. 12, 2007 is headed "Suggestions to improve COA postings:"

Readers will notice there are two sets of Court of Appeals decisions this afternoon. When the ILB checked at noontime, there were a number of opinions dated 12/12/07, which the ILB duly posted with summaries. A few minutes ago the ILB checked the COA site again, and it appeared that more cases dated 12/12/07 had been added.

The problem is, there is no easy way, from the way the COA site is set up, to distinguish between additions to the list, other than by date. When additional cases are added in the same day, they are intermingled with the cases already posted, rather than being added to the top or bottom of the list, or otherwise identified.

Someone looking at the list at the wrong time of a day may miss important opinions and not realize it, or may look a second time and see that the list for the day looks longer, but have to open each opinion again to see which ones are new.

The ILB has corresponded with a COA representative about this problem twice, suggesting possible resolutions. Here is the message, sent Sept. 7th and Oct. 26th:

Here [are] two small things the Court of Appeals could do to improve its reporting of opinions on the court website.

Most days it appears that the opinions go to the clerk for posting in batches. What that means is that when the public checks the site it can tell all the cases posted for a certain date, but it cannot distinguish between what was added first thing in the morning and what was added later. So, especially on busy days, if you look at 10 there is a long list of cases, and if you look at 2 the list may be even longer, but no way to determine what has been newly added.

This could be easily remedied by, for instance, having DP somehow separate this first batch from the second, rather than intermingling them.

A second improvement, that I suggested to the Clerk's office several years ago, has to do with corrected opinions. It appears that when an opinion is corrected for typos, etc. a new version is posted in place of the old with nothing said. So different people may be reading different versions, depending on when they accessed the opinion. Why not append a correction sheet to the revised version?

These small improvements would be very simple to implement and would benefit the many people who access the opinions each day. Perhaps others will add their voices.

Posted by Marcia Oddi on Wednesday, August 06, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on the authority of magistrates and master commissioners

In Invol. Term. of Parent-Child Rel. of A.P., M.P., and S.P., and Mary Palmero v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. (NFP) (12/27/07) and In the Matter of the Involuntary Termination of the ) Parent-Child Relationship of A.G.; K.G.; A.R (NFP) (12/26/07), Judge Sharpnack addressed the authority of a magistrate. From Palmero:

This case comes to us on appeal from an order terminating the parental rights of Mary Palmero to M.P., A.P., and S.P. The order included in the record reflects that it was signed by the magistrate presiding over the case but does not indicate that the juvenile court judge approved entry of the order. The docket indicates that the order was approved on May 22, 2007, but there is no indication as to how this approval was accomplished.

The authority of magistrates to act is determined by statute. As provided in Ind. Code §§ 33-23-5-5(14) and 33-23-5-9(b), a magistrate presiding at a criminal trial may enter a final order, conduct a sentencing hearing, and impose a sentence on a person convicted of a criminal offense. There is no such provision for magistrates to act in termination of parental rights cases. Rather, Ind. Code § 33-23-5-9(a) provides that, except in criminal proceedings, a magistrate “shall report findings” in an evidentiary hearing or a trial and that “the court shall enter the final order.” Because the record does not establish judicial approval of the magistrate’s findings in this case, we remand to the juvenile court for its consideration and further action consistent with this opinion. We retain jurisdiction of this appeal pending action by the juvenile court. Remanded.

Today, in Baniaga v. State, and earlier in Ervin Crabtree v. State of Indiana (NFP) (7/25/08), CJ Baker looks at the master commissioner. From today's opinion, footnote 1:
Master Commissioner Patrick Murphy heard this case and signed the abstract of judgment. Indiana Code section 33-33-49-16(e) provides that a “master commissioner shall report the findings in each of the matters before the master commissioner in writing to the judge or judges of the division to which the master commissioner is assigned.” However, the statute also provides that a master commissioner has the powers and duties prescribed for a magistrate under Indiana Code section 33-23-5-5, including the power to enter a final order, conduct a sentencing hearing, and impose a sentence on a person convicted of a criminal offense. Given the manner in which these statutes have evolved in conjunction with the authority specifically granted by Indiana Code section 33-23-5-5, we believe that section 33-33-49-16(e) means that a master commissioner must keep the judge apprised regarding the matters before him, but not that the judge needs to approve by signature the master commissioner’s statutorily authorized actions.

Posted by Marcia Oddi on Wednesday, August 06, 2008
Posted to Indiana Courts

Ind. Law - "Barnes & Thornburg is cutting its summer associate program next year in its Chicago office"

From a story by Lynne Marek in the National Law Journal:

Barnes & Thornburg, a 450-lawyer firm based in Indianapolis, is cutting its summer associate program next year in its Chicago office because first-year associates are so available in the city and competing firms have reduced the programs, the firm said.

The firm typically has about two to three summer associates in the Chicago office with the typical offers for a first-year position in the fall of the following year after the law student finishes school. Lately, the firm has found it so easy to attract first-year associates in Chicago that weren't a part of its summer program that it decided it was needless effort to host the summer associates and then be forced to shoehorn hiring plans into the 18-month wait for new associates, said Jon Froemel, the firm's hiring partner for the Chicago office.

"We've hired successfully so many first-years that it seems, at least for next year, there wasn't a need," Froemel said.

The firm's partners also said they had heard other law firms were cutting back their summer programs, making Barnes & Thornburg's move a competitive response. They declined to name other firms making the reductions.

Posted by Marcia Oddi on Wednesday, August 06, 2008
Posted to Indiana Law

Ind. Courts - More again today on the Delaware County drug forfeiture investigation

This column by Larry Riley in the Muncie Star Press attempts to give an overview of the issues. This article by Rick Yencer reports that: "An ongoing investigation of drug forfeiture and seizure cases is now turning to federal funds that helped pay for Muncie-Delaware County Drug Task Force operations over the past 20 years.."

Posted by Marcia Oddi on Wednesday, August 06, 2008
Posted to Indiana Courts

Ind. Gov't. - "State rejects retroactive rental property code "

The headline to the Aug. 5th story ($$) by Laura Lane in the Bloomington Herald Times is "State rejects retroactive rental property code: Forcing owners to meet new city standards is not fair, commission says; city may appeal decision." Some quotes:

INDIANAPOLIS — Bloomington’s 1993 property maintenance code, which requires owners of rental houses and apartments to comply with new standards even though the structures met the codes in force when they were built, is not worth the paper it is written on.

That’s the opinion of the Indiana Fire Prevention and Building Safety Commission, which on Tuesday rejected the city’s maintenance code for rentals, saying is unreasonable and conflicts with state law.

“I think it is unenforceable,” said commission chairman David Hannum. “It will not be approved by this body in its current form. What the city of Bloomington needs to do is rewrite its code, to make sure they do not usurp authority they do not have.”

There was confusion over whether the state commission had ever reviewed, or needed to authorize, the code. But the city went before the group to have it passed by the state, making it more binding legally.

“At face value, a property maintenance code would not have to be approved by us,” Hannum said. “Except for that one, which is retroactive to codes that were not in place when a structure was built.”

He said making rental property owners conform to new codes counters the commission’s rules.

“We can’t approve rules that require retroactive changes,” he said. “It is clearly mandated by the Legislature that buildings have to comply with the codes in place at the time of construction.”

The city’s property maintenance code is being challenged by at least three lawsuits pending in Monroe Circuit Court. * * *

City corporation counsel Kevin Robling said his staff will review the code and the commission’s stance before determining how to proceed. He said the city could appeal the commission’s decision.

“I think it’s fair to say the chairman of the commission and I may have varying positions on his role and the city’s role in this matter,” Robling said. “The commission might want to make sure it understands its authority, because it’s clear to me they do not have control over our property maintenance code.”

Posted by Marcia Oddi on Wednesday, August 06, 2008
Posted to Indiana Government

Ind. Law - Greenwood homeowners assoc. bans sex offenders

From WISHTV8, August 8, some quotes from a lengthy story:

GREENWOOD, Ind. (The Daily Journal) - A group of Greenwood residents have a message for registered sex offenders: Stay out.

Pines of Greenwood, near Worthsville and Averitt Roads, is believed to be one of the first subdivisions in the state to prohibit registered sex offenders from moving in or living there, the homeowners association attorney said.

The homeowners association adopted the ban in hopes of protecting neighborhood children and preserving property values.

The 175-home subdivision on Greenwood's southwest side may be the first in Indiana to block sex offenders from living there, but communities in New Jersey and the Kansas City area have put similar policies in place.

A developer in Texas has marketed "sex offender-free neighborhoods."

After adding the ban to the subdivision's covenant, the association can evict any sex offender who buys a home in the subdivision or any current resident who's convicted of a felony sex crime in the future. By owning property in the subdivision, Pines homeowners agree to not allow sex offenders to live in their homes or to rent or sell their properties to sex offenders. * * *

ACLU of Indiana spokesman Ken Falk said the ban was legal and that his group had no plans to challenge it in court, unless someone claimed it violated their rights. Even then, the only challenge would be on technical grounds if the prohibition were adopted correctly, Falk said.

Federal housing law prohibits discrimination against people on the base of race, religion, creed, national origin or disability status. No federal protection is given for past criminal behavior.

Similar prohibitions elsewhere in the country, including one in New Jersey, have survived lawsuits, Tanner said.

Under the ban, any sex offenders who already are living in the subdivision will not be kicked out, but no new registered offenders will be allowed to live in homes in Pines.

Here is a link to a comprehensive June 16th story by Pamela A. MacLean in the National Law Journal headed "Challenges grow over sex offender laws: Welter of confusion over restrictions."

Posted by Marcia Oddi on Wednesday, August 06, 2008
Posted to Indiana Law

Ind. Law - A number of new golf cart stories today

From the Elkhart Truth, a brief report from the Middlebury Town Council meeting of 8/4/08:

Discussed possibly allowing residents to drive golf carts on town roads. Council members said they were open to considering the issue, but more research is needed into the cost and safety of such a plan before any decision can be made. The council likely will seek public input in an open hearing that will be scheduled at a later date.
A longer story on Middlebury from Dave Martin of the the Goshen News:
MIDDLEBURY, Ind. — Should golf carts be allowed on city streets?

That’s the question before the Middlebury Town Council, and they’d like the public’s help in deciding.

The issue was raised when a resident asked the council at a recent meeting if operating a golf cart on Middlebury’s streets would be legal. The resident, who could not make Monday’s Town Council meeting, said that he would like to use his golf cart in place of his car to get around town and save gasoline.

This spurred Town Manager Lowell Miller into research.

Miller said that he looked at golf cart use in other Indiana towns and at Indiana statutes.

He said golf carts are considered moving vehicles and state statutes place “significant restrictions” on what must be included in any town ordinances relating to golf cart use on streets and highways. For example, before carts can be used on streets and highways, they must be registered as moving vehicles and undergo safety inspections, much like automobiles did in the 1960s and 1970s.

“(The public) needs to know they can’t just jump on a golf cart and go (on the streets),” Miller said.

Councilman Jack Kortie added that golf cart drivers must have a driver’s license to operate a cart on the public streets.

And Council President Gary O’Dell cautioned that Middlebury’s ordinances on the issue would not apply to Ind. 13, since it is a state highway.

After the meeting, Miller said that only one person has inquired on the issue at the town offices this summer.

Following Miller’s report, council members decided to table the issue and take informal public comments. If significant response is elicited, the panel will then schedule a public hearing on the golf cart issue.

From the Bedford Times-Mail, a good story by Krystal Slaten. Some quotes:
MITCHELL — To ride or not to ride is definitely the question plaguing the owners of golf carts in Mitchell these days.

The problem arose July 26 when Harold Sanders was pulled over on Main Street in Mitchell by Lawrence County officer Lonnie Johnson for driving his gas-powered golf cart. Sanders was ticketed for failure to provide registration when required and was slapped with a fine.

Sanders immediately went to visit Mitchell Mayor Dan Terrell to see what the problem was. That’s because, in the previous weeks, Terrell came out publicly encouraging the use of golf carts within the city limits.

But it appears there is a gray area in Indiana when it comes to laws concerning the use of golf carts, and it’s an issue likely to face state legislators soon, as gas prices continue to hover around $4 a gallon.

Legal issues. The use of golf carts, according to Lawrence County Prosecutor Michelle Woodward, isn’t just an issue in Mitchell. Other cities tackle it enough that the Indiana Prosecutor, the newsletter for the Indiana Prosecuting Attorney Council, reports about the issue at least once a year.

“Title 9 of the Indiana Code does not specifically mention golf carts or ban their use or operation on public highways. However, Title 9 does impose certain requirements and restrictions upon the use of golf carts operated on public highways,” the newsletter stated in its June/July 2007 issue.

Woodward agrees. “Golf carts can be operated on public highways, but — and this is a big but — they must be registered and plated with the Bureau of Motor Vehicles,” Woodward said.

“And if you go in to the BMV and tell them you want to plate your golf cart, they are going to look at you quite strangely because there is no method for registering or plating a golf cart.”

The problem, Woodward says, lies in the law. “This is an issue we won’t solve without legislators taking action,” she said. * * *

“We just like to ride our cart around town, taking it to the grocery store and coffee shop,” Rondee Sanders said. “For us, it’s safer. We are disabled and it’s so much easier to get in and out of our golf cart to run errands, and we’re saving on gas. And, sometimes, we just take a ride at night just to have something to do, outside of sitting at home watching reruns.”

Terrell, who encouraged the use of golf carts a few weeks ago, is upset because he believes Mitchell’s senior citizens are the ones who are being punished by an unclear law.

“I am mad,” Terrell said. “A couple of Mitchell’s senior citizens are playing the price for an unclear law. This is common sense gone nuts. Mitchell police are plenty capable of controlling our senior citizens gone wild on golf carts.”

A solution? The mayor points to statistics, such as one that says 1,000 people are hurt on golf carts annually and 800 of those injuries take place on the golf course. Still, however, he knows the issue will have to be tackled at the Indiana Statehouse.

“Our state legislators are going to have to address this,” Terrell said. “But I don’t see how anyone can give a ticket on a law that’s so muddy and cloudy. Since we don’t have any way to register golf carts in the state, I am just telling people that Mitchell police aren’t writing tickets for this. Mitchell supports golf carts, their use and the conservation of fuel.

From News 25, Evansville, a story headed "Sharing the Road with Golf Carts and Scooters? It Could Happen Soon in Kentucky."

Posted by Marcia Oddi on Wednesday, August 06, 2008
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP) [Corrected]

For publication opinions today (2):

In Denia Baniaga v. State of Indiana , a 9-page opinion, CJ Baker writes:

Appellant-defendant Denia Baniaga appeals her convictions for Possession of Cocaine, a class C felony, and Driving While Suspended, a class A misdemeanor. Specifically, Baniaga argues that (1) the search of her vehicle following her arrest violated Article I, section 11 of the Indiana Constitution; (2) the civil forfeiture of her vehicle and subsequent criminal prosecution for possession of cocaine violated the prohibition against double jeopardy; and (3) the evidence was insufficient to support her conviction for possession of cocaine. Finding, among other things, that the search of Baniaga’s vehicle was not reasonable pursuant to the Indiana Constitution, we affirm in part, reverse in part, and remand with instructions outlined herein. * * *

We conclude that Officer Ball’s search of Baniaga’s vehicle was not reasonable in light of the totality of the circumstances. Although Baniaga was under arrest for driving while suspended, the officer did not fear for his safety and there was no indication that Baniaga had engaged in drug activity. Moreover, Officer Ball admitted that he did not need to search the vehicle to preserve further evidence of Baniaga’s licensure offense. Thus, we conclude that the search of Baniaga’s vehicle violated the protections provided by Article I, section 11 of the Indiana Constitution. Consequently, the trial court abused its discretion by admitting evidence stemming from the vehicle search. Thus, we reverse Baniaga’s conviction for possession of cocaine and remand with instructions for the trial court to vacate the conviction and sentence imposed thereon.
____________
[1] Master Commissioner Patrick Murphy heard this case and signed the abstract of judgment. Indiana Code section 33-33-49-16(e) provides that a “master commissioner shall report the findings in each of the matters before the master commissioner in writing to the judge or judges of the division to which the master commissioner is assigned.” However, the statute also provides that a master commissioner has the powers and duties prescribed for a magistrate under Indiana Code section 33-23-5-5, including the power to enter a final order, conduct a sentencing hearing, and impose a sentence on a person convicted of a criminal offense. Given the manner in which these statutes have evolved in conjunction with the authority specifically granted by Indiana Code section 33-23-5-5, we believe that section 33-33-49-16(e) means that a master commissioner must keep the judge apprised regarding the matters before him, but not that the judge needs to approve by signature the master commissioner’s statutorily authorized actions.

In Gary L. Williams, Jr. v. State of Indiana , a 24-page opinion, Judge Najam writes:
Gary L. Williams, Jr. appeals his convictions and sentence on two counts of Dealing in Cocaine, as Class A felonies; one count of Possession of Cocaine, as a Class A felony; two counts of Possession of Cocaine, as Class C felonies; and one count of Possession of Marijuana, as a Class D felony. Williams raises eight issues for our review * * *

In sum, we hold that Williams’ request to have the bond premium remitted to him by ASC is not properly before us. We also revise Williams’ seventy-three year sentence to forty total years. We affirm the trial court on all other issues raised in this appeal. Affirmed.

NFP civil opinions today (3):

Shawanna Butler v. St. Joseph Co. Dept. of Child Svcs. (NFP) - "The trial court’s determination that continuation of the parent-child relationship poses a threat to the Children’s well-being is not clearly erroneous. The evidence sufficiently supports the trial court’s decision to terminate the parent-child relationship between Mother and the Children. Judgment affirmed."

Renaissance Remodeling Inc. v. J. & L. Cargo Express Inc. (NFP) - "Appellant-plaintiff Renaissance Remodeling, Inc., d/b/a DBR Plumbing, Inc. (DBR), appeals the trial court’s judgment in favor of appellee-defendant J&L Cargo, Inc. (J&L), claiming that a damage award was improper because the evidence established that J&L had violated a bailment agreement by failing to return a trailer to DBR. DBR raises a number of issues, which we have consolidated and restated as follows: (1) whether the trial court properly awarded damages to J&L, which represented the value of a trailer it had loaned to DBR that was subsequently stolen; (2) whether the trial court erred in offsetting the total judgment award as a result of DBR’s counterclaim against J&L for the loss of use of its trailer; and (3) whether the trial court abused its discretion in awarding mediation sanctions against DBR. Finding no error, we affirm the judgment of the trial court."

Re the Marriage of M.B. v. J.E. (NFP) - "Modifying custody of L.E. and J.E. despite no finding or evidence of a substantial change in circumstances sufficient to warrant a change of physical custody, as required by Indiana Code section 31-17-2-21, constitutes an abuse of discretion. However, given the evidence in the record, we find that a modification of Father’s visitation would serve the best interests of L.E. and J.E. See I.C. § 31-17-4-2 (“The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child.”).

"As a result, we affirm in part and reverse in part the trial court’s order and remand to the trial court with instructions to enter an order, granting Father 1) weekly visitation from Tuesday afternoon to Tuesday evening at 6:30 p.m. and Thursday afternoon to Thursday evening at 6:30 p.m.; and 2) biweekly weekend visitation from Friday afternoon to Monday morning.

"Affirmed in part, reversed in part, and remanded with instructions."

NFP criminal opinions today (10):

Antonio Manuel v. State of Indiana (NFP)

Cameron Williams v. State of Indiana (NFP)

Vernon D. Brady v. State of Indiana (NFP)

Ron Banet v. State of Indiana (NFP)

Justin Kinnett v. State of Indiana (NFP)

Maritza Ramos v. State of Indiana (NFP)

Helen C. Young v. State of Indiana (NFP)

Nickolas Trobaugh v. State of Indiana (NFP)

Julie D. Hayden v. State of Indiana (NFP)

Jason Gaboian v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 06, 2008
Posted to Ind. App.Ct. Decisions

Courts - Georgia Appeals Court Candidates Confront Anti-Abortion Group's Survey

Alyson M. Palmer of the Fulton County Georgia Daily Report writes today in a lengthy story:

It's unlikely the Georgia Court of Appeals will ever issue a ruling on whether the state or federal constitution contains a right to abortion. But a Georgia anti-abortion group still wants to know what the seven candidates seeking an open seat on the court think on the hot-button subject.

Georgia Right to Life has sent candidates to succeed Judge John H. Ruffin Jr. a 10-point questionnaire about such topics as whether an unborn child is "biologically human and alive" and how courts should handle lawsuits over infants born with disabilities.

The Court of Appeals generally doesn't have jurisdiction to decide whether statutes -- including those limiting abortion -- are constitutional. And the viability of so-called "wrongful birth" lawsuits by parents of disabled children was effectively squelched by the state Supreme Court in 1990.

But the candidates' reaction to the questionnaire suggests how open they will be to sharing their views on specific issues -- and what they think of traditional warnings to judges not to talk about potential cases.

In 2002, federal courts struck down rules limiting what judicial candidates could say. Since then, some candidates have embraced their freedom to speak out, while others have maintained that judges and candidates risk their impartiality by expressing views on issues that could come before their courts. * * *

The group has presented each candidate with 10 statements, asking them to note whether they agree or disagree with the statement or are undecided or decline to answer. A footnote explains that a "decline" to answer response means the candidate believes he or she must decline because any other response would violate judicial ethics canons or require a subsequent recusal.

Georgia Right to Life is best known for its anti-abortion stance, and several items on the questionnaire deal explicitly with that topic. The group asked under what circumstances abortion should be permitted and whether the state constitution requires the use of public monies for abortion. The questionnaire also asks whether the landmark abortion decision, Roe v. Wade, 410 U.S. 113 (1973), was wrongly decided and whether the state constitution protects a right to abortion.

But abortion is not the only issue covered on the questionnaire. It also asks the candidates whether they believe the state constitution protects a right to assisted suicide and whether embryos conceived through in vitro fertilization should be "treated in accord with their best interests in any dispute over their disposition."

See this long list of ILB entries on the Indiana Right to Life case, including most recently this May 18th ILB entry quoting a story by Rebecca S. Green of the Fort Wayne Journal Gazette giving an overview of the issues. Check here to go directly to a copy of the detailed Indiana Right to Life Questionnaire.

Posted by Marcia Oddi on Wednesday, August 06, 2008
Posted to Courts in general

Law - Law librarian comments on the law student "search" mentality

The Houston Chronicle had a feature August 1st on DeCarlous Spearman, law library director at Texas Southern University's Thurgood Marshall School of Law. A quote:

Q: What is your goal as the TSU law library director?

A: My goal is to bring the library truly to the next level, bring it truly into the electronic age. I want podcasts of classes and seminars and webcasts, too, so students can see the materials being discussed. In research, seeing the tools can be as important as hearing about how to use them.

First-year students expect the databases to do it all for them. I want them to learn that legal research is not like that.

Q: What do you miss? What has technology taken away?

A: What I miss is what technology's taken away from the students.

Students now want quick, fast answers — yesterday. But they have no idea how to get the complete answers, or what it takes to get the entire picture. Technology's taken that from the student body and even faculty members.

I call it the microwave age: If it can't go in and come out ready in five minutes, they don't want it. But that's not enough. Research isn't always quick. Complete research has to be comprehensive.

Sometimes one source won't do it. But today students want what I call Wal-Mart research — one-stop shopping. Students 12 years ago were more patient. They mixed book research with Lexis or Westlaw. I'm not OK with the quick answers.

Posted by Marcia Oddi on Wednesday, August 06, 2008
Posted to General Law Related

Ind. Courts - Change of venue in Kalab Lay murder trial [Updated]

Evansville's Kalab Lay murder trial (see earlier ILB entries here) has been moved to Clark County, about two hours east of Evansville. Today the Evansville Courier & Press has an editorial stating that the venue decision is appropriate. The editorial concludes:

It's also worth noting local history: the sensational murder trial of Evansville's Leslie "Mad Dog" Irvin on six counts of murder in 1955. Although moved next door to Gibson County, Irvin's first trial was held in an atmosphere of bias and prejudice.

The U.S. Supreme Court in 1961 overturned Irvin's conviction and death sentence, ruling the trial should not have been held anywhere close to Evansville, and so Irvin had to be retried.

The Irvin legal precedent stands to this day. It means that in most high-profile cases, either trials are moved out of the media market or an outside jury is brought in from elsewhere, to ensure jurors don't decide a case before they have heard courtroom evidence.

The Internet age has eroded geographic boundaries somewhat, since it's simple to look up Web articles about out-of-town court cases. But prospective jurors are far more likely to know many details of a case — and thus be unable to put aside what they have read — if the crime happened in their backyard.

If a trial in this high-profile case were held in Vanderburgh County and ended in a conviction, then it would be grounds for an appeal, reversal and retrial, at further cost to taxpayers.

Thus it's in everyone's interest — the defendant's, the prosecution's and the public's — to move the mother's trial to another county. A change of venue in the trial of Kalab's father, Terry Lay, would be appropriate for the same reasons.

[Updated already] Michael Stevens of the Kentucky Law Blog has just posted an entry that begins:
Here's an interesting situation from a story in the Courier-Journal about a pending criminal trial in which the defendant is moving to strike certain statements are inadmissible and which are now posted on the internet and in the newspaper.

If the defendant wins the motion to suppress are then entitled to a change in venue?

If the defendant loses the motion, would a change in venue cure the publicity problem?

Can the bell be "unrung" through jury selection?

A criminal defendant's presumption of innocence and right to a fair trial versus the freedom of the press in the digital age of news delivery poses an interesting question.

Here is the CJ story.

Posted by Marcia Oddi on Wednesday, August 06, 2008
Posted to Indiana Courts

Ind. Law - More on "Deadline looms for lenders, mortgage brokers must pass test"

Updating this ILB entry from July 8th, here is the list of revoked mortgage brokers from the Secretary of State's page.

Meagan Ingerson of the Indianapolis Star reports the story today under the headline: "360 mortgage brokerages don't cut it with state: Many across Indiana face sanctions by not responding to new rules on compliance by Tuesday's deadline."

Posted by Marcia Oddi on Wednesday, August 06, 2008
Posted to Indiana Government | Indiana Law

Tuesday, August 05, 2008

Ind. Courts - "Blood test put judge's alcohol at twice limit"

So reports Rebecca S. Green in this story today in the Fort Wayne Journal Gazette. Some quotes:

With the results of a blood test showing a blood-alcohol content more than twice the legal limit, Allen Circuit Judge Thomas Felts might now be faced with losing his driver’s license.

According to officials at the Marion County Prosecutors Office, Felts’ blood tests, ordered after the judge was arrested last month in downtown Indianapolis, revealed a blood-alcohol content of 0.19 percent. The legal limit in Indiana is 0.08 percent

Now that they have the results, prosecutors intend to ask a judge to suspend Felts’ driving privileges, allowed under Indiana law for a positive blood-alcohol test, said Matthew Symons, spokesman for the Marion County Prosecutor’s Office. * * *

An earlier effort by prosecutors to have Felts’ license suspended based on the refusal failed after a judge found a refusal did not provide probable cause.

Symons said a judge could schedule a hearing to discuss the prosecution’s request or make a ruling on the motion without a hearing.

A pretrial hearing was scheduled for Aug. 21 at Felts’ initial hearing last month.

Posted by Marcia Oddi on Tuesday, August 05, 2008
Posted to Indiana Courts

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

For publication opinions today (1):

In First Farmers Bank & Trust Co. v. Dianna F. Whorley , a 19-page opinion, Judge Riley writes:

Appellant-Defendant, First Farmers Bank & Trust Co. (First Farmers), appeals the trial court’s denial of its motion for summary judgment and the grant of partial summary judgment in favor of Appellee-Plaintiff, Dianna F. Whorley (Whorley), in an action for breach of fiduciary duty following a guardianship. * * *

Based on the foregoing, we find that the trial court properly denied First Farmers’ motion for summary judgment. However, we conclude that the trial court erred by granting Whorley’s motion for partial summary judgment.

NFP civil opinions today (1):

Andy's Trucking & Equipment Co. v. City of Gary, Indiana; Mayor Rudolph Clay (NFP) - "Andy’s presents three issues for our review, which we restate as one: whether the trial court’s findings of fact and conclusions of law are clearly erroneous.

"Andy’s Truck & Equipment Co., Inc. (“Andy’s”) is a business in Gary, Indiana that sells used truck parts and machinery. Andrew Young is the president of Andy’s. The City of Gary (“the City”) filed a complaint against Andy’s alleging that Andy’s was using its property in violation of city ordinances. After prolonged litigation, a bench trial was held, and the trial court entered its findings of fact and conclusions of law enjoining Andy’s from engaging in certain activities on its property. This appeal ensued." Affirmed

NFP criminal opinions today (5):

Devan White v. State of Indiana (NFP)

Devon L. Upshaw v. State of Indiana (NFP)

Delores March v. State of Indiana (NFP)

Robert W. Thompson v. State of Indiana (NFP)

Joshua Renick v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 05, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Stop making judges run for office, Lake County commissioners argue"

John Byrne of the Gary Post-Tribune reports today:

No judges in Lake County should run for election in political campaigns, the Lake County commissioners argue in a memo released Monday.

The commissioners contend county government could be run more efficiently, and inexpensively, if the four County Division judges -- Jesse Villalpando, Julie Cantrell, Sheila Moss and Nicholas Schiralli -- were part of a "merit system," like the county's other 12 Superior Court judges.

In the merit system, appointments are made by the governor from nominees screened by the Lake County Judicial Nominating Commission. Once appointed, judges run for retention or rejection on a countywide, nonpartisan basis every six years.

The County Division judges have been criticized by the County Council and Board of Commissioners in recent years because the judges have 27 part-time public defenders -- seen by council members and commissioners as an inordinate expense during tough budgetary times.

Replacing the 27 part-time defenders with five full-timers and one part-timer would save the county $696,000 a year, the county's finance committee reported recently.

Commissioner Roosevelt Allen said the judges rely on the attorneys to raise money for their re-elections and, thus, have no compelling reason to get by with fewer public defenders.

"We feel (merit selection) might make the court system more efficient and accountable," Allen said.

Lake County switched most of its judicial seats to a merit system in the mid-1970s, when state legislator Adam Benjamin of Gary argued judges should be removed from Lake County politics.

Other than St. Joseph County, the rest of the counties in the state have continued to elect their county judges.

The exception in Lake County has been the County Division, where judges have always been elected on a partisan basis.

Superior Court Chief Judge John Pera, himself appointed via the merit system, believes the time has come to unify the selection process.

"Having judges run for election and raise the amount of money required to run effectively has some serious drawbacks," Pera said, pointing out that lawyers who argue before the County Division judges often contribute money to their election campaigns.

"That's not to say the elected judges don't apply the law impartially, but it just looks bad," Pera added.

Posted by Marcia Oddi on Tuesday, August 05, 2008
Posted to Indiana Courts

Ind. Courts - More again today on the Delaware County drug forfeiture investigation

Two stories today by Rick Yencer of the Muncie Star-Press, updating this ILB entry from Aug. 2nd: "Reed, Winkle spar over DTF testimony," and "Adrian Kirtz case scrutinized in DTF case", available here and here.

Posted by Marcia Oddi on Tuesday, August 05, 2008
Posted to Indiana Courts

Ind. Gov't. - "County mulls appealing doctors' offices tax status"

Bill Dolan reports today in the NWI Times in a story that begins:

CROWN POINT | Lake County Assessor Paul Karras said the county may decide later this week whether to appeal a state ruling to exempt from taxation five doctors' offices and a chaplain's home associated with St. Margaret Mercy Healthcare Centers.

The Indiana Board of Tax Review recently ruled in favor of the hospital's position that its charitable work with uninsured patients justifies the property tax exemptions for the physicians' offices.

The state board ruled the chaplain's home, located on the state line near the hospital campus in downtown Hammond, was exempt because the chaplain performed masses at the hospital.

Posted by Marcia Oddi on Tuesday, August 05, 2008
Posted to Indiana Government

Courts - "A Primer on What Lawyers Can Say About Judges"

Bruce A. Campbell of the Texas Lawyer has this article. A quote:

What happens when an attorney makes a false statement about a member of the judiciary? Will the offending attorney be disciplined? Perhaps, but not necessarily.

In 1964's Garrison v. State of Louisiana, the U.S. Supreme Court held that the First and 14th Amendments to the U.S. Constitution protect lawyers who make false statements about judges from imposition of civil, criminal and disciplinary sanctions unless the statement is made "with knowledge of its falsity or in reckless disregard of whether it was false or true."

Indeed, the Colorado Supreme Court noted in 2000's In the Matter of Green that "if an attorney's activity or speech is protected by the First Amendment, the disciplinary rules governing the legal profession cannot punish the attorney's conduct."

But attorneys should not view the First Amendment as a license to disparage the judiciary. The test that has been uniformly applied to challenged lawyer statements about judges is a version of that set out in the U.S. Supreme Court's 1964 decision in The New York Times Co. v. Sullivan, et al. First, did the disciplinary authority prove that the statement was a false statement of fact or a statement of opinion that necessarily implies an undisclosed false assertion of fact? Second, did the attorney utter the statement with actual malice -- that is, with knowledge that it was false or with reckless disregard as to its truth?

Posted by Marcia Oddi on Tuesday, August 05, 2008
Posted to Courts in general

Ind. Courts - " 'Dead' woman sues Porter hospital"

James D. Wolf Jr. of the Gary Post-Tribune reports today:

VALPARAISO -- The very much alive Jackson Township woman declared dead by Porter hospital in January filed suit last week against the hospital.

Diane Wright, 67, and her husband are suing for damages caused when Porter staff declared her dead after a 46-year-old North Judson woman with her name died in the hospital on Jan. 25.

Since then, Wright has had her Social Security and Blue Cross/Blue Shield terminated. The federal government billed her husband, Delbert Wright, $2,941.80 for Social Security paid into their joint account.

"This is not one of those 'I spilled coffee in my lap at McDonald's (lawsuits)," said Thomas Hillers, attorney for the Wrights.

They tried to clear things up through the hospital, but they received no replies about the months-long mess they had to wade through and correct.

"They had to do this on their own. Porter hospital wouldn't help," Hillers said.

Hillers said that Indiana law doesn't allow attorneys to name a dollar amount in initial court documents.

"We're going to leave it up to them and negotiate with them," Hillers said of Porter. "My clients are distraught enough that it will be high."

"They just want it to be made right," he said.

The Wrights never received a call from the hospital while trying to correct the error. But that changed when the Post-Tribune printed a Jerry Davich column July 30 about Wright's story.

"That very night, the CEO of Porter hospital called," Hillers said.

The CEO tried to apologize, and when the Wrights asked that he speak with Hillers, he tried to get them to handle the situation without lawyers, Hillers said.

The Wrights felt after seven months, it was "too little, too late," Hillers said.

Here is a link to the earlier story by Jerry Davick of the P-T: "Alive, well ... and a little peeved."

Posted by Marcia Oddi on Tuesday, August 05, 2008
Posted to Indiana Courts

Ind. Law - Attorney Alan T. Nolan, 85, dies

Today's Indianapolis Star contains the obituary of Alan T. Nolan, prominent Indianapolis attorney and historian, who practiced 45 years with the firm of Ice Miller.

His brother Val Nolan Jr., 87, eminent ornithologist and Indiana University Professor Emeritus of Law and Biology died March 27, 2008 in Bloomington.

Posted by Marcia Oddi on Tuesday, August 05, 2008
Posted to General Law Related

Monday, August 04, 2008

Ind. Decisions - 7th Circuit issues 2 Indiana opinions today

In US V. Broadnax (ND Ind., Judge Sharp), a 14-page opinion, Judge Wood writes:

Having concluded that the district court properly found the sentence that the Guidelines recommend for Broadnax’s offense, all that remains for us is to ensure that the court recognized the advisory nature of the Guidelines and took into account the factors set forth in 18 U.S.C. § 3553(a). The record leaves no doubt that the court knew what it was supposed to do. During the sentencing hearing, the court expressly stated that the decision whether to impose consecutive versus concurrent sentences was “my call.” And before making that call, the court thoroughly and on the record addressed the statutory factors as required by § 3553(a), and only thereafter decided that this situation called for Broadnax’s sentences to run consecutively, rather than concurrently. Nothing about this process constituted legal error or an abuse of discretion, and so we reject Broadnax’s challenge to his sentence.

III. The judgment of the district court is AFFIRMED.

In US v. Stewart (SD Ind., Judge Young), a 15-page opinion, Judge Sykes writes:
We affirm. Whether the interrogating officer deliberately withheld Miranda warnings as part of a two-step interrogation process designed to elicit an unwarned confession is a question of fact that we review for clear error. The district court’s supplemental findings were not clearly erroneous, and therefore the admission of Stewart’s postwarning confession was not improper under Seibert. We also agree with the district court that the inculpatory statement Stewart made before being Mirandized was voluntary. Accordingly, although inadmissible (and not admitted) at trial, Stewart’s unwarned, first statement did not affect the admissibility of his second, fully warned and voluntary confession. See Oregon v. Elstad, 470 U.S. 298, 314 (1985).

Posted by Marcia Oddi on Monday, August 04, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Law - ILB makes the complete history of the Indiana Code of 1971 accessible; and a plea for funding

Today I am very pleased to announce that I have been able to make available online the complete legislative history of the Indiana Code of 1971. Here is the preface:

This is the complete history of the deliberations of the Indiana Statute Revision Commission, covering the course of its existence - 1969-1970.

I served as the Director of the Commission. I kept a copy of every official document. These copies have been stored away for nearly 40 years, in large part because it was nearly impossible to find anything in the foot-high stack of papers.

Recently when I began looking into the current status of the Indiana Code, I turned to this invaluable history and determined to make it generally available. This involved quite a bit of effort.

I have scanned all documents [the files occupy 50MB], arranged them, and created indices making them accessible both chronologically and by topic. As they are scanned documents, they are not searchable by word. But that seems unnecessary due to the arrangements.

A lot of people whose names are now a part of history contributed to the creation of the Indiana Code of 1971. This record is a memorial to their work.

Marcia J. Oddi
August 4, 2008

The plea. I started the Indiana Law Blog over five years ago with a number of goals:I believe the ILB has met these goals and has become indispensable reading for Indiana judges, lawyers, legislators and other elected officials, and the general public. I hear from many of you - thank you for your notes.

I continue to hope that Indiana law firms, business organizations, and not-for-profit associations will sign on as substantial annual supporters of the ILB so that I may continue my efforts.

Current supporters of the ILB, to whom I am very grateful, are listed in the blog's right-hand column. The ISBA this July renewed its support for a second year. DoxPop signed on in April.

Other than these contributors, the Indiana Law Blog, along with the ILB's Resources on Judicial Retention and other similar projects I hope to undertake in the future, is entirely self-funded. Hence this plea.

Now where is that complete legislative history of the Indiana Code of 1971? Access it here.

Posted by Marcia Oddi on Monday, August 04, 2008
Posted to About the Indiana Law Blog | Indiana Government | Indiana Law

Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)

For publication opinions today (4):

In Filemon Sanchez v. State of Indiana , a 5-page opinion, Judge May writes:

Filemon Sanchez appeals his sentence of forty years in the Indiana Department of Correction for Class A felony dealing in cocaine. Sanchez argues the sentence is inappropriate based on his character and the nature of his offense. * * *

The court specifically noted the amount of cocaine sold was not a factor in sentencing because it is an element of the offense. Nor did it note anything else about Sanchez’s crime to distinguish it from a typical dealing in cocaine offense. Although the nature of Sanchez’s offense is not remarkable, Sanchez’s character supports the enhancement of his sentence. We find his sentence appropriate. Affirmed.

In Robert Rovai v. Ann Marie Rovai, a 7-page opinion, Sr. Judge Sullivan writes:
Robert Rovai (Husband) challenges the dissolution decree dissolving his marriage with AnnMarie Rovai (Wife) insofar as it pertains to the distribution of the marital assets and liabilities. More particularly, Husband makes three claims which we rephrase as follows: (1) The court erred in specifically determining that the monetary award to husband as reduced to judgment was payable “without judgment interest.”; (2) The court erred in conditioning payment of the monetary judgment to husband on any of three occurrences, two of which were within wife’s control; and (3) The court erred in apportioning federal and state tax refunds for three years according to the respective incomes of the parties for the particular year. * * *

We conclude that the court did not err with regard to any of the issues presented by husband upon appeal; accordingly, we affirm the judgment of the court.

Fern E. Firestone, et al v. American Premier Underwriters , an 8-page opinion, Sr. Judge Sharpnack writes:
Appellants-Plaintiffs Wayne E. Boyd and Bunker Farms, LLC, by Dean V. Kruse (collectively “Bunker Farms”) appeal a judgment enjoining them from pursuing a quiet title action and ordering DeKalb County officials to issue title of real estate to American Premier Underwriters, Inc. (“APU”), formerly known as Penn Central Corporation. We affirm.

Bunker Farms raises one issue for our review, which we restate as: Whether the trial court erred in concluding Bunker Farms’ claims to the subject real estate do not fall within the category of title disputes excluded from the scope of the declaratory judgment entered by the Boone Circuit Court on October 25, 2004. * * *

The trial court properly interpreted Paragraph 8 of its 2004 declaratory judgment order; therefore, its January 29, 2008 order was not erroneous. Affirmed.

In Michael B. Smith v. State of Indiana , a 22-page opinion, Judge May writes:
Michael B. Smith appeals his conviction of murder, arguing evidence was admitted in violation of Ind. Evidence Rule 404(b) and the evidence was insufficient to support his conviction. * * *

There was sufficient evidence for a rational jury to find Michael guilty of murder. Affirmed.

NFP civil opinions today (2):

Kevin R. Boyd, et al v. The Board of County Commissioners of Daviess County, Indiana (NFP) - "Boyd argues, without citation to authority, that it is for the court, rather than a party, to invoke the public standing doctrine. 'A party waives an issue where he fails to develop a cogent argument or provide adequate citation to authority and portions of the record.' City of East Chicago v. East Chicago Second Century, Inc., 878 N.E.2d 358, 369 (Ind. Ct. App. 2007), reh’g denied; see also Ind. App. R. 46(A)(8)(a). Therefore, we affirm the dismissal of Boyd’s case."

In the Matter of L.A.R., Janel R. v. Tippecanoe Co. Dept. of Child Services (NFP) - "Nevertheless, we note that, even if Mother’s reports to Reynolds and Stone were inaccurate, other findings by the trial court are more than adequate to support the determination L.A.R. is a CHINS." Affirmed.

NFP criminal opinions today (5):

Stephen J. Taylor v. State of Indiana (NFP)

Roy Singh v. State of Indiana (NFP)

Taro Brewer v. State of Indiana (NFP)

Antwan Jumar Love v. State of Indiana (NFP)

Michael L. Cox v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 04, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "It's time to open up our Hoosier courts to cameras: Technology has changed the meaning of having a public trial"

An excellent editorial today in the Fort Wayne News Sentinel:

The Indiana Supreme Court should just decide one way or the other whether to allow cameras in the courtroom instead of continuing to tease Hoosiers with the issue.

The court approved an 18-month pilot program allowing cameras in certain court- rooms, but only if all involved agreed. Only six cases ended up being involved, because in many cases defendants and their lawyers objected. All the judges involved in the pilot program gave positive reactions, and the Supreme Court justices are now said to be “reviewing the results.”

Now the state high court has announced it will let a documentary maker film inside a Lake County juvenile court, giving supporters of cameras in court new hope. “I see this as another good sign moving forward,” said Dan Byron, general counsel for the Indiana Broadcasters Association. The broadcasters and the Hoosier State Press Association have led the fight to get still cameras and TV cameras into courts.

They have a vested interest, of course. Courtrooms produce riveting human drama, and that can translate into more readers and viewers. But they are also pursuing their mission to keep the public informed.

Trials are meant to be public. At one time that required people to actually attend or to depend on the accounts of writers hired to watch the proceedings. Technology has evolved to allow people to follow the proceedings even if they're not physically present. The criminal justice system just needs to keep up with technology.

Justices at least seem aware of the need. Cameras have been allowed inside the Indiana Supreme Court and the Indiana Court of Appeals, and both courts have offered Webcasts of their hearings since 2001.

The strongest arguments against the cameras are that they could intimidate witnesses and jurors or that some in the proceedings might have a tendency to “play to the camera.” But other states have long allowed cameras, and they seem able to handle the potential negative side effects.

And the potential good so outweighs the potential bad. If people have a better understanding of what goes on in courtrooms, they are more likely to have faith in the system, and that faith is an essential part of achieving justice. It's time to bring Indiana courts into the modern era.

Posted by Marcia Oddi on Monday, August 04, 2008
Posted to Indiana Courts

Law - Employee cellphones a fringe beneifit, per IRS

From a July 28th story by Jim Puzzanghera of the Los Angeles Times:

Times and technology have changed. Federal tax rules have not. The Internal Revenue Service still considers cellphones to be a pricey fringe benefit and has started enforcing regulations beginning in 1989. That's when Congress decided that mobile phones should be treated like company cars and other executive perks: Their personal use qualifies as extra compensation.

The law requires employees to keep detailed records of all calls made on their work-issue cellphones, indicating whether they were business or personal. If they don't, the phone and wireless service are deemed a perk that must be listed as taxable income to the employee.

Most employers were unaware of the rules until the last few years, when the IRS began cracking down and requiring additional taxes to cover the value of the cellphone service provided to employees.

UCLA, for example, was hit with a $239,196 bill this year after IRS auditors found that employees with cellphones were not keeping logs. UC San Diego had to shell out $186,471 for the same reason.

Posted by Marcia Oddi on Monday, August 04, 2008
Posted to General Law Related

Ind. Decisions - "Lawyers and Employers Take The Fight to 'Workplace Bullies'"

Indiana's "workplace bullying" case, Daniel H. Raess, M.D. v. Joseph E. Doescher (ILB summary here), about which the ILB has had many entries, is the subject of a column by Cari Tuna today in the WSJ's Career Journal that begins:

A recent U.S. court case and new research are focusing attention on "workplace bullying," prompting some employers to take steps to curb aggressive behavior.

Experts define workplace bullying as subtle, persistent and often nondiscriminatory harassment of co-workers. Unlike sexual or racial harassment, workplace bullying isn't necessarily illegal. But bullying can contribute to absenteeism and turnover and escalate into illegal behavior if left unchecked, experts say.

In April, the Indiana Supreme Court reinstated a $325,000 verdict for Joseph Doescher, a former medical technician who had sued Daniel Raess, a cardiovascular surgeon, for assault in 2002.

Mr. Doescher's attorneys portrayed Dr. Raess as a verbally abusive workplace bully. In the 2002 incident, Mr. Doescher claimed Dr. Raess yelled at and advanced toward him with clenched fists. Dr. Raess's lawyers argued that the bully label was irrelevant and the surgeon's actions didn't amount to assault. But four of the five justices disagreed, deeming workplace bullying an "entirely appropriate" term.

The ruling doesn't mean that employees can sue for workplace bullying alone. But Kevin Betz, who represented Mr. Doescher, calls the ruling "a major breakthrough," as the first time a court recognized bullying as an issue. Dr. Raess couldn't be reached for comment, and his lawyer, Karl Mulvaney, declined to comment.

[More] More today about workplace issues. "N.J. justices add religion jokes to workplace ban" - see the entry from How Appealing. "Desk Rage" - see the entry from ABA Journal Blog.

Posted by Marcia Oddi on Monday, August 04, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Sound Bend Tribune starts new series on sentencing by St. Joe County courts

The South Bend Tribune had a series in the fall of 2006 titled "Judging the Judges." The last story in the series, as quoted in this Sept. 28, 2006 ILB entry, was about problems with inconsistency in sentencing.

Sunday the Tribune began a new series, reported again by Jeff Parrott.

Sunday's report focuses on "How often are St. Joseph County judges letting high-level drug offenders avoid prison?" A quote from Sunday's lengthy story:

Under Indiana law, dealing in cocaine, methamphetamines, heroin and other narcotic drugs is a Class A felony, punishable by 20 to 50 years in prison. But a 2001 state law aimed at stemming the spread of methamphetamine abuse might have had an unintended consequence.

The law also gave judges, for the first time, discretion to commit Class A and B felony drug convicts, no matter the drug involved, to community corrections programs without ever sending them to prison.

St. Joseph County judges have made frequent use of that option, according to a Tribune analysis of court records. Since 2003, 17 of the 45 defendants convicted of Class A felony drug crimes — dealing or possessing large amounts, or possessing the drugs near schools, parks and youth centers — received suspended sentences, to be served in community corrections and on probation instead of prison.

In other words, about 38 percent of convicted drug dealers have avoided prison — at least before going on to commit new crimes later.

Monday's report: "How successful is predicting whether offenders will violate probation or commit new crimes?" Some quotes from the lengthy story:

Two convicted drug dealers who have been charged with killing people after they had received prison-free sentences represent extreme cases, but they are hardly alone in having violated probation, according to a Tribune analysis of court records. * * *

Judges are basing their sentencing decisions partly on the presentence investigation report that they order the probation department to compile for each defendant. In recent years, a key part of that report has become a "risk-assessment" tool called the Level of Service Inventory-Revised, or LSI-R.

In the LSI-R process, the probation or community corrections officer asks the defendant a series of 54 questions, on everything from their criminal history to how they spend their free time. The offender's answers make up a numerical score, which is used to establish a level of risk — low, medium or high — that they will reoffend if released into the community.

Historically, corrections and court officials had based sentencing decisions largely on their own subjective feelings about a defendant's criminal history.

Sunday's story is accompanied by this useful sidebar:
Levels of community corrections

In St. Joseph County, there are four levels of community corrections. From most restrictive to least restrictive, they are:

  • Work release: Offenders live, eat and sleep at the Ducomb Center, a converted home on Madison Street in South Bend.

  • Day reporting with electronic monitoring: Offenders live at home and wear electronic ankle bracelets, which transmit a signal monitored by community corrections officers.

  • Home detention: Offenders live at home and are monitored electronically, and they must report to the community corrections office once a week.

  • Day reporting without electronic monitoring: Offenders live at home and are monitored by random phone calls, and they report to the office daily, with reporting decreasing over time.

Posted by Marcia Oddi on Monday, August 04, 2008
Posted to Indiana Courts

Courts - Still more on: The plot of John Grisham's latest novel may have already come to life in W. Va.

Updating this ILB entry from Feb. 19th, Marcia Coyle reports today in The National Law Journal that begins:

The ethical hornets' nest stirred up by the refusal of an acting West Virginia chief justice to recuse himself from a multimillion-dollar appeal involving his major campaign contributor has reached the U.S. Supreme Court in a petition framing today's increasingly unsettling intersection of money and judicial elections.

The high court petition, fall-out from a bitter battle between competing coal companies, asks the justices to resolve "a recurring issue of far-reaching national importance." When, in the context of campaign contributions, does due process demand a judge's recusal? Caperton v. A.T. Massey Coal Co., No. 08-22.

"Although judicial elections -- and contributions to elected judges -- are a well-established means of selecting a state judiciary, there will be rare cases where campaign expenditures by a litigant create a constitutionally unacceptable appearance of impropriety. This is such a case," contends former Solicitor General Theodore B. Olson, co-chairman of the appellate and constitutional law group in the Washington office of Los Angeles' Gibson, Dunn & Crutcher.

As the amount of money poured into judicial elections skyrockets -- as documented by news and scholarly reports -- the number of instances in which a litigant or an attorney has contributed significant funds to a judge also will increase, and so too will recusal requests, said Olson, who represents Hugh Caperton, president of Harman Mining Co.

"A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge," he said.

Posted by Marcia Oddi on Monday, August 04, 2008
Posted to Courts in general

Ind. Courts - Security will be beefed up at the East Chicago courthouse

Lori Caldwell of the Gary Post-Tribune writes today:

Every hearing for a protective order has potential for an emotional, sometimes hostile confrontation.

The victims seeking court-ordered solace from an abuser must make their request in public, before a judge, and often, with the abuser in the same room.

For Lake Superior Court Judge Calvin D. Hawkins, these cases pose a danger for himself, his staff and every member of the public at the East Chicago courthouse.

"With the volume of work we are getting, there needs to be someone to make sure people are orderly," Hawkins said.

For several weeks, he and Lake County Sheriff Roy Dominguez corresponded regarding what Hawkins said was a shortage of deputies in the building.

"Court filings were down drastically here prior to my arrival, now they have drastically gone up," Hawkins said.

This year Hawkins has presided over more than 100 protective orders, while there were none filed in his court in 2007.

Dominguez and Hawkins met last week and agreed on changes that will increase security in and around the courthouse.

"We added security without additional employees to the payroll," Dominguez said. * * *

"We're living in a different world. Rather than wait for something to happen and then say it's a tragedy, I thought it was important to address this now," Hawkins said.

"The sheriff's office is more sensitized to that," he added.

Hawkins said he has also discussed security issues with Mayor George Pabey.

"Now, periodically, there is police presence above and beyond what we already have. I am extremely appreciative," Hawkins said. The judge said he will attend a seminar on court security next month.

Posted by Marcia Oddi on Monday, August 04, 2008
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

None scheduled.

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

None scheduled.

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

None scheduled.

Posted by Marcia Oddi on Monday, August 04, 2008
Posted to Upcoming Oral Arguments

Ind. Courts - "Jurors tend to be younger in summer"

Rebecca S. Green of the Fort Wayne Journal Gazette has a lengthy story this morning that begins:

Oh, the sights of summer – parades, festivals, picnics, younger people among the pool of potential jurors.

What? Younger jurors? Yep.

Each summer, for the past few years, the pool of potential jurors in Allen County – and likely elsewhere in the state – gets a bit younger, like just old-enough-to-vote younger.

The fresh(er)-faced jurors are likely a product of the changes to Indiana’s jury rules a few years ago, which barred exemptions for certain professions automatically, like veterinarians and ferry boat operators.

Say what?

Posted by Marcia Oddi on Monday, August 04, 2008
Posted to Indiana Courts

Sunday, August 03, 2008

Law - Strict Construction & Judicial Acitivism.

Lawrence B. Solum, John E. Cribbet Professor of Law & Professor of Philosophy at the University of Illinois College of Law, has a useful entry this weekend in his Legal Theory Lexicon, titled Strict Construction & Judicial Acitivism.

Posted by Marcia Oddi on Sunday, August 03, 2008
Posted to General Law Related

Law - "If You Run a Red Light, Will Everyone Know?"

That is the headline to an essay today in the NY Times, written by Brad Stone, who covers Internet trends and consumer technology for the Times. Some quotes:

WANT to vet a baby sitter? Need to peek into the background of a prospective employee? Curious about the past of a potential date?

Last month, PeopleFinders, a 20-year-old company based in Sacramento, introduced CriminalSearches.com, a free service to satisfy those common impulses. The site, which is supported by ads, lets people search by name through criminal archives of all 50 states and 3,500 counties in the United States. In the process, it just might upset a sensitive social balance once preserved by the difficulty of obtaining public documents like criminal records.

Academics have a term for the old inaccessibility of records like those for criminal convictions: “practical obscurity.” Once upon a time, people in search of this data had to hire private investigators to navigate byzantine courthouses and rudimentary filing or computer systems, and to deal with often grim-faced legal clerks. In a way, the obstacles to getting criminal information maintained a valuable, ignorance-fueled civil peace. Convicts could start fresh after serving their time without strangers knowing their pasts, and there was little risk that unsophisticated researchers could confuse people with identical names.

Well, not anymore. The information on CriminalSearches.com is available to all comers. “Do you really know who people are?” the site blares in large script at the top of the page.

There is much more in the article. More is presented by the same author in this NYT Technology Blog entry by the same author headed "Is ChoicePoint a Model of Restraint in Releasing Criminal Records?" - it begins:
In Sunday’s paper, I write about CriminalSearches.com, the first free, ad-supported database of criminal archives in all 50 states and 3,500 counties in the United States. The site presents the entertaining and somewhat guilt-inducing opportunity to dig for dirt on all your friends and colleagues.

It also promises to tear apart the social fabric. What kind of society do we live in if people can look up criminal histories on each other without restriction, then rush to judgment based on incomplete and often confusing information? The story deals with that thorny question.

One perspective that did not make it into the piece came from data aggregator ChoicePoint. One of its divisions has the same records as CriminalSearches.com, but chooses to make them available only to companies and not the general public. I asked the company why.

Thoughts from the ILB: The story raises a number of issues. Here is one you may not have immediately thought of.

I checked my name on CriminalSearches.com and nothing turned up. Then I checked the names of a couple Indiana convicted criminals and nothing turned up. Then I did a search using only "Indiana" and 50 names turned up, but only two of them had an address in Indiana, and when I checked further, these were identified as "possible previous addresses."

Suspicious now, I picked a last name at random, "Mongomery," and added "Indiana" as the location. I got 16 results, with Indiana addresses. But as I looked at the details of each result, I did not find one that gave an Indiana entity as the source of the information.

Conclusion? Indiana crimes/convictions are not covered. But nothing on the site that I could find leads one to the conclusion that all jurisdictions are not covered. On the contrary, there is a drop-down box for Indiana.

At the end of the Times story, Bryce Lane, president of PeopleFinders, which runs the database, "compares his site to the seat belt, saying it will make everyone safer." Perhaps, but at least insofar as Indiana criminal history is concerned , it looks like people could rely on it to their detriment.

Posted by Marcia Oddi on Sunday, August 03, 2008
Posted to General Law Related

Environment - More on: "EPA Closure of Libraries Faulted For Curbing Access to Key Data"

Updating this ILB entry from March 15th, The Volokh Conspiracy reports the good news that the libraries will be reopening by the end of September.

Posted by Marcia Oddi on Sunday, August 03, 2008
Posted to Environment

Ind. Courts - More re: U.S. District Judge Joseph Van Bokkelen first jury trial [Updated]

Updating this ILB entry from July 7th, quoting a NWI Times story by Joe Carlson, today the Times has a story reported by Carolyn Thompson, headlined "Judge rules in favor of fired worker." Some quotes:

HAMMOND | U.S. District Judge Joseph Van Bokkelen on Friday ruled in favor of Blanca Camacho in her wrongful termination suit against East Chicago. Late last year, a federal jury returned verdicts totaling $250,000 in favor of Camacho.

Camacho's attorney, Anthony DeBonis, said that Van Bokkelen entered judgment on the verdict in full and he and his client were pleased.

Damian Rico, East Chicago spokesman, said City Attorney Carmen Fernandez would file an appeal. * * *

East Chicago attorneys would have to appeal to the U.S. Court of Appeals in Chicago, which will take about a year and a half, DeBonis said.

Camacho was working as a restaurant inspector when she was fired in 2005, just months after Mayor George Pabey took office. She said she was fired for political reasons and sued Pabey, the city and its human resources chief, records show.

Jurors in November awarded her $250,000, including $25,000 in punitive damages, for violation of her First Amendment rights.

In April, East Chicago attorneys filed a motion asking the judge to reverse the verdict and enter a judgment on the grounds of insufficient evidence.

Documents show Camacho is among more than two dozen former East Chicago workers who were fired shortly after Pabey took office. She is the only city worker to have a jury decide in her favor.

[Updated 8/5/08] A story in the Gary P-T today includes this quote:
DeBonis has filed 17 wrongful termination lawsuits against the city since Pabey took office.

So far, only Camacho has reached trial. Camacho made less than $40,000 a year in her job as a restaurant inspector, DeBonis said.

In a similar case, Joanna Kollintzas, wife of former City Councilman Frank Kollintzas, and her daughter, Thespena, reached a $350,000 settlement with the School-City, which is controlled by Pabey appointees on the School Board. Other DeBonis clients have reached smaller settlements.

Debonis said Monday he had been contacted by "numerous" employees who were dismissed in June in another wave of payroll cuts.

Posted by Marcia Oddi on Sunday, August 03, 2008
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Distribution of cases when two judges facing charges

Rebecca S. Green of the Fort Wayne Journal Gazette has a lengthy story today about the distribution of cases in Allen County courts, where two judges are facing charges. Some quotes:

Can a judge who has a pending drunken-driving case preside over other cases involving alcohol-related offenses? Should a judge accused of speaking derogatorily about a man he believed sold his late son drugs continue to handle cases involving accused drug dealers?

With two local judges making news in recent weeks, facing those exact allegations, some in the community might be asking those exact questions.

While other professions might have ethical questions or potential conflicts of interest handled by specific boards or commissions, when it is a judge, the decision about what is a conflict of interest rests solely with the individual judge.

In the past month, Allen Superior Court Judge Kenneth R. Scheibenberger and Allen Circuit Court Judge Thomas J. Felts made headlines for allegations of professional misconduct and drunken driving, respectively.

The Indiana Commission on Judicial Qualifications filed formal charges with the Indiana Supreme Court on July 15 against Scheibenberger, accusing him of violating the rules of judicial conduct when he got into a verbal altercation with the family of a criminal defendant in another courtroom last November. * * *

Scheibenberger handles many of Allen County’s low-level felony cases, many of which involve illegal drugs.

Days after Scheibenberger was charged, Felts, 53, was arrested in the early-morning hours of July 18 in downtown Indianapolis after being pulled over by Capitol Police for failing to use his turn signal. According to court documents, Felts’ eyes were glassy, his speech was slurred, and he admitted to drinking. He was arrested and charged with operating a motor vehicle while intoxicated and public intoxication.

Felts, the sole Circuit Court judge, handles both civil and criminal cases. The majority of the criminal cases he handles involve alcohol.

Posted by Marcia Oddi on Sunday, August 03, 2008
Posted to Indiana Courts

Courts - "Ky. court fees spike sharply under new deal"

Jason Riley of the Louisville Courier Journal has a story today on the increased court costs in Kentucky. Some quotes:

Looking to get a court case expunged in Kentucky? The court fee just shot up to $100 from $25.

And you better bring extra money to the courthouse if you want to file a lawsuit -- which increased $35 -- or post a bond for somebody, because the bond filing fee jumped more than sixfold, to $25 from $4.

Almost three dozen fees in courts across the state rose last month in a deal completed on May 22 among Kentucky's Supreme Court, court officials and legislators.

The deal is expected to raise an additional $20 million over the next two years. The first $5 million each year will go back to the courts and the rest to Kentucky's General Fund, which pays for most state programs.

Both state and court officials say the higher fees were set to help counter state budget cuts, including a $55 million reduction in the judiciary budget over the next two years.

"It was essential," said Jason Nemes, director of the Administrative Office of the Courts. "The state is in a very difficult financial situation, and the judiciary is in the same boat."

Some court officials across the state, as well as citizens paying the new criminal and civil fees, say it is too large an increase happening too quickly, and that it hurts those least able to pay. * * *

State officials noted that Kentucky's court fees had fallen far behind those in other states and are now much more in line -- though actually a little higher.

In Ohio, the fees differ by county, but in Cincinnati, for example, it costs $50 to get a case expunged and at least $225 to file a lawsuit, compared to $100 for an expungement here and $153 to file a suit in circuit court under the new fee structure.

In Tennessee, expungements also cost $100 and filing a lawsuit can cost anywhere between $75 and $225.

Indiana, however, charges just $5 for a bond fee and $100 to file a lawsuit.

Here is a chart on Kentucky fees that accompanies the story.

What about Indiana? First, expungement appears to be a limited remedy in Indiana. A case dealing with the issue was granted transfer on July 11th - see ILB entry here. See also this ILB entry from Feb. 24, 2007 and its links. And if you are a lawyer who has been disciplined , you are totally out of luck - the Supreme Court has no procedures to expunge a lawyer’s record of professional misconduct - see this Feb. 26, 2007 ILB entry.

Second, re Indiana's court costs, three years ago the Fort Wayne Journal Gazette had several articles on soaring court costs in Indiana. The stories are quoted in this Aug. 14, 2005 ILB entry. Some quotes from the JG:

Fees and costs work somewhat differently in civil and criminal courts, although usually contain three possible layers.

When a case of any kind is filed in a civil court the filer is charged a fee. The majority of that fee consists of a base $100 but over the years legislators have added fees. For instance, to initiate divorce proceedings costs $130. The additional $30 encompasses a second layer of fees: a document storage fee, an automated record keeping fee, a public defense administration fee, a judicial insurance adjustment fee, a judicial salaries fee and a court administration fee.

And the cost could go even higher depending on a third layer of fees that are discretionary to each county or judge, such as a $20 alternative dispute resolution fee collected in Allen County that kicks the cost to $150.

On the criminal side, the costs are paid only after conviction. The base criminal costs are $120 but a second layer of mandatory fees makes it $156 for felonies and misdemeanors and $106 for infractions and ordinance violations.

There are about a dozen other possible fees that can be added by a judge in specific cases, such as a child abuse prevention fee, domestic violence prevention and treatment fee, a safe schools fee and highway work zone fee. * * *

The most dramatic increase in court fees, and the one that seems to ring an alarm bell, is in the small-claims division.

Known as a citizens’ court, this is where average Hoosiers come to settle smaller monetary disputes without an attorney.

In 2000, the cost to file a small-claims case was just $35, which can be recouped if a person wins the case.

But as of July, that filing fee has doubled to $70 and is among the highest in the nation, according to Tom Gordon, senior counsel for HALT, a consumer advocacy group based in Washington, D.C., that focuses on the consumption of legal services.

Here is !C 33-37, dealing with court fees. I've been unable to locate a simple, one-page statement of current Indiana court fees.

Posted by Marcia Oddi on Sunday, August 03, 2008
Posted to Courts in general

Saturday, August 02, 2008

Ind. Courts - "Officials unveil Vigo County Courthouse renovation"

Crystal Garcia reports today in the Terre Haute Trib-Star:

Nearly four years and more than $13 million later, the 19th century Vigo County Courthouse’s 21st century renovation is complete.

Past and present county officeholders spread a ribbon in front of the entrance Friday as commissioner David Decker cut it with the ceremonial large pair of scissors before the community was allowed inside to tour the courthouse.

County historian Mike McCormick was the master of ceremonies for a brief program before the ribbon-cutting. He was also on hand to explain the history of the structure.

Judge Phillip Adler of Vigo County Superior Court Division 2 has worked in the building for 25 years, during which the courthouse had two temperatures: too hot and too cold, he said at the ceremony. * * *

Originally dedicated June 7, 1888, the courthouse now has all new plumbing, electrical and heating and cooling equipment as well as new duct work, telecommunications and data wiring. The restroom count has doubled to 25, giving each court a staff restroom and jury restroom in addition to seven main restrooms.

The initial structure cost $443,000 to build, the renovations: $13.65 million. Some other improvements include two fire stairs, an extra elevator, 100 historic doors and almost 100 historic light fixtures.

With all the energy-saving changes, the county will save more than $3.81 million in a 10-year period.

This ILB entry from June 22nd links to another, still available, Trib-Star story that has a number of photos of the renovations.

Posted by Marcia Oddi on Saturday, August 02, 2008
Posted to Indiana Courts

Ind. Courts - "Judge orders arrest of no-show juror"

Bill Dolan reports today in the NWI Times in a story that begins:

CROWN POINT | A judge ordered the arrest Friday of a former Lake County Criminal Court juror suspected of lying and avoiding jury duty last spring.

Court records indicate Judge Thomas Stefaniak Jr. issued the warrant for Michael Leibengood after Leibengood failed to appear Thursday for a court hearing to discuss the juror's conduct during the spring murder trial of Antonio Rose.

Posted by Marcia Oddi on Saturday, August 02, 2008
Posted to Indiana Courts

Environment - Great Lakes Compact passes US Senate

Jeff Burton reports in the NWI Times:

PORTAGE | The U.S. Senate approved an interstate agreement that creates unified standards for Great Lakes water and resource management Friday, moving the compact a step closer to becoming law.

The agreement, negotiated and approved by eight Great Lakes states, addresses a freshwater shortage and prevents countries or remote states from tapping into the lakes from their natural drainage basin. It also requires states to regulate large-scale water uses.

Posted by Marcia Oddi on Saturday, August 02, 2008
Posted to Environment

Ind. Decisions - "Appellate court reverses ruling on school shooting"

The Court of Appeals opinion July 28th in the case of Gary Community School Corp. v. Neal Boyd III and Theresa Stanback (see ILB entry here, 5th case) is the subject of a story today in the Gary Post Tribune by Sharlonda Waterhouse. Some quotes:

The Indiana Court of Appeals reversed a decision against the Gary Community School Corp. this week, calling for a new trial in the case of the family of Neal Boyd, who sued after he was shot and killed at Lew Wallace High School.

A jury had awarded damages $2,162,675 to the family.

In 2001, Boyd, 16, was shot on the steps of Lew Wallace. After a 2006 mistrial, the Boyd family won a complaint in 2007 in Lake County Superior Court, after alleging the school district was negligent in providing reasonable safety.

Gary attorney Tracy Coleman sought an appeal on behalf of the school district arguing that the district should have been immune from responsibility and that the trial court should not have admitted evidence of past violence at Lew Wallace.

Appellate Judge James S. Kirsch agreed to the latter argument but not immunity in siding with Coleman. * * *

In his written decision, Judge Kirsch said evidence of past violence at Lew Wallace was often too many years prior to Boyd's death or involved different circumstances -- such as students getting hit by stray bullets. The judge ruled such evidence created prejudice against the school district.

"The trial court therefore abused its discretion and the admission of the evidence of prior violence was a reversible error," the judge wrote.

Posted by Marcia Oddi on Saturday, August 02, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Both Clark County judicial nominees certifed by State Election Board

The ballot dispute in Clark County appeals to be resolved. See the most recent earlier ILB entry here, from Aug. 30th.

Dann A. Mann of the Jeffersonville News & Tribune reported last evening:

Both candidates for Clark County’s Circuit Court Judge seat will be on the ballot this November, following a pair of votes by the Indiana Election Commission on Friday.

After an hour-long hearing in Indianapolis, the commission voted 4-0 to throw out a challenge to the candidacy of Republican Abe Navarro, which had been made by Democrats. It then voted 4-0 to allow Democrat candidate Dan Moore on the ballot, despite technical errors.

Lesley Stedman Weidenbener of the Louisville Courier Journal reports today:
The Indiana Election Commission decided yesterday to put the Republican and Democratic candidates for Clark Circuit judge on the Nov. 4 ballot.
Advertisement

In a unanimous ruling that can be appealed, commission members said the parties and candidates -- Republican Abe Navarro and Democrat Dan Moore -- made errors in filing papers with the Indiana Election Division that could have resulted in neither being certified.

But they also acknowledged that the election laws and rules were confusing.

"We want to err on the side of putting people on the ballot so voters get to make the decision," said Sarah Steele Riordan, a Republican on the four-member panel.

The ruling ended a sometimes bewildering discussion in which attorneys for the candidates attempted to show how their side met the various filing and other requirements and their opponents did not.

In the end, however, commission members seemed less concerned with the technicalities than the potential impact of having no candidate running for the office, which was vacated in May when Judge Daniel Donahue retired.

Gov. Mitch Daniels appointed Navarro to serve through the end of the year.

After yesterday's meeting, commission Chairman Tom Wheeler said the General Assembly and the courts have directed the panel to read the laws "liberally to give the people the ability to make decisions on these candidates." * * *

The commission, which also is split with two Republicans and two Democrats, appeared frustrated by the arguments and united in finding a bipartisan compromise. Wheeler said a 2-2 vote would likely have left neither candidate on the ballot.

"From my standpoint, that is a bad result," Wheeler told the candidates and their attorneys. "That forces you into litigation."

Moore said he has no interest in taking the commission's ruling to court. But Buskill said Republicans will have to decide "if it's worth doing anything. … We'll look at our options."

Posted by Marcia Oddi on Saturday, August 02, 2008
Posted to Indiana Courts

Ind. Courts - More again today on the Delaware County drug forfeiture investigation

The most recent ILB entry on the drug forfeiture investigation in Delaware County was July 30. Today Rick Yencer of the Muncie Star-Press reports in a story that begins:

An ongoing investigation into the possible misuse of seized funds by the Muncie-Delaware County Drug Task Force this week uncovered two new cases in which Delaware County Prosecutor Mark McKinney played a key role.

McKinney signed off on a handful of civil forfeiture cases last year among more than 70 pending or ordered by Delaware Circuit Court 4 John Feick. McKinney insists payments he received last year for work on forfeiture cases and signing off on affidavits and judgments as the DTF attorney was for duties performed before he took office as the county's elected prosecutor in January 1997.

State law prohibits a full-time prosecutor from maintaining a private law practice.

"I have not committed a crime," McKinney said following a hearing this week. The prosecutor also said he had no intention of stepping down as a result of ongoing investigations by Circuit Court 2 Judge Richard Dailey and the Indiana Supreme Court's disciplinary commission, which is reviewing a complaint from Mayor Sharon McShurley about McKinney's handling of forfeiture cases.

The latest cases subject to review by Judge Dailey involve convicted felons Bradley Chappell and Kelvin Lampkins. In both cases, McKinney signed orders last year disbursing funds the to DTF and was paid as DTF attorney.

In a third case, money was disbursed, without a court order, through a confidential settlement with high profile fugitive Adrian Kirtz.

In another case, Feick recently ordered the DTF to return $25,212 seized without a court order to the county clerk's office pending disposition.

Posted by Marcia Oddi on Saturday, August 02, 2008
Posted to Indiana Courts

Friday, August 01, 2008

Ind. Decisions - More on: Court grants transfer in 3 cases

I've just learned there will be no transfer list this week, so expect to see the three transfers listed earlier today on next week's list.

Posted by Marcia Oddi on Friday, August 01, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - Court grants transfer in 3 cases

The formal transfer list should follow later today, but the ILB has received advance notice about three cases granted transfer, two yesterday, July 31st, and one today, August 1st.:

Estate of Prickett v. Womersley - See 4/10/08 NFP COA re an interlocutory appeal here (6th NFP decision), concerns Womersley’s claim for compensation and reimbursement “for the time that [she] spent attending to [her mother’s] needs."

McSwane v. Bloomington Hosp - A 2-1 COA opinion issued March 12th (see ILB entry here, 4th case), where "Bloomington Hospital treated Malia Vandeneede for injuries she said she sustained when she fell off a horse onto some debris. After treatment, she was discharged into her former husband’s custody. He killed her on their way home, then killed himself." Held: "The Hospital therefore should not have been granted summary judgment on the ground it owed Malia no duty."

Kerry Meredith v. State
- See Dec. 28, 2007 COA opinion here and petition for rehearing here - concerns, as summarized in this ILB entry, admissibility of cocaine "obtained pursuant to a legitimate traffic stop for an improperly displayed temporary vehicle tag. We grant the State’s petition for the sole purpose of clarifying that, while the initial traffic stop was legitimate, the investigating officer’s probable cause or reasonable suspicion to detain Meredith had expired well before the discovery of cocaine in Meredith’s vehicle."

Posted by Marcia Oddi on Friday, August 01, 2008
Posted to Indiana Transfer Lists

Environment - "Indiana's worst beaches not in Porter County"

That is the "good" news. The bad news was published in an AP story in the Porter County-based Chesterton Tribune yesterday and in this story by Gitte Laasby in the Gary Post Tribune on July 30th:

Indiana had nearly twice as many beach closings in 2007 as it did the year before, according to a report released Tuesday by the Natural Resources Defense Council.

Total closing and advisory days increased to 213 days, the highest level of closures in 18 years. That's nearly twice as many as the 111 days of closing and advisory days in 2006.

Total closing and advisory days increased to 213 days, the highest level of closures in 18 years. That's nearly twice as many as the 111 days of closing and advisory days in 2006.

High levels of E. coli bacteria contribute to illnesses for swimmers, such as diarrhea, ear, nose and throat problems and hepatitis. It also negatively impacts the tourism industry and the economy because the cost of closing a Lake Michigan beach is estimated at $8,000 to $37,000 per day, according to the report.

High levels of E. coli bacteria contribute to illnesses for swimmers, such as diarrhea, ear, nose and throat problems and hepatitis. It also negatively impacts the tourism industry and the economy because the cost of closing a Lake Michigan beach is estimated at $8,000 to $37,000 per day, according to the report. * * *

The worst beaches in Indiana were Jeorse Park near the marina in East Chicago and Washington Park in LaPorte County. Jeorse Park beach exceeded Indiana's maximum acceptable level of E. coli bacteria 52 percent of the time samples were taken. Washington Park beach exceeded the limit 42 percent of the time, according to the report. Most of the beaches sampled were in the teens.

Posted by Marcia Oddi on Friday, August 01, 2008
Posted to Environment

Ind. Decisions - More on 7th Circuit decision yesterday in US V. Gladish

In US V. Gladish, decided yesterday (see ILB summary here), Judge Posner ruled:

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.
It appears the defendant, who was arrested in St. Joseph County, was one of 24 arrested for child solicitation in August of 2006, according to this story from Aug. 23, 2006 by Sophia Voravang of the Lafayette Journal & Courier. From the story:
This weekend, detectives in Tippecanoe, Porter and St. Joseph counties arrested 24 men accused of trying to coerce teen girls online to engage in alleged sexual activity, U.S. attorney Joseph Van Bokkelen of Indiana's Northern District announced Tuesday morning.
It appears from the story that only some of those arrested actually traveled to a proposed meeting place:
Eleven of the men arrested during the 21-day-long federal sting actually traveled to a proposed meeting place, including five who came to Tippecanoe County. The other arrests were based on alleged explicit chatroom conversations.
This story yesterday in the Journal & Courier gives the sentencing information from the 2006 Tippecanoe County arrests, both those who actually traveled to the proposed meeting place and those who did not. The ILB has not located similar information for the Porter and St. County arrests.

Posted by Marcia Oddi on Friday, August 01, 2008
Posted to Ind. (7th Cir.) Decisions

Courts - Kentucky judge rules highway bill is invalid

I haven't had a chance to look into this matter facing our sister state to the south, but it does appear interesting - Tom Loftus reports today in the LCJ in a story that begins:

FRANKFORT, Ky. -- The General Assembly's 2008 highway construction bill is invalid because it was not delivered to the governor on time, a judge ruled yesterday.

Franklin Circuit Judge Phillip Shepherd said the bill was not delivered to Gov. Steve Beshear until April 16 -- one day after the General Assembly was required by the Kentucky Constitution to adjourn -- and was therefore "null and void."

The ruling came in a lawsuit brought by Senate President David Williams, challenging the validity of Beshear's veto of the bill and the governor's subsequent decision to devise his own road plan, one that had not been passed by the legislature.

Williams' suit claims that Beshear missed by one day the constitutional deadline to veto the legislature's plan, House Bill 79. And even if the veto was valid, the suit contends, state funds can be spent only under a road plan adopted by the General Assembly.

Both sides in the case agreed to first resolve the question of whether Beshear had vetoed the bill in time. But in a surprising order, Shepherd ruled that the question is "moot" because the General Assembly missed its deadline to get the bill to Beshear.

At the same time, the judge acknowledged that he was ruling on an issue on which the two sides had not submitted written briefs. Because of that, he said he would allow the parties to file arguments asking him to reconsider.

Posted by Marcia Oddi on Friday, August 01, 2008
Posted to Courts in general

Ind. Courts - Still continuing with "Judicial candidate's registration in question"

Updating this ILB entry from July 29th, on the upcoming Indiana Election Commission hearing Friday in Indianapolis (set for today) to review the nominations for Clark Circuit Court judge, Ben Zion Hershberg reports today in the Louisville Courier Journal:

A Democratic precinct committeeman in Clark County is circulating a petition asking the Indiana Election Commission to give the Republican and Democratic candidates for Circuit Court judge 30 more days to properly file their nominating documents.

Edward Culpepper Cooper said he decided to circulate the petition because of strong support for Democratic candidate Dan Moore at the party caucus in June, and he wanted the commission to know how people felt.

"We're asking them to allow both people to be on the ballot" because the voters deserve to choose, Cooper said yesterday.

The commission, which oversees state election procedures, is to hold a hearing today in Indianapolis to consider questions that have been raised about both parties' judicial nominees. * * *

David Buskill, the Clark County Republican chairman, said he doesn't believe the petition will have an impact on the commission's decision.

"The law will determine the decision," he said, adding that he believes Navarro was nominated properly.

Leslie Barnes, the Democratic co-general counsel of the election division that advises the commission, said she wasn't aware of the commission ever extending a filing deadline for nomination documents.

The deadline for the Nov. 4 general election was noon July 3.

Posted by Marcia Oddi on Friday, August 01, 2008
Posted to Indiana Courts