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Tuesday, September 30, 2008

Ind. Decisions - Court of Appeals issues 4 today (and 24 NFP)

For publication opinions today (4):

In Joel Silverman, Commissioner of the Indiana Bureau of Motor Vehicles v. Miguel Villegas, Betty Doe, et al. , a 24-page, 2-1 opinion, Judge Robb writes:

Three illegal aliens instituted a class action against the Commissioner of the Indiana Bureau of Motor Vehicles (“BMV”) claiming they were unable to obtain State of Indiana driver’s licenses and/or identification cards because of identification requirements implemented by the BMV on July 15, 2002. In a prior appeal, this court held that the identification requirements constituted an administrative rule, which was void because it was not promulgated pursuant to the Indiana Administrative Rules and Procedures Act (“ARPA”). We therefore instructed the trial court to enter summary judgment in favor of the plaintiffs. Villegas v. Silverman, 832 N.E.2d 598, 610 (Ind. Ct. App. 2005), reh’g denied, trans. dismissed (“Villegas I”). The trial court entered judgment in the plaintiffs’ favor on their complaint and granted the plaintiffs’ motion for attorney fees and costs as prevailing parties pursuant to 42 U.S.C. § 1988 (“section 1988”), ordering the BMV to pay such attorney fees and costs in the amount of $112,468.43. The BMV appeals the trial court’s grant of this motion, raising for our review the issue of whether the plaintiffs are prevailing parties pursuant to section 1988 for the purpose of awarding fees. Concluding that the plaintiffs are prevailing parties and that their success in having the identification rule voided merits an award of attorney fees, we affirm. * * *

The plaintiffs are prevailing parties for succeeding on a state statutory claim that is pendent to a substantial federal constitutional claim that arises from a common nucleus of operative fact. Moreover, the plaintiffs’ success in having the identification requirements declared void merits an award of attorney fees. The trial court’s section 1988 attorney fee award is therefore affirmed. Affirmed.

RILEY, J., concurs.
BAKER, C.J., dissents with separate opinion. [that concludes] The majority seemingly takes the view that a claimant need only advance “some” type of constitutional claim and succeed on a non-related state claim to become entitled to attorneys’ fees under Section 1988, regardless of any failure to prove the constitutional claim or even make a showing that the federal claims were substantial. To me, such a notion contradicts the spirit of the Section 1988 provisions. Because the plaintiffs’ counsel did not achieve any recovery that was beneficial to their clients pursuant to their federal claim, I believe that the award of attorneys’ fees in this case was not warranted under Section 1988. Thus, I would reverse the judgment of the trial court.

In French-Tex Cleaners v. Cafaro Co. and Towne Management Co. , a 23-page opinion, Judge Kirsch writes:
French-Tex Cleaners, Inc. (“French-Tex”) brings this interlocutory appeal of the trial court’s grant of summary judgment: (1) in favor of Cafaro Company (“Cafaro”) on French-Tex’s breach of contract and conversion claims; and (2) in favor of Towne Management Company (“Towne”) on French-Tex’s conversion claim. Towne brings an interlocutory cross-appeal on the trial court’s grant of summary judgment in favor of French-Tex on French-Tex’s breach of contract claim. The parties raise the following restated issues: I. Whether the trial court erred in granting summary judgment in favor of French-Tex on its breach of contract claim against Towne. II. Whether the trial court erred in granting summary judgment in favor of Towne on French-Tex’s conversion claim. III. Whether the trial court erred in granting summary judgment in favor of Cafaro on French-Tex’s claims for breach of contract and conversion. We affirm in part, reverse in part, and remand.
In Bridget Pavese v. Cleaning Solutions , a 12-page opinion, Judge Vaidik writes:
After the Indiana Supreme Court in Milledge v. The Oaks, 784 N.E.2d 926 (Ind. 2003), adopted the positional risk doctrine that placed the burden of proof on employers in cases involving neutral risks, the Indiana General Assembly amended Indiana Code § 22-3-2-2(a) to place the burden of proof on employees throughout the proceedings. In this case, Bridget Pavese fell on the job and received medical treatment for a head injury. Her employer, Cleaning Solutions, refused to pay her medical bills. Pavese now appeals the decision of the full Worker’s Compensation Board affirming the decision of a hearing member, who concluded that she experienced a personal event on the job that is not covered by the Worker’s Compensation Act. Specifically, Pavese contends that the amendment to Indiana Code § 22-3-2-2(a) is unconstitutional as applied to her because it places on her the burden of proving a negative, that is, that her injury is not the result of a personal health condition. In the event we find the amendment constitutional, Pavese asserts that she has nevertheless met her burden of proof. Concluding that Pavese has not met her burden of proving that the amendment to Indiana Code § 22-3-2-2(a) is unconstitutional and that she also has not met her burden of proving that her injury arose out of her employment, we affirm.
In Franklin R. Marshall v. State of Indiana , a 17-page opinion, Judge Kirsch writes:
Following a jury trial, Franklin R. Marshall was convicted of five child molesting felonies, four as Class A felonies1 and one as a Class B felony.2 Marshall raises four issues, which we consolidate and restate as: I. Whether the trial court committed errors in the admission and exclusion of evidence during trial; II. Whether any trial court error occurred with respect to Marshall’s claim that the jury saw him before or after trial being transported in handcuffs; and III. Whether Marshall’s aggregate ninety-six year sentence is inappropriate given his character. We affirm.
NFP civil opinions today (7):

Indiana Alcohol and Tobacco Commission v. Ultimate Place, et al. (NFP) - "From the foregoing, we conclude that the ATC’s, and the local board’s, decision to deny Ultimate Place’s application for an alcoholic beverage permit renewal was not based upon substantial evidence and was arbitrary and capricious. The trial court did not improperly reweigh the evidence. The decision of the trial court is affirmed. Affirmed."

Guaranteed Muffler and Brake v. Arthur M. Rosales (NFP) - "Guaranteed Muffler and Brake (Guaranteed) appeals the small claims court’s judgment awarding Arthur M. Rosales monetary damages relating to repair work performed on Rosales’s car by Guaranteed. The following issue is dispositive of the appeal: Did the trial court err in concluding that Guaranteed is liable to Rosales because it failed to warn him about the defective fuel rail in his engine and the immediate dangers inherent therein? We affirm. * * *

"In balancing the three factors set out above, we conclude that Rosales’s direct customer-client relationship with Guaranteed, the foreseeability that his car could catch fire if the fuel rail malfunctioned, and the foregoing public policy considerations all mitigate in favor of the imposition on Guaranteed of a duty to warn, a duty which the trial court found that Guaranteed failed to discharge. Accordingly, Guaranteed has failed to establish a prima facie case that the trial court’s judgment was clearly erroneous."

Kirby T. Hobbs v. Tiana L. Hobbs (NFP) - "Kirby T. Hobbs (“Husband”) appeals the trial court’s denial of his motion to correct error filed subsequent to its dissolution decree awarding Tiana L. Hobbs (“Wife”) one half of the marital estate. Wife asserts that she is entitled to reasonable appellate attorney’s fees. We affirm the trial court’s disposition of the property and remand for a determination of appellate attorney’s fees. * * *

"The trial court retains jurisdiction to award appellate attorney’s fees even after the perfection of this appeal. Thompson, 811 N.E.2d at 929. We therefore remand this case to the trial court to determine whether appellate attorney’s fees should be awarded and in what amount."

J. Michael Ray v. Laidlaw Medical Transportation, Inc., et al (NFP) - "J. Michael Ray (“Ray”) appeals from the Allen Superior Court’s grant of summary judgment in favor of Laidlaw Medical Transportation, Inc. d/b/a American Medical Response of Fort Wayne (“AMR”) in Ray’s “whistleblower” suit against AMR. Upon appeal, Ray claims that the trial court erred in concluding that Ray was required to have reported a violation of federal law or regulation in writing before he was protected under the whistleblower statute, Indiana Code section 22-5-3-3 (2005). We affirm. * * *

"Although Ray makes several arguments regarding public policy reasons for protecting employees from retaliation for verbal reports, such arguments are best directed toward our General Assembly, which apparently chose not to protect employees who did not file written reports. As AMR notes, several states have whistleblower statutes which protect employees for making either written or verbal reports of violations. * * * Our statute could have been written to similarly provide protection for employees who report violations of the law either verbally or in writing, but it does not.

"Because Ray did not make a written report of the alleged violations prior to his discharge, the whistleblower statute affords him no protection. The trial court therefore did not err in granting summary judgment in favor of AMR."

The Matter of Term. of Parent-Child Rel. of E.M. v. Jackson Co. Dept. of Child Svcs. (NFP) - "Concluding that the trial court’s judgment terminating Father’s parental rights is supported by clear and convincing evidence, we affirm."

Term. of Parent-Child Rel. of S.B., and Jennifer B. v. State of Indiana, Office of Family and Children (NFP) - "J.B. (“Mother”) appeals the trial court’s termination of the parent-child relationship with her son, S.B., upon petition of the Allen County Department of Child Services (“DCS”). The sole issue for our review is whether there is sufficient evidence to support the termination. We affirm."

In the Matter of T.S. and B.S. (NFP) - "Appellant-Petitioner Warrick County Department of Child Services (“WCDCS”)
appeals the juvenile court’s determination that the evidence was insufficient to prove that
T.S. and B.S. were Children in Need of Services (“CHINS”) with respect to their mother,
Brenda Simmons. We affirm."

NFP criminal opinions today (17):

Andre Powell v. State of Indiana (NFP)

Joshua Engler v. State of Indiana (NFP)

John W. McMaster v. State of Indiana (NFP)

Steve Delp v. State of Indiana (NFP)

Krystal Joanna Raney v. State of Indiana (NFP)

Joshua Bennett v. State of Indiana (NFP)

Shaun Long v. State of Indiana (NFP)

Christine D. Edwards v. State of Indiana (NFP)

Hassan Bledsoe v. State of Indiana (NFP)

Jermaine Davis v. State of Indiana (NFP)

D.R., Jr. v. State of Indiana (NFP)

Jacqueline Hohenberger v. State of Indiana (NFP)

Armone Neely v. State of Indiana (NFP)

Antonio Carney v. State of Indiana (NFP)

Tracy D. Mayes v. State of Indiana (NFP)

Edwin Thomas v. State of Indiana (NFP)

Billy Moore v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 30, 2008
Posted to Ind. App.Ct. Decisions

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

In this ILB entry from Aug. 23rd, I reported that I was preparing Part II of my Res Gestae article, "Can you rely on the Indiana Code?" Here is a direct link to Part I, and here are earlier, related links.

Part II, titled "More noncode provisions, some recommendations," will appear in the Oct. 2008 issue of Res Gestae. The article begins with examples from readers, then continues on with other specific examples of substantive provisions of interest that are the law of the State, but were never included in the Indiana Code. Next, the article addresses the question of whether the use of noncode provisions has increased over the years. The article concludes with specific recommendations.

It is my opinion that these recommendations need to be implemented as soon as possible. Here is the link to an advance copy of Part II.

Posted by Marcia Oddi on Tuesday, September 30, 2008
Posted to Indiana Law

Ind. Gov't. - "Leaky roof a catalyst for moldy record books in Boonville"

Lydia X. McCoy reports today in the Evansville Courier & Press:

BOONVILLE, Ind. — Row after row of old record books fills the former Carquest building on Boonville's Main Street.

The county has been using the small, brick building for storage, but a leaky roof has left the items in moldy disarray.

Now county officials have to figure out the answers to a number of questions: What can be thrown away? What needs to be kept? Where do you store them — and future records — to keep them safe?

"It's no surprise to anyone that the records are in such bad shape because of the mold and the rain and everything that has damaged them over the years," said Circuit Court Judge David Kelley, who is also the chairman of the county's records retention commission, during a recent meeting. * * *

Warrick County Commissioners President Don Williams said that body found out about the moldy records several weeks ago.

"We had no idea those records were out there like that ... the pictures that I saw were not good," he said. "We have to have a more secure area for our records."

The problem was discovered when some children were spotted on the roof of the building after an ice storm earlier this year. When one of the county's maintenance workers went on the roof to check things out, he discovered a hole in the roof.

The hole wasn't repaired, in part because the county was debating future uses for the building, and with the spring's rains, more and more records became wet and started molding.

"We knew there was no heat and no cooling in there," Weisheit said. "Everybody knew it leaked, but we didn't know it was ever in such bad shape."

Before the Judicial Center was built about 10 years ago, old records were stored off site with a company called Kinder for $6,000 a year. The records were given a bar code and put in inventory. After the Judicial Center was built, it was decided the $6,000 could be saved by storing the records at an off-site building owned by the county.

Posted by Marcia Oddi on Tuesday, September 30, 2008
Posted to Indiana Government

Environment - "Shuttered EPA libraries to open doors tomorrow after two years"

From a release issued by the Public Employees for Environmental Responsibility, which begins:

Washington, DC — Under orders from Congress, the U.S. Environmental Protection Agency tomorrow will again provide access to library services in 15 states and its own headquarters to agency employees and the public. This ends a 30-month campaign by the Bush administration to restrict availability of technical materials within EPA but leaves in its wake scattered and incomplete collections under new political controls of library operations, says Public Employees for Environmental Responsibility (PEER).

On September 30th, the last day of the federal fiscal year, EPA will re-open its regional libraries in Chicago (serving the Great Lakes region), Dallas (Mid-Southern region) and Kansas City (Mid-Western region) after more than two years. In addition, a long-shuttered library in EPA Headquarters will re-open and include a small portion of holdings from what had been a free-standing Chemical Library, for research on the properties and effects of new chemicals, as a “special Chemical Collection”.

In its September 24, 2008 Federal Register notice, EPA promises that these re-opened facilities “will be staffed by a professional librarian to provide service to the public and EPA staff via phone, e-mail, or in person…for a minimum of 24 hours over four days per week on a walk-in basis or by appointment.”

Posted by Marcia Oddi on Tuesday, September 30, 2008
Posted to Environment

Ind. Decisions - More on: Court grants transfer in school finance case

Updating this ILB entry from yesterday, Karen Francisco, of the Fort Wayne Journal Gazette's education blog, Learning Curve, has some commentary today.

See this ILB from Aug. 19th for links to several of the briefs filed re the transfer petition.

Posted by Marcia Oddi on Tuesday, September 30, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - "Mortgage Lenders Fight Off Rescission Class Action in 7th Circuit"

Reporting about the 7th Circuit's Sept. 24th decision in the case of Andrews v. Chevy Chase Bank, Pamela A. MacLean of The National Law Journal writes today:

In a boon for the mortgage lending industry, a federal appeals court has said the Truth in Lending Act does not allow for rescission of mortgages on a class action basis.

The 7th U.S. Circuit Court of Appeals, in a 2-1 decision on Wednesday, averts the potential of significant damages for creditors accused of violating disclosure requirements in some of the exotic mortgage vehicles that exacerbated the mortgage market meltdown and has Congress contemplating ways to restore credit market confidence.

The Circuit decision joins an earlier ruling by the 1st and 5th Circuits and one California state appellate court that have held that the Truth in Lending Act (TILA) does not allow claims for rescission in a class action format.

Judge Sykes' opinion begin:
In this interlocutory appeal, we are called on to answer one question: May a class action be certified for claims seeking the remedy of rescission under the Truth in Lending Act (“TILA”), 15 U.S.C. § 1635? The only two federal appellate courts to have addressed this question have answered “no,” see McKenna v. First Horizon Home Loan Corp., 475 F.3d 418 (1st Cir. 2007); James v. Home Constr. Co. of Mobile, Inc., 621 F.2d 727 (5th Cir. 1980), and we agree. TILA’s statutory-damages remedy, § 1640(a)(2), specifically references class actions (by providing a damages cap), but TILA’s rescission remedy, § 1635, omits any reference to class actions. This omission, and the fundamental incompatibility between the statutory-rescission remedy set forth in § 1635 and the class form of action, persuade us as a matter of law that TILA rescission class actions may not be maintained.
This entry this morning in How Appealing links to a Sept. 24th story in the Milwaukee Journal Sentinel, which includes some interesting quotes.

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

Monday, September 29, 2008

Ind. Decisions - Court of Appeals issues 1 more this afternoon (and 2 more NFP)

For publication opinions today (1):

Michael A. Smith v. State of Indiana This is a 2-1, 12-page opinion. Chief Judge Baker writes:

Appellant-defendant Michael A. Smith appeals the trial court’s order finding him in direct contempt of court. Smith argues that his due process rights were violated because the trial court did not appoint a neutral judge to preside over the hearing at which Smith was sanctioned for his behavior and that the trial court erroneously found his actions to be directly contemptuous. Finding no error, we affirm. * * *

ROBB, J., concurs.
RILEY, J., dissents with opinion. [which begins] I respectfully dissent. Master Commissioner Rubick did not have the authority to enter a final order on contempt. Our legislature has promulgated statues that should control our disposition of this case. The majority has ignored those statutes.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Linden Cornewell v. State of Indiana (NFP)

Jennifer Harding v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 29, 2008
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Still more on: Coach Crean's contract online

Updating earlier ILB entries on IU Coach Crean's contract, now, thanks again to the Indianapolis Star, we have access to Purdue Coach Painter's contract. The links are part of Star reporter Mark Alesia's story today headed "Painter's deal with Purdue is much less lucrative than Crean's with IU." From the long story:

The guaranteed money per season in the contract of Purdue men's basketball coach Matt Painter is a little more than one-third that of Indiana coach Tom Crean, according to public documents released to The Star this week.

Painter, last season's Big Ten Coach of the Year, has a six-year contract through 2012-13 that guarantees him an average of $843,000 per year.

Crean, hired from Marquette to rebuild IU's program after an NCAA investigation and the resignation of former coach Kelvin Sampson, is guaranteed $2.36 million per year in a 10-year contract through 2017-18.

"You could take the IU contract and contrast it with a lot of universities," Purdue athletic director Morgan Burke said. "They had their reasons."

Both coaches signed their contracts during the summer after agreeing to general terms several months earlier.

Posted by Marcia Oddi on Monday, September 29, 2008
Posted to Indiana Government

Environment - Resources for Indiana environmental lawyers

The 2008 edition of the Indiana Environmental Statutes (I am the editor) is now available from the Indiana State Bar Ass'n. Access the order blank here.

The Indiana Environmental Enforcement Database, a totally searchable resource currently containing nearly 6,000 Indiana AOs, NOVs, and COs (with more being added every month), is open to new subscribers via my company, Environmental Information Solutions,. Details here.

Posted by Marcia Oddi on Monday, September 29, 2008
Posted to Environment

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In Charlotte M. v. Jasper Co. Dept. of Child Svcs. , a 19-page opinion, the Court reverses a termination of parent rights. Judge Najam concludes:

In failing to provide a nexus between its purported findings, which simply recite the evidence presented during the termination hearing, and its decision to terminate Mother’s parental rights to the twins, the trial court’s termination orders fail to satisfy the requirements of Indiana’s termination statutes. Additionally, although cognizant of the high degree of deference to be given a trial court’s decision to terminate a parent-child relationship, we nevertheless can affirm a trial court’s judgment only if we find that a reasonable trier of fact could have concluded the judgment was established by clear and convincing evidence. Without weighing the evidence or assessing witness credibility, a thorough review of the record leaves us with a firm conviction that the trial court’s termination orders are not supported by clear and convincing evidence. Accordingly, the trial court’s orders terminating Mother’s parental rights to C.R.M. and C.B.M. are clearly erroneous. Reversed.
In Ray A. Haas, M.D. v. Donald H. Bush, Rep. of the Estate of Elaine M. Bush , a 9-page opinion, Judge Friedlander writes:
Ray A. Haas, M.D. appeals a wrongful death judgment entered in favor of Donald H. Bush, as personal representative of the estate of his deceased wife, Elaine M. Bush (the Estate). Dr. Haas presents the following consolidated and restated issues for review: 1. Did the Indiana Supreme Court exceed its authority under the Indiana Constitution when it adopted Section 323 of the Restatement (Second) of Torts? 2. Did the trial court erroneously admit the written opinion of the medical review panel into evidence? We affirm.
In John J. Balvich, Arlene Balvich, et al. v. Stephen C. and Maureen Spicer, a 23-page opinion, Chief Judge Baker writes:
Appellants-defendants John, Arlene, Jordan, and Beth Balvich (collectively, the Balviches) appeal the trial court’s judgment entered in favor of the appellees-plaintiffs Stephen and Maureen Spicer (the Spicers) regarding the Spicers’ claim against them for contribution on various deficiency judgments that had been entered against the Spicers. Specifically, the Balviches argue that the Spicers’ action against them was barred by the statute of limitations, that joint and several liability should not have attached, and that the Spicers erroneously obtained a judgment against them with regard to tax liabilities of the various business entities because the Indiana Tax Court had exclusive jurisdiction over such matters. Finding no error, we affirm the judgment of the trial court. * * *

In light of our discussion above, we conclude that the Spicers’ action against the Balviches for contribution was not barred by the statute of limitations. Additionally, the evidence established that the Spicers were entitled to contribution from the Balviches on the AT&T and Bank One judgments, and the trial court properly concluded that the Spicers were entitled to contribution from Arlene on the Indiana tax trust liabilities.

NFP civil opinions today (1):

Ilene R. Maurer v. Herman Maurer (NFP) - "Ilene Maurer appeals the trial court’s Indiana Trial Rule 12(B)(6) dismissal of her complaint against Herman Maurer. Ilene raises five issues on appeal, which we consolidate and restate as two issues: (1) whether the trial court erred when it dismissed her intentional interference with expectance of inheritance claim; and (2) whether the trial court erred when it dismissed her Intentional Infliction of Emotional Distress (“IIED”) claim. Concluding that although Ilene’s claims are not barred by the necessity of bringing them as a will contest pursuant to Indiana Code section 29-1-7-17, she nonetheless has failed to sufficiently plead a claim for which relief may be granted, we affirm."

NFP criminal opinions today (7):

Jason J. Green v. Laura S. Green (NFP)

Adrian E. Cofield v. State of Indiana (NFP)

Michael Williams v. State of Indiana (NFP)

Donald S. Lacy v. State of Indiana (NFP)

Kenneth William Shryock v. State of Indiana (NFP)

Jharon Holland v. State of Indiana (NFP)

Emigdio Lopez v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 29, 2008
Posted to Ind. App.Ct. Decisions

Law - More on: "Tech activist takes on governments over 'copyrighted' laws"

Updating this ILB entry from Sept. 26th, two new stories today:

"Who Owns the Law? Arguments May Ensue " is the headline to a NY Times story today by Noam Cohen that contains a number of interesting points. Some quotes:

IN a time when scientists are trying to patent the very genetic code that creates life, it may not be too surprising to learn that a variety of organizations — from trade groups and legal publishers to the government itself — claim copyright to the basic code that governs our society.

Well, it is still a bit of a head-scratcher. Let me try to explain.

To be clear, it has been established by the United States Supreme Court (no less) that the law and judicial decisions cannot be copyrighted. They are in the public domain and can be used and reused in any way possible, even resold.

Yet, in the real world, judicial decisions and laws and regulations can be exceedingly hard to find without paying for them, either in book form or online. And that doesn’t even include quasi-official material like the numeric codes doctors are required to use when filing for Medicaid or Medicare payments or the fire safety codes that builders are required to follow.

“The law is pretty clear that laws and judicial opinions and regulations are not protected by copyright laws,” said Pamela Samuelson, a professor at Boalt Hall School of Law at the University of California, Berkeley. “That isn’t to say that people aren’t going to try.”

A favorite method of trying, as Ms. Samuelson and other legal scholars explain, is to copyright the accoutrements surrounding the public material. So while the laws and court decisions themselves may be in the public domain, the same is not necessarily true for the organizational system that renders them intelligible or the supporting materials that put them into context. * * *

Into this maze of fuzzy law and competing ownership claims enters Carl Malamud, who for 15 years or so has used the Internet to liberate information that nominally exists in the public domain. He has pulled up federal court decisions, corporate filings to the Securities and Exchange Commission and, in an example of near performance art, the copyright registrations at the United States Copyright Office.

“So many people have been moving into the public domain and putting up fences,” he said in an interview from his office in Sebastopol, Calif., where he runs a one-man operation, public.resource.org, on a budget of about $1 million a year. Much of that money goes to buy material, usually in print form, that he then scans into his computer and makes available on the Internet without restriction.

Currently, safety codes for plumbers are “totally unavailable unless you pay $100 per copy,” he wrote in an e-mail message; a boiler safety code costs $13,000. (For that price, shouldn’t they throw in the boiler?)

As of Labor Day, he had put, he estimates, more than 50 percent of the nation’s 11 public safety codes online, including rules for fire prevention. “We have material from all 50 states, but we don’t have all 11 codes for all 50 states,” he said. * * *

To avoid legal fights, Mr. Malamud said, he takes the trouble not to scan material packaged within shrink wrap and bearing warnings that whoever breaks the seal agrees not to reuse the material. In those cases, like the American Society of Mechanical Engineers’ Safety Code for Existing Elevators and Escalators, he says, he finds another source without the implied license.

“If you require citizens to know, read and obey the rules, then it is in the public domain,” he said.

Even some critics of the current system say they understand why copyright has infiltrated the basic codes of the government. Peter Martin, a law professor at Cornell who was a pioneer in making legal material available on the Internet, explained the dilemma. A company “will say to some city, all your city council has to do is pump out ordinances, we’ll help you organize it and we’ll get to copyright it,” he said. “That is part of the quid for our quo.”

Professional organizations like the American Bar Association and the American Medical Association stress that they are performing a valuable, and expensive, service, by creating a code to rationalize the way doctors or lawyers behave, and deserve to be compensated. Take away the incentive, and there is no innovation, so the argument goes.

Rick King, executive vice president and chief operations officer of the North American Legal unit of Thomson Reuters, which owns many legal and medical databases, did not necessarily see Mr. Malamud’s cause as a threat. “I do think they are complementary,” he said about public.resource.org and his company’s legal research publishing, “as long as people are respectful of the parts that are copyrighted.”

He stressed that with more and more information being available online, his company’s value-added material would become even more valuable.

“If I am a regulator working for the E.P.A.,” Mr. King said, referring to the Environmental Protection Agency, “do I want to go to Google or a free database, or go to a Web site and see the historical changes in the code so I can understand why a code has changed the way it has?”

"Sebastopol man puts code manuals online" is the headline to a story by Matthew B. Stannard, published Saturday in the San Francisco Chronicle. Some quotes:
"It's very clear in American law that you can't get intellectual property protection for law," said Pamela Samuelson, co-director of the UC Berkeley Center for Law and Technology. "Law belongs to everybody."

This year Malamud persuaded the Oregon legislature not to enforce its copyright claim to Oregon Revised Statutes - after he put them online. Now he'd like to see California - and other agencies that claim copyright over public codes and regulations - do the same.

"This stuff has been locked up behind a cash register," Malamud said. "(It's) way too important to just leave it there."

If Malamud is fishing for a lawsuit - something he denies - so far nobody is biting. Officials at the agencies whose codes Malamud has posted all say they are aware of his efforts but have no plans for legal action.

Which doesn't mean those agencies are giving up their copyright - especially if someone republishes the codes for profit, said Linda Brown, deputy director of the California Office of Administrative Law.

"If somebody is going to make commercial use of that, the people of California deserve to benefit," she said.

Brown said Malamud's rhetoric is misleading - many of the codes on his site are already available free online.

The state's administrative law office Web site, for example, allows users to search the California Code of Regulations. Many other state and federal agencies do the same.

But it's not enough, said Malamud. Many of the free codes carry notices banning downloading for commercial use or downloading, printing or more-complicated options. * * *

What's more, said California's Brown, some codes - including the California Code of Regulations - change frequently. Those changes are pushed out to people who purchase official subscriptions, but republishing sites like Malamud's may not be up to date.

Creating and updating the codes that help build safe schools, homes and offices is enormously complicated, said Michael Colopy, spokesman for the International Code Council. And the money from selling codes pays for that process.

"It is ultimately a disservice to the public if in the name of access to so-called free codes the very process that develops and enhances public safety is undermined," Colopy said. "The public is the big loser."

Malamud said he is sympathetic and willing to work with the ICC. But he argued that the ICC must grapple, like many industries, with the way the Internet is disrupting its business model.

"I think there is a lot of ways to keep that going without taking it out on the back of the kid in the pickup truck studying for the plumber's license," he said.

Posted by Marcia Oddi on Monday, September 29, 2008
Posted to General Law Related

Ind. Decisions - Transfer list for week ending Sept. 26, 2008

Here is the just issued transfer list for the week ending Sept. 26, 2008. It is 3 pages long.

Three transfers were granted last week. Two are discussed in this ILB entry from Tues., Sept. 23rd, the third is discussed in this entry from earlier today.

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.

Posted by Marcia Oddi on Monday, September 29, 2008
Posted to Indiana Transfer Lists

Law - "Neb. Officials: Parents Misusing Infant Drop-Off Law"

From NPR's Morning Edition this morning:

A new law intended to protect abandoned infants in Nebraska is having an unexpected effect. So far, 14 children — many preteens or teenagers — have been dropped off at Nebraska hospitals. State officials say parents fed up with raising unruly older children are misusing the law. Now they're calling on the legislature to change the law to restrict the age to younger children.
Listen here.

Indiana's safe haven law in discussed in this June 26th ILB entry.

Unlike other states, Nebraska's law safe haven has no maximum age limit. See this AP story from Sept. 26 headed "Neb. lawmakers consider revising 'safe-haven' law."

Indiana's upper limit is 45 days of age.

Posted by Marcia Oddi on Monday, September 29, 2008
Posted to General Law Related

Ind. Courts - "Interpreters in courtrooms a money issue"

James D. Wolf Jr. reports today in the Gary Post-Tribune:

VALPARAISO -- On Oct. 20, Vietnamese-born Len Huynh will stand trial for welfare and Medicaid fraud, but there's a complication: language.

Although she's been in U. S. foster homes since she was about 13, she's been tested as having a first-grade comfort level with English, according to her attorney, Eric Neff.

Huynh will have to provide her own translator, according to an Indiana Supreme Court ruling this year.

Since the Jan. 9 decision of Jesus Arrieta v. Indiana, translators for the accused are like expert witnesses or investigators in state felony cases, and that affects Porter County courts, mostly because they don't have to pay for trial translators.

"If the defendant has the ability to hire counsel, they have the ability to hire an interpreter," Judge Roger Bradford of Superior Court 1 said in explanation of the ruling.

Defendants who rely on a public defender can get a paid interpreter.

Otherwise, only when a jury can't understand either a defendant or a witness on the stand is the court obligated to pay, as Bradford's court did in the mid-August Arturo Garcia-Torres rape case.

When Garcia-Torres, 21, is sentenced on Nov. 14 on charges of rape, attempted rape and two counts of burglary, he'll have to find his own interpreter.

His attorney, Visvaldis Kupsis, used two volunteer translators for Garcia-Torres from missionary and church organizations.

Neff, however, is pricing translators for Huynh and noted she had one for a previous trial in Marion County. * * *

However, the courts have a resource for the pre-trial hearing where language becomes a barrier.

For initial hearings, where defendants find out what they're charged with, and for status hearings, the courts have had use of the Language Line.

The State Court Administrator began buying $25,000 worth of time at about $1.25 a minute from the California firm about two years ago, and usually the county courts use it.

"We get a lot of 'operating with no license,'" when the person has a Mexican license, Judge David Chidester of Superior Court 4 said.

Language Line is immediate, just a call to the company.

The court, which is the only county court at the Valparaiso courthouse, has used it about four times, mostly for Spanish, Court Reporter Becky Stowers said.

"It saves us from having to pay for an interpreter," Stowers said.

The firm also has interpreters on call around the world, including for indigenous, rare languages like those from small Mexican tribes, said Lilia Judson, executive director for the State Court Administrator.

The ILB has had a number of entries on the Jesus Arrieta v. Indiana decision.

Posted by Marcia Oddi on Monday, September 29, 2008
Posted to Indiana Courts

Ind. Courts - "Porter County to get juvenile drug court"

James D. Wolf Jr. reports today in the Gary Post-Tribune in a story that begins:

VALPARAISO -- The Porter County Juvenile and Family Drug Court begins its first session Oct. 8, as the third active juvenile drug court in the state.

It's an opportunity for those in the Porter County juvenile system to have the same substance abuse alternative as adults.

Seven juveniles and their families have qualified for the program, which will oversee juvenile court cases where drugs or alcohol were a factor.

The families then go into an intensive program.

"This is not just a juvenile drug court; it's a family drug court," Judge Mary Harper said. It won't have jurisdiction over siblings or other juveniles, but for parents, "the court can instill willingness through use of parental participation court orders."

Not only will parents need to participate in programs, they'll also have to take drug screenings.

"Most of the children who come through the court get their drugs from their parents or got started on drugs through their parents," she said.

Posted by Marcia Oddi on Monday, September 29, 2008
Posted to Indiana Courts

Ind. Law - It's the Law: Getting arrested for being with a lawbreaker

Ken Kosky's "It's the Law" column in the NWI Times this week focuses on getting arrested for being with a lawbreaker. It begins:

Most people realize they will go to jail if they are caught burglarizing a house or taking illegal drugs.

But what many people fail to consider is that they can be arrested just for being in the same car, house or other location with an offender.

For example, if police discover drug usage in a car, house or other location, the homeowner or driver can be charged with felony maintaining a common nuisance. But the people who are with the offender can be arrested on misdemeanor visiting a common nuisance charges.

Posted by Marcia Oddi on Monday, September 29, 2008
Posted to Indiana Law

Ind. Decisions - Court grants transfer in school finance case

The formal transfer list from last week should be out this morning, but the ILB has just received notice that another case was granted transfer on Sept. 24th:

Joseph Bonner et al v. Mitch Daniels et al, the school finance case, was granted transfer. Here is the ILB summary of the May 2, 40-page COA 2-1 opinion. And here is a follow-up entry from the next day. Here is the Supreme Court case number: 49 S 02 - 0809 - CV - 00525

Posted by Marcia Oddi on Monday, September 29, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Tuesday, Sept. 30th:

9:00 AM - Shawn E. Norris v. State - Norris pleaded guilty to child molesting in 2004, and then in 2007, petitioned for post-conviction relief on grounds of newly discovered evidence that he had not committed the offense. The Kosciusko Superior Court denied relief without a hearing. The Court of Appeals reversed, concluding that issues of material fact precluded summary disposition. Norris v. State, 881 N.E.2d 691 (Ind. Ct. App., 2/28/ 2008 - see ILB summary here), vacated. The Supreme Court has granted a petition to transfer the case, and has assumed jurisdiction over the appeal. Attorney for Norris: Nancy A. McCaslin, Elkhart, IN. Attorney for State: Arthur Thaddeus Perry, Indianapolis, IN.

9:45 AM - Filter Specialists, Inc. v. Dawn Brooks - After the Michigan City Human Rights Commission ruled that Filter Specialists engaged in racial discrimination when firing two employees and awarded back pay, Filter Specialists petitioned for judicial review. The LaPorte Circuit Court affirmed the Commission's decision. The Court of Appeals reversed and held that the Commission's decision was not supported by substantial evidence. Filter Specialists, Inc. v. Brooks, 879 N.E.2d 558 (Ind. Ct. App. 12/28/2007, a 2-1, 58-page opinion - see ILB summary here, about half-way down the page), vacated. The Supreme Court has granted a petition to transfer and has assumed jurisdiction over the appeal. Attorneys for Filer Soecialists: Timothy W. Woods and Brian Gates, South Bend, IN. Attorneys for Brooks and Weathers: Shaw R. Friedman,LaPorte, IN. Jay Lauer, South Bend, IN. Attorney for Michigan City Human Rights Commission: Lawrence W. Arness, Michigan City, IN .

Webcasts will be available here.

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

This Monday, Sept. 29th:

2:00 PM - State of Indiana, Bureau of Motor Vehicles vs. Ash, Inc. - Appellant Indiana Bureau of Motor Vehicles ("BMV") appeals the trial court's order granting Appellee Ash, Inc.'s motion for summary judgment. Ash, Inc. cross-appeals, challenging the trial court's award of damages. In 2000, BMV leased two properties from Ash, Inc. for a period of ten years. Pursuant to a cancellation clause in the original leases, BMV terminated the leases in 2005. Ash, Inc. filed suit against BMV alleging that the parties modified the leases in 2003 by eliminating the cancellation clause and that BMV breached the leases when it vacated the properties in 2005. Both parties filed motions for summary judgment. The trial court granted Ash, Inc.'s motion for summary judgment finding that BMV breached the modified leases when it vacated the properties. The trial court also found that Ash, Inc. was not entitled to future damages. The Scheduled Panel Members are: Judges Friedlander, Darden and Barnes. [Where: Indiana Supreme Court Courtroom]

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

This Monday, Sept. 29th:

6:00 PM - Paul L. Mishler vs. State of Indiana - Was there sufficient evidence to support convictions for two counts of Child Molesting? The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Mathias. [Where: I.U. Law School, Bloomington, Indiana] [For more info, see this ILB entry from Sept. 19th]

This Tuesday, Sept. 30th:

10:00 AM - James H. Bowden and Edward E. Bowden vs. City of West Lafayette, Indiana - The Bowdens appeal the trial court's grant of summary judgment in favor of the City of West Lafayette in the City's claim that the Bowdens violated city zoning ordinances by allowing too many tenants in one residential unit, submitting false rental affidavits, and operating a business on the property. After the Bowdens were charged with zoning violations, the trial court bifurcated the issues of injunctive relief and fines. A permanent injunction was entered after the trial court found that the Bowdens had committed zoning violations. Thereafter, the trial court granted summary judgment in favor of the City on the issue of fines. The Bowdens contend that the trial court erred in denying their request for a jury trial on the question of fines. The Scheduled Panel Members are: Judges Kirsch, Vaidik and Crone. [Where: Indiana Court of Appeals Courtroom]

11:00 AM - Adam Drake vs. State of Indiana - Appellant was charged with Battery, a Class D Felony and Resisting Law Enforcement, a Class A Misdemeanor. Did he knowingly waive his right to assistance of counsel? The Scheduled Panel Members are: Chief Judge Baker, Judges May and Brown. [Where: Vincennes University, Vincennes, Indiana ]

Posted by Marcia Oddi on Monday, September 29, 2008
Posted to Upcoming Oral Arguments

Ind. Gov't. - "Utah Tops 2008 Digital States Survey"

So reads the headline to this Sept. 16th story by Steve Towns in Government Technology. The report begins:

Utah topped the Center for Digital Government's 2008 Digital States Survey after delivering the clearest evidence yet that electronic delivery of government services has matured.

To reduce energy costs and carbon emissions, Utah Gov. Jon Huntsman Jr. announced in June that most state offices would be closed on Fridays. With more than 800 state government services online -- many boasting high user adoption rates -- Utah could close physical offices statewide without inconveniencing citizens.

Paul Taylor, chief strategy officer for the center and a member of the Digital States judging panel, said Utah's move signals a tipping point for electronic government services.

"Utah demonstrates that you can close offices on a normal office day, and people can still conduct real business with their government," said Taylor. "This is what the ATM did for the banking industry. It reduced branch hours, but cash was still available. Ten years later, we're reducing government office hours, but government's still available."

What about Indiana? It is hard to tell, because the announcement lists only the top 31 states (including 6 ties), and does not mention Indiana. The report itself is not yet available.

[Thanks to Indiana Daily Insight for the tip.]

Posted by Marcia Oddi on Monday, September 29, 2008
Posted to Indiana Government

Sunday, September 28, 2008

Law - Text of the bailout bill [Updated]

[Updated 9/29/08] Here is the 110-page, publicly accessible "Discussion Draft" posted by the WSJ.

Here is the same, via the NY Times, accompanied by a quick summary.

Posted by Marcia Oddi on Sunday, September 28, 2008
Posted to General Law Related

Ind. Law - "Law clerk job led to contacts with those shaping society"

IU’s Vice President of Engagement William Stephan writes today in the Indianapolis Star in an article that begins:

You might say I'm celebrating the 25th anniversary of my big break, which came late in the summer of 1983 as I began my third year at Indiana University School of Law at Indianapolis. That's when Marion Superior Court Judge Ken Johnson hired me as his bailiff and law clerk, opening the door to an often unpredictable, but ultimately rewarding career.

A talented jurist with a love for the law, curious mind, delightful sense of humor and strong Christian faith, Ken served as a role model, mentor and friend to a very green kid who had few connections in Indianapolis. My work in the court connected me with some of our community's finest attorneys, dedicated public officials and a wide assortment of colorful characters and personalities.

Posted by Marcia Oddi on Sunday, September 28, 2008
Posted to Indiana Law

Courts - "Kenctucky Prosecutor says plea deal punishes philanthropist Robert Clarkson in DUI case"

Not Indiana, but interesting. Andrew Wolfson of the Louisville Courier Journal has a long report today that begins:

Driving drunk on Hurstbourne Parkway on June 12, Louisville insurance executive Robert Clarkson smashed his 2008 Mercedes into a motorcycle, breaking the cyclist's pelvis and nearly taking his life.
Advertisement

The 67-year-old owner of the Robert H. Clarkson Insurance Co. was charged with DUI and felony assault -- the latter punishable by five to 10 years in prison.

But when Clarkson, who was not injured in the crash, appeared in Jefferson District Court the next month, the county attorney's office agreed to amend that felony to a violation -- careless driving -- which carries a maximum fine of $100.

Clarkson, a longtime philanthropist and civic booster, pleaded guilty to that charge, which is less than a misdemeanor, as well as to drunken driving, a traffic violation, and agreed to serve 30 days of home incarceration in his 6,877-square-foot, $1.7 million house in Anchorage.

Chief DUI prosecutor Bob Fleck said in an interview that he "agonized" over reducing the felony charge so drastically but decided to do it so the victim -- Rich Wiseman, 33, who may be permanently disabled -- can benefit from Clarkson's $3 million umbrella insurance policy.

Fleck said lawyers for Clarkson and Wiseman told him the policy excludes coverage for any acts that occur during commission of a felony or misdemeanor. He acknowledged that he did not read the policy himself. And court documents provide no details about the insurer.

Posted by Marcia Oddi on Sunday, September 28, 2008
Posted to Courts in general

Ind. Gov't. - Attorney General race heats up

Seth Slabaugh has a good story today in the Muncie Star-Press. Don't miss it. It concludes:

"I have literally represented over a thousand clients, and they hire me because I am a fighter and I win, and he's never prosecuted one case," Pence said of Zoeller. "Compare my resume to his and you make the decision. He was Dan Quayle's legislative aide for a long time and a sidekick to Carter for eight years."

As an attorney for the U.S. Department of Justice, Pence fought oil companies over gas price gouging in the 1970s. As a federal prosecutor, she "put a lot of people in jail" for security fraud, banking fraud, commodity fraud, government contract fraud, bribery and tax fraud.

Representing the state of Indiana, Pence won a $14.2 million settlement in 2001 from Guide Corp. of Anderson over the killing of millions of fish in the White River.

Indiana Republican Party Chairman Murray Clark said that for the past eight years "Greg Zoeller has had only one client: the state of Indiana.

"His experience and knowledge of the office cannot be matched. In stark contrast, Linda Pence is running on her experience as a litigator, one who represents clients against whom Greg Zoeller has been fighting on behalf of Hoosiers. Side by side it's abundantly clear Greg Zoeller has exactly the right background to do the best job as our next attorney general."

Posted by Marcia Oddi on Sunday, September 28, 2008
Posted to Indiana Government

Ind. Courts - "Finances a factor in capital punishment"

Doulgas Walker has a long story today in the Muncie Star-Press on the use of the death penalty in the various counties. Some quotes:

The role that a county's financial status plays in whether a local prosecutor pursues a death sentence for an accused killer apparently depends on whom you ask -- and perhaps where you live.

David Daly, Randolph County prosecutor since 1995, has yet to pursue capital punishment following one of his community's infrequent slayings.

In a largely agricultural county of about 25,000 people, Daly acknowledged whether Randolph County could afford the staggering costs -- perhaps going into the hundreds of thousands of dollars -- of staging a death-penalty trial might be a factor in any future decision.

"I would probably consider finances, unless it was the shooting of a judge or a police officer," which would likely make pursuit of a death sentence a foregone conclusion, he said.

Daly said it's likely he would consult with the county council about the financial impact of pursuing capital punishment.

As a young attorney, Daly spent five years working in the Marion County prosecutor's office, where some staff members specialized in death-penalty cases.

"They have so many more resources" than do prosecutor's offices in smaller counties, he noted.

That being the case, of 103 death sentences issued in Indiana since the state reinstituted capital punishment in 1977, a total of 45 have been issued in the state's two most populated counties, Lake (with 23 death sentences) and Marion (with 22).

Indiana's other 90 counties accounted for the remaining 58 death sentences.

(Many of those sentences were ultimately overturned on appeal, with most inmates being resentenced to lengthy, or life, terms. Over the past 31 years, 19 convicted killers have been executed in the Indiana State Prison's death chamber in Michigan City. About 15 inmates are now on death row.)

Posted by Marcia Oddi on Sunday, September 28, 2008
Posted to Indiana Courts

Law - "Companies increasingly adopt gay-friendly policies"

Dana Hunsinger reports today in the Indianapolis Star:

Large corporations are finding it increasingly important to create a welcoming environment for a diverse work force that makes it easier to recruit and keep talent and improve worker productivity.

Baker & Daniels is among the leaders in that regard. This month it was given a 100 percent rating in the Washington, D.C.-based Human Rights Campaign's Corporate Equality Index, which looks at fair treatment, practices and policies in the workplace for gay, lesbian, bisexual and transgender employees.

Baker & Daniels is the only law firm in Indiana to boast the rating and one of just three companies statewide. Cummins and Eli Lilly and Co. also made the list.

To earn a score of 100, companies had to go above and beyond, offering not only domestic partner benefits, but policies barring discrimination based on sexual orientation and gender identity. Companies on the list offer affinity groups and diversity training that covers sexual orientation and gender identity. They also have supportive gender transition guidelines. Some companies even pay for hormone replacement and surgery for transgender employees.

"Law firms across the country are starting to take these things more seriously, and I like to think we are progressive on this in Indiana," said Tom Froehle, chair and chief executive partner at Baker & Daniels. "This rating is just one piece of evidence we're ahead of the curve." * * *

While Indiana is progressing with three companies on the list, it isn't the best in the Midwest. This year, Illinois has 22 on the list; Ohio, nine; and Michigan, eight. Kentucky has one.

Posted by Marcia Oddi on Sunday, September 28, 2008
Posted to General Law Related

Courts - "The issues include the ability to sue over faulty but federally regulated drugs; dirty words on TV; and Navy sonar"

"Supreme Court opens new term" is the headline to David G. Savage's story today in the LA Times that begins:

WASHINGTON -- Against the backdrop of a tight presidential election that probably will shape its future, the Supreme Court goes back to work this week, facing cases on whether the government can forbid foul language on television, whether drug makers can be sued by injured patients, and whether environmentalists can protect whales off California from the Navy's sonar.

The court also will decide whether high officials can be held liable for violations of rights that took place on their watch. In a Los Angeles case, the justices will decide whether the former county district attorney can be sued by a man who was wrongfully convicted of murder based on the testimony of a jailhouse informer with a record of lying. And in a New York case, the justices will decide whether John Ashcroft can be held liable for the arrest and alleged mistreatment of Muslim immigrants after the Sept. 11 attacks, when he was attorney general.

On Monday, the justices will meet behind closed doors to sift through more than 2,000 appeal petitions that have piled up over the summer. They are expected to announce Tuesday that they will hear a handful of those cases.

On Oct. 6, the court will begin hearing oral arguments. First up is a case that tests whether the makers of "light" and "low tar" cigarettes can be sued for allegedly seeking to fool smokers into thinking these cigarettes are safer.

Posted by Marcia Oddi on Sunday, September 28, 2008
Posted to Courts in general

Saturday, September 27, 2008

Courts - "Pre-emption Looms Large in Supreme Court's Upcoming Business Cases"

So writes Marcia Coyle in her lengthy National Law Journal article to be dated Sept. 29th. It begins:

The Roberts Court's affinity for issues close to the heart of the nation's business community will continue into the October 2008 U.S. Supreme Court term as the justices take on major questions concerning federal pre-emption of state tort suits, environmental regulation, workplace discrimination, arbitration, pensions and antitrust.

The Court has agreed to decide 15 business-related cases thus far, noted Mark I. Levy, chairman of the Supreme Court and appellate advocacy practice in the Washington office of Atlanta's Kilpatrick Stockton. "That's a pretty impressive number, about 30 to 40 percent of the docket, and a number in line with what the Court had last term and where it was 10 years ago," he said. "That is a trend that is continuing."

The argument docket, which is likely to increase in number after the justices' summer conference today, is also notable for the type of business cases not there yet, but which have been something of a staple in recent terms: patent, securities and tax. And what was missing last term has returned: environmental cases -- significantly, four very different ones -- and an antitrust challenge.

"There also are a significant number of labor and employment cases on the docket," said Levy, adding, "I think that is a trend and probably reflects the underlying circumstances of our society and the legal system. We see a lot of ERISA [Employee Retirement Income Security Act] and age discrimination cases as the work force ages."

Further on in the article:
The four environmental cases on the docket thus far are:

Summers v. Earth Island Institute, No. 07-463, stemming from a lawsuit against the U.S. Forest Service over regulations limiting notice, appeals and public comment for certain activities.

Winter v. Natural Resources Defense Council, No. 07-1239, in which the Navy, which did not complete an environmental impact statement, challenges an injunction on sonar training exercises that could harm marine mammals.

Entergy Corp. v. EPA, nos. 07-588, -589, -597, raising the issue of whether the Clean Water Act authorizes the Environmental Protection Agency to weigh costs and benefits of systems to be used at water cooling structures rather than using the most advanced technology available.

Coeur Alaska Inc. v. Alaska Conservation Group, nos. 07-984, -990, in which a gold mining company and Alaska challenge a bar against an Army Corps of Engineers permit for discharging toxic tailings into the Lower Slate Lake.

John Echeverria, director of Georgetown University Law Center's Environmental Law & Policy Institute, noted that environmental groups won in the lower courts in all four cases and he voiced pessimism about the justices' rulings.

"The Supreme Court increasingly has become the place where environmental laws go to die, and the coming term doesn't look like it's going to be any more positive for the environment," he said. "Most interesting," said Echeverria, is Winter -- a dispute between national security concerns and environmental protection -- and Entergy, raising a "fundamental question" about cost-benefit analysis.

Posted by Marcia Oddi on Saturday, September 27, 2008
Posted to Courts in general

Friday, September 26, 2008

Ind. Courts - Two Hoosiers on the 7th Circuit? [Corrected - Three Hoosiers]

Maureen Groppe of the Star Washington Bureau is reporting:

WASHINGTON -- President Bush has nominated Indiana judge Philip P. Simon to the 7th U.S. Circuit Court of Appeals, the White House announced Friday.

Simon has been a federal district court judge for Northern Indiana since 2003.

If confirmed by the Senate, Simon would replace Judge Kenneth F. Ripple who has retired.

The 7th Circuit is the last stop before the U.S. Supreme Court for cases from Indiana, Illinois and Wisconsin.

Simon earned his law degree from the Indiana University School of Law in 1987. His professional experience includes heading the criminal division for the U.S. Attorney's Office for the Northern District of Indiana and teaching at Valparaiso University School of Law.

Already on the Court, Judge Tinder. Plus Judge Manion, recently retired, but continuing to write opinions.

[Corrected at 4:29 PM] Just received this message from "msk" - "I realize that where I live (Northwest Indiana - Rensselaer) is not considered an actual part of the Hoosier State, perhaps because we are part of the Chicago metropolitan area ---- but I have not given up my Indiana residency. "

So here is the ILB's corrected copy, with apologies: Hoosiers already on the Court, Judge Kanne and Tinder. Plus Judge Manion, recently retired, but continuing to write opinions.

Posted by Marcia Oddi on Friday, September 26, 2008
Posted to Indiana Courts

Courts - "If you cannot afford an attorney, one will be appointed for you."

The Brennan Center on 9/16/08 published the 46-page "Eligible for Justice: Guidelines for Appointing Defense Counsel.". From the description:

For more than four decades, the Supreme Court has been clear: the Constitution requires states to provide a lawyer to people facing criminal charges who are unable to afford their own counsel. Unfortunately, neither the Supreme Court, nor any other source, has detailed how communities should determine who can afford counsel and who cannot. As a result, eligibility is determined differently almost wherever one looks: some communities don't have any official screening processes at all, while others apply widely varying criteria and procedures.

The result has been a policy disaster.

Without fair standards for assessing eligibility, some people who truly cannot afford counsel without undue hardship are turned away.
This may be because a relative posted bond for them, or they have a house or a car that they could sell to pay for a lawyer. pull quoteYet these arbitrary assumptions about who can pay and who cannot are devastating to families and communities. Families that truly cannot afford to pay for counsel may have to go without food in order to pay legal fees. Wage-earners forced to sell the vehicle they use to commute to work, in order to pay for counsel, may lose their jobs. People who simply cannot come up with the necessary resources end up trying to represent themselves, often pleading guilty because they are not aware of their rights.

On the other hand, some individuals receive counsel who should not.
In these times of fiscal austerity, every dollar spent representing someone who can afford to pay for counsel robs resource-poor indigent defense systems of money that could be better spent representing people who are truly in need. The result is that indigent defense systems already stretched to their breaking points—with enormous caseloads for each attorney, and no funding for essential functions such as investigators and experts—are stretched further. This, too, results in constitutional violations, as people entitled to adequate representation end up getting a lawyer who cannot provide them with a meaningful defense.

Finally, without clear guidelines for how to determine who should be appointed counsel, decisions whether to appoint counsel hang on the serendipity of where an individual lives, the personal characteristics of the decision-maker, institutional conflicts of interest, or any of the other improper factors that substitute for more reliable standards and procedures.

Re Indiana's standards, see the 2006 publication, "Standards for Indigent Defense Services in Non-Capital Cases."

I'm told that in at least some Indiana counties little effort is made to determine eligibility before a public defender is assigned. The ILB would be interested in comments from readers on this point.

See also this Sept. 19th ILB entry headed: "Suits, Legislation Over a Civil Right to Counsel Grow Across U.S." One of the stories cited in the entry reports: "CROWN POINT | Support is growing among Lake County officials to thin out the ranks of lawyers defending at public expense indigent people accused of minor crimes."

Posted by Marcia Oddi on Friday, September 26, 2008
Posted to Courts in general | Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In Samuel Hardley v. State of Indiana , a 17-page, 2-1 opinion (including a 6-page dissent), Judge Bradford writes:

Hardley contends that the State failed to produce sufficient evidence to sustain his conviction for criminal confinement and that that conviction and his battery conviction violate prohibitions against double jeopardy. The State cross-appeals, contending that the trial court erred in ordering sentences Hardley received in two different cause numbers to be served concurrently. We affirm in part, reverse in part, and remand with instructions. * * *

Mathias, J., concurs.
Sullivan, S.J., dissents with opinion. [that concludes] For the reasons stated I would vacate the battery conviction but would affirm the conviction and sentence upon the confinement conviction and would also affirm the concurrent sentences imposed in the disparate cause numbers.

In Zeus B. Eaton v. State of Indiana , an 8-page opinion, Judge Bradford writes:
Appellant/Respondent Zeus Eaton challenges the trial court‟s partial revocation of his probation by alleging that he did not knowingly, intelligently, and voluntarily waive his right to counsel in the probation revocation proceeding. We reverse and remand. * * *

We conclude that the record does not establish that Eaton waived his statutory right to counsel. We further conclude that, even if he had waived his right to counsel, he was not adequately advised before doing so.

NFP civil opinions today (3):

Gaia Wines, Inc. and Angee D. Walberry, et al. v. Heartland Community Bank, et al. (NFP) - "Because we conclude that the record would have supported a finding that Heartland performed in a reasonable time, we therefore affirm the trial court’s grant of Heartland’s motion to enforce the Agreement and its denial of the Gaia parties’ motion to correct error. We dismiss the appeal in part and affirm the judgment of the trial court in part."

Gordon and Phyllis Broyles v. The Boad of Commissioners of Henry Co. (NFP) - "The Broyleses additionally claim that the trial court erred in failing to award interest pursuant to Indiana Code section 32-24-1-11(d)(6) (2002). Because this issue was not presented to the trial court in the proceedings below, we deem it waived and decline to consider it for the first time on appeal. The record demonstrates that the question of interest was not argued at trial and that the trial court made no findings or conclusions on this issue. Indeed, apart from a single reference to a proposition of law regarding interest awards, the Broyleses proposed no findings or conclusions relating to this topic, nor did they suggest or include an award of interest in their proposed judgment. The Broyleses’ claim on this issue is therefore waived. See Poulard v. Lauth, 793 N.E.2d 1120, 1123 (Ind. Ct. App. 2003).

"III. Conclusion. Having concluded that the Broyleses’ challenges to the trial court’s award of damages are without merit, and having determined that their claim for interest is waived, we affirm the
trial court’s award in the amount of $45,007."

Jamie Wicker v. Rodney McIntosh, Rebecca Goebel, et al. (NFP) - "According to Wicker‟s complaint, on September 13, 2003, he was riding in a golf cart driven by Rodney and/or Rebecca when he was thrown from the cart, suffering severe and permanent injury. * * *

"Wicker contends that the trial court abused its discretion in dismissing his claim pursuant to Indiana Trial Rule 41(E) * * * We will reverse a Trial Rule 41(E) dismissal for failure to prosecute only in the event of a clear abuse of discretion. * * *

"Under the circumstances of this case, we conclude that the trial court abused its discretion in immediately imposing the harshest possible sanction of dismissing Wicker‟s lawsuit altogether. While we certainly do not condone the dilatory tactics of Sciantarelli, we believe that dismissal would unfairly penalize Wicker for the actions of his attorney. * * *

"Finally, we believe that dismissal under the circumstances of this case would clearly run counter to Indiana's oftstated policy of having cases decided on their merits whenever possible. In summary, the effect of a dismissal here would be to punish Wicker for the sins of his attorney, a result we do not wish to endorse. We reverse and remand for reinstatement of Wicker‟s cause of action."

NFP criminal opinions today (4):

Damian Jones v. State of Indiana (NFP)

David Farrell v. State of Indiana (NFP)

Walter Rowley v. State of Indiana (NFP)

Bruce L. Morgan v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 26, 2008
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - When are meeting minutes public documents?

An interesting question was posed yesterday on the national FOIA listsevr - When are meeting minutes public documents? The details:

Q - We have an odd law in Utah that keeps meeting minutes as "protected" documents until they are officially approved by the government body. I need examples of states where the minutes are readily available after a meeting and are considered a public document.
This is an issue I have run into in Indiana on occasion. Here are some of the answers posted to the listserv from other states - these are all quotes:
A - Oklahoma’s attorney general, Drew Edmondson, told The Oklahoman in 2005 that minutes become records available to the public when they are first created. He said public bodies often mistakenly believe they can withhold minutes from the public until the minutes are approved by the public body. “It’s a document, and once it’s created, it’s subject to the Open Records Act,”

A - In Kansas meeting notes, recordings and draft versions prior to approval by the governing body would be drafts. Drafts normally are excluded from “mandatory disclosure” under the Kansas Open Records Act. I suppose even drafts would be subject to “mandatory disclosure” if they were to be cited during an open meeting. Meeting minutes would not be considered such until approved by the governing body as accurately recording the previous meeting’s discussions and decisions. The Utah law does not seem odd at all to me. Sometimes, errors happen, especially if a meeting is not recorded on tape or digitally and the clerk is taking notes only – the governing body should have an opportunity to correct errors so that official minutes accurately document its decisions and how it reached them. No confusion or dispute on this that I know of here in Kansas.

A - I've heard this issue come up every now and then in different states, and it's all over the map. From what I can tell, and I might not have all of this correct, some states require by law that the minutes be recorded and provided to the public promptly, within a reasonable time, or without delay (e.g., California, Florida, Indiana, Alabama, Louisiana, New Jersey, West Virginia). In Arizona minutes or a recording are required to be provided to the public three working days after the meeting. Some states require disclosure within 30 days. In Hawaii, Mississippi and Idaho, draft minutes (or even "raw notes" in Idaho) are specifically named as subject to public disclosure. In Illinois, it's public within seven days of formal approval by the body, and in Michigan they separate between draft (eight days) and approved minutes (five days from approval).

What about Indiana? From opinions of the Indiana Public Access Counselor:
4/16/04 (04-FC-45) - "The draft minutes of a governing body are a public record of the public agency and are thus subject to disclosure upon request. There is no exemption available to withhold production of a public record because it is in “draft.” Accordingly, if your request sought the unapproved or draft minutes, the Trustee would be obligated to provide them, and because they are apparently immediately available, the Trustee could not reasonably be heard to delay production."

2/28/05 (05-FC-23) - The Department wrote you in denying you the record that “Minutes to Board meetings are not public records until approved by the Health Board, per Dr. Louck.” This determination that unapproved minutes are not public records was not consistent with the plain language of the APRA. Hence, the Department’s denial of the rough draft minutes or notes of the meeting was in violation of the APRA. You had the right to inspect the notes of the meeting and to copy them. As this office has frequently stated, a public agency may mark draft minutes as “draft” or “subject to approval” to assuage the concern that its draft minutes will be misconstrued as adopted minutes of the governing body.

4/10/06 (06-FC-51) - "Minutes or memoranda from a public meeting, even in draft form, do not fit the definition of “advisory or deliberative material that are expressions of opinion.” Draft minutes are statements of what transpired at a public meeting. This office has stated many times that such draft minutes are not exempt from disclosure. The minutes may not be denied merely because they have not been approved by the Board. The refusal to provide you with an electronic copy of unapproved minutes constituted a denial of access in violation of the Access to Public Records Act."

6/17/08 (08-FC-134) - To the contrary, my predecessors and I have repeatedly advised and opined that draft documents are public records just as completed or finalized documents are public records. See Opinions of the Public Access Counselor 01-FC-65 and 07-FC-45 for a discussion of draft meeting minutes. The City is free to mark the list with a “draft” designation, but the City may not withhold the list on the basis it is a draft or unapproved document.

Posted by Marcia Oddi on Friday, September 26, 2008
Posted to Indiana Government

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

In U.S. v. Derrik Hagerman and Walbash Env. Tech. (SD Ind., Judge Hamilton), a 5-page opinion, Judge Posner dismisses the appeal, writing:

The defendants were convicted of criminal violations of the Clean Water Act, and Wabash was ordered to pay $250,000 in restitution to a federal Superfund account and was placed on probation (18 U.S.C. § 3563) for five years. Corporate probation has been called “a flexible vehicle for imposing a wide range of sanctions having the common feature of continued judicial control over aspects of corporate conduct.” * * * The government, contending that Wabash had violated the conditions of probation by refusing to begin paying the restitution (and a $4,000 special assessment), that had been ordered, petitioned the district court for relief, as authorized by 18 U.S.C. § 3563(c). The court dismissed the petition after the government and Wabash resolved their differences by Wabash’s agreeing to start paying restitution and to furnish specified information concerning the company’s finances. Nevertheless, Wabash has filed an appeal to this court from the order of dismissal, as has its codefendant, Hagerman.

Hagerman’s appeal must be dismissed because he was not a party to the probation-violation proceeding and no order naming him was entered. Wabash’s appeal must also be dismissed, apart from doubts that Wabash was aggrieved by the dismissal of the probation-violation proceeding. Wabash has no lawyer in this court (it was represented in the district court by a lawyer who has since withdrawn). Hagerman, who is not a lawyer, claims the right to represent Wabash because he “is not only a major stockholder [presumably he means ‘member,’ since Wabash is an LLC, not a corporation] but is [also the] current President of [Wabash].” And it was Hagerman who filed this appeal on behalf of Wabash as well as himself. He complains about the deal that Wabash struck with the government, making this like an appeal by a party that agrees to a settlement but later thinks better of his decision and tries to get the appellate court to rescind it.

A corporation is not permitted to litigate in a federal court unless it is represented by a lawyer licensed to practice in that court. * * * A limited liability company is not a corporation, but it is like one in being distinct from a natural person. * * *

We have not had occasion to rule on whether, like a corporation, an LLC can litigate only if represented by a lawyer. * * *

[The opinion concludes that "the privilege of pro se representation" is denied to corporations, limited liability companies, and partnerships.]

Posted by Marcia Oddi on Friday, September 26, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "County abortion regulations closely watched in Indiana"

Judy Keen reports in USA Today:

Abortion opponents in Indiana are encouraging passage of regulations at the county level that abortion-rights groups say might be the leading edge of a nationwide effort to limit access to the procedure.

Two Indiana counties have passed ordinances that require doctors who perform abortions to have the authority to admit patients at local hospitals. A third county is considering a similar measure.

Some abortion clinics are staffed by doctors who are based elsewhere and are unlikely to have admitting privileges at local hospitals, so the rules present a new obstacle for abortion providers.

"Absolutely, it's a new strategy," says Mike Fichter, president of Indiana Right to Life. The ordinances ensure that women with complications after abortions can quickly get medical care, he says, but he hopes they also make abortions harder to get. * * *

Action so far in Indiana:

• Vanderburgh County commissioners last month voted unanimously to require doctors who perform abortions in the county to have admitting privileges there or in an adjacent county.

The county has no abortion clinic. Mary Ellen Van Dyke of Vanderburgh County Right to Life, says the measure was proposed after the Indiana Legislature failed to pass a similar law this year.

• Dubois County, which has no abortion clinic, passed the regulation last month. "We want to get out ahead of it where we can prevent" one from opening, says Commissioner Larry Vollmer.

• In Allen County, where there is an abortion clinic staffed by a doctor from another county, commissioners haven't scheduled a vote. They are considering broadening a proposed ordinance to include all "itinerant" medical procedures such as laser eye surgery, Commissioner Nelson Peters says.

If Allen County votes to require hospital admitting privileges, her group would consider legal action, Mizrahi says. The group says the ordinance would encroach on state authority.

For background, see these ILB entries on Vanderburgh County, and these on Allen County from 9/22/08, 9/5/08, 9/4/08 and 9/3/08.

Posted by Marcia Oddi on Friday, September 26, 2008
Posted to Indiana Law

Ind. Courts - "Judge to resume Muncie-Delaware County Drug Task Force hearings"

Rick Yenser has another report today in the Muncie Star-Press on issues surrounding the Muncie-Delaware County Drug Task Force property seizures. Here is a list of some earlier ILB entries.

Posted by Marcia Oddi on Friday, September 26, 2008
Posted to Indiana Courts

Thursday, September 25, 2008

Ind. Courts - "New Albany attorney sentenced to year in prison for sexual battery" [Updated]

Matt Thacker of the New Albany News & Tribune reports in a lengthy story that begins:

A New Albany attorney was sentenced to one year in prison after a Harrison County judge threw out his plea agreement and accused him of trying to “manipulate the system.”

Anthony J. Wallingford, 39, pleaded guilty Wednesday night to class D felony sexual battery for touching a 16-year-old girl’s breasts with his hands and mouth in April 2007 in Elizabeth. Harrison County Superior Court Judge Roger Davis sentenced Wallingford to one year in prison and two years probation.

In the original plea agreement filed Aug. 8, Wallingford pleaded guilty to the same charge but could not have been sentenced to more than 120 days in jail.

Davis said he was prepared to accept the plea until he read the pre-sentencing report. In the report, a probation officer said Wallingford told her that he was “not really guilty” and that he “didn’t grab (the victim) for sexual gratification” as is required for a sexual battery conviction.

Here is a list of earlier ILB entries on this case.

[Updated 9/26/08] Here is Harold J. Adams' story today in the LCJ.

Posted by Marcia Oddi on Thursday, September 25, 2008
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP); Tax Court issues one

For publication opinions today (1):

In Emma Smith v. Gary Public Transportation Corp. , a 7-page opinion, Judge Barnes writes:

Smith raises several issues. However, we address one dispostive issue, which we restate as whether the trial court properly granted GPTC’s motion to dismiss because it lacked subject matter jurisdiction. * * *

“The Indiana Worker’s Compensation Act (“the Act”) provides the exclusive remedy for recovery of personal injuries arising out of and in the course of employment.” Although the Act bars a court from hearing any common law claim brought against an employer for an on-the-job injury, it does permit an action for injury against an “other person” provided the third-party is neither the plaintiff’s employer nor a fellow employee.

Smith contends that although GPTC was her employer, she was permitted to sue GPTC because it was acting as an “other person” by self-insuring for purposes of uninsured and underinsured motorist liability. * * *

We conclude that a self-insured employer is not an “other person” for purposes of IC 22-3-2-13. In addition to limiting suits against employers and fellow employees, this statute also allows an employer or worker’s compensation insurer to attach a lien to any damages the injured employee received from the third party. “The purpose of the statute is to make the employer or its carrier whole and prevent a double recovery by the worker.” Walkup, 702 N.E.2d at 715. Requiring GPTC to pay twice—once as an employer and once as an insurer—does not advance the policy of Indiana Code Section 22-3-2-13. Further, if we were to allow Smith to recover underinsured motorist payments directly from GPTC, GPTC would be entitled to a lien on those proceeds so as to prevent a double recovery for Smith, who has already received worker’s compensation benefits. We do not interpret the statute in that way. * * *

GPTC is not an “other person” pursuant to IC 22-3-2-13. Therefore, the trial court properly granted GPTC’s motion to dismiss based on the lack of subject matter jurisdiction. However, because the trial court lacked subject matter jurisdiction it could not address the merits of the case and grant GPTC’s motion for summary judgment. We affirm in part and reverse in part.

NFP civil opinions today (2):

Eric Goetz, Eric Goetz Master Building, Inc. v. Christopher and Beth Boyer (NFP) - "The Boyers petition for rehearing * * * The Boyers point out on rehearing that our recalculation of the markup of the contract price is erroneous. * * *

"Although this recalculation makes it unnecessary for the reversal in part and remand, our interpretation of the contract and substance of the opinion does not change. We affirm the substance of our earlier decision, but due to this recalculation the reversal in part is no longer necessary. The opinion of the trial court is affirmed in all respects. We affirm."

William Pettit v. Steve Webb and AMCO Ins. Co., d/b/a Allied Property and Casualty Ins. Co. (NFP) - "Issue. Whether an action for spoliation of evidence can be maintained against an alleged tortfeasor’s liability insurance company for failing to preserve evidence that was in the possession of the alleged tortfeasor.

"Here, Webb, the named defendant to the underlying litigation, is the person who altered or destroyed the relevant evidence. Thus, it is a first party, the alleged tortfeasor, who allegedly destroyed or discarded evidence. As noted in Gribben, the remedies under Indiana law for first-party spoliation include an inference that the spoliated evidence was unfavorable to the party responsible, various sanctions under Indiana Trial Rule 37(B), criminal prosecution, and various penalties including disbarment if attorneys are involved in the destruction or concealment of evidence. Id. at 351. Because Pettit will have remedies available to him if spoliation by Webb is established, we decline the invitation to expand the language of Thompson and instead choose to follow the language and direction of our Supreme Court in Gribben."

NFP criminal opinions today (6):

Ronald M. Murphy v. State of Indiana (NFP)

Myron Larry v. State of Indiana (NFP)

Kenneth Stewart v. State of Indiana (NFP)

DaShawn Works v. State of Indiana (NFP)

Robert Spears v. State of Indiana (NFP)

Timothy Dion Hampton v. State of Indiana (NFP)

Tax Court's for publication opinions today (1):

SAC Finance, Inc. v. Indiana Dept. of State Revenue - "The issue for the Court to decide is whether SAC is entitled to the remainder of its requested sales tax refund pursuant to Indiana Code § 6-2.5-6-9. * * *

"Based on the foregoing reasons, SAC cannot write off as bad debt more than what it actually paid for the installment contracts at issue. As a result, summary judgment is GRANTED in favor of the Department and AGAINST SAC. The parties shall bear their own costs."

Posted by Marcia Oddi on Thursday, September 25, 2008
Posted to Ind. App.Ct. Decisions

Law - "In scattered cases, state regulation of reproductive rights remains a part of the legal culture"

Dan Slater has an interesting article today in the Wall Street Journal, beginning with discussion of forced sterilization for the "feeble-minded" in earlier times and then continuing:

Following the horrors of eugenics in Nazi Germany, the sterilization movement dwindled.

Yet in scattered cases, state regulation of reproductive rights remains a part of the legal culture -- now amid very different circumstances. Just this month, for example, a judge in Texas ordered a woman, as a condition of her probation, to stop having children after her daughter was badly abused. The order, by Judge Charlie Baird, is difficult to enforce and possibly unconstitutional. It reflects the willingness of some judges to push the limits of punishment in ways that hark back to a time before a series of landmark Supreme Court decisions elevated individual rights.

In other areas, too, the impulse behind a law can linger, in society and in the courtroom, long after the law itself has fallen into disfavor or disuse. For a long time, the state asserted control over who could marry whom. It was only in 1967 that the Supreme Court struck down Virginia's anti-miscegenation law, giving constitutional protection to interracial marriage -- and creating a broader social assumption that marriage in general was a private matter. Three decades later, many states still resist same-sex marriage.

Similarly, the rationale behind forced sterilization is making its way back into the courts in the form of no-pregnancy orders, in small numbers and often overturned on appeal. In 1999, after finding a mentally retarded woman guilty of neglecting a dependent, in connection with the death of her infant son, a state court in Indiana ordered her not to become pregnant as a condition of her eight-year probation. A state appeals court struck down the no-pregnancy condition, ruling that it violated the woman's "privacy right of procreation" and that the goal of preventing injury to a child could be served by less-restrictive means.

Posted by Marcia Oddi on Thursday, September 25, 2008
Posted to General Law Related

Law - "Tech activist takes on governments over 'copyrighted' laws"

Updating these earlier ILB entries on making building codes and similar documents available online, CNET's Declan McCullagh has a great column today that begins:

SEBASTOPOL, Calif.--From a corner of a nondescript office building at the edge of wine country, Carl Malamud is masterminding an electronic guerrilla war against governments across the nation.

Most geeks tend to be a bit obsessive, and Malamud is no exception. He's devoted his life to liberating laws, regulations, court cases, and the other myriad detritus that governments produce daily, but often lock up in proprietary databases or allow for-profit companies to sell for princely sums.

Posted by Marcia Oddi on Thursday, September 25, 2008
Posted to General Law Related

Law - Article titled "What states can and should do to reduce illegal immigration"

Updating this ILB entry from Sept. 18th, headed "Courts - 9th Circuit upholds Arizona immigration law imposing employer sanctions," a law professor, Kris W. Kobach (University of Missouri at Kansas City - School of Law) has written a law journal article, "Reinforcing the Rule of Law: What States Can and Should Do to Reduce Illegal Immigration" (Georgetown Immigration Law Review, Vol. 22, 2008). It is available via SSRN. Prof. Kobach indicates that he served as "Attorney General Ashcroft’s chief adviser on immigration law and border security" and is currently "counsel advising the state of Arizona in the defense of illegal-immigration-related statutes and ordinances."

Particular interesting is the discussion beginning at p. 7 of the article. A quote:

What follows is a summary of eight areas in which states or cities can constitutionally act in the field of immigration. Those eight areas are:
A. Denying public benefits to illegal aliens;
B. Denying resident tuition rates to illegal aliens;
C. Prohibiting the employment of unauthorized aliens;
D. Enacting state-level crimes that mirror federal immigration crimes;
E. Enacting state-level crimes against identity theft;
F. Providing state and local law enforcement assistance to ICE;
G. Presuming illegal aliens to be flight risks for bail purposes;
H. Denying driver licenses to illegal aliens.
In all of these areas, there are three important restrictions that must be built into any state statute if it is to conform to the requirements of federal law and avoid preemption: (1) the statute must not attempt to create any new categories of aliens not recognized by federal law; (2) the statute must use terms consistent with federal law; and (3) the statute must not attempt to authorize state or local officials to independently determine an alien’s immigration status, without verification by the federal government.

Posted by Marcia Oddi on Thursday, September 25, 2008
Posted to General Law Related

Ind. Law - More on: Brush up on your election law knowledge

Updating yesterday's ILB entry on elections, the Greencastle Banner Graphic has a comprehensive story today headed "Various deadlines for election nearing."

Posted by Marcia Oddi on Thursday, September 25, 2008
Posted to Indiana Law

Ind. Decisions - "Court: OK to use seized evidence in murder trial"

The Indianapolis Star has a brief story today on yesterday's COA decision in the case of Kenneth Allen v. State of Indiana (see ILB summary here - 2nd case):

The Indiana Court of Appeals on Wednesday upheld a ruling allowing prosecutors in the Kenneth Lee Allen death penalty case to use evidence seized from a house in his trial.

Allen, 32, is accused of killing his mother and grandparents and burying them in concrete in the house's basement in 2005. His attorneys argued that an initial police search of the Eastside home, owned by his grandparents, was illegal because the officer lacked a warrant.

Marion Superior Court Judge Tanya Walton Pratt ruled against Allen in August 2007, putting his trial on hold while he appealed. The appeals court agreed with Pratt, saying Allen lacked standing to challenge the search because he was a trespasser.

Posted by Marcia Oddi on Thursday, September 25, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Ruling in Plainfield's case considered key for Indiana communities with similar rules"

The COA decision yesterday in the case of John Doe v. Town of Plainfield, Indiana (see ILB summary here) is a front-page story today in the Indianapolis Star. Bruce C. Smith reports in a story that begins:

Plainfield won a key court decision Wednesday in the fight over banning sex offenders from parks, a case closely watched by other Indiana cities and towns with similar bans.

Although courts struck down an Indianapolis ban two years ago, Plainfield's ordinance is the latest in a series of narrower measures to survive court challenges. Lafayette and Michigan City enacted bans against individual sex offenders that have withstood court review.

Greenwood enacted a ban similar to Plainfield's two years ago, and a suit over the constitutionality of that ordinance has been on hold pending the outcome of the Plainfield case. Another suit is pending concerning a ban in Jeffersonville.

The Indianapolis ordinance prohibited convicted sex offenders within 1,000 feet of a park or school. A federal judge found the ordinance overly broad, noting there were few places in the city that were not within 1,000 feet of a park, a school, a playground or other children's gathering spot.

Indianapolis officials chose not to appeal the ruling, and the City-County Council has not discussed trying to draw up a new version that might survive in the courts.

On Wednesday, the appeals court, in a unanimous ruling, said that while Plainfield's ban does have a punitive aspect, the ordinance did not violate guarantees to the rights of life, liberty and the pursuit of happiness under the Indiana Constitution. The ruling upholds a March decision by Hendricks Superior Court Judge Robert Freese in favor of Plainfield.

Here is a list of earlier ILB entries on the Plainfield case. And from Oct. 6, 2006, here is an ILB entry on the Indianapolis ban, headed "Federal Court Rules Sex Offender Ordinance Unconstitutional."

ILB
entries re other cities mentioned: Greenwood, 8/6/08; Jeffersonville - a long list; Michigan City - 9/5/06 7th Circuit; Lafayette - 2/24/05 7th Circuit.

Posted by Marcia Oddi on Thursday, September 25, 2008
Posted to Ind. App.Ct. Decisions

Wednesday, September 24, 2008

Law - "Authentic Legal Information in the Digital Age"

The American Association of Law Libraries has a long and very useful online resource collecting together many articles, including a number of mine, on the question: "Are government-hosted legal resources on the Web official and capable of being considered authentic?" The collection of materials is updated frequently.

Posted by Marcia Oddi on Wednesday, September 24, 2008
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 5 today (and 7 NFP)

Five "for publication" opinions today, including one holding constitutional an ordinance banning registered sex offenders from Plainfield's park:

In John Doe v. Town of Plainfield, Indiana , a 20-page opinion, Judge Robb writes:

The Town of Plainfield, Indiana (“Plainfield”), enacted Ordinance 16-2002 (the “Ordinance”) prohibiting individuals such as John Doe, who are listed on the Indiana sex and violent offender registry, from entering Plainfield’s parks and recreation areas. On appeal from the trial court’s grant of summary judgment in favor of Plainfield (as well as the denial of Doe’s motion for summary judgment), Doe argues the Ordinance violates Article I, Sections 1, 12, and 24, of the Indiana Constitution on its face. Concluding that the Ordinance does not violate any of these constitutional provisions on its face and that the trial court therefore properly granted summary judgment in favor of Plainfield and against Doe, we affirm. * * *

Section 18 does not violate Article I, Sections 1, 12, and 24, of the Indiana Constitution on its face. As such, the trial court properly granted summary judgment in favor of Plainfield and against Doe.

For more on this case, start with this ILB entry from March 30th.

In Kenneth Allen v. State of Indiana, a 14-page opinion on an interlocutory appeal, Judge Crone writes:

In this interlocutory appeal of the trial court’s denial of his motion to suppress evidence, Kenneth Allen raises the following dispositive issue: Whether he has standing to assert an unreasonable search and seizure claim pursuant to Article 1, Section 11 of the Indiana Constitution. We affirm. * * *

Allen cannot establish standing to bring an Article 1, Section 11 claim merely by showing that he had “control” and “possession” over the Linwood residence. * * *

Allen was a trespasser. He did not have the owners’ permission to be on the premises. Any control and possession of the Linwood residence exercised by Allen was obtained by illegal means, i.e., the alleged murder of the rightful owners. He has made no showing that he had a legitimate right to control and possess the Linwood residence. Any expectation of privacy he had is not one that society is prepared to recognize as reasonable, and therefore he did not have an objective expectation of privacy in the premises. Accordingly, we conclude that the trial court did not err in finding that Allen lacked standing to challenge the searches of the Linwood residence pursuant to Article 1, Section 11 of the Indiana Constitution. [Allen is accused of killing his mother and grandaprents and burying them in the Linwood residence of the grandparents.]

In Dwight G. Fry v. Indiana Dept. of Correction, et al., a 7-page opinion, Sr. Judge Hoffman writes:
Plaintiff-Appellant Dwight G. Fry (“Fry”) appeals from the trial court’s order entering a default judgment in favor of Defendant-Appellee Indiana Department of Correction (“DOC”). We dismiss this appeal.

Although Fry raises an issue for our review, we find the following issue to be dispositive: whether Fry’s appeal should be dismissed because he failed to comply with the Indiana Rules of Appellate Procedure. * * *

The default judgment order was entered on January 14, 2008. Fry filed his notice of appeal on February 14, 2008, thirty-one days after the order was entered. Ind. Appellate Rule 9(A) provides that appeals from final judgments must be filed within thirty days after the entry of a final judgment. The rule provides that the time period is extended if a motion to correct error has been filed. However, the motion to reconsider is not the same as a motion to correct error and does not work to extend the time period for filing the notice of appeal. Ind. Trial Rule 53.4(A); Ind. Appellate Rule 9(A)(1). If the trial court has issued a final judgment, the party must file a motion to correct errors rather than a motion to reconsider.

In Audrey Triplett v. USX Corp. , a 27-page appeal from the state workers' compensation board, Judge Crone writes:
Audrey Triplett appeals the decision of the Full Worker’s Compensation Board (“the Board”) finding that she failed to establish that she was permanently and totally disabled, that she sustained a five-percent permanent partial impairment (“PPI”) rating from an at-work accident that occurred September 20, 2001 (“the Accident”), and that she failed to prove that she sustained vertigo, or any resulting impairment from vertigo, as a result of the Accident. We affirm.
In Nick and Patricia Peterson v. Robert and Karen Ponda , an 11-page interlocutory appeal, Judge Crone writes:
Nick Peterson and Patricia Peterson (collectively, “the Petersons”) appeal from the trial court’s denial of their motion for summary judgment. We affirm. * * *

I. Assumption of Duty to Provide Safe Work Environment The Petersons’ main argument is that because the trial court determined in a prior order that Robert was an independent contractor at the time of his injury, the trial court had no option other than to grant the Petersons’ motion for summary judgment. * * *

We agree with the Pondas that the trial court’s determination that Robert was an independent contractor did not require the trial court to grant the Petersons’ motion for summary judgment. Whether the Petersons assumed a duty to provide Robert with a safe work environment calls for a different analysis than was necessary for the independent contractor determination. * * * In sum, the Petersons have failed to prove that they are entitled to judgment as a matter of law.

II. Premises Liability. The Petersons also argue that the trial court erred in failing to grant summary judgment in their favor on the Pondas’ premises liability claim. In premises liability cases, the determination of whether a duty is owed depends primarily upon whether the defendant was in control of the premises when the accident occurred. * * *

As discussed above, given the varying accounts of the events leading up to the accident, we agree with the trial court that summary judgment is likewise not appropriate on this issue. Affirmed.

NFP civil opinions today (1):

KFT Realty, LLC v. Prestwick Community Svcs. (NFP) - "In summary, Prestwick Villas was successfully annexed into the Prestwick CSA pursuant to the 1995 Final Plat approved by the Hendricks County Plan Commission and recorded in the Hendricks County Recorders Office. When KFT purchased Prestwick Villas in 2003, it did so subject to the restrictions and obligations for which the Final Plat put it fairly on notice. Such included the obligation to pay assessments to Prestwick CSA for managing and maintaining the common areas of its property. The trial court did not err in so holding."

NFP criminal opinions today (6):

Yvonne Lynn Maxwell v. State of Indiana (NFP)

Steven Chad Thomas v. State of Indiana (NFP)

Joseph Smith v. State of Indiana (NFP)

Danny K. Wheeler v. State of Indiana (NFP)

Timothy W. Allen v. State of Indiana (NFP)

Bryan S. Harper v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 24, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Ex-official is again a wanted man"

Bob Kasarda reports today in the NWI Times in a story that begins:

VALPARAISO | Just a few weeks after spending six months behind bars for sexual assault, former Hebron official and former Lake County Deputy Prosecutor Michael Haughee is once again a wanted man.

Porter Circuit Court Judge Mary Harper signed an arrest warrant this week for Haughee based on accusations he has already violated the terms of his probation by failing to register as a sex offender or show up for treatment.

Haughee could not be reached Tuesday for comment and was not yet in custody at the county jail by midday.

When Haughee, a suspended attorney, was released from the Porter County Jail earlier this month, he was transported to Lake County to face a felony charge of stealing money from one of his law clients, said Neil Hannon, chief of Porter County Adult Probation.

After bonding out of jail in Lake County, Haughee decided to live in Dyer, but failed to register there as a sex offender, Hannon said.

He then decided to move south to Tell City, Ind., but needed permission from the court, Hannon said. Haughee is accused of changing his cell phone number, failing to provide the new number to his probation officer and moving to Tell City without the necessary permission.

Hannon said his department tracked Haughee down and met with him for two hours to explain his obligations.

The ILB has had a number of earlier entries on Mr. Haughee.

Posted by Marcia Oddi on Wednesday, September 24, 2008
Posted to Indiana Courts

Law - "Wine Lovers See Red Over State Laws That Restrict Home Delivery of Bottles"

"Wine Lovers See Red Over State Laws That Restrict Home Delivery of Bottles" is the headline to this story by David Kesmodel in today's Wall Street Journal (it is unclear to me whether the link will allow public access or not). Some quotes:

A handful of states in recent years have enacted laws that, while permitting direct shipments, include requirements that bar or discourage many out-of-state wineries from participating.

Besides Massachusetts, Arizona, Kentucky and Ohio have all passed laws that ban direct shipments from larger wineries, which disadvantages many vintners in big wine-producing states, such as California. Kansas and Indiana require residents ordering out-of-state wine to first visit that vineyard and show identification proving they're of legal drinking age; Kansas requires consumers to make the journey each time they order from the same vintner.

Critics say these laws fly in the face of a landmark 2005 Supreme Court ruling that struck down as discriminatory state laws that permit in-state wineries to ship to local consumers while denying the same right to out-of-state wineries. At the time, 26 states allowed some form of direct shipping from outside their borders. These were exceptions to the nation's so-called three-tier system, a patchwork of state laws that usually require alcohol producers to funnel their wares through distributors to reach a store or bar. Legislators created the system in the wake of Prohibition, partly to discourage overconsumption.

The high-court decision has been generally positive for the industry. But now some of the laws enacted after the decision are being challenged in several federal courts. A judge is expected to rule on a challenge to the Massachusetts law this fall.

Advocacy groups for wineries say local wine and liquor distributors have pressured state lawmakers into drafting laws that protect distributors, who fear a loss of revenue from direct shipping. "What the wholesalers really want is to preserve as much as they can their monopoly pricing power, which is considerable," says Bill Nelson, president of WineAmerica, a trade group for wineries. * * *

Bill Glick, a 58-year-old wine drinker in Columbus, Ind., says "it's criminal" his state requires him to visit a winery at least once before placing a direct-shipment order. He and his wife are fans of some small Napa and Sonoma Valley vineyards and can't find their wines at local retailers. "At some point, we're going to have to bite the bullet and fly out to California or New York or wherever and take a handful of affidavits that satisfy the Indiana code," says Mr. Glick, a financial consultant.

One of the ILB's readers did just that ealier this month and sent the ILB this note:
Spent part of last week in Napa Valley. Saw 6 wineries, 2 agreed to ship to home, 2 told us they would but not during the current heat, and 2 refused, but one (and the other 2) offered a local FedEx-Kinkos address for shipping to ourselves.

We paid the extra cost and carried most of it home in an insulated carry box provided for a price by one of the wineries.

More from the Journal:
The ability to ship wine to homes is important to many smaller winemakers, which often find it difficult to sign up with out-of-state distributors. Wineries' direct sales, including shipments ordered in tasting rooms, accounted for about $2.8 billion of the industry's more than $30 billion in revenue last year in the U.S., says Barbara Insel, head of Stonebridge Research, a Napa, Calif., market-research firm.

Myriad shipping statutes affect an industry with an estimated 5,000 wineries in the U.S. And the direct-mail business is expanding. In the next month or so, Web retailer Amazon.com is expected to enter the fray when it begins selling wines from 26 states. Earlier this month The Wall Street Journal's marketing department also announced the launch of a direct-to-home wine service. * * *

Last month, the U.S. Court of Appeals for the Seventh Circuit in Chicago upheld part of Indiana's law. The court, reversing a district-court ruling, said Indiana could require Hoosiers to visit a winery at least once before being able to place direct-shipment orders. The appellate court agreed with the lower court, however, that Indiana couldn't bar shipments by wineries that have licenses in other states to distribute directly to retailers, a stipulation that covers many California, Oregon and Washington wineries.

Jim Purucker, executive director of Wine and Spirits Wholesalers of Indiana, a defendant in the Indiana case, says the group was "real happy" to see a key part of the state's law upheld. He defended Indiana's requirement that consumers visit vineyards before a direct shipment, saying, "Indiana is a conservative state. We want to make sure alcohol beverages are treated with special care and...that they don't get into the wrong hands."

Posted by Marcia Oddi on Wednesday, September 24, 2008
Posted to General Law Related

Law - Brush up on your election law knowledge

The ABA has a website designed both for the public and for attorneys. The main page provides information for voters. There are also resources for trial judges, including an Election Law Manual and Video Lectures.

For Indiana-specific information, this link gives useful pointers on where to look in the Indiana statutes when various challenges are presented on election day. Too bad the statute links aren't live, but here is the general link to Title 3 - Elections..

And the Secretary of State's Election Division site has probably everything you would want to know.

Finally, if you haven't seen it, and no matter what side you favor, watch the HBO movie Recount.

Posted by Marcia Oddi on Wednesday, September 24, 2008
Posted to General Law Related

Ind. Courts - "Review and Public Hearing of Proposed Reentry Court Rules"

The Problem-Solving Courts Committee of the Judicial Conference of Indiana has written proposed Reentry Court Rules and will submit these Rules to the Board of Directors of the Judicial Conference for adoption under IC 33-23-14 following a public comment period and public hearing. See this webpage for much more information.

Posted by Marcia Oddi on Wednesday, September 24, 2008
Posted to Indiana Courts

Environment - "EPA Needs More Information and a Clearly Defined Strategy to Protect Air and Water Quality from Pollutants of Concern"

That is the title to a just published, 85-page report of the U.S. Government Accountability Office. Here is the summary of what GAO found:

Because no federal agency collects consistent, reliable data on CAFOs, GAO could not determine the trends in these operations over the past 30 years. However, using USDA data for large farms that raise animals as a proxy for CAFOs, it appears that the number of these operations increased by about 230 percent, going from about 3,600 in 1982 to almost 12,000 in 2002. Also, during this 20-year period the number of animals per farm had increased, although it varied by animal type. Moreover, GAO found that EPA does not have comprehensive, accurate information on the number of permitted CAFOs nationwide. As a result, EPA does not have the information it needs to effectively regulate these CAFOs. EPA is currently working with the states to establish a new national data system.

The amount of manure generated by large farms that raise animals depends on the type and number of animals raised, but large operations can produce more than 1.6 million tons of manure a year. Some large farms that raise animals can generate more raw waste than the populations of some U.S. cities produce annually. In addition, according to some agricultural experts, the clustering of large operations in certain geographic areas may result in large amounts of manure that cannot be effectively used as fertilizer on adjacent cropland and could increase the potential of pollutants reaching nearby waters and degrading water quality.

Since 2002, at least 68 government-sponsored or peer-reviewed studies have been completed that examined air and water quality issues associated with animal feeding operations and 15 have directly linked air and water pollutants from animal waste to specific health or environmental impacts. EPA has not yet assessed the extent to which these pollutants may be impairing human health and the environment because it lacks key data on the amount of pollutants that are being emitted from animal feeding operations.

As a first step in developing air emissions protocols for animal feeding operations, in 2007, a 2-year nationwide air emissions monitoring study, largely funded by industry, was initiated. However, as currently structured, the study may not provide the scientific and statistically valid data it was intended to provide and that EPA needs to develop air emissions protocols. Furthermore, EPA has not established a strategy or timetable for developing a more sophisticated process-based model that considers the interaction and implications of all emission sources at an animal feeding operation.

Two recent federal court decisions have affected EPA’s ability to regulate water pollutants discharged by CAFOs. The 2005 Waterkeeper case required EPA to abandon the approach that it had proposed in 2003 for regulating CAFO water discharges. Similarly, the 2006 Rapanos case has complicated EPA’s enforcement of CAFO discharges because EPA believes that it must now gather significantly more evidence to establish which waters are subject to the Clean Water Act’s permitting requirements.

The discussion of the federal court decisions begins on p. 48 of the Report.

Posted by Marcia Oddi on Wednesday, September 24, 2008
Posted to Environment

Ind. Gov't. - Medicaid rulemaking proposal draws criticism from elder law attorneys

Here is the proposed rule. The Indiana FSSA posted a "Notice of Intent' to adopt a rule on 4/30/08. As its title indicates, the notice is just that, it does not spell out the specifics.

The FSSA posted the text of the proposal rule changes on 8/27/08, along with a notice that there would be a public hearing on Sept. 19th. The applicable law, IC 4-22-2-24, requires a minimum of 21 days between the time the text of a proposed rule is made available and the date of the public hearing. The date of the public hearing here met that standard, providing you include weekends in the count.

Today Ken Kusmer of the AP reports:

INDIANAPOLIS -- Advocates for the infirm and nursing homes say the state is rushing Medicaid changes that would leave some patients with no means to pay for care and some nursing homes forced to close their doors because of money given to family members or charities years ago.
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Under rule changes proposed by the Family and Social Services Administration, someone who gave $1,200 to a church each of the past five years, $500 to charity and $2,500 to help a financially strapped child might be penalized more than two months of Medicaid coverage for nursing-home care, elder-law attorneys say.

Also raising alarm has been the speed with which the agency has moved the rule toward adoption: A draft was published Aug. 27, and the agency held a public hearing last week. A public-comment period was set to close Friday, with the rule due to take effect Dec. 1.

"I don't think many people realize how devastating these proposed rules might be," Robert Smith, a Syracuse attorney who helps nursing homes get Medicaid or other payments for patients, said yesterday. "This thing is coming through like a runaway freight train."

Family and Social Services, in response to the criticism from the attorneys and others, has extended the public-comment process by one week to Oct. 3, state Medicaid Director Jeff Wells said. He added that the proposed rule is a draft subject to revisions and likely won't take effect before early next year.

"We'll take a look at all comments and concerns presented by the public," he said. "There's no interest on the part of the agency to move any faster than what the normal rulemaking process is."

Smith said that the rule changes could force already struggling nursing homes to turn away patients or to admit patients with no assurance that they'll get paid. Hospitals that normally would send patients to nursing homes for rehabilitation or extended care might find no one willing to take them.

"That starts to stack up residents in the hospitals," Smith said.

The agency is adopting the rules to comply with the Federal Deficit Reduction Act of 2005, aimed in part at preventing people with ample means from scamming the government into providing Medicaid or other forms of assistance.

Critics complain the rule changes at issue would dock Medicaid applicants for money they had given over the previous five years as gifts to children and grandchildren, to churches and charities, to family members with financial problems, or payments to relatives who help care for them unless they had entered into a legally binding personal services contract. * * *

The Indiana chapter of the National Academy of Elder Law Attorneys has sought a voice in the rulemaking for two years but charged the Indiana agency has been so focused on privatizing eligibility services for Medicaid, food stamps and other welfare that the agency put off action on the federally required rulemaking until recently.

"Seniors, disabled people, nursing homes and elder-law attorneys have all reported increasing difficulty reaching the people who make decisions about a Medicaid application, even by phone. Face-to-face meetings with a decision-maker are virtually nonexistent," the academy said in a statement.

The chapter submitted a 35-page brief at the public hearing, but has received no response, said Keith Huffman of Bluffton, the chapter's president.

"They have been totally consumed by the privatization process," he said. "This has gotten a back burner."

Wells, however, said that the first notice of the rulemaking was published in April and nursing homes and some other stakeholders have had voices in the process. He also said privatization of eligibility services had no effect on the rulemaking process.

Tim Evans reports today in the Indianapolis Star:
Indiana is proposing new limits on Medicaid coverage for people seeking nursing home care if they used their money to make a contribution to a charity or paid a family member who is caring for them without a formal contract.

The state says its proposal is aimed at preventing fraud, which occurs when people who otherwise have the means to pay for care transfer those assets to relatives and others so they can qualify for Medicaid. Applicants would be considered eligible for the state's help once it's determined they meet the new financial thresholds.

Critics, however, say the new rules would be among the most punitive in the nation.

Indianapolis lawyer Scott R. Severns and other members of the Indiana Chapter of the National Academy of Elder Law Attorneys contend the changes would punish senior citizens for contributions they make to churches and charities. Even legitimate payments to family members who care for their elderly parents or relatives without a contract could disqualify applicants, he said. * * *

Indiana's director of Medicaid, Dr. Jeff Wells, said many of the changes are necessary to meet requirements of the federal Deficit Reduction Act of 2005, including extending the "look-back" period for many transactions to five years from three. At least 33 other states have already enacted new rules to meet the federal mandate, according to Donna Folkemer of the National Conference of State Legislatures.

The state Family and Social Services Administration, which administers the Medicaid program, conducted a public hearing on the changes last week and will accept written comments through Oct. 3.

Wells said the proposed rules are just a starting point.

"There are some areas where there is some flexibility, which is why the (public's) feedback is so critical," he said.

The new rules are needed to prevent "gaming" of the system by people who have the financial resources to pay for their own care, Wells said.

Under current regulations, he said, many older Hoosiers are able to hide or improperly shift assets so they qualify for Medicaid.

What happens next? Additional written public comments may be submitted to FSSA by Oct. 3rd, according to the Star story. From the applicable statute:
IC 4-22-2-27. Consideration of comments received at public hearings

Sec. 27. The individual or group of individuals who will finally adopt the rule under section 29 of this chapter shall fully consider comments received at the public hearing required by section 26 of this chapter and may consider any other information before adopting the rule. Attendance at the public hearing or review of a written record or summary of the public hearing is sufficient to constitute full consideration. (As added by P.L.31-1985, SEC.16.)

Then FSSA will finalize the rule; if normal procedures are followed, the next the public will see of it is when the final text of the adopted rule is posted online.

The ILB has obtained a copy of the "brief submitted at the public hearing" by Keith P. Huffman, President of the Indiana Chapter of the National, Academy of Elder Law Attorneys, Dale & Huffman, Bluffton, IN. Access the brief here.

Posted by Marcia Oddi on Wednesday, September 24, 2008
Posted to Indiana Government

Courts - New term of SCOTUS begins October 6th

Marcia Coyle of The National Law Journal reports today under the headlne "In the New Term, High Stakes for the High Court ." The long story begins:

Following a blockbuster term involving guns, Guantanamo Bay and the death penalty, the U.S. Supreme Court opens its doors to a new term with less drama, more cases initially and many challenges having potentially major implications for business, the environment, injured consumers, job bias victims and law enforcement.

If the docket thus far appears to lack possible landmark cases, the term's drama level could change quickly after the justices hold their summer conference meeting on Sept. 29 in which they generally add cases from more than a thousand filed during the summer months. They also continue to add cases to the term's argument docket until about mid-January.

One case likely to raise the stakes considerably, if granted review, is perhaps the most significant voting rights case in decades -- Northwest Austin Municipal District Number One v. Mukasey, No. 08-322. The case challenges Congress' recent reauthorization of Section 5 of the federal Voting Rights Act of 1965, the heart of the landmark law that changed the voting landscape in America.

The justices will return in the new term to several areas of apparent strong, ongoing interest:

• Business is seeking federal pre-emption of state personal injury suits in the pharmaceutical drug and tobacco arenas.

• Employees and employers square off in two job bias cases, one involving retaliation and the other pregnancy leave and retirement credit.

• Sexual harassment in schools draws the justices into the interplay of two major discrimination statutes.

• And an unusually large number of environmental cases -- four -- will be argued, ranging from Navy sonar and its effect on marine mammals to the use of cost-benefit analysis in setting environmental standards.

• Among other issues, there also are "dirty words" in a Fox Television challenge; a free speech challenge involving a monument to the "Seven Aphorisms" of the Summum religion; liability-immunity issues for prosecutors and top federal officials; terror victim compensation lawsuits; and counsel representation in state clemency proceedings.

Posted by Marcia Oddi on Wednesday, September 24, 2008
Posted to Courts in general

Tuesday, September 23, 2008

Ind. Decisions - Court grants transfer in two cases

The formal transfer list likely won't follow until next Monday, Sept. 29th, but the ILB has received advance notice of two cases granted transfer:

George Jackson v. State was granted transfer today, Sept. 23rd. Here is the ILB summary of the July 8th COA 2-1 opinion, re the validity of a search warrant.

Scottie R. Adams v. State was also transferred today, Sept. 23rd, according to the Clerk's docket. Here is the ILB summary of the July 25th COA opinion which held "Specifically, Adams argues that the trial court erred in instructing the jury on the offense of voluntary manslaughter when he was charged only with murder and that the trial court abused its discretion in denying his motion for a mistrial. Finding no error, we affirm the judgment of the trial court."

Posted by Marcia Oddi on Tuesday, September 23, 2008
Posted to Indiana Transfer Lists

Environment - More on "Ban Near on Diverting Water From Great Lakes"

Gitte Laasby of the Gary Post-Tribune has just reported:

The Great Lakes Compact just passed the U.S. House of Representatives by a 390-25 vote.

The Senate has already passed the Compact. This means the historic compact to prevent the diversion of water from the Great Lakes basin is headed to President Bush’s desk. He has previously said he’ll sign it into law

See this entry from earlier today.

Posted by Marcia Oddi on Tuesday, September 23, 2008
Posted to Environment

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Roy Beatty and Vanda Beatty v. Liberty Mutual Insurance Group, et al , a 15-page opinion, Judge Najam writes:

[W]e consider only the question of whether the Beattys can maintain this action in the Marion Superior Court or whether this action must be dismissed because the same or a substantially similar action is pending in the Marion Circuit Court. We affirm. * * *

In sum, the Marion Superior Court properly dismissed the Beattys’ action against Liberty Mutual because an action that is substantially the same is pending in the Marion Circuit Court. Further, having affirmed the Marion Superior Court’s dismissal of the Beattys’ action against Liberty Mutual, we must also conclude that the Beattys lack standing against the remaining named defendants, none of whom injured the Beattys. As such, the Beattys lack standing to continue their action against the Insurance Defendants either individually or as a class action, and we affirm the Marion Superior Court’s dismissal of the Beattys’ complaint. We express no opinion on the Marion Circuit Court proceedings or whether the Beattys may seek to amend their complaint in that court.

In Anna Westlake v. State of Indiana , an 11-page (including a 4-page dissent), 2-1 opinion, Judge Mathias concludes:
For all these reasons, we remand this case to the trial court with instructions that it vacate Westlake’s sentence and impose a sentence of seven years imprisonment for Class B felony dealing in cocaine and a concurrent three-year term for Class C felony neglect of a dependent for an aggregate term of seven years imprisonment. Two years of this sentence are suspended, one to supervised probation and one to unsupervised probation with credit for time already served, and the executed portion of the sentence is to be served in the Tippecanoe County Community Corrections program. Reversed and remanded.

BAKER, C.J., concurs.
BROWN, J., dissents with opinion.[which concludes] I cannot agree with the majority’s significant reduction to almost minimum, concurrent sentences with two years suspended and the executed portion of Westlake’s sentence served in community corrections. Rather, I believe that the trial court took Westlake’s mental illness, progress in treatment, and success in the pre-conviction release program into account by imposing the advisory sentences. At most, I could recommend concurrent rather than consecutive sentences for her offenses.

After due consideration of the trial court’s decision, I cannot say that the sentence imposed by the trial court is inappropriate in light of the nature of the offense and the character of the offender. I would affirm Westlake’s sentence or, at most, order concurrent rather than consecutive sentences. Consequently, I dissent from the majority’s significant reduction of her sentence.

G.R. v. State of Indiana - "G.R. was adjudged a juvenile delinquent for committing the following acts: criminal gang activity, a Class D felony if committed by an adult, criminal trespass, a Class A misdemeanor if committed by an adult, criminal mischief, a Class D felony if committed by an adult, and criminal mischief, a Class B misdemeanor if committed by an adult. G.R. appeals his adjudication for criminal gang activity and argues that the evidence was insufficient to establish that he participated in a “criminal gang.” Concluding that the evidence is insufficient to establish that G.R. was involved in a gang with at least five members, we reverse."

NFP civil opinions today (4):

Michael J. Hood v. Robbin G. Hood (NFP) - "Therefore, we conclude that the trial court did not abuse its discretion in finding that Father did not prove a substantial change in circumstances that would have warranted modification of custody. * * *

"As previously stated, Father had a legitimate right to be concerned about the violence in Mother’s home and this provided him with a valid, good faith basis for seeking modification of custody. Therefore, we conclude that an award of appellate attorney’s fees to Mother is not warranted. Affirmed."

Wesley K. Files v. Rebecca R. Demeester (NFP) - "We conclude, however, that on these particular facts, the trial court’s decision was well within its discretion and did not contravene the well-established principle that laches does not apply in a case involving a parent’s effort to collect child support."

Charles N. Pollack, M.D. v. Sisters of St. Francis Health Services, Inc., et al (NFP) - "Charles N. Pollack, M.D. (Dr. Pollack) appeals the trial court’s grant of summary judgment in favor of Sisters of St. Francis Health Services, Inc. d/b/a St. Francis Hospital & Health Centers f/k/a St. Francis Hospital & Health Centers, Inc. (St. Francis) on Dr. Pollack’s complaint for damages resulting from a claimed breach of contract over the termination of his medical staff privileges at St. Francis. On appeal, Dr. Pollack presents six issues for our review, which we consolidate and restate as: did the trial court properly grant summary judgment in favor of St. Francis? We affirm. * * *

"From the designated evidence, it is clear that St. Francis acted reasonably and within the provisions of the Constitution and Bylaws and Rules and Regulations. In instances where St. Francis did not follow the letter of its rules, i.e., in extending Dr. Pollack’s leave of absence beyond one year after it had expired, it did so to the benefit of Dr. Pollack, extending him every opportunity to resume his practice at St. Francis. Finding no dispute in the material facts, we conclude that the trial court properly granted summary judgment in favor of St. Francis on Dr. Pollack’s complaint for breach of contract."

Deloris and Bobby England v. Fairfield Contracting, et al (NFP) - "Appellants-defendants Deloris E. England and Bobby G. England, as guardians of the Estate and person of Robert E. England, an incapacitated adult (the Estate), appeal the trial court’s order denying the Estate’s motion for partial summary judgment against appellee-defendant Fairfield Contracting, Inc. (Fairfield). The Estate contends that the trial court should have found as a matter of law that Fairfield had assumed a contractual duty of care to Robert. The Estate also argues that the trial court erroneously gave two jury instructions that were allegedly improper statements of law and invaded the province of the jury. Additionally, Fairfield cross-appeals the trial court’s order granting cross-appellee/third-party defendant Ed Muller Masonry, Inc.’s (Ed Muller) motion for judgment on the evidence on Fairfield’s indemnity claim against Ed Muller. Finding no error, we affirm."

NFP criminal opinions today (3):

Joseph Ooten v. State of Indiana (NFP)

Charles Johnson v. State of Indiana (NFP)

James Brown v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 23, 2008
Posted to Ind. App.Ct. Decisions

Environment - "Ban Near on Diverting Water From Great Lakes"

So reports Susan Saulny of the NY Times today in a story that begins:

The House began debate Monday on a sweeping bill that would ban almost any diversion of water from the Great Lakes’ natural basin to places outside the region.

The measure is intended to put to rest longstanding fears that parched states or even foreign countries could do long-term damage to the basin by tapping into its tremendous body of fresh water.

The bill, which would also put in place strict conservation rules for the eight states that border the lakes, is expected to win House approval, perhaps as soon as Tuesday. It has already been passed by the Senate, and the Bush administration has signaled its support.

So House backing for the measure, known as the Great Lakes Compact, is regarded by its many advocates across the Midwest and in New York and Pennsylvania as a long-sought final piece to a complicated puzzle whose solution started taking shape a decade ago in an effort to give the region control over its water. The fear was that without strict, consistent rules on who is entitled to that water, it might start disappearing.

“People realized that Great Lakes water is a finite resource and that death by a thousand straws is a real threat,” said Jordan Lubetkin, a spokesman for the National Wildlife Federation. “There is a perception that because the Great Lakes are so vast, they are immune from harm. That is not the case.”

Posted by Marcia Oddi on Tuesday, September 23, 2008
Posted to Environment

Courts - Judge Tosses Gambling Attorney's $20 Million Lawsuit Against Casinos

Somewhat reminiscent of this ILB entry from Sept. 19th, Wayne Perry of the AP reports today in a story that begins:

A federal judge has dismissed a $20 million racketeering lawsuit against seven casinos by a former New York City attorney who said they had a duty to stop her from gambling.

In a ruling issued Friday, U.S. District Court Judge Renee Bumb wrote that Arelia Margarita Taveras failed to support her claim that gambling is a hazardous endeavor worthy of special protections.

"Playing blackjack, roulette or the slots bears no likeness to dumping toxic waste," the judge wrote. "She spent money on the bona fide chance that she might win more money. In short, she gambled."

Taveras, who now lives in Minnesota, argued that the casinos saw she clearly had a gambling addiction yet did nothing to stop it. She said she gambled nonstop for days at a time in the casinos, and lost close to $1 million in less than two years.

Posted by Marcia Oddi on Tuesday, September 23, 2008
Posted to Courts in general

Ind. Courts - Still more on: Two young attorneys in different parts of the state in court for drug/alcohol related charges

Updating this ILB entry from July 24th, the Indianapolis Star reports today:

A former state attorney's trial in a fatal drunken driving crash has been delayed again, this time at the defense's request.

Marion Superior Court Judge Grant Hawkins granted a continuance of Terry J. Record's trial from Monday until Nov. 17. Record, 28, faces several counts of operating a vehicle while intoxicated and reckless homicide.

Record's attorney, David Lewis, cited the need for an expert witness in his request for the delay. An earlier delay, in July, came at the request of Special Prosecutor Barry Brown.

Charges were filed after the death of Jimmy R. Cash, 46, in a May 2007 crash. Record had been drinking at a strip club just before the wreck, police said. He now practices law in Evansville.

Posted by Marcia Oddi on Tuesday, September 23, 2008
Posted to Indiana Courts

Ind. Courts - Still more on "Geist lawyers backing out"

Updating this ILB entry from Sept. 19th, the Indianapolis Star reports today:

Some Geist residents are now without legal representation in their battle to block Fishers' attempt to annex 2,200 homes near and along Geist Reservoir.

Geist residents and their Krieg Devault attorneys officially ended their relationship during a status conference Monday afternoon.

The residents have until Friday to hire new attorneys, but Geist United Opposition President Pete Peterson said he's not sure the group can find representation that quickly. A status conference with all parties is set for 4 p.m. Friday to determine how to proceed.

Bryan Babb, an attorney for Fishers, said Hamilton Superior Court Judge Steven Nation could make several different rulings if Geist residents don't have new counsel by Friday. He said Nation could make residents represent themselves at the Oct. 1 hearing, postpone the hearing 30 days but still make the residents represent themselves, or allow them more time to find an attorney.

The Geist group's attorneys filed a motion to continue proceedings and a motion to withdraw from the case Sept. 16, but Nation denied the continuance.

Money was initially cited as the reason for the fallout between the attorneys and their clients. Geist United Opposition member Joe Weingarten said last week that the attorneys wanted $75,000 to continue working on the case, but Geist residents refused to pay.

Peterson said the fallout occurred because "there wasn't a meeting of the minds." He said he couldn't divulge the specifics.

He said the group has been making calls to attorneys, but the process has been difficult because the town of Fishers has retained several large firms to represent it in the case. Law firms often have to go through ethical evaluation processes before lawyers can agree to take cases, which could make retaining a firm by Friday difficult, he said.

Babb said it shouldn't take Geist more than a week to get a new attorney, even with ethics checks. He said any delay would cost Fishers more time and money because witnesses and attorneys have already planned for an Oct. 1 hearing date.

Residents have said that they've paid $100,000 to fight the annexation attempts, which started in January 2007. Fishers has paid six law firms, two accountants, a city planner and a legislative consultant more than $1,243,070 to pursue the land.

Posted by Marcia Oddi on Tuesday, September 23, 2008
Posted to Indiana Courts

Ind. Courts - Gary Judge targets court costs

Lori Caldwell reports in the Gary Post-Tribune:

To meet Mayor Rudy Clay's 20 percent budget reduction this year, [Gary City Court Judge Deidre Monroe] gave up money she'd set aside to repair the two dozen courtroom seats that are broken and not usable. Rows of the dark blue upholstered chairs sit facing backward near the courtroom exit, while others feature signs warning "do not use."

"I had some money from 2007 I was going to use to replace those chairs, but now I'm using that to meet our $100,000 shortfall," she said.

To cut at least 12 percent next year, Monroe plans to lay off nine of her 60 staff members, which will also mean discontinuing at least one of 10 court calls scheduled every week.

"My goal has always been to get people in and get them out. Now it's just going to take longer," the judge said.

The Tuesday-night session will be the first to go, pushing all those cases to Thursday, the judge said.

In addition to cuts in staff, Monroe said she is looking for ways to bolster income.

Monroe and the pro tem judges who sit for her often impose fees in lieu of jail time for defendants who are employed.

More defendants are ordered to serve time in probation, performing community service, obtaining high school diplomas and other duties. While on probation, they pay fees that help defray costs of operating the court.

The city court processes about 5,000 criminal cases annually, with about 20,000 new cases, including infractions, code violations and criminal charges, filed every year, Monroe said.

More than 68,000 criminal cases are pending in the court right now, she added.

Although police and the public want to see justice served with long jail sentences, Monroe said she must balance those demands with continuing financial restrictions.

More than half of any fine assessed goes to the state while the city receives one-fourth, she said. All fines from city code violations and city traffic violations go directly into city coffers, she added.

"All that money stays right here. I've been meeting with the (police) chief about trying to get those numbers up," she said. The city court generates about $1 million annually, she added.

Drug testing, once a free service, now costs defendants $10 for each drop, Monroe said.

"We just can't afford to give anything away," she said.

Posted by Marcia Oddi on Tuesday, September 23, 2008
Posted to Indiana Courts

Environment - Still more on: Kentucky judge orders state to rehear permit for coal-fired power plant

Updating this ILB entry from Sept. 3, 2007, reporting on "a decision on Aug. 6 by Judge Thomas Wingate that rejected the air-quality permit for the 1,500-megawatt Thoroughbred plant planned by Peabody Energy for Muhlenberg County," the Kentucky Court of Appeals last week overturned the trial court, according to a brief AP story in the LCJ:

FRANKFORT, Ky. -- Peabody Energy is still pushing to build a $2.5 billion coal-fired power plant in Western Kentucky.
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The St. Louis coal company won a Kentucky Court of Appeals ruling last week that could breathe new life into a proposal that has languished for some eight years.

The court of appeals overturned a lower court ruling that rejected a state permit allowing the proposed plant to operate.

Peabody wants to build the plant in Muhlenberg County. The plant was proposed in 2001 and has been held up by legal hurdles. Environmentalists have fought the proposal since its conception.

Lawyers for the state had argued that Franklin Circuit Judge Thomas Wingate had erred in his earlier ruling. A three-judge panel agreed, concluding that the state's decision to issue the permit was proper.

Sierra Club attorney Hank Graddy said he intends to pursue the case further, either by asking the appeals court to reconsider its decision or by seeking a review by the state Supreme Court.

Here is more from an Evansville Courier & Press report by Mark Wilson:
Lawyers for the state had argued that Wingate was wrong when he ruled that additional review was needed before the state could issue an air permit for the plant. A three-judge appeals court panel agreed, ruling the state's decision to issue the air permit was proper.

"This ruling is an affirmation of the state's permitting process. The Division of Air Quality will be very diligent in making sure that Peabody Energy and its Thoroughbred Energy Campus adhere to all of the state regulations dealing with air quality," said Elizabeth Robb Schmitz, speaking for the state agency.

The judges ruled against the previous lower court decision on every argument.

At issue was whether state officials and Peabody correctly considered the best available control technology for reducing key air pollutants; whether they considered the ecological risk from its toxic emissions; its potential impact to vegetation, soils and visibility; and whether parts of the permit were enforceable.

"It was not a good decision," said John Blair, president of Valley Watch, an Evansville-based organization that has opposed the plant since it was first proposed.

In 2005, after a Kentucky administrative judge ruled with Valley Watch that the project did not use the best available pollution controls, Kentucky decided to reject that decision and issue the permit anyway. That prompted the national Sierra Club to join Valley Watch in appealing to Franklin County Circuit Court.

The 1,500-megawatt power plant would be located at a former strip mine near Central City, Ky., about 60 miles southeast of Evansville. Opponents have argued the power plant could have a significant negative effect on air quality in the region.

In January, Valley Watch filed notice that it intended to sue the U.S. Environmental Protection Agency and hold it to enforcing requirements of the Clean Air Act that the power plant be built within 18 months of when its permit was issued.

Posted by Marcia Oddi on Tuesday, September 23, 2008
Posted to Environment

Monday, September 22, 2008

Ind. Courts - "Newspapers fight anonymous poster identity subpoenas"

This story from the Sept. 11th edition of The Indiana Publisher, published by the Hoosier State Press Association:

Two Indiana newspapers are fighting subpoenas asking them to reveal the identities of anonymous posters to Web forums hosted by the newspapers

The Herald Bulletin (Anderson) has been asked to reveal the identities of two posters by an Anderson businessman suing the unnamed defendants for libel.

The Mooresville/Decatur Times has been asked to identify 17 individuals who have posted comments about a civil lawsuit involving the family of a Mooresville fireman who died last spring in a crash while he responded to a fire alarm. The request comes from the firefighter’s former wife. The subpoena doesn’t spell out why the identities are sought.

Newspapers that host Internet message boards should be prepared to deal with a similar request stemming from comments that might appear on newspaperhosted Web sites, said Stephen Key, HSPA general counsel.

The Anderson newspaper filed a motion to block the subpoenas based on the fact it doesn’t have the information sought. The Web network in question, “Hey Martha” is maintained by a different company, Groupee, Inc. of Seattle, Wash.

Madison Circuit Court Judge Fredrick Spencer has ordered the newspaper to provide the Baylor’s contact information for the correct entity to receive the subpoena.

The Mooresville newspaper is fighting its subpoena on a couple of grounds – the First Amendment protection for anonymous speech and Indiana’s reporter’s privilege to protect sources.

Indiana’s law isn’t clear on how the courts will balance the First Amendment protection for anonymous speech versus the right to protect one’s reputation from libel.

The best cases in other states have established a process that requires:
• Anonymous defendant be notified so that he/she can enter an anonymous appearance in the case to defend First Amendment right to remain anonymous;
• Specification of words that are defamatory;
• Judicial review to determine whether the words are defamatory;
• Presentation of evidence by plaintiff to support a continuation of the case;
• Decision by the judge on whether right to speak anonymously is overridden by right of plaintiff to obtain relief for wrongs committed.

Application of the shield law to protect those who commented on the newspaper article is a new concept, but was recently accepted in a Montana case involving the Billings Gazette.

Regardless of the merits of a libel lawsuit filed, newspaper will incur legal costs to fight a subpoena or direct the plaintiffs to the proper entity that has the information sought, so Key said it’s in the newspaper’s best interest to educate Web site participants about their responsibility to express their views in a responsible manner.

Read in conjunction with "Law - "Harsh Words Die Hard on the Web": Students at Yale Law and Indiana University Feel Effects of Anonymous Attacks," a Sept. 6th ILB entry.

Posted by Marcia Oddi on Monday, September 22, 2008
Posted to Indiana Courts

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

For publication opinions today (3):

In Midwest Biohazard Svcs. LLC v. Hugh H. Rodgers, et al. , an 8-page opinion, Judge Riley concludes:

Here, the trial court relied solely upon the dismissal of Biohazard’s claim seeking to foreclose upon a mechanic’s lien to conclude that preferred venue was not in Johnson County, but in Jackson County, where Son resides and the Trust is administered. However, we have concluded that the trial court erred when it dismissed Biohazard’s claim to foreclose upon its mechanic’s lien, and preferred venue for a mechanic’s lien claim is in the county where the property is located. See Ford v. Culp Custom Homes, Inc., 731 N.E.2d 468, 473 (Ind. Ct. App. 2000), trans. denied; see also I.C. § 32-28-3-10 (“A lien is void if . . . [t]he owner or holder of the lien fails to file an action to foreclose the lien in the county where the property is located not later than thirty (30) days after receiving the notice.”) Therefore, the trial court erred when it transferred the case to Jackson County.

Conclusion. Based on the foregoing, we conclude that the trial court erred when it dismissed Biohazard’s claim to foreclose on its mechanic’s lien, and additionally erred when it transferred the case to Jackson County.

The Paternity of N.C.; Michael J. Casteel v. Tamala Cannon - "Based on the foregoing, we conclude that the trial court did not abuse its discretion in calculating Casteel’s child support obligation and did not determine that a no-contact order with Casteel’s minor child existed."

In Thomas Samm, Jr. v. State of Indiana, a 15-page, 2-1 opinion, Judge Riley writes:

Samm raises one issue for our review, which we restate as: Whether the trial court abused its discretion when it denied his motion to reduce the requirement of a $100,000 cash-only bond for his release from jail pending resolution of the charges against him. * * *

Samm argues that the trial court abused its discretion by ordering a $100,000 cash-only bond. Specifically, he contends that the trial court’s bond schedule permitted a ten percent option, and the trial court abused its discretion by not following its own schedule. Secondly, he argues that the trial court violated his due process rights by deviating from its own bond schedule without holding a hearing first. The State contends that this appeal is moot since Samm has been permitted to leave jail after posting $5,000.

I. Mootness We first address the State’s contention that this appeal is moot. We typically will not engage in discussions of moot questions or render advisory opinions. * * *

Nevertheless, an exception applies to our general prohibition of determining cases that are moot. Pursuant to Indiana Constitution Article 1 §§ 16 and 17, the right to bail that is not excessive is one of constitutional proportion. Furthermore, the imposition of bail is a common occurrence, and therefore questions surrounding bond issues are likely to recur. Many bond issues are made moot by the disposition of criminal charges prior to the completion of an appeal, and therefore such issues could often evade review. Thus, we will address Samm’s claims of error.

II. Abuse of Discretion Samm argues that the trial court’s setting of a $100,000 cash-only bond is an abuse of discretion. Because he claims to have been treated outside of the LaPorte County Superior Court No. 1 bond schedule, he contends the formerly required bond is presumably unreasonable. * * *

Although we conclude that the trial court treated Samm within the parameters of its bond schedule, Samm’s bond may still be excessive. Paramount considerations convince us that bail should be tailored to the individual in each circumstance. Bond schedules should serve only as a starting point for such considerations.* * *

[I]f the trial court had performed an appropriate evaluation of the evidence presented by Samm in light of the factors in Indiana Code section 35-33-8-4, the trial court may have appropriately come to the conclusion that a $100,000 cash-only bond was required.

III. Did the trial court violate Samm’s due process rights? Finally, Samm contends that the trial court violated his due process rights. However, his entire argument in this section is premised upon his contention that the trial court deviated from its bond schedule when it set his bond. * * * Therefore, we fail to see how Samm’s due process rights could have been violated by the procedure provided by the trial court.

Conclusion. Based on the foregoing, we conclude that the trial court abused its discretion when it failed to consider the required factors when refusing to reduce Samm’s bond amount. However, since that issue is now moot because Samm’s bond was reduced and he posted bond and has been released, we will not disturb the proceedings of the trial court. Remanded.

ROBB, J., concurs.
BAKER, C.J., dissents with separate opinion: I respectfully dissent from the majority’s decision to remand this cause for further proceedings on the issue of whether the trial court abused its discretion in refusing to reduce Samm’s $100,000 cash-only bond. Recognizing the long-standing principle that a case is moot when no effective relief can be rendered to the parties before the court, the undisputed evidence in this case established that the trial court reduced Samm’s bail from $100,000 cash-only to “10% on a $50,000 bond.” * * *

Finally, I cannot agree that a discussion of the trial court’s alleged abuse of discretion in setting the $100,000 bond amount is warranted under an exception to the mootness doctrine. * * * Because Samm has already been released on the reduced bond amount, there is simply no need to remand for further findings about the propriety of the $100,000 bond that had been originally set. As a result, I would dismiss the appeal.

NFP civil opinions today (1):

In the Matter of the Supervised Estate of Fred L. Russell v. Harold Kinsler (NFP) - "Based on the foregoing, we conclude that the trial court correctly interpreted the provisions of the Trust by ordering that the beneficiary of the specific devise of real estate is not required to contribute to the payment of the administrative expenses incurred by the Trust."

NFP criminal opinions today (2):

Myron L. Grubowski v. State of Indiana (NFP)

Jermaine Young v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 22, 2008
Posted to Ind. App.Ct. Decisions

Ind. Law - Former U.S. Senator Birch Bayh to lecture in Bloomington on the importance of church and state separation

From the press release:

Former U.S. Senator Birch Bayh will return to his alma mater on Thursday, Sept. 25, to present a lecture on the importance of church and state separation.

Bayh, JD'60, will give a public talk from 3:30 p.m. to 4:30 p.m. in the Moot Court Room at the Indiana University School of Law--Bloomington. His lecture is entitled "Separation of Church and State: As Important Today as in the 18th Century." * * *

During his tenure in the Senate, Bayh authored two Constitutional Amendments: the Twenty-fifth Amendment, relating to Presidential and Vice Presidential succession, and the Twenty-sixth Amendment, which lowered the legal voting age to 18. He was influential in the passage of Title IX, which gave women equal opportunities in both sports and academics at public institutions. * * *

Bayh served in the U.S. Senate from 1962 through 1980. During his Senate career, he served on the Judiciary Committee, the Appropriations Committee, and the Environment and Public Works Committee.

Posted by Marcia Oddi on Monday, September 22, 2008
Posted to Indiana Law

Ind. Courts - "St. Joseph County losing money on jurors they send home"

From a lengthy story Sunday in the South Bend Tribune, Pablo Ros' report begins:

At least 700 county residents have been called this year to show up for jury trials that were canceled at the last minute.

As a result, St. Joseph County has paid more than $10,000 to potential jurors who did not serve, according to court records. That's about 8 percent of the total amount of money the county has spent on criminal jury trials this year, and about 6 percent of the amount budgeted for jury trials, both civil and criminal, in 2008.

Half of the cancellations were the result of last-minute pleas by defendants, with or without negotiations involving prosecutors. That means potential jurors were dismissed after the defendant pleaded guilty to the allegations against him, making a trial unnecessary.

Dismissal of the charges, court congestion and trial postponement at the request of the defense prompted the other cancellations.

But the jurors did not walk away empty-handed. The county paid them $20 plus mileage for their trouble (that rate is dropping to $15 next year, according to a court administrator).

Judges and attorneys interviewed acknowledged that such expenses appear wasteful, and the issue has come up this year in budget discussions with county commissioners. But judges and attorneys disagree about how much can be done about it.

Posted by Marcia Oddi on Monday, September 22, 2008
Posted to Indiana Courts

Ind. Courts - Former Clerk to Chief Judge Baker joins Indy firm

Tiffany Stochel of the Indianapolis Star reports today in a story that begins:

The law firm of Bose McKinney & Evans LLP is pleased to announce that Kellie M. Johnson has joined the firm as an associate in the Litigation and Appellate Groups, assisting clients with commercial and business disputes.

Previously serving as a judicial law clerk for the Hon. John G. Baker, Chief Judge of the Indiana Court of Appeals, Johnson's duties included researching and drafting appellate opinions, observing oral arguments, and analyzing issues spanning the legal spectrum. Prior to that, Johnson was a legal intern for Simon Property Group, Inc., an intern for the appellate division of the Indiana Attorney General's Office, and a summer associate at Bose McKinney & Evans LLP.

Posted by Marcia Oddi on Monday, September 22, 2008
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending Sept. 19, 2008

Here is the just issued transfer list for the week ending Sept. 19, 2008. It is 5 pages long.

Three transfers were granted last week. They are discussed in this ILB entry from Saturday.

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.

Posted by Marcia Oddi on Monday, September 22, 2008
Posted to Indiana Transfer Lists

Law - More on: Text of Draft Proposal for Bailout Plan

Updating this ILB entry from earlier this morning:

"Dodd, Democrats Question Lack of Court Access in Rescue Plan ," a report by Greg Stohr in Bloomberg News, reviews the legal issues, noting: "Judicial bypass provisions are common in statutes and in some cases have been upheld by the U.S. Supreme Court. Congress, nonetheless, may choose to revise the administration plan to permit some independent review."

The WSJ reports "Few Limits Proposed for Treasury." Jess Bravin's story reports:

WASHINGTON -- If the Bush administration has its way, anyone harmed by the Treasury Department's handling of the $700 billion Wall Street bailout might have no remedy.

Draft legislation proposes sweeping powers for Treasury Secretary Henry Paulson to buy and sell mortgage-related securities however he sees fit. Aside from requiring periodic reports to Congress, the bill provides no oversight of the bailout's management -- and specifically bars any court or agency from reviewing it. * * *

In 1974, the Supreme Court upheld a statute barring judicial review of certain benefits decisions made by the Veterans Administration. While Congress can block review of discretionary decisions under a statute, it can't stop lawsuits claiming violation of constitutional rights.

Under the draft legislation, claimants apparently would be barred from suing on grounds that the Treasury Department undervalued their assets or didn't fairly consider a seller's situation, Mr. Levy said. However, a court might hear a constitutional claim, such as allegations that the method of deciding who gets paid or how much assets are worth violates the Fifth Amendment's Due Process Clause, he said.

Such claims may be difficult to prove.

The draft language blocks review only of "decisions by the Secretary" under the act. Mr. Levy said that leaves open the door to challenges to the act itself. Such a claim might, for instance, allege that the statute improperly delegates congressional power to an executive official.

See also Dan Slater's post in the WSJ Law Blog, titled "Judicial Oversight of the Bailout Plan? Fuggedaboudit."

Posted by Marcia Oddi on Monday, September 22, 2008
Posted to General Law Related

Ind. Law - "Doctors look to track, review peers' surgery files"

This ILB entry from Sept. 6th quoted a story from Amanda Iacone of the Fort Wayne Journal Gazette that began:

Allen County commissioners expected to review proposed standards for all doctors performing outpatient surgeries but learned Friday the measure addresses only gynecological-related procedures that seem to focus on abortion techniques.

Previously, the commissioners discussed enacting a law to protect patients involved with all types of in-office invasive procedures – from tooth extractions to plastic surgery. But at least one commissioner expressed concern that the proposed ordinance is too narrowly focused and would affect only abortion providers.

Since then, according to this story today by the same reporter, the State Medical Association has been working on the issue. Some quotes:
Doctors from across Indiana voted Sunday to work with the state to find a way to police all doctors regardless of specialty or their affiliation with a hospital.

Members of the Indiana State Medical Association’s governing body voted to ask its board of trustees to study the issue of tracking doctors with no admitting privileges to a hospital where they practice and to make a recommendation to the state. The vote signaled doctors’ support for the state to regulate, track and provide peer review for all doctors performing surgical procedures, closing a loophole in current regulations. * * *

Local doctors had proposed a resolution urging that the statewide association work with the Indiana State Department of Health and create a rule requiring all doctors performing outpatient surgical procedures be subject to peer review. They also wanted patient complications to be tracked, regardless of whether the doctors are affiliated with a local hospital.

Similar concerns cropped up during a study this year regarding the use of anesthesia in an office setting. The state rule on anesthesia took effect this spring and since then the state medical association has been working to resolve the other questions, Welsh said.

McMahan said other procedures such as liposuction and laser hair removal were not covered by the anesthesia rule.

The rule requires doctors using anesthesia to have admitting privileges to a local hospital and subject to peer review. The rule exempted abortion clinics, which are covered under a separate regulation.

The doctors’ vote Sunday comes two weeks after the Allen County Right to Life presented an ordinance to the Allen County commissioners that would require doctors performing certain gynecology-related surgical procedures to have admitting privileges to a local hospital – allowing that hospital to track complications and discipline a doctor if necessary.

Posted by Marcia Oddi on Monday, September 22, 2008
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Tuesday, Sept. 23rd:

9:30 AM - Dreaded Inc. v. St. Paul Guardian Ins. Co. - Dreaded, Inc. filed a complaint against St. Paul Guardian Insurance Company to recover defense costs Dreaded incurred before notifying St. Paul of an environmental claim. The Marion Superior Court entered summary judgment for St. Paul. The Court of Appeals affirmed in part, reversed in part, and remanded. Dreaded, Inc. v. St. Paul Guardian Ins. Co., 878 N.E.2d 467 (Ind. Ct. App., 12/28/2007), vacated. (See ILB summary here - 4th case.) The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over this appeal. Attorneys for Dreaded: George M. Plews, Brett E. Nelson, Indianapolis, IN. Attorneys for Amici Curiae Nat'l Solid Wastes Mgmt. Ass'n and Indiana Petroleum Marketers and Convenience Stores Ass'n. : Charles P. Edwards, Christian P. Jones and John P. Fischer, Indianapolis, IN. Attorneys for St. Paul Guardian Ins.: Mary K. Reeder and Richard A. Rocap, Indianapolis, IN. Jeffrey C. Gerish, Kenneth C. Newa, and David A. Dworestsky, Bloomfield Hills, MI. Attorneys for Amicus Curiae Complex Ins. Claims Litigation Ass'n: Steven W. Krohne and Joseph M. Hendel, Indianapolis, IN. Attorneys for Amicus Curiae Ins. Institute of Indiana: Karl L. Mulvaney, Barry C. Cope and Barbara A. Jones, Indianapolis, IN.

10:15 AM - Jim Atterholt v. Geneva Herbst - In an action for excess damages against the Patient's Compensation Fund following healthcare providers' settlement of a wrongful death claim, the trial court entered judgment in favor of decedent's estate for $1 million. The Court of Appeals affirmed, holding that the Fund's loss-of-chance argument and proffered evidence in support were precluded by the underlying settlement. Atterholt v. Herbst, 879 N.E.2d 1221 (Ind. Ct. App., 2/4/2008), vacated. (See ILB summary here.) The Supreme Court has granted a petition to transferthe case and has assumed jurisdiction over the appeal. Attorneys for Atterholt: Elizabeth K. Knotts and Rori L. Goldman, Indianapolis, IN. Attorney for Herbst: Robert L. Thompson, Ft. Wayne, IN. and Richard L. Schulteis, Indianapolis, IN.

Webcasts will be available here.


This week's oral arguments before the Court of Appeals:

None scheduled.

Posted by Marcia Oddi on Monday, September 22, 2008
Posted to Upcoming Oral Arguments

Law - Text of Draft Proposal for Bailout Plan

Here, from the Sept. 20 NY Times, is the brief text of the proposed bailout legislation. Here is Sec. 8:

Sec. 8. Review.

Decisions by the Secretary pursuant to the authority of this Act are non-reviewable and committed to agency discretion, and may not be reviewed by any court of law or any administrative agency.

Posted by Marcia Oddi on Monday, September 22, 2008
Posted to General Law Related

Sunday, September 21, 2008

Ind. Law - Still more on: Hoosiers may apply for gun permits online

Updating this ILB entry from July 2nd, where the ILB noted:

Instead of going to storefronts that advertise "Gun Permits Typed While You Wait," it appears that the procedure, when implemented in a county, will allow applicants to complete that step online.
Today Jaclyn Youhana of the Fort Wayne Journal Gazette has a long story on the test project going on in Wells County. Some quoters:
Under Indiana gun laws, a weapon handler’s experience doesn’t matter. As long as one has a valid ID and passes a criminal background check, a person can buy a handgun and take it home the same day – no training required.

Now, one northeast Indiana county is part of a test project that will allow residents to apply for a gun permit online, making the process simpler. The permit allows residents to carry a handgun on their person. No such permit is required to carry a rifle. * * *

In Indiana, Wells County and Miami County are trying out a new system that allows residents to apply for a gun permit online. If the test project does well, Indiana officials hope it will go statewide, Wells County Sheriff Bob Frantz said.

The online application process would be quite easy, said Chris Darrah, police records supervisor for the Fort Wayne Police Department. However, she’s not comfortable with the idea of offering permits online; it increases the possibility that people could obtain gun permits deviously, Darrah said.

Frantz acknowledged that it could be easier for applicants to lie on the online form, but a stop at the sheriff’s office is necessary before the permit can be finalized.

“No system’s foolproof, but I think that by having to come here, anybody who shouldn’t have (a gun permit) would be pretty hesitant to do that,” Frantz said.

The new system makes life easier for sheriff’s offices, especially for understaffed departments, Frantz said. It makes the process quicker, is more accurate and should eventually give both the public and the sheriff’s office less hassle. * * *

Indiana is the only state that allows lifetime gun permits. State police rely on an honor code to find out if a permit holder becomes a convicted felon.

Last year, the Fort Wayne Police Department issued 1,718 concealed-carry permits, and 1,059 of those were lifetime permits. The application process for getting a lifetime permit was easy, vanBurk says.

Two weeks after filling out the initial paperwork, vanBurk returned to the Allen County Sheriff’s Department to be fingerprinted. After six to eight weeks, he received his permit in the mail.

He’ll have to make changes only if he moves – he’d have 30 days to change his address – or if he is convicted of a felony, in which case he would be responsible for notifying the state police, vanBurk said.

And that’s how it should be, he said – left to personal responsibility. VanBurk said he is happy with Indiana’s laws and doesn’t think they need to be changed; he said the state should not be regulating such details.

Posted by Marcia Oddi on Sunday, September 21, 2008
Posted to Indiana Law

Ind. Courts - New federal judge, William Lawrence, feted in Mooresville

Nick McLain reported Sept. 20th in a long story in the Mooresville-Decatur Times that begins:

Maybe they put something in the water here. For some reason, the community of Mooresville knows how to raise federal judges.

A native son, William Lawrence, recently was sworn in as the newest judge for the U.S. District Court for the Southern District of Indiana. He joins Judge Joseph Van Bokkelen, another former Mooresvillian (Mooresville High School class of 1961), who was appointed to the U.S. District Court for the Northern District of Indiana in 2007. Van Bokkelen’s father was the town doctor for many years.

Lawrence was a 1965 graduate of Mooresville High School, having grown up on Carter Street since his birth. His father owned the sawmill on South Street. He mentioned several names as an influence during his formative years, including Bob Patterson, a former teacher, and Jack Brown, the former football coach and teacher.

“Every one of them had a significant impact on my life,” he said. “I have nothing but fond memories,” he said.

His investiture ceremony in July also had a strong Mooresville presence, with Van Bokkelen speaking and Tim Currens and Steve Harris, who own a local law practice, and Dick Newcomber, who owns a local lumberyard, also in attendance. George and Jana Carlisle, former owners of Carlisle & Son Funeral Chapel, are cousins of Lawrence and were also present.

“Joe (Van Bokkelen) was just noting how rare it is for a community to have two lifetime-tenured district court judges,” Lawrence said.

Posted by Marcia Oddi on Sunday, September 21, 2008
Posted to Indiana Courts

Courts - Iowa Supreme Court "upholds 2,000-foot rule against sex offender"

The Cedar Rapids Iowa Gazette reported Sept. 20th:

DES MOINES - The Iowa Supreme Court on Friday ruled that a sex offender was not discriminated against when he was charged with violating a residency rule that he claimed was not in effect when he bought his house.

Timothy Willard, 39, of Alburnett, was convicted in 1997 as a sex offender. He bought a house within 2,000 feet of a school in 2005.

Willard was charged with and convicted of an aggravated misdemeanor for violating the residency restrictions. He filed a motion to dismiss, arguing that his rights to due process and other constitutional protections were violated.

Willard contended that he had bought the house based on a February 2004 U.S. District Court of Southern Iowa decision that found the 2,000-foot rule was unconstitutional. He argued there was a federal court injunction in effect when he purchased the house.

The 8th U.S. Circuit Court of Appeals reversed the decision in April 2005. Willard signed a contract to buy the house in May 2005.

Sixth Judicial District Judge Fae Hoover-Grinde ruled his rights were not violated.

Willard then appealed to the Iowa Supreme Court, arguing discrimination based on his conviction and denial of equal protection and due process.

The court Friday upheld the district court's decision.

The court stated the enforcement of the rule was to resume Sept. 1, 2005, and Willard shouldn't have been "under any illusion" that he could live in the house.

"Iowa's 2,000 foot rule has withstood constitutional challenges on several occasions," the ruling stated.

Willard argued he was being punished because he was a sex offender, but the court concluded he was punished for violating the residency restriction that was in place to protect children.

Willard also argued the restriction denies his right to make a home with his family and a right to travel based on his criminal history.

The restriction doesn't prevent sex offenders from living with their families, but does regulate where they live, according to the court.

The right to travel argument also was denied because Willard didn't argue that point to the district court and this court couldn't consider it.

Here is the 12-page opinion. Note this may be only a temporary location for recent opinions - if the link no longer works, check here.

Posted by Marcia Oddi on Sunday, September 21, 2008
Posted to Courts in general

Law - One of the "retirement states" grants reciprocity, kind of

From the Sept. 18th Arizona Republic, a story by Craig Harris:

After a nearly two-year wait, a Phoenix attorney has persuaded the Arizona Supreme Court to make it easier for lawyers outside the state to practice law here.

Timothy Burr said the change also will help Arizona attorneys do work elsewhere, because the rule change gives reciprocity rights to about 40 other states.

"We didn't do this because we want more lawyers here," said Burr, who filed the brief Oct. 2, 2006. "We cared about the reciprocity, and the only way to do that was to let others come in." * * *

The high court announced Tuesday without comment that effective Jan. 1, 2010, it would permit attorneys from other states to practice law here without having to pass Arizona's Bar exam if the lawyer's home state reciprocates for Arizona lawyers. But the out-of-state lawyers will have to pass a test on Arizona law. * * *

The State Bar of Arizona opposed the proposal, saying it would make the state a target for expansion by out-of-state firms. But Ed Novak, the organization's president, said Wednesday that he was OK with the ruling because outside lawyers still must pass a test on Arizona law.

Posted by Marcia Oddi on Sunday, September 21, 2008
Posted to General Law Related

Ind. Courts - Still more on: The first "help desk" -- for the newfangled "book"

The "mainstream media" has just picked up on the "Big Monk" YouTube video, first noted in the ILB on Sept. 13th (with link) and again on Sept. 15th. From today's Political Notebook column in the Fort Wayne Journal Gazette:

A new video making YouTube rounds stars Indiana’s top legal mind – Indiana Supreme Court Chief Justice Randall T. Shepard.

Taped in the Statehouse by candlelight, Shepard plays a monk – Brother Randall – who is struggling with how to use the newfangled device taking the place of scrolls – the book.

Brother David – played by State Court Administration deputy director David Remondini – is the IT guy. The entire video is a spoof of a Norwegian bit on the first help-desk call.

Remondini tells Shepard that “a lot of people are having trouble with the new system” and asks whether Shepard has tried opening the book.

“If it was that simple I wouldn’t have called the help desk,” Shepard deadpans.

The rest of the clip features Remondini teaching Shepard about how to open and close the book and turn the pages, and explaining that the text doesn’t disappear.

The duo made the video to air at this year’s judicial conference as a way to remind judges around the state to ask for help when they need it.

“It was a huge hit,” said Kathryn Dolan, spokeswoman for the Indiana Supreme Court. “They try to do a little something creative every year.”

And the views are up since last weekend -- last time I looked there were 257, the count this morning is 1,057.

Posted by Marcia Oddi on Sunday, September 21, 2008
Posted to Indiana Courts

Saturday, September 20, 2008

Ind. Decisions - Court grants transfer in three cases

The formal transfer list should follow early Monday, but the ILB has received advance notice of three cases granted transfer at the Court's conference Thursday, Sept. 18th:

Todd A. Clark v. Michelle Clark - Lambert-related; see the ILB summary of the June 10th COA decision here -- 6th case.

Steven McCullough v. State - see the ILB summary of the June 30th COA ruling here - 7th case.

Jeffrey A. Graham v. State - see the July 24th ILB summary of the COA ruling here - 3rd case.

Posted by Marcia Oddi on Saturday, September 20, 2008
Posted to Indiana Transfer Lists

Friday, September 19, 2008

Ind. Courts - 7th Circuit panel at IUPUI next Tuesday

From IUPUI:

On Tuesday, Sept. 23, 2008, the Seventh Circuit Court of Appeals will hear oral arguments for three cases during sessions in the Wynne Courtroom of the IU School of Law-Indianapolis (Inlow Hall), 530 W. New York St.

The cases scheduled are USA v. Ricky L. Fines and LeRoy F. Miller; Jonathan S. McGlothan, M.D. v. Tracey Wallace and Eric Wallace; and Sondra J. Hansen and William R. Hansen Individually and on behalf of C.H. v. Board of Trustees of Hamilton

Cases are to be heard beginning at 4:15 p.m., Sept. 23. A panel of judges is to be announced before court time.

The court periodically visits different law schools to hold oral arguments for the benefit of the students. The arguments are open to the general public and to the media, but proceedings cannot be recorded or photographed.

The Indianapolis Bar Association will host a reception with a cash bar in the Conour Atrium following the arguments.

Briefs to these cases should be available from the 7th Circuit site. You will need the case numbers. One way to find them is from the weekly calendar, but next week's calendar is not posted yet. Once you have the case number, check here for the briefs.

[More] A reader points out that IndyLaw has posted the briefs online - access them here. He adds: "Seating is first-come, first-seated, with a short break between arguments to allow people to leave and enter."

Posted by Marcia Oddi on Friday, September 19, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Man arrested after attack on lawyer in Jefferson County Courthouse"

Brian Jones, writing for the Madison Courier, reports today:

A Madison man was arrested on a charge of battery Wednesday afternoon after allegedly assaulting his attorney on the first floor of the Jefferson County Courthouse.

Benjamin Dale Linville, 33, who gained attention in September 2004 when he caused a power outage for an estimated 3,700 Madison households, approached his attorney Mary Beth Mock at around 1:15 p.m. on Wednesday from behind and pushed her into the north wall of the courthouse's first floor hallway, according to an eye-witness account. When Mock turned around, Linville pushed her head into the hard plaster wall again, according to a sheriff's department report and an eye-witness account.

When Mock screamed for help, Superior Court Judge Fred Hoying came out of the auditor's office and followed Linville out of the courthouse and told him to sit at a picnic table at the west end of the courthouse while law enforcement was contacted, according to a sheriff's department report. * * *

Four years ago this month, Linville was accused of breaking into the electrical substation at West Second and Vernon streets and throwing switches, resulting in an estimated 3,700 Madison residents experiencing a power outage. Most of the outages were downtown. Electrical service was also affected on State Road 56 to Shirks Hollow as well as some outages in Clark County.

When Linville was formally charged in Circuit Court, he became disruptive and threw a microphone across the courtroom and knocked over the defense counsel table when Todd wouldn't allow him to immediately plead guilty. At that time, Todd wanted Linville to undergo a psychiatric evaluation before entering a plea. Mock represented Linville in that case, in which he later pleaded guilty.

Posted by Marcia Oddi on Friday, September 19, 2008
Posted to Indiana Courts

Ind. Decisions - Supreme Court issues disciplinary ruling

In In the Matter of Kimberly O. Powell, a 5-page, Per Curiam opinion, the Court writes:

Respondent's misconduct includes failing to take action in cases; failing to keep clients informed about the status of their cases; failing to respond to clients' requests for information; accepting a settlement without the client's approval; giving clients erroneous legal advice; failing to appear at hearings; missing deadlines; failing to properly handle, use, account for, and/or refund money paid to her by clients; charging unreasonable fees; failing to reduce contingent fee agreements to writing; misrepresenting the extent of her professional experience to clients; and making false statements to the Commission during its investigations. The details of some of the counts of misconduct are summarized below. * * *

In light of Respondent's multiple acts of serious professional misconduct, we conclude that Respondent must be given the strongest sanction available. We therefore disbar Respondent Kimberly O. Powell effective immediately. The Clerk of this Court is ordered to strike her name from the roll of attorneys.

Posted by Marcia Oddi on Friday, September 19, 2008
Posted to Ind. Sup.Ct. Decisions

Courts - Similarities between the 9th Circuit Immigration decision this week, and the Voter ID decision

One view: They were both failed facial challenges to statutes. Discussion of the 9th Circuit's ruling in Chicanos Por La Causa v. Napolitano is here, from yesterday morning. From the story quoted in the Yuma Sun:

Still, the court noted that its ruling is based on the law as it is written and not on its actual application. Because no employers have been sanctioned under the 9-month-old law, an actual case could open up the law to fresh review.

"(W)e must observe that it is brought against a blank factual background of enforcement and outside the context of any particular case," Judge Mary Schroeder wrote for the panel.

Therefore, Wednesday's ruling would not apply to any future complaint based on a real case that challenged the sanctions.

The facial challenge to the Indiana voter ID case, Crawford v. Marion County Election Board, was rejected by the 7th Circuit and the SCOTUS.

See "Are Facial Challenges Going the Way of the Dodo?", quoted in this ILB entry from August 9th.

Posted by Marcia Oddi on Friday, September 19, 2008
Posted to Courts in general

Ind. Gov't. - More on: Indiana OKs $8.5 million payout to some state workers

Updating this ILB entry from August 19th, that concluded:

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.
Today the ILB received in the mail a "Court-Approved Notice and Claim Form Regarding Brattain, et al. v. Richmond State Hospital, et al." The claim is to be submiited by Nov. 1, 2008 to the Claims Administrator in Milwaukee, WI. If you are a member of the class and wish to object to the terms of the settlement, the notice provides that you must file with the Court no later than Oct. 17, 2008.

A website, hoursofworksettlement.com, is listed on the bottom of each page of the mailing.

Posted by Marcia Oddi on Friday, September 19, 2008
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 5 today (and 19 NFP)

For publication opinions today (5):

In Armand Murat v. South Bend Lodge No. 235 of the Benevolent and Protective Order of Elks of the Unites States of America, et al. , a 9-page opinion, Judge May writes:

Armand Murat sought to enjoin the Elks and Burkhart Advertising, Inc. from placing a billboard within an area over which he has an easement for ingress and egress. The trial court issued a temporary restraining order, but later dissolved it and denied Murat’s request for a permanent injunction. We affirm. * * *

Burkhart argues the contemporaneous document doctrine should not apply because the Elks were not a party to the Dockery-Murat deed. Murat, citing cases from other jurisdictions, argues the doctrine may apply even though the parties to the documents are not the same. * * *

Application of the contemporaneous document doctrine is determined on a case-by-case basis, Rowell, 705 N.E.2d at 482, and Murat has not explained why the Elks should be bound by the Dockery-Murat deed. We believe the doctrine should be applied cautiously when the documents involve different parties.* * *

The Dockery-Elks deed does not specify the width of the easement; therefore, Murat has an easement for necessary or reasonable ingress and egress to his property. * * * Therefore, we conclude Murat is entitled to have an easement sufficiently wide and long to permit trucks to reach the rear of the stores and restaurant. * * *

However, we cannot say the evidence points unerringly to the conclusion that placing the sign in the grassy area will interfere with Murat’s reasonable use of the easement. * * *

The trial court did not err by concluding the sign would not interfere with reasonable ingress and egress to Murat’s lot and declining to award a permanent injunction.

In American National Property and Casualty Co. v. Tracey Wilmoth and Charlotte Sharpe as Administratrix of the Estate of Richard Lee Rider, Sr., et al. , a 10-page opinion, Judge May writes:
Traci Wilmoth and Richard Rider lived with their two children in a house they rented from Robert and Betty Bowers (collectively, “Bowers”). The house burned November 1, 2000, and the children were killed. Rider died a week later from injuries sustained in the fire. Wilmoth and Charlotte Sharpe, administratrix of Rider’s estate, sued The American National Property and Casualty Co. (ANPAC), alleging it permitted spoliation of evidence concerning the origin of the fire, which evidence they might have needed in an action against Bowers. ANPAC’s motion for summary judgment was denied and a jury awarded damages to Wilmoth and Sharpe.

ANPAC was entitled to summary judgment because it had no duty to preserve the evidence for Wilmoth and Sharpe. We accordingly reverse. * * *

We reverse the denial of ANPAC’s motion for summary judgment, as ANPAC owed Wilmoth and Sharpe no duty to preserve evidence when no lawsuit had been filed, when the relevance of the evidence could not have been anticipated, and when ANPAC never had possession of the evidence.

In Christopher Bailey v. State of Indiana, a 6-page opinion, Judge May writes:
Christopher Bailey challenges the sufficiency of evidence supporting his convictions of Class B misdemeanor battery and Class B misdemeanor disorderly conduct. We reverse. * * *

Bailey notes “the State presented no evidence that Bailey had an opportunity to stop walking or change the direction of his path in order to avoid making contact with Brewer’s outstretched arm.” Without knowing the amount of space between Brewer and Bailey when Brewer put her arm up, we cannot infer Bailey walked with awareness “of a high probability” that he was going to bump into Brewer’s outstretched arm. Accordingly, we reverse this conviction. * * *

Because Bailey’s behavior was not “tumultuous,” we reverse his conviction of disorderly conduct. See, e.g., Davis v. State, 672 N.E.2d 1365, 1367 (Ind. Ct. App. 1996) (reversing conviction of disorderly conduct where defendant’s conduct was unlikely to result in personal injury or property damage).

In Dannie Engram v. State of Indiana, a 10-page opinion, the question was "Whether the trial court abused its discretion when it admitted into evidence the results of a ballistics test that had been performed three years earlier on Engram’s handgun." Judge Najam concludes:
The test-firing of Engram’s handgun revealed no private information but did provide an additional means to identify his weapon apart from its serial number. Engram’s argument that the 2004 test-firing of his handgun violated his Fourth Amendment rights must fail. Affirmed.
In Samuel Hardley v. State of Indiana , a 6-page opnion, Judge Najam writes:
Samuel Hardley appeals the trial court’s denial of his petition for writ of habeas corpus. Hardley raises a single issue for our review, which we restate as whether the trail court abused its discretion when it denied his habeas petition. We reverse and remand. * * *

The State correctly notes that Hardley’s challenge was, properly, a request for post-conviction relief. We agree that Hardley’s petition is an attack on the validity of his probation revocation and therefore should have been styled as a petition for post-conviction relief. The proper remedy for that dilemma was for the trial court to recognize substance over form and “treat the petition as one for post-conviction relief,
6
based on the content of the petition, rather than the caption.” Partlow, 756 N.E.2d at 980 (citing Hawkins, 268 Ind. at 140, 374 N.E.2d at 498). However, instead of taking that action, the trial court here dismissed Hardley’s petition altogether. As such, the trial court abused its discretion, and we must reverse its decision. Reversed and remanded for proceedings not inconsistent with this opinion.

NFP civil opinions today (6):

Kevin R. Schultz v. Janel R. (Schultz) Marsh (NFP)

Kimberly A. Hyder v. Lois A. Hempfling, et al. (NFP)

Thurston J. Jorgenson, Judith B. Wolford, et al. v. Michigan City, Indiana Board of Zoning Appeals, et al. (NFP)

The Term. of Parent-Child Rel. of: H.G. and S.G. (minor children), Lisa G. (mother) v. Allen Co. Dept. of Child Svcs. (NFP)

Brian Smith v. Madison Co. Dept. of Child Svcs. (NFP)

Boyd Bryant v. Golden Rule Ins. Co., et al. (NFP)

NFP criminal opinions today (13):

Gregory S. Campbell v. State of Indiana (NFP)

John H. Adams v. State of Indiana (NFP)

Larry Craig v. State of Indiana (NFP)

James E. Lewis v. State of Indiana (NFP)

Joshua L. Schonefeld v. State of Indiana (NFP)

Jeremy Fitzgerald v. State of Indiana (NFP)

Laurence F. Myers, Jr. v. State of Indiana (NFP)

Victor G. Curbello v. State of Indiana (NFP)

Antonio L. Vaughn v. State of Indiana (NFP)

Bryan G. Mosley v. State of Indiana (NFP)

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

Christopher Young v. State of Indiana (NFP)

Shane R. Edwards v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 19, 2008
Posted to Ind. App.Ct. Decisions

Courts - More on: Kentucky appeals court rejects adoption by lesbian couple

Following up on this ILB entry from Sept. 16th on the Kentucky Court of Appeals ruling this week that held, to quote the LCJ story from that date: "the court said that stepparent adoptions are allowed only when the stepmother or father is married to the biological parent, and marriages between gays are forbidden by both statute and Kentucky's constitutional amendment banning same-sex marriage," here is an AP story from the 17th, including this quote:

A lawyer with the American Civil Liberties Union said the ruling hurts children.

"It's basically denying a child the protection of having two legal parents, simply because the parents are gay," said Christine Sun, who works in the ACLU's lesbian, gay, bisexual and transgender rights division.

Sun said the ruling also affects gay men and heterosexuals in Kentucky who seek to adopt but are not married to the child's biological parent.

Sun said courts in other states have ruled that stepparent-like adoptions are in the best interests of children despite laws, like Kentucky's, that bar gay couples from marriage. She said those states include Indiana and Illinois.

See Mariga v. Flint (Ind. COA, 2/16/05), trans. denied 11/25/05.

See also this editorial from the Louisville Courier Journal, dated Sept. 17th:

The recent ruling by the Kentucky Court of Appeals, regarding the laws of gay adoption, was both technically correct and a stark reminder of the lack of fairness for gay citizens, and their children, in the commonwealth.
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The law says adoptions by stepparents may occur only when the stepfather or stepmother is married to the child's biological parent. Kentucky does not allow gay marriages because of a constitutional amendment, so gay stepparents may not adopt in this state.

It is an irrational Catch-22, one built on intolerance and bigotry, but a legal Catch-22 it is.

The ruling grew out of a complicated case involving a lesbian couple who agreed to be life partners, shared a last name, had a child by artificial insemination and had joint custody of the child. When their relationship ended, the woman who bore the child was the primary residential custodian. The other woman moved to adopt the child, and that was granted in 2005. The judge cited other states that allow stepparent adoptions.

In its rejection of that ruling, the Court of Appeals chided that judge -- and other judges -- who disregarded Kentucky's laws banning gays from marrying in similar cases. The court also stressed stepparent-like adoption does not exist in Kentucky, which means this ruling could impact straight parents, too.

The Court of Appeals was bound and supported by the constitution and statutes in this ruling.

But clearly the laws are hurtful to families and children. The earlier they can be reconsidered, the better.

As is so often the case, children are paying for shortsighted legal and procedural answers to personal and societal issues. Shouldn't children have the benefit of two loving parents, gay or straight?

Equality is not an option in the United States. Sooner or later, gay people will enjoy the same rights and protections as everyone else.

It needs to be sooner. For our part, that means Kentucky must recognize that its unfair laws punish our gay citizens for being gay.

Thanks to Diana Skaggs of the Kentucky Divorce and Family Law Blog for the links.

Posted by Marcia Oddi on Friday, September 19, 2008
Posted to Courts in general

Ind. Courts - The COA judges "were all over the facts”

Yesterday's oral arguments in the case of Caesar's Riverboat Casino vs. Genevieve M. Kephart, heard in Anderson by a panel made up of Judges Darden, Mathias and Crone, was the subject of a story in the Louisville Courier Journal that begins:

The lawyer for a woman who blames the former Caesars Indiana casino for luring her to spend $125,000 while knowing she was addicted to gambling told an appeals panel today the riverboat shouldn’t be immune from taking steps to harm her.

Terry Noffsinger, the lawyer for Jenny Kephart of suburban Nashville, Tenn., told a three-judge panel of the Indiana Court of Appeals that Kephart’s claims are different from those of other addicted gamblers who try to sue after they lose money because her hosts knew her and knew she had a gambling problem.

But Caesars lawyer Gene Price of New Albany said the casino is strictly regulated and is obligated to avoid doing business with people who acknowledge a gambling addiction by asking to be banned. Under questioning, Price said there’s no common law basis that would have required the casino to keep Kephart from gambling.

Kephart’s case is significant because it could rewrite the law on whether casinos have a duty to protect customers who are addicted to gambling. Courts in Indiana and other states have held that casino operators don’t have to prevent patrons from gambling and consequently aren’t responsible for a person’s losses.

The arguments today were held at Anderson University. More than 100 students and faculty of the Church of God-affiliated school watched intently as the judges vigorously grilled Price and Noffsinger.

Price said afterward the numerous questions showed the judges had done their homework before the 90-minute session.

“I thought the judges seemed really well prepared. They knew the case law (cited in briefs). They were all over the facts,” he said.

From an AP story today in the South Bend Tribune:
Attorney Terry Noffsinger, representing Kephart, argued that casinos should be held more accountable than other industries due to the nature of their business.

"I just don't believe that we should say, 'OK, casinos, free rein," he said.

But Caesar's attorney Gene Price said that the casino staff intervenes when a customer appears to have a problem and participates in a state-mandated voluntary exclusion list on which Kephart did not appear.

"Every business attempts to target people who they think are susceptible to their products or services," Judge Terry Crone observed at one point as the judicial panel questioned attorneys from both sides. He later asked Price if the gambling industry should be held to stricter standards than other businesses if it were found to be dangerous.

Price said he didn't believe the gambling industry was dangerous.

Posted by Marcia Oddi on Friday, September 19, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on "Geist lawyers backing out"

Updating yesterday's ILB entry, today John Tuohy of the Indianapolis Star reports:

FISHERS, Ind. -- Town officials on Thursday defended the amount they've spent in the long fight to annex Geist homeowners, even as both sides braced for a courtroom showdown.

Fishers' leaders a day earlier revealed records showing they have paid six law firms, two accountants, a city planner and a legislative consultant more than $1,243,070 since January 2007 in their pursuit of 2,200 homes near and on Geist Reservoir.

"This is a one-time cost to correct a long-term inequity," said Town Council President Scott Faultless. "It will take less than a year to make this back."

A majority of the Geist residents oppose annexation and have sued Fishers to prevent it.

Fishers sought help in various areas -- planning the annexation, beating back residents' attempts to create two new towns and successfully battling an anti-annexation bill in the General Assembly, records released by the town show. The costs range from $253,786 to the law firm of Bose McKinney & Evans, to $133,437 to the Indianapolis public relations company of Sease, Gerig & Associates. * * *

Town officials say their legal costs are worth it because the town will gain millions in property taxes from the homeowners for years to come if the annexation succeeds. * * *

Fishers projects it will reap $10.2 million in property taxes -- after deducting for the cost of added services -- in the first five years of annexation. * * *

"People should know that barely any of these costs are related to the annexation itself but instead to defending ourselves on all these other fronts," said Bryan Babb, an attorney for Indianapolis-based Bose McKinney. If the homeowners had agreed to the annexation, the cost would have been about $100,000, he said.

The town offered three-year tax abatements and pledges of free sewer hook ups to the homeowners if they agreed to annexation. Instead, Geist United rejected the offer and went to court last September to incorporate as its own towns, East Geist and West Geist.

During that skirmish, which ended in December, Fishers spent $330,152. Included in the costs were $23,081 to Carmel-based Wabash Scientific, an urban planning firm that did a report on what services Fishers could provide to Geist, and $37,099 to Greenwood-based Reedy & Peters, an accounting firm that determined how those services would be paid for.

After a judge ruled that the homeowners couldn't incorporate, the homeowners found a sponsor for a legislative bill that would ban involuntary annexations.

The town spent $228,135 fighting the bill, including $42,000 to the Indianapolis law firm Barnes & Thornburg for legislative monitoring and evaluation and $16,679 to Sease, Gerig.

Posted by Marcia Oddi on Friday, September 19, 2008
Posted to Indiana Courts

Courts - "Suits, Legislation Over a Civil Right to Counsel Grow Across U.S."

Tresa Baldas of The National Law Journal reports today in a story that begins:

Through litigation and legislation, a growing number of private and public interest lawyers across the country are pushing to secure those with low incomes the right to counsel in civil matters, including foreclosures, evictions and child custody cases.

Legal aid groups are under-funded and overworked, they argue, and pro bono services aren't enough to fill the gap for the millions who go unrepresented.

"We can't do it alone," said Kathryn Grant Madigan, immediate past president of the New York State Bar Association, who for the past year has been hitting the radio airwaves with public service announcements calling for a civil right to counsel.

"No one should lose their child because they did not have effective counsel," said Madigan, partner at Levene Gouldin & Thompson in Binghamton, N.Y. "This is a significant social movement, and it has spread indeed all over the country. We've been beating this drum for so long and hard, and we've gotten to the place now where everyone is starting to pay attention."

On the litigation front, attorneys are asking the Ohio Supreme Court to rule that an elderly, low-income couple facing loss of their home through foreclosure has a state constitutional right to counsel at state expense. Hill v. Myers, No. 08-1141.

The Alaska Supreme Court is considering whether the state has to provide an attorney for a mother involved in a custody dispute because the woman is poor and the father has a lawyer. A lower court granted the attorney, but the case was appealed. Gordanier v. Jonsson, No. 3AN-06-8887.

In Washington state, the Supreme Court ruled in December that there is no right to legal representation in divorce cases. The case involved a woman who couldn't afford a lawyer at her divorce trial and lost primary custody of her children. Her husband had an attorney. King v. King, 174 P.3d 659 (Wash. 2007).

The article continues, surveying state legislative action, and more state court examples.

Recent related ILB entries include "Lawyers difficult to obtain in immigration cases" from Sept. 3rd, and ""Lake commissioner backs proposal to prune public defender staff" from Sept. 8th.

Posted by Marcia Oddi on Friday, September 19, 2008
Posted to Courts in general

Ind. Law - "Golf carts a cheaper, but illegal, way to get around small towns"

So wrote Laura Lane yesterday in the Bloomington Herald-Times. Some quotes from the excellent story ($$):

WORTHINGTON — Hal Harp is a law-abiding town council president in his town of 1,452. But when he considers the state law that keeps his golf cart from legally traveling the small town’s roads, he becomes a bit of an anarchist.

“We’ve been riding golf carts around town for 10 years, and nobody ever said anything about it,” Harp said. “We haven’t had any incidents, nor has anyone raised any concerns about them. Pretty much everyone here agrees it’s OK.”

Golf carts on the roads are a recent controversy, brought to the forefront by sky-high gas prices and golf cart affordability. Battery-operated ones sell for as little as $1,500.

Harp keeps his 1995 model parked right by his garage, the 6-volt battery always plugged in and charging. When he wants to go to the town hall, or when his wife needs a loaf of bread or eggs from the nearby grocery, they unplug the cart and go on their way. She no longer drives a car, and he doesn’t see the need to waste pricey gasoline to travel half a mile across town.

“There’s probably 20 or 25 golf carts in Worthington, maybe more than that,” Harp said. “And when we had our big yard sales day at the end of August, there were probably 100 golf carts in town.”

But there’s a problem. While state law does not specifically mention golf carts or prohibit them from roadways, it does essentially ban them from the roads because the state’s Bureau of Motor Vehicles will not register them for street use or issue license plates unless they have safety features that include a horn, headlights and taillights, turn signals, windshields and seat belts.

But no license plate means no access to roads and highways.

That’s why Worthington’s police force had to take its official police golf cart off the streets.

“It has markings that says it belongs to the Worthington Police Department, and we’re hoping they will become legal so it can be used for events and for cruising around and patrolling the town,” Harp said. “It has a real visible presence. I don’t think the officers could run anyone down or chase them with it, but then we generally don’t have that much crime in Worthington.”

The report continues:
Bill Poe lives in Linton, Greene County’s largest city. And just about every day, the 79-year-old breaks the law, zipping off in his three-wheeled golf cart to run errands in town.

He purchased the vehicle a year ago at a yard sale, and has invested about $1,200 in the vehicle — $400 for six-volt batteries. He depends on the cart to transport him to and from the bank, the Sav-A-Lot, Angell’s grocery, fast-food restaurants’ drive-though windows and friends’ homes. He even ventures to the Super Wal-Mart at the edge of town once in a while, and takes great care in crossing the busy highway. * * *

His top speed? About 12 mph. “I’ve got a mirror, and when I see someone coming up behind me I’ll pull over and wave them around me,” Poe said. “I try to be courteous. You have to use your head, and your eyeballs, and you’ll be all right.”

Poe told Linton Mayor Tom Jones that he should take seriously citizens’ desire to travel around town in golf carts. “I said pretty much the only industry they have left in town is retired people, and that is who you see on golf carts,” Poe said. “You see them out, mostly of an evening, when they go visiting and just ride around and talk to other people and enjoy life.” * * *

Last month, the Indiana State Police issued a statement clarifying that a golf cart is a motor vehicle under state law because it is self-propelled. And while the police note that some municipalities around the state have adopted laws allowing golf cart traffic, “those local ordinances are superseded by state statutes.” * * *

But golf carts are a common sight on the streets of the southern Indiana town of New Harmony. You can rent one at the visitors center — $15 an hour, or $60 for an entire day — and travel on the historic town’s roads except for Church Street, which is part of a state highway.

New Harmony calls itself “the Golf Car Capital of Indiana,” a quaint community where “golf cars are the accepted mode of transportation for residents and visitors alike,” according to the New Harmony Golf Car Co.’s Web site.

Town Marshal Scott Champlin said he knows there is controversy about the use of golf carts, but his town council stands by its 2006 ordinance allowing them on the streets. “So far, we are still letting them ride,” Champlin said. “I know there is some difference of opinion, but the town board talked to their attorney about it.”

Champlin will be riding one around town this weekend, patrolling during the Kunstfest, a German food and arts celebration of the town’s heritage that attracts thousands of people.

New Harmony’s ordinance requires golf carts to have headlights, a rear taillight visible from 300 feet, adequate brakes and a rear-view mirror. They cannot travel faster than 25 mph. Operators must register their vehicles with the town’s clerk-treasurer and show proof of insurance. They pay a $15 fee, which is used to maintain the New Harmony Wabash River Greenway Trails.

Back in Greene County, neither Harp nor Poe has been ticketed for operating their golf carts on city and town streets. Poe said he has come face-to-face with police officers at stop signs, and they have gone on by.

Both men have contacted State Rep. Sandy Blanton, a Democrat from Orleans, asking her to sponsor legislation to change the law to make golf carts legal on Hoosier roads. She said she hopes to find a balance between safety concerns and rural transportation options. * * *

Harp said it’s essential that golf cart drivers be careful, stay off heavily traveled roads and follow safety rules.

“I think the state Legislature should legalize the use of them, and allow the town councils to decide if it is right for their town or not,” Harp said.

Find other ILB entries on golf carts here.

Posted by Marcia Oddi on Friday, September 19, 2008
Posted to Indiana Law

Thursday, September 18, 2008

Ind. Decisions - - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In In the Matter of the Estate of Lawrence W. Inlow; Anita Inlow v. Jason L. Inlow, Heather N. Johnson, et al. , a 12-page, 2-1 opinion, Judge Vaidik writes:

Following Indianapolis attorney Lawrence W. Inlow’s funeral and burial, his widow, Anita, paid those expenses and then received reimbursement from his estate (“estate”). In turn, the Personal Representative of his estate and four of his five children sought reimbursement of these expenses from Inlow’s wrongful death settlement proceeds (“wrongful death proceeds”). The trial court approved this reimbursement. Anita filed a motion to correct error, arguing that the trial court had distributed proceeds from the wrongful death proceeds contrary to Indiana Code § 34-23-1-1. The trial court denied the motion, and Anita now appeals. She argues that Indiana Code § 34-23-1-1 requires the payment of funeral and burial expenses from a wrongful death award to a decedent’s estate only where the award specifies what portion is attributable to funeral and burial expenses. Concluding that Inlow’s funeral and burial expenses were properly reimbursed to his estate, we affirm. * * *

The trial court did not abuse its discretion in denying Anita’s motion to correct error. Affirmed.

MATHIAS, J., concur.
MAY, J., dissents with separate opinion. [which begins] The majority would uphold the award to the estate of proceeds from the wrongful death settlement in an amount equal to the funeral and burial expenses, on the premise Ind. Code § 34-23-2-2 does not require “itemization” of wrongful death award proceeds. Because the statute undoubtedly requires such damages be categorized, if not “itemized,” I must respectfully dissent.

In William A. Brackin v. Peggy J. Brackin , an 11-page opinion, Judge Robb writes:
William Brackin appeals the trial court’s distribution of property pursuant to its dissolution of William’s marriage to Peggy Brackin. Specifically, William argues that the trial court erred in awarding Peggy a 2006 Buick Lucerne automobile (“Lucerne”). Concluding that the evidence clearly and convincingly establishes that William and Peggy intended the Lucerne to be a gift to Peggy from William, we affirm. * * *

The evidence in this case is uncontroverted that William gave the Lucerne to Peggy with the words, “Come out and see the new car I bought you.”; that Peggy primarily drove the Lucerne for her personal use; that William drove the Lucerne only occasionally or while the two were riding in the Lucerne together; and that William damaged the vehicle in a fit of angry retaliation directed at Peggy. William presented no evidence to negate his donative intent aside from his name continuing to appear on the certificate of title. Therefore, we find, as a matter of law, the evidence clearly and convincingly establishes William’s donative intent and that William and Peggy intended the Lucerne as a gift to Peggy from William.

In State of Indiana v. Kelvin Calmes , an 11-page opinion on rehearing, Judge Brown writes:
The State of Indiana appealed the trial court’s grant of a motion to suppress filed by Kelvin Calmes. The State raised one issue, which we revised and restated as whether the trial court erred when it granted the motion to suppress. We reviewed this issue in an unpublished memorandum decision and affirmed the trial court’s grant of the motion to suppress. See State v. Calmes, No. 02A03-0802-CR-56, slip op. at 7 (Ind. Ct. App. June 27, 2008). The State subsequently filed a petition for rehearing. We reaffirm our opinion but grant the State’s petition for rehearing to address the State’s rehearing argument that our reliance on Finger v. State, 799 N.E.2d 528 (Ind. 2003), was misplaced. * * *

We grant rehearing and clarify and affirm our original opinion as set forth herein.

NFP civil opinions today (1):

Joseph Elliott v. Wanda Elliott (NFP) - "Joseph Elliot appeals the trial court’s dissolution decree, which dissolved his marriage to Wanda Elliot and divided the marital estate between Joseph and Wanda. On appeal, Joseph raises one issue, which we restate as whether the trial court properly included proceeds from a lump-sum worker’s compensation settlement award (the “Settlement Proceeds”) as marital property subject to division. Concluding the trial court did not abuse its discretion in including the Settlement Proceeds as marital property subject to division, we affirm."

NFP criminal opinions today (7):

Dewayne Easley v. State of Indiana (NFP)

Michael Buckner v. State of Indiana (NFP)

Claude F. Wixson v. State of Indiana (NFP)

Cory J. Buehner v. State of Indiana (NFP)

Justin M. Phillips v. State of Indiana (NFP)

Paul John Kocielko, Jr. v. State of Indiana (NFP)

Rita McKnight v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 18, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Judge Stephen M. Jessup, Howard Superior Court 2, admonished [Updated]

From the Indiana Courts, this release:

The Indiana Commission on Judicial Qualifications issued today a Public Admonition of Judge Stephen M. Jessup, Howard Superior Court 2. The Commission is a seven-member body comprised of the Chief Justice of Indiana, three lawyers elected by lawyers throughout the State, and three non-lawyers appointed by the Governor. Supreme Court rules give the Commission the discretion to issue a Commission Admonition instead of proceeding to formal charges when the judge consents to that resolution and when the Commission determines that a Public Admonition sufficiently addresses the misconduct alleged.
The Commission’s Admonition can be found here.

Earlier ILB entries, under the headling "Howard County Judge accuses deputy prosecutor of drug use," can be found from 5/1/08, 5/3/08, and 5/8/08.

Posted by Marcia Oddi on Thursday, September 18, 2008
Posted to Indiana Courts

Courts -- "Law & Mortar: An examination of a courthouse building boom"

This is a series by the Lexington Herald-Leader. Thanks to the Kentucky Law Blog for the link.

The first story, by Linda Blackford, was last Sunday, with the preface:

In 1998, the Kentucky State Supreme Court's new chief justice, Joseph E. Lambert, embarked on an ambitious program to build or improve courthouses in all 120 counties in the state. But a decade and $880 million later, has the courtroom boom been worth the cost?
There are nearly a dozen stories in the series. From Tuesday, a story by Greg Kocher begins:
While Kentucky has chosen to build 65 new judicial centers at a cost of more than $800 million, Texas has distributed about $270 million in matching grants for the renovation of 60 courthouses.

The Texas Historic Courthouse Renovation Program has restored about 50 county courthouses in the past nine years, said Stan Graves, who directs that effort for the Texas Historical Commission. It is the largest preservation grant program ever initiated by a state government.

"We have in no case allowed under our program the demolition of a historic courthouse to put a new judicial center in that spot," he said. "To me, a demolished building has a lot less significance than one that's had to be altered to accommodate some security concerns."

Texas has 254 counties.— more than twice the 120 in Kentucky — and roughly 235 Texas courthouses are considered historically significant. Of those, about 150 were built before 1920, and about 80 were built before 1900.

Contrast the Kentucky building boom with the federal courtroom situation. Tony Mauro of Legal Times reported yesterday in a story that began:
Federal trial judges may start doubling up to reduce the need for courtroom space at a time when budgets are tight and fewer cases go to trial. The Judicial Conference, the policy-making body of the federal judiciary, took baby steps in that direction at its fall closed-door meeting at the Supreme Court on Tuesday.

The conference agreed that in future court construction, every two senior judges will have to share a single courtroom. Similar court-sharing will be considered for magistrate and bankruptcy judges, as well as nonsenior trial judges in larger courthouses. The policy for senior judges may have limited impact, since little new courthouse construction is planned in the near future.

Anthony Scirica, chief judge of the 3rd U.S. Circuit Court of Appeals, said at a press conference following the meeting that the move toward shared courtrooms was part of the judiciary's ongoing cost containment efforts and a response to congressional pressure to find ways to "use courtrooms effectively."

Scirica, who chairs the conference's executive committee, also acknowledged that the number of trials is dropping, with many cases settling or being diverted to private arbitration. In an article in the law review Green Bag last year, Judge D. Brock Hornby of the U.S. District Court for the District of Maine wrote that the number of civil trials in federal court has declined 60 percent since the mid-1980s, transforming the job of judges. But Scirica said it is still "important to have a judge available and a courtroom available" to keep cases moving and for trials to take place when needed.

Posted by Marcia Oddi on Thursday, September 18, 2008
Posted to Courts in general

Ind. Courts - "Helping voters judge the judges"

From an editorial today in the South Bend Tribune:

The St. Joseph County Bar Association is undertaking an effort that ought to be an aid to voters in making wise decisions. We welcome it wholeheartedly.

There has been renewed interest for several years now in changing the way judges are chosen in St. Joseph County. As it is, St. Joseph is one of only two counties whose Superior judges are chosen through a merit system rather than elected by voters. In 90 Indiana counties, all judges are elected.

State law provides that in St. Joseph and Lake counties, individuals may offer themselves for the job of Superior judge. The list is narrowed to five by a judicial merit commission. The governor then picks the new Superior judge from the finalists. The governor is forbidden to take into account party affiliation.

After six years, Superior judges' names go on a general election ballot so voters can decide whether to retain them for six more years. They are pretty much assured of being kept on the bench.

St. Joseph County has seven Superior judges. The other two county judges — Circuit and Probate — are popularly elected in partisan races. The merit selection process for the seat of retiring Superior Judge William T. Means now is under way. Gov. Mitch Daniels has been given the names of five finalists for the job.

There are persuasive arguments both for and against electing Superior judges instead of employing the merit system. The most convincing, we think, is that voters often don't know enough about Superior judges who are up for retention to decide whether they're doing a good job.

It is hard to know. Superior judges don't campaign. They aren't forced to face a challenger or to defend their records. The difficulty of judging the judges was made more apparent two years ago by an in-depth Tribune series on the issue. Comparing judges to one another based on case outcomes is very problematic because of the complexity of cases.

After years of reluctance to judge the judges, the St. Joseph County Bar Association has found a way to evaluate performance that will utilize the combined experience of its 500 member attorneys and assure confidentiality. The lawyers are being asked to score the Superior judges on a wide range of job performance topics — such matters as efficiency, knowledge of the law and courtroom demeanor.

We hope that the rate of bar association participation is high, reflecting the importance of this undertaking. The more lawyers who weigh in, the more meaningful the results will be.

The question of whether Superior judges should be elected undoubtedly will come up again in the General Assembly next year. That will be the subject of another editorial then.

For now, in St. Joseph County, the election season also is the judicial retention season. The bar association will be presenting its survey results in October.

All seven Superior judges will be evaluated. Those of most interest to voters — and, we dare say, to the judges themselves — will be the four who are standing for retention: John M. Marnocha, Michael P. Scopelitis, David C. Chapleau and Jane Woodward Miller.

The evaluations are bound to be useful information to all who read them. [Emphasis added by ILB.]

Note with respect to both the St. Joseph County retention election and the State-wide retention election for appellate court judges, absentee voting begins October 6th.

Posted by Marcia Oddi on Thursday, September 18, 2008
Posted to Indiana Courts

Courts - WSJ column surveys jury duty

Some quotes from the lengthy article today by Nathan Koppel:

Jury duty is like the speed limit: We know we're supposed to honor it, but we try to skirt it anyway. Businesspeople and professionals are some of the worst offenders, believing they are too busy to serve, especially on long trials. For a system that shapes defendants' fortunes and lives, and depends on fairness and balance, there's a whole lot of gaming going on.

The gamesmanship extends to lawyers, who winnow out prospective jurors they think will decide against them, and lobbyists, who try to shape the jury pool by influencing states' selection methods. And it is all based on assumptions that look shrewd and often turn out to be wrong.

To make the process more just and representative, many states have passed laws increasing juror pay, shortening the waiting period to be picked for juries and casting a wider net for prospective jurors. New York, one of the first states to introduce reforms, eradicated a seemingly random list of exempt occupations, including clergy, foot doctors and embalmers.

Over the past five years, other states have followed suit. In Indiana, following 2006 legislation, ferry-boat captains no longer get a pass. Starting next year in Tennessee, "habitual drunkards" will have to line up, as best they can, to perform their civic duty, as will certified public accountants.

Trial judges have joined the fray, issuing arrest warrants for no-show jurors and holding "juror scofflaw" court to punish truants. (Not all judges are so hard-nosed; in the recent Manhattan case, many people were excused, including the vacationing woman and the unemployed job seeker.)

The WSJ Law Blog follows up with an entry headed "The American Jury System: A Whole Lot Of Gaming Going On."

Posted by Marcia Oddi on Thursday, September 18, 2008
Posted to Courts in general

Courts - SCOTUS Is Now Guiding Fewer Nations

So writes NY Times legal columnist Adam Liptak today in his continuing series, American Exception. Some quotes:

WASHINGTON — Judges around the world have long looked to the decisions of the United States Supreme Court for guidance, citing and often following them in hundreds of their own rulings since the Second World War.

But now American legal influence is waning. Even as a debate continues in the court over whether its decisions should ever cite foreign law, a diminishing number of foreign courts seem to pay attention to the writings of American justices.

“One of our great exports used to be constitutional law,” said Anne-Marie Slaughter, the dean of the Woodrow Wilson School of Public and International Affairs at Princeton. “We are losing one of the greatest bully pulpits we have ever had.”

From 1990 through 2002, for instance, the Canadian Supreme Court cited decisions of the United States Supreme Court about a dozen times a year, an analysis by The New York Times found. In the six years since, the annual citation rate has fallen by half, to about six.

Australian state supreme courts cited American decisions 208 times in 1995, according to a recent study by Russell Smyth, an Australian economist. By 2005, the number had fallen to 72.

The story is similar around the globe, legal experts say, particularly in cases involving human rights. These days, foreign courts in developed democracies often cite the rulings of the European Court of Human Rights in cases concerning equality, liberty and prohibitions against cruel treatment, said Harold Hongju Koh, the dean of the Yale Law School. In those areas, Dean Koh said, “they tend not to look to the rulings of the U.S. Supreme Court.”

Posted by Marcia Oddi on Thursday, September 18, 2008
Posted to Courts in general

Ind. Decisions - "Supreme Court backs sewer-bill transfer: Owners get tenants' past-due accounts" [Updated]

Yesterday's Supreme Court opinion in the case of Pinnacle Properties Development Group, LLC v.City of Jeffersonville, Indiana (see ILB entry here) is the subject of a story today in the Louisville Courier Journal reported by Lesley Stedman Weidenbener. Some quotes:

The city of Jeffersonville can transfer sewer bills to property owners when their tenants fail to pay, the Indiana Supreme Court ruled yesterday in a case that could have statewide implications.

The justices decided unanimously that the city does not have to provide notice to the property owner that a bill is delinquent and will be transferred to the landlord because "the property owner is ultimately responsible for the payment of sewer fees."

"Billing the tenant is a convenience afforded the owner, but the owner is ultimately responsible for the sewer service," Justice Ted Boehm wrote in the 5-0 decision.

The ruling upholds a trial-court decision in a dispute between Jeffersonville and Pinnacle Development Group LLC, a large owner and operator of apartment buildings and other real estate in the city.

Pinnacle sued the city, challenging the system of making landlords responsible for unpaid sewer bills of apartment tenants. Other cities also use the system.

Pinnacle claimed the procedure caused "an extraordinary amount of unnecessary paperwork and costs" for the business.

William McCall, Pinnacle's lawyer, said yesterday that he was somewhat surprised that the Supreme Court disagreed, particularly because the Indiana Court of Appeals had sided with his client.

"My gut reaction is that they probably shifted the burden to the property owner as a cost of doing business, rather than shifting it to the municipality," McCall said. "Simply being able to transfer a bill to someone doesn't seem to me to be proper procedure."

The court acknowledged that "the city's practice may inconvenience Pinnacle. By the time Pinnacle learns of a tenant's delinquency, it may be too late for Pinnacle to track down and collect from the tenant under the lease."

But the court said landlords are not without means to address that risk of doing business, particularly in Jeffersonville, where the ordinance allows them to opt out of the tenant-billing program. Pinnacle could bill tenants individually or include an average sewer charge in the rent, the court said.

The ordinance also permits Pinnacle to examine the city's collection records each month to determine whether tenants are current on their sewer bills, and the company could also collect additional deposit money from tenants to cover any delinquent fees, the court said.

[Updated 9/26/08] See also this story in the 9/26/08 New Albany News & Tribune.

Posted by Marcia Oddi on Thursday, September 18, 2008
Posted to Ind. App.Ct. Decisions

Ind. Law - Virginia O'Leary, Indiana civil rights lawyer, dies

Lindsey Ziliak reports today in the Evansville Courier & Press:

Virginia O'Leary broke the proverbial glass ceiling in her pursuit of providing equality in the work force to others.

O'Leary, who died Tuesday, was a civil rights lawyer in Oakland City, Ind., at a time when not many women practiced law.

"She was one of the first female trial lawyers for employment discrimination in Southwestern Indiana," said William Hussmann, U.S. District Court magistrate judge for the Southern District of Indiana in Evansville.

She practiced law for more than 30 years, specializing in employment discrimination and taking on large corporations such as Fifth Third Bank, Atlas Van Lines, General Electric and Philip Morris.

"She was a true champion of workers," Hussmann said. "She cared deeply about her clients."

O'Leary was known for filing sex discrimination cases, and longtime friend Deborah Howard said "Many women in this area owe more than they know to her because she opened doors of opportunity for them."

Howard knew O'Leary before she practiced law. The two met when Howard took a class O'Leary taught at Oakland City University, and they remained friends for years.

Her absence, Howard said, will leave a large hole.

"I'll miss her for the rest of my life," she said. "I've been teaching for 21 years, and I don't miss class. But I couldn't teach yesterday. I couldn't act like it didn't matter to me."

In 2004, O'Leary received the Indiana Torchbearer's Award for her work to eliminate barriers for women.

Darlene Robinson, O'Leary's legal partner and best friend, said that although her friend worked for women's rights, she also took the occasional reverse discrimination case. Robinson recalled O'Leary handling several cases involving discrimination against male nurses and elementary school teachers.

Robinson said O'Leary was a proponent of civil rights in general.

Both Robinson and Howard agreed it takes a special person to devote a lifetime to civil law.

"She could have made a lot more money working for the robber barons," Howard said. "But that wasn't her calling."

"She was there to right wrongs," Robinson said tearfully. "She's one of the people that makes law an honorable profession. She'll be missed by everyone she touched, and there's a lot of us."

Posted by Marcia Oddi on Thursday, September 18, 2008
Posted to Indiana Law

Ind. Courts - Allen Court tickets phone-ban violators

Rebecca S. Green reports today in the Fort Wayne Journal Gazette:

If you bring a cell phone or other electronic device – and you haven’t noticed the 19-month-old ban – into the Allen County Courthouse, you might get a ticket.

And please understand, this is not some claim ticket for you to pick up your phone, your iPod, your electronic gizmo on your way back out of the building. This is an actual ticket, like appear-before-the-judge-and-pay-a-fine kind of ticket. And if you get that ticket, technically a contempt citation, you can kiss that electronic device goodbye.

The ticket books go along with the big, bright red signs that are unambiguous in announcing the prohibition on electronic devices in the Courthouse.

In the two months since Courthouse security officers have had the tickets, they haven’t had to use them yet, said Sgt. Brian Sandberg of the Allen County Sherriff’s Department, who heads up the court security arm of the department’s civil division.

Since the Allen County judges came up with the order banning all electronic devices – such as cell phones, mp3 players and cameras – beginning Jan. 1, 2007, there have still been a few scofflaws.

Some stash the items in the bushes outside, taking a chance no one saw them put the devices there. Others, when caught, will take the items back to their cars or wherever.

But there have been a few who pushed the issue and smuggled the devices into the building.

Those people have not been happy. In most cases, their phones have been seized by court officers and later destroyed, in spite of passionate pleas to the judges for the electronics’ safe return.

Sandberg said those caught smuggling the devices into the building will be given a choice – they can either sign a “consent to destroy” form or they can chose to go before a judge on the contempt citation.

If they fail to prove they are not in contempt of court, the phone will likely be destroyed.

Posted by Marcia Oddi on Thursday, September 18, 2008
Posted to Indiana Courts

Courts - 9th Circuit upholds Arizona immigration law imposing employer sanctions

Jim Small of the Arizona Capitol Times reports, in a story that begins:

A federal appeals court has upheld Arizona's employer sanctions law, which penalizes businesses that knowingly hire illegal immigrants and requires them to verify the employment status of their workers.

Business and Hispanic groups challenged the law on the grounds that it oversteps the state's authority to regulate immigration, an argument that was rejected by the 9th Circuit Court of Appeals in a ruling released today.

The law imposes a civil penalty on businesses that knowingly hire illegal workers. Violating the law could cause a business's licenses to be suspended or revoked.

Although it upheld the law, the three-judge panel that heard the case left the door open for other challenges to the law, noting that no businesses have been prosecuted in the nearly nine months the law has been on the books and specifically pointing out that future challenges will not be controlled by the decision.

The Yuma Sun has a lengthy story today. And from the Arizona Republic, Mary Jo Pitzl writes:
Enacting sanctions that could take away the licenses of employers who hire illegal workers is a proper role for state government, the 9th U.S. Circuit Court of Appeals ruled Wednesday.

The decision upholds a ruling of a federal judge from December and adds fuel to opponents' determination to champion an alternative law that will go before voters in Arizona on Nov. 4.

The three-judge appeals panel noted that states can use licensing laws to enforce immigration-related policies.

A coalition of business and civil-rights groups had argued that federal immigration law makes that off limits.

The judges also agreed that the mandatory use of a federal system called E-Verify to screen new hires is permissible and is not prevented by federal law.

Still, the court noted that its ruling is based on the law as it is written and not on its actual application. Because no employers have been sanctioned under the 9-month-old law, an actual case could open up the law to fresh review.

"(W)e must observe that it is brought against a blank factual background of enforcement and outside the context of any particular case," Judge Mary Schroeder wrote for the panel.

Therefore, Wednesday's ruling would not apply to any future complaint based on a real case that challenged the sanctions.

In short, the 9th Circuit rejected a facial challenge to the law. Here is the 26-page opinion in Chicanos Por La Causa v. Napolitano.

Relevance to Indiana? See this ILB entry from Sept. 10th headed "Indiana legislators tackle illegal immigration again," where the Arizona law is mentioned, as well as this Indianapolis Star story from Sept. 17th.

Posted by Marcia Oddi on Thursday, September 18, 2008
Posted to Courts in general

Wednesday, September 17, 2008

Ind. Courts - Judge George B. Hoffman, Jr. has been selected as the recipient of the 2008 Legendary Lawyer Award

Via a press release from the Indiana Courts:

Judge George B. Hoffman, Jr. has been selected by the Fellows of the Indiana Bar Foundation as the recipient of the 2008 Legendary Lawyer Award. A practicing attorney for 57 years, Judge Hoffman retired from the Court of Appeals Indiana and currently serves as Senior Judge.

Judge Hoffman is an involved member of the legal community dedicating his time on the local, state and national levels. He was elected to the Appellate Court Bench in 1968. From 1972 through 1974, Judge Hoffman served as Chief Judge of the Court of Appeals. During his time as Chief Judge, Judge and has authored more than 3,000 majority opinions. Judge Hoffman began the Appeals on Wheels program, which takes the Appellate oral arguments from Indianapolis to the law schools, universities, high schools and court rooms throughout Indiana. * * *

Judge Hoffman will be honored at a luncheon on Friday, September 19th.

Posted by Marcia Oddi on Wednesday, September 17, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 13 NFP)

For publication opinions today (0):

NFP civil opinions today (5):

In Ernst Von Hahmann, Jr. and Robert Held v. Estate of Stuart A. Hansen, and David P. Jones (NFP), a 10-page, 2-1 opinion, Judge Najam writes:

It is undisputed that the notes were a corporate obligation of RPC. The triable issue is whether the notes were also the individual obligations of Hansen and Jones. See, e.g., Trenton Trust Co. v. Klausman, 296 A.2d 275 (Pa. Sup. Ct. 1972) (holding, in case involving similar signature line issue, that ambiguity warranted admission of evidence to determine parties’ intent). The weight of parol evidence is not a proper consideration on summary judgment. Instead, we must construe all facts and reasonable inferences in favor of the non-moving party. Jesse, 725 N.E.2d at 423. Given the ambiguity in the form of the notes, Von Hahmann and Held’s deposition testimony to the effect that Hansen and Jones “personally guaranteed” repayment of the loans, and the Estate and Jones’ burden of proof under Indiana Code Section 26-1-3.1-402(b)(2)(B) to show the parties’ intent, we hold that summary judgment is inappropriate. Hansen and Jones are not entitled to a judgment as a matter of law.Reversed and remanded for further proceedings.

DARDEN, J., concurs.
BROWN, J., dissents with separate opinion. [which begins] I respectfully dissent from the majority’s conclusion that the trial court erred by granting summary judgment to Hansen and Jones. I conclude that the promissory notes were a corporate obligation and that the promissory notes do not constitute personal guaranties of the corporate obligation. Consequently, I would affirm the trial court’s grant of summary judgment.

City of Mishawaka v. Marian Kvale, Personal Rep. of the Estate of Gordon Barclay (NFP) - "In determining the amount in which the Estate was unjustly enriched, an equitable remedy, the determinative factor is not necessarily the amount of the mortgages. Rather, we consider to what extent the Estate has been conferred a “measurable benefit” by the City’s actions. See Bayh, 573 N.E.2d at 408. The trial court determined that the measurable benefit to the Estate was the increase in the value of the home, which was $3,500.00. The evidence supports the trial court’s assessment of the increased value. The City has not established the trial court erred is assessing the amount of the benefit to the Estate.

"Conclusion. The trial court had subject matter jurisdiction to decide the City’s unjust enrichment claim. The City has not established that the trial court erred in measuring the benefit retained by the Estate as $3,500.00. We affirm. Likewise, because the City is claiming unjust enrichment, the cases involving replevin, fraud, voidable contracts, and rescission are not applicable to our decision today."

Lokmar Abdul-Wadood v. Officer Cole, et al (NFP) - "Appellant-plaintiff Lokmar Abdul-Wadood appeals the trial court’s orders granting summary judgment in favor of appellee-defendant Officer Ernestine Cole and refusing to enter a default judgment against two other appellees-defendants. Finding no error, we affirm."

Brittney Gates, et al v. Ronald Pierson, et al (NFP) - "Appellants-plaintiffs Brittney Gates, Ashley Gates, Matthew Gates, and Larry Rogge (collectively, the appellants) appeal the trial court’s order setting aside a default judgment that had previously been entered against appellees-defendants Ronald G. Pierson, Debora J. Pierson, and George W. Houston, III (collectively, the appellees). The appellants argue that the appellees failed to establish that they did not receive adequate service of process and that the appellees have similarly failed to show that relief from the default judgment was warranted pursuant to Indiana Trial Rule 60(B). Finding no error, we affirm."

Robin Kilbourn v. Caryl Kilbourn (NFP) "The trial court’s decision to grant Caryl’s request to relocate to Florida with K.K. was not clearly erroneous. The trial court did not abuse its discretion by ordering Robin to assume the transportation costs associated with parenting time. We affirm."

NFP criminal opinions today (8):

Bradd E. Stroup v. State of Indiana (NFP)

Lester Smith v. State of Indiana (NFP)

Andre Cross v. State of Indiana (NFP)

Chad Stewart v. State of Indiana (NFP)

Mario Borroel v.State of Indiana (NFP)

Ryan Smith v. State of Indiana (NFP)

Michael Szarek v. State of Indiana (NFP)

James E. Saylor v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 17, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one opinion today

In Pinnacle Properties Development Group, LLC v.City of Jeffersonville, Indiana, a 5-page, 5-0 opinion, Justice Boehm writes:

The City of Jeffersonville provides sewer service under the general statute authorizing municipalities to provide this service. The City bills tenants directly for sewer service. We hold that the City may transfer a tenant’s delinquent balance to the property owner’s account without notice to the owner because the property owner is ultimately responsible for payment of sewer fees. * * *

We acknowledge that the City’s practice may inconvenience Pinnacle. By the time Pin-nacle learns of a tenant’s delinquency, it may be too late for Pinnacle to track down and collect from the tenant under the lease. But Pinnacle is not without means to address this risk of doing business. As permitted in the ordinance, Pinnacle could opt out of the City’s tenant billing pro-gram and bill tenants individually or include an average sewer charge in the rent amount. The ordinance also permits Pinnacle to examine the City’s collection records each month to deter-mine whether its tenants are current on their sewer bills. Pinnacle could also collect additional deposit money from its tenants to cover any delinquent fees.

Conclusion. The judgment of the trial court is affirmed.

Posted by Marcia Oddi on Wednesday, September 17, 2008
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Indiana Court of Appeals to hear oral argument at IU School of Law--Bloomington"

From an IU press release:

BLOOMINGTON, Ind. -- The Indiana Court of Appeals will hear oral argument in Paul L. Mishler v. State (20A03-0712-CR-577) on Monday, Sept. 29, at 6 p.m. in Moot Court Room 123 at the Indiana University School of Law--Bloomington. A panel composed of Chief Judge John G. Baker, Judge Edward W. Najam and Judge Paul D. Mathias will hear the case on appeal from Elkhart Superior Court.

The case involves statements and a videotaped interview allowed into evidence in a child molestation case. The appellant contends that the statements and interview failed to satisfy the admissibility requirements of Indiana Code section 35-37-4-6, the "Protected Person Statute," and that the admission of the victim's statements violated his right to confront witnesses testifying against him.

The Court will determine whether an error occurred in admitting the child victim's pretrial statements and videotaped interview into evidence at trial. Arguing for the appelllant, Paul L. Mishler, will be Juan Garcia Jr. of Garcia & Crawford LLC, Elkhart.

Posted by Marcia Oddi on Wednesday, September 17, 2008
Posted to Ind. App.Ct. Decisions

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

Updating this ILB entry from August 31st, Pamela A. MacLean of The National Law Journal reports today under the headline "DOJ Falls Short on Promised Immigration Judge Reform, Report Says." Some quotes:

The U.S. Department of Justice has failed to implement most of 22 reforms of the immigration judge system promised two years ago, including establishing a discipline system, more oversight of judges and improving the appeals process, according to a study released last week.

Former U.S. Attorney General Alberto Gonzales announced the 22-point plan in August 2006, in the wake of mounting complaints by federal appellate judges about the lack of quality in immigration judging and media accounts of abusive judges who faced little or no discipline.

The department, and its agency charged with implementing the plan, has "failed to complete key improvement measures that go to the heart of ensuring that the immigration courts are staffed by capable, skilled judges that have sufficient time and resources to accurately do their job," the report concluded.

It was produced by the Transactional Records Access Clearinghouse as part of a two-year project supported by Syracuse University and a number of foundations. * * *

The TRAC report found that the Executive Office for Immigration Review, which has authority over the nation's 215 immigration judges and is responsible for implementing the changes, has failed to conduct any performance evaluations of immigration judges or appeals board members and has not implemented a code of judicial conduct.

The report also claims the department has not issued a final rule that would reduce the use of single-judge appellate decisions known as "affirmances without an opinion" and increase more rigorous appellate review by three-member panels.

Traditionally, the Board of Immigration Appeals decides immigration appeals in panels of three judges. But that was severely curtailed by former Attorney General John Ashcroft in a move to eliminate a backlog of immigration appeals.

A single appeals judge was allowed to issue one-line opinions affirming cases without explanation of the legal basis. This pushed the mountain of appeals up to the federal circuit courts of appeals, which were unable to do legal analysis of the holdings. In addition, the TRAC report found that the Justice Department has not proposed rules that would return wrongly decided cases to the BIA for reconsideration.

Here is a link to the comprehensive TRAC study.

Posted by Marcia Oddi on Wednesday, September 17, 2008
Posted to Indiana Courts

Law - "NCAA pre-screening gets attention in USC case involving O.J. Mayo"

Lance Pugmire of the LA Times reports today:

When allegations surfaced this year that USC basketball star O.J. Mayo had received improper benefits from a sports agency funneled through close advisors, the university pointed to its own scrutiny of Mayo and said an NCAA "investigation" had deemed him eligible.

Now, with two sources confirming that an NCAA representative met with Mayo and advisor Rodney Guillory for several hours before certifying the player's eligibility for the 2007-08 school year, there is national focus on how that NCAA pre-screening process could affect USC's possible culpability in the Mayo scandal.

USC Athletic Director Mike Garrett and men's basketball Coach Tim Floyd declined to comment, but university officials have privately expressed frustrations about the severity of any looming discipline the NCAA or Pacific 10 Conference may deliver the Trojans in light of the NCAA screening of Mayo.

And several college basketball coaches say they are closely watching to see how the case turns out.

"We're all interested in seeing what happens to USC," said Kansas State Coach Frank Martin, "not to see them meet their fate, but to see if there are issues that happened that have nothing to do with USC's knowledge." * * *

Some coaches argue that by stamping a figurative seal of approval on a top recruit, the NCAA effectively reduces a college's accountability if the athlete is later found to have received extra benefits before enrolling in school.

Posted by Marcia Oddi on Wednesday, September 17, 2008
Posted to General Law Related

Courts - "Man accused of impersonating lawyer won't be own attorney"

From an AP story by Dale Wetzel, published today by the LCJ:

BISMARCK, N.D. -- A man accused of impersonating a lawyer in federal courts in 10 states including Kentucky has pleaded not guilty to two felony charges -- and says he will not act as his own attorney in the case.

Court records say Howard O. Kieffer, 53, represented several clients, including a former St. Louis Blues hockey player who pleaded guilty to plotting to kill his agent and a Colorado woman who was convicted of soliciting the murder of her former husband.

Neither target was harmed.

At Kieffer's arraignment Monday, U.S. Magistrate Charles Miller scheduled his trial for Nov. 18 in Bismarck. * * *

Court documents show Kieffer was hired to work on cases in Kentucky, Tennessee, Ohio, Illinois, Alabama, Colorado, Florida, Georgia, Minnesota and Missouri.

Posted by Marcia Oddi on Wednesday, September 17, 2008
Posted to Courts in general

Ind. Courts - "Geist lawyers backing out"

That is what the headline reads today, to John Tuohy's story in the Indianapolis Star that begins:

Legal proceedings in Fishers' battle to annex 2,200 homes near Geist Reservoir hit a snag Tuesday when the homeowners' attorneys said they want out.

An opponent of annexation said they wanted more cash.

"They wanted a $75,000 retainer, and we don't want to pay that," said Joe Weingarten, a member of Geist United Opposition.

The attorneys for Krieg DeVault, Carmel, wrote in a filing to Hamilton Superior Court Judge Steven Nation that "the attorney-client relationship with the petitioners has been terminated and has become untenable."

The attorneys asked that a trial date in two weeks be pushed back 30 days.

Attorney Brian J. Zaiger, who filed the motion, could not be reached for comment, nor could co-counsels Robert Schein and Matthew Strzynski.

Geist United representative Rachel Quade said the group would hire another lawyer to continue the case if needed but said "we are still hoping that we can work something out" with Krieg DeVault.

Donations from homeowners pay Geist United's legal fees -- $100,000 to Krieg DeVault over two years, Quade said. The group still has money on hand, but Quade would not divulge how much. She estimated the trial and appeals would cost another $100,000.

Posted by Marcia Oddi on Wednesday, September 17, 2008
Posted to Indiana Courts

Tuesday, September 16, 2008

Environment - "Burning Issue: As wood stoves gain popularity, air-quality concerns rise"

The ILB has had many entries about outdoor, wood fired furnaces or boilers. Yesterday the WSJ had a long article by Suzanne Barlyn on the environmental hazards of indoor wood stoves. Some quotes:

The soaring prices of heating oil and natural gas are prompting many Americans to warm their houses with a less expensive fuel -- wood. * * *

But increased reliance on wood stoves is worrying many environmental regulators and activists, who say the practice emits harmful pollutants. Around the country, local environmental regulators are limiting the use of stoves when pollution is especially bad, and in some cases they're offering incentives to get people to buy the cleanest models possible.

"People conceive of burning wood as being natural. Tobacco is natural, too -- until it burns," says Julie Mellum, president of Take Back the Air, an organization concerned with neighborhood air pollution, and Midwest director of Clean Air Revival, a group concerned with the medical hazards of wood-smoke exposure. "When many people are burning wood, the effect is all the more hazardous." * * *

In 1988, an Environmental Protection Agency regulation required new stoves to keep particulate emissions below certain levels. Some states and municipalities require that all stoves sold and installed carry an "EPA certified" designation.

But some clean-air advocates say the EPA's certification standards aren't stringent enough to curb runaway pollution. Even wood stoves that are certified as "clean burning" by the EPA still emit 107 times more fine particulates than an oil-fired furnace.

Earlier this year, the Western States Air Resources Council in Seattle and Northeast States for Coordinated Air Use Management in Boston, both of which are groups of air-quality agencies, urged the EPA to tighten its certification standards with stricter particulate requirements. The EPA says it's reviewing the information it needs to revise the standards.

Posted by Marcia Oddi on Tuesday, September 16, 2008
Posted to Environment

Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)

For publication opinions today (3):

In Municipal Tax Liens, Inc. v. Michael Alexander , a 4-page petition on rehearing, Judge Brown writes:

We conclude that Querrey is not instructive because, as Alexander concedes, Querrey did not involve a successor in interest situation.

While Alexander’s petition for rehearing is granted, our original opinion stands in all respects.

In Alfred McClure v. Jackie Cooper , a 9-page, 2-1 opinion, Judge Bailey writes:
Alfred McClure appeals the trial court’s judgment in favor of his former client, Jackie Cooper. We affirm but remand with instructions. * * *

The trial court did not err in denying McClure’s Motion to Dismiss for Improper Venue or his Motion for Change of Judge. Finally, Cooper had standing to bring this action but because he failed to list his claim against McClure in his bankruptcy filing, we remand to the trial court with instructions to notify the bankruptcy court and trustee of the small claims court’s judgment and this Opinion. Cooper may then take such action as allowed but the bankruptcy court and trustee. Affirmed but remanded with instructions.

FRIEDLANDER, J., concurs.
KIRSCH, J., dissents with opinion. [which begins] Indiana Trial Rule 76 (C)(5) addresses the situation where a court holds a hearing in a matter and at that hearing sets the matter for trial. That is not the situation here. Here, the court simply set the matter for trial.

In Robert J. Micheau v. State of Indiana , a 26-page opinion, Judge Brown concludes:
For the foregoing reasons, we affirm Micheau’s convictions for Count I, dealing in methamphetamine as a class B felony; Count III, dealing in a sawed off shotgun as a class D felony; Count IV, possession of marijuana as a class A misdemeanor; and Count VI, attempted dealing in methamphetamine as a class A felony. We vacate the convictions and sentences entered for Count II, possession of methamphetamine as a class D felony, and Count V, possession of chemical reagents or precursors with intent to manufacture a controlled substance as a class C felony.

Affirmed in part and vacated in part.

NAJAM, J. concurs
ROBB, J. concurs with separate concurring opinion [that begins] I concur in the majority opinion, but write separately as to the admission of evidence issue only to note that there can be a murky line between a parole search and an investigatory search, because the same conduct may be both a parole violation and a new crime.

NFP civil opinions today (1):

In Sunday Ayangade v. Oluwatoyin Ayangade (NFP), a 13-page opinion, Judge Robb writes:

Sunday Ayangade appeals the Marion Superior Court’s (the “Dissolution Court”) order granting his ex-wife, Oluwatoyin Ayangade, relief from judgment pursuant to Indiana Trial Rule 60(B)(3). On appeal, Sunday raises two issues, which we consolidate and restate as whether the Dissolution Court improperly granted Oluwatoyin relief from judgment. We affirm, concluding that because Oluwatoyin established she was entitled to relief from judgment as a matter of law, the Dissolution Court did not improperly grant her such relief. * * *

The foregoing makes clear that Sunday was willing to make inconsistent representations to the Nigerian and American courts in an effort to both procure dissolution and custody on terms that were favorable to him and to resist Oluwatoyin’s legitimate efforts to do the same. This court has stated consistently that relief from judgment pursuant to Trial Rule 60(B)(3) may be predicated on extrinsic fraud, which consists of fraud that prevents a trial of the issue in the case or improperly procures the exercise of the court’s jurisdiction. See In re Paternity of B.N.C., 822 N.E.2d 616, 619 (Ind. Ct. App. 2005); Global Travel Agency, Inc. v. Metal Recovery Techs., Inc., 727 N.E.2d 1101, 1104 (Ind. Ct. App. 2000). Sunday’s inconsistent representations not only prevented a final hearing on Oluwatoyin’s petition, but also blocked the Dissolution Court from even exercising jurisdiction in the first place. As such, we are convinced that Oluwatoyin established she was entitled to relief from judgment as a matter of law, and it therefore follows that the Dissolution Court’s order granting her such relief was not improper.

Conclusion. The Dissolution Court’s order granting Oluwatoyin relief from judgment pursuant to Trial Rule 60(B)(3) was not improper. Affirmed.

NFP criminal opinions today (11):

Kevin Boese v. State of Indiana (NFP)

James Collier v. State of Indiana (NFP)

Clarence Oatts v. State of Indiana (NFP)

Lakeita Colbert v. State of Indiana (NFP)

Anthony Giddeon v. State of Indiana (NFP)

M.B. v. State of Indiana (NFP)

Michael Venis v. State of Indiana (NFP)

Cordell D. Smith v. State of Indiana (NFP)

Michael Leigh Stephens v. State of Indiana (NFP)

Allen Gary v. State of Indiana (NFP)

Sylvester Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 16, 2008
Posted to Ind. App.Ct. Decisions

Courts - Kentucky appeals court rejects adoption by lesbian couple

Andrew Wolfson of the Louisville Courier Journal writes today in a very long story about a complex decision issued this week in the case of S.J.L.S. v. T.L.S - access the 61-page opinion here. Some quotes from Wolfson's article:

In a harshly worded opinion, the Kentucky Court of Appeals has barred judges from allowing lesbians to adopt as though they are a stepparent.
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Ruling 3-0 in a Jefferson County case, the court said that stepparent adoptions are allowed only when the stepmother or father is married to the biological parent, and marriages between gays are forbidden by both statute and Kentucky's constitutional amendment banning same-sex marriage.

In a 62-page ruling issued Friday about the case, the court said that with a "wink-wink" and a "nod-nod," Family Court Judge Eleanore Garber and lawyers for a lesbian couple ignored those laws.

And as many as three or four family court judges in Jefferson County may have allowed such adoptions, the opinion said.

"It is not this or any court's role to judge whether the legislature's prohibition of same-sex marriage ... is morally defensible or socially enlightened," Judge Glenn Acree of Lexington wrote for the court in the decision that criticized Garber and the lawyers involved.

"Nor is it this or any court's role ... to craft any means by which the legal consequences of such a prohibition may be negated or avoided."

The case involved two women identified only as S.J.L.S. and T.L.S. and their son, identified as Z, who is now 8.

The court allowed T's adoption of Z, but only because S waited more than a year to challenge it, and Kentucky law says adoptions can't be attacked for any reason after more than one year.

Regardless of that case's outcome, however, the court said "stepparent-like adoption" does not exist under the laws of Kentucky. "We wish to make this point perfectly clear." * * *

Ten states now recognize so called "stepparent-like adoptions," according to the ACLU, including most recently Colorado, which last year enacted a law allowing same-sex couples, as well as grandparents, aunts, uncles and other relatives, to jointly adopt children.

The bill's sponsor said it would protect the rights of children in nontraditional families by ensuring that they remain with one parent if something happens to the other.

Advocates say that if a child can't be adopted by his second parent, the child loses the right to inherit property from that parent, or receive Social Security benefits or life insurance benefits, or to be eligible for health insurance under that parent's policy or to sue for their wrongful death. * * *

Diana Skaggs, president of the Kentucky Chapter of the American Academy of Matrimonial Attorneys, said the ruling will bar unmarried heterosexual partners from adopting, even if they provide all the love and caring that a married parent might provide.

But Skaggs noted that the opinion is harsher for gays, who cannot marry in Kentucky.

See Skaggs' respected Kentucky Divorce and Family Law Blog here, and particularly this entry today.

A quick review of the ILB turned up these two entries, from: Sept. 3, 2004 and Feb. 16, 2005.

Posted by Marcia Oddi on Tuesday, September 16, 2008
Posted to Courts in general

Courts - Pennsylvania Federal Judge Upholds Student's Suspension for Fake MySpace Page

Shannon P. Duffy of The Legal Intelligencer reports today in a long story that begins:

An eighth-grade student who was suspended for 10 days after she created a fake page on MySpace.com that depicted her principal as a pedophile and a sex addict has lost her civil rights suit now that a federal judge has ruled that the discipline was proper and didn't violate her free speech rights.

"A school can validly restrict speech that is vulgar and lewd and also it can restrict speech that promotes unlawful behavior," U.S. District Judge James M. Munley wrote in his 20-page opinion in J.S. v. Blue Mountain School District. [ILB - access the opinion here]

In the suit, attorneys Mary Catherine Roper of the American Civil Liberties Union of Pennsylvania and Mary E. Kohart and Meredith W. Nissen of Drinker Biddle & Reath argued that the suspension was unconstitutional because the speech took place outside of school and because it violated the parental rights of the student's parents to determine how best to raise, nurture, discipline and educate their child.

According to court papers, J.S. and another student, identified as K.L., posted a profile on MySpace in March 2007 that showed a photo of principal James S. McGonigle they had taken from the district's Web site.

For Indiana's MySpace case, A.B. v. State, see this ILB entry from May 14th, and this entry from May 13rd -- fourth case, followed by followed by several additional links.

Posted by Marcia Oddi on Tuesday, September 16, 2008
Posted to Courts in general

Monday, September 15, 2008

Law - Lawyers' shark sign grandfathered under new sign ordinance

Here is the story from the Charleston Post & Courier, reported by Edward C. Fennell, which you will want to check to see the shark sign. From the story:

FOLLY BEACH — Over the Bolus law office door is a huge plastic front end of a shark, seemingly swimming — jaws agape — out into Center Street.

On one side of the law office is the AM-PM Convenience Store, where owner Eric Rom admires the oddity and the sense of humor of lawyers who would use a shark to advertise their presence. He said tourists often pose under the unique sign.

But on the other side of the office with the "shark sign" is City Hall, where some wish they could put legal jaws on the big fish.

The shark sign is safe because it's "grandfathered" but never would have been permitted under a new sign ordinance to be considered by city council, members of the Planning Commission noted last week.

Posted by Marcia Oddi on Monday, September 15, 2008
Posted to General Law Related

Law - California demands site stop posting building code and other California laws online

Recall earlier ILB entries on copyrighted building codes, from August 7th, Sept. 2nd, and Sept. 3rd.

Today the Washington Times includes this news reported by Kara Roland:

In an action that mirrors a similar case this spring, California is asserting a copyright over its state statutes in a move that seeks to limit their reprinting and distribution.

The claim mirrors one made in April by lawyers for Oregon, who sent a cease-and-desist letter to Justia .com for posting the Oregon Revised Statutes online. Authorities accused the Palo Alto, Calif., company of copyright infringement and demanded that the legal site either link to the state's own Web site or pay for a license to publish the statutes.

In the latest instance of states claiming copyright over their laws, public information activist Carl Malamud posted the California Code of Regulations online at public.resource.org. According to the Press Democrat in Santa Rosa, Calif., the state government is asserting a copyright over its laws so that people will be forced to buy a digital copy for $1,556 or a print copy for $2,315. The state rakes in nearly $1 million a year from sales of its code. * * *

In the Oregon case, the state claimed a copyright not in the "text of the law itself," but rather, in "the arrangement and subject-matter compilation" of the law, according to April 7 letter from Oregon Legislative Counsel Dexter Johnson to Justia Chief Executive Officer Tim Stanley.

Legal experts interviewed for a story at the time said the state's case was weak.

"To seek copyright protection in something you need to have originality," Marc J. Randazza, an adjunct professor at Barry University School of Law, told me. "And simply how you've numbered public domain information does not seem, to me, to rise to the level of originality required under the Copyright Act."

The Copyright Act holds that federal statutes are not subject to copyright, but that does not apply to states. There haven't been any recent decisions on the issue, but a number of cases near the turn of the 20th century rejected the notion that states can copyright their works.

Oregon relented in June following negotiations with Mr. Malamud and Mr. Stanley.

Mr. Malamud told the Press Democrat he is willing to go to court. "If that happens, it opens the doors to innovation," he said.

Posted by Marcia Oddi on Monday, September 15, 2008
Posted to General Law Related

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

In US v. Jennings (ND Ind., Chief Judge Miller), an 11-page opinion, Judge Sykes writes:

Moments before heavily armed police began to execute a nighttime search warrant at an apartment in South Bend, Indiana, Keith Jennings drove his car into a parking spot next to the targeted apartment. This area was inside the security perimeter that police had established for the search, so two officers boxed him in with their cars and approached with guns drawn. In plain view through Jennings’s window, the officers saw a plastic bag containing what turned out to be 13 grams of crack cocaine.

Jennings was charged with possessing the crack with intent to distribute, see 21 U.S.C. § 841(a)(1), and he moved to suppress the drugs on the ground that he was detained without reasonable suspicion. The district court denied that motion, and a jury found him guilty. The court sentenced him to 360 months after concluding that two of his prior convictions—one for a drug-trafficking crime and the other for resisting a law enforcement officer—qualified him as a career offender. See U.S.S.G. § 4B1.1(a). On appeal Jennings challenges the suppression ruling and his sentence. We affirm.

Posted by Marcia Oddi on Monday, September 15, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - St. Joseph Judicial Nominating Commssion submits 5 nominees to Governor

From a release just issued:

Indianapolis, September 15, 2008 . . . The St. Joseph Superior Court Judicial Nominating Com-mission today submitted to Governor Mitch Daniels its list of five candidates to fill a vacancy on the St. Joseph Superior Court. The vacancy will occur on September 30, 2008, when the Honorable William T. Means retires. From the list, Governor Daniels will appoint Judge Means's successor.

Indiana Supreme Court Justice Frank Sullivan, Jr., the chair of the Commission, said that the se-lections were made by the Commission following interviews with fifteen applicants in South Bend last week. “All of the members of the Commission were impressed by the quality of the lawyers applying for the position,” Sullivan said. “The individuals submitted to the Governor represent the best of a very impressive pool of talent.”

The nominees are:

  • Elizabeth C. Hurley, 37, lead deputy prosecuting attorney in the family violence special victims unit of the St. Joseph County Prosecutor’s office.

  • Lee Korzan, 49, a civil litigation attorney and sole practitioner in South Bend.

  • Margot Fisher Reagan, 53, a civil litigation attorney in the law firm of Tuesley Hall Konopa, LLP, in South Bend.

  • Jeffrey Lane Sanford, 49, a sole practitioner and deputy public defender in St. Joseph County.

  • Joseph C. Zakas, 57, Granger, State Senator and attorney in the law firm of Thorne, Grodnik LLP.
Under state law, the Commission must submit to the governor a list of five candidates with writ-ten evaluations of the qualifications of each candidate. Following his receipt today of the list of nomi-nees, Governor Daniels has 60 days in which to make his appointment to the St. Joseph Superior Court. In the event he does not do so, the Chief Justice of the Indiana Supreme Court shall make the appointment from the list of nominees.

Posted by Marcia Oddi on Monday, September 15, 2008
Posted to Indiana Courts

Ind. Law - It's the Law: Disorderly conduct

Ken Kosky's "It's the Law" column in the NWI Times this week focuses on disorderly conduct:

One of the most frustrating laws for police officers to enforce is the disorderly conduct law.

People who don't think they're being disorderly get angry when police arrest them for disorderly conduct.

On the other hand, people who think their neighbors are being disorderly get mad when police don't make an arrest.

Indiana law states a person commits disorderly conduct, a misdemeanor, if they engage in "fighting or in tumultuous conduct" or make "unreasonable noise and continues to do so after being asked to stop."

Porter County Sheriff David Lain said an example of something that will generally get a person arrested on a disorderly conduct charge is getting drunk and fighting or loudly swearing, then refusing to calm down.

"If somebody keeps escalating the situation, that's when the handcuffs come out," Lain said.

Lain said an example of something that a resident thought was unreasonable noise, but that isn't really unreasonable or disorderly, is a case of a property caretaker who used power tools during the middle of the day.

"Just because something is aggravating doesn't necessarily make it illegal," Lain said.

Lain said, the term "unreasonable noise" is vague and open to interpretation, so officers have to make judgement calls in cases that aren't black and white.

Lain offered the example of someone whose neighbors have a loud garage band. If the band plays music at 8 p.m., it is a lot different than if it plays at 3 a.m. Another example is when one neighbor rides motorcycles and all-terrain vehicles, and the other wants to sit outside and enjoy quiet.

"Police officers are by definition mediators and usually when you're mediating, you try to reach an accord that both sides agree on," Lain said.

"Failing that, one side or the other is going to be displeased with the officer's decision."

Often, unless a person's actions rise to the level of disorderly or criminal conduct, people who want to stop what they think to be unreasonable noise have to turn to the civil courts -- getting an injunction to stop someone's noise.

Earlier columns focused on school bus stop arms, and dometic battery.

Posted by Marcia Oddi on Monday, September 15, 2008
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (0):

Robert Barnes v. State of Indiana (NFP)

Randy W. Thompson v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 15, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending Sept. 12, 2008

Here is the just issued transfer list for the week ending Sept. 12, 2008. It is 3 pages long.

One transfer was granted last week. It is discussed in this ILB entry from last Friday.

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.

Posted by Marcia Oddi on Monday, September 15, 2008
Posted to Indiana Transfer Lists

Legislative Benefits - More on: Lawmaker to lobbyist, yet again

Updating this ILB entry from Sept. 13th quoting an editorial from the Fort Wayne Journal Gazette, the Indianapolis Star today adds its editorial voice, under the headline "No plausible way to spin Statehouse revolving door." Some quotes:

The issue is not Ripley. It is the credibility of the Indiana General Assembly. More than 30 individuals who are paid to lobby the legislature for special interests are former legislators. Whatever other attributes may grace their resumes, their personal relationships with their ex-colleagues have to be a prime qualification for their new jobs.

In such a chummy climate, there is an inevitable danger of losing sight of the general interests of taxpayers, those strangers who are without lobbyists. Moreover, the so-called revolving door from legislative chamber to legislative hallway has led to the perception, and perhaps the reality, that the Senate and House are training camps for those who would shape the law to suit narrow private purposes.

The majority of states have acknowledged the potential conflict by enacting one- or two-year waiting periods between departure from the legislature and employment as a lobbyist. The Daniels administration has gotten the picture, banning its employees from lobbying former coworkers for a year after entering the private sector. Sadly, the General Assembly has dug in its heels.

There is growing recognition within the legislature of public disdain for influence peddling. Various bills were introduced in the 2008 session seeking to force cooling-off periods for legislators-turned-lobbyists or to lift the secrecy surrounding gifts from lobbyists. None gained much traction; and indeed, an anti-revolving door bill was met with righteous denunciation by a key senator who said his peers were angered by the insinuation they couldn't be trusted.

For more on this last item, see this ILB entry from Jan. 29th and its links.

Posted by Marcia Oddi on Monday, September 15, 2008
Posted to Legislative Benefits

Ind. Courts - More on: The first "help desk" -- for the newfangled "book"

Don't miss this ILB entry, posted this weekend. And congrats also to the high-powered producer of this little gem.

For reaction from our neighbor to the south, see this entry from Michael Stevens of the Kentucky Law Blog, who loved the video even before being clued in.

In his now-updated entry, Stevens writes: "Big Monk - you get a two thumbs up from this blogger south of the River of Many White Caps!"

Posted by Marcia Oddi on Monday, September 15, 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 Wednesday, Sept. 17th:

4:00 PM EST - Foundations of East Chicago v. City of East Chicago - In 2007 the general assembly passed a statute that would authorize East Chicago to void any term of a contract between the local casino licensee and Foundations of East Chicago, Inc. to provide money from gambling revenues for local economic development. East Chicago did so, and redirected to itself the money the Casino had been paying to Foundations. Foundations challenged the statute as unconstitutional. The trial court determined Foundations had no standing to bring its challenge, but then went on to find the statute did not violate the constitution. The Scheduled Panel Members are: Chief Judge Baker, Judges May and Brown. [Where: Commissioner's Hearing Room, Courthouse, Evansville, Indiana ] [Note - location changed to: Misdemeanor Court, 2nd floor, Courthouse, Evansville, Indiana ]


This Thursday, Sept. 18th:

2:00 PM EST - Caesar's Riverboat Casino vs. Genevieve M. Kephart - Appellee-Defendant entered a casino owned by Appellant-Plaintiff Caesar's, where she lost $125,000 gambling in one evening. When the checks Kephart wrote to Caesar's were returned for insufficient funds, Caesar's sued to recover the amount owed. Kephart filed a counter-claim alleging that Caesar's knew that she suffered from a compulsive gambling disorder and owed her a duty to refrain from inducing her to frequent their casino. The trial court denied Caesar's motion to dismiss Kephart's counter-claim, and Caesar's appeals.The Scheduled Panel Members are: Judges Darden, Mathias and Crone. [Where: Reardon Auditorium Lobby, Anderson University, Anderson, Indiana ]

Posted by Marcia Oddi on Monday, September 15, 2008
Posted to Upcoming Oral Arguments

Sunday, September 14, 2008

Law - Will law school texts be replaced by the Kindle?

It is in the talking stages, according to this story by Andrea Jones, a reporter for Seatle PI. The headline is: "Books a weighty issue for law schools: Could companies like Amazon offer an alternative to heavy tomes?" Some quotes:

"It's strange that kids that text message and carry iPods and BlackBerrys in their left hand carry in their right hands these heavy tomes called law school books," said Ronald Collins, a scholar at the nonprofit First Amendment Center in Washington, D.C. "The left hand is the future and the right hand is the past."

Are electronic books the future? Could companies like Amazon.com and Sony have the answer to heavy book bags?

To address such questions, representatives from law schools around the country, combined with book publishers and e-book device makers Amazon and Sony Electronics Inc., are expected to gather in Seattle on Sept. 27. * * *

Traditional publishers, of course, are not as quick to write off the print book. And, it would be years before paper was phased out.

But changes in how students research and buy books are already happening. For example, students increasingly buy from Internet retailers. And publishers are hurting from used book sales, Collins said.

"When you think that ... every course book that a law student buys in three years can pretty much be kept in one Kindle or one Sony reader, that is remarkable," he said. "That's remarkable!"

Buzz about reforming legal education is not new -- but attention to print as a problem is gaining momentum. The topic of casebooks came up during a panel discussion at the 2008 Association of American Law Schools convention.

"This old case-based method is too limited," Skover explained. "The method largely does two things: teaching students how to analyze cases and teaching students how to develop doctrine. But that's not enough; that's not all that lawyers do."

Electronic books are more flexible. For example, speaking of his own classes, Skover said, "A book can be out of date on the day it is received."

One idea for a new product, Collins said, would be to give law professors the ability to create their own electronic books in less than 45 minutes, picking specific cases, theories and lectures.

My thoughts: As a Kindle owner, I'd say the device has a long way to go before it could seriously be considered a replacement for the casebook. It doesn't do PDF or complex formatting, for starters.

Re the statement: "For example, students increasingly buy from Internet retailers. And publishers are hurting from used book sales." -- these two impacts are of course interrelated. $150 textbook prices drive students to the on-line used-book market. Textbook publishers across-the-board are looking to moving to electronic books to avoid this secondary market. Without the competition, prices could soar.

I do think, however, that there is much to be said for using a Kindle-like device for professors' "course-packs," particularly when they are simply a collection of cases. And it could be done right now (and most probably is), no need to wait for publishers to get into the market.

Posted by Marcia Oddi on Sunday, September 14, 2008
Posted to General Law Related

Environment - "The state of the White River: Cleaner, but room for improvement"

Yesterday was the day of the White River cleanup, as reported today by Carrie Ritchie of the Indianapolis Star:

Their effort underscored the theme of the daylong event spanning five counties, following the river from Indianapolis to Muncie and Winchester. More than 1,000 volunteers collected tons of trash, which will be tallied later this week, organizers said.

This year was the first time three separate yearly White River cleanup events were done on the same day.

Upriver, Delaware, Madison and Randolph counties' effort drew about 520 volunteers, said Lisa Bihl of the Upper White River Watershed Alliance.

Hamilton County volunteers totaled about 500, said River Cleanup Inc. President Allen Lind.

Estimates of the volunteer effort in Marion County were unavailable, but Indiana University-Purdue University Indianapolis volunteers decided to stay home because of a forecast of rain.

Organizers said although no rain fell, the forecast caused many volunteers to change their plans. More than 2,000 were expected.

Seth Slabaugh of the Muncie Star-Press has a lengthy and informative feature story today on the environmental science of the river.

Posted by Marcia Oddi on Sunday, September 14, 2008
Posted to Environment

Ind. Courts - "The versatility of Judge Samuel Barnes Gookins"

Mike McCormick writes today for the Terre Haute Tribune Star about Samuel Barnes Gookins. A few quotes:

Newspaper editor and publisher, attorney, state legislator, author, poet, circuit court judge and justice of the Indiana Supreme Court, Samuel Barnes Gookins was one of Terre Haute’s most esteemed citizens for more than a half century. * * *

After brief stints as editor of the Vincennes Gazette, the Western Register and Terre Haute Advertiser, Sam studied law under Terre Haute lawyer Amory Kinney, perhaps Indiana’s first abolitionist.

Admitted to the bar in 1834, Gookins was in a partnership for several years with Kinney and Terre Haute lawyer Salmon Wright. In July 1850, following the resignation of Judge John Law, he was appointed president judge of the First Judicial Circuit, which included several counties including Vigo. The appointment lasted through January 1851. * * *

After serving one term (1851-52) in the Indiana House, Judge Gookins was elected justice of the Indiana Supreme Court on Oct. 10, 1855. He resigned effective Dec. 10, 1857, citing the inadequate salary he was being paid while living in Indianapolis during the week and maintaining a family residence in Vigo County.

Gookins founded the Chicago law firm of Gookins, Roberts & Thomas in 1858 and continued to commute by rail on weekends to Terre Haute until retirement in 1875.

Posted by Marcia Oddi on Sunday, September 14, 2008
Posted to Indiana Courts

Ind. Courts - Still more on Rockies Express Pipeline suing Indiana counties

The ILB has had a number of entries about the Rockies Express Pipeline making its way across Indiana.

The next state in its path is Ohio. Today the Dayton Daily News has a number of stories, reported by Tom Beyerlein, about the coming pipeline (probably more than have appeared in total in Indiana papers).

"Complaints 'falling on deaf ears,' safety advocate suggests" is the headline to this story. Some quotes from the lengthy report:

Rockies Express Pipeline executives expected to encounter rougher terrain — literally and figuratively — as they etched the giant natural gas line eastward from the vast flatlands of Wyoming, Kansas and Missouri to the towns and farms of Illinois, Indiana and Ohio.

Their expectations were met.

"There's no question we've had pockets of resistance from people who would like to see us go somewhere else," said REX LLC President Douglas Walker.

Hundreds of citizens have complained about the project, and REX has sued more than 200 landowners in Ohio, Indiana and Illinois to obtain easements through the process of eminent domain. But it's not just property owners who are fueling the resistance. For example:

• The Ohio Power Siting Board, consisting of leaders of numerous state agencies, lobbied the Federal Energy Regulatory Commission to require REX to use alternative routes they say would minimize environmental risks to the Little Miami River and Big Darby Creek, both federally designated wild and scenic rivers. REX opposed the alternatives, which would have added costs, delays and a whole new set of affected landowners along the route. FERC sided with REX; the state has asked for reconsideration.

• The Ohio Environmental Protection Agency is evaluating REX's impacts on water quality in Warren and Butler counties before deciding whether to certify the project there. A public meeting is set for 6:30 p.m. Sept. 24 at Edgewood High School in Trenton.

• Murray Energy Co., Ohio's largest coal mining operation, says REX's proposed path through its present and future mining land in Belmont and Monroe counties would disrupt its business and endanger the public because the mines could collapse on the high-pressure pipeline, causing an explosion. The two energy companies are trying to work out an agreement; if they can't, REX may have to move the pipeline.

• In late August, REX sued two Indiana counties in federal court, saying they were interfering with the project by trying to regulate it with local ordinances. Indiana officials are worried REX could contaminate the Hoosier Hills aquifer, the sole drinking water source for 37,000 ratepayers in central Indiana. They're also concerned about the pipeline's close proximity to buildings. REX argues that FERC has exclusive rights to regulate interstate pipelines.

Walker said it's impossible to avoid all conflicts with a project as large as REX. "You have to balance the greater public good and the individuals' rights," he said, "and the individuals do have rights."

But Carl Weimer, executive director of the Pipeline Safety Trust in Washington state, said he has received more public complaints about the 1,679-mile REX than any other project. "REX is getting a reputation around the country of being a place where (the public's) issues are falling on deaf ears."

Locally, several landowners contacted by the Dayton Daily News said REX representatives have been overly aggressive in pushing them to grant easements, threatening them with eminent domain proceedings long before FERC approved the project.

They say REX is rushing to get final approvals and get much of the work completed before the Bush administration leaves office. And time is money for the project; its estimated cost has ballooned from $3 billion in 2005 to $5.6 billion today.

"Clashes continue over controversial pipeline headed for the Miami Valley " is the headline to this story. Some quotes:
Supporters call it a crucial new piece of America's energy infrastructure and a boon for consumers.

Critics say it's a juggernaut pushed through federal regulators by friends of President Bush over the objections of state and local officials, environmentalists and property owners.

The $5.6 billion, 1,679-mile Rockies Express Pipeline, or REX, soon will be under construction in Butler, Warren, Greene and Clinton counties as it makes its way from Colorado across Ohio. It's one of the largest pipeline projects in U.S. history. * * *

REX officials are still clashing with homeowners, businesses and state and local officials as they begin laying 42-inch steel pipe along the Missouri-to-Ohio route. The conflicts involve some hot-button issues: eminent domain, concerns about possible contamination of aquifers and scenic rivers, and worries about the safety of the highly pressurized gas lines.

Some REX opponents say they believe the federal government was only going through the motions of listening to local input.

"Did White House ties power pipeline approval?" is the headline to a third story. There is at least one more today, plus graphics. Some quotes from the lengthy White House story:
Many in the energy industry view the 1,679-mile REX pipeline as an important new piece of the nation's infrastructure that will benefit western natural gas producers and Midwest consumers. When it's finished, REX will have a capacity of 1.8 billion cubic feet of gas per day that will be tapped along its route by gas distribution companies, including Vectren Energy Delivery, one of the two major distributors in southwest Ohio.

"What the REX pipeline will do is fundamentally change how natural gas moves across the United States," said Thomas E. Stewart, executive director of the Ohio Oil and Gas Association, a producers' group.

But some opponents in Ohio see REX as an unstoppable juggernaut that won federal approval over the objections of state and local governments, property owners, businesses and environmentalists. FERC's approval came even though the Ohio Power Siting Board and the Ohio Department of Natural Resources opposed REX's plans to lay pipe through Caesar Creek State Park and under the Big Darby Creek and Little Miami River. The siting board has asked FERC to reconsider.

The $5.6 billion project is privately financed by Rich Kinder's Kinder Morgan Energy Partners and its partners: ConocoPhillips, the oil giant, and Sempra Pipelines & Storage. But FERC's approval allows these corporations to use government powers of eminent domain to forcibly acquire permanent rights of way and temporary work space on private property for those segments of the project that don't follow existing pipeline corridors. REX has since sued dozens of Ohio landowners in federal court. A hearing is set for Oct. 2 to determine whether REX can take immediate possession of the land and work out compensation later.

REX officials say they'll pay landowners a fair price for the rights of way and restore their property as closely as possible to its original condition after the pipe is buried. But some landowners fear the 42-inch, high-pressure gas pipeline will put them in danger of explosions and lower their property values. Some business owners say it will disrupt their operations. Central Indiana officials worry REX will contaminate a sole-source drinking water aquifer serving 37,000 homes and businesses. And Ohio state officials and environmentalists point out that the Big Darby and Little Miami are federally designated scenic waterways.

Posted by Marcia Oddi on Sunday, September 14, 2008
Posted to Environment | Indiana Courts

Saturday, September 13, 2008

Ind. Courts - The first "help desk" -- for the newfangled "book"

A YouTube video.

Great acting! But the big monk seems a little slow.

Posted by Marcia Oddi on Saturday, September 13, 2008
Posted to Indiana Courts

Law - Still more on: Florida defense attorneys demand source code of breath analyzers

Updating this ILB entry from March 2, 2006, Kim Smith of the Arizona Daily Star reported today in a long story that begins:

Tucson, Arizona: Defense attorneys scored a major victory Friday when a Pima County Superior Court judge ruled they should be given access to the software that powers a breath-testing machine used on suspected drunken drivers.

For the past several months, defense attorneys throughout the county have been arguing that they should be given the "source code," or software, used in the Intoxilyzer 8000.

The attorneys say the source code is needed to determine whether breath tests administered by the Tucson Police Department and the University of Arizona Police Department are accurate and reliable. (The Pima County Sheriff's Department and the Arizona Department of Public Safety take blood samples.)

The defense attorneys maintain the issue is a constitutional one; defendants have the right to cross-examine and confront their accusers.

Prosecutors have maintained that experts have other ways to determine if the test results are reliable. They also say the source code is a trade secret and shouldn't be disclosed.

On Friday, Judge Deborah Bernini ruled that the source code is not a trade secret. She noted that the president of CMI, the company that manufactures the machine, testified that the Intoxilyzer 8000 is not patented, and neither is its copyright on the source code.

Bernini ordered CMI to turn over the source code to attorney James Nesci, who is the lead counsel on all of the cases.

Nesci was thrilled with the judge's decision, but he doesn't believe CMI will comply. If it doesn't, he said, he intends to ask Bernini to dismiss the 23 felony DUI cases that are currently before her.
"I will bet you any amount of money they won't turn it over," Nesci said. "They've never turned it over to anyone."

More from the story:
Law enforcement officers across Arizona began using the Intoxilyzer 8000 last year, Nesci said.

Police like the device because it weighs half of what its predecessor weighs and can be powered by a squad car's cigarette lighter, Nesci said.

However, unlike the Intoxilyzer 5000, it isn't patented, so defense experts can't obtain the diagrams and source codes needed to figure out exactly how it works, Nesci said. Moreover, the manufacturer will sell the device only to law-enforcement agencies.

Other breath-analyzer companies provide their source codes and will sell their products to anyone, Nesci said.

The source codes are crucial, though, because the Intoxilyzer 8000 sometimes gives "weird" or inexplicable results, Nesci said. "The source code would allow us to see what the actual error was when the machine gets the weird readings," Nesci said. * * *

Nesci said the battle over the source code isn't just a defense ploy. "An inaccurate machine is of no benefit to anyone," Nesci said. "Inaccurate results could mean imprisonment for innocent people and exoneration for the guilty. People have the right to know how these machines get their results."

Pima County attorneys aren't the only ones battling with CMI, the producer of the Intoxilyzer 8000, Nesci said. Six other states have been battling CMI over the source code — Minnesota, Florida, Louisiana, Massachusetts, Tennessee and New Jersey.

"CMI has currently racked up over $1.2 million (in fines) in a civil contempt order for not disclosing the source code" in Florida, Nesci said.

The machine also failed to meet precision and accuracy testing in Tennessee, so law-enforcement agencies there are prohibited from using it, Nesci said.

Posted by Marcia Oddi on Saturday, September 13, 2008
Posted to General Law Related

Law - "In Digital Age, Federal Files Blip Into Oblivion"; state files too

A lengthy and important story today in the NY Times, written by Robert Pear. Some quotes:

Countless federal records are being lost to posterity because federal employees, grappling with a staggering growth in electronic records, do not regularly preserve the documents they create on government computers, send by e-mail and post on the Web.

Federal agencies have rushed to embrace the Internet and new information technology, but their record-keeping efforts lag far behind. Moreover, federal investigators have found widespread violations of federal record-keeping requirements.

Many federal officials admit to a haphazard approach to preserving e-mail and other electronic records of their work. Indeed, many say they are unsure what materials they are supposed to preserve.

This confusion is causing alarm among historians, archivists, librarians, Congressional investigators and watchdog groups that want to trace the decision-making process and hold federal officials accountable. With the imminent change in administrations, the concern about lost records has become more acute.

“We expect to see the wholesale disappearance of materials on federal agency Web sites,” said Mary Alice Baish, the Washington representative of the American Association of Law Libraries, whose members are heavy users of government records. “When new officials take office, they have new programs and policies, and they want to make a fresh start.” * * *

The Web site of the Environmental Protection Agency lists more than 50 “broken links” that once connected readers to documents on depletion of the ozone layer of the atmosphere.

At least 20 documents have been removed from the Web site of the United States Commission on Civil Rights. They include a draft report highly critical of the civil rights policies of the Bush administration.

Problems in the White House e-mail system have been well publicized in court cases and Congressional hearings. Officials at other federal agencies acknowledge that their record-keeping systems are not much more advanced or reliable.

Businesses and state and local governments face similar problems, on a smaller scale.

“We are overwhelmed by the challenge of preserving digital information,” said Robert P. Spindler, the chief archivist at the Arizona State University Libraries. * * *

In an effort to save money, federal agencies are publishing fewer reports on paper and posting more on the Web. Increasingly, federal officials use blogs, podcasts and videos to announce and defend their policies. Growing numbers of federal employees do government business outside the office on personal computers, using portable “flash drives” and e-mail services like Google Gmail and Microsoft Hotmail.

In the past, clerks put most important government records in central agency files. But record-keeping has become decentralized, and the government has fewer clerical employees. Federal employees say they store many official records on desktop computers, so the records are not managed in a consistent way.

“The Achilles’ heel of record-keeping is people,” said Jason R. Baron, the director of litigation at the National Archives. “We used to have secretaries. Now each of us with a desktop computer is his or her own record-keeper. That creates some very difficult problems.”

Experts worry that items preserved in digital form may not be readily accessible in the future because the equipment and software needed to read them will become obsolete.

“All of us have stored personal memories or favorite music on eight-track tapes, floppy disks or 8-millimeter film,” said Allen Weinstein, the archivist of the United States. “In many cases, these technologies are now relics, and we have no way to access the stored information. Imagine this problem multiplied millions and millions of times. That’s what the federal government is facing.” * * *

In a recent report, the Government Accountability Office, an investigative arm of Congress, described widespread violations of federal record-keeping requirements. At several large agencies, the report said, “e-mail records of senior officials were not consistently preserved.” Some officials keep tens of thousands of messages in their e-mail accounts, where they “cannot be efficiently searched,” and are not accessible to others.

The inspector general of the National Aeronautics and Space Administration found similar problems. He surveyed 40 top officials and found that 93 percent of them were violating federal requirements for preserving e-mail correspondence.

He reported that NASA might lose some of its “institutional memory” and might have already lost records needed to protect the legal and financial rights of the government.

The same federal laws apply to electronic and paper records, defined as materials — in any form — that document government activities, policies or decisions. A formal schedule defines how long each type of record must be kept. In general, records cannot be deleted or destroyed without prior authority from the National Archives, which permanently preserves records judged to be of historical value.

Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, a watchdog group, said: “Agency employees do not understand their record-keeping obligations. At the most basic level, many agency employees do not even understand what a federal record is, much less how it must be preserved.” * * *

At federal agencies, the most common method of preserving important e-mail messages and attachments is to print them on paper and store them in paper files. Officials confirmed this at the Labor Department, the Transportation Department and the Justice Department.

Posted by Marcia Oddi on Saturday, September 13, 2008
Posted to General Law Related

Legislative Benefits - Lawmaker to lobbyist, yet again

The editorial today in the Fort Wayne Journal Gazette:

What’s the best route to a secure and lucrative career?

Most people will say it’s a college education. But here’s another: Win a seat to the Indiana General Assembly.

Mike Ripley, a Republican House member from Monroe, is the latest to trade his legislative seat for a job – lobbyist for the Indiana Chamber of Commerce.

“Mike has over a decade worth of experience in the insurance industry, plus he’s been heavily involved in the health care arena while in the legislature, even serving as the chairman of the House Insurance Committee,” Chamber President Kevin Brinegar said.

Exactly. Who better to lobby members of the House Insurance Committee on issues that will affect your business-owner members than the committee’s former chairman?

With Ripley’s move from the House floor to the outside corridor, the number of lawmakers working full time to influence policy comes closer to matching the number of legislators working inside to set policy. There’s Bob Kuzman, Democrat from Crown Point, lobbying for Ice Miller, one of the state’s most influential law firms. There’s Michael Smith, Republican from Rensselaer, lobbying for the casino industry. There’s former House Speaker John Gregg, a lobbyist with Bingham McHale. Larry Borst, Markt Lytle, Marc Carmichael, Brian Hasler, Paul Mannweiler, Luke Messer … the list goes on and on.

The General Assembly’s part-time schedule was intended to preserve the citizen-legislator model, one in which men (and later women) worked and lived among their constituents. They were to bring their experiences as farmers, teachers, doctors and business owners to the Statehouse each year to consider the people’s business through the prism of that everyday experience. And when their public service ended, they were to return to their full-time jobs.

Increasingly, the citizen-legislator model is becoming one of legislator-turned-lobbyist: Get elected, learn the system, build relationships with other lawmakers, and then take a well-paying job representing an Indianapolis-based interest group. Former legislators are better positioned than anyone else to influence legislation. They know the process and the players. The Statehouse fraternity gives them a lifelong status and access that outsiders will never enjoy.

Rep. Phyllis Pond, R-New Haven, has tirelessly sponsored bills that would at least interrupt the migration from House or Senate floor to the hallways outside the chambers, including a bill that would forbid lawmakers to register as lobbyists within one year of leaving office. About half of the other 49 states have at least one- or two-year cooling-off periods.

It’s a reasonable expectation of politicians who are well compensated for their public service. Taxpayers don’t owe them a private-sector job, and the General Assembly must stop serving as a placement agency.

Posted by Marcia Oddi on Saturday, September 13, 2008
Posted to Legislative Benefits

Friday, September 12, 2008

Ind. Decisions - 7th Circuit posts two additional Indiana opinions

Judge Posner cites Gary newpaper's reporter. In US v. Tanner, Scott and Foster (ND Ind., Judge Lozano), a 9-page opinion, Judge Posner writes:

The defendants were convicted of federal drug and gun crimes, and appeal. Only Foster’s appeal need be considered; his codefendants’ appeals are frivolous, as pointed out in the Anders briefs filed by their lawyers, and are hereby dismissed. * * *

A further wrinkle deserves consideration. A codefendant of Foster, though convicted on the same day as he, had as a result of obtaining continuances not yet been sentenced when the new guideline took effect. Had he been facing the statutory minimum sentence before then, therefore, he would have been eligible for safety-valve relief. But there is no indication that he was facing such a sentence—in fact it appears that he had no criminal record at all, Andy Grimm, “Ex-Boxer Guilty on Drug Rap,” Merrillville Post-Tribune, Nov. 7, 2006, p. A1—or that if he was facing such a sentence the new guideline would help him.

But imagine a case in which two defendants are identically circumstanced, one receives a continuance based on proper case-management concerns and as a result will be eligible for safety-valve relief when sentenced and the other seeks a continuance on the ground that to deny him such relief would create an irrational disparity in punishment. Our analysis would not bar the sentencing judge from granting a continuance on this ground. For it would be a matter not of the judge’s preferring the new guideline to the old one but of his wanting to avoid creating an arbitrary punishment differential, and that is a proper consideration for a sentencing judge. 18 U.S.C. § 3553(a)(6). This is not such a case, however, so the judgment in Foster’s case is AFFIRMED.

In Wilson-El v. Finnan (SD Ind., Judge McKinney), Judge Wood writes:
This case requires us to consider whether, when a prison disciplines an inmate for being a “habitual offender,” it must permit the inmate to challenge the underlying disciplinary convictions that provide the predicate for the later finding. We conclude that the habitual offender proceeding does not have the effect of expanding the rights that the prisoner otherwise has to challenge any of the earlier offenses. This means that Indiana prisoner Shavaughn Wilson-El cannot succeed in his latest effort to obtain habeas corpus relief from one of his disciplinary convictions.

Posted by Marcia Oddi on Friday, September 12, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court grants transfer in one case

The formal transfer list should follow early Monday, but the ILB has received advance notice of one case granted transfer at the Court's conference yesterday, Sept. 11th:

Northern Indiana Public Service Co. v. U.S. Steel Group, issued by the COA 3/7/08, and summarized in this ILB entry from that date.

Posted by Marcia Oddi on Friday, September 12, 2008
Posted to Indiana Transfer Lists

Ind. Courts - Three Indiana opinions today from the 7th Circuit

In US v. Steven Smith (SD Ind., Judge Barker), a 14-page opinion, Judge Ripple writes:

Steven Smith was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The district court found that Mr. Smith qualified for an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA” or “Act”), and therefore imposed a sentence of 240 months’ imprisonment. Mr. Smith now appeals his sentence, challenging whether, after the Supreme Court’s recent decision in Begay v. United States, 128 S. Ct. 1581 (2008), a felony committed with a mens rea of recklessness may qualify as a prior violent felony conviction under the ACCA. For the reasons set forth in this opinion, we vacate the judgment of the district court and remand for further proceedings. * * *

As likely will be true in many instances of convictions under a statute that contemplates reckless behavior, the juries that convicted Mr. Smith of criminal recklessness were not asked to determine whether he acted knowingly or intentionally; Mr. Smith also did not admit to acting with that intent. Therefore, under the categorical approach, we cannot look to the facts of his particular convictions to determine for ourselves whether his conduct was knowing or intentional, on the one hand, or merely reckless on the other. Accordingly, we conclude that, under the Supreme Court’s reasoning in Begay, Mr. Smith’s criminal recklessness convictions cannot serve as predicate violent felonies under the ACCA.

Without including his two convictions for criminal recklessness, Mr. Smith does not have the three qualifying convictions required for an enhanced sentence under the ACCA. Therefore, we must vacate the judgment of the district court and remand for resentencing in accordance with this opinion.

In Magyar v. St. Joseph Regional Med. Center (ND Ind., Ch. Judge Miller), a 31-page, 2-1 opinion, Judge Wood writes:
Jessica Magyar (to whom we refer in this opinion using her former last name of Houston) lost her job at Saint Joseph Regional Medical Center (“the Hospital”) after she complained about perceived sexual harassment. She sued the Hospital on the theory that it had violated the anti-retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). Reasoning that the evidence Houston submitted in response to the Hospital’s summary judgment motion could not support a finding of causation, or in the alternative could not show that the Hospital’s stated motive for terminating her was pretextual, the district court granted summary judgment to the Hospital. If we were the ultimate trier of fact, we would find this to be a close case. We are not, however, and we conclude that the record viewed in the light most favorable to Houston would permit her to prevail. We therefore reverse and remand for further proceedings. * * *

[Judge Posner's dissent begins at p. 18 of 31. (Note: Howard Bashman of How Appealing points to the "smiley-face" at the top p. 28.) The dissent concludes:] My colleagues are deceived. This is not a case about the sexual harassment of an employee, but about the litigation harassment of an employer. The district judge was right to end it.

In In re Willett (SD Ind., Judge Young), a 12-page opinion, Judge Manion writes:
Michael and Karin Willett filed for relief under Chapter 13 of the bankruptcy code. During the pendency of their case, they successfully moved to avoid a lien on their residence held by a judgment creditor. The creditor appealed to the district court arguing that the bankruptcy court had incorrectly valued the property, resulting in the erroneous conclusion that the lien would impair a $15,000 exemption to which the Willetts were entitled under Indiana law. The district court affirmed the bankruptcy court. The creditor appeals making the same argument, and we reverse the district court. * * *

The fact that the Willetts’ interest in the Evansville property increased during the pendency of their case does not present a situation outside the express scope of the bankruptcy code. * * *

[T]he Willetts’ case remained governed by the provisions covering property held by the debtors at the commencement of their action until December 21, 2005. On that date, their interest in the Evansville property, property belonging to the estate under § 541, changed from a remainder interest valued at $65,000, the fair market value when they filed their petition, to a fee simple interest valued at $95,000, the fair market value as of the date the property became part of the estate. See 11 U.S.C. § 522(a)(2). The bankruptcy code therefore provided all the guidance necessary regarding Congress’s intent in handling situations like the one presented here, and there was no need to look further. * * *

The district court’s conclusion that the Evansville property should be valued based upon the interest held by the Willetts when they filed their petition was erroneous.

III. When the Willetts moved to avoid NCM’s lien, their interest in the Evansville property should have been valued at the fair market value of their fee simple interest at the time it was recorded on December 21, 2005. Accordingly, the district court is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Friday, September 12, 2008
Posted to Ind. (7th Cir.) Decisions

Law - "Settlement Over Target's Web Site Marks a Win for ADA Plaintiffs"

Evan Hill of The Recorder published this story August 28th. It caught my eye at the time, but today there are several new ADA stories to go with it. From the Target story:

Resolving a lawsuit that caught the attention of online retailers across the United States, Target Corp. will pay out $6 million in damages and make its Web site fully accessible to blind customers as part of a class action settlement filed on Wednesday.

The National Federation of the Blind, which sued the Minneapolis-based corporation in 2006 in San Francisco federal court for maintaining a site that blind people said they couldn't use, will also be paid to oversee the changes and train the coders responsible for reprogramming the site.

The case will "send a message to the entire Internet industry that access for people with disabilities is not only good business sense but an absolutely legal civil right; it's mandatory," said Laurence Paradis, a lawyer at Berkeley, Calif.-based Disability Rights Advocates who worked on the case. * * *

Blind people can use specialized keyboards as well as software that converts Web sites and documents into speech or Braille. But such technology won't work if a site is improperly coded, as the plaintiffs alleged about Target.com. The case pressed the legal question of whether the protections of the federal Americans with Disabilities Act could be extended to businesses' Web sites.

Paradis said Target fought the suit "tooth and nail" and that settlement negotiations broke down twice, first because the company wouldn't agree to fix the problems and second because the two sides couldn't agree on damages. Only after Northern District of California Judge Marilyn Hall Patel certified a state and national class in November 2007 was a settlement possible, he said.

See this background story from 2007, headed "Companies, Courts Debate Whether ADA Applies to Web Sites."

For more on the dispute, see this discussion in a Comuterworld blog.

The ABA Blog reports today that the Senate has passed a bill "to expand workplace protections for people with disabilities."

The bill’s chief sponsor, Sen. Tom Harkin, D-Iowa, said the Supreme Court had through a series of rulings interpreting the ADA cut down on protection for the disabled.

"The erosions of rights created by these court cases have created a bizarre Catch 22 where people with serious conditions like epilepsy or diabetes could be forced to choose between treating their conditions and forfeiting their protections under the ADA, or not treating their conditions and being protected," Harkin said.

Finally, the ABA Blog's Debra Cassens Weiss writes today under the headline "Ethics Complaint Says Lawyer Used ADA Suits to Extort Settlements." Some quotes:
A California lawyer who has filed hundreds of disability lawsuits against businesses has been accused in an ethics complaint of extorting quick cash settlements and making up injuries.

The state bar complaint against Bay-area lawyer Thomas Frankovich said he filed more than 200 lawsuits against businesses in 2004 alone that contended they were not accessible to the disabled, the Daily Journal reports (sub. req.). The plaintiff in most of the suits was Jarek Molski, who uses a wheelchair.

The state bar said Frankovich would wait as along as a year to file a complaint and then would seek damages of $4,000 a day for the period, the story says. After filing a complaint, he would send a letter to the defendant that “could be viewed as intimidating as well as inaccurate," the state bar says. The letter advised defendants they shouldn’t hire a lawyer, they had no defense to the complaint and they should quickly settle the case.

Posted by Marcia Oddi on Friday, September 12, 2008
Posted to General Law Related

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

For publication opinions today (1):

In Diana Gonzalez v. Edward Gonzalez , an 8-page opinion, Judge Najam writes:

Diana Gonzalez (“Mother”) appeals the dissolution court’s order regarding the legal custody of two of her minor children with Edward Gonzalez (“Father”). She presents a single issue for our review, namely, whether the trial court abused its discretion when it awarded the parties joint legal custody of E.G. and K.G. We affirm. * * *

In particular, Mother asserts that the dissolution court “ignored” the statutory requirements of Indiana Code Section 31-17-2-17. Further, Mother maintains that splitting physical and legal custody between the parties is “unworkable.” We cannot agree. * * *

The evidence supports the dissolution court’s order granting the parties joint legal custody of E.G. and K.G., the youngest of the parties’ six children. While this type of joint legal custody is unusual, given the unique circumstances of this case, we cannot conclude that the dissolution court abused its discretion. The dissolution court concluded that the award is in the best interests of the children.

NFP civil opinions today (1):

Earl Lee Russelburg v. Ivan A. Arnaez and John D. Clouse (NFP) - "The alleged negligence committed by Arnaez and Clouse, namely, that they should not have filed an appeal on Russelburg’s behalf, is not, by any means, “so grossly apparent that a layperson would have no difficulty in appraising it.” See id. And whether the appeal should have been filed, and what issues should have been raised, is not within the common knowledge of the community as a whole. See id. Indeed, the particulars of appellate practice are not within the common knowledge of a large segment of the legal community. Accordingly, to the extent that the trial court concluded that Russelburg was required to present expert testimony, there was no error.

"To prove a legal malpractice claim, a plaintiff-client must show (1) employment of an attorney (duty); (2) failure by the attorney to exercise ordinary skill and knowledge (breach); (3) proximate cause (causation); and (4) loss to the plaintiff (damages). Douglas v. Monroe, 743 N.E.2d 1181, 1184 (Ind. Ct. App. 2001). Here, the trial court found that Russelburg had not sustained his burden of proof on his legal malpractice claim. On appeal, Russelburg contends that the evidence is sufficient to prove his claim. But Russelburg’s contentions amount to a request that we reweigh the evidence, which we will not do. See id. The trial court, as the trier of fact, was entitled to find Russelburg’s evidence not credible. The trial court did not err when it entered judgment in favor of Arnaez and Clouse. Affirmed."

NFP criminal opinions today (0):

Posted by Marcia Oddi on Friday, September 12, 2008
Posted to Ind. App.Ct. Decisions

Environment - Poultry waste to receive unprecedented scrutiny in Maryland

David A. Fahrenthold of the Washington Post reports today in a story that begins:

Maryland regulators today will announce the tightest-ever controls on what Eastern Shore poultry farmers do with their birds' waste, officials said yesterday, adopting a tougher stance toward state agricultural interests in a bid to reduce pollution in the Chesapeake Bay.

The rules, proposed by the Maryland Department of the Environment, would create unprecedented scrutiny of the state's powerful poultry industry, currently not subject to several regulations that apply to dairy and hog farms. Environmentalists say poultry waste washes downstream, eventually helping trigger low-oxygen "dead zones" in the Chesapeake.

Today's proposal would limit where, how and for how long chicken farmers may store excess manure in outdoor piles, open to the rain. And for the first time, it would allow state officials to inspect poultry farms unannounced.

More from the lengthy story:
The state's farm lobby will have its chance to comment on the proposed rules during public hearings, including two in November on the Eastern Shore. State officials said that the rules probably will not be finalized until early next year.

The proposal is a political risk for Maryland Gov. Martin O'Malley (D), who must balance the environmentalism in the state's urban middle with the economic needs of the Eastern Shore. State Attorney General Douglas F. Gansler (D), who has argued for stricter regulation of chicken operations, said he was glad that the state was cracking down.

"We're starting to get our arms around it," Gansler said. "Up to this point, there has been zero regulation."

Maryland's chicken industry is concentrated in rural sections of the lower Eastern Shore, where one grower can raise thousands of birds in a single barnlike "house." The business is Maryland's largest agricultural endeavor, contributing $845 million to the state's economy and employing approximately 15,000 across the Delmarva region, according to an industry group. Collectively, the industry represents the eighth-largest employer in the Washington area, just ahead of Marriott Corp.

But advocates for the Chesapeake have long complained about its byproduct: "litter," a foul-smelling mix of sawdust bedding and chicken excrement that is shoveled off the houses' floors. It is piled up for storage or spread on fields as fertilizer. From there, environmentalists say, it takes only a little rain to start the chicken waste flowing to the Chesapeake.

"They've let this industry grow with no forethought for the environmental consequences," said Michele Merkel of the Waterkeeper Alliance, an environmental group. * * *

The changes proposed today apply only to the largest chicken-producing operations in Maryland, those with 75,000 or more square feet of bird housing. That includes at least 200 of the state's roughly 800 poultry farms, but state officials said that combined they account for about 50 percent of the pollution related to poultry manure.

Under the rules, farmers would no longer be allowed to leave manure in outdoor piles indefinitely. For the first three years of their new permit, they would be allowed to keep it in a pile for 90 days. After that, the limit would be 30 days. In Virginia, many chicken farms are limited to 14 days.

Also, the farmers would be required to abide by a "nutrient management plan," limiting the amount of chicken manure they can apply to their fields as fertilizer. They are already required to do this, but officials said the difference will be in the enforcement. Currently, inspections are done by the state Department of Agriculture, whose agents call ahead and focus mainly on paperwork, not usually checking the fields.

Under the new rules, inspectors from the Department of Environment could arrive at anytime and check around the farm itself. Environmentalists and scientists have said previously that this kind of inspection would be vital to ensuring that farmers followed the law.

Posted by Marcia Oddi on Friday, September 12, 2008
Posted to Environment

Courts - CJ Roberts attends Notre Dame practice

From the South Bend Tribune, a brief AP story. Some quotes:

U.S. Supreme Court Chief Justice John Roberts stopped by the University of Notre Dame on Thursday to watch the Fighting Irish football team practice. * * *

Roberts told [Coach Charlie Weis] he is a die-hard Irish fan. Roberts grew up about 40 miles from Notre Dame in Long Beach.

Roberts is scheduled to speak at the Notre Dame law school on Friday and attend Notre Dame's game against Michigan on Saturday.

Posted by Marcia Oddi on Friday, September 12, 2008
Posted to Courts in general

Ind. Law - "If residents want golf carts, contact lawmakers"

From the Sept. 11th Greene County Daily World, a story by Anna Rochelle. Some quotes:

The Worthington Town Council did not have anything about golf carts on its agenda this week, but a handful of citizens concerned about the issue got a bit of advice from Town Attorney Jacob Fish.

"If you want to get this law changed, contact your state legislator," said Fish.

Council member Gregg Roudebush brought the matter up, saying the town had been getting a lot of inquiries regarding the legality of golf carts.

Fish said there was nothing the town council could do to change the state law and the ordinance that was recently adopted provides guidelines for the use of golf carts in town in the event that the state law is changed.

From the Vincennes Sun Commercial, a story by Jennifer Jaqua dated Sept. 7th:
BICKNELL - Mayor Jon Flickinger has parked the city's golf carts here until he can get more information on the legality of using them.

"The city isn't using them now because of all that is happening in Vincennes," Flickinger said.

This spring the Board of Works here decided to use golf carts to read water meters in order to save on fuel.

Last month, the Vincennes City Council abandoned an ordinance that would have allowed golf carts on city streets because it conflicted with state law.

"The bottom line is, operating golf carts on a public highway or city street is illegal," said Sgt. Todd Ringle, spokesman for the Indiana State Police Post in Evansville. "To operate a vehicle on a public highway, it has to be registered and (license) plated with the Bureau of Motor Vehicles, and they won't register a golf cart." * * *

"I don't think people realize that this is a safety issue," Ringle said. "I think in the near future, we may see legislation that will focus on golf cart use specifically, but that just hasn't come around yet."

Flickinger said the decision to discontinue using the golf carts was made after several discussions with Police Chief Paul Jones.

"Several people own golf carts here, so there are quite a few, but the biggest question I've got is about underage kids driving them," Flickinger said. "For me, it's a question of the safety of it."

Oaktown Town Council member Brandon Groteguth said he believes close to 50 percent of the households there have golf carts.

"They are everywhere around here," he said. "We don't have too many problems with them here though, and that's the good thing about a small town."

Groteguth said the council hears occasional complaints, but most of those center around underage drivers or people driving golf carts who don't observe speed limits and stop signs.

"Our town marshal doesn't ticket golf cart drivers who are over the age of 16," Groteguth said. "The town doesn't currently have an ordinance, and we have no plans to develop one at this time."

Groteguth said the town uses golf carts to read water meters, and that in a smaller community like Oaktown, golf cart use is safer.

"I don't think I'd drive one in Vincennes. It's too busy, and there are too many people," he said. "But here, most people have their driver's license, and most use their heads and it's really not a big problem."

Check here for a complete list of ILB golf cart stories.

Posted by Marcia Oddi on Friday, September 12, 2008
Posted to Indiana Law

Thursday, September 11, 2008

Law - "Amazon gets into wine"

This should be interesting. The Wall Street Journal has this brief story today, by Mylene Mangalindan and Julia Flynn Siler. Some quotes:

A wine trade organization said Web retailer Amazon.com Inc. plans to start selling wine from Napa Valley and other U.S. regions on its Web site later this year.

An Amazon spokesman declined comment. But Terry Hall, communications director of Napa Valley Vintners, said the Seattle company will begin selling wine at the end of September or the beginning of October from about 26 states. Napa Valley Vintners, which boasts 315 members, is holding workshops for its members to learn about selling through Amazon, Mr. Hall said.

"It's a very exciting time," Mr. Hall said. "The world's largest online retailer is saying that wine is important -- that's very exciting for American consumers." * * *

Regulations governing the shipment of wine vary state-to-state, complicating interstate distribution. The 2005 Supreme Court ruling struck down bans on out-of-state wine shipment in New York and Michigan, making it easier for wineries to sell directly to consumers.

Amazon has been working on selling wine through its Web site for some time, Mr. Hall said. The online retailer will be working with New Vine Logistics, a Napa-based company that handles wine fulfillment, to ship to various states, he said.

Alexandria Sage reports in the Washington Post:
SAN FRANCISCO (Reuters) - Amazon.com (AMZN.O), the largest global online retailer, plans to start selling U.S.-produced wine on its website within the United States by early October, wine industry insiders said on Wednesday.

Napa Valley Vintners, a nonprofit group representing 315 vintners in the famous California wine-producing region, has already begun to set up workshops for wineries interested in selling through the retail giant, said Terry Hall, communications director for the group.

"They have been working for a while on this wine project. Now they are signing up the wineries," Hall told Reuters. "They're fast-tracking it right now."

An Amazon spokeswoman declined to comment.

Seattle-based Amazon is looking to sell wine in approximately 26 states and wine sold on its site will come from all regions of the country, Hall said. * * *

To avoid the confusing legal issues over the interstate sale of wine that vary from state to state, Amazon will be working with New Vine Logistics, a Napa, California-based company dealing in wine fulfillment that can deliver to up to 45 states.

"Amazon is outsourcing to New Vine the logistics of its wine direct business to make sure it's being done properly and legally," Insel said.

Confusion over online wine sales have continued despite a 2005 U.S. Supreme Court decision that ruled states could not discriminate against out-of-state wineries. A group called "Free the Grapes" has been working to streamline legislation and open new states to direct-to-consumer wine shipping. * * *

Industry insiders said Amazon's entry into the wine market would be a good counterpoint to the shrinking pool of distributors amid consolidation in their industry.

"The good news is it (Amazon selling wine) puts some big muscle behind direct-to-consumer so consumers of wine should benefit," Hall said.

The big question? Will Indiana producers and consumers be able to participate, particularly given the August 7th 7th Circuit opinion in Baude v. Heath?

New Vine Logistics website says "Legal access to 45 states" but no details.

Posted by Marcia Oddi on Thursday, September 11, 2008
Posted to General Law Related

Ind. Decisions - Transfer petition filed re Myers' murder conviction

"Lawyers asking courts to overturn John Myers conviction" is the headline to a story today ($$) by Laura Lane in the Bloomington Herald-Times. Some quotes:

MARTINSVILLE — Lawyers representing the man convicted of killing Bloomington resident and Indiana University student Jill Behrman are asking the Indiana Supreme Court to overturn the guilty verdict.

On Wednesday, Indianapolis attorney Patrick Baker and his father, Hugh Baker, filed a 10-page petition asking that the case be transferred to the supreme court, which can accept or decline the request.

John R. Myers II, 33, was convicted of murder in 2006 and given a 65-year jail term. Behrman was 19 when she disappeared on a bike ride in 2000; her body was found three years later.

The Bakers make several claims: that reference to a polygraph test Myers took tainted the jurors, that inappropriate testimony was given by two law enforcement officers, and that the sequestered jurors’ “shocking jury misconduct” prejudiced Myers’ right to a fair trial.

After oral arguments in May, the Indiana Court of Appeals issued a 44-page ruling affirming Myers’ conviction. His attorneys appealed, and last month, the appeals court denied their petition for a rehearing on the matter without issuing a written opinion.

For background, here is a 3/21/08 story on the oral arguments before the COA, and here is the 5/30/08 COA opinion.

Posted by Marcia Oddi on Thursday, September 11, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides two Indiana cases today

In US v. Zaragoza (SD Ind., Judge Barker), a 14-page opinion, Judge Manion writes:

Rafael Zaragoza was charged, along with ten co-defendants, with conspiring to possess methamphetamine (“meth”) with the intent to distribute it. Following a four-day trial at which a number of Zaragoza’s co-defendants testified against him, the jury returned a verdict of guilty, and he was eventually sentenced to a term of 300 months’ imprisonment. Zaragoza appeals. While he does not deny dealing meth, he argues that there was insufficient evidence to support the jury’s finding that he engaged in a conspiracy with his co-defendants to do so. Zaragoza also asserts that he had difficulty understanding the proceedings against him, and that his due process rights were violated when the district court failed to make an inquiry regarding this fact after being alerted to it. We affirm.
In US v. LeShore (ND Ind., Judge Springmann), a 14-page opinion, Judge Wood writes:
This case illustrates the importance of the standard of review that an appellate court applies to asserted trial error. When an appellant wants to complain about an error for the first time on appeal, we ordinarily require the complaining party to demonstrate plain error. See FED. R. CRIM. P. 52(b). If the challenged ruling is one that we would have reviewed only for abuse of discretion if a proper complaint had been made in the district court, the appellant’s job is especially difficult. That, in a nutshell, is the burden that appellant James LeShore has shouldered here. Finding no reversible error, we affirm his conviction and sentence for bank robbery.

Posted by Marcia Oddi on Thursday, September 11, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (1):

Adell Lyles v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 11, 2008
Posted to Ind. App.Ct. Decisions

Law - "Ky. high court weighing how to apply new self-defense law"

"Lethal force", "no retreat", "castle law", there are a lot of different names for the law Indiana and Kentucky both passed in 2006. Here is a quote from a June 21st story about an Indiana incident:

Experts said that, according to Indiana law, . . . must have reasonably believed that she faced serious harm or death to justify firing her gun, for which she has a permit. The law also says . . . didn't have to "retreat" before defending herself, they said.

Kentucky's self-defense law is similar, and both states have a "castle law" that says people can use defensive or deadly force against anyone unlawfully and forcibly trying to get into their house or car, said Jeanne Anderson, assistant commonwealth's attorney in Jefferson County.

Here is a list of some other ILB entries.

Brett Barrouquere of the Louisville Courier Journal writes today:

Phillip Leroy Wines says he killed two people at his Jefferson County home within three months in self-defense. But a judge rejected those claims, and now Wines is serving 45 years in prison for murder and manslaughter.

But the Kentucky Supreme Court is considering whether Wines and another Jefferson County man who claimed self-defense in a separate case, Frank Rodgers, should get new trials.

At issue is whether the judges in their cases failed to properly apply a self-defense law the General Assembly passed in 2006.

In oral arguments held at the University of Louisville law school yesterday, there was also debate over how jurors should be told to evaluate such cases.

Public defender Elizabeth McMahon asked the justices to reverse Wines' convictions and order a new trial. McMahon said that the trial judge should have instructed the jury that Wines had no duty to retreat when he stabbed James Lee Hamilton on June 12, 2005, or when he hit Micah Brashear in the head with nunchaku karate sticks during a dispute on April 4, 2005.

McMahon also said Wines should have had a hearing to determine if self-defense applied in his case because the law was passed while he awaited trial.

"He should get the benefit of that law," McMahon said. * * *

In the second case, public defender Bruce Hackett argued that the "no retreat" law should have been applied retroactively in the case of Rodgers, who is serving 20 years for manslaughter in the 2004 shooting death of Dewhon McAfee in Louisville.

Jefferson Circuit Judge William Douglas Kemper, who presided over both cases, ruled that the new law did not apply retroactively. He did not tell the jury that Rodgers had no legal duty to run from McAfee.

"It is absolutely necessary to tell the jury that," Hackett said. "The instructions we give to the jury don't give a clue to them."

But Assistant Attorney General Perry Thomas Ryan said Rodgers shot McAfee two years before the law took effect.

The National Rifle Association had championed the measure, saying it simply codified a rule of law already observed by judges in Kentucky and elsewhere: That people have a right to use deadly force to defend themselves and their families when their lives are in danger.

Posted by Marcia Oddi on Thursday, September 11, 2008
Posted to General Law Related

Ind. Courts - More on: Deborah A. Rigi suspended pendente lite

Updating yesterday's ILB entry, Andy Grimm of the Gary Post Tribune has a story today that begins:

Just two weeks before she is scheduled to report to federal prison, the state Supreme Court Disciplinary Commission has suspended the law license of former Schererville Town Judge Deborah Riga.

The move is a prelude to the court permanently revoking her license following her sentence of 15 months in prison on a mail fraud conviction, said Donald Lundberg, executive secretary to the disciplinary commission.

From Bill Dolan's story in the NWI Times:
Donald Lundberg, executive secretary of the Indiana Supreme Court Disciplinary Commission, said Wednesday the high court recently received official notice of Riga's felony conviction, which will be the basis of a formal disciplinary proceeding that could disbar Riga from any future law practice in the state.

Riga pleaded guilty in 2006 to public corruption charges for using her position as town judge to shake down more than 1,175 minor offenders who appeared before her, ordering them to undergo counseling at a service she owned in the name of a family friend.

Riga pocketed more than $30,000 in fees for the counseling her business provided. Riga became Schererville's second town court judge in 2000. The position was created in 1995 to handle low-level offenses, including traffic violations and minor drug charges.

Within two years of taking office, she had replaced the outside businesses that provided driver education and youth addiction counseling services to those she convicted with businesses she controlled and from which she profited.

She pleaded guilty in 2006 to mail fraud charges, but her conviction was postponed until last July so she could cooperate with other federal public corruption investigations -- including those that recently resulted in the conviction of East Chicago political fixer Robert Cantrell.

Posted by Marcia Oddi on Thursday, September 11, 2008
Posted to Indiana Courts

Ind. Decisions - "Judge bars man from city offices"

Jeff Parrott of the South Bend Tribune has an interesting story today that begins:

A judge has barred a man from most city of South Bend municipal offices for at least three years, ruling that he repeatedly frightened employees and kept them from doing their work.

Stephan Range, 25, may not enter the city's Animal Care and Control Shelter, South Bend Police Department records division, or offices of the mayor, Code Enforcement, city attorney or city clerk until at least September 2011, St. Joseph Circuit Judge Michael Gotsch ruled.

Range also may not follow city employees to or from work, visit their homes or telephone them at home or work. The only communication he is allowed to have with city employees, other than in the case of a police or fire emergency, is written letters.

Posted by Marcia Oddi on Thursday, September 11, 2008
Posted to Ind. Trial Ct. Decisions

Wednesday, September 10, 2008

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

In Craig and Craig v. Ontario Corp. (SD Ind., Judge McKinney), a 9-page opinion, Judge Wood writes:

Charles Craig worked for Ontario Corporation and participated in its employee stock option plan. Under the plan, he was entitled to transfer some of the shares of the stock he acquired to his wife Barbara, and he did so. The plan also provided for a bonus distribution of stock shares upon the participant’s retirement. When Craig retired in 2001, he offered to sell his shares back to Ontario. Ontario accepted, but it paid with three promissory notes rather than cash.

By their terms, these notes were subject to “Standby and Subordination Agreements,” which subordinated the Craigs’ rights to those of certain senior creditors (Fifth Third Bank and First Merchants Bank). By December 2003, Ontario was facing difficulties in meeting its financial obligations. Eventually it reached an agreement with the Craigs to suspend principal payments until December 2004. The agreement was not renewed, however, and the Craigs sent Ontario a notice of default and sued in the district court for the Southern District of Indiana, to recover on the notes. They contended that their case fell within the district court’s diversity jurisdiction, * * *

Subsequently, however, Ontario discovered facts that draw the district court’s subject-matter jurisdiction into question. It appears that the parties may not be of diverse citizenship. Ontario moved under FED. R. CIV. P. 60(b)(4) for relief from the judgment on this basis . . . , but the district court held that it had no jurisdiction to rule on the motion because the case was before this court on appeal. The court further held that it had no jurisdiction even to conduct a hearing or to review new filings while the appeal was pending. under 28 U.S.C. § 1332(a) and (c). * * *

The district court was mistaken that it had lost all authority to do so when the motion under Rule 60(b)(4) was presented to it. We therefore vacate the court’s judgment on the merits in No. 06-4409 and reverse the court’s order denying the Rule 60(b)(4) motion in No. 08-1013 and remand for an evidentiary hearing on subject matter jurisdiction. * * *

Enough of a challenge to the district court’s power to adjudicate was presented that it should have assured itself that its jurisdiction was proper. We therefore remand the case for an evidentiary hearing on the question whether the parties are properly diverse. At this hearing, the Craigs bear the burden of proving that they were citizens of Arizona at the time the suit was filed.

III. As a final note, we observe that several thorny issues may arise once the question of citizenship is opened up. What happens if Charles Craig is properly diverse, but Barbara Craig is not? She is named on some of the notes, but it is not clear whether she is a party who must be joined. Another complication arises from the fact that Arizona is a community property state, but Indiana is not. It is possible, even if Charles Craig turns out to be a citizen of Arizona and Barbara Craig has remained a citizen of Indiana, that a non-diverse party may have a onehalf interest in the notes.

These are questions that the district court must answer first. Ontario properly called the problem to the district court’s attention, and the court had the power to consider the motion under Rule 60(b), even though an appeal had already been filed. Indeed, it is under a continuing obligation to assure itself of subject-matter jurisdiction, no matter how the issue is raised. We VACATE the judgment on the merits in No. 06-4409, REVERSE the denial of Ontario’s second Rule 60(b) motion in No. 08-1013 and REMAND for further proceedings in accordance with this opinion.

Posted by Marcia Oddi on Wednesday, September 10, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Request for school emails containing "an individual’s name and one or more of 58 listed words" rejected

The Public Access Counselor on July 9, 2008, issued a response to Informal Inquiry 08-INF-23 regarding Carmel Clay Schools. The question, from a law firm representing the school, related to "a request for any documents, including emails, associated with an individual’s name and containing one or more of 58 listed words." The PAC's opinion concludes:

Here, the requester seeks emails containing any one of a number of words. Certainly the School does not catalog emails by words contained therein. Similarly, most public agencies do not catalog any records by words contained therein. I know of no law requiring the School to catalog its emails in such a manner. As Counselor Hurst indicated, the agency is under no obligation to search all of its records for any reference to the information being requested. It is my opinion the School is not obligated to search through each email, either through an electronic or manual process, to determine which emails contain the particular words.

If, on the other hand, the request identified the records with particularity enough that the School could determine which records are sought (e.g. all emails from a person to another for a particular date or date range), the School would be obligated to retrieve those records and provide access to them, subject to any exceptions to disclosure. It is my opinion the APRA draws a distinction here in that the law requires retrieval but not research.

Posted by Marcia Oddi on Wednesday, September 10, 2008
Posted to Indiana Government

Ind. Gov't. - More on "Public records not released from Jeffersonville's Clerk-Treasurer's Office"

Updating this ILB entry from August 10th, quoting a story in the Jeffersonville Evening News & Tribune about a public records records complaint against the city’s Clerk-Treasurer’s Office, alleging denial of public records -- the records being statements for the Clerk-Treasurer’s Office’s credit card -- David A. Mann of the News & Tribune reports today in a story that begins:

Indiana open records law was not violated when the Jeffersonville Clerk-Treasurer’s office did not release credit card statements, according to an opinion recently issued by Indiana Public Access Counselor Heather Willis Neal.

The opinion followed a complaint by resident Mike Hutt, a former Jeffersonville City Council candidate, who had requested copies of credit card statements.

City officials maintain that the statements Hutt was requesting belonged personally to Clerk-Treasurer Peggy Wilder, not the city.

“The credit card statements Mr. Hutt requested were credit cards that Ms. Wilder obtained through her personal credit, her personal Social Security number and she was personally obligated to pay the debt upon those credit cards,” a statement from the city said responding to the formal complaint Hutt made.

In the opinion, Neal said, the central issue in the complaint was whether the credit cards were obtained by the city or by Wilder herself.

“Whether the credit cards belong to the public agency or the individual, what documentation the clerk is required to submit to receive reimbursement for public agency expenses and the guidelines for using personal credit cards for public expenses are issues outside the purview of this office and are issues which may be addressed by the Indiana State Board of Accounts,” Neal wrote.

The fact that the clerk’s office provided Hutt with access to records relating to reimbursement for city expenses, satisfies the open records law, she said.

Here is the PAC Advisory Opinion 08-FC-191, dated August 26, 2008.

Posted by Marcia Oddi on Wednesday, September 10, 2008
Posted to Indiana Government

Ind. Law - "Indiana legislators tackle illegal immigration again"

Niki Kelly reports today in the Fort Wayne Journal Gazette under the headline "Legal minds at odds over immigration edicts." The story begins:

If lawmakers considering whether Indiana should wade into the murky area of immigration law were looking for clarity Tuesday, they didn’t get it.

Several law professors from around the state gave conflicting advice to a panel of House and Senate members studying the issue.

One advised against moving forward at all, another said to wait for a crucial court ruling, and a third said he would bet that some state action on immigration would eventually be found legal.

In the 2008 legislative session, lawmakers failed to come together on a proposed law that would punish businesses that hire illegal immigrants. Instead, the topic was moved to a summer study committee where Republican and Democratic lawmakers hope to learn more about the intricacies of the issue.

Tuesday was the first of five scheduled hearings – this one focusing on the legalities of whether states are limited in taking action on immigration because the federal government has supreme authority over the matter.

Dan McFeely of the Indianapolis Star writes:
Illegal immigration is expected to return as a hot topic at the Statehouse next year. State Sen. Mike Delph, R-Carmel, has vowed to reintroduce legislation that would crack down on employers who knowingly hire illegal workers.

The Democrat-controlled House and Republican-ruled Senate passed different versions of Delph's bill last session but could not reach a compromise.

The Interim Study Committee on Immigration Issues, comprising House and Senate members from both parties, is taking a deeper look at the issue to see whether it can reach consensus before the start of the 2009 session in January. * * *

How to deal with those here illegally has been hotly debated between forces who see the illegal population as a drain on taxpayer dollars -- for education, social welfare and law enforcement expenses -- and those such as Indiana's manufacturers and businesses, which see them as a much-needed source of labor. * * *

Tuesday's Statehouse hearing drew business lobbyists, those who advocate on behalf of Hispanics and at least one Catholic priest who makes the drive from South Bend frequently to testify against immigration laws.

A handful of law professors and legal experts warned the lawmakers that a crackdown would likely be costly -- amounting to perhaps millions of dollars -- and there was no guarantee a law would stand up in federal court. * * *

The committee tried to answer a simple question: Does Indiana have the legal right to address an issue that has historically been handled at the federal level?

The overriding opinion from the assembled experts: Immigration enforcement is, in fact, a federal issue.

Posted by Marcia Oddi on Wednesday, September 10, 2008
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Invol. Term. of Parent-Child Rel. of D.J., K.P., and K.R., et al v. Marion Co. Dept. of Child Services and Child Advocates (NFP) - "Having concluded that the evidence is sufficient to support the trial court’s determination that there is a reasonable probability that the conditions resulting in the children’s removal from the Reaveses’ home will not be remedied and that the Reaveses’ additional challenges to the termination of their parental rights are without merit, we affirm the termination of the Reaveses’ parental rights to D.J., K.P., and K.R."

In Lynch and Son Construction Inc. v. Pace Auto Center Inc. d/b/a Pace Chevrolet (NFP), a 10-page opinion, Judge Bradford writes:

Appellant-Plaintiff Lynch and Son Construction, Inc. (“Lynch”) appeals the trial court’s grant of summary judgment to Appellee-Defendant Pace Auto Center, Inc., d/b/a Pace Chevrolet (“Pace”), in Lynch’s action for damages against Pace. We reverse and remand. * * *

Having concluded that a genuine issue of material fact exists regarding whether Lynch agreed to forgo his claims against Pace in exchange for Pace’s payment of his debt to Citizens, and having rejected Pace’s arguments claiming summary judgment was appropriate on alternative grounds, we reverse the trial court’s grant of summary judgment on this case and remand for a trial.

NFP criminal opinions today (3):

George E. Huston v. State of Indiana (NFP)

Joshua Richey v. State of Indiana (NFP)

Donald France v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 10, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Panel to rule on Allen judge's outburst"

This story today in the Fort Wayne Journal Gazette, by Rebecca S. Greene, reports that:

The Indiana Supreme Court appointed a three-judge panel to hear a complaint of judicial misconduct against Allen Superior Court Judge Kenneth R. Scheibenberger.

Last week, the Supreme Court appointed Marion Superior Judge Sheila A. Carlisle, Vigo Circuit/Superior Court David Bolk and Lake Superior Judge Thomas Stefaniak Jr. The three judges, known as “masters,” will conduct a hearing on a charge of judicial misconduct filed in July by the Indiana Commission on Judicial Qualifications against Scheibenberger.

Here are earlier ILB entries about Judge Scheibenberger.

The ILB has not located the order online.

Posted by Marcia Oddi on Wednesday, September 10, 2008
Posted to Indiana Courts

Ind. Courts - "Judge rules on Winchester courthouse variance"

"[N]o setback ever was needed" Today, from the Muncie Star-Press:

WINCHESTER — A special judge has finally settled the issue of whether the Randolph County Courthouse ever needed a variance for its much-beleagered construction project. The ruling, from John Forcum of Blackford County, was issued Tuesday, less than two weeks after county commissioners sought a declaratory judgment on a technical issue that has been a recent sore spot.

In Forcum's ruling, he determined that the Randolph County Board of Zoning Appeals acted properly in April when it voted 5-1 to deny Randolph County commissioners a variance setback for the courthouse.

He also ruled that with new evidence that has become available since that hearing, a survey of the courthouse lawn and property, that no setback ever was needed. That survey, and the related dimensions and measurements of the property, indicate that the south side of the courthouse, facing Franklin Street is a side yard, and not a front yard as previously believed. And according to the Unified Zoning Ordinance, there are no side-yard setback requirements for properties in a commercial zoning district.

The ILB would like to post a copy of Judge Forcum's ruling. If any reader can assist, please contact me.

For background, see the June 4 ILB entry headed "Search for the front of the Randolph County Courthouse continues", the May 29th entry headed "Who am I? Why am I here?", and the May 20th entry headed "Setback requirement deals setback to Randolph County courthouse project."

Posted by Marcia Oddi on Wednesday, September 10, 2008
Posted to Indiana Courts

Tuesday, September 09, 2008

Ind. Decisions - One Indiana opinion today from 7th Circuit

In RLI Insurance v. Conseco (SD Ind., Judge McKinney), a 16-page opinion, Judge Manion writes:

RLI Insurance Company (“RLI”) filed a declaratory judgment action seeking a determination of its obligation, if any, to defend Conseco, Inc., and various individual defendants (collectively “Conseco”) under a liability insurance policy RLI issued to Conseco. The district court entered summary judgment in favor of RLI concluding that RLI was released from any duty to defend and entitled to indemnification. Conseco appeals, and we affirm.

Posted by Marcia Oddi on Tuesday, September 09, 2008
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In David E. Schacht v. Pamela K. Schacht , a 17-page opinion, Judge Brown writes:

David E. Schacht (“Father”) appeals the trial court’s grant of a petition to modify child support and educational expenses filed by Pamela K. Walker (“Mother”). Father raises five issues, which we reorder and restate as:

I. Whether the trial court erred by modifying Father’s obligation to pay his daughter’s educational expenses;
II. Whether the trial court erred in defining and determining “other educational expenses;”
III. Whether the trial court erred when it applied scholarships, grants, and awards to the daughter’s one-third share of educational expenses;
IV. Whether the trial court erred by denying Father’s request to terminate his child support obligation retroactively but granting a retroactive modification of his educational expense obligation; and
V. Whether the trial court erred by ordering Father to pay a portion of Mother’s attorney fees. * * *

[I] Given the change in Mother’s overall financial condition since the 2005 modification agreement, we conclude that Mother demonstrated “changed circumstances so substantial and continuing as to make the terms unreasonable.” Ind. Code § 31-16-8-1(b)(1). The trial court’s grant of Mother’s petition to modify was not clearly erroneous. * * *

[II] Consequently, we cannot say that the trial court’s award of vehicle expenses [food expenses, etc.] as an “other educational expense” was clearly erroneous. * * *

[III] Having found a substantial change in circumstances warranting a modification of Father’s child support and educational expenses, see supra Part I, it was within the trial court’s discretion to credit the scholarships and grants to D.S.’s share of the educational expenses rather than to Mother and Father’s shares. We cannot say that the trial court abused its discretion or that its order is clearly erroneous. * * *

[IV] To the extent Father argues that the child support was duplicated by the retroactive “room and board” expenses, we must disagree. However, to the extent that Father argues the child support was duplicated by the retroactive “other educational expenses,” we agree. Father should not be required to pay both child support and the “other educational expenses” during the time period from July 27, 2007 through January 10, 2008. The trial court’s order on this issue is clearly erroneous. We reverse that portion of the trial court’s order denying Father’s request to terminate his child support obligation retroactively to July 27, 2007. Any resulting overpayment by Father shall be credited toward his educational support obligation. * * *

[V] Under these circumstances, the trial court did not abuse its discretion by ordering Father to pay $750.00 of Mother’s attorney fees. See, e.g., Thompson, 868 N.E.2d at 870 (holding that the trial court did not abuse its discretion by ordering the father to pay over $4,300.00 in mother’s attorney fees given the earning disparity of the parties). For the foregoing reasons, we affirm in part and reverse in part.

We affirm in part and reverse in part.

NFP civil opinions today (1):

The Term. of Parent-Child Rel. of M.W. (minor) and J.W. (mother) v. Montgomery Co. Dept. of Child Svcs. (NFP) - "Appellant-Respondent, Jennifer Watkins (Mother), appeals the trial court’s Order terminating her parental rights to her minor child, M.W. We affirm."

NFP criminal opinions today (1):

Alberta Thompson v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 09, 2008
Posted to Ind. App.Ct. Decisions

Ind. Courts - Deborah A. Rigi suspended pendente lite

Among the newly posted Supreme Court orders is this one, dated Sept. 4, re former Lake County judge Deborah Riga. The scanned, one-page document provides in part that:

Respondent be immediately suspended from the practice of law in this State, pending further order of this Court or final resolution of any resulting disciplinary action, due to Respondent being found guilty of a crime punishable as a felony.

The Court, being duly advised and upon careful consideration of all materials submitted, now finds that Respondent has been found guilty of four counts of federal felony mail fraud.

IT IS THEREFORE ORDERED that Respondent is suspended pendente lite from the practice of law in this State, effective immediately.

Posted by Marcia Oddi on Tuesday, September 09, 2008
Posted to Indiana Courts

Ind. Courts - Issues re the expedited appeal regarding juvenile placement and / or services

One of the items on the agenda of this week's 2008 Indiana Judicial Conference is titled "HEA 1001 Progress Report." The description:

Learn from Indiana's experts about the procedures and forms being developed to implement HEA 1001. This discussion will cover probation, expedited appeals, regional service councils, contracting for services, and other areas of importance to the judiciary to ensure the success of this historic legislation.
The digest to HEA 1001 is at least a half-dozen pages long. The bill itself is 805 pages long in PDF format. Don't try to read it online unless your have a T-1 connection.

(Observation: One wonders how many people have reviewed HEA 1001, line by line - I keep reading articles about surprise impacts of the bill.)

The ILB has received a scanned copy of a memo on the expedited appeal regarding juvenile placement and / or services, which will be part of the discussion. Other materials from the Conference will presumably be available at some point here, at the Court's judicial education library.

Posted by Marcia Oddi on Tuesday, September 09, 2008
Posted to Indiana Courts

Courts - Federal Court in Florida throws out anti-Starbucks-type zoning ordinances

The ILB has posted a number of entries about anti-big box zoning ordinances considered by Indiana communities. Today Howard Bashman of How Appealing notes two Florida district court opinions and an AP story that begins:

Federal appeals judges say zoning restrictions by Islamorada, Fla., to block chains such as Starbuck's and Walgreen's run counter to laws protecting interstate commerce.

In two cases before the 11th U.S. Circuit Court of Appeals, a three-judge panel ruled Monday against the Florida Keys town's "formula restaurant" prohibition and restrictions on size of "formula retail" establishments.

The court said the zoning code's effort to safeguard small, locally owned businesses failed to provide a "legitimate local purpose" that justifies favoring in-state interests over out-of-state interests.

Posted by Marcia Oddi on Tuesday, September 09, 2008
Posted to Courts in general

Ind. Courts - "Supreme Court Adopts 2009 Judicial Code of Conduct"

A press release dated Sept. 8th announces:

The Indiana Supreme Court is adopting a new Code of Judicial Conduct. Indiana is the second state to adopt new judicial ethics rules based on the new national model of the American Bar Association.

The 2009 Code emphasizes the “three i’s” of judicial conduct - independence, integrity, and impartiality. It continues to hold judges to strict standards of conduct in all activities. Chief Justice Randall T. Shepard, Professor Charles G. Geyh of Bloomington, and Judge Marianne Vorhees of Muncie will review the Code with judges across the state.

* The new Code specifies that judges may take measures to assist unrepresented litigants in gaining a fair hearing (Canon 2.2) and encourages judges to promote pro bono work by lawyers (Canon 3.7)
* The Code highlights the role of judges in promoting ethics and professionalism among lawyers and other judges (Canon 1.2).
* The Code provides more concrete guidance for avoiding “the appearance of impropriety,” a rule long criticized for its vagueness (Canon 1).
* The Code imposes clear requirements for public disclosure of income, reimbursements, and gifts (Canon 3).
* The Code includes ethical principles intended as guidance for judicial candidates (Canon 4).
* The Code encourages judges to reach out to the public to promote understanding of the judicial system (Canon 2.8).

These rules and many others serve as the behavior requirement for the men and women interpreting and applying the law that governs our society. The Code sets out clear expectations for judicial conduct. If the rules are violated, a judge is subject to discipline by the Indiana Supreme Court.

The 2009 Judicial Code of Conduct was submitted to the Supreme Court by a committee of the Judicial Conference of Indiana chaired by Judge Vorhees. The draft was reviewed by judges, lawyers, and the public. The committee’s work is based on the 2007 American Bar Association Model Code of Judicial Conduct. Professor Geyh and Professor Emeritus W. William Hodes, also of I.U., were the official Reporters of the ABA’s commission, in whose work Chief Justice Shepard participated. The new Code is available here. It is effective January 1, 2009.

Posted by Marcia Oddi on Tuesday, September 09, 2008
Posted to Indiana Courts

Ind. Courts - "What time is it? Check the courthouse clock"

Nick Schneider of the Greene County Daily World reported yesterday:

The clock on the Greene County Courthouse in Bloomfield is working again after at least a decade of working only sporadically.

The electric clock is not ticking, but it is quietly and efficiently "purring" again, according to veteran Bloomfield clock repairman Basil Bennett, who operates the "Dancing Bear Shoppe" -- about a half block from the courthouse on West Main Street.

Last week, Bennett made his way up some rickety ladders on the third floor of the courthouse and climbed to the clock tower and replaced the five-feet wide timepiece's electric motor.

Bennett was summoned a couple weeks earlier to take a look at the long-time, out-of-service clock by William "Butch" Brown, who is a Greene County Councilman and head of courthouse security.

The clockmaster said the fix was an easy one that took only a couple of hours to complete once he located a new motor.

"The motor that they put on in 1977 was bad and it wasn't available any more (from the company). So I had to change one of the gears and put a different motor on it." Bennett explained. "I had to re-machine the mount."

The Vernon Company, of Cincinnati, Ohio, installed the clock motor in 1977.

Bennett billed the county $225 for the repair.

The clockmaster said the original company wanted to sell a whole new gearbox since the motor wasn't available. He estimates the gearbox would have cost between $2,000 and $3,000 to change out.

The Greene County Courthouse was built in the 1886, but its clock tower was replaced in a 1954 renovation project and the old clock was reworked at that time.

Posted by Marcia Oddi on Tuesday, September 09, 2008
Posted to Indiana Courts

Ind. Decisions - More on "Judge rules for $4.5 million settlement"

Updating this ILB entry from Sept. 5th, IUPUI has issued a news release headed "Inmate Freed With Help of IU School of Law-Indianapolis Students Gets $4.5 Million Civil Settlement." Some quotes:

Seven years ago, with the help of IU School of Law-Indianapolis Professor Fran Hardy and four of her students, Larry Mayes of Gary, Indiana, was set free from prison based on DNA testing.

This week a federal court approved a $4.5 million settlement for Mayes - who before his release spent 21 years in prison for a rape conviction. The U.S. magistrate agreed on Sept. 2, 2008, that the 2006 federal jury award of $9 million to Mayes could be set aside, paving the way for the settlement between the man and Hammond, Indiana, city officials, according to an Associated Press report. Mayes originally had sought $19 million in damages and legal fees from the city, according to the AP story.

Mayes, who had been convicted in 1990 of several acts, including rape, was released on Dec. 21, 2001. After his exoneration, Mayes was represented by private counsel during the civil proceedings.

"I am certainly pleased that Larry Mayes will finally receive compensation for his unconstitutional, wrongful conviction," Professor Hardy said Friday (Sept. 5, 2008).

State Public Defender Susan Carpenter had appointed Hardy as pro bono counsel for Mayes. Hardy worked on the case with the help of four students in a criminal defense clinic course, Todd Ess, Edward Queen, Alicia Corder and Darlene Seymour. The team filed the petition for post-conviction relief that requested DNA testing in Mayes' case. * * *

Hardy's class was part of a national program, The Innocence Network, an offshoot of The Innocence Project, founded in 1992 at the Benjamin Cardozo School of Law located in New York City. The project's mission is to assist prisoners who can be exonerated through DNA testing of crime scene evidence. Law faculty and students at Cardozo School of Law referred the Mayes case to the Indianapolis law school which participates in The Innocence Network.

At the time, Mayes was the third Indiana man to be released as a result of post-conviction DNA testing. Presently, according to records compiled by The Innocence Project, six Indiana men have been exonerated by DNA testing.

Posted by Marcia Oddi on Tuesday, September 09, 2008
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Dearborn Superior Court Judge Michael G. Witte honored

Dearborn Superior Court Judge Michael G. Witte will be the 2008 recipient of the Indiana University Asian Alumni Association's Distinguished Asian Pacific American Alumni Award, according to a release issued by Indiana University.Some quotes:

This award recognizes outstanding professional achievements and community service of Asian/Pacific American Alumni of IU.

The award will be presented to Witte during a dinner celebrating the 10th anniversary of the IU Asian Culture Center starting at 7 p.m., Oct. 3, in Alumni Hall in the IU Memorial Union, 900 E. Seventh St. on the IU Bloomington campus. * * *

A lifetime member of the IU Alumni Association, Witte received his bachelor's degree in forensic studies in 1979 and his law degree in 1982, both from IU. Witte, who serves as judge for the Dearborn Superior Court No. 1, was the first Asian American trial judge to be elected in the state of Indiana.

A nationally recognized expert on highway traffic safety legal issues and known for his commitment to improving the public trust in the judicial branch of government and improving the performance of America's judges, Witte has been a faculty member with the National Judicial College of the University of Nevada since 1994. * * *

In August, Witte received the Franklin N. Flaschner Award from the American Bar Association National Conference of Specialized Court Judges. The award is given to the outstanding judge in the nation who presides in a court of limited jurisdiction.

As noted in this Feb. 15th ILB entry, Judge Witte was one of the three finalists to succeed Judge Sharpnack on the Indiana Court of Appeals.

Posted by Marcia Oddi on Tuesday, September 09, 2008
Posted to Indiana Courts

Monday, September 08, 2008

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

In Wasson v. Peabody Coal (SD Ind., Judge Barker), an 8-page opinion, Judge Wood writes:

John Wasson sued Peabody Coal Company for breach of contract, claiming that it underpaid the royalties to which he was entitled for coal mined from his property. After a bifurcated jury trial resulting in a $350,000 verdict in Wasson’s favor, the district court granted Peabody’s renewed motion for judgment as a matter of law. Wasson appeals, and we affirm. * * *

The district court held that it could “identify no reasonable basis in the evidence for the jury’s $350,000 damage award to Mr. Wasson.” Neither can we. The judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on Monday, September 08, 2008
Posted to Ind. (7th Cir.) Decisions

Courts - "The judges of the Supreme Court of Canada wear robes with fluffy white trim that makes them look like Santa Claus’s helpers"

John Eligon of the NY Times has a long article today on what judges wear, headlined "Behind the Gavel, a Sense of Style ." A few quotes:

In Britain, judges are wedded to a tradition of elegant attire: scarlet and ermine robes, tippets over the shoulders, black girdles and, of course, the crimped, gray horsehair wig.

In the United States, judges have been less attached to such grand garb. Robes were not even a necessary part of their attire in the decades after the Revolutionary War, though it eventually became the accepted fashion. But even today, New York does not require judges to wear robes, and various judges spurn them altogether from time to time, or at least try to wear them with a bit of flair. * * *

John Jay, a former New York governor and the first chief justice of the United States Supreme Court, is captured in many pictures wearing a scarlet and black robe with silver trim.

When John Marshall, who became the chief justice of the Supreme Court in 1801, donned a plain black silk robe, it was actually seen as a radical departure from the scarlet and ermine robes that the other justices wore, according to a biography written by Jean Edward Smith.

The late chief justice William H. Rehnquist wore gold stripes on his sleeves. Supreme Court Justice Ruth Bader Ginsburg is known for the lacy jabot around her neck, an accessory that may be more about necessity than style, said Judith S. Kaye, the chief judge of New York. Judge Kaye said the V-cut of robes makes for an awkward fit for women, while a perfect fit for a man with a shirt and tie.

“If you wear an open blouse or something, you look strange,” she said.

Judge Kaye often wears a bow around her neck.

Posted by Marcia Oddi on Monday, September 08, 2008
Posted to Courts in general

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

For publication opinions today (1):

In Town of Chandler, Indiana v. Indiana-American Water, Co. and Town of Newburgh, Indiana, a13-page opinion, Judge Mathias writes:

The Town of Chandler (“Chandler”) appeals from the order of the Indiana Utility Regulatory Commission (“the Commission”) granting the relief requested by the petition of Indiana-American Water Co. (“Indiana-American”) and denying Chandler’s motion to dismiss. Upon appeal, Chandler claims: (1) that the Commission has been statutorily deprived of the authority to hear the dispute at issue, and (2) that the Commission’s ruling violates Article 1, Section 23 of the Indiana Constitution. We affirm. * * *

Here, the issue of the standard of review was presented to this court in Chandler’s appellant’s brief. Indeed, the issue of the standard of review is always before us as an appellate court in every case. The parties need not present the standard of review as an issue before we may address it. To apply Appellate Rule 46(C) in the manner which Indiana-American urges would mean that this court could not apply the appropriate standard of review if a party misstated the standard of review in its briefs. The parties may choose their arguments, but they do not choose the standard of review applicable to their case. * * *

We therefore follow Nextel West, 831 N.E.2d at 141, and the binding precedent of our supreme court in Indiana Bell, 715 N.E.2d at 354, and apply a de novo standard of review because the statute at issue here is not one which the Commission is charged to enforce; it instead sets forth the jurisdiction of the Commission to hear certain disputes. * * *

Here, it is undisputed that the territorial dispute in question concerns a geographic area which lies within more than one four mile area, as that term is defined by statute. As such, the exception to the exception is applicable, and the Commission rightly determined that it had the authority to determine the territorial dispute between Chandler, Indiana-American, and Newburgh. * * *

Chandler claims that the Commission’s alleged “disparate treatment” of Chandler and Indiana-American violates Article 1, Section 23 of the Indiana Constitution. This provision of the Indiana Constitution provides that “[t]he General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.” Fatal to Chandler’s argument is the holding of our supreme court in Board of Commissioners of Howard County v. Kokomo City Plan Commission, 263 Ind. 282, 330 N.E.2d 92 (1975). In that case, the county argued that a statute violated Article 1, Section 23. Our supreme court succinctly held, “A municipal corporation, in this case, a county, is not a citizen of Indiana.” * * * Because Chandler is a municipality, it is not a citizen, and Article 1, Section 23 is inapplicable to the present case.

Conclusion. The Commission rightly determined that Indiana Code section 8-1-2-86.5 did not deprive it of authority to determine the territorial dispute between Chandler and Indiana-American. In addition, the Commission’s decision does not violate Article 1, Section 23 of the Indiana Constitution because Chandler is not a “citizen” to which this constitutional provision applies. Affirmed.
_______
[ILB note] Of interest is footnote 5 on p. 11, which concludes: "Furthermore, our supreme court has more recently explained that while “a court may look to the journals of the two legislative bodies to infer legislative intent . . . the motives of individual sponsors of legislation cannot be imputed to the legislature, absent statutory expression.” O’Laughlin v. Barton, 582 N.E.2d 817, 821 (Ind. 1991); see also City of Huntingburg v. Phoenix Natural Res., 625 N.E.2d 472, 475 (Ind. Ct. App. 1993) (citing O’Laughlin in holding that trial court erred by basing its decision regarding the meaning of a statute on Senator’s testimony).

NFP civil opinions today (0):

NFP criminal opinions today (1):

Randy R. Jones v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 08, 2008
Posted to Ind. App.Ct. Decisions

Courts - "December SCOTUS arguments, day by day"

This is very useful. SCOTUSBlog has posted this entry: "December Arguments, day by day"

Posted by Marcia Oddi on Monday, September 08, 2008
Posted to Courts in general

Ind. Courts - "Public Interviews to be Held for St. Joseph Superior Court Vacancy"

From a press release issued by the Indiana Courts:

The St. Joseph Superior Court Judicial Nominating Commission will interview candidates for the upcoming vacancy on the St. Joseph Superior Court on Friday, September 12, 2008. The interviews will begin at 8:30 a.m. in the St. Joseph County Commissioners Conference Room, Seventh Floor, County-City Building, 227 Jefferson Blvd., South Bend, Indiana, 46601.

An interview schedule will be posted on the door of the Commissioners Conference Room on the day of the interviews. At the conclusion of the interviews, the Commission will deliberate in executive session.

Following the executive session, the Commission will reconvene at the Commissioners Conference Room for a public vote on the nominees whose names will be submitted to the Governor for his consideration and appointment.

Posted by Marcia Oddi on Monday, September 08, 2008
Posted to Indiana Courts

Ind. Courts - "Lake commissioner backs proposal to prune public defender staff"

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

CROWN POINT | Support is growing among Lake County officials to thin out the ranks of lawyers defending at public expense indigent people accused of minor crimes. * * *

The lawyer reduction is one part of a larger plan to cut county government's current spending levels by $15 million because of state-mandated property tax caps that will reduce local government revenue.

Posted by Marcia Oddi on Monday, September 08, 2008
Posted to Indiana Courts

Courts - "Drug makers seek shield from lawsuits"

Updating earlier ILB entries from April 7th and March 5th, David G. Savage reports today in the Los Angeles Times. Some quotes from the lengthy story:

Earlier this year, the Supreme Court reinterpreted a 32-year-old federal law as barring suits against makers of government-approved medical devices.

Now, in a case to be heard this fall, the court will consider whether to extend this shield against lawsuits to the makers of prescription medicines and over-the-counter drugs.

If so, it could make for a far-reaching change in the law, one brought about with little public debate. Having failed to persuade Congress or the states to limit such suits, the Bush administration and the pharmaceutical industry went to court, and now they stand on the verge of shutting down tens of thousands of lawsuits that have cost the industry billions of dollars in jury verdicts and settlements.

"This is a radical restructuring of the American civil justice system," said Georgetown law professor David C. Vladeck, formerly of the consumer advocacy group Public Citizen.

Until recently, the right to a civil jury trial has been a historic protection for consumers. People hurt by a defective product could sue and ask a jury to award them damages. But the high court has been increasingly skeptical of lawsuits and civil juries. A series of recent rulings has limited lawsuits against businesses, but the biggest test will come before the court on the day before the presidential election. * * *

Manufacturers have long chafed at this right to sue and the resulting big jury verdicts. During the 1980s and 1990s, business lawyers and lobbyists tried, with limited success, to persuade state legislatures and judges to disallow some lawsuits and to limit damage awards.

The Bush administration tried a different approach. Bypassing Congress, it had federal agencies reinterpret the laws on the books to conclude that jury verdicts would conflict with federal policy.

Nowhere is this approach having more effect than in the area of drugs and medical devices.

Before this decade, the FDA had maintained that regulatory laws passed by Congress did not bar such lawsuits. Under the Bush administration, the FDA changed course and said that its federal oversight of drugs and medical devices barred most lawsuits concerning those products.

In February, the Supreme Court endorsed the administration's view in the case of Riegel vs. Medtronic. The justices in an 8-1 decision rejected a suit filed by a New York man whose balloon catheter burst in his chest.

The ruling was based on the Medical Device Amendments of 1976: 21 USC 360, a law passed in the wake of the Dalkon Shield disaster. This birth control device, introduced in 1970, was blamed for 12 deaths and thousands of severe infections in young women.

To protect the public from unsafe devices, Congress told the FDA to approve new medical devices before they went on the market. Nothing was said about limiting lawsuits. At the time, California had its own law regulating the sale of medical devices, and the new federal law said states could not enforce "any requirement" that differed from the FDA rules.

This phrase was crucial to the high court's decision in February. The justices said that a lawsuit filed under a state's consumer protection law could impose an extra "requirement" on device makers and that, therefore, the federal law "preempted" these suits.

Posted by Marcia Oddi on Monday, September 08, 2008
Posted to Courts in general

Ind. Decisions - More on: Transfer list for week ending Sept. 5, 2008

Updating this ILB entry from Friday, I've learned that transfer lists are now going to be made available on Mondays, rather than late Friday afternoon. This will be a good thing if it insures that the lists pick up the results of the Court conference from the preceding Thursday.

Here is the just issued transfer list for the week ending Sept. 5, 2008. It is 5 pages long.

Two transfers were granted last week. They are discussed in this ILB entry from last Friday.

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.

Posted by Marcia Oddi on Monday, September 08, 2008
Posted to Indiana Transfer Lists

Ind. Law - "People can get arrested for shoving, grabbing"

Last Monday Ken Kosby has a story in the NWI Times about school zone speeding and school bus stop arm violations. Today he writes about domestic battery laws, in a continuing "series of articles highlighting commonly broken laws, explaining common misconceptions about the laws and detailing what types of actions will get a person arrested." Some quotes from today's story:

Police officers who enforce Indiana's domestic battery laws say some people don't realize they can be arrested on battery charges even if the victim doesn't have a black eye or bloody nose, and even if the victim doesn't want to press charges.

Porter County police Lt. Chris Eckert said police can arrest a person on battery charges if they do something as simple as pushing another person or grabbing their wrists.

"The statute reads, if we have probable cause to believe a battery has occurred, we will make an arrest," Eckert said. "We're going to protect the victim from further injury whether they want to be protected or not." * * *

Eckert said people arrested on battery charges often have an additional charge of interference with reporting a crime added. It is a misdemeanor offense to break a telephone, take a telephone away from a victim or otherwise interfere with the reporting of a crime.

Posted by Marcia Oddi on Monday, September 08, 2008
Posted to Indiana Law

Ind. Gov't. - Fort Wayne Journal Gazette urges legislative consideration of Kernan-Shepard report

The Fort Wayne Journal Gazette editorial today urges consideration of Kernan-Shepard report in this session of the General Assembly. Some quotes:

A momentous report from a panel of government and policy all-stars recommending dramatic changes in Indiana local government was sidelined last December when it hit an immovable object: property taxes.

Overhauling the state’s property tax system overshadowed the 2008 General Assembly, leaving no time for a second major issue. But the report remains worthy of serious consideration, and a formidable group of advocates has coalesced to revive interest in the recommendations. The new organization has promise to counter the certain opposition from elected officials whose jobs would be eliminated or drastically changed if the legislature adopts various elements of the report.

MySmartGov.org will advocate for changes recommended by the study commission that former Gov. Joe Kernan and Indiana Chief Justice Randall Shepard led. The commission also included John Stafford, director of the Community Research Institute at Indiana University-Purdue University Fort Wayne, and retired Lincoln National Corp. Chairman Ian Rolland. MySmartGov.org expects to have a budget of up to $500,000 for information and lobbying. * * *

The Kernan-Shepard report should not be placed on the shelf because property taxes were considered more important in this year’s legislative session. MySmartGov.org will help ensure the recommendations are at least considered in 2009.

[More] Mike Smith of the AP had a story today on the streamlining plan that appeared in a number of state paper, and on Forbes.com.

Posted by Marcia Oddi on Monday, September 08, 2008
Posted to Indiana Government

Courts - Update on: "Judge Rules Drug Documents Must Be Returned to Eli Lilly"

The ILB has had a number of entries on the Eli Lilly Zyprexa litigation, including this one from Feb. 14, 2007, quoting the NYT:

A federal district judge in Brooklyn (ED NY) ruled yesterday that confidential marketing materials belonging to Eli Lilly & Company about its top-selling anti-psychotic drug Zyprexa must be returned to the company by a doctor and a lawyer who, the judge said, engaged in a scheme to leak them to the news media.
and including a link to the opinion.

Today Mark Fass of The National Law Journal reports, in a story headed "Narrow Zyprexa Class Certified, Sealed Files Released," that begins:

A federal judge in Brooklyn, N.Y., has certified a class of "third-party payors," such as pension funds, labor unions and insurance companies, in their claim that the drug giant Eli Lilly committed fraud by overpricing its anti-psychotic drug Zyprexa while overstating the drug's utility and understating its drawbacks.

The decision was a partial victory for both sides, as Eastern District of New York Judge Jack B. Weinstein certified only the plaintiffs' Racketeer Influenced and Corrupt Organizations Act claims and not their state-law ones, and on a narrower basis than the plaintiffs sought. The judge also declined to certify a class of individual-payor claims.

"Total denial of certification would constitute the death knell of the action," Weinstein wrote in Zyprexa Products Liability Litigation, 04-MD-1596. "Almost all plaintiffs' claims would be too small to individually support this costly litigation. Under such circumstances, absent an unusual situation, the rule to be applied in deciding to deny certification is essentially that for summary judgment."

Weinstein's 295-page decision also marks the apparent end of the controversy surrounding approximately 350 sealed documents that were obtained in a legal end-run by New York Times reporter Alex Berenson.

Eighteen months after Weinstein derided the "conspiracy" orchestrated by Berenson and two sympathetic attorneys to obtain the documents -- primarily internal Lilly documents and e-mails between its top managers -- the judge ordered the documents unsealed.

"Public access is now advisable because this litigation involves issues of great public interest, the health of hundreds of thousands of people, fundamental questions about our system of approval and monitoring of pharmaceutical products, and the funding for many health and insurance benefit plans," Weinstein wrote.

"Public and private agencies and organizations have a right to be informed. At this stage public disclosure, congruent with our long tradition of open courts, is desirable."

As summarized by Weinstein in a 78-page decision in February 2007, the Times' Berenson obtained documents, which he knew were subject to a protective order, by convincing an Alaska attorney involved in an "unconnected" case to subpoena them. After that attorney, James B. Gottstein, obtained the documents, he released them to Berenson and others, and they quickly found their way into Times articles and onto the Internet.

In his 2007 decision, Weinstein enjoined a number of the individual conspirators from further disseminating the documents and ordered them to return any in their possession.

Weinstein has now ordered the seal removed, though he referred the unsealing to a special master to "avoid any unnecessary embarrassment" to any party.

"Based on this country's long-standing tradition of open access to the courts and court records, the enormous number of people who have taken or will take Zyprexa, the involvement of government regulatory bodies, absent class members' interest in the proceeding, and the age of the documents, the motions to unseal are granted," Weinstein wrote."

Posted by Marcia Oddi on Monday, September 08, 2008
Posted to Courts in general

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

None scheduled.

This week's oral arguments before the Court of Appeals

None scheduled.

Posted by Marcia Oddi on Monday, September 08, 2008
Posted to Upcoming Oral Arguments

Sunday, September 07, 2008

Ind. Courts - Tippecanoe's historic courthouse and its "twin" in Quincy Illinois

David Smith of the Lafayette Journal & Courier has a long feature story today on the history of the Tippecanoe County Courthouse. A quote from the final third of the story:

The Quincy design had been criticized early on by several architects who claimed that the dome could not be supported as proposed in Mc-Kean's drawings.

Officials in Adams County initially wanted to leave off the dome, not for structural reasons but to keep the cost down. They ran the plans past a bridge engineer to be sure the dome would be safe, then approved the building as originally planned. The dome held up for 68 years before a tornado knocked it off in 1945.

After the tornado exposed the courts and court records to the elements, the county supervisors decided against restoring the courthouse, instead replacing it with a no-frills brick office building.

Quincy as a whole has a tradition of historic preservation and a museum devoted to historic architecture. One person who especially regrets losing the crown jewel of the city's Victorian collection is Vicki Ebbing, museum coordinator, Gardener Museum of Architecture and Design, Quincy, Ill.

"We're quite well known for preserving our buildings. Unfortunately, the tornado came through before that process started," she said.

Duncan Campbell, director of the graduate program in historic preservation at Ball State University, said if the same thing happened today, chances are a different decision regarding the Quincy courthouse would be reached.

Today preservation advocacy groups are in place as well as laws and a growing appreciation for the importance of saving historic structures. Back in 1945, the mindset was different.

"During World War II and shortly thereafter, there was a rebuild mentality," he said. "The idea that we could do it again, and make it better, was pretty prevalent."

Posted by Marcia Oddi on Sunday, September 07, 2008
Posted to Indiana Courts

Ind. Courts - "St. Joseph County lawyers set out to judge judges"

Jeff Parrott of the South Bend Tribune reports today in a lengthy story:

If you step up to the ballot box Nov. 4 and aren't familiar with the local judges up for a "yes" or "no" retention vote, that's probably a good thing for you.

It means you likely haven't been charged with any crimes, been sued by anybody or had the need to sue anybody, or witnessed any crimes or alleged violations of civil laws.

Still, the St. Joseph County Bar Association wants you to know more about the county's Superior Court judges before voting whether to keep them on the bench.

For the first time in 18 years, the county bar is asking its roughly 500 member attorneys to evaluate judges' job performance. The group e-mailed surveys to attorneys last week and hopes to publicize the results by early October, said Joe Fullenkamp, a Barnes & Thornburg attorney and co-chair of the bar's judicial evaluation committee.

Fullenkamp said the idea of attorneys evaluating judges has come up repeatedly since the last time it was tried locally in 1990, but it had not materialized because of the expense and complications involved.

But the initiative received a boost two years ago in the wake of a Tribune series, "Judging the Judges," which noted the difficulty nonlawyers have in ascertaining whether judges are doing their jobs well, Fullenkamp said.

In 90 of Indiana's 92 counties, judges are popularly elected in partisan campaigns, like any other politicians. But in Lake and St. Joseph counties, judges are chosen under a "merit selection" system. They are appointed by the governor, and voters every six years decide whether to retain them.

Later in the story:
State Rep. Craig Fry, D-Mishawaka, has tried repeatedly to change the law to require popular election of St. Joseph County Superior Court judges. A bill he sponsored in this year's session died in committee. Later in the session, in a move supported by St. Joseph County Prosecutor Michael Dvorak, Fry tried again to change the system, this time through an amendment to a bill on judge's pensions.

That amendment also failed. But in conference committee, Fry did succeed in enacting language requiring the legislature's Commission on Courts to study how St. Joseph County selects its judges. The commission was to file a final report, including any recommendations for legislation, to the Legislative Council by Nov. 1.

The commission is scheduled to take up the matter at its next meeting Oct. 3.

Here is the agenda for that meeting.

Posted by Marcia Oddi on Sunday, September 07, 2008
Posted to Indiana Courts

Ind. Courts - "Old Crown Point jail has historic, architectural significance"

Kathleen Quilligan of the NWI Times has a nice story today, complete with some cool old photos:

CROWN POINT | If the building hadn't been the location where bank robber John Dillinger escaped in 1934, the Old Sheriff's House and Jail would be just another jail in just another county seat.

That's not to say the building isn't significant outside it's Dillinger association.

It is the only example of second empire architecture in Lake County, said Tiffany Tolbert, director of the Calumet Regional Office of the Historic Landmarks Foundation of Indiana. * * *

Tolbert said the building is listed on the National Register of Historic Places as part of the Courthouse Square District. * * *

Besides its architecture, Tolbert said the jail is important today because it's a good example of how Crown Point has worked to preserve its historical buildings with foundations such as Heidbreder's.

Posted by Marcia Oddi on Sunday, September 07, 2008
Posted to Indiana Courts

Saturday, September 06, 2008

Ind. Courts - Rep. Foley again urges changes in Judicial Nominating Commission

In this ILB entry from August 29th I promised to provide details on three items discussed at the Aug. 28th meeting of the Commission on Courts. (1) the Courts' new judicial retention website is discussed here, and (2) judicial mandates are detailed in ILB entries here and here. The third item promised:

(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.
Here, from my notes of the Aug. 28th meeting:
Rep. Ralph Foley appeared before the Commission on Courts to urge reconsideration of his 2006 proposal that the recommendations of the Judicial Nominating Commission appear on the ballot. The ballot would indicate that a judge up for retention had been approved or rejected for retention by the Nominating Commission.

Rep. Foley said that in 1970, the partisan election of judges was changed, but not all politics was. He said he has seen campaign literature from those seeking to be elected to the Judicial Nominating Commission. He urged changes in the way members are selected to the Nominating Commission. Rep. Foley said these changes could be made by statute and would not require a constitutional amendment. He complained of lack of transparency.

Here are the recently available notes from the LSA minutes of the meeting:
The next person to testify was Rep. Ralph Foley. Rep. Foley stated he was in favor of an independent, impartial, and fair judiciary and also in ways in which the public could be informed about retention elections.

Rep. Foley said Sen. R. Michael Young had introduced Senate Joint Resolution (SJR) 1 in 2005 to amend the Indiana Constitution to, among other things, require the Governor to fill a vacancy on the Supreme Court or the Court from nominees recommended by a commission on judicial nominations and qualifications, subject to confirmation by the Indiana Senate. He said SJR 1-2005 also specified a justice's or judge's retention in office would have to be confirmed by the Senate.

Rep. Foley continued by stating SJR 1-2005 did not pass. He said in 2006 he introduced House Bill (HB) 1419 which would have required attorney commissioners to the Judicial Nominating Commission to be nominated by the Speaker of the House of Representatives and the President Pro Tempore of the Senate. He said it also would have required any recommendation of the Judicial Nominating Commission concerning the retention or rejection of a justice or judge at a retention election to be placed on the ballot.

Rep. Foley said he "dropped" HB 1419-2006 when it did not receive the bipartisan support he wanted. Rep. Foley said the Commission may want to examine the statute that creates the current Judicial Nominating Commission to try and find ways to make it more impartial and independent. Rep. Foley also said that while the retention election website was an "excellent" idea, he felt the Commission may also want to help the public make more informed decisions by having the Judicial Nominating Commission make a recommendation concerning the retention or rejection of a justice or judge and requiring the placement of that recommendation on the ballot.

As noted above, it turns out I wrote quite a lot about HB 1419 in 2006, including a Res Gestae article. Taken together, they make interesting reading:

Courts - Bill to change appeals judge selection process passes out of House committee (1/24/06)

Ind. Courts - HB 1419, to change appeals court selection process, is dead [Updated] (1/25/06)

Ind. Courts - Fort Wayne Journal Gazette editorializes on "Misguided power grab" (1/26/06)

Ind. Courts - More on: HB 1419, to change the appeals court selection process (1/26/06)

Ind. Courts - March Res Gestae article on the recent effort to change the judicial nominating process (3/9/06). A quote from the article:

The Indiana House rules committee, in late January, voted to amend a “vehicle bill” – a bill with no content introduced as a “place saver” – by adopting a committee report inserting language changing the way Indiana appellate judges and justices are selected and retained. The changes were to take effect immediately upon passage. * * *

The discussion that follows will examine: (1) the content and impact of the proposed statutory amendment; (2) previous changes to the membership of the nominating commission; and (3) legal issues posed by the changes proposed in HB 1419. * * *

The proposal would have: (1) abruptly terminated the current terms of both the attorney and citizen members of the Judicial Nominating Commission: (2) changed the method of selection of the attorney members and provided for election of new attorney members, to take office July 1st; (3) required the Governor to fill the three now vacant citizen positions by the end of May; and (4) required that the reconstituted commission evaluate the judges and justices up for retention, beginning with the November 2006 election, and recommend on the ballot whether each appellate judge and justice up for retention should stay or go.

See particularly pp. 7 and 8 of the article, discussing issues re the legality of the proposed ballot instruction.

Posted by Marcia Oddi on Saturday, September 06, 2008
Posted to Indiana Courts

About this blog - How to print a single ILB entry

A reader has written that when he tries to print out an interesting ILB entry, his printer goes crazy and spews out 80 or 90 pages! What to do?

To print out a single entry, such as this one, go to the end of the entry where it says "Posted by Marcia Oddi on ..." Click that line. You will be taken to a page containing only that entry. Print it and then click anywhere in the big, blue "Indiana Law Blog" box to go back to the main page.

The ILB normally displays the last 75 entries. So if you simply press print, that is what you will get.

If you want to print out all the entries from a specific month, such as last month, August 2008, look in the right column for "Archives by month", click "August 2008," and print.

If you want to print out all the entries from a particular day in the current month, use the calendar.

For more information, check my 2006 ILB entry, "How to Read a Blog.".

And hey, thanks for reading the Indiana Law Blog!

Posted by Marcia Oddi on Saturday, September 06, 2008
Posted to About the Indiana Law Blog

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

Updating this ILB entry from Aug. 23rd, the Fort Wayne Journal Gazette's Dan and Krista Stockman write today in their column, "Uncorked":

Two weeks ago, we gave an update on the state of shipping wine directly from wineries to wine lovers.

But because the issue is so complicated, we had to stick to the highlights.

A long and interesting report follows, I'll just touch on a few items:
The first catch in the whole shipping debate is that it only involves wineries. So while there’s lots of legal hoops to jump through to order wine directly from a winery, at least there’s a process. If you want to order from a wine store, it’s illegal. * * *

Getting wine from wine stores matters because you cannot buy many wines any other way. For example, a few years ago Krista got Dan a bottle of Port from the year he was born. You can’t buy it anywhere except stores that specialize in old bottles. Under Indiana’s laws, you’re out of luck if you want one, and the issue of shipping from stores wasn’t even touched by the courts.

Which leads us to the other problem with Indiana’s shipping laws, which also wasn’t touched by the courts: Wineries can’t get a direct-shipping permit if they already have products distributed in the state by a wholesaler.

That means if you’re looking for a limited-production wine from a big winery, like Kendall-Jackson’s $100 a bottle Bordeaux blend Stature, you’re out of luck. Because Kendall-Jackson’s wines are distributed by wholesalers in Indiana, they can’t ship you a bottle of Stature, even though Stature may not be distributed by wholesalers in the state.

Granted, most reputable wine stores will order wines for you if they don’t carry it in the store, but they’re limited, too – they can only order what their wholesalers carry.

Which leads us back to our point two weeks ago: how silly the appellate court’s decision to uphold Indiana’s face-to-face requirement, which says that wineries, both in state and out-of-state, can only ship wine directly to an Indiana customer if they first have a face-to-face transaction with them.

The appellate court said the provision passes legal muster because it doesn’t directly discriminate against out-of-state wineries and even if it does indirectly, it doesn’t do it enough to outweigh the state’s desire to keep minors from buying alcohol. Here’s the rub: Minors don’t buy alcohol online. * * *

Which, again, leaves us where we started. With most of a bad law still intact, our only hopes lie with the General Assembly fixing the law or the courts throwing it out. But the General Assembly is obviously beholden to wholesalers and their huge political contributions, while the courts’ decisions are so scattershot that minors have a better chance scoring beer from the corner liquor store.

Cheers!

Posted by Marcia Oddi on Saturday, September 06, 2008
Posted to Indiana Law

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

Updating this ILB entry from August 23rd, Maribeth Holtz of the Grant County/Marion Chronicle Tribune had a story Sept. 5th headlined "Study finds little mold in courthouse." Some quotes:

There may be mold in the Grant County Courthouse, a study from the Indiana State Department of Health reports, but not more than what is found outside.

The report states that while there are no limits established as an acceptable concentration of fungus, guidelines recommend fewer counts indoors than outdoors — which is what showed up at the Grant County Courthouse in 12 tested locations.

“You want to always see lower indoors than outdoors,” said Ron Clark, industrial hygienist for the department. “(Here) we have lower indoors, but there is a wide variance from room to room, and that indicates that there’s a possibility for small amounts of mold growing.” * * *

The room with the highest mold count, at 1,670 units, was the voter registration room. The least amount of mold, 80 units, was found in the Superior Court 2 courtroom.

The Grant County commissioners last month requested the department test the courthouse, after Superior Court 2 Judge Randall Johnson closed his court because of what he deemed unhealthy conditions from mold. Johnson has been experiencing health problems, and his doctors have said the molds in his system were the same molds found in the courthouse in February during a separate Indiana Department of Labor study.

Johnson said his courtroom and office likely resulted in low counts of fungus because of air purification systems he put in the rooms.

“I’m disappointed they didn’t find what I think is there, but it’s also interesting that they never tested the fourth floor where all the leaks are and all the records are that are causing the problems,” Johnson said.

Commissioners on Thursday said they were pleased with the results.

“That’s good news,” said Commissioner Jeremy Diller, adding that it’s important to keep talking about how to reduce mold and mildew problems at the courthouse.

Commissioner Mark Bardsley said “this test is just reaffirming what we’ve already been told” in the previous Department of Labor study that was conducted at the beginning of the year. He said commissioners are continuing to work with architect firm American StructurePoint to plan for mold and mildew removal, with up to $1.8 million in restorations. * * *

In the meantime, Superior Court 2 will be moved to the sixth floor of the Willis Van Devanter Grant County Office Complex, and is set to be re-opened Monday. Glickfield said he doubts commissioners will put the court back in the historic courthouse due to the test results, because the move wasn’t costly and it still may improve the judge’s health to work outside of the courthouse.

Johnson, who has been working from his home lately, said he still hopes that commissioners test documents that come from the top floor of the courthouse. He said when he touches the files, his symptoms return. He added that there are still several other employees who are experiencing health issues.

“I don’t think this shows that there is a safe lack of mold in the building … ” Johnson said. “I wish they’d have talked to the people. There are a lot of people affected by this, and it’s not just sniffles.”

The story includes a link to the ISDH's brief report.

Posted by Marcia Oddi on Saturday, September 06, 2008
Posted to Indiana Courts

Ind. Law - Even more on: "Allen County bill may effectively limit abortion"

Updating this ILB entry from yesterday, today Amanda Iacone of the Fort Wayne Journal Gazette has a long and detailed story about the specifics of the proposed ordinance. Some quotes:

Allen County commissioners expected to review proposed standards for all doctors performing outpatient surgeries but learned Friday the measure addresses only gynecological-related procedures that seem to focus on abortion techniques.

Previously, the commissioners discussed enacting a law to protect patients involved with all types of in-office invasive procedures – from tooth extractions to plastic surgery. But at least one commissioner expressed concern that the proposed ordinance is too narrowly focused and would affect only abortion providers.

Jim Howard, a local attorney and vice president of Allen County Right to Life, drafted the measure and gave commissioners their first look Friday morning.

Abortion-rights advocates have said it would limit the ability of women to have abortions in Allen County.

Supporters of the proposal told the commissioners in early August that it would affect those in the medical community who perform in-office surgeries.

But the proposed ordinance introduced Friday would apply only to outpatient surgical procedures involving the removal of tissue during the following procedures: “tubal ligation/sterilization procedures, uterine endometrial ablations, dilation and curettages (with or without suction), and dilation and extraction.” * * *

Commissioner Linda Bloom said she thought the measure was intended to protect all patients following surgery – whether they are men, children or women – an ideal she supported. But she asked Howard and a local gynecologist who has championed the new proposal why the draft only protects women and not all types of surgical procedures.

“Are we doing this for an abortion clinic or are we doing this for patient safety?” Bloom asked Dr. Geoff Cly. “If this is an abortion ordinance, I’m not interested.”

Posted by Marcia Oddi on Saturday, September 06, 2008
Posted to Indiana Law

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

Updating this ILB entry from August 27th, Rick Yencer of the Muncie Star-Press reports today:

As many as 35 drug forfeiture cases and companion criminal cases are being sought by the Indiana Supreme Court Disciplinary Commission in its ongoing probe of allegations against Delaware County Prosecutor Mark McKinney.

Delaware Circuit Court 2 Judge Richard Dailey received the records request this week from the disciplinary commission. Some of the cases were those in which McKinney was a full-time prosecutor and also signed pleadings in civil forfeiture cases. In others, he was deputy prosecutor in the criminal case and attorney for the Muncie-Delaware County Drug Task Force, which seized money and property from accused drug dealers.

Dailey would not comment Friday about the latest records request, although employees in the Delaware County clerk's office that afternoon were pulling dozens of forfeiture cases and criminal records on drug defendants. County Clerk Steve Craycraft acknowledged the court requested the records, but declined further comment. * * *

Contacted Friday, McKinney said he was unaware of the latest records request, and again declined to release his response to the disciplinary commission based on Mayor Sharon McShurley's complaint that he misled courts and had a possible conflict in handling forfeiture cases.

Posted by Marcia Oddi on Saturday, September 06, 2008
Posted to Indiana Courts

Ind. Courts - "The town court judge in Yorktown doesn't take her job lightly"

John Carlson of the Muncie Star-Press reports today in a long story that begins:

The town court judge in Yorktown doesn't taker her job lightly

Pat Zeabart remembers well the day that, having encountered Kaye Whitehead downtown, the GOP county chairman asked her to recommend a candidate to run for Yorktown Town Court judge.

By the way, Whitehead told the longtime dietitian and civic activist, a law degree was not a prerequisite.

"And I thought, really?" Zeabart recalled, of her surprised reaction.

As she spoke, she was seated at a table overlooking her verdant back yard, an expansive lawn sweeping down to the White River. But a few days later, black-robed and confident, she was in what is now an equally familiar setting, mounting the judge's bench in the town's municipal building and bringing the court to order.

Obviously, Zeabart decided that she could handle the judge's job, which she assumed in 2004, and is now in her second four-year term.

"I just felt like this is maybe where I'm being called to serve," said the mother of two grown daughters, whose husband of 32 years, Leonard, is a gastroenterologist with Medical Consultants.

A 56-year-old Michigan native whose father was a Navy captain and whose mother served in the Navy's WAVES, Zeabart grew up with a well-defined sense of right and wrong, one that has stood her in good stead as a judge.

"I care a lot about fairness, and integrity, and being part of a judicial system with a court that's well run," she said, contemplatively, between sips of sweet tea. "We've been able to accomplish a lot with the court."

Improvements have included electronically interfacing all its records with the Indiana Bureau of Motor Vehicles, and microfilming all the old court records to meet a state-mandated schedule.

"It's really important to me that we comply with the state policies and procedures," Zeabart said.

However, the human side of the court operation -- which deals with about 8,500 infractions and criminal misdemeanors a year -- is a priority to her, with defendants treated respectfully, efficiently and fairly.

Posted by Marcia Oddi on Saturday, September 06, 2008
Posted to Indiana Courts

Ind. Courts - More on: Commission on Courts discussion of judicial mandates

Updating this ILB entry from Friday, where several speakers, including Chief Justice Randall T. Shepard, suggested that a solution to the judicial mandate problem at the local level, where the mandates involve the funding of salaries for court employees, would be a move to totally state funding, the ILB has reviewed the Kernan-Shepard Report. The 46-page report, issued Dec. 11, 2007, is available here. Here is Recommendation #7 from the report, found on p. 23 of the document:

Recommendation #7: Transfer the responsibility for all funding of the state’s trial court system to the state, including public defenders and probation.

By state law, Indiana trial courts have responsibility for criminal, civil and juvenile cases and for providing probation officers and public defenders. But most funding for these courts and court personnel is provided by county [property] taxes. This system of county funding for personnel and programs, required by state law, has created inherent tensions between county governments and the judiciary. In addition, inequities exist among counties’ caseloads, personnel and probation and public defender programs. This means that some Hoosiers are denied prompt access to courts and court services simply because they live in a county unable to support its local courts at the same level as others.

While trial court judges would continue to be responsible for local court personnel and administration, state funding would improve the judiciary’s ability to allocate resources where they are needed most. This would help assure equal access to courts, probation, services and public defenders. In addition, state funding would reduce costs by allowing purchasing to be done on a larger scale.

We recommend that the state assume funding for the state’s trial court system, including probation officers and public defenders, so that the Indiana courts can meet the needs of the people they serve; conflicts with county government be eliminated; equal access can be assured; and economies of scale can be achieved.

Because state money, court costs and user fees already finance so much of court expenses, and because implementation should be a multi-year project, the fiscal impact should be manageable.

“The Indiana Judges Association has long supported, and continues to support, transferring the financing of Indiana trial courts to state government.” - Judge Thomas J. Felts, President Indiana Judges Association Allen Circuit Court Ft. Wayne, Indiana.

“There is a crying need to reduce the tensions that often arise between Indiana trial courts and county government over the funding courts and courts services.” - Judge Peggy Quint Lohorn Montgomery Superior Court Crawfordsville, Indiana

Re the statement: "Because state money, court costs and user fees already finance so much of court expenses ...", the ILB hopes to be able to post a break-down. This question was brought up at the recent Commission on Courts meeting and they were promised an answer at the next meeting. Or perhaps a reader can help?

[More] The ILB has located this document, the Fall 2001 issue of Indiana Court Times, a publication of the Division of State Court Administration. The main story in the issue is the introduction of HB 1003 (2001), a tax restructuring bill which would include an increased state role in trial court funding. (A check of the bill's history shows it subsequently passed the House and died in the Senate finance committee.) Some quotes from the story:

Appellate courts in Indiana have been financially supported by the State. However, county governments have incurred most of the net expense of trial courts. While trial court finances are a small part of the entire overall property tax restructuring plan, HB 1003, if enacted, would shift a substantial portion of trial court funding from counties to the state, resulting in a reduction of local property tax levies in the various counties. Trial court operations would then be supported in large measure by statewide income and sales taxes. * * *

Current trial court structure and jurisdiction are not affected. Also not affected is current trial court authority “to employ, manage, or fix the salary of … personnel necessary to transact the business of the court,” to operate a probation department, or to administer the court. These key statutory provisions strongly reaffirm the principle of local judicial management of trial court personnel and operations, consistent with Supreme Court rules.

The Supreme Court is assembling committees of trial court judges to recommend policies and procedures for the development, submission, and review of budgets and any personnel or administrative guidelines occasioned by the new funding procedures if adopted. We anticipate these recommendations of trial court judges will be adopted by the Supreme Court as the policies, procedures, and guidelines governing budgets, personnel, and administration under the new system.

In addition to judiciary expenses currently paid by state government, HB 1003 would shift to the state responsibility for payment of salaries and state level fringe benefits of “other” judicial officers, court reporters, bailiffs, court administrators, secretaries, law clerks and other salaried and non-salaried trial court personnel, starting with those authorized by court budgets previously approved for 2002. With stated exceptions, the State would pay operating expenses of all Circuit, Superior, Probate, and County courts. Included in the State pick-up would be the current portions that some counties pay of the salaries of such judicial officers as juvenile magistrates and small claims referees. * * *

Included in trial court expenses to be paid by the state are jury per diems, witness fees, medical and psychiatric fees, pro tem fees and lodging and meals of jurors. As a general rule, the state would pay all trial court operating costs that are not specified in the bill to be the responsibility of counties. The fiscal impact of the proposal assumes an inflationary factor for ensuing fiscal years, based upon historical data. * * *

Commencing with the year 2003, each court will submit a budget to the Division of State Court Administration. The Division is required to compile the trial court budgets and to assist the Supreme Court in preparing and submitting a unified court budget to the General Assembly. All salaries which become the obligation of the state would be paid by the state directly. As a result of discussions with the State Budget Director, the legislation includes authority to permit a system of advance block payments from the State Auditor to county treasurers in order to provide trial courts with funds for other operating expenses at the local level.

In the end, if a similar effort to move to state funding is successful, rather than local judges submitting their budgets to county councils, local judges' recourse would become the Division of State Court Administration. And the potential for a judicial funding mandate would be elevated to the State level -- as the Supreme Court would be submitting its state-wide judicial budget to the General Assembly.

Posted by Marcia Oddi on Saturday, September 06, 2008
Posted to Indiana Courts

Law - "Harsh Words Die Hard on the Web": Students at Yale Law and Indiana University Feel Effects of Anonymous Attacks

First, the Yale Law back-story: In a lengthy March 7, 2007 front-page Washington Post article, Ellen Nakashima reported:

She graduated Phi Beta Kappa, has published in top legal journals and completed internships at leading institutions in her field. So when the Yale law student interviewed with 16 firms for a job this summer, she was concerned that she had only four call-backs. She was stunned when she had zero offers.

Though it is difficult to prove a direct link, the woman thinks she is a victim of a new form of reputation-maligning: online postings with offensive content and personal attacks that can be stored forever and are easily accessible through a Google search.

The woman and two others interviewed by The Washington Post learned from friends that they were the subject of derogatory chats on a widely read message board on AutoAdmit, run by a third-year law student at the University of Pennsylvania [Anthony Ciolli] and a 23-year-old insurance agent. The women spoke on the condition of anonymity because they feared retribution online.

The law-school board, one of several message boards on AutoAdmit, bills itself as "the most prestigious law school admissions discussion board in the world." It contains many useful insights on schools and firms. But there are also hundreds of chats posted by anonymous users that feature derisive statements about women, gays, blacks, Asians and Jews. In scores of messages, the users disparage individuals by name or other personally identifying information. Some of the messages included false claims about sexual activity and diseases. To the targets' dismay, the comments bubble up through the Internet into the public domain via Google's powerful search engine. * * *

Employers, including law firms, frequently do Google searches as part of due diligence checks on prospective employees. According to a December survey by the Ponemon Institute, a privacy research organization, roughly half of U.S. hiring officials use the Internet in vetting job applications. About one-third of the searches yielded content used to deny a job, the survey said. The legal hiring market is very competitive. What could tip the balance is the appearance that a candidate is a lightning rod for controversy, said Mark Rasch, a Washington lawyer and consultant who specializes in Internet issues. * * *

One woman e-mailed the University of Pennsylvania Law School associate dean, Gary Clinton, in February to ask for his help in persuading Ciolli remove the offensive threads. Clinton told her that since he became aware of AutoAdmit two years ago, he has had "numerous conversations about it" with Penn officials. "I've learned that there appears to be little legal recourse that we have as an institution," he wrote. He said he has had several conversations with Ciolli and has "pointed out time and again how hurtful these ad hominem attacks can be to individuals, and have asked him to delete threads." The effort, he noted, "has been largely unsuccessful."

In a telephone interview, Clinton said the university's position has not changed. "We believe we don't have grounds under the university's code of conduct to proceed," he said.

According to this entry in Wikipedia:
On June 12, 2007, the two Yale students who were allegedly harassed filed a lawsuit against Anthony Ciolli and a number of Autoadmit's anonymous posters, claiming their "character, intelligence, appearance and sexual lives have been thoroughly trashed by the defendants". Filed in the District Court of Connecticut, the case, Doe v. Ciolli, 307CV00909 CFD, cites violation of privacy, defamation, infliction of undue emotional distress, and copyright infringement against Ciolli and several anonymous posters. The two plaintiffs are represented pro bono by the litigation boutique Keker & Van Nest, David Rosen, a Yale Law School professor, and Mark Lemley, a professor at Stanford Law School who specializes in computer and internet law. While AutoAdmit's reported lack of IP logging may prevent the plaintiffs from ever learning the defendants' true identities, the case could prove to be very significant within computer and internet law if it does make it to trial. The plaintiffs subsequently dropped Ciolli's name from the list of defendants, and successfully obtained a subpoena of Internet service providers in hopes of identifying the anonymous defendants. The attorneys have now discovered the names of some, but not all, of the offending posters.
For another take, see this June 13, 2007 posting on the lawsuit by law prof Eugene Volokh.

Last Wed., Sept. 3, Isaac Arnsdorf of the Yale Daily News reported:

Anonymous posting online may be getting a little less anonymous.

With the help of a subpoena issued eight months ago, two female Yale Law School students who were smeared on the Web forum AutoAdmit in 2005 finally found out this summer whom they are suing for defamation — more than a year after they first filed. * * *

While this development does not break any new legal ground, several experts interviewed said, it is one of the few — and certainly one of the highest-profile — examples of defamation lawsuits that have successfully pierced the veil of online anonymity.

Now, the Indiana University connection: This morning the Indianapolis Star featured this front-page story by Francesca Jarosz, headed "Critics say gossip on Juicy Campus Web site goes too far: Student who was targeted says campus Web site crosses the line." Some quotes:
The attack on Thaddeus Grage was mean, anonymous and posted for all to see on the Internet.

It accused the Indiana University sophomore of having unprotected sex and of being a "disgusting lying sleezeball." Thirteen people added to the post by detailing stories about Grage, calling him a racist and saying he has sexually transmitted diseases.
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When the comments were posted in March, Grage, a criminal justice student from the tiny town of Clayton, worried they would mar his reputation, especially in the eyes of potential employers. He wondered whether his girlfriend would believe the lies.

"It was shocking," Grage said. "I could only hope that (my girlfriend) would trust me enough to know these things were false."

Grage considers himself a victim of JuicyCampus.com, a college gossip Web site where the attack was posted, along with hundreds of other potentially defamatory comments about students at more than 200 campuses where the site has been launched nationwide.

Juicy Campus hit IU and the University of Notre Dame's campuses in January and will expand to nine more Indiana schools this month, bringing mixed reaction among students and heightened awareness among university administrators, who say they can do little to prevent students from using the site. * * *

"What we're really providing is a forum for speech for college students where they can talk in an open and honest way," said Mark Ivester, a 2005 Duke University graduate who launched the site at seven schools in October. "It's an entertainment site; it's meant as a place for lighthearted gossip."

The gossip can turn into vicious attacks. Topics on the site include "sluts" and "ugliest girls in each (sorority) house." * * *

Everyone realizes it's ridiculous," said Drew Hainz, a Ball State junior who is excited about the site's debut at his school. "As long as you go in with that kind of mind-set, I don't see it as being a problem."

That's also part of Ivester's philosophy. He dismissed complaints that Juicy Campus could hurt students' chances with potential bosses, saying only "a very negligent employer" would consider the comments as a reference tool.

He added that everyone who uses his site has an equal opportunity to comment, so someone who is smeared can respond in defense.

"We feel very strongly that censorship is not the right answer," Ivester said. * * *

Mike Hiestand, an attorney and legal consultant to the Student Press Law Center, said students defamed on the site could go after their attackers, but it can be difficult to track who they are.

All comments are made anonymously, and users do not have to register to post on the site. Ivester emphasizes that Juicy Campus does not have its users' names, but the site did help criminal investigators find out users' identities after two students threatened shootings at separate schools.

The anonymity also causes problems for university administrators, who have difficulty finding out which students can be punished for making defamatory remarks.

Some schools have attempted to thwart the site's use in other ways, including requests to the site's operators and student-government-initiated bans, but those have been mostly unsuccessful.

Schools also have voiced their complaints to state authorities. New Jersey's attorney general launched a consumer fraud investigation into Juicy Campus, and Connecticut's attorney general also is investigating the site.

The Indiana attorney general's office has not received any consumer complaints against Juicy Campus, a prerequisite for conducting a consumer fraud investigation, said Natalie Robinson, a spokeswoman for the office.

Posted by Marcia Oddi on Saturday, September 06, 2008
Posted to General Law Related

Friday, September 05, 2008

Courts - Kansas high court hears case of judicial questionnaires

This story, just posted by the Kansas City Star, was reported by John Milburn of the AP. Some quotes:

TOPEKA | The Kansas Supreme Court was asked Friday to decide whether a judge or candidate for the bench violates the canons of ethics by answering questionnaires.

Attorneys told the justices the issue is a question of two fundamental constitutional rights, those of the judges' free speech and of the public's right to a fair trial.

"This is a clash of constitutional rights, no doubt about it," said George Patton, an attorney for the Kansas Commission on Judicial Qualifications.

The issue surfaced in 2006 when Kansas Judicial Watch sought to ask judges questions about their personal beliefs and positions on certain issues. A federal judge in Topeka issued an injunction blocking the enforcement of the ethics provisions by the qualifications commission on Judicial Qualifications, which appealed the decision.

However, the federal appeals court in Denver requested the Kansas state court clarify the provisions before it considered the commission's appeal. The Kansas ruling could come as early as Oct. 17.

Guiding the decision is a 2002 U.S. Supreme Court ruling in Minnesota Republican Party v. White that held that ethics canons that prohibit judges from announcing their views on disputed legal or political issues were unconstitutional. * * *

The qualifications commission has proposed changes in the Kansas canons to conform with the 2002 ruling. Those revisions were designed to make it acceptable for judges to answer the questionnaires and still maintain their duty to be impartial, attorneys said.

As written, judges would be able to answer questions about issues so that they would not be construed by a reasonable person to be taken as a promise or pledge to rule a given way.

Those changes must be approved by the Kansas Supreme Court, the final arbiter of judicial rules and conduct. A public comment period ended Aug. 15.

Readers will recall that Washington, D.C.-based attorney George Patton Jr., of Bose McCKinney, represents Indiana’s judicial qualifications commission in the similar case of Torrey Bauer, et al. v. Randall T. Shepard, et al.,. See May 18th ILB entry here and a May 6th entry here.

Posted by Marcia Oddi on Friday, September 05, 2008
Posted to Courts in general

Ind. Decisions - Transfer list for week ending Sept. 5, 2008

For those of you looking for it, the ILB has not yet received the transfer list for this week,. It usually arrives at about mid-afternoon.

We do know, however, that two transfers were granted yesterday.

Posted by Marcia Oddi on Friday, September 05, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - 7th Circuit issues two Indiana opinions today

In US v. Allday (ND Ind., Judge Lozano), a 7-page opinion, Judge Rovner writes:

Gilbert W. Allday pleaded guilty to one count of violating 18 U.S.C. § 2252(a)(2) by receiving sexually explicit images and videos of minors on his home computer. The district court sentenced him to 97 months imprisonment, the bottom of the 97 to 121- month range recommended by the United States Sentencing Guidelines. He appeals, arguing that the district court improperly applied a presumption in favor of the Guidelines at sentencing. Because we do not believe the district court applied such a presumption, we affirm his conviction and sentence.
In Woodruff, as Bankruptcy Trustee for Legacy Healthcare v. Mason et al (SD Ind., Judge McKinney), a 34-page opinion (including a concurring opinion beginning on p. 29) , Judge Cudahy writes:
Legacy Healthcare, Inc. (Legacy) and its predecessor, Community Care Centers, Inc. (Community), operated a number of long-term care facilities in Indiana. On February 18, 2000, Legacy brought this action under 42 U.S.C. § 1983, alleging that employees of the Indiana Family and Social Services Administration (FSSA) and the Indiana State Department of Health (ISDH) violated its rights under the First Amendment and Fourteenth Amendment. The FSSA administers Indiana’s Medicaid program through its Office of Medicaid Policy and Planning (OMPP); the ISDH is the state agency authorized to inspect care facilities and determine their compliance with federal Medicaid regulations. Legacy believes that FSSA employees developed an antipathy toward Legacy and Community after years of contentious litigation between the parties. It claims that the FSSA convinced the ISDH to use its regulatory authority to launch a predatory enforcement campaign aimed at driving Legacy out of business. According to Legacy, this predatory enforcement constituted First Amendment retaliation and violated the Equal Protection Clause. The district court granted summary judgment in favor of Defendants on all counts. We now affirm.

Posted by Marcia Oddi on Friday, September 05, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Report on status of the Court of Appeals

Cheif Judge John Baker testified at the Aug. 28th Commission on Courts meeting about the case load of the Court of Appeals. He passed out the 2007 Annual Report of the Court of Appeals.

CJ Baker reported that the Court was dealing with an ever-increasing number of motions. As for cases, the COA has issued 2,868 majority opinions in 2007, 359 more than the year before. At the end of 2007, 295 cases had not circulated.

For the first 6 months of 2008, the ever-increasing case load has continued, but he said the Court was looking at a clearance rate of 100%.

The inventory of cases awaiting decision is decreasing, stated CJ Baker, it is now at about 150. But he said the Court did not anticipate the current lull would continue for more than a few months.

CJ Baker concluded that the Indiana Court of Appeals is the fastest intermediate COA in the United States, based on fully briefed cases and full written opinions.

Posted by Marcia Oddi on Friday, September 05, 2008
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Invol. Term. of Parent-Child Rel. of J.C.T.; and S.T. v. Scott Co. Dept. of Child Services (NFP) - "Shannon T. (“Mother”) appeals the involuntary termination of her parental rights, in Scott Circuit Court, to her daughter, J.C.T. On appeal, Mother claims there is insufficient evidence supporting the trial court’s judgment terminating her parental rights to J.C.T. Concluding that the trial court’s judgment is supported by clear and convincing evidence, we affirm."

Timothy Harcharik v. Swiss Reinsurance Corp., d/b/a Swiss Re National, et al (NFP) - "The trial court’s initial order, purportedly an order of dismissal, is silent as to any consideration of extraneous materials. Likewise, the order upon motion to correct error includes no reference to extraneous materials. Therefore, this Court is unable to determine from the trial court’s order of dismissal or from the trial court’s order denying the motion to correct error whether extraneous materials were considered, effectively converting the motion to dismiss into a motion for summary judgment. If so, notice was not afforded the adversely affected party.

"Because the record does not adequately reflect whether this case is in the posture of dismissal or of summary judgment, we are unable to address the merits at this juncture. We reverse and remand for further proceedings consistent with this opinion."

NFP criminal opinions today (2):

Michael Taylor v. State of Indiana (NFP)

James L. Bright v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 05, 2008
Posted to Ind. App.Ct. Decisions

Not law but don't miss - "Students From the East Coast Descend on Indiana University"

A very long and fascinating article in the WSJ today by Hannah Karp, about how Indiana University is "the new Wisconsin" insofar as attractiveness to out-of-state students, particularly from East Coast prep schools, is concerned. Some quotes:

The nation's largest freshman class in history is moving into college dorms, hanging posters, meeting roommates and learning fight songs. In Indiana University's Assembly Hall last Friday, a remarkably large chorus hailing from private high schools in the Northeast was singing the school's ode to the "Cream and Crimson" in a pronounced New York accent.

It's a striking byproduct of one of the most competitive college admissions sessions ever -- an influx of East Coast prep-school students in Indiana. Indiana University welcomed about 260 students from the greater New York City area to the limestone lecture halls on its lush, leafy campus last week, up 12.5% from last year. Another 175 came from New Jersey, up 25% from 2007, and 50 hail from Connecticut. While the numbers of students matriculating from in-state and other parts of the country are steadily increasing as well -- the school had some 500 more students accept admission offers than it had planned for -- the last three years have been marked by unprecedented growth from the Northeast.

As students arrived in the quaint college town last week, there was some low-key clashing of cultures. "It almost feels like something's not right here. Everyone's just so friendly," said Steven Glassman, a 46-year-old attorney from East Hanover, N.J., after kissing his son, Jason, goodbye last Thursday. Mr. Glassman and his wife say the school is "hot" on the East Coast right now -- especially among aspiring business students -- but will still be a healthy transition for their son, "coming from a city of mean rotten people who will run you over without thinking about it." * * *

Prep-school guidance counselors say Indiana's longtime admissions director Mary Ellen Anderson set the East Coast influx in motion three years ago when she flew to New York and won over a large group of advisers at a breakfast presentation. She now tries to visit 13 to 15 private high schools in the tristate area each year and has seen a substantial increase in interest from several of them. * * *

IU has long been esteemed in academia as a top-notch public university, boasting some of the best music, journalism and business departments in the country and one of the largest out-of-state populations of any Big 10 school, now hovering at nearly 40% of the student body. The Hoosier basketball team also attracts talent from around the country, with five NCAA championships under its belt. [ILB note to WSJ - additional fact-checking needed here.]

Now an aggressive new marketing campaign, a determined admissions director and an increasingly cutthroat admissions process have pushed Indiana onto the radar of tony private schools.

Posted by Marcia Oddi on Friday, September 05, 2008
Posted to General News

Ind. Courts - Commission on Courts discussion of judicial mandates

In this ILB entry from August 29th, I wrote that I had attended the August 28th meeting of the Commission on Courts and that shortly I would be reporting on the discussion of judicial mandates that at taken place at the meeting:

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.
And here it is.

At the meeting of the legislative Commission on Courts on Thursday, Aug. 28, testimony was presented on judicial mandates and alternatives to the current system of judicial mandates.

First to testify was Senator Phil Boots. Sen. Boots objects to Trial Rule 60.5, which deals with the mandate of funds. Access TR 60.5 here. (Note - it will take a few moments for 60.5 to appear.)

Senator Boots said the legislature has by statute given the power to regulate county funds solely to the county councils. He said that TR 60.5 appears to be in conflict with the separation of powers.

Sen. Boots passed out a copy of the Supreme Court's 2007 Montgomery County mandate decision. Access it here. (See also ILB entry from 9/28/07 here.) Although the full amount the trial court judges demanded was not granted, he said, there was a compromise settlement. In addition, the county had to pay the legal fees of both sets of attorneys.

Sen. Boots thinks the General Assembly needs to address this issue. Otherwise, he said, judges could be budget busters, noting that HEA 1001 limits the amounts the counties can raise and spend. He had three suggestions:

Rep. Ryan Dvorack, a member of the Courts Commission, noted he didn't find any discussion of the constitutional basis for mandates in the Montgomery opinion.

Chief Justice Shepard, also a member of the Commission, said that the judicial power of mandate was based both on the separation of powers and on the constitution's requirement that "the courts shall be open" -- i.e. that the county council can't effective close the courts by withholding funding. He continued that this doesn't mean that there aren't times when there is the potential for overreaching. "If I were on a county council," CJ Shepard said, "I wouldn't care for this arrangement at all."

The CJ observed that currently a lot of local court costs are paid by fees. And the State pays a share. But the county remains the place of last resort. If the State were paying for all the costs of the courts, the CJ said, this tension would go away. He said it was his view that this is where we ought to go. The whole mandate problem arises from financing; if the legislature were to move in the direction of HEA 1001, the mandate problem would be ameliorated.

Re Rule 60.5, the CJ said it was adopted by the Court at the request of the counties, to establish something more orderly, a forum to address concerns of the counties in the 1970s and 80s. Our Court's view, said CJ Shepard, is that TR 60.5 is printed on paper, not carved in stone. In the last six months, the Indiana Judges Association has asked the Indiana Association of Counties to meet and talk about TR 60.5. The Supreme Court, he concluded, is open to restructuring.

Re the funding of local courts, one of the Commission members asked, "Doesn't the State actually make money on the court fees?" The members were promised a report at next meeting.

Representatives of the Indiana Association of Counties spoke next from their perspective on what has happened. Larry Hesson, a Hendricks Co. council member and former judge, focused on exorbitant legal fees - over $300 an hour, charged by Marion County attorneys selected by judges to represent them. He said this is almost a tool to use against the county. Further, local attorneys may be unwilling to take the case because they may practice before the judge. Mr. Hesson said the intent of the counties is not to interfere with the courts, but to deal fairly with county employees. The CJ's funding solution may be the best answer. Another answer would be for the Attorney General to represent the judges in these cases.

Ed Koerner, a Jackson County Council member, has also been county auditor. He said his county faced mandate three years ago, was about cutting insurance benefits. The Supreme Court appointed attorney [ILB - a judge to hear the case?], the judges picked a Marion County attorney to represent them. He said 50% of the cost of the original mandate was attorney fees. The cost to the county to fight the original mandate caused the county to cave. (Here is an ILB entry from April 9, 2006 on the Jackson County issue.) Mr. Koerner said different pay for court employees creates issues with other county employees. He agreed that the answer may be the Kernan-Shepard report - i.e. state funding.

Andrew Berger, head of the Association of Indiana Counties, said that attorney fees is the major sticking point and that the AG as counsel might be the answer, to remove the hammer.

Mr. Hesson said that some trial judges are concerned that state taking over court funding might diminish their authority. He noted that county clerk and prosecutor salaries are also an issue.

For more on judicial mandates in Indiana, see this long list of ILB entries.

Posted by Marcia Oddi on Friday, September 05, 2008
Posted to Indiana Courts

Courts - More on: In question of first impression in the circuits, 8th Circuit holds "Attorneys who provide bankruptcy assistance to assisted persons are debt relief agencies under the Bankruptcy Code"

Updating this ILB entry from yesterday, reporting on the 8th Circuit decision in the case of In Milavetz, Gallop & Milavetz, P.A. v. U.S., Brent Kendall of the Wall Street Journal reports today under the headline "Court Finds Violation In Bankruptcy Law: Provision That Bans Advice to Add Debt Gets Struck Down." Some quotes:

WASHINGTON -- A federal appeals court in St. Louis ruled Thursday that a provision of a sweeping 2005 federal bankruptcy-overhaul law violates the free-speech rights of lawyers.

The 8th U.S. Circuit Court of Appeals struck down a provision of the Bankruptcy Abuse Prevention and Consumer Protection Act that barred attorneys from advising clients to take on more debt before they filed for bankruptcy protection.

The appeals court, in a 2-1 ruling, said the provision "prevents attorneys from fulfilling their duty to clients to give them appropriate and beneficial advice." * * *

Thursday's ruling was a victory for Minnesota law firm Milavetz, Gallop & Milavetz, which challenged the bankruptcy provision soon after the 2005 law went into effect.

"We have a right to help our clients put their affairs in order before they file for bankruptcy," said Barbara Nilva Nevin, a lawyer with the firm.

Similar legal challenges are making their way through other lower courts, but Thursday's ruling marked the first time that a federal appeals court weighed in on the validity of the provision.

A Justice Department representative said the department was reviewing the decision.

Constitutional law professor Erwin Chemerinsky, dean of the University of California-Irvine School of Law, said the invalidated provision was the most significant constitutional problem with the bankruptcy law.

"This is an issue that's going to make it to the Supreme Court," Mr. Chemerinsky said.

Posted by Marcia Oddi on Friday, September 05, 2008
Posted to Courts in general

Ind. Decisions - "Judge rules for $4.5 million settlement"

As reported by the Indianapolis Star in January, Larry Mayes spent 19 years in prison for a rape in Hammond before DNA evidence exonerated him. He was awarded $9 million by a jury in 2006. That verdict has been on appeal.

This July 30th ILB entry, headed "Wrongful conviction case hits new snag," brought the story up to date. A report by Joe Carlson of the NWI Times began:

City officials want to pay $4.5 million to settle with a man they wrongfully imprisoned for 20 years, and the man wants to accept. But federal judges are standing in the way, at least for now.
Today Steve Zabroski of the Times reports:
HAMMOND | A federal judge has accepted an agreement between the city and a Gary man who claimed police violated his civil rights in a 1980 rape and robbery case, paving the way for a $4.5 million settlement.

U.S. Magistrate Judge Paul Cherry threw out a 2006 federal jury award of $9 million to Larry Mayes on Tuesday, after appellate court judges in Chicago ruled on Aug. 28 that they would allow Cherry's decision on the reduced settlement agreement.

"The settlement will be concluded shortly," Hammond Corporation Counsel Joseph O'Connor said Thursday. "And the long journey will be over."

Mayes, now 58, was found guilty by a Lake County jury in 1982 of raping a convenience store clerk during the course of an armed robbery, but won a new trial and was released from the state penitentiary in 2001 after 21-year-old DNA evidence could not conclusively link him to the crime. * * *

Both sides agreed to the $4.5 million settlement earlier this year, and the City Council approved selling a judgment bond in April to pay for it, but in July the 7th Circuit Court of Appeals refused to vacate the $9 million award.

After a review of legal precedents and an Aug. 15 opinion by Cherry outlining Mayes' deteriorating health, the city's financial situation and the "amicable" nature of the agreement, the appellate court judges agreed to let Cherry make the decision.

O'Connor said attorneys David Jensen and Robert Felden on the city's legal team did an "outstanding job" minimizing the potential financial exposure from the case, as well as facing "the challenge of defending an incident that happened in 1980."

Posted by Marcia Oddi on Friday, September 05, 2008
Posted to Ind Fed D.Ct. Decisions

Ind. Law - Still more on: "Allen County bill may effectively limit abortion"

Updating this ILB entry from yesterday, quoting an Evansville Courier & Press editorial, the Fort Wayne Journal Gazette today has its own editorial. Some quotes:

The Allen County commissioners want to introduce a county ordinance today that will require doctors providing invasive outpatient procedures to have admitting privileges at a local hospital and have on-call, after-hours staff in case of postoperative emergencies. The commissioners drafted the ordinance after hearing anecdotal testimony from local gynecologist Geoff Cly, who is working with Allen County Right to Life to lobby for the added restrictions.

Local abortion opponents claim the restrictions are needed because of reports about patients suffering from complications after an abortion, but they acknowledge there is no way to confirm or track the number of cases.

If the commissioners truly fear there is a rampant problem with health care providers who do not have hospital privileges or after-hours staff, they should seek the guidance of the Fort Wayne-Allen County Department of Health. The health department is vastly more qualified than the county commissioners to determine best practices for health care.

And after consulting with the health department, the commissioners should also seek legal counsel, because it’s unclear whether the county commissioners have jurisdiction to change the regulations governing physicians. State laws already regulate physician licensure.

The objective of improving health care is admirable, but this ordinance will not improve care for women seeking abortions or for anyone else. It is a disingenuous attempt to curtail legal abortions. * * *

Vanderburgh County commissioners passed a similar ordinance last month. With luck, Allen County’s commissioners will seek the advice of experts, specifically local health department officials, to forgo making a similar mistake.

Posted by Marcia Oddi on Friday, September 05, 2008
Posted to Indiana Law

Courts - "If a Scratch-Off Is a Rip-Off, Litigation May Be the Prize"

This sounds familiar, as it also has recently been an issue in Indiana. Tresa Baldas of The National Law Journal reports today in a story that begins:

If your scratch-off is a rip-off, prepare to pay up.

Disgruntled lottery and sweepstakes consumers are filing a host of lawsuits claiming that instant tickets promise a lot, but can't deliver.

In Virginia, a business professor is suing the Virginia Lottery for allegedly selling roughly $85 million in defective scratch-offs, claiming the tickets had no chance of winning the top prizes because they had already been claimed. Hoover v. Virginia Commonwealth, No. CL08-3140 (Richmond City, Va., Cir. Ct.).

Similar challenges have been filed in Arizona, California, Colorado and Washington state.

Posted by Marcia Oddi on Friday, September 05, 2008
Posted to Courts in general

Ind. Decisions - Court grants transfer in 2 cases

The formal transfer list should follow later today, but the ILB has received advance notice of two cases granted at the Court's conference yesterday, Sept. 4th:

In the Matter of R.J.G., issued by the COA 5/29/08, and summarized in this ILB entry from that date, relating to a juvenile court disposition.

Gary Community School Corp. v. Tom Powell, issued by the COA on 2/19/08 and summarized in this ILB entry from that date, relating to coverage of the Family and Medical Leave Act (FMLA) to a full-time teacher and a part-time football coach.

Posted by Marcia Oddi on Friday, September 05, 2008
Posted to Indiana Transfer Lists

Thursday, September 04, 2008

Ind. Decisions - Supreme Court issues disciplinary opinion re legal advertisements

From In the Matter of Scott A. Benkie/In the Matter of Douglas A. Crawford, a 5-page Per Curiam opinion

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action" in each of these cases and the post-hearing pleadings of the parties. We find that Respondents, Scott A. Benkie and Douglas A. Crawford, engaged in attorney misconduct in their advertisements for their legal services. * * *

The Commission charged Respondents with violating these Indiana Professional Conduct Rules that prohibit the following conduct:

7.2(b): Use of a public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim.
7.2(c)(3): Use of a statement intended or likely to create an unjustified expectation.
7.2(d)(2): Use of a public communication that contains statistical data or other information based on past performance or prediction of future success.
7.3(c): Solicitation of professional employment without the words "Advertising Material." * * *

The Court concludes that Respondents' use of the phrase "commitment to obtaining the best possible settlement" did not violate the Rules of Professional Conduct and finds for Respondents on this charge. The Court, however, concludes the Commission has demonstrated by clear and convincing evidence that Respondents committed the remaining violations as charged.

For Respondents' professional misconduct, the Court imposes a public reprimand. * * *

Shepard, C.J., and Dickson, and Boehm, JJ., concur.
Sullivan and Rucker, JJ., concur except that they would find no violation of Indiana Professional Conduct Rule 7.2(d)(2).

Review the details of the opinion.

Posted by Marcia Oddi on Thursday, September 04, 2008
Posted to Ind. Sup.Ct. Decisions

Law - "Big corporations touting the use of minority- and women-owned law firms"

Lynne Marek of The National Law Journal reported Wednesday on big corporations touting the use of minority- and women-owned law firms. The article begins:

E.I. Du Pont de Nemours & Co. is once again pushing corporate America to use minority- and women-owned law firms, this time teaming with Royal Dutch Shell PLC and Wal-Mart Stores Inc. to publish for the first time a list of such firms that the companies have used in the past.

The companies sent out a directory of the firms to about 100 in-house lawyers, including all members of the Chief Litigation Counsel Association, said Andrew Schaeffer, who is DuPont's managing counsel of operations and partnering in Wilmington, Del.

In April, they also launched a Web site, www.minorityandwomenlawfirms.com, with help from Sara Lee Corp. and General Motors Corp., that lists the firms by state with contact information. "Our experience is a lot of companies don't know where to begin," Schaeffer said.

Judges, juries and public officials are becoming more diverse, so companies benefit from using firms that offer a diverse set of lawyers who can identify with these decision-makers, said Tom Sager, DuPont's general counsel.

DuPont also sent the directories to its 50 primary law firms, encouraging them to consider working with the minority- and women-owned firms and to share the information with colleagues. DuPont largely paid for publication of the 300 directories and the creation of the Web site.

Here is the website mentioned above. Clicking on Indiana reveals three firms, all in Indianapolis. Surely there are additional diverse firms, particularly in NW Indiana.

Note: The link for DeLaney & DeLaney given by the site under Indiana firms is incorrect. It should read: www.delaneylaw.net.

Posted by Marcia Oddi on Thursday, September 04, 2008
Posted to General Law Related

Ind. Courts - "LaPorte County re-entry court judged positive"

From a story by Laurie Wink in the Michigan City News-Dispatch:

After five months in operation, the re-entry court established by Superior Court 1 Judge Kathleen Lang is getting a positive response from both returning felons and community support agencies.

Lang and Lyn Swanson, chief probation officer for Superior Courts 1 and 2, have been meeting twice a month in courtroom sessions with those just released from prison, in addition to their regular probation meetings.

Officials started the re-entry court in an effort to help offenders improve their lives so they won't revert to a life of crime. Lang and Swanson take a problem-solving approach to creating a support system tailored to each person's needs.

Frequently, Swanson said, after being incarcerated for 10 or more years, they come into the community with no place to stay, no job, no money and no identification.

"To get an ID, they need a Social Security card and to get a Social Security card, they need a birth certificate," Swanson said.

"They don't know where to begin."

Lang and Swanson have been meeting with as many community organizations as they can to find out what resources are available and where to make referrals. Swanson develops one-page forms for each resource and eventually wants to put them into a manual.

Lang said the courtroom meetings have been positively received by the offenders because they are informal and don't involve lawyers.

"They're used to seeing the judge when they've done something wrong," she said. She keeps records of the individual's backgrounds, offenses and issues, such as substance abuse, which is a common problem for ex-cons, she said.

Through the re-entry court, returning offenders get help for addictions or mental health issues. Other referrals could be to faith-based mentoring programs and employment agencies, although Lang said finding jobs for offenders is a big problem. She is working with an advisory committee to identify more employment options.

"It's hard enough for anyone to get a job right now but, for those with A or B felonies, it's hard to get a job period," she said. "If they can't find a job, they will go back to their old ways of dealing drugs to make money fast."

Ultimately, as re-entering offenders establish themselves as productive members of the community, Lang expects to see less crime in the city and improved public safety.

Posted by Marcia Oddi on Thursday, September 04, 2008
Posted to Indiana Courts

Ind. Decisions - Two Indiana decisions today from the 7th Circuit

In Griffin and Griffin v. Robert K. Foley, MD (SD Ind., Judge Young), a 30-page opinion, Judge Manion writes:

As a result of a car accident, Lisa Griffin had to undergo back surgery, which Dr. Robert Foley performed. After complications arose from the surgery, Lisa and her husband Michael filed this diversity suit against Foley in the district court alleging medical malpractice. The case went to trial, and a jury returned a verdict in favor of Foley. The Griffins appeal, raising several challenges to the trial court’s procedural handling of their case. We affirm. * * *

As we have said before, “civil litigants are entitled to a fair trial, not a perfect one.” Lemons v. Skidmore, 985 F.2d 354, 357 (7th Cir. 1993). In its order denying the Griffins’ motion for a new trial, the district court stated that it was satisfied that the Griffins received a fair trial. We echo that sentiment, and AFFIRM the judgment of the district court.

In US v. Rogers (ND Ind., Judge Springmann), an 11-page opinion, Judge Sykes writes:
Federal Rule of Evidence 609(b) severely limits the use of a prior conviction to impeach a witness if a period of more than ten years has elapsed since the conviction or the witness’s release from any confinement imposed for that conviction. This appeal presents the question of whether probation following a prison term constitutes “confinement” for purposes of the ten-year time limit under Rule 609(b)—in other words, whether the ten-year clock begins to run upon the witness’s release from prison or the expiration of his ensuing probation or parole. We conclude that probation does not constitute “confinement” within the meaning of Rule 609(b).

Anthony Rogers was tried in 2005 on charges of making a false statement on a firearm-purchase form and being a felon in possession of a firearm. He testified in his own defense and was impeached with his 1993 conviction for distribution of cocaine. Rogers was released from prison on that conviction in 1994 after his sentence was modified to probation; he then remained on probation supervision until 1999. Because probation does not constitute confinement, however, Rogers’s conviction fell outside the tenyear time limit of Rule 609(b), and its admission for impeachment purposes was therefore error. But given the overwhelming evidence of his guilt, we conclude the error was harmless and affirm his convictions.

Posted by Marcia Oddi on Thursday, September 04, 2008
Posted to Ind. (7th Cir.) Decisions

Environment - More on: John Graham to lead IU SPEA

Updating this ILB entry from April 17, 2008, which quoted the IU announcement of Graham's appointment to head SPEA, the Bloomington Herald-Time's reporter, Nicole Brooks, has this interview ($$) today. Some quotes:

John Graham comes to Indiana University’s School of Public and Environmental Affairs from years in public policy both in educational settings and in the White House, where he served in the Office of Management and Budget from 2001 to 2006.

Graham, SPEA’s fourth dean in the school’s 33-year history, began his duties July 28. He sat down last week to answer questions about his background and his priorities and hopes for the school. * * *

From 1990 to 2001 Graham led the Harvard Center for Risk Analysis, which he also founded. His work at the center led him to testify before both the Senate and the House, where he promoted a greater role for benefit-cost analysis in regulatory policy. * * *

Graham’s job with the OMB was to oversee all federal regulatory agencies, including the Food and Drug Administration, the Labor Department, Homeland Security and the Environmental Protection Agency. His staff of about 50 analysts were graduates of schools like SPEA, and one was in fact a SPEA alum.

Graham first met Daniels when he interviewed for the OMB job, then worked for him two and a half years.

“He taught me an enormous amount about how government works, and how to get things done in a difficult political environment. And then he was generous enough, actually, when I was appointed to the (SPEA dean) position, to have me come in to his office, and we had a good little conversation about how there’s a need in this state for university-based operations like SPEA to devote some of their attention not simply to the global challenges of the world or the national issues, but concrete problems like how should municipal governments and local governments in the state of Indiana be organized? How can they be more efficient?”

Graham said. “I think that his view, and certainly would be my view, is that there’s a much greater degree of opportunity to make a difference on these types of issues. In a way, it’s Indiana University giving back to the state and to the taxpayers what they’ve invested in Indiana University. So it’s not only an opportunity. To some extent, it’s an obligation.”

This obligation will turn into an interesting challenge in a few years, Graham said, when the bulk of SPEA’s faculty will be eligible for retirement.

“The most fascinating thing is, if you look at the profile of the faculty here, there was a surge of hiring from 1975 to 1985,” he said. “And that bulge is nearing the retirement years. So there’s going to be an opportunity to recruit and reshape a whole new generation of faculty at this school. That to me was an enormous opportunity.” * * *

“I think of these kinds of schools, (they) are problem-solving schools,” he said. “So, from my perspective, you look in society, you look in the world, you say ‘what are the big problems?’ And then you try to figure out, how can you position a school like this to help society address these issues,” he said. “In my opinion, the two biggies that we’re facing are the energy and environment challenge, and health care. A lot of what’s in that document is either explicitly or indirectly aimed at positioning the school and its graduates and its research programs to play a role in those two issues.”

Posted by Marcia Oddi on Thursday, September 04, 2008
Posted to Environment

Courts - In question of first impression in the circuits, 8th Circuit holds "Attorneys who provide bankruptcy assistance to assisted persons are debt relief agencies under the Bankruptcy Code"

In Milavetz, Gallop & Milavetz, P.A. v. U.S., a 24-page opinion, the Court of Appeals for the 8th Circuit holds on p. 18:

In sum, attorneys who provide bankruptcy assistance to assisted persons are debt relief agencies under the Bankruptcy Code, and § 526(a)(4) is unconstitutional as applied to these attorneys, but §§ 528(a)(4) and (b)(2) are constitutional. Accordingly, we affirm in part and reverse in part.
More from the opinion:
Milavetz, Gallop & Milavetz, P.A., a law firm that practices bankruptcy law, the firm's president, a bankruptcy attorney within the firm, and two clients who
sought bankruptcy advice from the firm brought suit against the United States seeking a declaratory judgment that certain provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA)—11 U.S.C. §§ 526(a)(4) and 528(a)(4) and (b)(2)—did not apply to attorneys and law firms and are unconstitutional as applied to attorneys. * * *

One BAPCPA amendment added a new term, "debt relief agency," which is defined in § 101(12A) of the Code. 11 U.S.C. § 101(12A). The amended Code restricts some actions of debt relief agencies, while requiring them to do others. See 11 U.S.C. § 526 ("Restrictions on debt relief agencies"); 11 U.S.C. § 528 ("Requirements for debt relief agencies"). For example, § 526(a)(4) bars a debt relief agency from advising a client "to incur more debt in contemplation" of a bankruptcy filing, 11 U.S.C. § 526(a)(4), while §§ 528(a)(4) and (b)(2) require debt relief agencies to include a disclosure in their bankruptcy-related advertisements directed to the general public declaring: "'We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code[,]'or a substantially similar statement." 11 U.S.C. § 528(a)(4), (b)(2). * * *

Initially, we address whether attorneys fall within the Code's definition of debt relief agencies. * * *

Whether attorneys fall within the Code's definition of debt relief agencies is an issue of first impression among the Courts of Appeals. * * *

Because attorneys were not specifically excluded from the definition of debt relief agencies, we hold that attorneys that provide "bankruptcy assistance" to "assisted persons" are "debt relief agencies" as that term is defined by the Code. Interpreting the definition of "debt relief agency" to exclude bankruptcy attorneys would be contrary to Congress's intent.

Posted by Marcia Oddi on Thursday, September 04, 2008
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

In James T. Ferguson, et al. v. Charles D. Chandler, et al. (NFP), a 20-page opinion ("This appeal is the third time we have addressed this litigation."), Judge Robb concludes:

The trial court properly concluded Ferguson failed to prove damages resulting from the Candlers’ breach of fiduciary duty, was not entitled to relief on his claim for constructive fraud, and was not entitled to attorney fees under the Crime Victims Statute. However, the trial court improperly concluded Ferguson was not entitled to damages for destruction of the doors, and we remand with instructions that the trial court award Ferguson damages on that claim in the amount of $1,187.70. We also remand with instructions that the trial court enter findings and conclusions on 1) whether the Candlers complied with the trial court’s September 29, 2003, order and, if not, to determine Ferguson’s damages and 2) whether the Candlers are entitled to damages based on Ferguson’s breach of fiduciary duty, recognizing that such damages are time-barred before June 2, 2000. On remand, the trial court need not conduct a hearing if it so chooses. Affirmed in part, reversed in part, and remanded with instructions.
NFP criminal opinions today (3):

Fred G. Newell v. State of Indiana (NFP)

Joshua Copeland v. State of Indiana (NFP)

James Leroy Kilgore v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 04, 2008
Posted to Ind. App.Ct. Decisions

Environment - "Court Tells EPA to Guarantee Kentucky Rules Do Not Allow Significant New Pollution in State’s Waterways"

From a NKY Sierra Club press release:

Louisville, KY – Today, the U.S. Court of Appeals for the Sixth Circuit issued its opinion in the case of Kentucky Waterways Alliance v. Johnson, reversing and remanding in part Environmental Protection Agency's approval of Kentucky's flawed antidegradation rules. The Kentucky antidegradation rules at issue are required by the federal Clean Water Act, and are intended to protect water quality of streams, rivers and lakes whose quality exceeds the minimum level necessary to support the Act’s “fishable” and “swimmable” goals. * * *

The Court agreed with Plaintiffs that the EPA had acted arbitrarily and capriciously in approving Kentucky's rules that allowed exceptions to the requirement of justifying a lowering of water quality of high quality waters.

The 24-page opinion found that EPA's approval of five of the six exceptions was "arbitrary and capricious" because EPA never required Kentucky to prove that the multiple exceptions contained in Kentucky's rules would cause only insignificant, or "de minimus," degradation of the state's rivers, lakes and streams.

“We’ve long believed that the numerous exemptions in Kentucky’s regulations could seriously degrade water quality. The court opinion makes it clear that the Clean Water Act requires antidegradation rules work to maintain water quality and EPA must look seriously at the individual and cumulative impact of the so-called “de minimis” exemptions prior to approving them,” said Judith Petersen, Executive Director of Kentucky Waterways Alliance

The Court also rejected EPA's approval of Kentucky's proposed antidegradation review for coal mining discharges. Despite the blanket exemption of coal mining discharges from antidegradation review by Kentucky, EPA approved the state rule based on a letter commitment by the state that it would interpret its regulation to require such reviews. The Court agreed with Plaintiffs that securing informal commitments from a state rather than requiring that its regulation be amended violates the Clean Water Act and abridges the right of the public to comment on proposed rules. * * *

Plaintiffs also objected to Kentucky's method for determining which waterways deserve antidegradation protection. The Court agreed that the state must protect all waters whose quality "exceed[s] levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water," but was not persuaded that Kentucky's specific procedures violated the law.

The Court's opinion sends Kentucky's rules back to U.S. EPA for further review. Kentucky will likely have to significantly revise and improve its rules in order to comply with the Court's opinion, and the result will be increased scrutiny of the use of public waters for waste disposal from industries, confined animal feedlot operations, cities, and under stormwater permits.

The LCJ has a story here.

Here is the 6th Circuit's 24-page opinion in the case of Kentucky Waterways Alliance v. Johnson

Posted by Marcia Oddi on Thursday, September 04, 2008
Posted to Environment

Ind. Law - More on: "Allen County bill may effectively limit abortion"

Updating this ILB entry from yesterday, Sept. 3, the Evansville Courier & Press today editorializes:

The abortion ordinance issue that erupted in Vanderburgh County last month is about to be tested in Fort Wayne, Ind., but with three significant differences.

Recall that the ordinance requiring doctors who perform abortions to have nearby hospital admitting privileges was passed by the Vanderburgh County Commissioners with practically no public notice.

That's one difference.

According to news reports from Fort Wayne, the public there knows that it is coming. * * *

The second difference goes to the scope of the ordinance.

The Vanderburgh County ordinance, passed unanimously, went right at abortion, requiring that a physician may not perform an abortion in Vanderburgh County unless he has admitting privileges at a hospital in Vanderburgh or an adjacent county.

Also, it requires that the physician notify the patient of the hospital's location, where the patient may receive follow-up care if complications occur. * * *

We wondered at the time, in an Aug. 21 editorial, that if the issue was truly patient safety — as the commissioners said — and not restricting abortions, then why did it not include other outpatient procedures performed in Vanderburgh County?

And, indeed, according to the Journal Gazette, the Allen County ordinance would require all surgeons and doctors who provide outpatient invasive procedures to have ties to a local hospital. It would apply to other medical procedures.

The third difference is between the two communities involved. In fact, Vanderburgh County has no abortion clinic, no place for visiting physicians to perform abortions. Hence, the Vanderburgh ordinance stands more as a bar against a clinic ever opening here.

On the other hand, Fort Wayne does have a clinic operated by the Fort Wayne Women's Health Organization. According to the story, abortions at the clinic are performed by a physician based in South Bend.

That means that if the ordinance is passed, it could put the future of the Fort Wayne clinic in doubt, and create a headache for physicians coming there to perform other procedures at outpatient clinics.

Also, it adds new meaning to big hospital monopolies if visiting physicians — whether they perform abortions or plastic surgery — must get the permission of hospitals to do procedures at medical clinics.

Posted by Marcia Oddi on Thursday, September 04, 2008
Posted to Indiana Law

Ind. Courts - "St. Joseph County prosecutor's budget targeted"

Nancy Sulok reports today in the South Bend Tribune:

County officials aimed their budget ax at the prosecutor's office Wednesday night, and there was no mincing of words. * * *

The occasion was the first of several planned sessions designed to trim between $5 million and $6 million from the 2009 county budget. A mandate to all departments to trim their budgets by 8 percent resulted in some savings, and county Auditor Peter Mullen said "we're halfway there.'' Additional cuts of around $2.6 million remain to be made, he said.

But the prosecutor's office was one that did not make the 8 percent cuts, either in the criminal division or the child support division. In the criminal division his 2009 budget cut only 3.9 percent, while in the child support division the cut was only 2.3 percent.

Posted by Marcia Oddi on Thursday, September 04, 2008
Posted to Indiana Courts

Ind. Law - "Police to go after unlicensed scooters"

Confusion continues. Today Amanda Iacone of the Fort Wayne Journal Gazette. reports on motor scooters. They require a a title, registration and license plate, according to the BMV, because: "Scooters are designed to go faster than 25 mph and therefore must have a license plate."

Unlike golf carts, which are designed to go less than 25 mph?

Posted by Marcia Oddi on Thursday, September 04, 2008
Posted to Indiana Law

Wednesday, September 03, 2008

Ind. Decisions - Two Indiana decisions today from the 7th Circuit, including one from Circuit Judge Tinder

In Wayne David v. Indiana State Police (SD Ind. Judge McKinney), a 7-page opinion, Chief Judge Easterbrook writes:

Wayne Davis, a State Trooper in Indiana, resigned when 42 years old to take another job. Two months later he decided that he had made a mistake and asked for his old job back. The State Police said no, telling Davis that he was too old—for extroopers seeking reinstatement must “meet all the requirements for police employees as specified in . . . 240 IAC 1-4-3”. 240 Ind. Admin. Code §1-4-18(b)(4). Among the requirements in §1-4-3 is that the applicant be at least 21, and under 40, when hired. Davis contends in this suit that, by holding his age against him, Indiana violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621–33a. * * *

Davis does not contend that Indiana’s rules, which predate EEOC v. Wyoming, are “subterfuges” to evade the Act. Instead he contends that the decision not to rehire him is not one “pursuant to a bona fide hiring . . . plan”. His principal argument is that Indiana’s system is not “bona fide” because it is senseless; a fallback argument is that the decision not to rehire him, in particular, was not made “pursuant to” the state’s age limits. Indiana allows state troopers to work until age 65. Davis asks why a 2-month break in employment at age 42 should make him a pariah, when he would have been acceptable at age 43, 45, 50, 55, and 60 had he just stayed put. It is a good question, but not one for the federal judiciary. All §623(j)(2) requires is that the plan be “bona fide” and not a “subterfuge” to evade the ADEA. Whether a state’s plan is wise is not material to the application of §623(j)(2). A plan is “bona fide” when it is real rather than a fable spun for the occasion. Kopec, 193 F.3d at 901. * * *

When dismissing Davis’s complaint, the district court did not mention the requirement that the employer’s decision be “pursuant to” the plan; the judge asked only whether Indiana has a bona fide plan. Having a bona fide plan is not enough; that plan must be applied to yield the contested decision. * * *

Because this complaint was dismissed under Rule 12(b)(6), the record is silent on whether the state understands (and applies) 240 Ind. Admin. Code §1-4-18(b)(4) to permit exceptions to the maximum-age-at-rehire requirement. Davis is entitled to collect and present evidence on that question and to contend that, if the Indiana State Police sometimes rehires people at age 40 and above, the decision not to rehire him was not made “pursuant to” a bona fide plan.

The judgment of the district court is vacated, and the case is remanded for further proceedings consistent with this opinion.

In Dean Officer v. Chase Ins. (ND Ind., Judge Sharp), a 14-page opinion, Judge Tinder writes:
This case questions the validity under Indiana law of a suicide exclusion clause in a life insurance policy. Dean Officer (“Officer”), as the beneficiary of his wife’s life insurance policy, brought this suit against Chase Insurance Life & Annuity Company (“Chase”) to recover the face amount of the policy. The district court entered judgment in favor of Chase. We affirm. * * *

A. Insurance Contract Ambiguity. * * * Both parties agree that Indiana law applies here. Officer does not argue that Indiana law prohibits the exclusion of suicide under life insurance policies; Indiana has long permitted exclusions of this type. * * *

These two provisions are not in conflict, though. Chase could have used the same language in both provisions, but the fact that it used different language to express the amount of proceeds payable does not compel the conclusion that two otherwise unambiguous statements have become ambiguous.

B. Disproportionate Forfeiture. Officer argues that, if the exclusion is not ambiguous, then Indiana courts would find that it was a disproportionate forfeiture or an illegal penalty. He asserts that there is no rational relationship between the harm Chase suffered by the breach of the suicide clause and the $999,460 loss he will suffer by being repaid only the premiums. * * *

Chase is not seeking to escape its obligations under the policy; it tendered a check to Officer for the amount it owed. The suicide exclusion is not an unenforceable penalty and is subject to enforcement as expressed.

C. Substantial Performance. Officer also argues that the breach of the insurance contract was immaterial and the doctrine of substantial performance should prevent Chase from discharging its obligation to pay. He asserts that the suicide provision was 95% performed at the time of the breach and its purpose was effectuated because there was no evidence of fraud. * * *

Allowing Officer to recover would thwart the purpose of the exclusion. In any event, the doctrine of substantial performance is simply inapplicable here; an insured is not “performing” a life insurance contract by not committing suicide. We reiterate that “[i]f a plainly expressed exception, exclusion or limitation in an insurance policy is not contrary to public policy, it is entitled to construction and enforcement as expressed.” Boles, 481 N.E.2d at 1098 (emphasis added). Officer is entitled only to the amount of premiums paid.

D. Motion for Certification. Officer moved that we certify two questions to the Indiana Supreme Court pursuant to our Circuit Rule 52: whether the doctrines of illegal forfeiture and substantial performance apply to this insurance contract. * * *

We believe that the Indiana Supreme Court has “illuminate[d] a clear path,” Plastics Eng’g Co., 514 F.3d at 659, for us to confidently resolve Officer’s claim under Indiana law. As such, we decline to certify the questions. * * *

III. Conclusion. The district court properly concluded that the suicide limitation was valid and enforceable. We AFFIRM the district court’s judgment and DENY Officer’s motion for certification of questions to the Indiana Supreme Court.

Posted by Marcia Oddi on Wednesday, September 03, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Still more on: Indiana building codes, part of the Indiana Administrative Code, are not available online [Corrected]

Yesterday the ILB posted this entry about how a fellow named Carl Malamud was making available online the building codes for all 50 states, including the until-now-totally-unavailable International Building Codes which form about 95% of each state code. Mr. Malamud is one of the founders of Public.Resource.Org, a nonprofit group seeking to open public access to government records, according to a 2007 NYT article, which also reports:

His motivation is to make the workings of the government more accessible at no cost: “This is society’s operating system,” he said.

Well, come to find out that Mr. Malamud received an MBA from IU-Bloomington. While there he had some classes with two students who are now well known in Indiana circles, Indiana Insight publisher Ed Feigenbaum, and Indiana Attorney General Steve Carter, both of whom were pursuing joint JD/MBA degrees. In answer to my questions, Ed writes:

Steve and I started the JD part in 1979, the MBA part in 1980, and we received both degrees in 1982. I believe that Carl started the MBA program in 1980 and received his MBA in 1982. In the core MBA courses, they assigned us to groups of four or five for group projects, and I was fortunate to have been stuck in with genius Carl, who was our go-to guy for all the quantitative stuff.

[Clarification from Mr. Malamud, added 9/6/08: "I was actually in the doctoral program in the business school, but started working for the computer center and dropped out ... they gave me an MBA as a consolation prize."]

This serves as a prelude to this long and fascinating article today in the Santa Rosa CA Press Democrat, reported by Nathan Halverson. Some quotes:
California's building codes, plumbing standards and criminal laws can be found online.

But if you want to download and save those laws to your computer, forget it.

The state claims copyright to those laws. It dictates how you can access and distribute them -- and therefore how much you'll have to pay for print or digital copies.

It forbids people from storing or distributing its laws without consent.

That doesn't sit well with Carl Malamud, a Sebastopol resident with an impressive track record of pushing for digital access to public information. He wants California -- and every other federal, state and local agency -- to drop their copyright claims on law, contending it will pave the way for innovators to create new ways of searching and presenting laws.

"When it comes to the law, the courts have always said there can be no copyright because people are obligated to know what it says," Malamud said. "Ignorance of the law is no excuse in court."

Malamud is spoiling for a major legal fight.

He has begun publishing copies of federal, state and county codes online -- in direct violation of claimed copyright.

On Labor Day, he posted the entire 38-volume California Code of Regulations, which includes all of the state's regulations from health care and insurance to motor vehicles and investment.

To purchase a digital copy of the California code costs $1,556, or $2,315 for a printed version. The state generates about $880,000 annually by selling its laws, according to the California Office of Administrative Law.

Malamud isn't just targeting California. He posted safety and building codes for nearly all 50 states, and some counties and cities such as Sonoma County and Los Angeles.

And that is just the start of the article.

Posted by Marcia Oddi on Wednesday, September 03, 2008
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In Harold McComb & Son, Inc. and American Renovation of IN, Inc. v. JP Morgan Chase Bank , a 17-page opinion, Judge Riley writes:

Appellants-Mechanic’s Lienholders, Harold McComb & Son, Inc. (McComb) and American Renovations of Indiana, Inc. (ARI) (collectively, Lienholders), appeal the trial court’s grant of Appellee-Mortgagee’s, JPMorgan Chase Bank, NA (Chase), motion for partial summary judgment in these consolidated actions against Indian Village Apartments, LLC (Indian Village) for foreclosure of the Lienholders’ mechanic’s liens and Chase’s mortgage. We affirm.

The Lienholders present two issues for our review, which we restate as: (1) Whether the Lienholders have standing to challenge Chase’s foreclosure action against Indian Village; and (2) Whether the trial court properly prioritized the liens of the respective parties. * * *

In Gonzales v. Kil Nam Chun, 465 N.E.2d 727, 729 (Ind. Ct. App. 1984), the case relied upon by the trial court, we held that only the parties to a contract, those in privity with the parties, and intended third-party beneficiaries under the contract may seek to enforce the contract. McComb does not contend that it falls into any of these three categories with regard to the Construction Loan Agreement and the Note between Chase and Indian Village. As such, the trial court did not err in determining that McComb lacked standing to challenge Chase’s foreclosure action.

Next, the Lienholders argue that even if the trial court properly concluded that they do not have standing to challenge the foreclosure proceeding, it erred in prioritizing the liens of the parties. They concede that Chase has priority with regard to the land and the buildings, but they contend that their mechanic’s liens have priority as to the improvements they provided. Resolution of this issue turns on the interplay between three statutes relating to the priority of liens: Indiana Code subsection 32-21-4-1(b), Indiana Code section 32-28-3-2, and Indiana Code subsection 32-28-3-5(d). * * *

[Lienholders] rely on their argument that Indiana Code section 32-28-3-2 constitutes an exception to Indiana Code subsection 32-28-3-5(d), a contention that, as discussed above, is not supported by the historical development and judicial interpretation of those statutes. Under these circumstances, the trial court was correct that Indiana Code subsection 32-28-3-5(d) controls and that Chase’s mortgages have priority over the mechanic’s liens. * * *

Based on the foregoing, we conclude that the trial court did not err in finding that McComb lacks standing to challenge Chase’s mortgage foreclosure action or in prioritizing the respective liens. Therefore, we affirm the trial court’s grant of Chase’s motion for partial summary judgment. Affirmed.

NFP civil opinions today (3):

Curtis Cross v. Bon L. Manufacturing Co. (NFP) - "The trial court did not err when it determined that Cross was a dual employee of GRUS and Bon L. Therefore, it properly granted Bon L’s motion to dismiss for lack of subject matter jurisdiction."

Tanisha R. Saunders v. Review Bd. of the Ind. Dept. of Workforce Development and Logan Comm. Resources, Inc. (NFP) - "Tanisha R. Saunders (“Saunders”) appeals the Unemployment Insurance Review Board’s (“Review Board”) determination that she was not entitled to unemployment benefits. We reverse.Saunders raises one issue, which we restate as: whether the Review Board reasonably determined that Saunders resigned without good cause."

Tri-Quality Enterprises, Inc. d/b/a Rhino Linings of Ft. Wayne v. Total Systems Technology, Inc. (NFP) - This is a 19-page, 2-1 opinion. "Tri-Quality Enterprises, Inc. d/b/a Rhino Linings of Fort Wayne (“Rhino Linings”) appeals the trial court’s grant of summary judgment in favor of Total Systems Technology, Inc. (“TST”), and its shareholders, Charles Piscatelli and Dorothy Piscatelli, on Rhino Linings’ third-party claims of breach of contract, common law indemnity, and fraud, as well as the trial court’s denial of Rhino Linings’ motion for summary judgment on its breach of contract claim. On appeal, Rhino Linings raises five issues, which we consolidate and restate as whether the trial court properly granted TST summary judgment on Rhino Linings’ claims of breach of contract, common law indemnity, and fraud. Concluding that the trial court properly granted TST summary judgment on the breach of contract claim, but not the common law indemnity and fraud claims, we affirm in part, reverse in part, and remand."

NFP criminal opinions today (3):

Jason Widmeyer v. State of Indiana (NFP)

William Henderson v. State of Indiana (NFP)

M.R. v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 03, 2008
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues opinion on double jeopardy issue

In Roderick Lee v. State of Indiana, an 8-page, 5-0 opinion, Justice Beohm writes:

Multiple convictions do not violate Indiana’s Double Jeopardy Clause if they logically could have been based on the same facts, but in light of the evidence, the instructions, the charges, and the argument of counsel, there is no reasonable possibility that the jury actually used exactly the same set of facts to establish both convictions. * * *

We note that more deliberate prosecution of multiple offenses would avoid these double jeopardy problems. Had the charges, instructions, and closing argument cited the fact of barging into the home as to the burglary alone, and the threats and demands as to the attempted armed robbery, there would be no double jeopardy question, and the trial and appellate courts would not have been required to assess the degree of likelihood of overlapping convictions.

Because we find that Lee’s convictions do not violate Indiana’s Double Jeopardy Clause, Lee was not prejudiced by his attorney’s failure to raise the issue. He has therefore failed to es-tablish ineffective assistance of counsel.

Conclusion. The post-conviction court’s denial of Lee’s petition for relief is affirmed.

Posted by Marcia Oddi on Wednesday, September 03, 2008
Posted to Ind. Sup.Ct. Decisions

Courts - "Lawyers difficult to obtain in immigration cases"

An interesting story yesterday in the LA Times, reported by Anna Gorman. Some quotes:

Unlike defendants in criminal courts, individuals in immigration court do not have the right to free representation. Though there are no local statistics on the number of people who appeared in immigration court without lawyers, 58% of respondents nationwide were unrepresented, according to the Executive Office for Immigration Review, which oversees the courts.

"Immigration laws are extremely complex," said Immigration Judge Dana Leigh Marks, president of the National Assn. of Immigration Judges. "It's a tremendous aid to us when someone is competently represented."

But finding an inexpensive or free attorney can be extremely difficult, advocates and lawyers said. And the stakes are high: Foreigners can face deportation, family separation and even political persecution.

"Someone who is not an immigration attorney cannot possibly understand the complexities to do what they need to do to have a fighting chance," said Judy London, who directs the immigrant rights project of Public Counsel, a Los Angeles pro bono law firm.

The federal government, private firms and nonprofit organizations are launching new efforts to increase pro bono representation. But advocates said the only solution would be a public defender program.

"Nonprofits just don't have the resources to represent everybody," said Donald Kerwin, executive director of the Catholic Legal Immigration Network.

The Executive Office of Immigration Review has expanded pro bono programs for unaccompanied children and legal orientation seminars for detained immigrants, and has increased the number of court-sponsored training programs for attorneys willing to take cases at no cost.

Posted by Marcia Oddi on Wednesday, September 03, 2008
Posted to Courts in general

Ind. Gov't. - "The golden age of Lake County government printing contracts might soon be over"

The ILB has had a number of items on Lake County printing contracts.

"Councilman pushes for no-frills printing contract"
is the headline to a story today in the NWI Times by Bill Dolan:

CROWN POINT | The golden age of Lake County government printing contracts might soon be over if Councilman Larry Blanchard, R-Crown Point, has his wish.

Blanchard urged county officials on Tuesday to adopt a consolidated contract for printing county government envelopes, letterhead, business cards and other government forms.

He said the county could save 10 percent or more on its $490,000 in printing contracts -- including service and maintenance fees -- by consolidating the work for dozens of county offices into one competitive bidding package.

"It would be no-frills. No gold lettering or raised lettering or seals, but the savings would be substantial," he said.

Posted by Marcia Oddi on Wednesday, September 03, 2008
Posted to Indiana Government

Ind. Courts - "New judge sought in Valpo hospital lawsuit"

Bob Kasarda reports today in the NWI Times:

VALPARAISO | Landowners seeking to block the construction of a new Porter hospital at Ind. 49 and U.S. 6 have asked Porter County Circuit Court Judge Mary Harper to turn the lawsuit over to another court.

The Liberty Landowners Association argues there is a conflict since Mary Harper was once married to Porter County Commissioner Bob Harper, who along with the other two commissioners is the target of the landowners' suit.

"It would not be unreasonable to question the impartiality of a judge with respect to a former spouse," the request reads.

The request is opposed by the commissioners, who argue the trial rule governing these matters does not apply since Mary and Bob Harper are no longer married.

A hearing on the issue is scheduled for 1 p.m. Monday before Judge Harper.

Posted by Marcia Oddi on Wednesday, September 03, 2008
Posted to Indiana Courts

Environment - "Delay of megadairy permits, closure of Brownsville store have commissioners meeting with county attorney today"

Pam Tharp, whose stories appear in the Muncie Star-Press and the Richmond Palladium-Item, reports today in a story that begins:

LIBERTY, Ind. -- Decisions about the next step for a livestock zoning ordinance won't be made until after the Union County Commissioners consult with the county attorney today

The county is being threatened with a lawsuit by Liberty Dairy LLC/Vreba Hoff over its delay in issuing a building permit and septic permit for the 2,500-cow megadairy planned for Harrison Township, commissioners said.

The county was also threatened with a lawsuit on another issue, the Union County Health Board's 2005 decision to close Bobkat's Store in Brownsville for 21 months over its septic system. The commissioners will meet in executive session with county attorney Tom Thompson. Executive sessions are not open to the public.

More from the story:
The commissioners said discussing the ordinance at large public meetings has become very difficult. Last week, a fight broke out at an area plan meeting.

"Do you understand how intimidating it is to be in front of a crowd of jeering people and try to conduct any kind of business?" Commissioner Gary Davis asked. "In their defense, it's not easy."

"I'm not ready to recall area plan members. I'm not even considering recalling them," Commissioner Allen Paddock said. "I'm not going to run that board down."

Commissioner Larry Gulley said he's losing sleep over the issue.

"Whatever we do, some people will be mad and some people tickled to death. It's a no-win situation. I can't sleep," he said. "We've been at it for five months and accomplished little."

Concerned Citizens For Union County member Gina Hartman said the group understands the commissioners are under pressure. She said adopting the original ordinance drafted in June by county Surveyor Ted Young would be acceptable. Some plan commission members have conflicts of interest because of their membership in Indiana Farm Bureau, which promotes all animal agriculture, Gina Hartman said.

The commissioners have different opinions about what action they took on the livestock ordinance at a meeting on July 28. Paddock and Gulley said they didn't think they acted on the ordinance, but made recommendations for changes. Davis said he had thought differently, that the recommendations meant the board was rejecting the ordinance.

Posted by Marcia Oddi on Wednesday, September 03, 2008
Posted to Environment

Ind. Law - "Allen County bill may effectively limit abortion"

Recall the controversy last month, recorded in these ILB entries under the heading "Vanderburgh commissioners pass abortion regulations." Part of that controversy arose because the Vanderburgh commissioners passed the ordinance without effective public notice or input.

Today Benjamin Lanka of the Fort Wayne Journal Gazette reports:

The Allen County commissioners this week plan to introduce a bill that would put additional requirements on physicians performing abortions in the county.

Commissioner Nelson Peters said a bill would be introduced Friday that would require all surgeons and doctors who provide outpatient invasive procedures to have ties to a local hospital and have on-call, after-hours staff to handle emergencies. A draft of the bill was not yet available Monday afternoon.

Peters said it was important for anyone performing invasive procedures to have admitting privileges to local hospitals to ensure people who experience problems with those procedures have somewhere to go and get the best care. While the new local legislation would affect abortions, it would affect other procedures as well.

“It really is a quality-of-care issue,” he said.

The Vanderburgh County commissioners in Evansville passed a similar ordinance last month. Backers say such measures protect patient safety, but abortion providers say they restrict women’s access.

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 previously questioned whether county government had jurisdiction to require such a change when he is already licensed through the state.

He also previously predicted that the county couldn’t enforce such a law and that it would likely end up in a lengthy court battle.

Posted by Marcia Oddi on Wednesday, September 03, 2008
Posted to Indiana Law

Ind. Gov't. - New coalition pushing for changes in local government

Mike Smith of the AP writes today:

Efforts to streamline local government, largely tabled this year as legislators grappled with property-tax issues, could gain momentum under a new coalition that is pushing for changes in a system described as cumbersome and redundant.
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The group, which includes the Indiana Chamber of Commerce, the Indiana Association of Realtors and the Central Indiana Corporate Partnership, expects to spend $300,000 to $500,000 to get more of a state panel's recommendations passed in the next legislative session.

"Indiana taxpayers are paying for more layers of government than almost any other taxpayers in the nation," said, Marilyn Schultz, executive director of the coalition, MySmartGov.org.

A commission led by former Gov. Joe Kernan and state Chief Justice Randall Shepard last year recommended 27 changes to a complex local government system it said was mired in an 1850s reality.

The proposals include eliminating township governments and having one elected county chief executive who would appoint county officials now elected such as the sheriff, assessor and auditor. Small school districts would be reorganized so they have at least 2,000 students.

The proposals would cut the number of elected officials in Indiana from more than 11,000 to about 5,100.

The General Assembly enacted a few of the recommendations last session, including one to have the state assume local costs for providing child-welfare services. Lawmakers also transferred the appraisal duties of more than 900 township assessors or township trustee assessors to the county level.

Posted by Marcia Oddi on Wednesday, September 03, 2008
Posted to Indiana Government

Tuesday, September 02, 2008

Ind. Decisions - Replacement transfer list for week ending August 29, 2008

Here is the just issued replacement transfer list for the week ending Aug. 29, 2008. It is 5-pages long.

The grants are the same as listed in last Friday's updated ILB entry - there are 7 grants in all, all on p. 1 of the revised list. The remaining 4 pages list the cases denied transfer.

This looks to bring all the transfer information up-to-date.

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.

Posted by Marcia Oddi on Tuesday, September 02, 2008
Posted to Indiana Transfer Lists

Ind. Decisions - 7th Circuit posts two additional Indiana decisions today

In Michael F. Jackson v. Officer Kotter, et al (SD Ind., Judge Tinder), a 26-page opinion, Judge Kanne writes:

After suffering back injuries on two occasions while incarcerated at the United States Penitentiary in Terre Haute, Indiana, Michael Jackson brought a lawsuit against employees of the prison. He raised a negligence claim under the Federal Tort Claims Act (FTCA), see 28 U.S.C. § 2679, and constitutional claims pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Jackson amended his original complaint to name the United States as the proper defendant of his FTCA action, but the district court dismissed the claim against the United States because the amendment was filed after the applicable six-month statute of limitations specified in 28 U.S.C. § 2401(b)(1). Jackson appeals the district court’s dismissal of the United States, as well as the district court’s dismissal of three individual defendants; its grant of summary judgment in favor of Physician’s Assistant (“P.A.”) Williams, whom Jackson alleged was deliberately indifferent to his medical needs; its refusal to allow an amendment naming a new defendant after the applicable statute of limitations had expired; and its refusal to assist Jackson in securing counsel. We affirm all of the district court’s decisions except for its dismissal of the United States of America in the FTCA action, because Jackson’s amendment naming the United States related back to his original pleading, which was timely filed. See Fed. R. Civ. P. 15(c). * * *

The district court’s dismissal of the FTCA claim against the United States is REVERSED, and that claim is REMANDED to the district court for further proceedings. The district court’s remaining judgments are AFFIRMED.

In Freeland v. Enodis Corp. (ND Ind., Judge Sharp), a 36-page opinion, Judge Cudahy writes:
These appeals arise out of bankruptcy proceedings in which Daniel Freeland, Trustee for Consolidated Industries Corp. (Consolidated), sought to recover transfers made by Consolidated to Welbilt Corporation, a company now known as Enodis Corporation (Enodis). The bankruptcy court concluded that the Trustee could avoid over $30 million in transfers made by Consolidated between 1989 and 1998 and the district court affirmed. In addition, the district court, having withdrawn the reference on two of the Trustee’s claims, found that the Trustee could avoid transfers made within one year of the filing of Consolidated’s bankruptcy petition pursuant to 11 U.S.C. §§ 547 and 548. The defendants appeal these decisions. In his cross-appeal, the Trustee challenges the lower courts’ rejection of his alter ego/veil piercing claims against the corporate defendants, the district court’s refusal to enter judgment against Welbilt Holding Company and the grant of summary judgment for the individual defendants. We conclude that the Trustee can avoid transfers from Consolidated to Enodis between 1989 and 1995 as fraudulent transfers but remand for further findings on the issue of Consolidated’s solvency after 1995. We reverse and remand the district court’s grant of summary judgment for the Trustee on his § 547 and § 548 claims. With respect to the Trustee’s cross-appeal, we remand for further findings on the Trustee’s alter ego/veil piercing claims but affirm the remainder of the district court’s judgment. * * *

To summarize, we affirm the district court’s judgment allowing the Trustee to recover the $6.9 million dividend and transfers made pursuant to the Notes prior to the cancellation of the Notes in 1995. We remand for further findings on the court’s solvency determination after the Notes were cancelled. We reverse and remand the court’s entry of summary judgment for the Trustee on the transfers related to the Hall transaction. We vacate the judgment against the Trustee on his alter ego/veil piercing claims and remand for further proceedings consistent with this opinion. Finally, we affirm the district court’s refusal to enter judgment against Welbilt Holding and its entry of summary judgment for the Hirsch defendants. AFFIRMED in part, REVERSED in part, VACATED in part and REMANDED with directions. Each party shall bear its own costs of these appeals. 9-2-08

Posted by Marcia Oddi on Tuesday, September 02, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Law - More on: Indiana building codes, part of the Indiana Administrative Code, are not available online [Updated]

This is big!

Recall this ILB entry, from August 7th, complaining that the Indiana building codes were not available online? That Indiana and many other states simply incorporated by reference codes put out by the International Code Council, a private group, and in the Indiana rules and local ordinances all you will find are the exceptions? More from the Aug. 7th post:

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.
Well, today Carl Malamud, about whom the ILB has written before, after what has had to have been an enormous amount of effort, has made available online the codes of all the states. He wrote to the FOIA Listserv today:
Your readers may remember our July 4th release of California public safety codes. After a systematic survey of all 50 state fire marshalls, building commissions, administrative codes, and other authorizing legislation and regulations, we are pleased to announce that our code site has now gone national: http://bulk.resource.org/codes.gov/

These codes are all critical for public safety, apply to us all, and the model codes and standards incorporated therein were all intended to be made into laws by the standards creators. It is ironic that the laws that most directly touch our daily lives have been the least accessible, locked up behind a cash register.

In addition, the above-referenced directory features other laws of general applicability, including the California Code of Regulations and California local and county administrative codes.

A readme directory explains some of the underlying issues, making use of the scads of 3-ring binders we accumulated in purchasing materials for this release to create a set for "Code City," a graphic novel of sorts.

This is exciting, but some cautions. The "readme" is fairly quirky, a "Mr. Bill"-type set of 29 slides. I can't find anywhere that he just said what he had to say, straight up. And he should, as he is making an argument as to why these codes are not subject to copyright.

As for the codes themselves, I have downloaded the Indiana building, fire, gas, mechanical, and residential codes. You can't simply look at them online, these are enormous bulk files. The building code, for instance, is 58 MG. It is 750 pages long, but these are scanned pages.

The 2006 International Building Code begins at p. 33 of the 750-page document. As it has been scanned right out of the 3-ring notebooks, it is not searchable, at least not currently.

The Indiana Building Code, 2008 Edition (675 IAC 13-2.5) is based on: International Building Code (2006 Edition) with Indiana amendments. The first 32-page of the document are the exceptions. These are what you may currently find online in the Indiana Administrative Code at 675 IAC 13-2.5.

When I have time I may work with with these files and make them user-friendly. I'll wait to post them, however, until any potential legal problems have resolved themselves.

[Updated] Silly me. You can watch the "Mr. Bill" slides as an animation, here. But then you miss the comments underneath each slide.

Posted by Marcia Oddi on Tuesday, September 02, 2008
Posted to Administrative Law | Indiana Government | Indiana Law

Courts - "Jury Exemptions for Nursing Mothers"

Amanda Bronstad of The National Law Journal reports today in a story that begins:

Amid a wide blanket of legal protections for women who breastfeed in public, an increasing number of states have passed laws that exempt nursing mothers from jury service, with more states introducing bills on the issue.

Eleven states and Puerto Rico have passed laws that exempt nursing mothers from jury service, according to the National Conference of State Legislatures (NCSL). Most of the statutes became effective in the past five years, including those in Illinois, Kansas, Kentucky, Mississippi, Oklahoma and Virginia. Some laws require nursing mothers to have a note from a doctor; others permit the exemption up to a certain age of the child.

In the past two years, more than a dozen states have introduced bills, most of which failed, relating to jury service exemptions for nursing mothers, according to the NCSL. This year's failed bills include those in Massachusetts, Maryland, Minnesota and New Mexico. Many plan to reintroduce the legislation next year.

The legislation is being driven by constituent complaints at courthouses and often has been enveloped in other laws protecting the rights of nursing mothers in public and at their workplaces.

Posted by Marcia Oddi on Tuesday, September 02, 2008
Posted to Courts in general

Ind. Decisions - 7th Circuit issues two Indiana decisions today

In US v. Wheeler (ND Ind., Judge Miller), a 19-page opinion, Judge Cudahy writes:

A jury convicted James Wheeler of embezzling, stealing or otherwise converting employee contributions to his company’s health insurance and 401(k) funds in violation of 18 U.S.C. §§ 669 and 664. The district court sentenced him to concurrent 63 and 60 month sentences and three years’ supervised release. On appeal, Wheeler raises two challenges to his conviction. First, he contends that the district court erred in defining the mens rea element of the offense under § 669. He also argues that the court admitted impermissible prior act evidence in violation of Federal Rule of Evidence 404(b). In addition to challenging his conviction, Wheeler challenges his sentence on the grounds that the district court imposed an enhancement that lacked evidentiary support. We affirm Wheeler’s conviction and sentence.
In US v. Ervin and Zambrana (ND Ind., Judge Springmann), a 20-page opinion, Judge Kanne writes:
A federal grand jury charged Jay Zambrana and James Ervin with violating numerous provisions of federal law by participating in a drugtrafficking conspiracy, see 18 U.S.C. §§ 2, 922(g)(1), 1951, 1956(a)(1)(A)(i), (a)(1)(B)(i), 1957; 21 U.S.C. §§ 841(a)(1), 843(b), 846, 856(a)(1), and by killing two men in furtherance of that conspiracy, see 18 U.S.C. § 2; 21 U.S.C. § 848(e)(1)(A). Before trial, Zambrana sought to sever the homicide counts from the drug-conspiracy counts, see Fed. R. Crim. P. 14(a), to no avail. A jury found Zambrana and Ervin guilty on all counts, based largely on the extensive testimony of the two men’s co-conspirators who agreed to testify against them in exchange for immunity or reduced sentences. Two years later, Zambrana and Ervin filed motions seeking a new trial, see Fed. R. Crim. P. 33(a), on the grounds that new evidence came to light showing that (1) one of the co-conspirators who testified against them engaged in several acts of misconduct while detained at the city jail in Hammond, Indiana, before trial; and (2) the government withheld the evidence of that misconduct in derogation of Brady v. Maryland, 373 U.S. 83 (1963). The district court denied the motions. We affirm.

Posted by Marcia Oddi on Tuesday, September 02, 2008
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 0 NFP)

For publication opinions today (1):

In Ronald Sanders, Paul Hardin, Dallas Kelp, et al. v. Board of Commissioners of Brown Co., In, et al., a 10-page opinion, Judge Mathias writes:

After the Brown County Board of Commissioners (“the Commissioners”) passed an ordinance creating a county-wide fire protection district, several property owners (hereinafter referred to as “the Freeholders”) filed a complaint in Brown Circuit Court requesting a declaratory judgment that the ordinance was void. After summary judgment motions were filed, the trial court entered summary judgment in favor of the Intervenor-Defendant, the Board of Fire Trustees (“the Trustees”), and concluded that the Commissioners had the authority to create a fire protection district pursuant to Indiana Code section 36-8-11-4. The Freeholders appeal and argue that the Commissioners lacked statutory authority to create a fire protection district. We affirm. * * *

We agree with the trial court’s interpretation of the Act. First, we note the section 36-8-11-4 language stating, “[a] county legislative body may establish fire protection districts . . .”, does not reference the freeholder petition process established in section 36-8-11-5. If the General Assembly intended the freeholder petition process to be a prerequisite for the establishment of the fire protection district by the county legislative body, it could have easily provided for such limitation in section 36-8-11-4. See Kochis v. City of Hammond, 883 N.E.2d 182, 186 (Ind. Ct. App. 2008) (“[I]t is just as important to recognize what a statute does not say as it is to recognize what it does say.”)

We also find support for our conclusion in the language of section 36-8-11-5, which states, “Freeholders who desire the establishment of a fire protection district[.]” From this language, we can reasonably conclude that the General Assembly desired to empower freeholders with the ability to create the fire protection district if the county legislative body does not do so.

For all of these reasons, we conclude that the Commissioners had the authority pursuant to section 36-8-11-4 to pass the Ordinance, which created a county-wide fire protection district. Accordingly, the trial court properly entered summary judgment in favor of the Trustees.

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on Tuesday, September 02, 2008
Posted to Ind. App.Ct. Decisions

Ind. Law - "Upon request, the veterinarian shall provide the prescription to the client"

JAVMA News has a story dated Sept. 15 on state legislation enacted so far in 2008 relating to veterinary practice. A quote:

Among the highlights this year, Indiana implemented a sweeping revision of its veterinary practice act, redefining the practice of veterinary medicine and the meaning of direct and indirect supervision of veterinary staff. Other important changes included the following:
  • adding a registered veterinary technician to the Indiana Board of Veterinary Medical Examiners
  • establishing a veterinary investigative fund for use by the licensing board to investigate the nonlicensed practice of veterinary medicine
  • clarifying the role of veterinarians in writing prescriptions to a third party, including the right to refuse to write an inappropriate prescription
  • establishing veterinary medical records as confidential
  • granting veterinarians immunity from retaliatory litigation for reporting animal cruelty.
Here is the new law, SEA 316. The ILB was particularly interested in SECTION 40 of the bill, which added to IC 25-38.1-4-5, which concerns prescriptions of licensed veterinarians, new subsections (b) through (d). New subsection (d) provides:
(d) If a veterinarian prescribes a drug for the client's animal, upon request, the veterinarian shall provide the prescription to the client, unless prohibited by state or federal law or to prevent inappropriate use.

Posted by Marcia Oddi on Tuesday, September 02, 2008
Posted to Indiana Law

Courts - Practice Pointer: Filing Non-Record Materials before the SCOTUS

From Ben Winograd , writing in the SCOTUSBlog, an instructive entry that begins:

When the Court grants certiorari in a case, it receives a copy of the record and the parties also compile a joint appendix. But what happens if counsel believes that the Court should have access to non-record materials?

In May 2003, as part of a series of amendments to the Supreme Court rules, the Justices established a straightforward procedure by which parties may “lodge” (not “file”) non-record material.

Posted by Marcia Oddi on Tuesday, September 02, 2008
Posted to Courts in general

Ind. Court - Posey County Circuit Judge James Redwine writes book on 1878 lynchings

Rich Davis of the Evansville Courier & Press has the story. Some quotes:

MOUNT VERNON, Ind. — One night in October 1878, a white mob stormed the jail and lynched four innocent African-American men on the public square here. * * * That much we know.

But Circuit Judge James Redwine — whose office 130 years later overlooks the same square and who has written a novel called "Judge Lynch!" about the heinous episode and its cover-up — is hoping the book brings atonement.

"At a bare minimum, we owe that to those men and O.C. Thomas, too," he said, referring to the deputy sheriff he believes was killed by friendly fire during one of the arrests.

Redwine, who began researching his book in 1991, would like to see a public marker acknowledging the tragedy. He's also hoping someone will step forward to help bring the full story to light.

"I know human nature," said Redwine, an Oklahoma native and Indiana University Law School graduate who has been a Posey County judge 28 years. "Somebody's got a file cabinet or a family bible or a diary. Something this horrendous did not go unnoticed. A lot of good people at night had to turn on their coal oil lamps and record what happened."

Although the nearly 500-page book, self-published through AuthorHouse, is rooted in fact, Redwine has taken some poetic license with events and characters to spin an epic tale that spans from 1795 to the present day.

Posted by Marcia Oddi on Tuesday, September 02, 2008
Posted to Indiana Courts

Ind. Law - "Golf carts, state police policy collide"

Niki Kelly of the Fort Wayne Journal Gazette today has the definitive newspaper article, so far, on the golf cart issue. It begins:

INDIANAPOLIS – Hundreds of Hamilton residents use their golf carts to go to the post office, pick up groceries or make an ice cream run in their Steuben County lake community.

And they are properly registered with the town – for a $40 annual fee – under an ordinance passed in May that requires insurance and certain safety features, and limits the number and ages of passengers.

“With the economy faltering and gas prices going through the roof, this is a way to save gas,” said Milton Otero, the Hamilton town manager. “Our residents are saving tons of money and loving it.”

But as the popularity of the fuel-efficient golf carts grows statewide there is still much confusion over their legality on the roads, and Indiana State Police troopers have even ticketed some golf cart drivers.

The state police tried to clarify the situation with a statement last week.

It said Indiana law doesn’t specifically ban or restrict the use of golf carts on public roadways. But there are some caveats.

“What does all this mean?” the state police statement asked. “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 statement went on to say that “while 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.”

And the state police remind Hoosiers that even if their local communities have an ordinance, state law trumps local law.

Dennis Rosebrough, spokesman for the Bureau of Motor Vehicles, agrees the issue is not an easy one.

“The whole issue of non-traditional motorized vehicle has been heating up,” he said. “It is a topic of discussion among the agencies. The proliferation of golf carts is pushing the limits of the definition and forcing these kinds of conversations.”

He broke the issue down into three facets.

First, a golf cart does meet the basic definition of a motor vehicle, which is that it be self-propelled.

The next important factor, Rosebrough said, is that most traditional golf carts don’t meet the safety equipment requirements set forth in state and federal law to be on the road, such as having a horn, headlights, taillights, turn signals, windshields and even safety belts.

Lastly, he said the BMV would hypothetically consider registering and plating a golf cart but only if the manufacturer equips the vehicles to meet state and federal standards.

From the end of the story:
Rep. Sandy Blanton, D-Orleans, said she is considering a bill to make clear that golf carts are legal and that BMV can and should register them. A constituent of hers was ticketed for being unlicensed while riding a golf cart on a town street in Mitchell.

She also is a member of the Joint Study Committee on Mass Transit and Transportation Alternatives and hopes to lead a discussion on the topic during the coming months.

“A lot of rural areas are very interested in this,” Blanton said. “I hope we can find a balance that serves the safety of Hoosiers and local communities looking for transportation options.”

For the most informative recent ILB entries, see 8/26/08 (State Police analysis); 8/27/08 (State Police answer ILB questions); 8/29/08 (BMV answers ILB question).

Note: If you have strong feelings on this issue, pro of con, and would like to contact your legislator, now might be a good time to do it, before they get busy with the legislative session. (Of course, be aware that the election is Nov. 4, which might change a few legislators).

Posted by Marcia Oddi on Tuesday, September 02, 2008
Posted to Indiana Law

Monday, September 01, 2008

Ind. Courts - Indiana appellate judges create retention website

As I wrote in this ILB entry on Friday, an item on the agenda of the Commission on Court's meeting Aug. 28th was: "Public access to information concerning retention elections for judges of the Indiana supreme court, court of appeals and tax court."

Judges Terry Crone and Cale Bradford appeared before the Commission on Courts to discuss with legislators what the judiciary is doing to insure a more informed electorate insofar as information for the voters asked to vote "yes" or "no" on this November's ballot re the retention of appellate judges is concerned.

The steps taken so far to make the courts and their work more accessible, they reported, include:

First, "Appeals on Wheels", where the Court of Appeals panels frequently meet outside their Statehouse courtroom, instead traveling to hold oral arguments at various locations around the State.

Second, the judges said, the COA has begun posting its Not for Publication (NFP) opinions online, noting that of the 2,800 opinions issued this year, approximately 2,100 are NFP.

A third step, to go into operation soon, will result from the installation of video equipment in the Court of Appeals Courtroom, so that all the COA Statehouse oral arguments will be watchable via a webcast.

Concerning specific information re judges up for retention, Judge Bradford said he had been assigned to spearhead that task, because at the time he was the newest member of the appellate bench. He said they had developed a site based on the concept of a one-stop retention website, consolidating existing information from a number of sources. Judge Bradford demonstrated the prototype that has been developed.

Links to all of the oral arguments of the judges up for retention will be available from the new site, as well as their every opinion, accessible both by the judge's name, and by subject matter. To do this, Judge Bradford explained, the Court will need to spend about $4,200 for a short-term contract with Lexis. The reason, as the ILB found out later, in response to an inquiry, is that the Court's own opinions database, the one available to the public, only goes back to 1999, not far enough to cover all the opinions of some of the court members, who have served well over 20 years.

Judge Bradford said the site would include a link to the Indiana State Bar Association's results of ISBA members' evaluations of judges.

One of the legislative members of the Commission on Courts noted that in the mock-up, some of the bios included which governor had appointed the judge, and some didn't. She asked that this information be included for every judge, as that was the first question that any voter asked her about a judge.

This new website is not yet available. In response to a question posed later by the ILB to a court representative, it will be available "soon." The ILB will provide a link as soon as the new site is up. The election is Nov. 4th.

Posted by Marcia Oddi on Monday, September 01, 2008
Posted to Indiana Courts | Judicial Retention

Courts - "Missouri judges evaluated a new way for retention vote"

William C. Lhotka of the St. Louis Post-Dispatch reports today:

Review teams of six lawyers and six laymen will provide voters with an evaluation as well as results from a survey of lawyers and opinions of jurors.

Twenty-three St. Louis-area judges on the Nov. 4 ballot will learn this week whether newly constituted review teams think they should keep their robes.

Also under refreshed scrutiny are Missouri Supreme Court Judge Patricia Breckenridge and three appellate judges from eastern Missouri: Robert Dowd Jr., Roy Richter and Kurt Odenwald.

On Thursday, the Missouri Bar, the Bar Association of Metropolitan St. Louis and the Kansas City Metropolitan Bar Association will release and post online their evaluations recommending which judges should be retained or dumped.

Voters have historically paid little attention to such advice, but lawyers say they hope a revamped system will carry more weight.

The Supreme Court approved the plan, in which committees of six lawyers and six laymen in each jurisdiction will judge the judges. The committees will provide voters with a summary of each judge's background and evaluation, and results from a survey of lawyers. Opinions of jurors who served in their courtrooms also will be revealed.

The process does not apply to outstate Missouri, where judges seek election and re-election in partisan contests. But judges for the Missouri Supreme Court, appellate court and in urban areas are appointed by the governor to terms of up to 12 years, and require a majority vote of the public at retention time to remain.

Judicial performance surveys in Missouri date back to 1948 and were expanded in 1992 to consider more than a dozen factors.

Dale Doerhoff, a Jefferson City lawyer and one of the architects of the revised evaluations, said it came after a 2007 speech by then Chief Justice Michael A. Wolff calling for a more useful evaluation.

Wolff wanted to poll not just lawyers "but also the voices of jurors, litigants, witnesses, court staff and others who have direct experience with the judges."

Doerhoff said the bar studied the surveys of a dozen states, some of which cost taxpayers millions of dollars. Missouri's new one is financed by the state's 28,000 lawyers.

The committees, not just the raw numbers from surveys, decide whether to recommend retention.

Some states, like Colorado and Arizona, provide even broader input, Doerhoff said. Later, he said, "We are going to evaluate ourselves and see how we can make it better next time."

Also new is a requirement that a lawyer filling out an evaluation must certify personal knowledge of a judge. Before, St. Louis area attorneys who appeared 20 times in a courtroom in the city or county could vote on all of the judges up for retention in both locations.

In 2006, the lawyers' Voter's Information Guide recommended against retaining Judges Judy Preddy Draper, who got a 27.5 percent approval rating, and Brenda Stith Loftin, who got a 49.7 percent. Both were retained by significant margins anyway.

Retired Judge Susan Block suggested the two were victims of racial bias; Draper is Asian-American and Stith African-American.

Loftin said she has not seen the new surveys but thinks they may increase diversity. Draper declined to comment.

St. Louis attorney Thomas M. Walsh, a vocal critic of the Missouri's method of judge selection and retention, said the new system might be just window dressing.

"The effect of surveys in the past was negligible at best and made no difference to the voting public," Walsh said, citing Draper.

He said the priority should be getting good judges in the first place. While the governor appoints an appellate or urban judge from a list of three narrowed by a nominating commission, the public learns only the names of the finalists.

Another frequent critic, Professor William Eckhardt of the University of Missouri at Kansas City's law school, praised the revamp. "The more information the public gets, the better," he said.

Doerhoff said the Missouri Bar refrained from asking the Legislature for public funding because of lean financial times. He said Kansas taxpayers provide $250,000 for such a survey.

In Arizona and Colorado, the states send judicial performance reviews to every home with a registered voter. Colorado's evaluations reflect opinions from attorneys, litigants, jurors, crime victims, police, social service caseworkers, probation officers and court employees. They also include sentencing statistics.

Posted by Marcia Oddi on Monday, September 01, 2008
Posted to Courts in general

Courts - "Report cards on Kansas judges are online"

Diane Carroll of the Kansas City Star reports today:

What do you know about the judges in Kansas?

If the answer is “not much,” you may be interested in the “report cards” coming out for the first time today. Evaluations will be online for every judge in Johnson, Douglas and Leavenworth counties — and every judge in the rest of the state who faces a retention vote on the Nov. 4 general election ballot.

“Virtually everyone we’ve talked to says they have no information about the job a judge is doing and that they are voting blindly,” said Rich Hayse, chairman of a commission established by the Legislature in 2006 to manage the evaluation process.

The Kansas Judicial Report Card is designed to provide the information voters need in a nonpartisan manner, Hayse said.

The evaluations are based on confidential surveys of attorneys, witnesses, litigants, law enforcement officers, jurors and others who have worked with the judges. A professional research firm summarizes the results, so the judges never know who said what about them.

Kansas has 264 judges and justices. All 20 at the appellate level and 129 trial court judges — including those in Johnson, Leavenworth and Douglas counties — are chosen by merit selection and face retention votes. The remaining 115 trial court judges, including those in Wyandotte County, run in political elections.

All of them eventually will be evaluated, Hayse said. But the results for those who run in political elections will not be released. Instead, that information will go to each judge for self-improvement purposes.

Chief Judge Stephen Tatum in Johnson County said the county’s judges think the report cards are a good idea. The district court also surveys citizens who have served as jurors.

Unfortunately, the ILB found the site very slow, overly complicated, and difficult to use. And attempting to go directly to the 26-page report on one of the justices locked up the ILB computer, twice. So no details for now on the evaluation criteria, etc.

Posted by Marcia Oddi on Monday, September 01, 2008
Posted to Courts in general

Ind. Courts - "Lake County civil courts to switch to random filing system"

An interesting story today in the NWI Times, reported by Marisa Kwiatkowsli:

Calvin Hawkins was slated to be a traveling judge when he first was appointed as a Lake County Superior Court judge in 2007.

The East Chicago courthouse he took over had consistently low numbers of case filings, so Hawkins was told he had to spend a day each in two other Superior Court judges' courtrooms hearing cases.

"I protested it," Hawkins said. "I understood the rationale, but this is the only ... one-person judge courthouse. In October, if the desire was to close this (East Chicago) court -- and there was a serious move to close it -- that would (have been a mistake)."

Hawkins' court was an example of what some in the Lake County legal community call a flaw in court case filings that a new system is aimed at fixing next year.

In Lake County's seven civil division courtrooms and one circuit court, attorneys can select the venue in which they file their cases. The practice has contributed to a hefty disparity among the courts' caseloads.

There has been as much as a 137-case difference in filings per month this year among the different civil division rooms, excluding the court that handles domestic relations cases, Superior Court filings show.

Starting next year, most of those courts plan to move to a random filing system to ensure more balanced apportionment of cases with courtrooms. The system already is used by the Lake County criminal courts and, to a certain extent, other county courts that are housed in the same building.

Proponents of the plan argue it will help equalize the workload among judges and maximize efficiency.

The weighted caseload plan was approved by Lake County judges and is awaiting approval from the Indiana Supreme Court. The county is mandated to balance its caseloads every two years.

"That's what the public expects from us," Chief Judge John Pera said. "I think the public wants that. It is a no-brainer."

The plan will affect personal injury, mortgage foreclosure and accident cases, major civil litigation and miscellaneous cases that don't fit into specific categories. Judge Elizabeth Tavitas, who primarily handles domestic relations cases, is exempt from those changes.

Hawkins said he is opposed to the plan and argued lawyers filing civil cases should be able to choose their judges. Since he took over East Chicago's county judgeship, filings in that court have continually increased, he said.

A Lake County Bar Association survey, which garnered only 29 responses, shows more than 85 percent of respondents were opposed to random filing.

"Random filing renders obsolete the point of local courthouses," attorney Kenneth J. Allen said, noting that courtrooms in Hammond, Gary and East Chicago give residents more access to the courts.

"I don't favor it," Allen said of random filing.

But Pera said the caseload disparities became more apparent in the last year.

"I understand how lawyers like to select the judge who will be hearing the case, but I think it's more important that all the judges in the county are working at the same level and efficiency," he said. "This will move litigants' cases more quickly through the court system."

Posted by Marcia Oddi on Monday, September 01, 2008
Posted to Indiana Courts

Ind. Law - Disregarding school bus stop arm is a misdemeanor

Ken Kosby has a story today in the NWI Times:

This is the first in a series of articles highlighting commonly broken laws, explaining common misconceptions about the laws and detailing what types of actions will get a person in trouble. With school starting recently, today we examine school zone speeding and school bus stop arm violations. * * *

Most people understand they can be ticketed for speeding in a school zone, but police say many people don't realize that disregarding a school bus stop arm is a misdemeanor, not merely an infraction. In addition, police don't have to witness the offense to charge the offender.

"The bus driver can get the license plate number, vehicle and driver description ... and we can follow up on it," Grennes said.

Portage police Sgt. Keith Hughes reminds motorists that they must stop for a school bus stop arm whether they are going the same direction as the bus or the opposite direction. They must stop even if on two-lane roads with a turn lane in the middle or undivided four-lane roads.

"The only exception is on a divided highway," Hughes said.

Posted by Marcia Oddi on Monday, September 01, 2008
Posted to Indiana Law

Ind. Courts - If approved, new local rule would give co-defendants the same judge

Pablo Ros of the South Bend Tribune has a long story today that begins:

SOUTH BEND — On July 21, a few days after he charged four men with carrying out a murder, chief deputy prosecutor Ken Cotter filed a motion in St. Joseph Superior Court for a change of judge.

He wanted the same judge to preside over the cases of all co-defendants. It was a request he had made before, but occasionally and informally — orally, not in writing. Over the past few months, however, the prosecutor’s office had made it a habit of filing such motions, seeking justice within the walls of the same courtroom for defendants who had allegedly acted together to commit a crime.

This new approach was symptomatic of a more permanent change on the horizon that was engineered behind the scenes of the courthouse.

Chief Judge John Marnocha said he has submitted for approval by the Indiana Supreme Court a new rule that would provide for the assignment of felony cases in which co-defendants have been charged to the same judge or magistrate. If approved, the new rule, which would apply to all felonies except murder, would take effect Jan. 1.

The new rule is significant because it would make court rulings more consistent and the court system as a whole more efficient and fair, those interviewed for this story said. By tinkering with the current status quo — in which felony cases are randomly assigned to each of four judges through a computerized system — it would help avoid the arguably unfair outcome of a recent criminal case that added fuel to the engine of change.

Those interviewed for this story referred to it as the Park Jefferson case.

Posted by Marcia Oddi on Monday, September 01, 2008
Posted to Indiana Courts

Courts - More on: "Kentucky will retain all court records forever"

"Kentucky will retain all court records forever" was the headline to an April 14, 2007 report in the LCJ. This ILB entry has a quote from the no longer available online story:

Kentucky will retain all court records forever, the state's top court administrator said, addressing criticism after tens of thousands of old Jefferson County files were destroyed.

Records from across the state will be stored in a Frankfort warehouse that the Administrative Office of the Courts has budgeted $100,000 to rent, said Jason Nemes, who was named the agency's director Thursday after serving on an interim basis. * * *

AOC's handling of court records emerged as a hot topic last fall after the disclosure that it had destroyed misdemeanor records at least five years old in Jefferson County. Prosecutors and probation officers complained the purge made it more difficult to prove an offender's past misconduct.

The ILB has a number of entries on this Kentucky issue, including the initial coverage from Dec, 16, 2006, including this LCJ quote - emphasis added by ILB:
State court officials have endangered the public and undercut the prosecution of spouse abusers and other offenders by destroying all misdemeanor records 5 years or older, prosecutors and judges in Jefferson County say.

Interim Jefferson Circuit Clerk Michael Losavio said the Administrative Office of the Courts sent "six or seven burly men" to the courthouse Nov. 29 to haul away all microfilm and microfiche records dating from before 2001, all of which have since been destroyed.

Electronic records of old misdemeanor convictions also have been purged from the state court computer system.

State court officials say the records were destroyed based on a statewide document-retention policy amended last year to include electronic records. Previously, only paper court files were destroyed after five years under the policy, which is designed to free up space and save money on storage costs.

Something appears to have been lost in translation between then and now.

Yesterday, Jason Riley had this story in the LCJ, headlined "Kentucky needs new way to archive court records." [Thanks to the Kentucky Law Blog for spotting this story.] Some quotes:

In April of last year, the state's top court administrator said Kentucky would retain all court records forever, a response to widespread criticism after tens of thousands of old Jefferson County files were destroyed.

But now the state archives building in Frankfort and courthouses across Kentucky are overflowing with files of misdemeanors and traffic cases that used to be destroyed.

Officials say they must come up with a different solution.

"We are just out of room," said Kentucky Chief Justice John D. Minton Jr. "We're drowning in paper."

So Minton has formed a committee, led by Court of Appeals Judge Thomas Wine and including judges, court clerks, prosecutors and a representative from the Department of Public Advocacy, to review how the state retains, destroys and archives court records. * * *

The handling of court records by the Administrative Office of the Courts emerged as a hot topic two years ago after the disclosure that it had destroyed misdemeanor and traffic records in Jefferson County that were at least 5 years old.

Prosecutors and probation officers complained the purge made it more difficult to prove an offender's past misconduct. And job applicants have said they are unable to prove that old charges were dropped. They are instead given a sheet of paper to show prospective employers that says misdemeanor cases and traffic charges and convictions before November 2001 have been destroyed.

A report from a panel appointed by former Chief Justice Joseph Lambert in February 2007 blasted the Administrative Office of the Courts for "indifference, inexperience, intransigence and ineptness."

The panel condemned those officials for ignoring the importance of the records and for not realizing they could be stored cheaply in electronic formats.

Jefferson Commonwealth's Attorney Dave Stengel called the situation in Jefferson County an ongoing "nightmare" last week and said the committee should quickly look to move away from its paper-driven system.

"With the technology they have today, they can store this stuff on the head of a pin," he said.

Wine, who also headed the panel appointed by Lambert, agreed that technology is the most obvious answer.

"We need to move the storage issue into the 21st century," he said, adding that the committee will explore the cost of scanning paper files onto disk and move toward keeping the records online.

Wine said the committee will also look at destroying records that "have little or no value," such as old traffic tickets.

"There's not a lot of need for us to keep a speeding ticket," he said.

But both Wine and Minton stressed that all records needed to effectively prosecute people and criminal records that citizens are allowed to have expunged will be available.

"We intend to move forward with technology and at the same time preserve the records we need to preserve," said Minton, who became chief justice in June.

The other issue is the unknown cost to move from hard copy to disk, officials said. That's a concern, given the limited funds available across the state.

But right now, the state is paying more than $150,000 a year in storage costs at the Kentucky Department for Libraries and Archives in Frankfort.

The initial complaint in 2006 was that "burly men" from the state destroyed microfilm and microfiche records, and purged electronic records. The issue, at least as initially reported by the LCJ, was never with paper records.

Posted by Marcia Oddi on Monday, September 01, 2008
Posted to Courts in general

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Thursday, Sept. 4th:

9:00 AM - Dennis Conwell v. Gray Loon Outdoor Marketing Group, Inc. - In a contract dispute relating to the redesign and posting of a website, the Vanderburgh Superior Court entered judgment for Gray Loon Outdoor Marketing Group. The Court of Appeals affirmed. Conwell v. Gray Loon Outdoor Mktg. Group, Inc., No. 82A04-0609-CV-488, (Ind. Ct. App., 9/7/2007), reh'g denied, vacated. [See ILB summary here - 3rd case.] The Supreme has granted a petition to transfer the case and has assumed jurisdiction over this appeal. Attorney for Appellant: Robert R. Faulkner, Evansville, IN. Attorney for Appellee: James E. Gentry, Jr., Evansville, IN.

9:45 AM - Edwin Hayes, Jr. v. State - The Dearborn Circuit Court accepted the appellant’s guilty plea to various charges and sentenced him accordingly. The Court of Appeals reversed one of the convictions because the facts did not create a sufficient evidentiary foundation. See Hayes v. State, 879 N.E.2d 1179 (Ind. Ct. App. 1/31/2008), vacated. The Supreme Court has granted a petition to transfer the case, and has assumed jurisdiction over the appeal. Attorney for Hayes: Leanna Weissmann, Lawrenceburg, IN. Attorney for State: Scott L. Barnhart, 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 Wednesday, Sept. 3rd:

10:00 AM - Andrew Kawlewski vs. State of Indiana - Appellant-Defendant appeals his conviction for possession of cocaine, as a Class D felony, following jury trial. Appellant-Defendant was a passenger in a vehicle pulled over for a signal violation which escalated to a drunk driving investigation of the driver. Appellant-Defendant argues that because he was detained for 19 minutes without any reasonable, articulable suspicion of criminal activity, his constitutional rights were violated. The Scheduled Panel Members are: Judges Riley, Bailey and Bradford. [Where: Indiana Court of Appeals Courtroom]

2:00 PM - Ray A. Haas, M.D., v. Donald Bush, Personal Representative of the Estate of Elaine Brown - In this medical malpractice case, Appellant/Defendant Ray A. Haas, M.D. appeals a jury verdict in favor of Donald Bush, Personal Representative of the Estate of Elaine Bush. Haas claims the Indiana Supreme Court exceeded its authority under the Indiana Constitution when it established the loss of chance doctrine in the case of Mayhue v. Sparkman, 653 N.E.2d 1384 (Ind. 1995). Specifically, his challenge is based on article 1, § 1 and article 4, § 1 (separation of powers) and article 1, § 23 (equal privileges, including an as-applied challenge) of the Indiana Constitution. In a separate argument, Haas claims the trial court erred when it declined to exclude the written opinion of the Medical Review Panel from evidence at trial. The Scheduled Panel Members are: Judges Friedlander, Kirsch and Bailey. [Where: Indiana Court of Appeals Courtroom]

Posted by Marcia Oddi on Monday, September 01, 2008
Posted to Upcoming Oral Arguments